Gauhati High Court
Page No.# 1/2 vs Madhab Karki on 13 October, 2025
Page No.# 1/21
GAHC010177712023
2025:GAU-AS:13620
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RFA/35/2023
SUBHASH CHANDRA BRAHMA
S/O LATE SEGANDRA BRAHMA,
VILL.- DANGAIGAON, P.O.- KAJALGAON,
P.S.- DHALIGAON, PIN- 783385, DIST.- CHIRANG, BTAD, ASSAM.
VERSUS
MADHAB KARKI
S/O PADAM BAHADUR KARKI,
VILL. AND P.O.- PATGAON, P.S.- SARFANGURI, PIN- 783370, DIST.-
KOKRAJHAR, BTAD, ASSAM.
Advocate for the Petitioner : MR. S C BISWAS, MR. A IKBAL,MS S SIDDIQUA,MS. M
NATH,MR. P S BISWAS
Advocate for the Respondent : MR. S K GHOSH, MS F AHMED
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- B e f o r e-
Hon'ble Mr. Justice ROBIN Phukan
Advocate for the petitioner : Mr. A. Ikbal.
Advocate for the respondents : Mr. S. K. Ghosh.
Date of hearing : 24.07.2025.
Date of judgment : 13.10.2025
JUDGMENT & ORDER (CAV)
Heard Mr. A. Ikbal, learned counsel for the appellant and Mr. S. K.
Ghosh, learned counsel for the respondent.
2. This Regular First Appeal is directed against the Judgment and
Decree, dated 29.05.2023, passed by the learned Civil Judge, Chirang,
in Title Suit No. 47/2019.
3. It is to be noted here that vide impugned Judgment and Decree,
dated 29.05.2023, the learned Civil Judge, Chirang (Trial Court, for
short) has decreed the suit in favour of the plaintiff/respondent herein,
with the following directions -
(i) The plaintiff is to deposit the balance amount of
consideration of Rs. 18,00,000/- only in the Court, within 90
days from the date of judgment.
(ii) The defendant thereafter executes the registered Sale
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deed within 15 days from the date of deposit of the money by
the plaintiff in the Court.
(iii) The defendant shall hand over possession of the suit land
to the plaintiff after receipt of the balance consideration money
as agreed earlier by both the parties.
4. For the sake of convenience and in order to avoid confusion, the
status of the parties, as reflected in the Title Suit; is attached herein.
5. The background facts, leading to filing of the present appeal, are
briefly stated as under -
"The defendant, in Title Suit No. 47/2019, is the owner and
possessor of a plot of land, measuring 01 Bigha, 02 Katha, 10
Lechas, covered by Dag No. 70, of Myadi Patta No. 27, situated in
village-Baikhungaon, under the Sidli Revenue Circle, P.S.-
Dhaligaon, Dist-Chirang (BTAD), which is the subject matter of the
present suit. With a view to sell the abovementioned plot of land,
the defendant approached the plaintiff, sometime in the month of
October, 2014, on account of his necessity of funds. The plaintiff
then agreed to purchase the land and after discussion and mutual
talks, the sale consideration was fixed @ Rs. 33,00,000/- and the
plaintiff agreed to pay the same.
Thereafter, one 'Baina Patra' was executed by the plaintiff
and the defendant on 03.11.2014, wherein, the plaintiff had paid
the defendant an advance of Rs. 5,00,000/- in cash and wherein,
both the defendant and the plaintiff, along with the witnesses; had
put their signatures.
Page No.# 4/21
Thereafter, on 27.01.2015, the plaintiff and the defendant
again entered into one Deed of Mutual Agreement, which was
notarized on 27.01.2015; for selling of the schedule suit land and
as per the terms and conditions of the said Deed of Mutual
Agreement, a sum of Rs. 10,00,000/- was paid in cash by the
plaintiff to the defendant on the same date and he received the
acknowledgment for the same; and the defendant had put his
signature in the Deed of Mutual Agreement in presence of
witnesses and the defendant had acknowledged the receipt of
total advance payment of a sum of Rs. 15,00,000/- from the
plaintiff. As per terms and conditions of the said Deed of Mutual
Agreement, dated 27.01.2015, it has been agreed upon that on
receipt of the remaining balance consideration money, the
defendant will be legally bound to complete and execute the
registration of sale deed, in respect of the schedule suit land, in
favour of the plaintiff, or otherwise, necessary steps for
registration of sale deed in respect of selling of the schedule suit
land would be executed by the defendant, as soon as the required
sale permission from the competent authority is obtained by the
defendant; and it is also clearly mentioned in para 3 of the
notarized Deed of Mutual Agreement, that the defendant has
already started the process for procuring necessary
permission/NOC from the concerned BTAD, Administration and
after getting the necessary permission/NOC, the defendant will
register the Sale deed in favour of the plaintiff and will also hand
over/deliver the peaceful possession of the suit land in favour of
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the plaintiff. The proforma defendant, on behalf of the defendant;
had also received a sum of Rs. 1,00,000/- from the plaintiff on
12.04.2016 and on 06.08.2016, the said proforma defendant again
received a sum of Rs. 1,50,000/- from the plaintiff and the plaintiff
had duly acknowledged that the defendant has received Rs.
23,50,000/- from the plaintiff till that date.
Thereafter, the plaintiff had arranged the remaining balance
portion of sale money, amounting to a total sum of Rs. 9,50,000/;
to purchase the schedule suit land from the defendant and
approached the defendant with his family members and friends,
on the last week of the month of December, 2017, to execute the
necessary formalities for registration of the sale deed, after taking
the balance sale consideration, amounting to Rs. 9,50,000/-. But
the defendant then requested the plaintiff to wait for another
period of 1½ years; as, at that point of time, he was not in a
position to execute the formal registration of sale deed in favour of
the plaintiff because he was facing some domestic problems; and
also assured the plaintiff to complete the sale process after expiry
of 1½ years. However, after expiry of 1½ years, when the plaintiff
approached the defendant on 11.06.2019 and requested to accept
the remaining balance amount of sale consideration and to
execute the necessary formalities of registered sale deed, then the
defendant again requested the plaintiff to wait for another 3
months, as he is still facing some personal problems.
Thereafter, the plaintiff, being accompanied by some persons
of the locality, namely, Sri Niren Ch. Ray and his family members,
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requested the defendant on 11.06.2019, 20.07.2019 and
11.08.2019, to receive the balance sale consideration and to
complete all the formalities, but the defendant further sought time
from the plaintiff, assuring him to complete the process.
Thereafter, on 15.09.2019, the plaintiff again approached the
defendants to sale the suit land in his favour by receiving the
balance sale consideration, but this time, the defendant has totally
denied and refused to sale the suit land in favour of the plaintiff
and also denied to execute the Deed of Mutual Agreement for
sale; and that he was all along ready with the remaining balance
consideration of the sale amount, i.e., Rs. 9,50,000/- and willing to
purchase the suit land, as per terms and conditions of Deed of
Mutual Agreement, dated 27.01.2015; and due to indifferent
attitude of the defendant, the plaintiff had instituted the title suit;
seeking the decree, with declaration that the defendant has no
right to sale the schedule land to any other purchaser, except
however, the plaintiff and he is bound to execute the sale deed in
favour of the plaintiff, on receipt of a sum of Rs. 9,50,000/-; and a
decree, with a direction to the defendant to execute and register
the formal registered sale deed in favour of the plaintiff; and also
for permanent injunction against the defendant, with alternative
relief, such as a decree for payment of Rs. 23,50,000/- against the
defendant and to pay the plaintiff, along with interest @ 18% per
annum and also for decree of Khas possession and temporary
injunction.
The defendant, entered appearance and contested the title
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suit by filing his written statement, wherein, he had taken a stand
that the suit land is situated under the Tribal Belt and Block areas
and there is a caution for sale of any land to any third party; and
that the suit was for specific performance of contract and for
recovery of khas possession on the suit land; and the agreement,
dated 03.11.2014 consists of time period of 3 months, i.e., within
28.02,2014, for registration of the registered Sale Deed. But, the
plaintiff had failed to pay the balance sale price within the
stipulated time period and that the defendant was in dire need of
money and he had executed the agreement to meet up his
financial urgency. But, the plaintiff did not come forward to
execute the registered Sale Deed on time by paying the balance
sale price to the appellant and as such, the suit is barred by
Section 16(c) of the Specific Performance of Contract and is liable
to be dismissed; and that, he has no connection with the proforma
defendant and also, he did not knew him, as mentioned in the
plaint; and that he never went to the plaintiff to sell his plot of
land and rather, it was the plaintiff who came to him to purchase
the disputed plot of land; and that the defendant did not took any
money from the plaintiff, as mentioned in the plaint; and that it
was nowhere written in the said agreement that the alleged
amount was received in cash or cheque; and he did not sign on
any process, which is for necessary permission/NOC, as mentioned
in the plaint; and he neither sent any person nor authorized any
person to receive money from the plaintiff, as mentioned in the
plaint; and he did not knew the proforma defendant; and he is a
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Boro person and the proforma defendant is a Muslim person and
as such, the question of sending him to receive money does not
arise; and that the plaintiff has failed to show his readiness and
willingness to purchase the land and therefore, it is contended to
dismiss the suit.
Upon the aforementioned issues, the learned Trial Court has
framed the following issues -
(i) Whether there is a cause of action in the suit?
(ii) Whether the suit is maintainable in law and facts?
(iii) Whether the plaintiff and defendant had entered into
an agreement for sale of the suit land and the plaintiff
had paid Rs. 23,50,000/- as consideration to the
defendant towards the purchase of the suit land?
(iv) Whether the plaintiff is ready and willing to perform
his part of the contract for the sale of the suit land?
(v) Whether the defendant had neglected to execute the
sale deed with respect to the suit land with the plaintiff
after taking the advance consideration for the same?
(vi) Whether the plaintiff is entitled to the reliefs as prayed
for by him?
(vii) To what other reliefs the parties are entitled to?
Thereafter, considering the evidence adduced by the parties
and after hearing the learned advocates for both the parties, the
learned Trial Court had decided all the issues, i.e., issue Nos. I, II,
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III, IV, V, VI, VII in favour of the plaintiff and thereafter, decreed
the suit, granting the reliefs mentioned hereinabove.
6. Being highly aggrieved, the defendant preferred the present
appeal, under Section 96 of the Code of Civil Procedure, on the
following grounds -
(i) That the impugned Judgment and Decree, dated
29.05.2023, suffers from various illegalities, infirmities and
material irregularities rendering the same not tenable and
sustainable in law.
(ii) That the impugned Judgment and Decree suffers from
various latent and patent errors of law.
(iii) That the learned Trial Court had misread,
misinterpreted and misconstrued the relevant laws and the
rules framed there under, holding the field and as a result,
arrived at a wrong finding and conclusion.
(iv) That the learned Trial Court had failed to appreciate the
evidence, both oral and documentary, as available on record
by not considering the same as per provisions of Evidence Act
and as a result, arrived at a perverse and wrong finding.
(v) That the learned Trial Court committed grave error of
law in not framing any issue on the point of limitation and
that the point of limitation goes into the root of the matter as
evidently the plaintiff/respondent had instituted the present
suit after the period of 3 years, as prescribed under the law,
which was over in seeking specific performance of contract on
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the basis of agreement for sale, dated 03.11.2014 and on
such ground, the impugned judgment and decree is liable to
be set aside and reversed.
(vi) That the learned Trial Court had completely ignored the
Exhibit- B, that is, the certificate issued by the Circle Officer of
Sidli Revenue Circle, stating that the suit land falls in Tribal
Belt/ Area and the evidence of the Defendant Witness no. 1,
i.e. the Lat Mandal, Sidli Revenue Circle clearly deposed that
village Baikhungaon falls under Sidli Tribal Belt and Block Area
under Sidli Revenue Circle. The respondent is a non tribal
person and as such, the question of executing sale deed by
the defendant/appellant in favour of the respondent does not
arise at all as the same is barred by law, but the learned Trial
Court had failed to appreciate that aspect and wrongly
decreed the suit.
(vii) That the learned Trial Court held that the respondent
belongs to Nepali (Gorkha) community, as in the caste of OBC
and comes under the protected class in the Tribal Belt and
Blocks, if they are permanent resident of Kokrajhar, Chirang,
Baksa and Udalguri prior to 10.02.2003. The learned Trial
Court, while coming to the said conclusion; went beyond the
pleaded case of the respondent, as the plaint as well as the
evidence of the respondent does not, at all whispered that
the respondent belongs to Nepali (Gorkha) community and
the learned Trial Court, on its own motion, has found a new
story, not at all pleaded by any party and on such ground, the
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impugned Judgment and Decree is liable to be interfered
with.
(viii) That the learned Court below while deciding Issue No. V
mainly relied upon a Notification, dated 20.07.2021,
confirming Gorkhas to be protected class in the tribal belt and
block in the District of Kokrajhar, Chirang, Baksa and Udalguri,
but the said notification was neither exhibited by any of the
parties nor was the said notification a part of the record and
as such, the impugned Judgment and Decree is liable to be
interfered with.
(ix) That the agreement, dated 03.11.2014, indicates that
time was essence of the contract, as because the present
appellant was in urgent need of money and as such, there
was a specific clause in the agreement for sale, which
stipulates that the full and final payment has to be made
within 3 months from the date of execution of the agreement
i.e. within 28.02.2014, but the respondent, having failed to
comply with this aspect of the matter, the learned Trial Court
committed great illegality in decreeing the suit.
(x) That the learned Trial Court completely failed to
appreciate that there was no readiness and willingness on the
part of the respondent, to comply with the terms and
conditions of the agreement for sale dated 03.11.2014 and
other subsequent deeds. As such, the Court below committed
grave illegality in decreeing the suit.
Page No.# 12/21
(xi) That the learned Trial Court held that the respondent
has paid an advance sale consideration, amounting Rs. 15
Lakhs out of Rs. 33 Lakhs and taking this into account, the
Court below came to a wrong finding that the respondent is
ready and willing to pay the balance consideration amount of
Rs. 9.5 lakhs to the appellant. If the respondent has to pay
the deficit amount of Rs. 18 lakhs to the appellant, then the
respondent cannot show his readiness and willingness by
offering Rs. 9.5 lakhs to the appellant. The Court below
completely failed to appreciate this vital aspect of the matter
and as such, arrived at a wrong finding in decreeing the suit.
(xii) That the learned Trial Court strongly relied upon
Exhibit- 2, while decreeing the suit of the respondent.
However, a bare perusal of the Exhibit-2, would go to show
that the said document contained some recitals and
stipulations, which in fact, had never occurred, i.e., the said
Exhibit speaks about delivery of possession unto the
respondent, which in fact has never taken place. This cast a
strong cloud over the authenticity of the said document, but
the learned Trial Court wrongly relied upon the said document
and on such ground, the learned Trial Court had committed
grave illegality in decreeing the suit and under such
circumstances, it is contended to allow this appeal by setting
aside the impugned Judgment and Decree.
7. Mr. Ikbal, learned counsel for the appellant submits that as per
the agreement, dated 03.11.2014, time was the essence of the
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contract; and as per the terms of the said agreement, the sale process
ought to have been completed within 3 months. But, the respondent
herein had failed to approach the appellant within the said period of
three months for specific performance of the contract.
7.1 Mr. Ikbal also submits that the learned Trial Court has failed to
frame any issue upon the point of limitation, as the respondent has
failed to file the suit within the period of 3 years and as no issue has
been framed on this point, the learned Trial Court has arrived at an
erroneous finding in decreeing the suit.
7.2 Mr. Ikbal, further submits that there was no readiness and
willingness on the part of the respondent herein/plaintiff; and the
learned Trial Court has failed to consider this aspect, and as the sale
consideration was fixed at Rs. 33 Lakhs and the respondent
herein/plaintiff had paid a sum of Rs. 15 Lakhs only; and by willing to
pay a sum of Rs. 9.5 Lakhs, the plaintiff cannot demonstrate his
willingness and readiness to complete the sale process.
7.3 Mr. Ikbal has pointed out that the land is situated under the
Tribal Belt of Sidli Revenue Circle; and the plaintiff, being a person of
Gorkha community, he cannot purchase a plot of land in the Tribal Belt.
7.4 Mr. Ikbal also submits that there is no indication in the
agreement as to who will take sale permission and admittedly, the
appellant herein has received a sum of Rs. 15,00,000/- and the
balance sale consideration is Rs. 18,00,000/-, which the respondent
herein had failed to pay; and further, the respondent herein could not
show any document that he belongs to Gorkha community and he has
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been residing in the said area prior to 10.02.2003; and that the finding
of the learned Trial Court is perverse on the face of the record and that
no sale permission was given, for which, the sale could not be
executed and the finding, in respect of issue No. III by the learned
Trial Court is perverse and under such circumstances, it is contended
to allow this appeal by setting aside the impugned Judgment and
Decree.
7.5. In support of his submission, Mr. Ikbal has referred to a
decision of the Hon'ble Supreme Court, in the case of Motilal Jain
Vs. Smt. Ramdasi Devi & Others, reported in (2000) 6 SCC
420.
8. Mr. S. K. Ghosh, learned counsel for the respondent has
supported the impugned judgment and decree. He submits that the
present case is not a case under Section 53 of the Transfer of Property
Act, but, it is a case for specific performance of a contract; and that
the defendant has already taken steps for procuring permission under
Clause-III of the agreement; and that the plaintiff is ready to pay the
remaining sum of Rs. 18,00,000/-; and that as per second agreement,
time is not the essence of the contract; and that the plaintiff is residing
within the Tribal Belt since long and as such, he is entitled to purchase
the land in the Tribal Belt. And therefore, Mr. Ghosh has contended to
dismiss the appeal.
8.1. In support of his submission, Mr. Ghosh has referred to a
decision of the Hon'ble Supreme Court in the case of Saradamani
Kandappan Vs. S. Rajalakshmi & Others, reported in (2011)
Page No.# 15/21
12 SCC 18.
9. In reply to above submissions, Mr. Ikbal, learned counsel for the
appellant submits that the period of 3 years of limitation in filing the
suit for specific performance of the contract elapsed in the year 2017,
but the respondent herein did not approach the Court within the said
period.
10. Having heard the submissions of the learned counsel for both
the parties, I have carefully gone through the memo of appeal and the
grounds mentioned therein and also perused the impugned Judgment
and Decree, dated 29.05.2023, passed by the learned Civil Judge,
Chirang, in Title Suit No. 47/2019 and have also carefully gone through
the decisions of the Hon'ble Supreme Court, which are referred to by
the learned counsel for both the parties.
Points to be determined in this appeal -
11. In view of the submissions advanced by the parties and the
stand taken by them, the issues to be decided in this appeal are
formulated as under:-
(i) Whether the impugned judgment and decree
suffers from serious infirmity on account of non-framing
of an issue on the point of limitation, despite specific
plea in the written statement?
(ii) Whether the learned Trial Court has rightly decided
the issue Nos. IV & V, while the plaintiff had agreed to
pay a sum of Rs. 9,50,000/- only, while the sale
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consideration was Rs. 33,00,000/- and as per his own
contention, he paid Rs. 17,50,000/- only?
Point No. 1 -
12. It appears from the record of the learned Trial Court that the
appellant herein has taken a categorical stand in the Memorandum of
Appeal, being ground No. 5; that the point of limitation goes into the
root of the matter; as evidently, the respondent has instituted the
present suit after the period of 3 years, as prescribed under the law; in
seeking the specific performance of the contract, on the basis of
Agreement for Sale, dated 03.11.2014; and as such the issue of
limitation was vital for proper adjudication of the suit.
13. But, a careful perusal of the Judgment and Decree, dated
29.05.2023, indicates that the learned Trial Court had not framed any
issue in respect of the point of limitation, inspite of such a plea being
taken in the written statement filed by the defendant. His pleas was
that the suit is barred by the law of limitation. But, the learned Trial
Court had failed to frame any issue on this point and also directed no
discussion to that point.
14. It also appears from the plaint, which is available on record of
the Trial Court, that the same was filed on 24.10.2019. While the
agreement, Exhibit-1 was executed on 03.11.2014. A careful perusal of
the agreement dated 03.11.2014 indicates that time is the essence of
contract. It had been stated in no uncertain terms that the sum of Rs.
28,00,000/- has to be paid on 28.02.2014 (SIC 15) or within 3 months.
Page No.# 17/21
15. According to Article 54 [3] of the Limitation Act of 1963, the time
limit for filing a lawsuit for the specific performance of a contract
is three years. The calculating period begins on the fixed date of
performance. If the period of 3 months elapsed on 20.02.2015, as the
agreement Exhibit-1 was entered into by the parties on 03.11.2014.
Since the respondent herein had failed to complete the sale process
within the period of three months, the period of limitation begins to
run from 20.02.2015 and the period of three years end on 01.02.
2018. But, no suit was instituted by the respondent herein within the
said period. Instead, he had filed the suit on 24.10.2019. In the
meantime, the period of limitation already elapsed. And that being so,
the limitation goes to the root of the matter. And non framing of any
issue on the point of limitation despite specific plea being taken in the
written statement, and for want of decision on such issue caused
serious prejudice to appellant herein.
16. Though Mr. Ghosh, learned counsel for the respondent, had
referred to the second deed of mutual agreement, i.e., Exhibit-2, which
was executed on 27.01.2015, and that as per Exhibit-2 time is not the
essence of the contract, and as such absence of any issue on the point
of limitation is immaterial, yet during the subsistence of the Exhibit-1,
and without the same being cancelled or rescinded or abandoned,
entering into a fresh agreement, would not give rise to fresh cause of
action and point of limitation. And on such count, the submission of Mr.
Ghosh left this Court unimpressed. Even for the sake of argument if it
is accepted that in the second agreement dated 27.01.2015, time is
not the essence of the contract, yet, the suit came to be filed much
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beyond the period of limitation, as it is well settled that when no such
date has been fixed, the period of three years begin from the date
when the plaintiff had noticed that performance is refused.
17. Reference in this context can be made to a decision in P.
Daivasigamani Vs S. Sambandan, decided on 12
October,2022 (Civil Appeal No. 9006 of 2021), wherein,
the Hon'ble Supreme Court, while dealing with the issue of limitation
in filing suit for specific performance of contract, has held as under:-
"9. Now, adverting to the first contention raised
by the learned counsel for the appellant that the
respondent - plaintiff having filed the suit for
specific performance of the agreement after the
expiry of three years of the agreement, it may be
noted that as per Article 54 of the Limitation
Act, 1963, the suit for the specific performance
of contract could be filed within three years from
the date fixed for the performance, or when no
such date has been fixed, from the date when the
plaintiff has noticed that performance is refused.
In the instant case, the execution of the
agreement on 05.10.1989 has not been disputed. It
was also proved by the respondent by leading the
evidence that the respondent had sent a notice
dated 17.03.1990 by registered post and called
upon the appellant to execute the power of
attorney and to conclude the sale transaction in
view of Clause 10 of the agreement. However, there
was no response from the appellant to the said
letter. The respondent thereafter had again sent a
notice through his lawyer on 26.03.1990, which had
come back with the endorsement "refused".
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Thereafter, again the respondent caused a public
notice published in the Tamil daily "Dhina
Thanthti" on 02.05.1990 and in the English daily
"Indian Express" on 06.05.1990. The appellant
having not responded to any of the said notices,
the suit was filed on 26.03.1993. Since the sale
had to be completed within a period of six months
from the date of the execution of the agreement
dated 05.10.1989, the respondent had called upon
the appellant to perform his part of the contract
by issuing the notices within six months of the
said agreement. However, the appellant having
failed to respond to any of the said notices, it
was deemed that the appellant had refused to
perform his part of contract. The period of
limitation had started running from the date the
respondent noticed that the performance was
refused by the appellant and not from the date of
the execution of agreement in question.
18. It is also to be noted here that while dealing with the issue of
remand, Hon'ble Supreme Court in the case of Jegannathan v. Raju
Sigamani, reported in (2012) 5 SCC 540, held that if the appellate
court holds that the trial court that passed the decree omitted to frame
or try any issue or determine any question of fact essential to decide
the matter finally, the appellate court, invoking the provision of Order
41 Rule 25 CPC, may remit the matter and also it may direct taking of
evidence. The relevant para is reproduced herein below:-
"8. Insofar as Order 41 Rule 25 of the Code is
concerned, the appellate court continues to be in
seisin of the matter; it calls upon the trial
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court to record the finding on some issue or
issues and send that finding to the appellate
court. The power under Order 41 Rule 25 is invoked
by the appellate court where it holds that the
trial court that passed the decree omitted to
frame or try any issue or determine any question
of fact essential to decide the matter finally.
The appellate court while remitting some issue or
issues, may direct the trial court to take
additional evidence on such issue(s).
19. Under the given factual and legal matrix, this Court finds
substance in the submission of Mr. Ikbal, learned counsel for the
appellant that the issue of limitation goes to the root of the matter and
that the learned Trial Court ought to have framed one issue on the
point of limitation. And as such, this Court is of the view that it would
be in the fitness of thing, to remand the matter to the learned Trial
Court by framing an issue on the point of limitation, by framing an
additional issue on the point of limitation, as under:-
Additional Issue:-
"Whether the suit is barred by the law of
limitation?"
19.1. Point No. 1 above, is decided accordingly.
Point No. 2 -
20. Moving forward to the point No. 2, This Court finds that while
deciding the issue Nos. IV and V, the learned Trial Court had failed to
take note of the fact that the plaintiff had paid to the defendant a sum
of Rs. 17,50,000/- only, while the sale consideration was fixed at Rs.
Page No.# 21/21
33,00,000/-. By willing to pay a sum of Rs. 9,50,000/-, the plaintiff
cannot demonstrate his willingness and readiness to perform his part
of the contract. And that being so, the finding of the learned Trial
Court on these two points also fails to withstand legal scrutiny and is
liable to be interfered with and accordingly, the same is interfered with.
21. With the above observations and directions, the impugned
Judgment and Decree, dated 29.05.2023, stands set aside and
quashed. The matter stands remanded to the learned Trial Court to
afford an opportunity of being heard to both the parties on the
additional issue, as indicated hereinabove, and thereafter, to
pronounce a fresh Judgment on all the issues.
22. In terms of the above, this Regular First Appeal stands disposed
of.
JUDGE
Comparing Assistant
