IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTY FIRST DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR APPEAL SUIT No.317 of 2001 BETWEEN G. Ramanamma. …APPELLANT AND Mr. P. Chiranjeevi Rao. …RESPONDENT Counsel for the appellant: Mr. V. Parabrahma Sastry Counsel for the Respondent: Mr. M.V.S. Suresh Kumar The Court made the following: - JUDGMENT: This appeal is by the plaintiff against the dismissal of her suit, for specific performance of agreement of sale dated 09.09.1989, being O.S.No.35 of 1995 by judgment and decree dated 28.09.2000. 2. Since it is a plaintiff’s appeal the parties herein are referred to as they are arrayed in the suit. The material facts are as follows: 3. Under Ex.A1 dated 09.08.1989 the defendant agreed to sell the schedule property, which is approximately 100 gadis, [1 Gadi = 8 sq. yards and thereby the approximate area covered under Ex.A1 agreement is about 800 sq. yards] to the plaintiff at Rs.1,500/- per gadi. The English translation of the original agreement in Telugu, which is certified by both the learned counsel, as correct, is considered during the hearing of this appeal. The essential ingredients of the agreement are as follows. 4. As per the recitals of the said agreement, the said land belonging to the ancestors of the defendant, which is in his absolute possession and enjoyment, was agreed to be sold at Rs.1,500/- per gadi and Rs.20,000/- was received as advance on the date of agreement. The defendant, further, agreed to execute the registered sale deed or sale deeds in favour of plaintiff or any of her nominees on full payment of balance price in two months after getting the land measured at the expenses of the defendant and in presence of the plaintiff, as desired by the plaintiff and the possession shall be handed over to the plaintiff either in a single transaction or more transactions. If the balance amount is not paid in time, the plaintiff was required to pay interest at Rs.1.50 ps. and then obtain the deed or deeds from the defendant. Then on 22.09.1989 the plaintiff made further payment of Rs.22,500/- through Chilakapati Venkayamma and the defendant was requested to execute a registered sale deed in favour of said Venkayamma for 15 gadies. On 05.10.89 the plaintiff made further part payment of Rs.27,000/- through Sri. Perugu Brahmananda Rao whereupon the defendant executed another sale deed covering 18 gadis in favour of Brahmananda Rao. The said payment dated 22.09.1989 is recorded on the reverse of Ex.A1, which is separately endorsed and marked as Ex.A4 and further payment dated 05.10.1989 is separately endorsed and marked as Ex.A5. Thus, as against Rs.94,500/- paid by the plaintiff till the date of plaint, the defendant had executed sale deeds to the extent of 33 gadis and according to the plaintiff, the balance area of 67 gadis remained to be conveyed by the defendant. 5. The plaintiff alleges in the plaint that she demanded the defendant to execute a sale deed with respect to 67 gadis but the defendant evaded. It is alleged that the defendant consented the plaintiff to occupy and use the portion of remaining land stating that at the time of registration measurement will be taken and entire site of 67 gadis as per the agreement will be given possession of. Meanwhile alleging that the plaintiff has encroached on a strip of site on the Southern extreme end of the balance land, the defendant filed O.S.No.43 of 1991 before the District Munsif Court, Ongole against the plaintiff. The plaint in the said suit is marked as Ex.A14 and the said suit was for recovery of possession of a strip of site of about 5’ width on the Southern side. The plaintiff, further, alleged that while making endorsements Exs.A4 and A5 with respect to 33 gadis conveyed thereunder the defendant fraudulently mentioned the extent of the land under the schedule as 77½ gadis and 72½ gadis respectively, taking advantage of the illiteracy and absence of the plaintiff at the time of the endorsements and registration of said sale deeds. The plaintiff alleged that the said endorsements and the reduced area of site from 100 gadis to 77½ gadis and further to 72½ gadis were made by the defendant in Exs.A4 and A5 with a view to reduce the land agreed to be conveyed to the plaintiff. Thereafter, there was exchange of notices between the parties commencing with notice Ex.A6 dated 31.07.1991 issued by the defendant’s counsel to the plaintiff alleging that without paying the balance amount the plaintiff has encroached and trespassed on to the defendant’s site and began constructions whereupon the defendant was constrained to file O.S.No.43 of 1991 and obtain temporary injunction. By the said notice, the plaintiff was called upon to pay for the balance of the site within a week of the receipt of the notice and to stop construction work till the balance is paid and registered sale deed is obtained. 6. The said notice was replied to by the plaintiff under Ex.A7 dated 05.08.1991 stating that the site, which is the subject matter of O.S.No.43 of 1991 is purchased by the plaintiff and she is always ready to pay the balance sale consideration, as she has sufficient money. However, as the defendant did not state as to how much extent is sold and how much is due to pay, the defendant was called upon to state the same to enable the plaintiff to pay the balance amount and obtain a registered sale deed. Under further reply notice Ex.A8 dated 18.03.1992 the defendant alleged that without paying the money, the plaintiff has trespassed and began constructions on the unsold site, which compelled the defendant to file O.S.No.43 of 1991. It was also alleged that this clearly shows the intention of the plaintiff in not coming forward for registration so as to cover up high handed acts of encroachment and the extent of the site is already mentioned in the two registered sale deeds executed for 33 gadies, which is within the knowledge of the plaintiff and as such, the defendant is prepared to execute the registered sale deed for the balance extent including the extent covered by the registered sale deeds, referred to above, after taking due measurements at the time of registration. The plaintiff was, therefore, called upon to pay the balance amount and take registered sale deed within 15 days failing which the agreement would stand cancelled and advance of Rs.20,000/- will be forfeited. This notice was again replied to by the plaintiff under Ex.A9 dated 05.04.1992 mentioning that the plaintiff is ever ready with the balance of sale consideration to obtain registered sale deed but the site is not measured. The plaintiff denied that she is an encroacher and that defendant himself put the plaintiff in possession and the plaintiff constructed a house. The defendant was, therefore, called upon to obtain measurements instead of playing hide and seek and fix the boundaries for the rest of the land leaving the way for same width for the road on the Northern side. 7. After exchange of notices, the plaintiff filed the present suit for specific performance being O.S.No.35 of 1995 on 13.04.1995. The plaint allegations in substance represent the events, as above, and by reiterating that the plaintiff is ever ready and willing to perform her part of the contract and that the defendant is evading to perform his part of the contract even after admitting his liability to execute the sale deed as per the agreement, the present suit for specific performance was filed for balance 67 gadis calling upon the defendant to execute the sale deed for the said balance land by receiving the sale consideration and for possession etc. 8. The said suit was resisted by the defendant. In the written statement, the defendant admitted Ex.A1 agreement and the receipt of the consideration but disputed that the balance remaining land is not as claimed by the plaintiff and stated that the balance land has been correctly noted in the endorsements Exs.A4 and A5 while registering two sale deeds in favour of the nominees of the plaintiff. It was also asserted that at that time the land was measured and the actual extent arrived at as mentioned in Ex.A4, whereas Ex.A1 mentions the approximate extent of 100 gadies. It was asserted that the measurement of the entire site was taken with the consent and in the presence of the plaintiff and accordingly, after excluding the land already registered only to the extent of 33 gadis, the balance of 44½ gadis are left out, which the defendant is always ready to execute a sale deed in respect thereof, but the plaintiff is not coming forward to pay the balance amount. The defendant also alleged that the plaintiff has high-handedly and illegally occupied part of the balance land and started making unauthorized constructions and had encroached all along South to the width of 5’ into the defendant’s site and raised a compound wall of 3’ height, which gave rise to the defendant filing O.S.No.43 of 1991. The defendant, therefore, claimed that the plaintiff is guilty of wrongful encroachment and illegal construction, is a trespasser and suppressing these facts, the suit for specific performance is filed. The defendant also stated that he would file a separate suit for recovery of balance extent of encroached land against the plaintiff. The suit filed by the plaintiff was, therefore, resisted on the ground that it is not maintainable as it lacks material particulars, no cause of action subsists nor the suit is within limitation and the plaintiff is not entitled to specific performance both on facts as well as on law. It was, further, alleged that Ex.A1 agreement stood cancelled and in view of the conduct of the plaintiff, he is liable to pay profits for the unlawful possession of the site of the defendant from 1991 onwards. 9. On the basis of the above pleadings, the trial Court framed the following issues and additional issues: 1. Whether the plaintiff is entitled for specific performance of agreement to the extent of 67 gadis as prayed for? 2. Whether the plaintiff is entitled for delivery of possession of the said 67 gadis of vacant site? 3. To what relief? ADDITIONAL ISSUES: 1. Whether the plaintiff is entitled for the value to the extent of site deficit of 100 gadis as per value as on the date of the decree for the suit? 2. Whether the suit is barred by limitation? 3. To what relief? 10. On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 to A16 were marked while the defendant examined himself as D.W.1 and marked Exs.B1 to B12. While P.W.1 is the plaintiff herself, P.W.2 is the broker in the real estate business at whose instance the transaction in question was entered into and P.W.3 is the purchaser under Ex.A5 endorsement. 11. The trial Court found on issue Nos.1 and 2 that the plaintiff is not entitled to specific performance as prayed for and consequently, not entitled to possession. On additional issue No.1 the plaintiff was found not entitled to the value of the extent of the site deficit of 100 gadis as per the value on the date of the decree and on additional issue No.2 it was held that the suit was barred by limitation. Eventually, the suit was dismissed and the defendant was directed to pay back Rs.45,000/- to the plaintiff within three months. The said judgment and decree is in appeal at the instance of the plaintiff. 12. Sri V. Parabrahma Sastry, learned counsel for the appellant/plaintiff has made elaborate submissions contending as follows: (a) The finding of the trial Court that the suit is barred by limitation is incorrect and contrary to second part of Article 54 of the Limitation Act, 1963 (for short ‘the Act’). He submits that the limitation for suit would commence from the event fixed under Ex.A1 agreement and a harmonious reading of Ex.A1 would show that the said event is with reference to measurement of the site in the presence of the plaintiff and also fixation of boundaries. Since the defendant has never done that, the event has not occurred for the purpose of commencement of limitation and as such, there is no question of suit being barred by limitation. (b) He also submitted that Ex.A1 agreement was partly performed and the performance continued when the defendant executed two sale deeds referable to endorsements Exs.A4 and A5, which include delivering possession of the property to the said purchasers. Thus, the contract having specifically and partly performed on both sides in respect of the part of the property, the possession of the plaintiff is perfected under Section 53-A of the Transfer of Property Act. He also submitted that the action of the defendant in unilaterally canceling the agreement is neither legal nor sustainable and particularly, when part of the property is registered and price fully recovered and the plaintiff has built a house on the part of the property with the consent of the defendant. To reinforce his contention, he has relied upon a decision of the Supreme Court in S. BRAHMANAND v. K. R. MUTHUGOPAL[1] that the expression ‘date’ used in first part of Article 54 of the Act is not suggestive of any calendar date but is referable to an event ascertainable with reference to the contract between the parties and the limitation period begins to run from such date. He also cited a decision of the Supreme Court in RAMZAN v. SMT. HUSSAINI[2] for the same proposition, as above, apart from another decision of the Supreme Court in SHRIMANT SHAMRAO SURYAVANSHI v. PRALHAD BHAIROBA SURVYAVANSHI[3] for the proposition that the transferee, who obtained possession of the property in part performance of the contract can continue in possession irrespective of period of limitation by virtue of Section 53-A of Transfer of Property Act. He also relied upon another decision of the Supreme Court in SMT. SARASWATHAMMA v. H. SHARAD SHRIKHANDE[4] for the proposition that date fixed for performance under first part of Article 54 of the Act has to be understood in the context and the mutual obligation and agreement between the parties. (c) Learned counsel has drawn attention of the Court to the oral and documentary evidence on record, particularly, the exchange of notices and contended that even as per Ex.A8 notice of the defendant, the defendant himself had called upon the plaintiff to obtain a registered sale deed for the balance extent of land after taking due measurements at the time of registration. He, therefore, submits that even on 18.03.1992 when the said notice was issued, the defendant was aware that measurement of the site having not been taken but would be taken at the time of registration. He has contented that Ex.A1 mentions the approximate extent and in order to enable the plaintiff to seek registration with respect to balance extent, the measurement of the site in the presence of the plaintiff had to be taken as without the measurement the plaintiff cannot be expected to know the balance extent available and the payment he had to make with respect thereto on the basis of the rate agreed to under Ex.A1. It is for that reason that the plaintiff had specifically called upon the defendant under Ex.A7 notice dated 05.08.1991 requiring the defendant to inform the plaintiff, as to how much balance is due and how much extent is now to be sold. He submits that throughout the plaintiff has expressly stated that he is ever ready and willing to take the balance extent of land and shown readiness and willingness to pay for the balance 67 gadis and suit is also for the balance extent of 100 gadis agreed to be sold, after excluding 33 gadis already conveyed by the defendant. Learned counsel, therefore, states that the trial Court had not appreciated that the primary obligation of the defendant was to have measurement of the land taken and based upon different extents mentioned by the defendant in Exs.A4 and A5 claiming to be the balance left over land, it is evident that the plaintiff himself is not sure of the balance extent available, the plaintiff cannot be expected to perform his part of the contract and consequently, the breach of contract is on the part of the defendant rather than that of the plaintiff as understood by the trial Court. (d) He also relied upon the oral evidence and consistent stand of the plaintiff as P.W.1 that at no point of time the measurement was taken by the defendant with respect to the land covered under Ex.A1. However, P.W.1 denied that she was neither present at the time of endorsements Exs.A4 and A5 nor she was present when the measurements were said to have been taken. He pointed out that P.W.1 is an illiterate lady and in her absence if the defendant has made endorsements mentioning the extent of the balance land, the plaintiff is not bound by the said endorsements. In support of the said evidence, he relied upon the evidence of P.W.2, broker, who categorically stated that no measurement took place at the time of agreement Ex.A1 and further statement of the said witness is that at the time of Exs.A4 and A5 only site covered viz. 15 gadis and 18 gadis was measured and plaintiff was not present at the time of payment under Ex.A4. P.W.3, who is purchaser under Ex.A5, also stated in his evidence that the plaintiff did not come to registration office when the site of 18 gadis was registered and that his site, which he purchased, alone was measured. He stated in his cross- examination that at the time of measurement of his 18 gadis, the property was assessed as 72½ gadis. The cross-examination of the defendant as D.W.1 is also relied upon that for the first time he got the suit property measured was on 22.09.1989 and by that time, the property sold under Exs.A4, A5 and A1 was under his possession. He was unable to say as to who measured the property at the time of selling the portions of Exs.A4 and A5. Learned counsel, therefore, submitted that there is no evidence of measurement of site at any point of time in the presence of the plaintiff and consequently, the extent of balance land mentioned by the defendant in Exs.A4 and A5 cannot bind the plaintiff, as evidently, only the lands covered under Exs.A4 and A5 were measured and boundaries were fixed without measuring the balance extent. He, therefore, submits that the finding reached by the trial Court are contrary to the said evidence and the trial Court has misread the legal notice issued by the plaintiff where it is specifically asserted that the plaintiff is always ready and willing. He, further, submits that the capacity of the plaintiff to pay the balance amount was never doubted and he submits that the cause of action arose only when the defendant deposed as P.W.1 in O.S.No.43 of 1991 that he would only execute the sale deed for the balance extent of about 45½ gadis. 13. Per contra, the learned counsel for the respondent contends that the plaintiff is guilty of suppression of material facts, has made allegations of fraud against the defendant and failed to substantiate the same, has made false claim of delivery of possession by the defendant so far as the balance land is concerned and is clearly a trespasser and guilty of encroachment on the defendant’s land without authority. He submits that in the plaint in O.S.No.43 of 1991 marked as Ex.A14 itself the defendant had mentioned the extent available at the site but the plaintiff has slept over the matter without approaching the Court in time. His notice Ex.A6 dated 31.07.1991 is five months after Ex.A14 plaint dated 13.02.1991 and the very conduct of the plaintiff coupled with the unsubstantiated pleas raised by the plaintiff in the suit show that she is not entitled to the equitable relief of specific performance. 14. On the question of limitation, the learned counsel submits that the plaintiff has failed to establish the ingredients of first part of Article 54 of the Act inasmuch as Ex.A1 itself fixes two months period for completion of transaction and even otherwise, though Ex.A1 is dated 09.08.1989, the present suit came to be filed only on 13.04.1995. Learned counsel contends that even though the defendant had given notice Ex.A8 dated 18.03.1992 calling upon the plaintiff to pay the balance amount and obtain a registered sale deed within 15 days failing which the agreement will stand cancelled and advance forfeited, the plaintiff has not approached the Court even within three years thereafter. According to the learned counsel, the period of limitation, therefore, starts from the performance fixed under Ex.A1 itself and has relied upon the decisions of the Supreme Court in MANJUNATH ANANDAPPA v. TAMMANASA[5] and H.P. PYAREJAN v. DASAPPA[6]. He, further, submits that to the aforesaid notice of defendant under Ex.A8, the plaintiff gave reply under Ex.A9 dated 05.04.1992 but thereafter did not approach the Court up to 13.04.1995, which is completely unexplained delay and in fact, is beyond the period of limitation. 15. Alternatively, the learned counsel states that even if second part of Article 54 of the Act applies, the suit is clearly barred by limitation. Learned counsel relied upon the finding of the trial Court with respect to the aspect of limitation and the aspect of plaintiff’s readiness and willingness and further submits that the conduct of the plaintiff disentitles the plaintiff from claiming equitable relief of specific performance and discretion under Section 20 was rightly not exercised by the trial Court in his favour. He, therefore, submits that this Court in appeal would not interfere with the said discretion exercised by the trial Court. 16. The points that arise for consideration in this appeal are as follows: 1. Whether the finding of the trial Court on additional issue No.2 that the suit is barred by limitation is sustainable? 2. Whether the defendant has committed breach of contract as pleaded by the plaintiff? 3. Whether the finding of the trial Court in declining to exercise discretion in favour of the plaintiff under Section 20 of the Specific Relief Act is justified? 17. Both the learned counsel have made submissions overlapping all these aspects citing decisions supporting each of the points. The finding of facts with reference to the decisions by them is discussed as under. 18. A suit for specific performance is governed by Article 54 of the Limitation Act, which as follows: Description of suits Period of Limitation Time from which period begin to run 54. For specific performance of a contract Three years The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused. In a given case if the parties stipulate a date for performance first part of Article 54 of the Act would apply and if no date is fixed, the refusal of the defendant to perform would give rise to cause of action and second part of Article 54 of the Act would apply. In a case falling under second part of Article 54, the plaintiff will have to establish that he had notice of refusal of such performance within three years of the suit. In the present case, the suit has been filed on 13.04.1995. If fist part of Article 54 of the Act applies, the plaintiff has to establish that he is well within 3 years of the date fixed for performance and if second part of Article 54 of the Act applies then the plaintiff will have to establish that he had notice of refusal to perform, which is within three years of the suit. 19. Learned counsel for the appellant/plaintiff contended that the present suit is governed by first part of