1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL SECOND APPEAL NO.218/2013 Smt.
Radha Devi versus Lekh Ram & ORS.Date of Judgment :: 24th July, 2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.R.S.Choudhary, for the appellant.
Mr.Suresh Shrimali, for the respondents.
---- BY THE COURT: This second appeal under Section 100 CPC is directed against judgment and decree dated 19.11.2013 passed by Additional District Judge No.2, Nohar, District Hanumangarh, whereby, the appeal preferred by the appellant against the judgment and decree dated 09.05.2006 passed by Civil Judge (Junior Division).Rawatsar, District Hanumangarh was upheld.
The facts in brief may be noticed thus: the appellant- plaintiff filed a suit for specific performance of contract dated 10.08.1990 on 14.08.2003 with the averments that defendant Lekh Ram for fulfilling family requirements required money and, therefore, after receiving a sum of Rs.25,000/- in cash from the plaintiff executed agreement dated 10.08.1990 and handed over the same to the plaintiff and in part performance of the agreement handed over the possession of the land to her; after taking possession, the plaintiff got the land surrounded by barbed wire and constructed a room; the plaintiff has been 2 ready and willing to get the sale deed executed in her favour; after the restriction was removed on 23.12.1992 the plaintiff requested the defendant to obtain sanad and get the sale deed registered; the defendant avoided obtaining sanad and after some time refused to do so; the plaintiff is entitled to decree for specific performance; the defendant was bent upon transferring the land to somebody else and is threatening to dispossess the plaintiff; ultimately, a decree for specific performance was sought.
A written statement was filed by the defendant and execution of the agreement was denied; it was also denied that possession of the land was handed over to the plaintiff after receiving a sum of Rs.25,000/-; other averments made in the plaint were also denied.
In additional plea, it was claimed that plaintiff's husband Gajanand had a partnership business with one Bagaram; both of them proposed to the defendant to use the land for setting up a colony and that they would get commission and for the purpose of showing the land an agreement would be required and, therefore, a fake agreement was executed, no agreement for sale of land was entered into, no consideration was received and no possession was handed over; it was claimed that besides the above, on account of waterlogging the scheme did not materialise and the document was not admissible for deficient stamp duty; the civil court had no jurisdiction to hear the matter and prayed that the suit be dismissed.
The trial court framed seven issues and after oral and 3 documentary evidence led by the parties came to the conclusion that defendant Lekh Ram received consideration of Rs.25,000/- on 10.08.1990 and plaintiff has proved that the disputed agreement was executed between the parties; possession of the suit property was handed over to the plaintiff in part performance of the agreement; the court fees paid was sufficient and as the agreement was impounded and stamp duty alongwith penalty has already been deposited, the agreement was admissible in evidence; the plaintiff has failed to prove that she was ready and willing to get the sale deed executed and the suit was barred by limitation; the trial court also came to the conclusion that as at the relevant time the sale of fragment was prohibited under the provisions of Section 42(a) of the Rajasthan Tenancy Act, 1955 ('the Tenancy Act').despite the fact that the prohibition came to an end on account of deletion of the provision, it cannot be said that the agreement was valid and, therefore, the suit was not maintainable and, consequently, dismissed the suit.
Feeling aggrieved, the appellant filed fiRs.appeal under Section 96 CPC.
The fiRs.appellate court after hearing the parties maintained the dismissal of the suit on coming to the conclusion that the appellant cannot be said to be ready and willing to perform her part of the contract and the suit was barred by limitation.
Learned counsel for the appellant submitted that both the courts below fell in error in dismissing the suit/appeal filed by 4 the appellant and the findings recorded by the courts below on the issues of readiness and willingness, limitation and validity of the agreement are ex facie incorrect, against the evidence available on record and the settled position of law and, therefore, the appeal involves substance question of law and deserves to be admitted.
Reliance was placed on Ahmmadsahab Abdul Milla v.
Bibijan & ORS.: 2009 DNJ (SC) 379, T.
Mohan v.
Kannammal & Anr.
: 2002 WLC (SC) CIVIL305 Nathulal v.
Phoolchand : AIR1970SC546 Learned counsel for the respondents supported the judgments of both the courts below and submitted that the courts below after thoroughly examining the evidence available on record has come to a conclusion that the appellant was not ready and willing to perform her part of the contract, the suit was barred by limitation and the agreement for sale of fragment was not enforcible and, as such, the findings do not give rise to any substantial question of law and the appeal deserves to be dismissed.
Reliance was placed on Meram Pocham & Anr.v.The Agent to the State Government, (Collector).District Adilabad & ORS.: AIR1978Andhra Pradesh 242, Govind Murari v.
State : 1972 RLW266 Sita Ram v.
Kunj Lal : AIR1963Allahabad 206 and M/s Raptakos Brett and Co.PVT.Ltd.v.M/s Modi Business Centre (Pvt.) LTD.: AIR2006Madras 236.
I have considered the rival submissions and have perused the judgments of both the courts below alongwith records of 5 both the courts below.
The facts as found by both the courts below are that the parties entered into an agreement for sale of 10 Biswa land for a sum of Rs.25,000/- and an agreement dated 10.08.1990 was executed between the parties, consideration was paid and the possession of the land was handed over to the plaintiff; the term of the contract provided that after receiving the permission from the Government for sale of the fragment, as envisaged by provisions of Section 42(a) of the Tenancy Act, and after the land was recorded as Khatedari, the sale deed was to be registered; this has also come on record that the restriction on sale of fragment as envisaged under the provisions of Section 42(a) of the Tenancy Act came to be abolished by way of amendment in the Tenancy Act, whereby, Section 42(a) was deleted w.e.f.08.11.1992 and the other restrictions relating to recording of Khatedari also stood abolished w.e.f.22.04.1991, however, the present suit was filed by the plaintiff on 14.08.2003.
In the cross-examination of the plaintiff when a question was put to her in the context of her being ready and her willingness, she admitted that the land was sub-merged after about 6-7 years of the agreement and she cannot say if at that point of time she was ready to pay the registration charges and get the sale deed registered and, therefore, it is apparent that despite end of restrictions in the years 1991 and 1992 respectively, on account of fact that the land got sub-merged, the appellant was not ready and willing to get the sale deed 6 registered.
The finding on this aspect recorded by both the courts below is essentially finding of fact, which cannot be said to be perveRs.and, as such, the same does not give rise to any substantial question of law.
Admittedly, the agreement provided for registration of sale deed on seeking permission under Section 42(a) of the Tenancy Act and on getting the Khatedari rights in the land and, therefore, the said requirement was terminus qua for the purpose of limitation under Article 54 of the Limitation Act, 1963 ('the Limitation Act').Admittedly, both the requirements stood abolished w.e.f.22.04.1991 and 08.11.1992 and, therefore, in the facts and circumstances of the case, the suit which was filed in the year 2003 was ex facie barred by limitation.
The findings recorded by both the courts below in this regard also cannot be said to be incorrect.
So far as the judgments cited by learned counsel for the appellant are concerned, the judgment in the case of Ahmmadsahab Abdul Milla (supra).whereby, the Hon'ble Supreme Court observed that when the date is fixed and when the plaintiff has notice that performance is refused, both refer to definite dates and the same has to be established with reference to materials and evidence to be brought on record.
In the present case also the refusal to perform as envisaged by Article 54 of the Limitation Act can be traced to the point of time when the restrictions stood abolished.
The judgment in the case of T.
Mohan (supra) the finding 7 of ready and willingness was arrived at by the courts below and Hon'ble Supreme Court while affirming the finding come to the conclusion that no exception can be taken to the finding of the High Court that the plaintiff duly fulfilled the requirement of law of readiness and willingness to perform her part of the contract, the said judgment has no application to the present case as the findings in the present case are against the plaintiff on account her own statement as noticed hereinbefore.
The judgment in the case of Nathulal (supra) has apparently no applicability to the present case.
So far as findings of both the courts below regarding the agreement being unenforcible on account of same being in contravention of provisions of Section 42(a) of the Tenancy Act as is stood on the date of agreement is concerned, the said findings apparently cannot be supported, inasmuch as, the third proviso to the Sub-section (a) clearly provided for exemption from the restriction by the State Government or any authority or officer empowered by the State Government in this behalf and the agreement clearly envisaged seeking of permission under the said provision and, therefore, it cannot be said that the agreement was contrary to the provisions of Section 42(a) of the Tenancy Act.
In that view of the matter, the judgments cited by learned counsel for the respondents in the case of Sita Ram (supra).Govind Murari (supra) and M/s Raptakos Brett (supra) have no applicability.
However, in view of the fact that the finding on issues 8 pertaining to readiness and willingness and limitation does not give rise to any substantial question of law.
The issue regarding enforceability is rendered academic.
In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed.
No costs.
(ARUN BHANSALI).J.
A.K.Chouhan/-