IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 414 of 2010. Reserved on: 20.06.2011. Decided on: 29.06.2011. ______________________________________________ Dharam Pal. … Appellant. Versus Prem Lata and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant : Mr. Ashok Chaudhary, Advocate. For the Respondents : Mr. Rahul Mahajan, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 29.5.2010 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 5-N/XIII of 2009. 2. Material facts necessary for adjudication of this regular second appeal are that the appellant/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) filed a suit for permanent 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - prohibitory injunction and for specific performance of contract/ agreement, dated 17.9.1976. According to the plaintiff, Bhagat Ram and Karam Chand entered into an agreement with the plaintiff to sell Khasra No.555 measuring 5 marlas for a consideration of ` 1,000/- on 17.9.1976. The agreement was reduced into writing and was executed by Bhagat Ram and Karam Chand in presence of the witnesses. The substantial amount of consideration, i.e. a sum of ` 950/- was received by the vendors as advance and the balance amount of sale consideration of ` 50/- was to be received by them at the time of registration of sale deed. According to the plaintiff, in pursuance to the said agreement, vendors, as part performance of the agreement, gave possession of the suit land on the spot to the plaintiff. The time was not the essence of the contract nor any time was fixed to execute the sale deed. The plaintiff was living in Delhi and during settlement operation, the settlement authorities entered the name of plaintiff’s father, Shri Ram Lal as ‘kabiz’ instead of plaintiff without joining the plaintiff in those proceedings and without giving him any opportunity to appear in those proceedings. His father died in the year 1984. He visited Nurpur on 2.8.2004 and learnt that the defendants wanted to further alienate the suit land and have started negotiation for which they had no right, title and interest. According to him, he was always ready and willing to perform his part of contract and is still ready and willing to do so. He asked the defendants on 2.8.2004 to - 3 - execute the sale deed in his favour and to receive the balance consideration of a sum of ` 50/-, but they did not do so. The suit was contested by the defendants. They have denied that the suit land was owned and possessed by the plaintiff. It was further pleaded that the suit land was owned and possessed by the predecessors-in-interest of the defendants, namely, Karam Chand and Bhagat Ram and after their death the defendants succeeded to their estate. The entry in the name of Ram Lal as ‘kabiz’ was mere paper entry without possession. It was specifically denied that the predecessor-in-interest of the defendants ever entered into an agreement dated 17.9.1976 for sale of the suit land for a consideration of ` 1,000/-. 3. The trial Court framed the issues on 6.2.2006. The learned trial Court dismissed the suit on 24.11.2008. Thereafter the plaintiff preferred an appeal before the learned District Judge, Kangra at Dharamshala. He dismissed the same on 29.5.2010. Hence this regular second appeal. 6. This appeal was admitted on 20.10.2010 on the following substantial questions of law:- “1. Whether there being no period and date fixed for the execution of the sale deed in the agreement for sale Exhibit PW-1/A, therefore, the suit cold not be dismissed on the ground of bar/limitation? - 4 - 2. Whether the agreement for sale was continuously subsisting and the same was enforceable at the time of filing of the suit? 3. Whether both the courts below have fallen in error by holding that the suit was not filed within the period of 3 years and for this purpose, the pleadings of the parties and the evidence has been misread and misconstrued? 4. Whether the Ld. District Judge wrongly held that application under Section 5 of the Limitation act was required to be filed with the suit?” 7. Mr. Ashok Chaudhary, learned counsel for the plaintiff has vehemently argued that both the courts below have failed to appreciate the oral and documentary evidence correctly. 8. Mr. Rahul Mahajan, learned counsel for the respondents has supported the judgments and decrees passed by both the courts below. 9. I have heard learned counsel for the parties at length and gone through the pleadings carefully. 10. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for adjudication to avoid repetition of discussion of evidence. 11. Plaintiff has tendered his evidence by way of affidavit. According to the contents of affidavit, the suit land was 5-6 marlas and was is possession of the deponent for the last 35-40 years. Karam Chand and Bhagat Ram owners of the suit land have sold - 5 - the suit land in his favour for the consideration of ` 1,000/- vide agreement dated 17.9.1976. The agreement was scribed by Amritsagar Mahajan Sanghoi at the instance of Karam Chand and Bhagat Ram. The contents of the agreement were read over to them and after admitting the contents of the agreement to be true, Karam Chand has signed the agreement, whereas, Bhagat Ram appended his thumb impression on the same in presence of witnesses, Mangat Ram and Nanak Chand. According to the recitals in the agreement, Karam Chand and Bhagat Ram received a sum of ` 950/- at the time of execution of agreement and the balance consideration of ` 50/- was agreed to be received at the time of execution of sale deed. According to the contents of the agreement, no time was stipulated to execute the sale deed. According to the contents of affidavit, he was already in possession of the suit land and he had constructed tin roof room and also erected boundary wall and installed a gate. Scribe, Amritsagar Mahajan Sanghoi and the marginal witnesses, Mangat Ram and Nanak Chand as well as vendors, Karam Chand and Bhagat Ram have died. He used to reside in Delhi. He was not called by the Settlement Authorities and in his absence the names of Karam Chand and Bhagat Ram were recorded in the column of ownership and in the column of possession, the name of his father was incorporated. His father died in 1984. He came to know on 2.8.2004 that the defendants were in the process to sell the suit - 6 - land. He asked the defendants to execute the sale deed till 12.8.2004 and receive the balance consideration of ` 50/-, but on 20.8.2004 they refused to execute the sale deed. It is in these circumstances that he has filed the present suit. In his cross- examination, he has admitted that he used to reside in Delhi for 30-35 years. Agreement was executed in his presence on 15.9.1976. He has admitted that the suit land was in possession of Prem Lata. He has deposed that he did not give any notice to the legal representatives of Karam Chand and Bhagat Ram with regard to the agreement entered into by them with him. He has also admitted that he did not give any notice to Karam Chand and Bhagat Ram during their life time also. 12. PW-2, Harbans Lal has led his evidence by filing affidavit Ex.PW-2/A. According to him, Amritsagar Mahajan Sanghoi was his real brother. He has died. He used to read and write in Urdu. He is well conversant with his signatures. According to him, Ex.PW-1/A has been written by Amritsagar Mahajan Sanghoi which also bears his signatures as scribe. There was further recital in the affidavit that the witnesses to agreement, namely, Mangat Ram and Nanak Chand have also died. The signatures of Mangat Ram are Ex.PW-2/A and the signatures of Amritsagar Mahajan Sanghoi are Ex.PW-2/B in agreement Ex.PW- 1/A. - 7 - 13. PW-3 Karam Chand has also led his evidence by way of affidavit Ex.PW-3/A. According to the contents of the affidavit, the plaintiff was in possession of the suit land for the last 35-40 years. According to him, two tin roof rooms have been constructed by the plaintiff on the suit land and he has also constructed the boundary wall. There is further recital that the defendants were never in possession over the suit land. 14. DW-1, Prem Lala has tendered her evidence by way of affidavit Ex.DW-1/A. She has deposed that Karam Chand and his brother Bhagat Ram, sons of Kirpo were owners of the suit land in equal share. After the death of Karam Chand and Bhagat Ram, she alongwith other defendants being their legal representatives are owners in possession of the suit land. The plaintiff has no right, title or interest over the suit land. According to the recital in the affidavit, no agreement was entered into on 17.9.1976 for sale of the suit land for a consideration of ` 1,000/- between Karam Chand and Bhagat Ram and the plaintiff. 15. DW-2, Jeet Kumar has tendered his evidence by way of affidavit Ex.PW-2/A. According to the contents of affidavit, he and husband of Prem Lata, Karam Chand and his brother were in the business of growing oranges and they also used to work as labourer with him. In his cross-examination, he deposed that the plaintiff used to reside in Delhi for the last 30-35 years. - 8 - 16. Mr. Ashok Chaudhary learned counsel for the plaintiff has vehemently argued that his client is entitled for the specific performance of agreement dated 17.9.1976. In the instant case, the scribe and the marginal witnesses have died. Karam Chand and Bhagat Ram, vendors have also died. There is no time stipulated in Ex.PW-1/A, within which the sale deed was to be executed. The sale deed was admittedly not executed by Karam Chand and Bhagat Ram within a period of three years. The plaintiff has categorically admitted in his cross-examination that no notice was ever issued to Karam Chand and Bhagat Ram for execution of the sale deed. He has also admitted that no notice was issued to the defendants for the execution of sale deed as per agreement dated 17.9.1976 and he has for the first time asked the defendants to execute the sale deed in 2004. He has not explained why the notice could not be issued to Karam Chand and Bhagat Ram and also the defendants. He has also admitted that the suit land is coming in possession of defendant, Prem Lata. Thus, he had the knowledge of possession of the defendant, but he has not taken any steps for enforcement of the agreement. In these circumstances, it is difficult to believe that the plaintiff was ready and willing to execute the agreement. He has remained dormant for more than 25 years. The prices of land have escalated from 1976 till the date of filing of suit by the plaintiff, i.e. 8.9.2004. The plaintiff has failed to prove his possession over the suit land. In - 9 - these circumstances, he was not entitled for the relief of injunction and has been correctly held by both the courts below. 17. The suit of the plaintiff was also barred by limitation. The agreement is dated 17.9.1976 and the suit has been filed on 8.9.2004. The conduct of the parties is also relevant before the courts exercise the discretion to enforce the specific performance of the agreement. He has remained silent for more than 25 years. 18. So far as the finding recorded by the learned District Judge that application under Section 5 of the Limitation Act was required to be filed with the suit is prima facie wrong and the same is liable to be set aside. 19. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the regular second appeal and the Court cannot grant the decree for specific performance of agreement, dated 17.9.1976. Consequently, the regular second appeal fails and the same is dismissed, so also the pending application(s), if any. The interim stay granted vide order dated 9.11.2010 is vacated. No costs. (Rajiv Sharma), Judge. June 29, 2011. (sck).