Sita Ram vs Om Parkash

L.N. Mittal, J.

CM No. 635-C of 2012:

Allowed as prayed for.

Main Appeal:

Plaintiff Sita Ram, having failed in both the courts below, has filed the instant second appeal. Plaintiff-appellant filed suit against defendant-respondent Om Parkash for specific performance of the agreement to sell dated 20.02.2005 and in the alternative, for recovery of Rs. 44,400/- as compensation for breach of contract.

Plaintiffs case is that the defendant, along with his two brothers and two sisters, agreed to sell 02 bighas 13 biswas land to the plaintiff @ Rs. 450/- per square yard. The plaintiff paid Rs. 1,50,000/- to the prospective vendors at the time of execution of agreement and further paid Rs. 72,000/- on 29.05.2005. Sale deed was agreed to be executed on 30.11.2005. The aforesaid land was under mortgage with the Bank. The prospective vendors had to redeem the said mortgage before execution of the sale deed. Vendors failed to redeem the mortgage. Accordingly, on their request, date for execution of sale deed was extended up to 30.12.2005. Defendant''s one brother and both sisters, on 21.12.2005, executed sale deed of their share in favour of Smt. Sudesh Kumari, as desired by the plaintiff, pursuant to the impugned agreement. However, defendant and his brother Balwan Singh failed to execute the sale deed of their share. The instant suit is regarding share of defendant only. The plaintiff alleged that he had always been ready and willing to perform his part of the contract, but defendant failed to perform his part of the contract, necessitating the filing of the suit.

The defendant denied the plaint allegations broadly. He denied having executed impugned agreement. It was alleged that if the agreement is found to have been signed by him, his signatures were obtained thereon by fraud and misrepresentation. Only defendant''s brothers and sisters wanted to sell their land and defendant was asked to sign the papers for smooth execution of the sale deed by his brothers and sisters. It was also alleged that suit is barred by limitation. Various other pleas were also raised.

Learned Civil Judge (Senior Division), Sonepat, vide judgment and decree dated 09.02.2011, dismissed the plaintiffs suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Sonepat, vide judgment and decree dated 13.10.2011. Feeling aggrieved, plaintiff has filed the instant second appeal.

I have heard counsel for the appellant and perused the case file.

Suit of the plaintiff has been dismissed as time barred. Counsel for the plaintiff-appellant contended that the suit was within limitation because the defendant failed to redeem the mortgage of the suit land of his share. It was also contended that before filing of the suit, the defendant orally denied the execution of the agreement and thereupon, cause of action arose in favour of the plaintiff and computed accordingly, the suit is within limitation.

I have carefully considered the aforesaid contentions, but the same are completely unacceptable.

It is plaintiffs own case that sale deed was to be executed on 30.11.2005 extended up to 30.12.2005. Thus, there was specific date stipulated for execution of the sale deed. Consequently, cause of action arose when the defendant failed to execute the sale deed on the said stipulated date in terms of the agreement. The cause of action thus arose on 30.12.2005, according to plaintiff''s own version. The suit was, however, filed on 02.03.2009 i.e. after expiry of more than three years from the accrual of cause of action. The suit is thus clearly barred by limitation. The limitation period would not have commenced from the date of redemption because there was specific date stipulated for execution of the sale deed. Non-redemption of the mortgage was also part of the breach of the agreement, for which plaintiff could seek specific performance. Moreover, if cause of action were to accrue from the date of redemption of mortgage, then no cause of action had accrued to the plaintiff when he filed the suit because even by then, defendant had not redeemed the mortgage of his share.

The other contention that before filing of the suit, defendant denied the execution of the agreement and thereupon, cause of action arose, is in contradiction to the pleadings of the plaintiff himself in the plaint. Perusal of the plaint, as shown by the counsel for the plaintiff-appellant, reveals that the plaintiff nowhere pleaded in the plaint that before filing of the suit, the defendant, at any stage, denied execution of the impugned agreement. On the contrary, it was pleaded that the defendant kept on putting off the execution of the sale deed in terms of the agreement. This plea would mean that the defendant was admitting the execution of the agreement, but was putting off the execution of the sale deed in terms thereof. Not only this, the plaintiff also pleaded in the plaint that the defendant claimed to have forfeited the earnest money paid by the plaintiff. This plea would also depict that the defendant admitted the execution of the agreement and claimed forfeiture of the earnest money in terms thereof and the defendant never denied the execution of the agreement before filing of the suit. From the aforesaid, it becomes crystal clear that the cause of action to file the instant suit, as per plaintiffs own version, arose on 30.12.2005 - the extended date stipulated for execution of the sale deed, whereas the suit was filed on 02.03.2009 i.e. after expiry of limitation period of three years. The suit has, therefore, been rightly held to be barred by limitation by both the courts below. Concurrent finding recorded by both the courts below to this effect does not suffer from any infirmity, much less perversity or illegality so as to call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. In fact, even no question of fact has arisen for adjudication and as per own pleadings of the plaintiff-appellant himself, the suit is barred by limitation. Accordingly, the instant second appeal is found to be meritless and is, therefore, dismissed in limine.