S.S. Shinde, J.
1. The present second appeal is filed by the appellant challenging the final judgment and order delivered by the Additional District Judge, Nashik in Civil Appeal No. 326 of 1995 who allowed the appeal of the respondent arising out of the judgment and order passed by the IXth Joint Civil Judge, Nasik dismissing the suit being Regular Civil Suit No. 900 of 1981 filed by the respondent.
2. The present appellant is the original defendant and the respondent is the original plaintiff in Regular Civil Suit No. 900 of 1981. For the sake of convenience, I am referring the parties as plaintiff and defendant.
Factual Matrix
3. The facts giving rise to this second appeal are as under:
The original plaintiff filed a civil suit for specific performance of a contract dated 19th January, 1966. The case of the plaintiff is that the suit property is an agriculture land of village Samangaon of Gat No. 177 admeasuring 1 Hectare 99 R. The suit land is owned by the defendant. The defendant agreed to sell the suit property to the plaintiff for a consideration of Rs. 2,500/- and entered into an agreement dated 19th January, 1966. The defendant accepted Rs. 1,100/- towards the earnest money. It is the further case of the plaintiff that on the same day the defendant handed over the possession of the suit land to the plaintiff and since then the suit property is in actual possession of the plaintiff and the plaintiff is cultivating the same.
4. The plaintiff averred that in the said agreement between the plaintiff and defendant, there was a condition that after obtaining the necessary permission for sale, the defendant will execute the sale deed of the suit land and the remaining balance amount will be paid at the time of execution of the sale deed. It is further pleaded by the plaintiff that the defendant had received the balance amount from time to time from the plaintiff, but did not comply with the condition laid down in the said agreement. The defendant did not obtain the necessary permission for sale of the suit land. The plaintiff met the defendant on several occasions and asked to fulfil the condition of execution of sale as laid down in the said agreement. But the defendant did not comply with the same.
5. Lastly, the plaintiff issued one registered notice dated 27th August, 1981 and asked the defendant to execute the sale deed as per the agreement. The defendant received the said notice and replied it on 14th September, 1981 and refused to execute the sale deed of the suit property. Hence the plaintiff filed the aforesaid civil suit for specific performance of contract dated 19th January, 1966.
6. The suit summons were served upon the defendant. But the defendant neither appeared before the Court nor filed her written statement. Hence the suit was proceeded against the defendant without written statement vide order dated 9th August, 1982.
7. On the basis of aforesaid pleadings of the plaintiff, the lower Court framed the following points for its determination:
(1) Whether the plaintiff proves that an agreement dated 19th January, 1966 is binding upon the defendant ?
(2) Whether the plaintiff proves that he has paid full consideration to the defendant as claimed?
(3) Whether the suit is within limitation?
(4) Is the plaintiff entitled for execution of sale deed of the suit property as claimed?
(5) Whether statutory permission is obtained as sought?
(6) What order and decree?
The learned trial Judge recorded his findings for the Points Nos. 1, 2, 3, 4, 5 in the negative and ultimately dismissed the suit of the plaintiff.
8. While dealing with the claim of the plaintiff, the lower Court had taken into consideration the testimony of the plaintiff at Exhibit 10 and the affidavit filed by him at Exhibit 8 in support of his claim. The plaintiff has produced 7/12 extracts in respect of the suit land at Exhibits 12 and 13. He has also produced agreement between him and the defendant at Exhibit 11. The plaintiff has also produced the copy of the notice and its acknowledgment from the defendant at Exhibits 14 and 15 respectively. The lower Court observed that the suit is proceeded without written statement, and the testimony of the plaintiff has gone unchallenged. While dealing with point No. 2, the learned trial Judge, on the basis of evidence of the witness, came to the conclusion that the plaintiff had paid Rs. 1,100/- to the defendant towards the earnest money at the time of agreement Exhibit 11. The learned trial judge recorded that the agreement Exhibit 11 shows that it is done between deceased Walu Dhokane and the plaintiff and the agreement (Exhibit 11) itself is an acknowledgment of acceptance of Rs. 1,100/- towards the earnest money by Walu Dhokane. The learned trial Judge has held that so far as the balance amount is concerned, though the plaintiff has stated in his deposition that the balance amount is paid to the defendant, there is no evidence placed on record to show that the balance amount is paid to the defendant except the bare words of the plaintiff. No other independent witness has been examined by the plaintiff to corroborate his contention that the balance amount was paid by him to the defendant.
9. On the basis of aforesaid evidence, the learned trial Judge came to the conclusion that the plaintiff has miserably failed to prove his case that he has paid full amount to the defendant and held that the plaintiff is in arrears of past amount of Rs. 1,400/- out of the total consideration and accordingly recorded findings in respect of Issue No. 2.
10. While recording the findings on the Issue Nos. 1, 3 and 5, the learned trial Judge observed that in agreement (Exhibit 11), there is no mention why the permission is sought for execution of the sale deed from the Revenue Authority. It is further observed that Exhibits 12 and 13, the Revenue Record of the suit land i.e. copies of the 7 x 12 extracts, disclosed that in the column of remark it is mentioned in the said 7 x 12 extracts that this transaction is contrary to the provisions of Agriculture Land Fragmentation Act and hence, these entries clearly show that there is prohibition on sale of the suit property. Therefore, the learned trial Judge came to the conclusion that the claim of the plaintiff is contrary to law and, therefore, the agreement dated 19th January, 1966 is not a valid contract and, hence the suit for specific performance is not maintainable in the eyes of law.
11. On the point of limitation, the learned trial Judge held that the husband of the defendant Walu Rama Dhokane died after the period of two years from the date of agreement dated 19th January, 1966 and, hence the plaintiff ought to have brought the present suit against the legal heirs of the defendant within the period of three years from the date of agreement dated 19th January, 1966 i.e. up to 18th January, 1969 or the plaintiff has to extend the time to institute the suit against the defendant. The learned trial Judge observed that no delay has been explained in this suit and, hence the suit is barred by law of limitation.
12. While concluding Point Nos. 1, 3 and 5, the learned trial Judge held that the agreement dated 19th January, 1966 between the plaintiff and the husband of the defendant deceased Walu is not binding upon the present defendant.
13. So far as Point No. 4 is concerned, the learned trial Judge discussed about Exhibits 12 and 13 i.e. the revenue record in respect of the suit land. Exhibit 12 is the 7 x 12 extract which shows that the plaintiff is the owner of the suit property in the year 1981. However, Exhibit 13, which is also the 7/12 extract, shows that defendant Bakubai is the owner of the suit property in the year 1985-86, 1986-87 and onwards and the name of the plaintiff is deleted from the said record. It has been observed by the learned trial Judge that the plaintiff has not properly explained about the entries in Exhibits 12 and 13.
14. In para 12 of his judgment, the learned trial Judge has discussed about agreement (Exh.11) dated 19th January, 1966. It has been observed by the learned trial Judge that no any document in respect of the suit property was produced by the plaintiff to ascertain that the transaction is actually done for the same property. It is further observed that the entries in Exhibits 12 and 13 are not disclosed the identity of the deceased Walu. Therefore, the learned trial Judge held that the claim of the plaintiff is not maintainable in the eyes of law.
15. It is further observed by the trial Judge that since 1966 the suit property is in actual possession of the plaintiff; the plaintiff has instituted the present suit in the year 1981 i.e. after lapse of 15 years and the plaintiff is willing to perform the part of the contract. The agreement (Exhibit 11) clearly shows that after obtaining the necessary permission from the revenue authority, the sale deed will be executed. However, there is no any document produced on record by the plaintiff to show that the revenue authority has granted permission to execute the sale deed. Therefore the trial Court come to the conclusion that the plaintiffs claim is not maintainable and recorded the findings of Point No. 4 in the negative i.e. against the plaintiff.
16. The trial Court held that the suit filed by the plaintiff is barred by law of limitation and the transaction is contrary to the Prevention of Agriculture Land Fragmentation Act. It is further held by the trial Court that the transaction dated 19th January, 1966 is not between the plaintiff and the present defendant Bakubai and the suit property was not in the name of deceased Walu at the time of agreement and, therefore, the plaintiff is not entitled to claim for the specific performance of contract dated 19th January, 1966 against the defendant. Ultimately the trial Court dismissed the suit of the plaintiff.
17. The plaintiff preferred an appeal being Civil Appeal No. 326 of 1995 before the Additional District Judge, Nasik, at Nasik against the judgment and order of the lower Court dated 14th February, 1992 passed in Regular Civil Suit No. 900 of 1981. On the basis of the pleadings of the plaintiff, the Lower Appellate Court framed the following points for its determination.
(1) Whether the suit is barred by limitation? No.(2) Whether the plaintiff is entitled for specific performance of contract? Yes.(3) What Order? Appeal is allowed.
18. So far as point of limitation is concerned, the lower Appellate Court has recorded the findings in favour of the plaintiff on the basis of the evidence of P.W.1 Bhagatsing. P.W.1 has deposed that the husband of the defendant Walu had executed an agreement to sale on 19th January, 1966. It bears signature of Walu Rama Dhokane. The agreement is proved and marked at Exhibit 11 in evidence, as the testimony of P.W.1 has gone unchallenged. The lower Appellate Court has taken into consideration the provisions of Article 54 of the Limitation Act. Under Article 54 the period of limitation for specific performance of contract is three years from the date fixed for performance. It is observed by the lower Appellate Court that in the present case no such specific date has been fixed for performance of the contract. The sale deed was to be executed within one month from the date of necessary permission and the limitation of three, years thereby commences after one month after obtaining necessary permission. Considering the later part of the Article 54, it is observed by the lower Appellate Court that the period of three years would run when the plaintiff has noticed that the performance is refused. It is, therefore, held by the lower Appellate Court that three years cannot be counted for expiry of limitation from the date of execution of agreement as per the finding of the trial Court and as such the trial Court erred in appreciating the provisions of Article 54 of the Limitation Act. In para 15 of its judgment, the lower Appellate Court observed that in the present case sale deed was agreed to be execution within one month from the date of necessary permission but no such permission was obtained by either of the party. Therefore, limitation cannot be said to begin unless permission is obtained. It is further observed that the plaintiff was put in possession of the land and it is not the case of the defendant that they have called the purchaser and the plaintiff refused to perform his part of the contract. It is further held that mere lapse of three years from the date of agreement does not put an end to the contract as is adjudicated by the lower Court. Placing reliance upon the undisputed facts the lower Appellate Court came to the conclusion that the suit is well within limitation and decided the point in favour of the plaintiff.
19. The lower Appellate Court scrutinised the evidence of P.W.1 Bhagwansingh. He has deposed that sum of Rs. 1,100/- was paid to the vendor at the time of agreement to sale, vendor received the balance consideration amount from time to time and, hence entire consideration was thereby paid. On the basis of aforesaid evidence, the lower Appellate Court came to the conclusion that the plaintiff has paid the entire consideration amount and nothing was remained to be performed. It is also observed by the lower Appellate Court that as the plaintiff was put in possession of the suit land in pursuance of the agreement to sale and the vendor did not repudiate the contract, as per ordinary rule, the specific performance should have been granted to the plaintiff. On the point of delay, the lower Appellate Court observed that even though there is delay of 14 years in filing the suit, the specific performance cannot be refused on the ground of delay. So far as prior permission is concerned, the lower Appellate Court has taken into consideration the statement made by the advocate for the plaintiff before it to the effect that no permission is required with effect from May, 1980. The advocate for the defendant did not dispute the said statement. Therefore, the lower Appellate Court found that there is no legal bar for execution of the sale deed, though such permission was required under Fragmentation Act. The lower Appellate Court further observed that there is neither documentary evidence nor is there any submission that besides the defendant, any more legal representatives are there. The lower Appellate Court therefore held that the defendant is the only legal representative of deceased Vendor Walu and refused to accept the submission of the defendant that the suit is bad in law for want of necessary party. Ultimately the lower Appellate Court allowed the appeal filed by plaintiff and set aside the judgment and order passed by the trial Court.
Submissions of the parties.
20. The learned Counsel appearing for the appellant/defendant contended that the alleged agreement of sale is executed on 19th January, 1966 and the suit is filed by the plaintiff on 19th November, 1981. Therefore, there is a delay of more than 15 years in filing the suit. He pointed out that Article 54 of the Limitation Act provides three years period for seeking specific performance of contract. He submitted that no explanation is given by the plaintiff either in the plaint or in his deposition regarding the delay caused in filing the suit. He, therefore, vehemently argued that since the suit is filed in the year 1981, it is hopelessly time barred. He drew my attention to the Section 31AB of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act by Amending Act 41 of 1977 and submitted that the said amending Act came into effect on 29th August, 1977 with retrospective effect in respect of transaction of sale after 15th November, 1965. According to him, as per the said amendment at least from 29th August, 1977 no permission was required. He, therefore, contended that the permission, which was required to be taken as per the agreement for sale Exhibit 11, was not necessary. He submitted that taking into account the recital of the agreement Exhibit 11 that the sale deed was to be executed within a period of one month of the permission, the suit for specific performance ought to have been filed on or before 29th September, 1980 and hence, the suit, which is filed on 19th November, 1981 is barred by limitation under Article 54 of the Limitation Act. He also submitted that the period of limitation for filing suit for specific performance will commence or start after expiry of period of one month from the date of execution of agreement at Exhibit 11 on 19th January, 1966 i.e. 19th February, 1966. He further contended that the suit of the plaintiff is bad for nonjoinder of necessary party. The suit was filed only against the widow of defendant Walu. No effort were made by the plaintiff to ascertain the legal heirs of deceased Valu. According to him, since Valu expired somewhere in the year 1968, on his death his legal heirs will succeed the suit land under the Hindu Succession Act. He, therefore, contended that the suit filed against only one heir excluding other heirs ought to have been dismissed by the lower Appellate Court. He drew my attention to Section 46 of the Contract Act which provides that the performance must be made within reasonable time. He, therefore, submitted that a suit filed for specific performance after a lapse of 15 years cannot be said to have been filed in reasonable time. He, therefore, submitted that this appeal is required to be allowed.
21. The learned Counsel Mr. Sathaye, appearing for appellant Nos. 2 to 6 submitted that these appellant Nos. 2 to 6 are the legal heirs of late B.J. Mulchandani and were added as party appellants by an order of this Court passed on 7th January, 2008 in Civil Application No. 219 of 2007. He also submitted that there is no conflict of interest amongst the appellants inter-say. He contended that appellant No. 2 and late Mr. B.J. Mulchandani purchased the suit property by a registered Sale Deed dated 4-12-1997 for a consideration of Rs. 2,40,000/-from appellant Nos. 1, 1A and 1B and neither they were aware nor informed about the existence of the present litigation. He further contended that these appellants are the bona fide purchasers of the suit property from appellant Nos. 1, 1A and 1B. He pointed out that they executed the sale deed on 4-12-1997 and the suit was already dismissed on 14-2-1992. Hence, according to him, there was no constraint/bar on the appellant Nos. 1, 1A and IB from selling the suit property. He submitted that appellant No. 2 and late B.J. Mulchandani were put in actual and physical possession of the suit property and their names were entered in 7 x 12 extract of the suit property. He further submitted that after the death of said B.J. Mulchandani, the names of these appellants are entered as heirs in owner and possession column of 7 x 12 extract of the suit property and from 4-2-1997 till today these appellants are in actual, physical and cultivating possession of the suit property. He submitted that the suit, which is filed by the original plaintiff, for specific performance of agreement of sale dated 19-1-1966, is filed after more than 15 years and the same is barred by law of limitation ex-facie. He lastly submitted that if this second appeal is dismissed, they will suffer great and irreparable loss. He therefore prayed that this second appeal may be allowed.
22. The learned Counsel appearing for the respondent/plaintiff did not appear in the matter, however, on next day she sought permission to file written submissions. The permission to file written submissions was granted in the interest of justice. It was stated in the written submissions that though the suit summons served upon the appellant/defendant, she neither remain present in the Court nor filed her written statement and, therefore, the pleadings and contentions of the respondent/plaintiff in the suit went unchallenged. He contended that there was a condition that after obtaining the necessary permission for sale, the sale deed was to be executed by the appellant and the remaining balance amount was to be paid on the same. He submitted that the balance amount was paid by the respondent/plaintiff from time to time to the appellant/defendant, but the appellant/defendant did not comply with the said condition. Therefore, the respondent/plaintiff was constrained to file the suit for specific performance. He further submitted that as there was no specific denial or challenge to the averments made by the respondent/plaintiff from the appellant/defendant, the same are deemed to be admitted by the appellant. He, therefore, contended that the trial Court ought to have treated the said unchallenged averments as admissions of the appellant and should have granted decree in favour of the respondent/plaintiff. But the trial Court wrongly came to the conclusion that the suit is barred by law of limitation and it is contrary to the provisions of the Fragmentation Act. So far as point of limitation is concerned, the learned advocate appearing for the respondent/plaintiff drew my attention to the findings recorded by the lower Appellate Court wherein it has been held that the provisions of Section 54 of the Limitation Act are not applicable to the present case as the agreement did not mention any specific date for performance. He further submitted that the question of limitation is a mixed question of law. But since the defendant chose to remain absent and did not file her written statement to challenge the averments of the plaintiff, the lower Appellate Court has perfectly justified in deciding the said point in favour of the plaintiff. According to him, the period of limitation cannot be said to run unless the vendor repudiates the contract. He, therefore, submitted that if the respondent was put in actual and physical possession of the suit land by the appellant, who has not repudiated the contract, no limitation begins to run for enforcement of the contract and hence the lower Appellate Court has rightly held that the suit is well within limitation. He further submitted that the lower Appellate Court has rightly interpreted the provisions of Section 54 of the Limitation Act and has rightly concluded that the suit is not barred by period of limitation. He also submitted that if there is nothing remained to be performed by the respondent/plaintiff, the question of readiness and willingness does not arise at all. He therefore prayed that the present second appeal is devoid of any merits and does not involve any substantial question of law and hence it may be dismissed.
23. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. This second appeal is admitted on the grounds A, B and D to G which are as under:
A. That whether the Appellate Court was correct in holding that the suit for specific performance of Agreement of Sale dated 19th January, 1966 filed on 19th November, 1981 is within the period of limitation, as contemplated under Article 54 of the Limitation Act.
B. That whether the Appellate Court has correctly interpreted the provisions of the Section 46 of the Contract Act to the effect that where no time is stipulated for performance of the contract then a suit filed after 15 years from the date of Agreement for specific performance is to be held to be filed within the time, under Article 54 of the Limitation Act, 1963.
D. That whether the Appellate Court has correctly interpreted the provisions of Section 16(c) of the Specific Relief Act in arriving at the conclusion that the respondent is ready and willing to perform his part of contract.
E. That the Appellate Court ought to have held that the suit filed after 15 years of date of the Agreement of Sale is clearly time barred, as per the provisions of Article 54 of the Limitation Act, 1963.
F. That whether the Appellate Court was justified in granting decree for specific performance when, no documentary proof is produced to establish payment of consideration, and the suit is filed after lapse of 15 years.
G. That whether the Appellate Court has correctly applied its discretions for granting specific performance of contract as per Section 20 of the Specific Relief Act, when no documentary evidence is brought on record to establish that the balance amount of consideration was paid by the Respondent and the suit is filed after lapse of 15 years.
24. So far as ground A is concerned, the agreement was executed between the parties on 19th January, 1966. The contents of the agreement show that the sale deed was to be executed within a period of one month after obtaining permission. The permission was to be obtained from Government Authority. However, there was restriction on sale, transfer, alienation and sub-division of consolidated holdings and, therefore, though as per the agreement, the sale deed was to be executed within one month from the date of agreement, however, there was no permission to execute the sale deed. The respondent, who is the original plaintiff, even did not seek any permission from the authority for executing the sale deed. There was amendment in Fragmentation and Consolidation of Holdings Act by way of Maharashtra Act 41 of 1977. By the said amendment, Section 31-AB was inserted. The said Section 31AB reads thus:
Validation of certain transfers or sub-divisions made on or after 15th November 1965 and before commencement of Mah. XLI of 1977 - (1) No transfer or sub-division of any land in contravention of Section 31 as it stood immediately before the date of commencement of the Bombay Prevention of Fragmentation and Consolidation of Holdings (Amendment) Act 1977, made on or after the 15th day of November, 1965 and before the date of such commencement shall be deemed to be void or ever to have become void merely on the ground that such transfer or sub-division is effected in contravention of the provisions of that Section as it stood before such commencement and shall be deemed to be valid if such transfer or sub-division is in accordance with the provisions of Section 31 as substituted by the said Act.
25. The plain reading of the provisions of Section 31-AB shows that certain transfer or sub-divisions made on or after 15th November, 1965 and before commencement of Mah. XLI of 1977 shall be deemed to be valid if such transfer or sub-division is in accordance with the provisions of Section 31 as substituted by the said Act. As per the original agreement dated 19th January, 1966, the sale deed was to be executed within one month subject to permission from the authority. There was no attempt on the part of the respondent/plaintiff to seek permission from the authority for executing the sale deed. Even otherwise in routine course after obtaining permission from the authority, the sale deed should have been executed within one month from the date of such permission. However, such thing did not happen and there was no execution of sale deed.
It is true that from 15th November, 1965 till 28th August, 1977 there was restriction on alienation and sub-division of consolidated holdings and also the transfer and sale was barred under Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act without prior permission of the Collector. However, by Maharashtra Act XLI of 1977, Section 31-AB was introduced and, therefore, once restriction under Section 31 to alienate, sale or transfer was lifted by introducing Section 31-AB, the respondent/plaintiff should have taken steps to execute the sale deed within one month from commencement of Maharashtra Act 41 of 1977.
26. Even there was no attempt on the part of the respondent/plaintiff to execute the sale deed within reasonable time. If reasonable time of three years is taken into account from the date of Maharashtra Act 41 of 1977, the suit should have been filed by the respondent/plaintiff before 29th September 1980. Therefore, the trial Court was perfectly justified in concluding that the suit, which was filed by the respondent/plaintiff was time barred. The lower Appellate Court was not correct in arriving to the conclusion that the suit was within limitation. The suit, which was filed by the respondent/plaintiff, was hopelessly time barred and the same was filed after 15 years of the agreement of sale.
27. So far as Ground No. B is concerned, it relates to interpretation of Section 46 of the Contract Act by the lower Appellate Court. Under the provisions of Section 46 of the Contract Act no time is specified for performance of promise, but the contract must be performed within a reasonable time. Section 46 of the Contract Act reads thus:
Time for performance of promises, where no application is to be made and no time is specified - Where, by the contract, a promisor is to perform his promise without application by the promisee and no time for performance is specified, the engagement must be performed within a reasonable time.
Explanation - The question 'what is a reasonable time' is, in each particular case, a question of fact.
What is the reasonable time is to be seen in Article 54 of the Limitation Act. For specific performance of contract three years time is prescribed under the said Article and, therefore, reasonable time means three years. Therefore, in the instant case, the sale deed should have been executed by the respondent/plaintiff within one month from the date of agreement of sale by obtaining permission from the authority. There was no such attempt to obtain permission. It is clear that from the date of agreement till enforcement of Maharashtra Act 41 of 1977, there was restrictions on sale or transfer without prior permission of the Collector. After introduction of Section 31-AB by way of said Act of 41 of 1977, the said restriction was removed and, therefore, the sale deed should have been executed within one month. Even if the reasonable time is taken into consideration to execute the sale deed, from the date of introduction of Section 31-AB in the Maharashtra Act 41 of 1977, reasonable time of three years will expire in 1980. However, the suit is filed in 1981. Therefore, the trial Court was absolutely right in holding that the suit was time barred as the same was not filed within reasonable time.
28. So far as Ground Nos. D and F are concerned, in my opinion, the lower Appellate Court has not properly interpreted Section 16(c) of the Specific Relief Act in arriving at the conclusion that the respondent/plaintiff was ready and willing to perform his part of the contract. In fact the amount of Rs. 1,100/- was paid at the time of agreement of sale and it was the case of the respondent/plaintiff that he has paid the remaining amount from time to time to the appellant/defendant. However, he did not produce anything on record, by way of evidence, either before the trial Court or before the lower Appellate Court, to show that he had paid the entire consideration of Rs. 2,500/- to the appellant/defendant.
Though the agreement of sale mentions one month time subject to permission from the Collector for executing the sale deed, there is no evidence to show that the respondent/plaintiff had taken any efforts by applying to the authority for permission for executing the sale deed or taking immediate steps after the restrictions on sale or transfer was removed by Amending Act 41 of 1977. Therefore, it is to be held that the respondent/plaintiff was not ready and willing to perform his part of the contract and after 15 years from the date of agreement of sale, he filed the present suit in 1981 which hopelessly time barred. Therefore, the trial Court dismissed the suit.
29. In my opinion, the lower Appellate Court was not justified in granting decree for specific performance in favour of the respondent/plaintiff, since there was no documentary proof whatsoever produced by the respondent/plaintiff before the trial Court or before the lower Appellate Court to establish that he had paid entire amount of consideration to the appellant/defendant.
30. So far as payment of consideration towards the agreement of sale is concerned, the lower Appellate Court merely relied upon the deposition of the plaintiff and presumed that the entire amount of consideration was paid by the plaintiff to the defendant. In fact, there was no evidence either documentary or oral to support the contention of the plaintiff that he had paid the entire amount of consideration of Rs. 2,500/- to the defendant. Therefore, in my opinion, the lower Appellate Court was not correct in holding that the respondent/plaintiff is entitled for specific performance of contract.
31. The findings recorded by the trial Court about Exhibits 12 and 13, the revenue record i.e. 7 x 12 extract of the suit property, that the plaintiff has not properly explained about the entries in Exhibits 12 and 13. Exhibit 12 is the 7 x 12 extract which shows that the plaintiff is the owner of the suit property in the year 1981. However, Exhibit 13, which is also the 7/12 extract, shows that defendant Bakubai is the owner of the suit property in the year 1985-86,1986-87 and onwards and the name of the plaintiff is deleted from the said record. It has been rightly observed by the learned trial Judge that the plaintiff has not properly explained about the entries in Exhibits 12 and 13.
32. At the time of admitting the second appeal, the appeal was not admitted on the ground that whether the decree passed by the lower Appellate Court is nullity on the ground of non-joinder of necessary parties in Suit No. 900 of 1981 filed by the respondent/plaintiff, I am inclined to entertain this point for the reasons stated hereinbelow.
It is an admitted fact that the suit was filed by the respondent/plaintiff only against defendant/appellant No. 1 without joining other legal heirs of deceased Valu who expired in the year 1968. Even though a specific issue was raised/framed by the trial Court, the same has been negated by the lower Appellate Court on the ground that the appellant No. 1 is the only legal representative of the deceased Valu. However, it is pertinent to note that since Valu expired somewhere in the year 1968, on his death his legal heirs will succeed to the suit land under Sections 8 and 10 of the Hindu Succession Act being Class I heirs. It is revealed that during pendency of the appeal before the lower Appellate Court, the appellant Nos. 2 and her deceased husband, ;who came to be impleaded pursuant to the order passed in Civil Appeal No. 219 of 2007, purchased the suit land under a registered deed dated 4th December, 1997 from appellant No. 1 and her two daughters. This itself substantiate the case of the appellant No. 1 that the suit suffers from non-joinder of necessary parties i.e. the daughters of deceased Valu. The learned Counsel appearing for the appellant No. 1A and 1B relied upon the judgment of Supreme Court in the case of Khetrabasai Biswal v. Ajaya Kumar Baral and Ors. reported in : (2004)1SCC317 wherein in para 6 the Apex Court held as under:
The procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect.
Therefore, in my opinion, the suit, which was filed by the respondent/plaintiff is bad for non-joinder of necessary parties i.e. the daughters of deceased Valu.
33. Taking over all view of the matter, it can be safely concluded that the suit, which was filed by the respondent/plaintiff after 15 years of the agreement of sale, was hopelessly time barred. Even assuming for a moment that the permission from the authority was required under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act and there was restriction for sale, however, from the date of introducing the Section 31-AB in the Maharashtra Act 41 of 1977, no permission was required for executing the sale deed and, therefore, as stated earlier, the sale deed should have been executed within one month from the date of introduction of Section 31-AB by way of Amending Act 41 of 1977.
34. Even if provisions of Section 46 of the Contract Act and Article 54 of the Limitation Act are taken into consideration, the suit can be filed within reasonable time. But the reasonable time as provided in Article 54 of the Limitation Act is three years. The Amendment in the Act, 1977 came into force on 29th August, 1977, even if the limitation is counted from 1977 for three years, the same will expire in 1980. Therefore, the suit, which was filed by the plaintiff in 1981 is time barred.
35. The original agreement entered into between the plaintiff and Valu. Valu expired in 1968 and, therefore, it was incumbent upon the plaintiff to bring the legal heirs of deceased Valu on record to execute the agreement of sale. After perusal of suit plaint, it is clear that the plaintiff brought on record only the widow of deceased Valu and failed to bring on record two daughters of deceased. Therefore, the suit was bad for non-joinder of necessary parties. The findings of the lower Appellate Court that the plaintiff is entitled for specific performance is not correct, because to arrive at that conclusion, the lower Appellate Court has only relied upon the deposition of the plaintiff. In fact, there is no documentary proof produced by the plaintiff on record to show that he had paid the entire consideration to the defendant. Even the plaintiff did not examine any witness to substantiate his contention that total amount of Rs. 2,500/- had been paid by the plaintiff to the defendant. In fact the agreement of sale itself mentions that remaining amount was supposed to be paid at the time of execution of sale deed. Therefore, it is to be concluded that the entire amount of Rs. 2,500/- towards consideration in respect of the suit land was not paid by the plaintiff at all and, therefore, the findings of the lower Appellate Court that the plaintiff is entitled for specific performance is not correct.
36. During pendency of the appeal before the lower Appellate Court, third party right has been created in the suit property. Appellant No. 2 and her deceased husband, who were added as party appellants by an order passed in Civil Appeal No. 219 of 2007, purchased the suit land under registered deed dated 4th December, 1997 from the appellant and her two daughters. This aspect is also required to be taken into consideration that during pendency of the appeal, third party right is created. It is contended by the learned Counsel appearing for the appellant Nos. 2 to 6 that appellant No. 2 and her deceased husband were put in actual and physical possession of the suit property.
In the result, taking over all view of the matter, this second appeal succeeds. The judgment and order passed by the IXth Joint Civil Judge, Nasik dismissing the suit being Regular Civil Suit No. 900 of 1981 filed by the respondent/plaintiff is confirmed. The judgment and order delivered by the Additional District Judge, Nashik in Civil Appeal No. 326 of 1995 is set aside. The second appeal is allowed in above terms. Civil Applications, if any, do and survive and same are disposed of.