N.V. Dabholkar, J.
1. Heard learned Counsel for the parties.
2. Second appeal arises against dismissal of Regular Civil Appeal No. 176/1992, which was filed by present appellants - original defendant Nos. 2 & 3 vide judgment and order dated 16/12.1992 by 2nd Additional District Judge, Osmanabad. As a result of dismissal of first appeal, judgment and decree passed in favour of original plaintiff/ respondent No. 1 by Civil Judge (J. D.), Kallam, in Regular Civil Suit No. 101/1976 on 2.5.1992 stood confirmed. By the said judgment and order, learned Civil Judge decreed the suit of plaintiff for specific performance, directing defendant No. 1/respondent No. 2 to accept balance consideration of Rs. l.000/- and then directing all the defendants to execute a sale deed of suit land in favour of plaintiff within a period of two months from the date of the order. The defendants were also directed to handover possession of the suit land to the plaintiff within two months.
Plaintiff approached the Civil Court contending that defendant No. 1 - Dhondopant was owner of 3 H 36 R (8 Acres 16 Gunthas) land from Gut No. 57, which was old Survey No. 16/B of village LasraTq. Kallam Dist. Osmanabad. According to her, defendant No. 1 agreed to sell the suit land to her for consideration of Rs. 4.000/- by executing Isar Pavti on 1.7.1965. By contents in the Isar Pavti defendant No. 1 has acknowledged receipt of Rs. 2,000/- part consideration prior to its execution and further amount of Rs. 1 ,000/- was paid to defendant No. 1 in two installments; Rs. 300/- on 9.8.1970 and Rs. 700/- on 27.10.1973. Balance consideration of Rs. 1,000/- was to be paid at the time of execution of the sale deed.
According to plaintiff, she was put into possession by defendant No. 1 on the day of Isar Pavti, but as original Isar Pavti was lost, she was filing certified copy of the same alongwith the plaint. The Isar Pavti was in fact a registered Isar Pavti. Since permission from Collector was required for execution of the sale deed, it was agreed that defendant No. 1 would obtain necessary permission and thereafter execute the sale deed.
Defendant No. 1 avoided to execute the sale deed in favour of plaintiff. This plaintiff learnt on or about 9.5.1976. Plaintiff had also served a notice upon defendant No. 1 dated 25.6.1976 cautioning him not to effect any transaction pertaining to suit land in favour of any third person.
Name of the plaintiff was entered in the 7/12 extract in possession column since 1965-66 onwards till 1972-73. Defendant Nos. 1 & 2, in collusion with Talathi, managed to appear on record in the year 1973-74. Plaintiff moved appropriate revenue authorities and after enquiry, Tahsildar directed correction of the entries. It is claim of plaintiff that by taking disadvantage of the revenue entries, defendants dispossessed her on 6.6.1976.
3. Suit was resisted by filing written statements by all three defendants. Defendant No. 1, although admitted execution of Isar Pavti, he stated that it was only in the nature of security towards loan of Rs. 500/- obtained by him from the plaintiff. He claimed that possession was not delivered to plaintiff under the said Isar Pavti, but defendant Nos. 2 and 3 were in possession in the capacity as tenants. He also claimed to have repaid the loan amount to plaintiff and prayed for dismissal of the suit as time barred.
Defendant Nos. 2 & 3 denied execution of any Isar Pavti by defendant No. 1 and allegations that plaintiff was forcibly dispossessed by them in June, 1976. According to them, defendant Nos. 2 & 3 entered the suit land as tenants of Dhondopant on Batai basis since Gudi Padwa 1972; defendant No. 2 to the extent of 2 Acres and defendant No. 3 to the extent of remaining land. It was further added that on 25.5.1976, defendant No. 1 has agreed to sell the suit land to them for consideration of Rs. 12.700/- by accepting an earnest of Rs. 1550/- and execution of earnest deed (Isar Pavti). Remaining amount is to be paid at the time of sale deed.
4. Trial Court has accepted the contention of plaintiff by exhibiting certified copy of Isar Pavti and also relying upon admission of defendant No. 1 in the written statement regarding execution of the same, although disputing the nature of transaction. In fact, defendant No. 1, after filing the written statement, did not participate in the proceedings and consequently his contention that Isar Pavti was by way of security towards loan obtained, was negatived by the Trial Judge. So far as plea of tenancy raised by defendant Nos. 2 & 3, as can be seen from para 18 of the Trial Court judgment, parallel tenancy litigation was contested by the parties and defendant Nos. 2 & 3 could not succeed inspite of approaching High Court for the purpose by Writ Petition No. 696 of 1983. Consequently, plea of tenancy was subsequently aborted by the defendants.
From the discussion in para 12 of the judgment of Trial Court, it appears that after aborting theory of possession in the capacity as tenants, defendant Nos. 2 & 3 also claimed execution of an Agreement of Sale by defendant No. 1 in their favour some time in the year 1964 and another Agreement of Sale Exhibit 110 on 30.5.1975, apart from the Agreement of Sale dated 25.5.1976, which was relied upon by them by contentions in the written statement. The learned Trial Judge has ignored, and rightly so, the claims of defendant Nos. 2 & 3 being in possession on the basis of Agreement of Sales in the year 1964 or 1975, for two reasons. Firstly, because if they were so in possession on the basis of earlier agreements, there was no necessity to execute subsequent agreements. Secondly, because those contentions were sprang as surprise upon plaintiff without pleading and during the course of trial of the suit and after defendants had failed to establish their status as tenants of the suit land.
So far as limitation is concerned, the Trial Court observed that suit was within limitation, since the time started to run from 6.6.1976, the date on which plaintiff was allegedly dispossessed by the defendants; which was clear indication of refusal on the part of vendor to perform the remaining part of contract. The Additional District Judge has confirmed the decree by concurrent findings.
5. The appeal was admitted by this Court on 16.3.1993 with following order :
Heard, Admit. Ground Nos. IV, V and VI.
From the order issuing Rule, it is evident that this Court has admitted the appeal on following three substantial questions of law, which were ground Nos. IV, V and VI in the appeal memo.
(IV) The Agreement of Sale is alleged to have been executed on 1st July, 1965. The suit is filed in 1976. The suit is. therefore, time barred, in accordance with the provisions contained in Article 54 of the Limitation Act, 1963. Both the Courts below have not taken into consideration the provisions of Article 54 of the Limitation Act, 1963.
(V) The suit is clearly time barred. No decree can be given due to afflux of time.
(VI) The Courts below have given unnecessary importance for non-examination of the defendant No. 1.
6. Advocate Shri Choudhary, while assailing the judgments of the Lower Courts on the ground of limitation, also added another phase to his argument by contending that it was not legal and proper on the part of Trial Court to allow secondary evidence in the form of certified copy of the Agreement of Sale dated 1.7.1965 and if that is not admitted, according to Shri Choudhary, the suit must fail.
7. The relevant portion of Section 100 of the Code of Civil Procedure pertaining to second appeal reads as follows :
100. Second Appeal. -
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) ....
(3) In an appeal under this Section, the Memorandum of Appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, ft shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall.... :
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case Involves such question.
Upon considering Section 100 and more particularly the portion underlined for the purpose of emphasis, it can be seen that second appeal would be admitted only if a substantial question of law arises for consideration and not otherwise. Such substantial question of law is required to be quoted by the appellant in the appeal memo and/or required to be formulated by the Court while admitting the appeal! Reading the order admitting present appeal, it can be seen that only Ground Nos. IV, V and VI were considered to be substantial questions of law, for consideration of which the appeal as admitted. On reference to Sub-section (5) of Section 100, it can be seen that the appeal is required to be heard on the question so formulated by the Court. At times, the Court may refer to questions formulated in the appeal memo and in such a case, the appeal would be heard only on those substantial questions of law, which are accepted as such, while admitting the appeal. Section 100, therefore, does not enable liberty nor confers any privilege upon the appellant to argue the appeal on any other grounds, except the questions formulated by the Court as substantial questions of law or the questions enlisted as grounds of appeal, which Court has accepted and thereby adopted as substantial questions of law for consideration, on which the appeal is admitted.
Advocate Shri Choudhary, by relying upon the proviso to Section 100 urged that the Court has powers to hear the appeal on any other substantial question of law. There need not be any dispute about this proposition. But while doing so. Court is required to record its reasons as to why it is also considering another substantial question of law during the course of hearing of appeal, although such a question was not formulated, while admitting the appeal. These reasons will have to be provided by the appellant. In other words, the appellant will have to satisfy the Court that appeal needs to be considered in the light of additional substantial questions of law than those already formulated at the stage of admission. Suffice it to say that submission of additional grounds cannot be at the will of appellant.
8. As additional ground. Advocate Shri Choudhary has taken an exception to the admission of certified copy of registered Agreement of Sale in the evidence by the Trial Court. Ordinarily, in a suit for specific performance, Agreement of Sale is a pivotal document and, therefore, admission of Agreement of Sale in evidence is a crucial issue. I have, therefore, considered the arguments submitted by learned Counsel Shri Choudhary against the admission of secondary evidence regarding Agreement of Sale.
9. Advocate Shri Choudhary has relied upon Sections 62, 63 and 65 of the Indian Evidence Act. No. doubt, ordinarily a document is required to be proved by primary evidence and primary evidence means the document itself. Secondary evidence can be tendered only in exceptional circumstances enlisted in Section 65. By relying upon observations of the Supreme Court in couple of reported judgments in Sital Das v. Sant Ram : AIR1954SC606 , and in Roman Catholic Mission v. State of Madras : [1966]3SCR283 . It was urged by Advocate Shri Choudhary that unless a party lays down sufficient foundation, thereby attracting any of the circumstances enlisted in Section 65 of the Indian Evidence Act, it cannot be permitted to lead secondary evidence. There need not be any quarrel with this proposition also. Unless some of the exceptional circumstances indicated in Section 65 of the Indian Evidence Act are satisfied, ordinarily a document will have to be proved by its primary evidence. Section 65(c) permits a party to lead secondary evidence of a document, when the original has been destroyed or lost.
10. As rightly pointed out by Advocate Shri Deshmukh, this is not a case wherein plaintiff had not laid down the foundation for secondary evidence. The plaint was filed and in the plaint itself, it was contended that original agreement of sale was lost and, therefore, a certified copy. Agreement of Sale being a registered document, was being tendered alongwith the plaint. If the plaintiff had not specifically applied by independent application for allowing secondary evidence on record, the defendants had also not specifically objected to the admission by special application for the purpose. Apart from pleading by plaintiff that original was lost, by his written statement, defendant No. 1 had admitted execution of Agreement of Sale, although he did not concur with the plaintiff regarding nature of the document. However, by implication, defendant No. 1 - the executor, had admitted the execution of document and even the contents of the document being in the nature of the agreement, by stating that although document was executed by him, it was merely by way of security, thereby clearly indicating that the document was not precisely in the form of security, but in some other form. The plaintiff herself had entered the box and deposed about loss of original and only thereafter the certified copy was exhibited. Thus, contention of Advocate Shri Choudhary that plaintiff had failed to prepare a foundation for admission of secondary evidence and, therefore, Trial Court ought not to have read the certified copy of Agreement of Sale in evidence cannot be sustained.
11. So far as issue of limitation is concerned, Article 54 governs the suits regarding specific performance. The period of limitation is 3 years and the starting point is the date fixed for the performance and in cases where no such date is fixed, when the plaintiff has noticed that performance is refused.
In the present case, it is not the contention of defendants that any particular date or period was fixed for execution of sale deed. On the contrary, the document did incorporate contents to the effect that permission for sale was necessary and sale deed was to be effected only after obtaining the permission. During the course of his arguments, Advocate Shri Deshmukh has stated that at present a canal passes through this land and at the time of Agreement of Sale, the project was only in the offing and, therefore, it was believed that permission from the Collector would be necessary, since the land was likely to be within the command area of proposed project.
The fact that Agreement of Sale contained a condition regarding obtaining of permission clearly goes to show that the time was not the essence of contract and plaintiff would have been justified in expecting execution and registration of sale deed only after defendants informed her about having obtained permission.
Both the Lower Courts have accepted the case of plaintiff that she was in possession from 1.7.1965 and that she was dispossessed on or around 6.6.1976 i.e. after execution of Agreement of Sale in favour of defendant Nos. 2 and 3 by defendant No. 1 on 25.5.1976. Consequently, the Lower Courts have accepted 6.6.1976 as the starting point of limitation, because that was a clear act of hostility against the Agreement of Sale in favour of plaintiff. The suit was filed on 25.6.1976 and, therefore, the Trial Court committed no error in holding that suit was not barred by limitation.
12. Relying upon Section 10 of the Specific Relief Act, Advocate Shri Choudhary urged that Court could have used its discretion in decreeing the suit only for refund of consideration instead of specific performance. According to Shri Choudhary, by virtue of Section 10, Court can use its discretion to enforce the specific performance of contract, when there exists no standard for ascertaining actual damage caused by non-performance or when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. According to Shri Choudhary, plaintiff can be compensated by refund of consideration plus interest on the same.
Taking into consideration the facts and circumstances of the present case, it can be seen that plaintiff was put into possession of the subject land on 1.7.1965. She was dispossessed some time in, June, 1976, and since then she is out of possession, although she had right to continue in possession under Agreement of Sale and enjoy the usufruct of the land. Advocate Shri Deshmukh has also pointed out that now the land is under command area of irrigation canal and the canal passes right across the land and, therefore, the land has become perennially irrigated land. What income plaintiff could have earned from the land by cultivating it herself during period of 26 years since 1976, even if theoretically calculable, it would be impossible for appellants to pay the same lump-sum. More over, the land, which was worth Rs. 3.000/- is by now valued more than worth Rs. 6,00,000/- as can be judged by compromise between plaintiff and defendant No. 1. Taking into consideration these details as illustrative details, it must be said that this is not a fit case wherein it can be said that loss which plaintiff may suffer due to non-performance of Agreement of Sale would be calculable and would be compensated in terms of money. So far as reliance on Section 22 is concerned, the same is enabling provision and there does not appear any particular provision for which specific performance should be denied by the Trial Court by exercising discretion only in favour of grant of refund of consideration.
13. It is contended in Ground No. VI that Trial Court gave undue importance to non-examination of defendant No. 1. Strictly speaking, this is a region of appreciation of evidence. One cannot deny that if the mutation entries showing name of plaintiff in the cultivation column since 1965 onwards were to be rebutted or theory of defendants that they were inducted in the suit land as tenants since 1972 Gudi Padwa, it was necessary for defendant No. 1 to enter the box. Consequently, defendant No. 1 not entering into witness box was likely to have adverse effect on the case of either party, which did not have support in the revenue record and the Trial Court has compelled defendant Nos. 2 and 3 to suffer the same, obviously because revenue record was in favour of plaintiff in the form of entries in 7/12 extracts, as also in the form of tenancy litigation before the revenue authorities.
14. In view of discussion above, this Court finds no reason to upset the judgments and decrees passed by Trial Court and First Appellate Court. The appeal, therefore, is dismissed.
15. Advocates have drawn my attention to a compromise signed by General Power of Attorney of plaintiff and defendant No. 2 himself (Niloba) before Civil Judge (J. D.), Kallam, on 22.4.1997 and which is filed in this Court on 29.4.1997. Both the Advocates have requested to take this compromise on record and inspite of dismissal of appeal, modify the decree as much required by virtue of this compromise.
It appears that under the compromise, plaintiff is paid an amount of Rs. 50.000/- by defendant No. 2 Niloba and pursuant to the said payment, plaintiff has undertaken to waive her claim under the subject decree, so far as 2 Acres land which was claimed to be in possession of Niloba either as tenant in 1972 or under Agreement dated 25.5.1996 and subsequent sale deed executed in his favour by defendant some time in the year 1978 (during the pendency of lis). (The last details are furnished by Advocate Shri Choudhary under instructions from his client.)
General Power of Attorney of plaintiff namely Smt. Shakuntalabai is present today in the Court and she admits that plaintiff has received an amount of Rs. 50,000/- as recited in the compromise and Niloba (original defendant No. 2) is in possession of 2 Acres land and plaintiff has assured to waive her right to that extent, even if she succeeds in the second appeal.
16. In view of above, the compromise is taken on record and marked as Exhibit X for the purpose of identification and in view of compromise, although the second appeal is being dismissed, the decree passed by Trial Court is being modified/substituted as follows :
Second appeal is dismissed.
(1) Upon plaintiff depositing balance consideration of Rs. 1,000/- in the Trial Court (if not already deposited), defendant Nos. 1, 2 and 3 shall execute and register a sale deed of 6 Acres 16 Gunthas (8 Acres 16 Gunthas total land of Survey No. 16/B i.e. Gut No. 57 of village Lasra less 2 Acres spared for Niloba under the compromise marked as Exhibit X), in favour of plaintiff.
(2) In case, the defendants fail to execute the sale deed within couple of months, plaintiff will have right to get it executed through the Court.
(3) Defendant Nos. 1 to 3 shall thereafter deliver possession of the land to the plaintiff subject to above clauses.
(4) As submitted by Advocates, 80 R. land acquired from this Gut number for Gaothan area is a part and parcel of 6 Acres 16 Gunthas which is being sold by defendant Nos. 1 to 3 in favour of plaintiff. Consequently, plaintiff will have right to receive the compensation payable towards the said acquisition.