Kishun Mahli And Ors vs Raj Kumar Mahli And Ors

Heard, Mr. Rohitasya Roy assisted by Mr. Vibhor Mayank, learned counsel appearing for the appellants.

The appellants have preferred this Second Appeal against the judgment dated 30.04.2015 and decree dated 15.05.2015 respectively, passed by learned

Judicial Commissioner-XVII, Ranchi in Title Appeal No.84 of 2005 whereby, learned Appellate Court has dismissed the appeal and confirmed the

judgment dated 15.09.2005 and Decree dated 29.09.2005, passed by learned Additional Munsif-III, Ranchi in Title Suit No.142 of 2002.

Mr. Rohitasya Roy, learned counsel for the appellants submits that Title Suit No.142 of 2002 was filed by the appellants/plaintiffs namely, Kishun

Mahli & Others against the defendants namely, Bodha Mahli & Another and Deputy Commissioner, Ranchi for a decree directing the defendant No.1

to perform the agreement for sale dated 27.01.1992 in respect of the suit property and to execute sale deed and for confirmation of the possession of

appellants/plaintiffs over the suit property and also the cost of the suit. It was further case of the appellants/plaintiffs in the court below that the suit

property described in Schedule ‘A’ to the plaint was belonged to one Akhouri Kailash Bihar Lal who by virtue of a registered sale deed sold the

same to defendant No.1 on 21.11.1987. The defendant No.1 being in need of money offered to sell the suit property for a consideration money of

Rs.32,500/- and the appellants/plaintiffs agreed to purchase the same and written agreement was executed on 27.01.1992. The appellants/plaintiffs

had paid the entire consideration money and the plaintiffs was put in possession over the suit property by defendant/respondent No.1. It was further

case of the appellants/plaintiffs that on various dates such as 06.06.1993, 03.04.1994, 17.09.1994, 07.11.1995, 19.12.1996 and 07.01.1997 had

approached defendant No.1 personally and told him to perform his part of the agreement and transfer the suit property to the appellants/plaintiffs after

obtaining permission from the Deputy Commissioner, but defendant No.1 did not pay any heed to it and did not file any application under Section 46 of

the C.N.T. Act nor did he obtain permission of the Deputy Commissioner to transfer the suit property in favour of appellants/plaintiffs. Thereafter, on

18.09.1998 and again on 22.09.2000 registered post legal notices were sent to the defendant No.1. It was further case of the appellants/plaintiffs that

he is still ready and willing to get the sale deed executed. The defendants/respondents did not appear in the suit as well as in the appeal before the

court below.

Learned counsel for the appellants further submits that the Trial Court as well as the Appellate Court has erred in law by way of envisaging the case

of the appellants/plaintiffs under Article 54 of the Limitation Act. He submits that there is no time prescribed under Article 54 of the Limitation Act

and submits that the cause of action arose when the appellants/plaintiffs had noticed and the performance of agreement was refused. He submits that

the Trial Court as well as the Appellate Court has wrongly applied Article 54 of the Limitation Act.

Learned counsel for the appellants relied upon a decision rendered by the Hon’ble Supreme Court in the case of Saradamani Kandappan v. S.

Rajalakshmi, as reported in (2011) 12 SCC 80. Relevant paragraph No. 23 of the said judgment is quoted herein below:-

“23. The above section deals with the effect of failure to perform at a fixed time, in contracts in which time is essential. The question whether time

is the essence of the contract, with reference to the performance of a contract, what generally may arise for consideration either with reference to the

contract as a whole or with reference to a particular term or condition of the contract which is breached. In a contract relating to sale of immovable

property if time is specified for payment of the sale price but not in regard to the execution of the sale deed, time will become the essence only with

reference to payment of sale price but not in regard to execution of the sale deed. Normally in regard to contracts relating to sale of immovable

properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the

contract or impliedly from the intention of the parties as expressed by the terms of the contract.â€​

After having heard the learned counsel for the appellants and perusing the judgment of the Trial Court as well as the Appellate Court, this Court finds

that the appellants/plaintiffs examined six witnesses and got exhibited documents as Exhibit-1, Exhibit-2 and Exhibit -4 and 4/A. The learned Trial

Court as well as the Appellate Court has come to the findings that admittedly in the present case time was not mentioned in the agreement dated

27.01.1992 and the appellants/plaintiffs were well aware about the refusal from the respondent’s side since 06.06.1993 and thereafter from

various dates on 07.01.1997 and they issued the first notice on 18.09.1998 after lapse of more than one and half years after that they again issued

second notice on 22.09.2000 which show that the appellants/plaintiffs’ conduct regarding the agreement. The Trial Court as well as the Appellate

Court has come to the conclusion that limitation is the prime bound in the agreement to sale and it cannot be ignored except the time given in the

agreement. The conduct of the parties specially the party in favour of whom the agreement is executed and it is required to the parties to take legal

course for execution of the agreement within the stipulated period and in the instant case it is crystal clear from the record that the appellants/plaintiffs

were duty bound to take legal course for the said agreement but he failed to do so. The Trial Court as well as the Appellate Court has also come to

the finding that the agreement to sale was contrary to Section 46 of the C.N.T. Act and the learned appellate court has also come to the findings that

prior to agreement no permission was obtained from the Deputy Commissioner to enter into any agreement or sale on the land of Bodha Mahli who is

the member of the Scheduled Tribe. Thus, in that view of the matter, any agreement is done without the previous sanction of the Deputy

Commissioner is also not executable. This Court further finds that the Trial Court as well as the Appellate Court has entered into the lis and discussed

the evidences and the exhibits and considering the facts that Section 46 of the C.N.T Act, is a condition precedent for transferring any tribal land to

take permission from the Deputy Commissioner which is lacking in this case. The two fact findings Court have already come to a concurrent findings.

There is no substantial questions of law involved in this case. Accordingly, this Second Appeal stands dismissed.