Kashiram (Dead) Thr. Lrs Imarti ... vs Shyamlal (Dead) Thr. Lrs Rumko Bai
2022 Latest Caselaw 3967 MP

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         HIGH COURT OF MADHYA PRADESH
                                  S.A. 163/2016

 (Kashiram (dead) through Lrs. Imarti Bai and Ors. Vs. Shyamlal
         (dead) through Lrs. Rumko Bai & Ors.)
Gwalior dated 23.03.2022
      Shri Anand Bharadwaj, learned counsel for the
appellants.
      Shri Sanjay Kumar Mishra, learned counsel for the
respondents.

1. This second appeal has been filed by the appellants (plaintiffs) against the judgment and decree dated 11/02/2016 passed in Civil Appeal No. 100A/2015 by 4th Additional District Judge, Vidisha, whereby, the first appeal filed by them has been dismissed and the judgment and decree passed by 3 rd Civil Judge, Class-I, District Vidisha dismissing their Civil Suit No. 4A/2012 has been affirmed.

2. Brief facts of the case are that the appellants/plaintiffs filed a civil suit for specific performance of contract against respondents/defendants with averments that on 26/06/1984 they entered into an agreement to sale with land owner Navi Bhai in respect of land bearing survey No. 461 admeasuring 9 Bigha 13 Biswa situated at village Ruslali Chaubisa, Tehsil Gyaraspur. Since they had no requisite fund to purchase the same, they let defendant No. 1/Shyamlal to purchase the property on behalf of them with the understanding that subsequently they would pay all requisite amount to defendant No. 1/Shyamlal and in turn he would execute the sale deed in their favour. The defendant No. 1/Shyamlal after receiving of Rs.1,500/- executed an agreement dated 10/06/1985 in their favour. The original sale deed of sale agreement was given to the plaintiffs. The plaintiffs continuously requested the defendant No. 1/Shyamlal to

HIGH COURT OF MADHYA PRADESH S.A. 163/2016

execute the sale deed in their favour, but he avoided to do so on one pretext or another. Finally in the Panchayat on 25/08/2007, he vocally refused to execute the sale deed in their favour. Ultimately, notice was sent by plaintiffs on 19/12/2008 and thereafter, the suit for specific performance of agreement was filed.

3. The defendants in their written statement denied the execution of agreements dated 26/06/1984 and 10/06/1985 and stated that they have become the sole owner of the disputed property on the basis of sale deed. The plaintiffs have no right or title over the same. The suit is barred by limitation which deserves to be dismissed.

4. On the basis of pleadings, five issues were framed. After completion of trial, the trial Court vide judgment and decree dated 17/07/2012 dismissed the suit with the findings that execution of agreement between the parties has not been proved. Besides, the plaintiffs have failed to establish that they were ready and willing to perform their part under the contract. The suit was also held to be barred by limitation.

5. The plaintiffs filed first appeal which was dismissed by impugned judgment holding that though execution of agreement between the parties is proved, but the plaintiffs had failed to establish their readiness and willingness to perform their part under the contract, therefore, they are not entitled for decree of specific performance. Being aggrieved of the same, this second appeal has been filed by the appellants /plaintiffs.

6. Heard learned counsel for the parties and perused the material available on record.

HIGH COURT OF MADHYA PRADESH S.A. 163/2016

7. Learned counsel for the appellants submits that first appellate Court has found proved the execution of agreement dated 10/06/1985 between the parties. This finding has not been assailed by the respondents/defendants. The plaintiffs regularly persuaded the defendant No. 1/Shyamlal to execute the sale deed in their favour and ultimately on 25/09/2007 Panchayat was convened in the matter and before it he refused to execute the sale deed in their favour. The plaintiffs filed a civil suit in the year 2009 i.e. within two years of refusal of the defendants. Thus, the suit is well within limitation. When defendants denied execution of the agreement then it has to be presumed that the plaintiffs were ready and willing to perform their part under the contract. This is an agreement of immovable property for which escalation of prices is not relevant and material. The appellants/plaintiffs filed an application before the appellate Court under Order XIII Rule 10 of CPC for calling original agreement from the Sarpanch, which was executed by defendants in favour of the plaintiffs with the assurance that they will pay Rs. 4,50,000/- to the plaintiffs to resolve the dispute pending between them. But learned first appellate Court erred in dismissing the application without due application of mind. The findings of the courts below are perverse. Thus, substantial question of law involves in the present appeal, accordingly, the same deserves to be admitted. He has placed reliance upon the judgment delivered by the Apex Court in the cases of Narinderjit Singh vs. North Star Estate Promoters Limited reported in AIR 20122 SC 2035, Aloka Bose vs.

HIGH COURT OF MADHYA PRADESH S.A. 163/2016

Parmatma Devi and Ors. reported in AIR 2009 SCW 1030 and Nazir Mohamed vs. J. Kamala & Ors. reported in AIR 2020 SC 4321.

8. Learned counsel for the respondents/defendants has supported the impugned judgment with submissions that even if the agreement is taken to be executed between the parties on 10/06/1985, the suit has been filed after a lapse of 24 years. This inordinate delay itself is sufficient to establish the fact that the suit is barred by limitation and the plaintiffs were not ready and willing to execute the sale deed. The appeal being devoid of merit and substance deserves to be dismissed.

9. It is a well settled legal position that second appeal can only be admitted, if substantial question of law is involved in the matter. Further appreciation of evidence in second appeal is also not permissible unless the finding of the courts below is found to be perverse.

10. As per the plaintiffs, the agreement in question was executed between the parties on 10/06/1985 and the civil suit for specific performance was filed on 09/09/2009 i.e. after lapse of more than 24 years. Such an inordinate delay is sufficient to infer that the plaintiffs were not ready and willing to get executed the sale deed in their favour as per agreement in question.

11. The version of the plaintiffs is not believable at all that they regularly persuaded the defendant to execute the sale deed throughout the long span of 24 years as they even did not issue any notice to him for the purpose.

12. Even if it may be taken to be true that on 25/09/2007,

HIGH COURT OF MADHYA PRADESH S.A. 163/2016

the plaintiffs convened a Panchayat, wherein, defendant No. 1/Shyamlal refused to execute the sale deed, but only on this count it cannot be presumed that on earlier occasion he promised to execute the sale deed in favour of the plaintiffs, therefore, refusal of the defendant No. 1/Shyamlal in Panchayat does not give fresh cause of action to the plaintiffs.

13. Thus, this Court is of the firm view that both the courts below have not committed any error in concluding that the plaintiffs were not ready and willing to perform their part under the contract which is sine qua non for decree of specific performance as per section 16 of Specific Relief Act.

14. It is also relevant to note that relief of specific performance of contract is an equitable relief which can be granted in favour of such person who comes before the Court with clean hands. In this case, as per agreement in question itself an amount of Rs. 13,000/- as sale consideration was paid by the defendant No. 1/Shyamlal, whereas, in his evidence, the plaintiff has claimed that he paid Rs. 13,000/- to the seller Navibhai as sale consideration. This is a patently false statement of the plaintiff which disentitles them for equittable relief.

15. The findings of the courts below with regard to the limitation is also based on correct appreciation of the law and facts. The present suit for specific performance of the contract has been filed after lapse of 24 years from the date of execution of the contract. As discussed above, it could not be proved that defendants assured the plaintiffs to execute the sale deed from time to time throughout long span of 24 years.

HIGH COURT OF MADHYA PRADESH S.A. 163/2016

Accordingly, plaintiffs are not entitled to claim limitation from the date of Panchayat convened by them. Thus the findings with regard to limitation cannot be faulted with.

16. During the course of appeal, the appellants have filed an application under Order XIII Rule 10 of CPC before first appellate court for calling some documents stated to be in possession of some Sarpanch. This Court finds that first appellate court has rightly considered the issue and dismissed the application in rightful manner with good reason.

17. The legal position expounded in the judgments cited by the appellants is not disputed, but in none of them, the decree of specific performance was passed in the similar circumstances, therefore, being quite distinguishable, the same do not help the appellants in any manner.

18. In view of above discussion and the reasons stated, this Court does not find any reason to interfere in the impugned judgment. The matter does not involve any substantial question of law. The appeal sans merit and the same is, therefore, dismissed.

No order as to costs.

(Satish Kumar Sharma) Judge

Durgekar*

SANJAY Digitally signed by SANJAY NAMDEORAO DURGEKAR DN: c=IN, o=HIGH COURT OF MADHYA

NAMDEOR PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=afa4701a2661e1fb7720c022ffc27760

AO 8ce55ba67f3594a641181b9ae8448e58, pseudonym=DA26B82C5BC4CAF69072CA5A1 3CA996C4169AB06, serialNumber=1190D1488DBA862FB108ED66

DURGEKAR 262DC2DC2CB9D310D73128B3A6E7B046FCF 28227, cn=SANJAY NAMDEORAO DURGEKAR Date: 2022.03.25 16:44:41 +05'30'