HUTCHEGOWDA Vs. H MBASAVIAH

JUDGEMENT

(1.) The case of the plaintiff-appellant is that the defendant-respondent agreed to sell an acre out of the land purchased by the latter in a revenue sale and executed the agreement produced along with the plaint. That agreement is dated 1-8-1942. It is also alleged in the plaint that in June 1945 there was a panchayathi in which the defendant received Rs. 82/- being the consideration amount for the land which had to be sold, and agreed again to sell the property to him. The defendant admitted that he executed the first agreement but denied the second agreement and also pleaded that the suit is barred by time. It will be noticed that neither the learned Munsif nor the learned Subordinate Judge has found that the second agreement set up by the plaintiff is true. It will also be noticed that while according to the plaint the sum of Rs. 82/- was paid to the defendant, the notice issued toy the plaintiff before the suit was filed, makes it clear that no such money was paid to the defendant. This oral agreement, is said to have taken place on the land itself and as pointed out by the learned Subordinate Judge this is highly improbable. Moreover by the time the agreement came into existence, the defendant had converted the land into a garden land and had already planted cocoanut trees, and under such circumstances it will bo difficult to accept that the defendant would have agreed to take the money and execute a sale deed. If there was really any such agreement and the plaintiff paid the money, as he and his witnesses have stated, he would not have failed to take a written agreement then and in fact there is no reason why a sale deed itself was not executed if both parties really agreed that the said land should be conveyed to the plaintiff.

(2.) The suit, however, is based mainly on the written agreement itself, and this agreement, as already stated, is not denied. The date of the agreement is 1-8-1942 and the suit has been filed on 14-6-1947, about five years after that date. According to the agreement the sale deed had to be executed after the 'Saguvali chit' was given to the defendant. It is not disputed that tho defendant got the 'Saguvali chit' and got possession of the property more than three years prior to the date on which the suit was filed. It is in fact to avoid the plea of limitation that an attempt has been made in the plaint to show that there was a later agreement. It was, however, seriously contended in the lower appellate Court as is now done in this Court, that the suit is in time as what is applicable is the second part of Article 113 of the Limitation Act. According to that Article, for specific performance of a contract, the period of limitation is fixed as three years 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. It is contended by the plaintiff that no date was fixed for the performance of the contract and it is no doubt true that no specific date is mentioned in the agreement itself. But the date is clearly ascer-tainable though it may not have been possible to ascertain it on the date of the agreement. The Article contemplates two kinds of cases in one kind the time of performance is fixed in the contract itself and in the other it is not so fixed. Though the word 'date' is used in the article, it should not be taken that a particular date should specifically be stated in the agreement. For instance, if it is stated in an agreement that performance of the agreement should take place on the next Gowri feast day, it would be a clear case where the date of performance is fixed though no actual date is specifically mentioned" in the agreement itself. That is because the date can in such cases be ascertained with certainty, in fact, even if the time of performance cannot be ascertained at the time of the agreement itself, but can be ascertained at the time of performance, it may be said to be a case where the date is fixed for the performance of the contract. As observed in -- 'Muniswami Goundar v. Shamanna Gouda', AIR1950 Mad 820 (A):

(3.) Even on merits, I do not think the plaintiff has a good case. It wilt be noticed according to the allegations in the plaint itself that the plaintiff and the defendant came into an agreement not to raise the bids in the revenue sale, but to divide the property purchased between themselves. In -' Ramlal v. Rajendra Nath', AIR 1933 Oudh 124 (C), it is observed that "An agreement between two persons not to bid against each other at an auction sale is perfectly lawful and cannot be considered to be opposed to public policy. But where such agreement is not merely a case of an honest combination between two bidders to purchase the property at an advantageous price but goes further by resorting to a secret artifice for the purpose of defrauding a third person.....it is void as its object is fraudulent and unlawful." It is not unusual for persons like the plaintiff to combine in the revenue sales and prevent the land being sold for its real value.