THE HON’BLE Ms. JUSTICE G. ROHINI Second Appeal No. 689 of 2011 Date: 07.12.2011 R.Vital … Petitioner And Land Mark Farms, Rep., by its Managing Partner, Hyderabad. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI SECOND APPEAL No. 689 of 2011 JUDGMENT : The appellant herein is the defendant in O.S.No.192 of 2005 on the file of the Court of the Senior Civil Judge, Vikarabad, Hyderabad. The respondent herein/plaintiff filed the suit for specific performance of the agreement of sale dated 24.10.1997. The suit was decreed as prayed for by judgment dated 15.07.2008. Against the said judgment and decree, the defendant filed A.S.No.152 of 2008 in the Court of the VI Additional District and Sessions Judge, R.R.District at Vikarabad. By judgment dated 08.04.2011, the appeal was dismissed confirming the judgment and decree of the trial Court dated 15.07.2008. Hence, the present Second Appeal by the defendant. The facts in brief are as under: Under Ex.A.1-agreement of sale, dated 24.10.1997, the defendant agreed to sell an extent of Acs.4.32 guntas of land in Sy.No.62/A of Aziznagar, Moinabad Mandal, R.R. District for a total sale consideration of Rs.6,24,000/-. The plaintiff paid a sum of Rs.1,50,000/- towards part consideration by cheque on the date of the suit agreement itself and subsequently in the year 2000 he paid altogether Rs.2 Lakhs on different dates. The said payments were acknowledged by the defendant under Exs.A-2 & A-3 receipts dated 10.01.2000 and 13.04.2000 respectively. According to the plaintiff, it was mutually agreed to restrict the agreement of sale to the extent of Acs.3.00 only since there was a dispute with regard to the title in respect of the remaining Acs.1.32 guntas. Thus the total sale consideration payable was only Rs.3,90,000/- out of which the plaintiff paid Rs.3,50,000/-. It was pleaded by the plaintiff that the possession of Ac.3-00 of land in respect of which there was no dispute as to the title, was delivered to him under Ex.A-2 receipt dated 13.02.2000. However as the defendant did not come forward to execute the sale deed by receiving the balance sale consideration of Rs.40,000/- within 45 days from the date of last payment i.e., 13.04.2000, the plaintiff got issued Ex.A-4 legal notice dated 28.03.2003. Having received the said notice, the defendant gave Ex.A-5 reply notice dated 07.05.2003 refusing to execute the sale deed and raising all untenable contentions. Hence, the suit for specific performance. The defendant in his written statement though admitted Ex.A-1 agreement and payment of Rs.3,50,000/- towards sale consideration, denied the delivery of possession of the suit land to the plaintiff. The plea that it was mutually agreed to restrict the agreement of sale to an extent of Acs.3-00 was also denied and it was contended that as per Ex.A-1 agreement dated 24.10.1997 four months period was fixed for execution of the sale deed and that the plaintiff failed to make the payment within the time agreed upon. Thus it was contended that the plaintiff himself failed to perform his obligation under the suit agreement. It was further contended that the suit which was filed 9 years after the execution of Ex.A-1 sale deed dated 24.10.1997 was barred by limitation. Basing on the pleadings of the parties, the trial Court settled the following issues for trial: 1. Whether the plaintiff is entitled to the relief of specific performance of agreement of sale dated 24.10.1997? 2. Whether the suit is barred by limitation? 3. To what relief? The Managing Partner of the plaintiff firm got himself examined as P.W.1 and another witness was examined as P.W.2 on behalf of the plaintiff apart from marking Exs.A-1 to A-5 documents to substantiate the suit claim. Though D.Ws.1 and 2 were examined on behalf of the defendant, no documents were marked on his behalf. On appreciation of the oral and documentary evidence, the trial Court recorded a finding that the plaintiff was ready and willing to fulfill his part of the contract by paying the balance consideration and therefore he was entitled to seek specific performance of agreement of sale. The issue No.2 was also answered in favour of the plaintiff holding that the suit was filed within the period of limitation. Thus the suit was decreed as prayed for directing the defendant to execute the registered sale deed in favour of the plaintiff by receiving balance sale consideration of Rs.40,000/- within a period of two months. On re-appreciation of the evidence available on record, the lower appellate Court confirmed the findings recorded by the trial Court and accordingly dismissed the appeal. The judgments and decrees of the Courts below are assailed before this Court by the defendant/appellant herein contending that the findings recorded by both the Courts were not based on the pleadings and evidence available on record. It is contended by the learned counsel for the appellant that in the absence of a specific issue with regard to the delivery of possession, the Courts below ought not to have recorded a finding that the suit was filed within the period of limitation. It is further contended that the suit agreement being an unregistered instrument cannot be relied upon to establish the delivery of possession. I have also heard the learned counsel for the respondent and perused the material available on record. At the outset, it is to be noticed that the execution of Ex.A-1 agreement is not in dispute. The defendant has also admitted the payment of Rs.3,50,000/- by the plaintiff towards the sale consideration under Exs.A-2 & A-3 receipts. A clear finding was recorded by the Courts below that under Ex.A-2 receipt the defendant acknowledged the payment of Rs.1,50,000/- which was already paid on 24.10.1997 as well as Rs.1,00,000/- paid on 10.01.2000. Ex.A-2 also disclosed that the possession of the suit land was delivered to the plaintiff on 10.01.2000 and that the plaintiff agreed to pay the balance sale consideration amount at the time of registration within 45 days. Similarly under Ex.A-3 receipt dated 13.04.2000 while acknowledging the further payments made on 18.03.2000, 16.04.2000 and 13.04.2000, it was reiterated that possession was delivered to the plaintiff on 10.1.2000 and that it was agreed by the plaintiff to pay the final installment of Rs.40,000/- at the time of registration within 45 days. Moreover the defendant while deposing as D.W.1 admitted the receipt of Rs.3,50,000/- towards the sale consideration. He also admitted the execution of Ex.A-2 and Ex.A-3 receipts. In the light of the clear recitals in Exs.A-2 & A-3 coupled with the evidence of P.W.1 and D.W.1, it was rightly found by the Courts below that the parties had mutually agreed to restrict the sale transaction to Ac.3-00 as against Ac.4-32 guntas mentioned under Ex.A-1 agreement and that the possession of Ac.3-00 of land was delivered to the plaintiff on 10.01.2000. The Courts below have also rightly rejected the contention of the defendant that the plaintiff himself failed to perform his part of the contract. It is true that whereas the first payment of Rs.1,50,000/- was made on the date of execution of Ex.A-1 agreement dated 24.10.1997, the rest of the payments were made in the year 2000 i.e., beyond the period of four months specified under Ex.A-1. However the defendant received the said amounts without raising any objection. The said fact itself shows that the parties never intended to make the time as the essence of the contract. Moreover it was not pleaded in the written statement that the time is the essence of the contract. Even in his evidence as D.W.1, the defendant did not say that the time was the essence of the suit contract. Therefore it cannot be said that there was any default on the part of the plaintiff to perform his part of contract. So far as the contention of the defendant that the suit was barred by limitation is concerned, as per Article 54 of the Schedule to the Limitation Act, 1963 the period of limitation of 3 years for specific performance of a contract begins to run from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused. As noticed above, the parties never intended that the time shall be the essence of the contract and therefore the period of limitation commenced only when the defendant refused performance under Ex.A-5 reply notice dated 7.5.2003. Thus the suit which was filed on 22.12.2005 was well within the limitation prescribed and the finding recorded by the Courts below to that effect warrants no interference. Coming to the contention advanced by the learned counsel for the appellant that Ex.A-1 agreement being an unregistered instrument is unenforceable, it is to be noticed that this is a case where the entire sale consideration was not paid to the defendant. As per Ex.A-3 receipt, the balance sale consideration of Rs.40,000/- should be paid at the time of registration within 45 days. The grievance of the plaintiff was that the defendant did not come forward to execute the sale deed by receiving the balance sale consideration in spite of repeated requests made by him. In the facts and circumstances of the case, it is clear that the delivery of possession to the plaintiff did not conclusively extinguish the rights of the defendant in respect of the suit schedule property. Hence Ex.A-1 cannot be held to be unenforceable for want of registration. This Court is also satisfied that the concurrent findings recorded by the Courts below are based on evidence available on record and the conclusions arrived at are in accordance with the settled principles of law. Hence the interference by this Court is not warranted on any ground whatsoever. It is also relevant to note that the matter involves no question of law much less substantial question of law. The law is well-settled that the existence of substantial questions of law is a condition precedent for entertaining the Second Appeal under Section 100 of C.P.C. Since no such substantial question of law could be formulated, this Second Appeal cannot be entertained and accordingly the same is hereby dismissed. No costs. ______________ G. ROHINI, J. Dt. 07.12.2011 Klp/gbs