Bhagirath vs Ramesh

Rohit Arya, J.—Heard on the question of admission.

Following question of law is adhered while deciding the instant appeal:-

Whether, the trial Court was justified granting relief of specific performance of agreement dated 25/1/1988 in absence of averments and prayer in that behalf in the plaint?

As the contesting defendant is already served and represented, no notice for final hearing is required to be issued and with the consent of learned counsel for the parties and looking to the nature of dispute involved in the instant case, appeal is heard finally.

This appeal by defendant No. 1/appellant u/s 100 of C.P.C. is directed against the judgment and decree dated 19/12/2005 passed by Second Additional District Judge (Fast Track) Picchore, District Shivpuri in Civil Appeal No. 44-A/2005 modifying the judgment and decree dated 30/11/2004 passed by Civil Judge, Class-II, Picchore in Civil Suit No. 93-A/2004. Plaintiff's suit for declaration and permanent injunction has been partly decreed.

Plaintiff in the plaint had averred inter alia that he is in possession of the suit land ad-measuring 2.85 hectare situated in survey No. 13 of village Nadia Nayakheda (hereinafter referred to as "suit property"). As per plaint averments there was a conditional agreement between plaintiff and defendant No. 1 dated 25/1/1988. According to agreement both parties shall bear expenses for digging the well over the suit land and in the event the dug well turns dry and does not yield water, the defendant No. 1 shall execute a sale deed in favour of plaintiff in respect of the suit land. However, the defendant No. 1 refused to execute the sale deed and threatened the plaintiff of forcible dispossession which led to filing of suit for declaration and permanent injunction.

Defendant No. 1 filed written statement denying the plaint allegations. It is denied that plaintiff dug the well, in fact he left the work halfway after two months by voluntarily terminating the agreement. Thereafter, defendant No. 1 himself got the well dug, which had sufficient water. With these averments, it is contended that since the plaintiff himself has violated conditions of agreement and terminated the same voluntarily, he cannot be permitted to make a claim of title over the suit property over which he claims to be in possession.

On aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. The trial Court decreed the suit to the effect that plaintiff is entitled for execution of sale deed in his favour from defendant No. 1 in respect of 1 hectare of suit property and expenses for the aforesaid purpose shall be incurred by the plaintiff and defendant No. 1 themselves in the ratio of 1/3 and 2/3 respectively.

On appeal, the first appellate Court again re-appreciated the evidence on record and upon perusal of the plaint and nature of grievance, has found that the plaintiff had claimed that he has acquired title over the suit land by virtue of his possession for last 12 years; whereas, the trial Court has passed the decree for specific performance of the alleged agreement dated 25/1/1988, as such the decree as passed was not for the relief claimed in the plaint. There was no relief so claimed for specific performance of the aforesaid agreement. As such the relief granted by the trial Court was in difference with the relief claimed. Hence, the plaintiff was held not entitled for the same. The first appellate Court has also considered the merits of alleged agreement dated 25/1/1988 with reference to the evidence led by the parties and found that the evidence led by the plaintiff suffers from inherent contradictions and even otherwise suit was found to be barred by time, if it is filed for specific performance and as the agreement is dated 25/1/1988, the same ought to have been filed within three years immediately after alleged claim of digging of well which according to PW/1-Ramesh was dug just within a year from the date of execution of agreement i.e. around somewhere in the year 1989; whereas, the suit was filed in the year 2000. On the aforesaid reasonings the first appellate Court has set aside the relief granted by the trial court as regards specific performance of the agreement however; decreed the suit partially.

Having perused the impugned judgments of the Courts below and upon hearing counsel for both the parties, this Court is of the opinion that the trial court could not have granted the relief for specific performance of the agreement dated 25/1/1988 as no such relief was claimed. Instead, the relief claimed was for declaration of title by virtue of possession and agreement dated 25/1/1988, therefore, the first appellate Court was justified in setting aside the judgment and decree passed by the trial Court as regards specific performance of the agreement. Accordingly the question of law is answered in negative. Appeal sans merits is hereby dismissed.