Prakash Narayan Mishra vs Sobhana Kadam & Ors

This first appeal has been filed by the plaintiff being aggrieved by the judgment and decree dated 19.7.2000 passed by the Court of 9th Additional

District Judge, Gwalior, in Civil Suit No.19-A/1996.

It is the case of the appellant/plaintiff that he had filed a suit for specific performance of the contract mentioning that the house situated at Chitnis

Ki Goth, Lashkar, Gwalior, is in his possession and he alleged that he and the owner of the property Late Harishchandra Kadam had entered into an

agreement to sell on 31.7.1986 to sell out that house in favour of the appellant for sale consideration of Rs.50,000/- and an agreement to sell was

executed duly attested by notary public. It was alleged that in fact plaintiff had paid a sum of Rs.5,000/- on 11.5.1985 as advance and remaining

amount of Rs.45,000/- on 30.7.1986 inasmuch as Harishchandra Kadam required some amounts for construction and had agreed to sell the property.

It is an admitted fact that father of the plaintiff namely Awdhesh Narayan was residing in the capacity of a tenant. It is plaintiff's allegation that

possession of the first floor was handed over on 31.7.1986 and it was settled that since Harishchandra Kadam was constructing his own house,

therefore, he was given three months' time to vacate the ground floor and hand over possession of the ground floor. It was also agreed that during this

intervening period of enjoyment of possession of the ground floor plaintiff and Shri Harishchandra Kadam had agreed to execute a rent agreement in

terms of which Shri Harishchandra Kadam was required to pay rent of Rs.300/- per month. It is submitted that Shri Harishchandra Kadam completed

his construction and shifted to his newly constructed house at Saraswati Nagar, Lashkar, Gwalior, withholding possession of one room on ground floor

by keeping small house hold items and that too was vacated on 2.1.1990 and possession was handed over to brother of the appellant namely Vijay

Narayan and thereafter Shri Harishchandra Kadam wrote a letter on 5.1.1990 in favour of the appellant intimating that he is going to execute the sale-

deed on 22.2.1990, but because of illness and resultant weak physical status, sale-deed could not be executed and ultimately he died on 11.4.1990. On

the basis of such submissions, trial Court had framed following issues and directed the respective parties to lead evidence:-

Þ1& D;k oknh us izfr- dza-1 ds ifr rFkk izfr- dza-&2 ls 5 ds firk gjh'kpanz dne ls fnukad 31@7@86 uksVjh ds le{k okn edku dh dher ipkl gtkj :i;s nsdj

fodz; vuqca/k laikfnr djk;k Fkk \ c& D;k gjh'kpanz dne us oknh dks okn Hkou dk ekfyd eku fy;k vkSj bl rjg oknh Hkou Lokeh gks x;kA

2&D;k e`rd gjh'kpanz us viuk u;k edku esa ys tkus ds fy, le; ekaxk vkSj /khjs /khjs lkeku ys x;k vkSj dqN lkeku ryeafty ds ,d dejs esa can dj

fn;k ftls Hkh ckn esa ys x;k \

3& D;k gjh'kpanz us oknh ds firk vo/ks'kukjk;.k feJk ds fo:) n'ke O;o- U;k;k- oxZ& 2 Xokfy;j ds U;k;ky; esa nkok dza-

130,&87 is'k fd;k Fkk ftls izfroknh dz-1 yxk;r 5 us fnukad 7@3@1994 dks fujLr djk fy;kA D;ksafd mDr fgLls dk dCtk gjh'kpanz ds firk ds'kojko us

vo/ks'kukjk;.k feJk dks ns fn;k Fkk \ 4& D;k gjh'kpanz us viuh chekjh ds dkj.k oknh ds i{k esa okn edku dh jftLV~ªh c;ukek djkus dks Vkyrk x;k

vkSj jftLV~ªh; c;ukek laikfnr ugha djk;k \

5& D;k oknh laiw.kZ okn Hkou eas ekfyd dh gSfl;r ls dkfct gS \ 6& D;k fn- 22@8@90 dks izfr- dza- 6 ds ifr jes'k panz f'kogjs vius lkFk 10&12

yksxksa dks ysdj vk;k vkSj ry eafty ij oknh ds yxs rkyk Mkydj jgus yxk fd] okn edku mldh iRuh ds uke ij [kjhn fy;k x;k gS \

7& D;k izfroknh da-6 us vU; izfrokfn;ksa ls fnukad 17@8@90 dks okn edku dks fof/kor~ dz; fd;k gS \

8& D;k oknh us tkucw>dj vius firk vo/ks'kukjk;.k feJk dks i{kdkj ugha cuk;k gS vkSj bl rjg i{kdkj ds vla;kstu dk nks""k gS \

9& D;k oknh us okn dk mfpr ewY;kadu u dj leqfpr U;k;'kqYd vnk ugha fd;k gS \

10& D;k oknh vc izfr- dza-&6 dk okn edku esa fdjk;snkj gks x;k gS \

11& vuqrks""k ,oa okn O;; \

vfr- okn iz'u %&

12& D;k okn vof/k esa gS \ß

Plaintiff has examined himself and six other witnesses so also handwriting expert K.B. Agrawal, while defendant has examined herself and her

handwriting expert Shri Jayprakash Verma. It is submitted that other defendants did not appear in the witness box because it is alleged that legal heirs

of Shri Harishchandra Kadam had sold out the ground floor in favour of respondent No.6 whose husband had acquired the suit property on 22.8.1990

and put up his lock on the suit property.

It is the contention of the appellant that the impugned judgment and decree is against the documentary evidence and the provisions of law and the

learned trial Court has committed material illegality in analyzing the statement of the plaintiff/appellant. It is also submitted that receipt Ex.P/2 has

been arbitrarily ignored on hyper-technical ground that there is mismatch of date on the receipt and similarly Ex.P/3 and Ex.P/4 have been arbitrarily

overlooked. It is further submitted that Ex.P/2 has been interpreted in an arbitrary and erratic fashion. It is also submitted that trial Court has failed to

appreciate that once possession was handed over to the plaintiff and sale consideration was accepted by the seller, then the transaction was complete

and the document did not remain in the form of an agreement but attained the form of sale-deed registration of which before the Registrar was a mere

formality. It is also submitted that an eviction suit No.130-A/87 was also filed which was not pressed by legal heirs of Shri Harishchandra Kadam, and

therefore, the findings recorded by the trial Court dismissing the suit is perverse, arbitrary and illegal.

Learned counsel for the opposite party on the other hand has drawn attention of this Court to para 10 to 18 of the impugned judgment to point out

that in para 10 contention of defendant Shobhana has been recorded in which she mentioned that Ex.P/4 does not contain signatures of Harishchandra

Kadam. Her father-in-law Shri Keshav Rao died in 1964 and after death of Keshav Rao rent receipt was never used. Similarly, Ex.P/2 and Ex.P/3 do

not contain signatures of Harishchandra Kadam so also Ex.P/5 and Ex.P/6. Jayprakash Verma (DW-2), handwriting expert, also denied that Ex.P/2 to

Ex.P/6 do not contain signatures of Harishchandra Kadam and submitted his report Ex.D/17. In para 11 trial Court has recorded a finding that receipt

Ex.P/2 is alleged to have been executed on 11.5.1985, whereas date below the signatures marked as 'A' to 'A' clearly reveals that date was changed

from 11.5.1986 to 11.5.1985. Thus, the receipt Ex.P/2 was found to have been interpolated and not trustworthy.

Trial Court in para 12 has recorded a finding that plaintiff in his evidence deposed that on 30.7.1986 he had paid a sum of Rs.45,000/- vide Ex.P/3

and receipt was given by Harishchandra Kadam, but the witness is silent as to in whose presence this amount of Rs.45,000/- was handed over.

Tarachand (PW-2) though deposed in his evidence that Rs.45,000/- were handed over to Harishchandra Kadam in presence of his wife and kids, but

no cross-examination has been conducted on Shobhna (DW-1) to corroborate the statement of Tarachand (PW-2). Similarly, it has noted that though

Tarachand (PW-2) deposed that receipt, Ex.P/3, was prepared in front of him, but he was unable to point out that who had written Ex.P/3. There is no

explanation as to why signatures of none of the witnesses were obtained on Ex.P/3 and why Harishchandra Kadam was made to sign the same

receipt twice. It is also mentioned that on Ex.P/3, receipt, below signatures marked as 'A' to 'A' date is mentioned as 30.7.1986, whereas below

signatures marked as 'B' to 'B' some other numerals are mentioned and they are not the same as 30.7.86. It is further mentioned that when plaintiff

had allegedly handed over a sum of Rs.5,000/- he had got a typed receipt. No explanation has been given that when he had allegedly paid a sum of

Rs.45,000/-, then why typed receipt was not recorded and details were filled up on a rent receipt, that too of Keshavrao Mukund Rao Kadam. It is

mentioned that this aspect is a grey area which creates doubt about authenticity of the document. It has also come on record that when payment was

made on 30.7.1986, then why agreement (Ex.P/4) was not executed immediately after purchase of stamp on 30.7.86, on which plaintiff is silent. It is

also mentioned that when stamp for affidavit (Ex.P/5) was purchased on 31.7.86, then why it was executed and notarized on 1.8.86, specially when it

was signed from 'A' to 'A' part on 31.7.86 itself, no reason has been given. Even there is cutting in the name of the person who identified

Harishchandra Kadam. Earlier he was to be identified by some lawyer Mr. Gupta, but later on he was identified by some Mr. T.R.Singh whose details

have not been given as to the father's name, profession etc. It is further noted that since Harishchandra Kadam has allegedly signed it on 31.7.86 and

Naib Tahsildar had notarized on 1.8.86, that means Harishchandra Kadam had not signed it in front of Naib Tahsildar, therefore, documents Ex.P/4

and Ex.P/5 have also been considered to be doubtful. Learned trial Court has also viewed the statement of Jasveer (PW-5) with suspicion that when

stamp paper to execute Ex.P/4 was purchased and executed in the office of the Collectorate, then why Ex.P/5 was not executed on the same date

31.7.86 but was executed in front of Naib Tahsildar on 1.8.86, that's why the agreement and affidavit were not executed simultaneously is a question

which has been viewed with suspicion by the trial Court.

It has also come in evidence that Prakash Narayan (PW-1) admitted in para 20 of his cross-examination that when Court commissioner had visited

the site, he had seized photographs, Ex.P/9 to Ex.P/13 which demonstrates that till 2.1.90 plaintiff was not possessing all the photographs Ex.P/9 to

Ex.P/13, therefore, his story that he was already in possession of the ground floor where Harishchandra Kadam had left some of his material does not

get corroborated. In fact, Shobhna (DW-1) has categorically mentioned that after executing sale-deed, Ex.D/3, possession of the ground floor and the

first floor was handed over to defendant No.6 Saroj and since then she is living in the said portion. It has also come on record that Vijay (PW-6) gave

a specific date 5.1.90 on which Harishchandra Kadam had allegedly removed his luggage, whereas Prakash Narayan (PW-1) had deposed that

Harishchandra Kadam had taken his luggage three months after execution of the agreement to sell.

Trial Court has also dealt with the issue of civil suit No.103-A/86 (Shobhna Vs. Awdhesh Narayan) but has also recorded a finding that plaintiff did

not produce copy of the judgment and decree. It has also come on record that plaintiff has failed to give details as to when he asked Harishchandra

Kadam to execute sale-deed. Though plaintiff produced Ex.P/6 alleging it to be a correspondence from Harishchandra Kadam but trial Court

disbelieved the same looking to the narration and contents of Ex.P/6 and has also recorded a finding that Harishchandra Kadam was actually working,

and therefore, it cannot be said that he was so sick that he could not execute the sale-deed. Prakash Narayan (PW-1) mentioned that defendant No.6

and her husband had forcefully obtained possession of the ground floor of the disputed property. In support, he produced Rakesh Sharma (PW-7) who

deposed that he was working in the said house and carrying out repairs from December, 1989 to 1.9.1990, but it has come on record that though

plaintiff submitted that when defendant No.6 had unauthorizedly occupied the ground floor, he had made a police report, but said police report was

never produced on record. Rakesh Sharma (PW-7) had approached the Court and had given intimation about forceful taking over of possession by

defendant No.6 when Court had appointed commissioner for spot inspection. Said commissioner had found possession of Saroj Shivhare on the spot

and also reported that defendant No.6 had taken possession on 1.8.90. Thus, trial Court has disbelieved the averments made on behalf of the plaintiff

that defendant No.6 had forcefully taken possession of the ground floor on 22.8.1990.

Learned counsel for the defendant has also submitted that initially suit was filed for declaration and permanent injunction on 28.8.1990.

Amendment was made adding a relief for specific performance on 26.3.1992 in terms of Court order dated 23.3.1992. It is submitted that on that date

suit had already become time barred as far as relief for specific performance is concerned inasmuch as admittedly agreement was executed in the

year 1986 and though there is a clause 2 in the agreement which provides that both the parties shall seek permission from the competent Court and

shall get document executed within seven days of such permission, but there is no evidence as to what steps were taken for obtaining such permission.

In fact, learned counsel for the appellant has fairly conceded that permission was to be obtained in terms of the provisions contained in the Urban

Land (Ceiling & Regulation) Act, 1976 which provides that if any land or building is to be sold which is not more than ten years old, then permission of

the competent authority is to be taken. Since the property in question was more than 10 years old, no permission from any competent authority was

required.

Learned counsel for the respondent submitted that in fact statements of Narendranath (PW-3) are doubtful who says that Ex.P/4 stamp was

purchased and executed on the same date which is not correct. It is also submitted that plaintiff has to stand on his own legs and no capital can be

allowed to be made on the aspect of non-appearance of defendant No.6 before the trial Court inasmuch as plaintiff was required to prove execution of

document Ex.P/4. It is also submitted that document Ex.P/6 is a forged document inasmuch as on Ex.P/6 it is mentioned that because of absence of

permission, registry could not be effected, but the onus to take permission was on both the parties and Ex.P/6 notes that possession of the ground floor

was handed over on 2.1.1990, whereas it was written on 5.1.1990 and Prakash Narayan (PW-1) admitted that he is not aware of the date on which

Harishchandra Kadam removed his goods but submitted that possession was handed over to him in front of Tarachand. This is contrary to document

Ex.P/6 which says that since Prakash Naryan (PW-1) was not available, therefore, the keys were handed over to the brother of the plaintiff, namely

Vijay Narayan. It is also submitted that trial Court has delved into all these issues properly and now no indulgence is required in this first appeal and

the judgment and decree passed by the trial Court needs to be affirmed.

In rebuttal, learned counsel for the appellant has submitted that defendant No.6 has not stepped in the witness box which shows collusion between

defendant No.1 and defendant No.6. It is also submitted that provisions of Section 19(b) of the Specific Relief Act will be applicable and when full

consideration was paid, then mere denial of document will not create any equitable right in favour of the defendant. It is also submitted that once

amendment was allowed, then it was deemed to have been made from the date of the suit and further provisions of Article 54 of the Limitation Act

will not be applicable.

Learned counsel for the appellant has placed reliance on the judgment of this Court in the case of Rameshwarlal vs. Dattatraya and others as

reported in 2010(4) M.P.L.J. 655 wherein the ratio is that if agreement to sell property was to be executed by 31.10.1987 and subsequently defendant

on 1.4.1994 agreed to execute the same within a period of one month of his getting the permission from the competent authority, suit filed on

29.1.1996 within three years from 1.4.1994 is within limitation. Similarly, reliance has been placed on the judgment of the Supreme Court in the case of

R.K.Mohammed Ubaidullah and others vs. Hajee C. Abdul Wahab (D) by L.Rs. and others as reported in (2000) 6 SCC 402 wherein the ratio is that

in terms of the provisions contained in Section (19b) of the Specific Relief Act, 1963 subsequent purchaser must prove his bona fides. It has been held

that burden of proof of good faith is on the purchaser who pleads that he is an innocent purchaser. Good faith is a question of fact which must be

considered and decided on the facts of each case. Where evidence is contradictory, the Court must keep in view the circumstances before deciding

which version is acceptable. Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Ramathal v. Maruthathal and

others as reported in AIR 2018 SC 340 wherein the ratio is that Section 20 of the Specific Relief Act deals with an equitable relief. While exercising

such discretion Court has to act judicially within settled principles of law. Reliance has also been placed on the judgment of the Supreme Court in the

case of Mrs. Chandnee Widya Vati Madden v. Dr. C.L.Katial and others as reported in AIR 1964 SC 978 wherein the ratio is in regard to time of

enforcement of specific performance of contract. It is mentioned that when there is a term that vendor shall obtain necessary permission from the

Government before sale and vendor made application but withdrew the same, then time was held to be not of essence of contract and specific

performance was held to be enforceable. It has been held that if permission for sale is refused, then damages could be granted. Learned counsel for

the appellant has also placed reliance on the judgment of the Supreme Court in the case of Vasant Balu Patil and others vs. Mohan Hirachand Shah

and others as reported in (2016) 1 SCC 530 which provides that once an application under Order 6 Rule 17 CPC is allowed, then unless such

amendment is challenged by defendants, said amendment will relate back to the date of filing of the suit and the issue with regard to limitation had to

be decided in favour of the plaintiffs. Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Ramesh Kumar and

another vs. Furu Ram and another as reported in (2011) 8 SCC 613 wherein the ratio is that if the defendant avoids from being examined, then

adverse inference is to be drawn in view of Section 114 of the Evidence Act, 1872. Reliance has also been placed on the judgment of the Supreme

Court in the case of Devalsab (D) by LRs. Vs. Ibrahimsab F. Karajagi and Anr. as reported in 2005 SAR (Civil) 281 wherein it has been held that

when plaintiff after entering into an agreement of sale first in point of time had issued advertisement in the press and defendant No.2 being a

subsequent purchaser was aware of the transactions between plaintiff and defendant No.1, he cannot be a bonafide purchaser.

On the other hand, learned counsel for the defendant has placed reliance on the judgment of the Supreme Court in the case of Garre Mallikharjuna

Rao (D) by L.Rs. and Ors. vs. Nalabothu Punniah as reported in (2013) 4 SCC 546 wherein the ratio is that where plaintiff raises mutually

inconsistent pleas relying upon untrustworthy, shaky and vague evidence, discretionary relief of specific performance in contravention of Section 20 of

the Specific Relief Act, 1963 cannot be granted. Similarly, reliance has been placed on the judgment of this Court in the case of Vishwanath Singh and

others (L.Rs. of Late Khilan Singh Rajput) vs. Shanti Kumar Sahu and others as reported in 2017 (1) M.P.L.J. 396 wherein it has been held that in a

suit for specific performance of the agreement plaintiff has to both aver and prove that he had all along been ready and willing to perform essential

terms of contract.

Before proceeding to analyze rival submissions and evidence which has come on record, it is necessary to refer to clause 2 of the agreement

(Ex.P/4) which reads as under :-

Þ--------ysfdu fodz; i= l{ke U;k;ky; ls izkIr fd;s tkus gsrq nksuks i{kdkj gLrk{kj dj Lohd`fr izkIr djsxsa rFkk Lohd`fr izkIr fd;s tkus ds lkr fnol ds vanj

laikfnr djk;k tkuk vko';d gksxkA ----ß

Ex.P/7 is a public notice published in daily newspaper Swadesh dated 1st April, 1988 vide which plaintiff had informed the public in general that

Harishchandra Kadam resident of Saraswati Nagar, Lashkar, Gwalior had entered into an agreement dated 31.7.1986 with him i.e. Prakash Narayan

son of Awdhesh Narayan and has already given possession of the said property in favour of Prakash Narayan. Ex.D/4 is the rebuttal notice which

was published on behalf of Harishchandra Kadam denying execution of any such document. In view of such facts, law laid down by the Supreme

Court in the case R.K.Mohammed Ubaidullah (supra) will be of no assistance to the plaintiff/appellant. Similarly, when Ex.P/4 clearly reveals that a

joint application was to be moved by both the plaintiff and the defendant for obtaining a permission, then there being no application as to what steps

were taken by the plaintiff to move such joint application and on the contrary there being an admission in para 18 of his cross-examination that he had

not given any written intimation to Harishchandra Kadam for execution of the sale-deed and he also denied that he was not aware of the fact that

there was any rebuttal notice published by Harishchandra Kadam in Swadesh dated 7th April, 1988, then in view of such facts, law laid down in the

case of Rameshwarlal (supra) will not be applicable inasmuch as there was no subsequent agreement on the part of defendant to execute the same

within some stipulated period. There is another glaring fact which supports the judgment of the trial Court in rejecting Ex.P/6, communication allegedly

made by Harishchandra Kadam in favour of the plaintiff inasmuch in Ex.P/7 newspaper publication plaintiff has mentioned that he had taken

possession by executing agreement in 1986 itself, whereas as per the recitals of Ex.P/6 possession was handed over on 2.1.1990. This contradiction

has been rightly appreciated by the trial Court so to doubt the genuineness of document Ex.P/6. In fact, the ratio of the judgment of the Supreme

Court in the case of Mrs. Chandnee Widya Vati Madden (supra) will also not be applicable inasmuch as admittedly Section 27 of the Urban Land

(Ceiling & Regulation) Act provides for taking permission for a transaction in relation to land or building which was not 10 years old. It reads as under

:-

“27. Prohibition on transfer of urban property.-

(1) Notwithstanding anything contained in any other law for the time being in force, but subject to the provision of sub-section (3) of section 5 and sub-

section (4) of section 10, no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years, or otherwise, any urban or

urbanisable land with a building (whether constructed before or after the commencement of this Act) or a portion only of such building for a period of

ten years of such commencement or from the date on which the building is constructed, whichever is later, except with the previous permission in

writing of the competent authority.

(2)Any person desiring to make a transfer referred to in sub-section (1), may make an application in writing to the competent authority in such form

and in such manner as may be prescribed.

(3) On receipt of an application under sub-section

(2), the competent authority may, after making such inquiry as it deems fit, by order in writing grant or refuse to grant the permission applied for:

Provided that the competent authority shall not refuse to grant the permission applied for unless it has recorded in writing the reasons for doing so and

a copy of the same has been communicated to the applicant.

(4)Where within a period of sixty days of the date of receipt of an application under this section the competent authority does not refuse to grant the

permission applied for or does not communicate the refusal to the applicant, the competent authority shall be deemed to have granted the permission

applied for.

(5) (a) Where the permission applied for is for the transfer of the land with the building or, as the case may be, a portion only of such building referred

to in sub-section (1) by way of sale, and the competent authority is of the opinion that such permission may be granted, then, the competent authority

shall have the first option to purchase such land with building or a portion only of such building on behalf of the State Government at such price as may

be agreed upon between the competent authority and the applicant or, in a case where there is no such agreement, at such price calculated in

accordance with the provisions of the Land Acquisition Act, 1894 (1 of 1894) or of any other corresponding law for the time being in force. (b)If the

option referred to in clause (a) is not exercised within a period of sixty days from the date of receipt of the application under this section, it shall be

presumed that the competent authority has no intention to purchase such land with building or a portion only of such building on behalf of the State

Government and it shall be lawful for such person to transfer the land to whomsoever he may like:

Provided that where the competent authority exercises within the period aforesaid the option to purchase such land with building or a portion only of

such building, the execution of the sale deed shall be completed and the payment of the purchase price thereof shall be made within a period of three

months from the date on which such option is exercised.

(6) For the purpose of calculating the price of the land and building or, as the case may be, a portion only of such building under clause (a) of sub-

section (5), it shall be deemed that a notification under sub-section (1) of section 4 of the Land Acquisition Act, 1894 (1 of 1894) or under the relevant

provision of any other corresponding law for the time being in force, had been issued for the acquisition of that land and building or, as the case may

be, a portion only of such building on the date on which the application was made under sub-section (2).â€​

The idea and rationale behind such permission is that bogus transaction may not be entered into so to defeat the provisions of the Urban Land (Ceiling

& Regulation) Act. In the present case, it is an admitted position that in para 1 of agreement, Ex.P/4, it is mentioned that building No.49 of 758 is an

extremely old building, therefore, there was no need to take any permission from the competent authority under the provisions of Urban Land (Ceiling

& Regulation) Act which came into force in February, 1976, whereas agreement was executed in July/August, 1986. Besides this, permission was

also be taken jointly and plaintiff has not shown any joint efforts to move for such permission from the competent authority and once this Court has

held that such permission was in fact not required, the ratio of the judgment in the case of Mrs. Chandnee Widya Vati Madden (supra) that in such

cases where permission was obtained by the vendor, time will not be essence of contract is not applicable to the facts and circumstances of the case.

Now turning to the law laid down by the Hon'ble Supreme Court in the case of Vasant Balu Patil (supra), though defendant's counsel has taken a

plea that the suit for specific performance of contract was time barred, but the fact remains that no issue was framed in this regard by the trial Court

and even when amendment was allowed in the plaint, defendant or the plaintiff had not taken pains to request the Court to frame an issue about

limitation, therefore, in view of such facts and also the law laid down by the Supreme Court in the case of Vasant Balu Patil (supra), this Court is of

the opinion that issue of limitation is not the germane issue, and therefore, suit cannot be held to be barred by limitation to be thrown out on the plea of

limitation.

As far as the plea of the appellant that in terms of the provisions contained in Section 19(b) of the Specific Relief Act, he was entitled to claim a

relief against defendant No.6, subsequent purchaser, is concerned, the legal position is that if a person as an owner of the property enters into an

agreement to sell the property, he cannot thereby convey the same property to any other person as after the prior agreement of sale, he cannot be said

to be a free owner of the property. But this position is not obtaining in the present case when plaintiff has failed to prove the agreement Ex.P/4 and

the transactions leading to such agreement vide Ex.P/2 and Ex.P/5, specifically when there is interpolation of date in such receipts and when

defendant had categorically denied entering into such agreement by publishing rebuttal, then the onus shifted on the plaintiff to prove the genuineness

of such agreement but he has failed to prove it by producing any independent, reliable witness, therefore, even appellant is not entitled to claim any

relief in terms of the provisions contained in Section 19(b) of the Specific Relief Act.

Further aspect of bonafide of the plaintiff and exercise of equitable jurisdiction under the provisions of Section 20 of the Specific Relief Act, so

also the issue of the affect of non-production of defendant No.6 in the witness box and the impact of law laid down by the Supreme Court in the case

of Devalsab (supra) to show as to whether defendant No.6 was aware of the transactions between plaintiff and other defendant so to held him not to

be a bonafide purchaser are to be discussed now.

The first consideration is that it is settled principle of law that plaintiff is required to stand on his own legs. Plaintiff has not made any pleading that

defendant No.6 was aware of the transaction and in fact had not taken any steps for enforcement of the contract once rebuttal notice, Ex.D/4, was

published by Shri Harishchandra Kadam. Therefore, in view of such facts, coupled with the fact that plaintiff Prakash Narayan (PW-1) has admitted

that he had never given any written notice to Harishchandra to enforce the contract and as discussed above, there is evidence on record to show that

plaintiff had never taken any steps to get the so called permission though it has been held that such permission was not required, it cannot be said that

defendant No.6 committed any lapse by not appearing in the witness box. In fact, when plaintiff has himself failed to prove his agreement Ex.P/4 and

subsequent communication Ex.P/6 so also the receipts Ex.P/2 and Ex.P/3, then for his own failure to stand on his own legs, he cannot blame

defendant No.6. Thus, in the opinion of this Court law laid down in the case of Ramesh Kumar (supra) will not be of any assistance as plaintiff has

failed to show his possession prior to taking over of possession by the defendant No.6 and there is contradiction in the commissioner report that

defendant No.6 had taken possession of the suit property on 1.8.1990, whereas plaintiff averred that it was taken on 22.8.90. Even the law laid down

in the case of Devalsab (supra) will not be of any assistance to the plaintiff inasmuch as he has failed to prove his possession prior to entry of

defendant No.6 in the suit property.

In fact in the light of the law laid down by the Hon'ble Supreme Court in the case of Garre Mallikharjuna Rao (supra) wherein the Supreme Court

has held that where the plaintiff has raised mutually inconsistent pleas as reflected from his pleading in the plaint and and as have been discussed in

detail above, then judgment and decree of the trial Court based on proper appreciation of the evidence should not be disturbed by the High Court

relying upon untrustworthy, shaky and vague evidence to grant discretionary relief of specific performance in contravention of mandate of Section 20

of the Specific Relief Act. In fact in the case of Ramathal (supra) the Supreme Court has again reiterated that in the matter of grant of an equitable

relief under Section 20 of the Specific Relief Act, such discretion has to be exercised by the Court, judicially and within settled principles of law. In

para 23 Supreme Court has noted the promptness of the buyer in taking several steps, whereas in the present case, whole conduct of the buyer has

been circumspect and doubtful inasmuch as a person having paid total sale consideration on 30th July will not enter into an agreement on 31st July and

get that agreement notarized on 1st August in absence of the vendor. Similarly, despite knowing the fact that condition of taking permission was

redundant and superfluous, waiting for the vendor to execute the sale-deed for such a long period is not justified. Besides this, after publication of

notice Ex.P/7 in the year 1988 when such notice was rebutted, then plaintiff was not required to wait for any time beyond 7th April, 1988 after such

rebuttal was published in the newspaper. In fact, plaintiff has admitted that he was not even aware of such rebuttal though it was published in the

same newspaper in which Ex.P/7 was published. It has also come on record that signatures, dates etc. have been manipulated and there was no

proper receipt for such a huge amount of Rs.45,000/-. In fact, this Court has keenly observed while going through the evidence of the parties that

plaintiff in his evidence has submitted that out of Rs.45,000/- he had borrowed some money from his brother and borrowed further sum from his

mother who had arranged such amount after selling her jewllery, but neither the brother has been examined to say that he lent any money to the

plaintiff, nor mother of the plaintiff was brought to the witness box. Thus, taking into consideration totality of the facts and circumstances of the case,

this Court is of the opinion that all the issues framed by the trial Court and discussed above have been rightly decided by the trial Court and there is no

error apparent on face of it nor it can be said that there is any lack of appreciation of evidence or material which were placed before the trial Court.

Thus, first appeal fails and is dismissed.