Regular Second Appeal No.1425 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1425 of 2008 (O&M) Date of Decision: July 10, 2009 Sanjay Singhla ...........Appellant Versus Suresh Chand and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sandeep Panwar,Advocate for the Appellant. Mr.Sumeet Mahajan, Senior Advocate with Mr.Sham Lal Bhalla, Advocate for the respondents ** Sabina, J. Plaintiffs filed a suit for specific performance and agreement to sell dated 12.2.1975 and in alternative for declaration that the plaintiffs have acquired ownership rights in the suit property and consequential relief of permanent injunction restraining the defendants from alienating the suit property. The Additional Civil Judge, Senior Division, Faridabad decreed the suit of the plaintiffs vide judgment and decree dated 25.9.2006 . Aggrieved by the same, defendants preferred an appeal. The said appeal was dismissed by the Additional District Judge Fast Track Court, Faridabad vide judgment and decree dated 11.3.2008. Hence, the present appeal. The case of the parties, as noticed by the learned Additional District Judge in paras 2 and 3 of its judgment reads as under:- “ 2. Brief facts of the present case are that Sh. Om Parkash defendant No.1 entered into an agreement to sell the suit property Regular Second Appeal No.1425 of 2008 (O&M) 2 as mentioned in detail in para no.3 of the plaint on 12.2.1975. The whole consideration of Rs.25,500/- was paid and Sh.Bishamber Dayal was already in possession of the suit property. The suit property is situated in ward No.5, Brahman Wara, Ballabgarh measuring 34' x 46' shown in red colour in the site plan marked ABCD which is bounded as under:- East: Plot of Sh.Bishamber Dayal now belonging to plaintiff. West: Common Gali 6 with the plaintiff. North: House of Sh.Jai Parkash South: Rasta Sare Aam It was settled in the agreement that plaintiff and his LRs can get the sale deed registered in their name or in the name of their nominees. There was no time limit to get the sale deed executed or to file the suit for specific performance of the agreement. Plaintiffs have always been ready and willing to perform their part of agreement and to get the sale deed executed and registered. They got the site plans sanctioned from Municipal Committee, Ballabgarh in 1976, 1980 and 1998. The property was assessed to house tax being paid by plaintiffs who also raised the construction in the form of boundary wall up to DPC and a chowkidar room. Plaintiff issued notice dated 15.12.1997 to get the sale deed executed but in vain. Plaintiff being aggrieved filed the present suit. 3.Defendant contested the suit and filed the written statement through their Mukhtiar and further raised the preliminary objections qua limitation, cause of action, jurisdiction etc. It is Regular Second Appeal No.1425 of 2008 (O&M) 3 inter alia pleaded that plaintiff has given wrong measurement and boundaries of the plot in question which is bounded as under: On the East: Rasta On the west : Gali 6 feet belonging to Jai Parkash and defendant. On the North: House of Jai Parkash On the South:Gali Sare-Aam. He has further pleaded that plaintiff no.1 is not the General Power of Attorney holder of plaintiffs no.2 to 8 and nor empowered/authorized to file the present suit on their behalf. The alleged agreement and receipt are forged and fabricated and cannot be relied upon. He has further denied that the possession of the alleged property was delivered by the defendant to the said deceased Bishamber Dayal. It is pleaded that plaintiff with an ulterior motive and in league of some Officials of MCF have manipulated the story of the house tax whereas in the record of the Municipal Corporation, Faridabad there is a mention of vacant plot. Other pleas of the plaint were controverted and dismissal of the suit prayed for.” On the pleadings of the parties, the following issues were framed :- “1. Whether the defendant executed agreement dated 12.2.1975 in favour of Bhishmaber, the predecessor in interest of plaintiff?OPP 2. Whether the entire sale consideration of Rs.25,500/- was paid at the time of agreement?OPP 3. Whether the plaintiffs have been ready and willing to perform Regular Second Appeal No.1425 of 2008 (O&M) 4 their part of contract?OPP 4. If the above issues are not proved whether the plaintiffs have become owners of the suit property by way of adverse possession?OPP 5. Whether the suit is barred by limitation? 6. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?OPD 7. Whether the property has not been properly described in the plaint. If so to what effect?OPD 8. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves to be dismissed. Plaintiffs had filed a suit for specific performance of agreement to sell dated 12.2.1975. The case of the plaintiffs is that the entire sale consideration was paid to the vendor- Bishamber Dayal at the time of execution of agreement to sell and possession of the suit property was already with the plaintiffs. Plaintiffs issued notice to the vendor to execute the sale deed on 15.12.1997 but the vendor did not comply with his part of the contract. It has also been pleaded that the plaintiffs were always ready and willing to perform their part of the contract. In order to prove the due execution of the agreement to sell, plaintiff Suresh Chand himself appeared in the witness box and also examined Omkar, attesting witness of the agreement to sell. Omkar is none else but the real brother of the vendor. To further substantiate his case, plaintiff also examined Somnath Aggarwal, Handwriting and finger prints expert to corroborate his plea that the agreement to sell in question was duly signed by the vendor. In these Regular Second Appeal No.1425 of 2008 (O&M) 5 circumstances, the Courts below, after appreciating the evidence led by the plaintiffs in proof of the execution of the agreement to sell, rightly held that the plaintiffs had been successful in proving execution of the agreement to sell. Plaintiffs, in order to prove their possession, also proved on record the house tax receipts and the entries in the house tax register by examining the concerned Clerk as PW5. In order to prove his readiness and willingness to perform his part of the contract, plaintiffs had issued notice to the defendants to execute the sale deed. However, defendant Bishamber Dayal failed to do so. Moreover, plaintiffs had already paid the entire sale consideration and were not required to do anything more at the time of execution of the sale deed. Agreement to sell in question was executed on 12.2.1975. A perusal of the same reveals that the total sale consideration of Rs.25,500/- was received by the vendor Om Parkash and nothing remained due. It is also mentioned in the agreement to sell that the purchaser was already in possession of the property. Since no date was fixed for execution of the sale deed in the agreement to sell, the suit of the plaintiffs could not be said to be time barred. The limitation would start running from the date when the plaintiffs had notice that the specific performance is refused. It has been held by the Apex Court in Gunwantbhai Mulchand Shah and Others vs. Anton Elis Farel and Others 2006(2) RCR (Civil) 251 as under:- “11.The question as to how long a plaintiff, even if he had performed the whole of his obligations under an agreement for sale, in which a time for performance is not fixed, could keep Regular Second Appeal No.1425 of 2008 (O&M) 6 alive his right to specific performance and to come to court after 29 years seeking to enforce the agreement, may have also to be considered by the court especially in the context of the fact that the relief of specific performance is discretionary and is governed by the relevant provisions of the Specific Relief Act. But again, these questions cannot be decided as preliminary issues and they are not questions on the basis of which the suit could be dismissed as barred by limitation. The question of limitation has to be decided only on the basis of Article 54 of the Limitation Act and when the case is not covered by the first limb of that Article, normally, the question of limitation could be dealt with only after evidence is taken and not as a preliminary issue unless, of course, it is admitted in the plaint that the plaintiffs had notice that performance was refused by the defendants and it is seen that the plaintiffs approached the court beyond three years of the date of notice. Such is not the case here. 12.Section 27 of the Limitation act provides for extinguishment of right to property only at the determination of the period limited by the Limitation Act for instituting a suit for possession. Section 3 of the Limitation Act provides that subject to Section 4 to 24 of the Act every suit instituted after the period prescribed therefore in the Limitation Act shall be dismissed. When the suit is for specific performance of an agreement for sale and we conduct a search in the Limitation Act in the context of Section 3 of the Act, we are obviously confronted only with Article 54 of the Schedule to the Limitation Act. We have already dealt with the scope of Regular Second Appeal No.1425 of 2008 (O&M) 7 Article 54 and indicated that in this case it would be the second limb of the Article that would apply and consequently the suit could not be held to be barred by limitation, having been filed three years after the agreement for sale or the date for performance fixed in the agreement of sale. We have also noticed that the plaintiffs have pleaded that they are in possession of the suit property and since it is not a suit for possession as such, the applicability of Section 27 of the Limitation Act also may not arise. It is,therefore, a case where in the context of Article 54 of the Limitation Act, the question had to be decided on the pleadings and evidence to be adduced by the parties on the aspect of the second limb of Article 54 of the Limitation Act.” In the present case, the entire sale consideration had already been paid by the plaintiffs and they were in possession of the suit property and they filed a suit for specific performance when the vendor had refused to execute the sale deed. In these circumstances, the Courts below had rightly held that the suit of the plaintiffs was not time barred and had rightly decreed the suit of the plaintiffs as they have been successful in proving due execution of the agreement to sell and their readiness and willingness to perform their part of the contract. No substantial question of law arises in this regular second appeal. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 10, 2009 Regular Second Appeal No.1425 of 2008 (O&M) 8 arya Regular Second Appeal No.1425 of 2008 (O&M) 9