APPEAL FROM ORIGINAL DECREE No.760 OF 1989 --- Against the Judgment and decree dated 20.7.1989 passed by Sri Asarfi Sah, the learned Subordinate Judge-IX,Chapra, in Title Suit No.177 of 1985. --- Rakesh Kumar & others--------Defendants-Appellants. Versus Ashok Kumar Sharma & another-------Plaintiffs-Respondents. --- For the appellants:Sri Shashi Shekhar Dwivedi,Sr.Advocate. For the respondents:Sri Jyotindra Pratap Singh, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T Mungeshwar Sahoo,J. This first appeal has been filed by the defendants- appellants against the Judgment and decree dated 20.7.1989 passed by Sri Asarfi Sah, the learned 9th Subordinate Judge, Chapra, in Title Suit No.177 of 1985 whereby the learned Subordinate Judge decreed the plaintiffs- respondents’ suit for specific performance of contract dated 8.11.1979 (Ext.1). 2. The plaintiff-respondent, Ashok Sharma filed the aforesaid suit for specific performance of the contract as contained in Ext.1 dated 8.11.1979 alleging that he was known to the husband of defendant no.1, late Zamir Hassan. Earlier plaintiff had purchased lands from Zamir Hassan. Defendants no.2 to 8 are the sons and daughters of Zamir Hassan. Late Zamir Hassan had agreed to sell 2 katha of land including 2 rooms and a veramda to the plaintiff on 8.11.1979 for Rs.16,000/-. Out of total consideration of Rs.16,000/- 2 Rs.3000/- was paid and the agreement was executed with condition that the remaining consideration of Rs.13,000/- shall be paid within three years and then Zamir Hassan shall execute the sale deed. The defendant second parties were present at the time of negotiation about sale of the disputed land as they were tenant on the disputed land. 3. The further case is that recently the defendant second party asserted that they had purchased the disputed land. Therefore, they have been made party in the suit. 4. The further case of the plaintiff is that after execution of Ext.1 Zamir Hassan fell in need of money and, therefore, he sold 2 katha 3 dhur of land for Rs.16,000/- on 17.11.1979 in favour of the plaintiff and his brother, Yugal Kishore Sharma. During the said sale Zamir Hassan requested the plaintiff to pay the full consideration amount of the sale deed and to pay the balance consideration of agreement later on. Subsequently plaintiff tendered the balance consideration of Rs.13,000/- but Zamir Hassan avoided. Thereafter Zamir Hassan died and, therefore, his widow and children have been made party in the suit. The plaintiff further asserted that he was ready and willing to pay the remaining balance consideration of Rs.13,000/- and is still ready to pay the same. 5. Three sets of written statement have been filed. The defendants no.1 to 8 filed a contesting written statement. The defendant no.9 filed separate contesting written statement. The defendant no.10 who is the wife of defendant no.9 filed written statement adopting the written statement of her husband, defendant 3 no.9. 6. According to defendants no.1 to 8 no doubt Zamir Hassan had executed the agreement dated 8.11.1979 for 2 katha land but on the request of plaintiff, Late Zamir Hassan, agreed to execute sale deed with respect to 2 katha 3 dhur land and accordingly the plaintiff got executed 1 katha ½ dhur in the name of his brother, Yugal Kishore towards east from the sale deed of 1978 and adjacent south 1 katha 2 ½ dhur in his own name on 17.11.1979. The plaintiff assured Late Zamir Hassan that the agreement, i.e., Mahadanama is now not effective and kept the same with him. The suit land as described in the plaint is non-existent. The further case of these defendants is that Zamir Hassan had already sold the Mahadama land with some more land in favour of plaintiff and his brother on 17.11.1979. It is further alleged that it is beyond imagination that the defendant will execute another sale deed to the same person when agreement to sell is pending between the same persons. On these allegations the defendants prayed for dismissal of the suit. 7. The defendant no.9, Sudama Pathak, besides taking various legal pleas mainly contended that the suit is barred by limitation and that the alleged mahadanama is forged and fabricated. Late Zamir Hassan never contracted to sell disputed land and never executed the mahadanama after receiving Rs.3000/- from the plaintiff. The defendant second parties were never present at the time of negotiation of alleged mahadanama. The defendant no.10 is bonafide purchaser of the disputed land as such the mahadanama is not binding 4 on her. She purchased 1 katha land on 20.7.1984 for Rs.14,500/-. Her name is mutated and is paying rent to the State of Bihar. The defendant no.10 filed written statement adopting the written statement of defendant no.9. 8. On the basis of all these pleadings of the parties the learned court below framed as many as five issues. Issue no.3 is as follows: “ Is the suit barred by limitation ?” Issue no.4 is as follows: “Is the Mahadanama dated 8.11.1979 is valid, genuine and for consideration and whether the contract to this Mahadanama has been performed by Zamir Hassan vide 2 sale deeds dated 17.11.1979 ?” 9. While deciding Issue no.4 the learned court below after considering the evidence available on record came to the conclusion that the land sold by Zamir Hasan by Ext 2/B and 2/C does not comprise the land of Ext.1, i.e., Mahadanama. Zamir Hassan had sold another piece of land by Ext. 2/B and 2/C and not the land of Ext.1. The learned court below also found that defendants no.9 and 10 had the knowledge of Mahadanama, Ext.1. Therefore, Ext.1 is binding on them. While deciding Issue No.3, i.e., regarding limitation the learned court below found that the limitation will not apply against defendant no.10. 10. The learned Senior Counsel appearing for the appellants submitted that the suit itself is barred by limitation according to Article 54 of the Limitation Act. This point was raised but the learned court below has not at all considered. According to the learned counsel the last date fixed for performance of contract 5 dated 8.11.1979 was 7.11.1982 and, therefore, the last date for filing suit for specific performance was 6.11.1985 but the suit had been filed on 20.11.1985. Therefore, the suit is barred by 14 days. The learned counsel further submitted that according to section 3 of the Limitation Act it is the duty of the court to dismiss the suit, if it is time barred even if no defence is raised by the defendant. 11. The learned counsel further submitted that even if it is held that the suit is not barred then also the suit will be barred as against defendant no.10, Kunti Devi who has been added as defendant no.10 under Order 1 rule 10 C. P.C. by order dated 6.3.1988. The learned counsel further submitted that the knowledge of husband cannot be said to be the knowledge of wife and there is no pleading regarding knowledge of Kunti Devi. The learned counsel further submitted that the learned court below has wrongly found that the lands of Ext.1 has not been sold by Exts.2/B and 2/C. According to the learned counsel 3 dhur land was added in the sale deeds, Exts.2/B and 2/C and, therefore, there is slight difference in the boundary as mentioned in the sale deed and the boundary as mentioned in Ext.1, the Mahadanama. 12. The learned counsel further submitted that in the Mahadanama advanced payment of Rs.3000/- was made, In Exts.2/B and 2/C, i.e., registered sale deeds dated 17.11.1979 Rs.1500/- each was adjusted and the remaining Rs. 13,000/- was paid which was the balance consideration amount as mentioned in Ext.1. Therefore, the lands as described in Ext.1 has been sold by the 2 registered sale 6 deeds wherein 3 dhur more land was added. But the learned court below has wrongly given a different finding. On these grounds the learned counsel prayed that the impugned judgment and decree are liable to be set aside. 13. On the other hand, the learned counsel appearing for the respondents submitted that the description of land as mentioned in Ext.1 is different than the descriptions of land as mentioned in detail in Exts.2/B and 2/C and, therefore, the learned trial court has rightly found that the lands as mentioned in Ext.1 had not been sold by the two registered sale deeds, Exts.2/B and 2/C. The learned counsel further supported the impugned judgment and decree and submitted that the appeal is liable to be dismissed. So far limitation is concerned the learned counsel submitted that because of Durga Pooja holidays the court was closed and, therefore, on the opening day which was the last day for filing the suit, i.e. 20.11.1985 the suit had been filed and, therefore, it is not barred by law of limitation. The learned counsel next submitted that according to section 19 of the Specific Relief Act the specific performance of contract can be enforced against subsequent transferee if it is proved that the subsequent transferee purchased the land having knowledge about the prior agreement to sell and, therefore, limitation will not apply against the transferee and the learned court below has rightly held that the limitation will not apply against the subsequent transferee who had the knowledge about the prior agreement . On these grounds the learned counsel submitted that the first appeal is liable to be dismissed. 7 14. In view of the above contentions of the parties the following points arise for consideration:- (i) Whether the agreement to sell dated 8.11.1979 (Ext.1) has been performed and pursuant to that agreement the sale deeds dated 17.11.1979 (Exts.2/B and 2/C) have been executed? (ii) Whether the suit is barred by law of limitation against the original defendants and also against subsequently added defendant no.10, Kunti Devi? FINDINGS 15. Point No.I: According to the plaintiff Zamir Hassan was known to him from beforer. Earlier also he and his brother have purchased lands from Zamir Hassan in 1978. When Zamir Hassan fell in need of money for the performance of marriage of his son and daughter he contacted the plaintiff and negotiated for selling his land. Accordingly an agreement to sell was executed on 8.11.1979 (Ext.1) wherein alleged Zamir Hassan agreed to sell 2 katha land including 2 rooms and a veramda to the plaintiff for a consideration of Rs.16,000/-. At the time of agreement Rs.3000/- was paid in advance. The balance consideration of Rs.13,000/- was to be paid within next three years. The further case is that after this agreement to sell Zamir Hassan again fell in need of money and sold 2 katha 3 dhur land in favour of the plaintiff and Yugal Kishore Sharma on 17.11.1979 by 2 registered sale deeds, Exts. 2/B and 2/C. At the time of registration Late Zamir Hassan told the plaintiff to pay the consideration of the 8 registered land and to pay the balance consideration of agreement to sell subsequently. On the other hand, according to defendant no.9 Late Zamir Hassan never agreed to sell the lands covered under Ext.1. Ext.1 is forged and fabricated and that they had no knowledge about the alleged agreement. According to defendants no.1 to 8, i.e. the legal heirs of Late Zamir Hassan the Execution of Ext.1 is admitted but their main contention is that the lands of Ext.1 have been sold by Exts.2/B and 2/C to the plaintiffs and his brother and, therefore, Ext.1 has been fully performed. 16. The parties have adduced oral as well as documentary evidence in support of their contentions. P.W.6, Devendra Kumar, is scribe of Ext.1 and Exts.2/B and 2/C. He has stated that he scribed Ext.1 on behalf of Zamir Hassan. Zamir Hassan took Rs.3000/- at the time of execution of the agreement. He has also stated that Zamir Hassan has executed and registered 2 sale deeds on 17.11.1979, one in favour of plaintiff and the other in the name of Yugal Kishore, the plaintiff’s brother. In his evidence he has clearly stated that the lands of Mahadanama are different than the lands of the sale deed. He has denied that the lands are same and that lands of Ext.1 have been sold by two registered sale deeds. In his crosexamination he has also stated that the boundary of the Mahadanama land was told by Zamir Hassan. He has also stated that the boundary of the lands in Ext.1 are different than the boundary of the lands of Exts. 2/B and 2/C. 17. P.W.7, Ram Das Sharma, has stated that in his presence Zamir Hassan had negotiated to sell lands including 2 rooms 9 and one veramda. In his crosexamination he has stated that at the time of negotiation Sudama Pathak was also present and the negotiation took place on the veramda of the disputed land at 8 A.M. P.W. 8 is Ashok Sharma, the plaintiff himself. He has fully supported the case as made out in the plaint in his evidence. According to him at the time of negotiation Sudama Pathak was present and Sudama Pathak and his wife, Kunti Devi, had the knowledge about the Mahadanama (agreement) since beginning. Within the periods prescribed he was ready to pay the consideration and got the sale deed executed but Zamir Hassan did not perform his part of the contract. In spite of the knowledge Sudama Pathak got the sale deed executed in the name of his wife. It appears that suggestion has been given to this witnesses that Kunti Devi has been made unnecessary party in the suit to which he has denied. At paragraph no.8 of his crosexamination he has stated that 5 – 6 times he had offered the balance consideration amount. 18. P.W.9, Yugal Kishore Sharma, is brother of the plaintiff. He has also stated that negotiation took place regarding 2 katha including 2 rooms and one veramda for Rs.16,000/- and Rs.3000/- was paid in advance. He has further stated that he had gone with Ashok Sharma, the plaintiff two times to pay the balance consideration amount but Zamir Hassan avoided. He has clearly stated that at the time of negotiation the defendant no.9, Sudama Pathak, and his wife Smt. Kunti Devi were also present. He has also stated that after this agreement to sell he had purchased 1 katha 2 ½ dhur from Zamir Hassan and his brother, i.e., the plaintiff had purchased 1 10 katha ½ dhur from the said plot. In the crosexamination he has also stated that in 1978 he had purchased 2 katha 3 dhur from Zamir Hassan in the same plot. He has also described the boundary of the land mentioned in Ext.1. 19. According to the oral evidence of the plaintiff, i.e. the scribe of the agreement to sell and the sale deeds and the plaintiff and his brother they have fully supported the plaintiff’s case as made out in the plaint. It appears that according to the evidence the plaintiff and his brother have purchased lands from Zamir Hassan in the same plot prior to the agreement and, therefore, are very much conversant with the physical feature of the disputed plot. All of them have clearly stated that the lands of Ext.1 is different and the lands of Exts. 2/B and 2/C are different. According to the evidence of P.Ws.8 and 9 defendants no.9 and 10 had the knowledge about the negotiation and agreement to sell. Further they were present at the time of negotiation to sell the suit land to the plaintiff. Now let us consider the documentary evidences. 20. Ext.1 is the unregistered Mahadanama dated 8.11.1979. Exts.2 and 2/A are the registered sale deeds in favour of the plaintiff and his brother of the year 1978. Exts.2/B and 2/C are the registered sale deeds dated 17.11.1979 in favour of the plaintiff and his brother, Yugal Kishore Sharma, executed by Zamir Hassan regarding 2 katha 3 dhur, 1 katha ½ dhur in favour of one and 1 katha 2 ½ in favour of another. Ext.3 is the licence of Fair Price Shop in the name of Sudama Pathak. These documents have been filed to show 11 that in disputed land in the room he was running a fair price shop. Ext.4 is the Voter list which has been filed to show that Sudama Pathak resides in Ward No.11 of Chapra Municipality. These documents have been filed by the plaintiff to prove his case that prior to Mahadanama he was well known to Late Zamir Hassan. Prior to agreement to sell he and his brother had purchased the lands from Zamir Hassan. The agreement to sell was executed regarding 2 katha lands including two rooms and one Veramda and that in that disputed land and room Sudama Pathak was running a fair price shop. 21. On the contrary the defendants have also adduced oral evidence and documentary evidence. D.W.1 is Zulphikar Ahmad, son of Late Zamir Hassan. He has admitted the execution of Ext.1. But according to him at the time of execution of Ext.1 there was no room and veramda on the Mahadanama land and it was not agreed that rooms and veramda were also to be sold. He has stated that two rooms and veramda along with description of lands as south east have been added later on in the Mahadanama. It may be mentioned here that so far this part of the evidence of this witness is concerned it is against Ext.1. From perusal of Ext.1 it appears that it is clearly mentioned that 2 katha land including rooms and veramda were agreed to be sold which is in the south east of the main plot. There is no pleading in the W.S. regarding this subsequent addition and interpolation in the Mahadanama. Therefore, this part of his evidence cannot be relied upon. Rest of the evidence is according to the pleading in the W.S. In the crosexamination he has stated that the 12 boundary of the lands as mentioned in the sale deeds of the plaintiff and his brother, i.e., Exts.2/B and 2/C are correct and he has also admitted that there is no mention about the Mahadanama, Ext.1 in the sale deeds. 22. D.W.2, Mansur Ali has stated that the Mahadanama was converted to sale deeds with 3 dhur more land on the request of the plaintiff. In the Mahadanama there was no mention about rooms and veramda and east south. He has also stated that Zamir Hassan had not agreed to sell rooms and veramda. As stated above there is no pleading to the effect that there was no mention of rooms and veramda and south east in the Mahadanama and more over this evidence is contrary to Ext.1 which is admitted by the defendants no.1 to 8. 23. D.W.3, Ramswaroop is Taid who has nothing to do with the execution of Mahadanama or the sale deeds. He has only stated that Rs.1200/- was paid more to Zamir Hassan for 3dhurs excess land. D.W.4, Sarwanand Singh is the witness in the sale deed of Kunti Devi. D.W.7 is Sudama Pathak, defendant no.9.He has stated that Kunti Devi is his wife and he does pairvi in the case. Kunti Devi does not come to court because she is suffering from Chhya rog. He has further stated that Zamir Hassan had sold the land in the name of the wife of this witness in his presence for Rs.14,500/-. Now Kunti Devi is in possession of the land. The purchased land of Kunti Devi is not concerned with the disputed land. This is the only evidence in the examination – in – chief of this witness. He has not denied about the 13 knowledge of agreement to sell, Ext.1. He has not stated about the knowledge of Ext.1 by his wife also. It may be mentioned here that the wife of defendant no.9, i.e. Kunti Devi who is defendant no.10 has not been examined to say that she had also no knowledge about the agreement to sell, Ext.1. The other witnesses are formal in nature. 24. Ext.A series are the rent receipts in the name of Kunti Devi. Ext.B is the sale deed dated 20.7.1984 in favour of Kunti Devi and Ext.C is the survey of disputed plot. 25. As discussed above according to the plaintiff Ext.1 has not been performed and according to defendants no.1 to 8 Ext.1 has been performed and pursuant to Ext.1 the sale deeds, Exts.2/B and 2/C have been executed. From perusal of the boundaries as mentioned in detail it appears that the boundaries as mentioned in Ext.1 is totally different than that mentioned in the two sale deeds. Further the lands described in Ext.1 i.e. 2 katha is out of plot no.64 measuring 9 katha 19 dhurs towards east and south with rooms and veramda whereas the lands transferred under Exts.2/B and 2/C are towards north and east of 9 katha 19 dhur plot. Therefore, the description of the land is also different. In Ext.1 the land is towards east and south of the plot whereas in Exts. 2/B and 2/C the land is in east and north of the plot. 26. The further glaring fact is that although the sale deeds were executed within 9 days of the agreement to sell there is no mention about the agreement in the two sale deeds. There is no mention about the adjustment of Rs.3000/- paid in advance at the time 14 of execution of Ext.1. From perusal of Exts.2/B and 2/C it appears that it is mentioned that Rs.1500/- in each sale deed had been received from the respective purchasers, i.e., from the plaintiff and his brother earlier. It is not mentioned that Rs.3000/- was paid by the plaintiff. Further Ext.1 is the agreement between the plaintiff and Zamir Hassan. The plaintiff’s brother , Yugal Kishore Sharma is not party to the agreement whereas the sale deeds are in the name of the plaintiff and the plaintiff’s brother. It further appears that by Ext.1 only 2 katha land including rooms and veramda were agreed to be sold whereas by Ext.2/B and 2/C only lands were sold measuring 2 katha and 3 dhur. There is no mention in the sale deeds that pursuant to Ext.1 the lands are sold and on the request of the plaintiff 3 dhurs land is added. Therefore, the evidence contrary to registered sale deed cannot be relied upon. 27. From the above evidences oral as well as documentary evidences it appears that the boundary of the land in Ext.1 is different than the boundary mentioned in Exts.2/B and 2/C. Ext.1 is in between Zamir Hassan and Ashok Sharma alone whereas Exts.2/B and 2/C are in favour of the plaintiff and his brother. Ext.1 is regarding 2 katha lands with rooms and veramda whereas Exts.2/B and 2/C are regarding 2 katha 3 dhur land only. There is no mention about the payment of excess money regarding 3 dhur more land.Accorrding to the defendants the land is valuable land and is valued at Rs.2,00000/- at present, i.e., at the time of filing suit. Then it is not believable without excess payment of agreed consideration 3 15 dhur more land would have been transferred only on the request of the plaintiff. 28. In view of the above discussion I find that Ext.1 was never performed by the defendants. The lands sold by Exts.2/B and 2/C are different land and not the agreed lands, therefore, the Exts.2/B and 2/C are not executed pursuant to Ext.1. The findings on these points of the learned court below is, therefore, confirmed. Point no.1 is answered in favour of the plaintiffs-respondents. 29. Point No.2:- The contentions of the appellant is that the suit is barred by law of limitation. According to the learned counsel the last date for filing suit was 6.11.1985 whereas the suit had filed on 20.11.1985. On the contrary according to the learned counsel for the respondents there was Pooja holidays and, therefore, the opening , i.e., 20.11.1985 was the last date for filing the suit. From perusal