^ IN THE HIGH COURT OFCHHATTISGARH AT BILASPUR SECQNDAPPEALNQ. _6 ^ /2006 APPELLANT *]LAINTIFF) ®Mi||jti?i5 ^Paulus Tig^, S/o. Shiril Tigga, Aged about 68 years, Occupation Agriculturist, Caste-Uraon, R/o. Village Gudlu, %dupara, Tahsil Bagicha, District Jashpur (C.G.) VERSUS RESPONDENTS ^DEFENDANTS) M/^ ^.t^,Q^ <; 0</'Xaxari6s Ekka, S/o.Tyofil Ekka, >^ w^ : v--1" % iS'1 ^••' Aged about 49 years, Caste- Uraon, Occupation-Service, R/o. ViUage Gudlu, Badupara, Tahsil Bagicha, Distiict J^shpur (C.G.) Presently R/o. Village Kunkuri, Near Loyola Get, District Jashpur (C.G.) "U-^ Filamon Ekka, S^. Late Tyofil ,<'•""• '• ." tg Uraon, Aged about 46 years, Occupation Agriculture. ^ ^3^MikhaiI Ekka, S/a^ Late Tyofil Uraon, Aged about 36 years, Occupation Agriculture. Ku, Vina Kumodam Ekka, D/o. Late /' ^ Tyofil Uraon, Aged about 39 years. t^ Ku. Korneliya Ekka, D/o. Late Tyoffl Uraon, Aged about 32 years. c, ufe^Mu/ Silma(Buk:o ;^k^ ^i^l/o, lyofll Uraon, Aged about 75 yeaTs. AU are caste Uraon, G!^upati6n Agriculture, Resident of' vilj^ge" Badupara, Gudlu, Tahsil Bagicha, I^strict Jashpur(CXj.) ¥ tl 7; State ofChhattisgarh, / Through fhe CoUector, Jaspur Nagar, District Jashpur (C.G.) APPEAL U/S. 100 OF THE CODE OF CIVIL PROCEDURE •al^7alued_!lLRs_g85Z- rouius [ 'gaa Xaxarios Ekka cr*d six ofners Post for J'udQ^s.^t' \ri~ .0£°.2007 Sd/- Dilip Raosaheb Deshmukh Judge s\ HI6H COURT OF CHHATTIS6ARH AT BILA& vK Before: Hon'bi®Shri Justice &itiD Raosaheb beshmukh Pauius TJQqa i;Vs. Xa>;arios Ekka and six others Shn Kishore Bhaduri, Advocate with Shr-i Roop Naik, Counse! for the appellesnt/plaintiff Shri J.K-Shahstri, Counsel for respondents No.l to 6. Shri Akhii Ags-awal, P.L. for the State/respondent No.7 J_V_D )elivered on this i^"~ day of February 2007) Seing aggrieved by the judgment and decree pcssed in Civi! Appea! No. 40-A of 2005 on 08.11.2005 by Shri S.C.B&jpo.i, Oistrict Judge, Jashpur, reversing the judgment and decree for specific per'formance of contract granted by Civi! Judgs Class-II, Jashpur passed in Civii Suit No. 19-A of 2003 on 30.11.2004 the appeliant/plaintiff has preferred this Second Appeci. 2. The appeliant-plaintiff filed a suit for speeific performance of contract against the respondents/defendants No.l to 6 on the ground that father of ths defendants No.l to 5 and husband of defendant i.6 late Tyofii Ekka had, on 10.09.1980 agreed to sel! 0.25 acre of i, out of Kh. No. 125 area 1.38 acres (hereinafter referred to as the suit iand) situoted in village 6ud!u, Patwari Haika No.34, revenue circle and Tahsil Bagicha, t)istrict Jashpur for a sum of Rs.300/- and had executed Ekrarnaina Ex.P.l. The plaintiff had constructed a residentia! house and Badi over the suit land and was in possession thereof. During his iifetime, Tyofil ERka did not, in any manner, interfere with the possession of the plaintiff over the suit iand. After executing the Ekf'arnama on 10.09.1980, Tyofil Ekka borrowed cdditiona! sums of Rs.150/- on 4.6.1982, Rs.20/- on 25.03.1984, Rs.i5/- on 25.08.1984, Rs.50/- on 16.05.1990 and Rs.30/- on 15.01.1995 fTotai Rs.585/-) from the plaintiff. Since Tyofii Ekka did not return the loan advanced, the plaintiff included the aroresaid sums as considerction of T+!S suit land. In this manner, the entire consider-ation of Rs.885/- was paid by the (^peliait/plcintiff to Tyofil Ekka On death of Tyofi! Ekka, the dafendants started causing disturbance in the piaintiff's possession over the suit lands and were threatening to dispossess him. It was further pleaded by the plaintiff 1+iat upon demorcation being got done by the Patwari in sresence of Tyofi! Ekka, the suit iand was found to measure ~o 0.4t ac"e in piace of 0.25 acre. Since the plaintiff wcs 'm adverse possession of the suit land since 1980, he claimed a reiief of a declaration of his titls and possession over the suit iand and e!so for' specific perforwonce of the agreement dcted 10.09.1980 p"aying that the defendttnts be directed to execute s sale-deed of 0.48 acre of icnd in fdv'our of -rhe plaintiff. It was further prayeo that the defendants be restrcined by permanent injunction from interfering with the possession of the plaintiff. 3. The defendants resisted the suit and denied the plaintiff's ccse in toto. It was pleaded that the piclntiff was never in possession of ^.^.^^-^.^?v.±^i-^~E^^.r?'*;^^?7? ?^ ?^^iKEI 3 G^ the suit iand and was not entitied to a decree for specific performance of contract since readiness and willingness to perform his part of the contrQct, if any, was neither- pieaded, nor pleaded. 4. The learned Ciyi! Judge Class-II, Jo.shpurnagar whiie recording eyidence exhibited Ehrarnama as Ex.P.l without impounding the same. No objsction was raised by the defendants in this regard. It rejected the plaintiff's prayer for specific performance of contract for sale of 0.48 acre land and heid that the plaintiff was entitlsd for speclfic performance of contrnct only to 1+se extent of 0.25 acre land, cs mentioned in the Ekrarnama^.xS'.i. Itaiso recorded c finding that since time wcs not the essence of the contract and Tyofil had gone away for earning his iivelihood, after his death cause of action orose in favou" of the piaintiff when 1+ie name of defendcnts was wuta-i-ed over the suit lands. On •t+iese pr'emises, it grcnted a decree fo" specific performcnce of contract to selt suit iand i.e. 0.25 acre oniy in favour of the piaintiff and restrained the defendants from interfering with the possession of the plaintiff over- the suit land. ieing aggrieved, the defendants preferred Civil Appeal No.40-A of 2005. The leamed District Judgs, Jashpur recorded findings that the Ekr'arnama Ex.P.l was a document which was not sufficiently stamped'and was wrongiy exhjbited and admitted in evidence by the lower Court, that the plcintiff had not pleaded readiness and willingness to execute his part of the contrcct and that the suit was barred by limitation not having been filed within three years from the death of Tyofil on 09.01.1999. On these grounds, the learned &istrict Judge atiowed the appeal and set aside the judgment cuid decree passed by the learned Civi! Judge, Class-II, Jashpurnaga". -t 6. Shri Kishore Bhaduri, learned counsei for the appeilant/piaintiff has placed reliance on Prithivi Raj Sirgh vs. Dalip Kulkarni and others in support of his contention that where the vendor had received the whole consideration on execution of the a9"eement to ael!, there remained nothing to be performed on the part of the vendee, the absence of pteadings of readiness and willingness to perform his part of the contrsct were not fatal to the plaintiff's case. Reliance was aiso placed on Shymlal Kumar Roy v. Sushii Kumor Agarwal in support of the contention that no objection, haying been raised by the respondents/defendants st the time of admission of the document Ex.P.l in evidence, Section 36 of the Indian Stamp Act, 1399, prohibits a Court of law from reopening a matter with re9ard to the sufficiency or otherwise of the stamp duty paid on such instrumsnt. 7. On the other hand, Shri J.K-Shastri, iearned counsei fo" the respondents/defendants argued in suppor't of the Judgment delivered by t'ne iearned Civil Judge, Class-II, Jashpurncgar and piaced reliance on .d. rtohar Ali v. Md. Mamud Ali and others contending that in the absence of specific pleo.din9S of readiness ond willingness of the plaintiff to perform his part of the contract, ths plaintiff was not entitled to a decree for specificperformance of contract, if any. 8. The followin9 substontiai questions of determination in this appeal: arose for 1. AIS 1999 fto.insthan 201 2. 2007 A SCW 234 • JT 2006 (9) SC 483 3. AIR 1998 Smheti 92 "1. Whsther non-irnpoundin9 of document Ex.P.l invalidcte it? 2. Where fu!l consideration is paid at the time of agnsement in those cases also absence of pleadin< and proof regarding readiness and wiliingness may crecte obstruction in grant of relief of spscific Whether in the facts and circunistances of this case, the date of death of seller was the startini point for counting period of limitation?" 9. So far as the first question reiating to non-impounding of document Ex.P.l is concerned, the matt-er is weil settied by a decision of the Apex Court in Shysmial (supra 2) wherein it was held that if a document insufficientiy stamped wos exhibited and admitted in evidence without cmy objection having been raised by the opposite party, Section 36 of the Indian Stamp Act, 1899 gets attrocted and the Court is prohlbited f"om reopsning ths matter. In the presant co.se, the Ekrofnama'ExS'l was exhibited and adm'rtl'ed in evidence by the learned Civil Judge Class-rt, Jashpumagar without any objection being raissd by the appeltants/defendants to ttie admissibiiit/ of the document on its being insufficiently stamped. Under* such circumstcnces, Section 36 of the Indian Stamp Ac~, 1899 becomes operativ-e. If a part/ to the lis intends that an instrument produced by the other party being insufficientiy stamped shouid not be admitted in evidence, he must raise on objection thereto at tha dppropriate stage. l-e may not do so only at his perii. Since no objection was rcised by the appellants/dsfendants with regard to the i^>^ 1-~ admissibility of the document E/crarnamaEx.P.'i, they, at a later stage, comnot be permitted to turn round and contend that the said document is inadmissible in evidence. The cypeliants, havini consented to the document being marked as an exhibit, hcve thus lost their right to reopen the question. The first question is therefore, answered that the First Appellate Court was not right in recording a findino that the docunient Ekramama Ex.P.l being insufficiently stamped was wrongly exhibited and admitted in evidence by the lower Court. In the facts and circumstances, Section 36 of the Indian .Act bars dny such question relating to admissibiiity of ttie document on the ground of its being insufficiently stamped being called in question at any stage of same suit or proceeding once it has been exhibitsd ond admitted in evidence without being opposed by the other party. 10. The pieadings of the plaintiff regarding the agreement by Tyofil Ekka are as vague as it could be. Ekrarnama. Ex.P.l shows that Tyofil Ekka had borrowed a SUIT) of Rs.300/- for his personal work. The land mentioned in Ex.P.l is only 25 decimols out of Kh.No.125. The consideration mentioned in cgreement Ex.P.l dated 10.09.1990 is Rs.300/- oniy. In his evidence, Paulus Tigga stated that Tyofil had received o further suin of Rs.585/- from him few years after executing the agreement, due to which, the consideration for the land became Rs.885/-. A document Ex.P.4 has also been filed which cleariy goes to show that 4 years after executing ths document Tyofit was regularly receiv'mg some loan from Pauiys Ti93a. There is no mention of the document E^.P.l in the document Ex.P.4. Ex.P.4 cleariy shows that the true ncture of the document Ex.P.l was a loan trarisaction L.. \ cnd not an agreement to seil. I fully agree with the finding recorded by the leamed bistrict Judge on proper appreciotion of the evidence in paragraphs 11 to 15 of the Judgment. The manner in which the area of land ailegedly agreed by Tyofil to sell to Paulus Tigga increased from 0.25acre to 0.48 acre a!so throws a cioud of suspicion oyer ths piaintiff/respondent's case and completeiy disentitles him to a pur-eiy discretionary dscree for^fspecific performance of contract. 11. In the facts ond circumstances of the cass, as pleaded by the plaintiff, it was necessary for him to plead readiness and willingness to perfor-m his part of the contro.ct, if any. Testimony of Paulus Tigga in paragraph 9 goes to show that on .No.l25, total area 1.38 acres, Fiimon, son of Tyofil Ekka had constructed a house cnd was in cultivating possession of the lcnd. This compieteiy demoiishes the plaintiff's case thst he was in possession of the suit lands. There Is an admission in paragraph 7 by Pauius Tigga that the amounts paid by him to Tyofil Ekka were by way of ioan. There is nothing on record to show that after getting the document Ex.P.l executed from Tyofil Ekka on 10.09.1980, the plaintiff made any efforts to get the sale- deed executed from Tyofil Ekka during his tife time. On the contrary, the evidence showa that he continued tending monies to Tyofil Ekka from time to time. It is only after the death of Tyofil Ekka caid on mutation of the names of the d-sfendants that the. document Ex.P. 1 surfaced for the first time. The manner in which 'rtie area of Ifie land and the consideration Rept enhancing, it is not established that Tyofil Ekka had agreed to sel! a cleariy demarcated 25 decimais of land out of Kh.No.125 to the plaintiff Pauius Tiggo on 10.09.1980 and had paid the entire consideration for the same. It was therefore necessary for the plaintiff to plead and establish by leading cogent evidence that he was, after 10.09.1980, aiways ready and willing and made effor1-s to get the sale deed executed frorn Tyofil Ekka during his life time. Absence of pleadings regarding readiness ond willingness to get the scle deed executed or proof thereof cieariy disentitles the plaintiff to a decree for specific performance. In this view of •riie matter, substantia! question of law No.2 is answered cccordingly. The finding recor'ded by the learned Distr'ict Judge is thus impeccabls. ;ES' 12. First of a!l, the evidence led by the plaintiff does not estabiish that Tyofil Ekkn had agreed to sell the suit land to him on 10.09.1980. The evidence and pleadings show that neither the consideration nor the nrea of land was certain. Under Article 54 of the Limitation Act 1963, the period of limitation for specific perforinance of contract is 1+iree years from the date fixed for the performance, or, if no such date is fixed when the piaintiff has notice that perfor-mfflice is refused. In this cass, aithough in Ex.P.l time was not the essence of the contract there is absoiuteiy nothing on record to show that the plaintiff made cny effort to get ths sale deed executed from Tyofi Ekka during his life time. Adrnittedly, Tyofii died on 09.0t.99. The suit was filed on 05.03.2003 after more than three years. In this view of the matter, the finding recorded by ths First Appeliate Court that eyen if the death of the seller" Tyofil Ekka is to be taken as the starting point for counting period of limitation, thz suit was cleariy barred by limitation, coinnot be fauited with. Substantial question No.3 is also answered accordingly. l riste^i;' .0^ 13. Haying answered the substantiai questions of iaw 'm the manner as aforesaid, I am of the considered opinion that -riiis appeal is devoid of merit and is accordingly dismissed. Entire costs of the appeal shall be borne by the appelianl'/plaintiff. Pieader's fee be allowed according to scheduie, if certified. A decree be drawn accordingly. --^ Sd/- Dilip Raosaheb Deshmukh Judge