IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 05 of 2000 (Old No. 205 of 1993) Smt. Radha Rani W/o Shri Hari Om R/o 111 Rajpur Road Dehradun. ……Plaintiff/appellant. Versus 1. Smt. Mohin Devi (since deceased) Wife of Late Shri Hari Kishore R/o 111 Rajpur Road, Dehradun. 1/1. Smt. Chaya Khanna W/o Raji Khanna R/o 103, Rajpur Road, Dehradun. 1/2 Smt. Alka Devi W/o Shashi, R/o 59-H, Rajpur Road Dehradun. 1/3 Smt. Jaya, W/o Shri Subhash R/o 36 Ghosi Gali, Dehradun. 1/4 Ashok Gupta, S/o Late Shri Hari Kishore Gupta through Shri Satish Sodhi S/o Shri Banarsi Lal 111, Rajpur Road, Dehradun District Dehradun. .……….Defendants/Respondents. Shri Gopal Narain, Advocate for the appellant. Shri B.S. Negi, Advocate for the respondents. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 22.12.1992, passed by Additional District Judge/Special Judge (Anti Corruption), in Civil Appeal No. 31 of 1992, whereby said first appellate court has affirmed the judgment and decree dated 31.03.1982, passed by the trial court (Civil Judge, 2 Dehradun), in suit No. 12 of 1980, dismissing the suit. 2. Heard learned counsel for the parties and perused the record. 3. Brief facts of the case giving rise to this appeal are that plaintiff/appellant instituted suit No. 12 of 1980, before Civil Judge, Dehradun, with the pleading that defendant-Mohini Devi (since deceased), executed agreement dated 05.05.1975, in favour of the plaintiff in respect of the property in suit, shown in Schedule A, measuring 567.9 Sq. mtrs, situated at 111 Rajpur Road, Dehradun, whereby the defendant had agreed to sell said property to the plaintiff for a consideration of Rs. 3,500/- It is pleaded by the plaintiff that Rs. 1,000/- was accepted by the defendant as part of consideration and possession of the property was given to the plaintiff. It is alleged by the plaintiff in the plaint that the defendant-Mohini Devi, failed to execute the sale deed under the pretext that no permission could be obtained from the ceiling authority, as required under Urban Land (Ceiling and Regulation) Act, 1976. It is further pleaded that the plaintiff was always ready and willing to perform her part of contract. It is also pleaded that the defendant on 21.01.1980, took forcible possession of the property and the First Information Report was lodged at the police station. With these pleadings, suit for specific 3 performance of contract, was filed by the plaintiff before the trial court. 4. The defendant contested the suit and pleaded that she did not execute agreement dated 05.05.1975, as alleged by the plaintiff. She also denied having received any part of consideration, as alleged in the plaint. She also denied that she received any notice from the plaintiff to execute the sale deed. She pleaded that value of the property was Rs. 25,000/- . It was further pleaded that the plaintiff is not entitled to protection under Section 43 A of Transfer of Property Act, 1882. 5. On the basis of the pleadings of the parties, as many as ten issues were framed by the trial court. After recording evidence and hearing the parties, the trial court found that the plaintiff has failed to prove that the defendant-Mohini Devi, executed any agreement of sale on 05.05.1975 to sell the property in suit after receiving part of the amount of consideration. Apart from this, other issues were also decided against the plaintiff except issues No. 8 and 10. The trial court dismissed the suit vide judgment and decree dated 31.03.1982. Aggrieved by said judgment and decree, plaintiff filed appeal before the first appellate court, which was registered as civil appeal No. 31 of 1982. Said appeal was decided after hearing the parties by the first appellate court (Additional District Judge, Special Judge 4 Anti Corruption, Dehradun), vide impugned judgment and decree dated 21.12.1992, whereby said appeal was dismissed. Hence this Second Appeal was filed on 15.02.1993, before the Allahabad High Court by the plaintiff-Radha Rani. On 16.02.1993, this Second Appeal was admitted by Allahabad High Court on following two substantial questions of law:- 1. Whether the view of the courts below that the suit was barred by limitation, cannot be sustained? 2. Whether the lower appellate court was justified in considering the question of limitation alone, and without recording any finding was the lower appellate court justified in dismissing the appeal? 6. This appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), for its disposal. 7. Answer to substantial questions of law No. 1 and 2:- As far as the ownership of Smt. Mohini Devi (since deceased) of the property in question, is concerned, the said fact is admitted. There is concurrent finding of fact that the plaintiff failed to prove that the defendant (Mohini Devi) executed agreement of sale on 05.05.1975, as alleged by the plaintiff and that she received any consideration there for. Apart from dismissing the suit on merits, the trial court and first appellate court further held that the suit was 5 barred by limitation, as the alleged agreement was executed in the year 1975, and the suit was instituted in the year 1980. The period of limitation, provided under Article 54 of Schedule of Limitation Act, 1963, for specific performance of contract, is three years from the date fixed for performance of contract, and if no date is fixed when the plaintiff has refused to perform his part of contract, after receiving the notice. Page 2 of the agreement dated 05.05.1975, filed before the trial court, shows that it was clearly mentioned “that the sale deed is to be executed within one year from the date of execution of this agreement”. This means the last date of execution of sale deed was 04.05.1976. That being so, the three years period stood expired on 04.05.1979. Copy of the plaint on the lower court’s record, shows that the plaint was presented before the trial court on 04.02.1980. As such, the suit is clearly barred by time. In the circumstances, this Court is of the view that the courts below have committed no error of law in dismissing the suit on the above ground also. 8. Shri Gopal Narain, learned counsel for the appellant, argued that without there being specific issue, framed by the trial court, the courts below, have erred in law in dismissing the suit on that point. However, the Apex Court in State Bank of India Vs. B.S. Agriculture Industries Ltd. (2009) 5 Supreme Court Cases, Pg. 121, in its para-15, has expressed the view 6 that question as to whether the suit is barred by limitation relates to a jurisdictional fact, and even if not pleaded, the suit can be dismissed on that count. In Ahmadsahab Abdul Mulla Vs. Bibijan and others (2009) 5 Supreme Court Cases Pg. 462, the Apex Court has further explained that Article 54 of Schedule, contained in Limitation Act, 1963, refers to the fixed dates, which can be determined or made clear from the agreement and if no date can be determined period would start from the specific date, mentioned in the notice. In the present case, the date of execution of sale deed, i.e. performance to be done by the defendant was clear from the agreement itself, as the same provided that the sale deed would be executed within one year of the execution of the deed dated 05.05.1975. Therefore, in the opinion of this Court, it cannot be said that the courts below have erred in law in dismissing the suit on the ground of limitation. 9. Accordingly, both the substantial questions of law, stand answered. 10. The second appeal is dismissed. However, no order as to costs. (Prafulla C. Pant, J.) Dt:03.11.2009 Sweta 7 8 9 10 11 12