Parvathamma vs Lokanath

K.A. Swami, J.—This Appeal by the defendant is preferred against the Judgment and decree dated 30th May 1991 passed by the learned X Addl. City Civil and Sessions Judge, Bangalore City in O.S. No. 1877/1980 (Original Number O.S. 753/1977).

The Plaintiffs are the heirs of Ramabhadraiah Setty. First plaintiff is the adopted son, second plaintiff is the widow and third plaintiff is the daughter. Second defendant is also another daughter of late Ramabhadraiah Setty. The plaintiffs have sought for possession of the suit schedule property. First defendant claims to have been in possession of the suit schedule property under an Agreement of Sale dated 21.10.1965 - Ex.P5. The suit has been filed on 15-10-1977.

Before the Trial Court one of the major issues contested by the parties was as to whether the relief of specific performance was barred by time?

3.1. The Trial Court on considering the evidence on record has held that limitation, under Article 54 of the Indian Limitation Act. commenced on 28.8.1972 when the first defendant filed O.S. No. 2102/1972 for a permanent injunction against the present plaintiffs 2 and 3; that as the specific performance is sought by way of counter claim made in the written statement filed on 10.7.1978, the relief of specific performance must be deemed to have been sought on 10.7.1978 hence, the relief is barred by time because it is made beyond the period of three years from 28.8.1972.

In this appeal Sri. Shekhar Shetty, learned Counsel appearing for the first defendant has advanced the very question of limitation only. According to learned Counsel the limitation for seeking specific performance of the Agreement in question commenced only on 15.10.1977 when the present suit was filed for possession because till then the plaintiffs cannot be held to have either rescinded the Agreement or refused to perform it.

Therefore, the only point that arises for consideration in this appeal is as to whether the relief of specific performance sought on 10.7.1978 by way of counter claim made in the written statement filed by the first defendant was barred by time.

The facts necessary for the purpose of deciding this point are no more in dispute and the same are as follows:

Ramabhadraiah Setty executed an Agreement of Sale dated 21.10.1965 - Ex P5 in favour of the first defendant agreeing to sell the suit schedule property for a sum of Rs. 26,000/- and received a sum of Rs. 13,000/- as part payment of the consideration and also put the first defendant in possession of the suit schedule property. A period of one year was fixed for performing the Agreement. Ramabhadraiah Setty did not execute the sale deed within a period of one year. However, he executed the Will - Ex.P4 on 2.6.1969 and died on 3.6.1969. In the will he referred to the Agreement - Ex.P5 and stated thus:

Ramabhadraiah Setty after referring to Ex.P5 desired the legal representatives to execute the sale deed in favour of the first defendant on receiving the remaining sum of Rs. 13,000/-. In case the first defendant failed to pay the balance sum of Rs.13,000/- and obtain the sale deed from the legal representatives, then the legal representatives shall forfeit a sum of Rs. 2,500/- out of Rs.13,000/-and repay the balance of Rs. 10,500/- to the first defendant and in that event the suit property should go to the first plaintiff.

If the matter had remained at that stage probably nothing could have been said against the relief of specific performance sought for by the first defendant. But, after the death of Ramabhadraiah Setty, plaintiffs 2 and 3 according to the first defendant tried to interfere with her possession and also tried to dispossess her, therefore, she filed O.S.No. 2102/72 on 28.8,1972 for a permanent injunction. In that suit she specifically averred that the agreement was executed by Ramabhadraiah Setty and the possession was delivered to her pursuant to that Agreement and also further stated that defendants 1 and 2 - present plaintiffs 2 and 3 postponed the performance of the Agreement on the ground that there was a suit O.S.No. 165/1969 pending between the legal representatives of Ramabhadraiah Setty before the Civil Judge''s Court and until that suit was decided it was not possible to execute the sale deed. She further averred that defendants 1 arid 2 - present plaintiffs 2 and 3, taking law into their own hands without any reason on 28.8.1972 attempted to oust the plaintiff by force even though they had no right to do so. The attempted act on their part was illegal and unlawful. Hence, she sought for a permanent injunction. In that suit defendants 1 and 2, (present plaintiffs 2 and 3) filed the written statement in October 1972 specifically contending that the Agreement was barred by the time and the plaintiff in that suit - the first defendant in the present suit, failed to perform her part of the contract. Therefore, they denied their liability to execute the sale deed under the Agreement. A certified copy of the Judgment in O.S.No. 2102/1972 has been produced and marked as Ex.P3.

It is argued at the Bar that Appeal R.A.No. 303/1974 filed against the Judgment and decree passed in O.S.No. 2102/1972 was also dismissed. However, a copy of that Judgment is not produced.

From the summary of the pleadings contained in the Judgment in O.S. No. 2102/1972 and the findings recorded therein it becomes clear that the suit was filed by the defendant on 28.8.1972 pursuant to the interference by defendants .1 and 2 - plaintiffs 2 and 3 herein. Therefore, even placing the case of the first defendant at the highest, it can safely be said that on the date when the defendants 1 and 2 in O.S.No. 2102/1972 filed the written statement i.e., in October 1972, contending that the relief was barred by time etc., as stated above, it amounted to denial of the specific performance pursuant of the Agreement - Ex.P3, therefore, the first defendant was required to file the suit within a period of three years from that date. She did not file a suit for specific performance within the period of three years from that date. However in the present suit which was filed on 15.10.1977, she has filed the written statement on 10.7.1978 making a counter claim for specific performance of an Agreement of Sale dated 21.10.1965. The facts stated above make it clear that the present first defendant had the knowledge of the refusal by the legal representatives of Ramabhadraiah Setty to perform their part of the Agreement in October 1972 itself.

The contention of Sri Shekar Shetty, learned Counsel for the appellant is that this is a case in which according to the terms of the will the plaintiffs and defendant. No. 2 were required to forfeit the sum of Rs. 2,500/- out of Rs. 13,000/- in the event they intended to refuse to perform the Agreement and refund the balance of Rs. 10,500/- and until they did so, it could not be taken that there was refusal on the part of the plaintiffs 2, 3 and defendant No. 2 to perform the Agreement. Therefore, it is contended that refusal on the part, of the Plaintiffs 2, 3 and defendant No. 2 to perform the Agreement must be deemed to have been taken only on 15.10.1977 when the present suit is filed. It is not possible to accept this contention. No doubt in the Agreement the period of one year was fixed for performance, but, thereafter Ramabhadraiah Setty kept alive the Agreement by mentioning the same in the will and also gave liberty to the legal representatives to rescind the Agreement by forfeiting a sum of Rs. 2,500/- in the event the first defendant failed to pay Rs. 13,000/-and have the sale deed executed. But, that did not in any way prohibit or come in their way to refuse to perform the Agreement and also not to refund a sum of Rs. 10,500/-. It is what they did by interfering with the possession of the first defendant of the suit property and also by filing the written statement in October 1972 in O.S.No. 2102/1972 contending that the first defendant was not entitled to specific relief because the relief had become barred by time etc. Hence the limitation commenced in October 1972 itself when the written statement was filed in O.S.No. 2102/1972. In this view of the matter the Decisions reported ..in Kruttiventi Mallikharjuna Rao and Others Vs. Vemuri Pardhasaradhirao and Another, and in KHARKU and ORS. v. RASIL SINGH and ORS AIR 1954 J&K 33 relied upon by the learned Counsel for the appellant have no bearing, Therefore, the same are not referred to in detail. Accordingly the point raised for determination is answered in the affirmative.

Hence, we see no ground-to admit the Appeal. It is liable to be dismissed. However, the plaintiffs have filed a Memo dated 21.2.1991 which reads thus:

"The respondents are agreeable for this Hon''ble Court passing a decree in a sum of Rs.10,500/- only in favour of the appellant and against the respondents."

This Memo is placed on record.

As we have held that the relief of specific performance was barred by time, it was not also permissible to pass decree for refund of the amount paid under the Agreement. However the plaintiffs themselves have come forward to refund Rs. 10,500/- to the first defendant. Therefore, in the light of the aforesaid Memo we have to modify the decree of the Trial Court instead of dismissing the Appeal. Therefore in view of the Memo filed by respondents 1 and 2 who are plaintiffs 1 and 3 in the suit, the Judgment and decree of the Trial Court is required to be modified. Accordingly, the Appeal is allowed in part. The Judgment and decree of the trial Court refusing specific performance to first defendant is affirmed. The decree of the trial Court for possession also is affirmed on condition that respondents 1 and 2 shall pay to the first defendant/appellant or deposit in the Trial Court a sum of Rs. 10,500/- before they execute the decree for possession.

Thus, the decree for possession and mesne profits passed by the Trial Court is affirmed subject to payment of deposit of the amount as directed above.

There will be no order as to costs in this Appeal. However, the costs awarded in the Trial Court are not disturbed.