PARVATHAMMA Vs. UMA

JUDGEMENT

(1.) HEARD the learned counsel for the parties. The parties are referred to by their rank before the trial Court for the sake of convenience.

(2.) THE present appeal is filed by the defendants in a suit for specific performance of an agreement of sale. THE plaintiff claimed that the defendants had executed an agreement of sale, dated 1.7.1988 in respect of the suit properties and had received a sale consideration of Rs.12,000/- and had agreed to execute a sale deed in respect of the suit properties upon the repeal of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 (hereinafter referred to as 'the Fragmentation Act' for brevity). THE Act was repealed by Karnataka Act No.4/1991 and was published in the Karnataka Gazette on 05.02.1991. In spite of such repeal, the defendants having failed to execute and register the sale deed as agreed on repeated demands, the plaintiff had issued a notice dated 9.10.1995, which was returned unserved and thereafter, the suit was filed. THE defendants contested the suit denying the very execution of the agreement of sale and the receipt of sale consideration while also contending that in any event, the suit was barred by limitation. THE suit was dismissed on the ground that it was barred by limitation. An appeal having been filed before the lower appellate Court, the same was allowed which is sought to be questioned in the present second appeal.

(3.) THE learned Counsel for the appellants would argue that the lower appellate Court has misconstrued the scope of Article 54 of the Limitation Act, 1963. THE lower appellate Court has applied the second part of the provision in Column 3 of the Schedule in relation to Article 54 which provides for the time from which the period of limitation begins to run. Article 54 provides for a period of limitation of three years for a suit for specific performance of a contract and the time from which the period begins to run is the date fixed for the performance or, if no such date is fixed, when the plaintiff has notice that performance is refused. In the instant case, it is contended that the agreement was a contingent contract and had prescribed the time for performance as the date of repeal of the Fragmentation Act. THE Act having been repealed in the year 1991 and the admitted averments in the plaint that several demands were made on the defendants to execute and register the sale deed after such repeal of the Fragmentation Act, it cannot be said that time did not begin to run from the date of repeal of the Fragmentation Act. THErefore, the lower appellate Court has committed an error in the interpretation of Article 54 in holding that the suit was not barred by limitation, and as the suit was filed five years from the date of repeal of the Fragmentation Act, it was clearly barred by limitation. Secondly, it is also contended that since the notice issued to the defendants was never served on the defendants, even the second part of the provision under Article 54, which prescribes that the time would begin to run when the plaintiff has notice that performance is refused cannot also be strictly applied, as the burden was on the plaintiff to establish that there was a refusal to perform the contract on such demand. It is also pointed out that the plaintiff who claimed to be in possession of the suit property was in the face of revenue entries standing in the name of the respondents upto the year 2005 and it is only thereafter that the plaintiffs have managed to have the entries made out in their favour. THE counsel for the appellant has placed reliance on the following authorities :-