Chattisgarh High Court

Satish Kumr Agarwal vs Shanti Bai (Dead) Through Lrs on 27 June, 2024

Author: Rajani Dubey

Bench: Rajani Dubey

Neutral Citation
2024:CGHC:22578




                                          1

                                                                      NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                   Judgment reserved on : 20.03.2024
                   Judgment delivered on : 27.06.2024
                        First Appeal No. 135 of 2008
         Satish Kumar Agrawal, aged about 46 years, son of Shri
         Shatrughan Lal Agarwal, resident of Palari Road, Baloda
         Bazar, District Raipur (CG)
                                                     ---- Appellant/plaintiff
                                        Versus
  1.     Shanti Bai (died)
  1.1    Prabhakar Rao, S/o Late Laxman Rao Bhosle, aged about
         58 years,
  1.2    Pramod Rao, S/o Late Laxman Rao Bhosle, aged about 56
         years,
  1.3    Pramokar Rao, S/o Late Laxman Rao Bhosle, aged about
         52 years,
  1.4    Radhabai Sindekar D/o Late Laxman Rao Bhosle, aged
         about 48 years,
         All resident of Baloda Bazar, District Balodabazar (CG)
  2.     Om Prakash Jaiswal, aged about 50 years, S/o Shri Bansh
         Lal Jaiswal, R/o Baloda, Distt. Balodabazar (CG)

                                                           ---- Respondents


  For Appellant                  :       Mr. BP Sharma with Ms. Anuja
                                         Sharma, Advocates.
  For Respondent No.2            :       Mr. H.B. Agrawal, Sr. Adv. with
                                         Ms.Swati Agrawal, Advocate.


                     Hon'ble Smt. Justice Rajani Dubey
                                 CAV JUDGMENT

The appellant/plaintiff has filed this appeal under Section 96

of Code of Civil Procedure (in short "CPC") challenging the validity

and legality of the judgment and decree dated 28.6.2008 passed

by Additional District Judge, Bhatapara, Camp Court at Neutral Citation 2024:CGHC:22578

Balodabazar, Distt. Raipur in Civil Suit No.16-A/2007 whereby the

suit has been dismissed. For the sake of convenience, the parties

shall hereinafter be referred to as per their description before the

trial Court.

02. Case of the plaintiff, in brief, is that the land bearing Khasra

No.59/12, area 0.012 hectare, R.N.M. Balodabazar, P.H.No.14,

Tahsil Balodabazar, Distt. Raipur is owned by defendant No.1

Shanti Bai and apart from this land, she also owned a land

bearing Khasra No.59/13, area 0.009 hectare. She agreed to sell

both the aforesaid lands @ Rs.55/- per sqft to the plaintiff and

after obtaining advance of Rs.30,000/- executed an agreement on

22.8.1999 in his favour. As per the said agreement, registry of the

aforesaid lands shall be done by January, 2000 in favour of the

plaintiff and on that date, the vacant possession of both the lands

shall be handed over to the plaintiff after obtaining the remaining

consideration. Though on 28.7.2000 registry in respect of the land

bearing Khasra No.59/13, area 0.009 hectare was done in favour

of the plaintiff after obtaining the sale consideration and he was

handed over the vacant possession of the said land but as there

was a house constructed on suit land bearing Khasra No.59/12

since the time of agreement where tenants of defendant No.1

were residing and they were not vacating the said house,

defendant No.1 expressed his inability to hand over vacant

possession of the suit land to the plaintiff. When the plaintiff

subsequently came to know that the tenants have vacated the

house, he asked defendant No.1 for registry of the suit land after Neutral Citation 2024:CGHC:22578

obtaining the sale consideration and hence on 15.9.2004 a sale

deed was executed in his favour but later on, name of the plaintiff

was struck off from the said document and name of defendant

No.2 was mentioned in place thereof without the knowledge of the

plaintiff and accordingly, registry was got done in the name of

defendant No.2. Since the suit land is adjacent to the land bearing

Khasra No.59/13 purchased by the plaintiff and it is situated in

front of Khasra No.59/13, the plaintiff had agreed to purchase the

suit land.

The plaintiff further averred that he has always been ready

and willing to pay the sale consideration of the suit land and for its

registry in his favour. When he came to know about construction

being raised by defendant No.2 over the suit land, on 31.10.2005

he sent legal notices to the defendants for stopping the

construction but even after service of notice, the construction work

continued. Hence the plaintiff filed a suit for specific performance

of contract against the defendants.

03. Defendant No.1 denying the adverse averments in the plaint

stated that in fact it is the plaintiff who violated the terms and

conditions of the agreement executed on 22.8.1999 as he neither

gave the sale consideration to her nor got the registry of the land

done and hence defendant No.1 had terminated the said

agreement in January, 2000 itself. However, in July, 2000 the

plaintiff requested defendant No.1 for sale of land bearing khasra

No.59/13, area 0.009 hectare saying that he has somehow Neutral Citation 2024:CGHC:22578

arranged fund for it. When defendant No.1 asked him for purchase

of the land bearing Khasra No.59/12, area 0.012 hectare, it was

refused by him and then on 28.7.2000 she sold the land bearing

Khasra No.59/13, area 0.009 hectare to him and handed over

vacant possession of the same. Defendant No.1 never assured

the plaintiff of getting registry of the suit land done in the event of

the same being vacated by her tenants. Had the plaintiff been

ready and willing to perform his part of the contract, he would

have got registry of the suit land done within time. Since the

plaintiff himself violated the terms and conditions of the agreement

and the suit has been filed with inordinate delay without affixing

proper court fee, the same is liable to be dismissed.

04. Defendant No.2 in his written statement contended that on

the date of agreement i.e. 28.8.1999, the defendant No.1 was not

in possession of the suit land and as such, no agreement with

respect to sale of the suit land can be said to have been executed

on that date and it appears to have been added in the agreement

subsequently. Even registry of land bearing Khasra No.59/13,

area 0.009 hectare in favour of the plaintiff is also contrary to the

terms and conditions of the agreement. No agreement was

entered into with the plaintiff by the defendant No.1 for sale of the

suit land after it being vacated by the tenants. In fact, on

15.8.2004 the suit land was purchased by Gurucharan Chawla

from defendant No.1 in the name of his wife Kiran Chawla and on

that date itself the sale deed was so executed. Thereafter, the

defendant No.2 purchased the said land from Gurucharan Chawla Neutral Citation 2024:CGHC:22578

and one year thereafter on 13.9.2005 the elder brother of the

plaintiff namely Ramesh Agrawal entered into an agreement with

defendant No.2 for purchase of the suit land for Rs.3,38,502/- and

paid advance of Rs.25,000/-. However, two days after the said

agreement the plaintiff himself took back the said advance of

Rs.25,000/- on behalf of Ramesh Agrawal and gave receipt of the

advance amount and cancellation of the agreement in writing. The

plaintiff is well aware of all these transactions and despite that he

has filed the present suit by suppressing the material facts. Hence

the suit is liable to be dismissed with cost.

05. Learned trial Court on the basis of pleadings of the

respective parties, framed as many as 08 issued and after due

appreciation of the oral and documentary evidence adduced in

support of their pleadings by the parties, dismissed the suit by the

impugned judgment and decree. Hence this appeal.

06. Learned counsel for the appellant/plaintiff submits that

impugned judgment and decree passed by the learned trial court

are perverse and not sustainable in law. Learned trial court ought

to have seen that the plaintiff was always ready and willing to

perform his part of contractual obligation and out of two lands, for

which agreement was entered into, got the sale deed registered in

respect of land bearing Khasra No.59/13 on 28.7.2000. However,

it was defendant No.1 who could not register the sale deed in

respect of the other land (suit land) since she was not in a position

to give vacant possession of that land being in occupation of two Neutral Citation 2024:CGHC:22578

persons namely Bhatprahri Vakil and Maid Shri Sahu, otherwise

sale deed would have been executed on the same day i.e.

28.7.2000 in respect of the other land also. Even on the date i.e.

15.9.2004 when cause of action accrued, the plaintiff and

defendant No.1 agreed for sale and purchase and all the terms

and conditions were prescribed as agreed by and between the

parties, however, all of a sudden in place of plaintiff's name, name

of defendant No.2 was mentioned and sale deed was registered in

favour of that person instead of the plaintiff. All these facts and

circumstances of the case answer description of novation of

contract and under which the plaintiff is entitled for specific

performance of said contract, if not, under the old contract, without

prejudice to each other. The finding of the learned trial Court that

the suit is time barred, is perverse particularly in view of the fact

when the plaintiff has stated in his plaint about the accrual of

cause of action on 15.9.2004 when novation of contract took

place. Learned trial Court ought to have seen that defendant No.1

herself has not appeared before the Court and uncontroverted

version of the plaintiff and his witnesses ought to have been relied

upon by the Court. Hence, the impugned judgment and decree

have been passed contrary to the material available on record and

as such, the same are liable to be set aside and consequently, the

relief of specific performance of contract, as claimed by the

plaintiff, in respect of the suit land, be granted in his favour.

Reliance has been placed on the decisions of the Hon'ble

Supreme Court in the matters of Rathnavathi and another Vs. Neutral Citation 2024:CGHC:22578

Kavita Ganashamdas, (2015) 5 SCC 223; Madina Begum and

another Vs. Shiv Murti Prasad Pandey and others, AIR 2016

SC 3554; and P. Ramasubbamma Vs. V. Vijayalakshmi and

others, (2022) 7 SCC 384.

07. On the other hand, learned counsel for respondent No.2

supporting the impugned judgment and decree submits that the

learned trial Court upon due appreciation of the oral and

documentary evidence adduced by the parties has rightly

dismissed the suit of the plaintiff and as such, no interference is

called for by this Court in it.

Reliance has been placed on the decision of the Hon'ble

Apex Court in the matters of Hazari Lal (dead) through LRs Vs.

Ramesh Kumar and others reported in 2023 0 Supreme (SC)

1130.

08. Though notices have been duly served upon the legal heirs

of deceased respondent/defendant No.1 but there is no

representation on their behalf.

09. Heard learned counsel for the parties and perused the

material available on record.

10. Learned trial Court on the basis of pleadings of both the

parties framed eight issues and main issues being Issue Nos. 4, 5

& 8 are being reproduced hereunder:

^^4- D;k oknh fodz; lafonk vkSj bdjkjukek ds vuqlkj okn Hkwfe

ds fodz; ds laca/k esa vius i{k ds lafonk ds ikyu djus esa lnSo Neutral Citation 2024:CGHC:22578

rRij vkSj rS;kj jgk gS\

vFkok

D;k mDr okn Hkwfe ds fodz; lkSns vkSj bdjkjukek ds vuqlkj

izfr0 dz0&1 vius lafonk ds ikyu esa rRij vkSj rS;kj ugha jgk

gS\

5- D;k izfroknh dz0&1 us okn Hkwfe ls lacaf/kr fodz; lafonk ds

laca/k esa lafonk ikyu dk vuqca/k Hkax fd;k gS\

8- D;k oknh dk okn vof/k ckf/kr gS\"

11. It is clear from the pleadings of the parties that agreement

dated 22.8.1999 (Ex.P/1) is admitted by the defendants. It is clear

from Ex.P/1 that the time limit prescribed for registry of the suit

land was January, 2000. Ex.P/2 is the sale deed executed on

15.9.2004. The plaintiff pleaded that he is ready to perform his

part of contractual obligation and defendant No.1 willfully

breached the conditions of agreement. According to the plaintiff,

defendant No.1 executed sale deed in respect of land bearing

Khasra No.59/13, area 0.009 hectare, on 28.7.2000 in favour of

the plaintiff but did not execute sale deed in respect of Khasra

No.59/12,area 0.012 hectare. As per the plaintiff, on the said land,

one house was situated in which one advocate was residing and

some dispute was pending between defendant No.1 and her

tenants, and for this reason, defendant No.1 did not execute sale

deed in favour of the plaintiff in respect of the suit land. However,

a few days before 15.9.2004 the plaintiff came to know that the

tenants have vacated the disputed property, then he contacted

defendant No.1 and requested for registry of the disputed Neutral Citation 2024:CGHC:22578

property. The plaintiff contends that though on 15.9.2004 sale

deed (Ex.P/2) was executed in respect of the suit land in favour of

the plaintiff by defendant No.1, however, it is clear from Ex.P/2

that later on name of the plaintiff was struck off and in place

thereof, name of Om Prakash (Defendant No.2) was written as

purchaser, as such it is clear that defendant No.1 committed

breach of terms and conditions of Ex.P/1.

12. Shanti Bai (Defendant No.1) filed her affidavit under Order

18 Rule 4 of CPC but it is clear from the deposition sheet that her

cross-examination was not conducted by the plaintiff and her

cross-examination was postponed by the learned trial Court on the

request of counsel for the plaintiff. However, no cross-examination

of defendant No.1 is there on record.

13. Pramod Rao (DW-1) has admitted the fact that his mother

Shanti Bai (defendant No.1) executed an agreement (Ex.P/1) in

favour of the plaintiff but he denied the other suggestions of the

plaintiff. Om Prakash Jaiswal (DW-1 on behalf of defendant No.2)

stated that he purchased the suit land from Shanti Bai.

14 Learned trial Court appreciated the oral and documentary

evidence of both the parties and found that the plaintiff was not

ready to perform his part of contractual obligation. The Hon'ble

Supreme Court in the matter of Hazari Lal (dead) through LRs

(supra) observed in para 7 of its judgment as under:

"7. The facts of the case, as are available on record, are that there was an agreement to sell dated Neutral Citation 2024:CGHC:22578

24.09.1986 executed in favour of Mewa Lal predecessor-in-interest of the respondents, who expired on 28.7.1998. One of the term in the agreement to sell provided that the sale deed will be registered within six months from the date the vendor informs the vendee about the permission taken from the Ceiling Department for the property in question. Total sale consideration agreed was Rs. 56,000/-, out of which only Rs. 5,000/- were paid as earnest money. The claim sought to be made by the predecessor-in- interest of the respondents was that he was in possession of the three houses agreed to be sold to him. However, the Trail Court in its judgment found the claim to be not tenable. Rather, it found that House Nos. 259 and 260 were in possession of the appellant and his predecessor-in-interest for a long time. Further, the fact remains that for enforcement of the agreement to sell dated 24.09.1986, civil suit was filed in July 1999 after the sale deed pertaining to two houses bearing Nos. 259 and 260 was registered on 6.7.1999 leaving only House No. 258 which was in possession of the deceased-Mewa Lal. It was for a total sale consideration of Rs. 86,000/-.

15. In the matter of Rathnavathi and another (supra) the

Hon'ble Supreme Court observed in paras 41 & 42 of its judgment

as under:

"41. Article 54 of the Limitation Act which prescribes the period of limitation for filing suit for specific performance reads as under:

"54. For specific Three The date fixed for the performance of years performance, or, if no such a contract date is fixed, when the plaintiff has notice that performance is refused."

Neutral Citation 2024:CGHC:22578

42. A mere reading of Article 54 of the Limitation Act would show that if the date is fixed for performance of the agreement, then non-compliance with the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. However, when no such date is fixed, limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement."

16. In the present case, Ex.P/1 clearly shows that it was agreed

between the parties that registry of the suit land shall be done by

January 2000 and Ex.P/2 was executed by defendant No.1 Shanti

Bai on 15.9.2004. No oral or documentary evidence was adduced

by the plaintiff to show that the aforesaid period prescribed in the

agreement was ever extended by defendant No.1 within limitation

period. Learned trial Court while deciding Issue No.8 pertaining to

limitation, upon minute examination of the oral and documentary

evidence recorded a finding that the the plaintiff filed a suit on

30.11.2005 which is clearly time barred and that the plaintiff also

did not prove the fact that he has been ready and willing to

perform his part of the agreement. Accordingly, the learned trial