1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 22 OF 1993 Shankar s/o Bhiva Garolkar age 48 years, occ. agril r/o village Hipperga Janerao Tq. Biloli, Dist. nanded Post. Kuntoor .. APPELLANT VERSUS 1 Jivnaji s/o Sambhaji Kadam age 42 years, occ agril r/o Village Hipparga janerao Tq. Biloli, Dist. Nanded Post Kuntoor 2 Bhujanga s/o mariba Garolkar ( deceased through LR respondent no. 3) 3 Sau. Subhadrabai w/o Ramesh Gaikwad age major, occ. agril r/o Hipperga Janerao Post Kusnoor, Via : Naigaon Tq. Naigaon (old Biloli) Dist. Nanded .. RESPONDENTS Shri P.G. Gunale, Advocate for the appellant. Shri P.M. Gaikwad, Advocate for the respondents. ===== CORAM : R. M. BORDE, J. DATE : 3 rd August, 2009. ORAL JUDGMENT : 2 1 Original plaintiff / appellant herein has approached this court raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff / appellant instituted Regular Civil Suit no. 278/1984 claiming decree of specific performance of contract against the defendants. It is the contention of the plaintiff that his deceased father by name Bhiva had entered into an agreement with deceased father of defendant no. 1 namely Sambhaji in respect of purchase of suit land admeasuring 1 acre and 10 gunthas at the rate of Rs.1400/- per acre. Agreement to sell, according to plaintiff, was entered into on 18-6-1975. Total amount of consideration was paid to the defendant. Plaintiff claims that he has received possession of the suit land and the document came to be reduced into writing incorporating all these terms. It is his contention that inspite of he being put in actual possession of the suit land h is name was not entered into the column of cultivation by the revenue authority. He therefore initiated proceeding for recording his name in revenue record by presenting an application to the Tahasil office. Revenue authority with a view to decide the application tendered by the plaintiff for recording his name in revenue record conducted spot inspection and during the conduct of spot inspection by the Revenue Circle Inspector, form in that regard was got prepared. At that time, it transpired to the plaintiff that defendant no. 1 had already alienated the suit land in favour of defendant no. 2. Plaintiff as such issued notice to the defendant on 3-7-1982 calling upon him to execute the registered sale-deed. Notice was returned back with an endorsement “not found”. Plaintiff as such has approached the court with a request for grant of decree of specific performance of contract in his favour. Defendant nos. 3 1 and 2 presented their joint written statement and controverted the contentions raised by the plaintiff. Defendant no. 1 has denied to have executed the agreement as alleged by the plaintiff. Defendant no. 2 contends that he is the bonafide purchaser for value without any notice of the previous contract entered into by defendant no. 1 with the plaintiff. According to him, his interest needs to be protected. It is also contended by the defendants that suit presented by plaintiff is barred by limitation. 3 Trial court after recording evidence of the parties came to the conclusion that plaintiff has failed to establish his case and as such dismissed the suit. Being aggrieved by the judgment and decree passed by the trial court, original plaintiff approached the first appellate court by presenting Regular Civil Appeal no. 216/1986 which came to be heard and decided by the 4 th Additional District Judge, Nanded who was pleased to dismiss the same by judgment and decree dt. 24-6-1992. First appellate court has recorded finding that considering the recitals noted in the document, the document cannot be construed as an agreement to sell. It is observed by the first appellate court that the document in question is infact an unregistered sale-deed. Pleadings raised by the plaintiff in his plaint are not in consonance with the documentary evidence placed on record and as such, the appellate court was pleased to dismiss the appeal. 4 At the stage of admission of appeal, this court has formulated ground nos. II, III, IV, V and VI noted in the memorandum of appeal as the substantial questions of law. Those are : 4 A It ought to have been seen that the intention behind the execution of document i.e. Sauda Chitti executed in the year 1975 is to be gathered only after reading the document and evidence of both the parties. The evidence on record led on behalf of the plaintiff has not been appreciated in its proper perspective in that regard. B Whether the courts below are correct in denying the claim of the plaintiff for specific performance of contract when the signatures of the defendant no. 1 on the document called ‘Sauda Chiti’ are proved which he has signed as attesting witness ? C Whether both the courts below are correct in holding that the suit of the plaintiff is barred by limitation ? The appellant submits that the defendants – respondents nowhere alleged in their written statement that the alleged document of sale is out and out sale, then in absence of such pleadings and in absence of evidence in support thereof the suit cannot be held to be barred by limitation. The appellant submits that when no date was fixed for performance of contract then as per the well established provisions of law the date of refusal is the date of denial to perform the specific performance of contract and on this sole ground the suit ought to have been held as within limitation. D Whether both the courts below are correct in holding that the suit of the plaintiff is not within limitation when the defendants denied the existence, execution and contents of the document ? The appellant submits that the period of limitation starts only after the service of notice on the defendants by the plaintiff. E That, it ought to have been seen that since the 5 date of execution of agreement of sale the deceased father of appellant was in possession of the suit land and after the demise of the father of the appellant he was in possession of the suit land till the year 1982 but in the year 1982 when the plaintiff was illegally and forcibly dispossessed by present defendants from the suit land and in this year alone the plaintiff came to know that sale-deed is executed by defendant no. 1 in favour of defendant no. 2 and thereafter the plaintiff issued legal notice to defendants but the notice returned unserved and thereafter the plaintiff instituted proceeding in Tahsil office at Biloli which is pending and even in the year 1984 the plaintiff requested the defendant no. 1 to execute sale-deed. In view of these facts the suit of the plaintiff ought to have been held as within limitation. But both the courts below lost the sight of this aspect and illegally dismissed the suit of the plaintiff only on the ground of limitation which has resulted in miscarriage of justice and therefore, the judgment and order appeal is liable to be quashed and set aside. 5 I have perused the judgment recorded by both the courts below. I have also perused the record maintained by the trial court. Heard arguments advanced by learned counsel for the respective parties. The document in question dt. 18-6-1975 contains recitals about the unregistered sale-deed. Although title of the document mentions ‘Sauda Chitti’ i.e. agreement to sell, however, it is recorded in the document that the defendant no. 1 has permanently alienated an area to the extent of 1 acre 10 gunthas out of survey no. 48 in favour of the plaintiff for consideration of Rs.1750/-. It is recited in the document that defendant no. 1 has received the consideration amount. Document also recites that possession of the land has 6 been delivered to plaintiff. Although, the recitals in the document make a mention in respect of passing of consideration as well as handing over possession and although the document is styled as ‘sale-deed’, however, the document in question being unregistered one, the plaintiff is entitled to claim execution of registered instrument in his favour thereby completing the transaction in respect of sale. The view adopted by the first appellate court that as the contents in the document are in effect amounting to sale-deed, no specific performance can be asked for, does not appear to be proper. Plaintiff is very much entitled to claim specific performance and claim execution of registered instrument in his favour. However, in the peculiar facts and circumstances of this case, plaintiff is precluded by virtue of bar of limitation from claiming the relief. Document is got executed on 18-6-1975. Plaintiff claims to have issued a notice calling upon the defendant no. 1 to execute registered instrument of sale on 3-7-1982. However, on perusal of the endorsement made by the postal authority on the envelope alleged to have been transmitted to the defendant, it cannot be presumed that the defendant is in receipt of the alleged notice. It is endorsed by the postal authority on the envelope that the addressee of the letter was not found and he had shifted to some other place and on enquiry the person was not traced. As such, the envelope was returned back. Plaintiff also in his plaint itself has pleaded that the envelope containing notice was received back by him with an endorsement “not found”. In this view of the matter, it cannot be said that the defendant has received notice transmitted to him on behalf of the plaintiff and inspite of receipt of notice, there is denial on his part. In the absence of there being any specific denial, the suit ought to have been instituted within three years from the date of the document. In 7 the cross examination, plaintiff has admitted that after three years of the execution of the agreement, he had asked the defendant to execute the sale-deed. If there was any request made by the plaintiff some three years after execution of the agreement, it was for the plaintiff to approach the court immediately on refusal of such request. It is contended by learned counsel appearing for the appellant that the plaintiff has not stated in terms as regards refusal of the request by defendant. But however, the fact remains that there was request made after three years of the execution of the agreement to sell to the defendant for securing execution of the sale- deed and, it appears that no steps are taken thereafter. It is to be noted that the document in question was executed in the year 1975 and the plaintiff has approached the court with a request to grant decree of specific performance in the year 1984. The suit presented by plaintiff obviously is barred by limitation. So far as readiness and willingness on the part of the plaintiff to perform his part of the contract is concerned, it is to be noted that there does not appear that the plaintiff has taken any steps except issuance of notice in the year 1982. Notice allegedly sent on 3-7-1982 is also not received by the defendant as the same was returned back to the plaintiff with an endorsement that the addressee was not found. In these circumstances, it cannot be said that the plaintiff has proved readiness and willingness to perform his part of the contract. There is absolutely no other material placed on record to draw an inference that the plaintiff has exhibited his readiness and willingness to perform his part of the contract. In these circumstances, the courts below were justified in refusing to grant the request made by the plaintiff. There is no substance in the appeal. Appeal is dismissed. In the facts and circumstances of the case, there shall be no 8 order as to costs. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa22.93.odt