Musammat Batulan vs Nirmal Das and Musammat Kabulan and Others

Ali Imam, J.—The plaintiff instituted this suit for the specific performance of a contract entered into by him and defendants Nos. 1 and 2 on the 25th of June 1912. Evidently the agreement to sell 41/2 annas share of Salempur Chatura Lakhraj took place 2 or 3 days before this date.

On the 27th of June defendants Nos. 1 and 2 executed a deed of sale in favour of the plaintiff, but this deed was not registered. On the 17th of October 1912 the sum of Rs. 71 out of the consideration money settled at Rs. 75 between the parties was paid by the plaintiff to the defendants Nos. 1 and 2. On the 24th of February 1914 defendants Nos. 1 and 2 executed a deed of sale in favour of defendant No. 4 and sold the property in suit with some other properties. Three months after it transpired that defendant No. 3 also was supposed to have some interest in the property and a supplementary deed of sale was executed by defendants Nos. 1 to 3 in favour of defendant No. 4 in respect of the same properties.

The suit of the plaintiff was instituted on 1st October 1915. The Munsif of Barh who tried the suit dismissed it, but on appeal the learned Judge of Patna has reversed the decision of the Munsif and has decreed the suit in favour of the plaintiff.

The learned Vakil appearing before me on behalf of defendant No. 4 urges the following points on which, he submits, I should hold the judgment of the learned District Judge to be incomplete and insufficient.

Firstly, it is contended that issue No. 2 framed by the Munsif dealing with the question of limitation in this case has not been considered by the learned Judge. The learned Munsif found on this point against the plaintiff, on the ground that the agreement to sell having been made two or three days before the 15th of June 1912, and the plaint having been filed on the 1st October 1915, the suit would be barred under Article 113 of the Limitation Act inasmuch as the suit was instituted three years after the agreement to sell took place. The learned Munsif disbelieved the plaintiff''s case with reference to the allegation that there was a subsequent agreement to execute the deed or to register it in October 1912, and hence he found that the suit was instituted after 3 years of the agreement. If it be held that more than 3 years had passed since the date fixed for the performance of the contract and no suit had been instituted, Article 113 would no doubt govern the case. But the finding of fact arrived at by the learned District Judge with reference to the subsequent agreement to execute the deed and to register it would clearly take this case out of the mischief of Article 113 of the Limitation Act. The learned Judge in his judgment holds that the payment of Rs. 71 and the execution of the receipt Exhibit 2 have been proved. The learned Judge also accepts the evidence of the plaintiff on the point of the passing of a portion of the consideration money, namely, Rs. 71 to the defendants Nos. 1 and 2. Exhibit 2, which is the receipt for this money, has been duly proved and accepted as genuine by the learned Judge. This receipt and the findings of the learned Judge on this point put the matter beyond a shadow of doubt as regards the payment made on the 17th October 1912. On this finding it would be impossible to hold that limitation applies to the case of the plaintiff. On the 17th October 1912 there was the acceptance of a part of the consideration money by the defendants Nos. 1 and 2. This by itself is sufficient to show that the time for the performance of the contract was some day subsequent to the 17th October 1912, when that payment was made. If so, the suit would be within time. As a matter of fact the refusal to register the deed according to the plaint did not take place till the 27th October 1912. If that be so, then if Article 113 of the Limitation Act is to apply to this case it would apply from the date of this refusal, namely, the 27th October 1912, and not before. In this connection paragraph 12 of the plaint is significant inasmuch as one of the various dates when the cause of action in this case is stated to have actually arisen is the 27th October 1912.

The learned Vakil appearing on behalf'' of defendant No. 4 contends that the learned Judge has not taken up the question of limitation as an issue in the case and dealt with it properly. It is true that the judgment of the learned Judge has not dealt with this question of limitation exhaustively, but I find that the principal elements constituting the issue of limitation in this case have, as a matter of fact, received the learned Judge''s consideration and the findings to which I have made reference are sufficient in themselves to show that Article 113 of the Limitation Act has no application to the present case.

The next point to which my attention has been drawn by the learned Vakil appearing on behalf of the defendant-appellant is the question of laches on the part of the plaintiff in instituting this suit. It is pointed out that although the refusal to register the deed took place on the 27th October 19l2, the plaintiff showed no sign of instituting his suit till almost the close of the year 1915 and that this delay on his part might be considered as an indication that he had abandoned all idea of pressing his claim for specific performance of the contract entered into between himself and the defendants Nos. 1 and 2. Delay cannot in this case be disputed, but the question is whether this delay by itself is sufficient to justify me to hold that the plaintiff has been guilty of laches. As I have held before, the suit is not barred by limitation. Therefore, the delay is not such as is not permitted by the law. On the authority of Kissen Gopal Sadaney v. Kally Prosonno Sett 33 C. 633 mere delay is not sufficient. The delay must be of a character as to give rise to an inference of the abandonment of the right or should disclose any prejudice to the defendant. The learned Munsif who framed the issue on this question found it against the defendant. The learned Judge who heard the appeal has not dealt with this question. It has been contended that the learned Judge should have done so and that the case for that reason should be referred to the learned Judge for disposal after he has considered it. I am not disposed to agree to this prayer, inasmuch as nothing has been shown how the delay in instituting the suit has either prejudiced the defendants or amounts to an abandonment of the right of the plaintiff to ask for specific performance. of the contract. The defendant No. 4 is a near relative of defendants Nos. 1 to 3, The finding of the learned Judge is that the defendant has failed to prove that she was a bona fide purchaser for value without notice to the plaintiff''s equitable title.

Considering the circumstances of the case I have no doubt that defendant No. 4 was well aware of the major portion of the consideration money having been paid by the plaintiff to defendants Nos. 1 to 2. There is, therefore, no reason to think that there was any valid reason for defendant No. 4 to believe that the plaintiff had abandoned his claim.

My attention has been drawn to the fact that there was no attempt on the part of the plaintiff to apply for compulsory registration of the deed of sale Exhibit 1 and that this ought to be sufficient in itself to leave the defendant No. 4 under the impression that the plaintiff had no intention of proceeding with the agreement that was entered into in June 1912. I am not satisfied that, the plaintiff not having asked for compulsory registration, this in itself is sufficient to justify any inference against him with reference to his abandonment of the claim by conduct. Moreover, I find nothing in the written statement of defendant No. 4 to show that there was, apart from the delay, anything in the conduct of the plaintiff to suggest abandonment. The only paragraph of the written statement to which my attention has been drawn is paragraph 11. I am unable to find bow the allegations in paragraph 11 can justify my holding that there have been such laches on the part of the plaintiff as to induce the exercise of the discretion vested in this Court u/s 22 of the Specific Relief Act in favour of the plaintiff. In the circumstances I am also unable to accept the contention that in this case on the question of laches there is any necessity for the case to be referred back to the learned Judge who heard the appeal.

The learned Vakil appearing on behalf of the defendant-appellant has pressed upon me the consideration that I should rule out the relief for the specific performance of the contract and grant to the plaintiff relief No. 4, which is in the alternative. The alternative relief sought by the plaintiff is evidently subject to the condition that should the Court find any difficulty in passing a decree for the specific performance of the contract, then the alternative relief might be granted. The learned District Judge found no difficulty in giving a decree for specific performance of the contract and I confess I see no difficulty in my way. No sufficient reason has been placed before me as to why in the absence of any particular difficulty the relief sought in the first instance should not be granted and that the relief in the alternative should be considered as the right and proper one in this case.

The appeal is dismissed with costs.