CHANDO DEVI Vs. SURAJ KUMARI

JUDGEMENT

(1.) B. K. Sharma, J. The plaintiff-respondent had filed Original Suit No. 584 of 1984 for specific performance of an agreement of sale in respect of an area of 1 biswa, 11 Dhoor land out of the total area of 2 Biswa, 15 Dhoor land of plot No. 306, situated in village Malakraj, Pargana and Tehsil Chail, district Allahabad, for Rs. 5,000 the Iqrarnama was executed on 8. 7. 1977 and Rs. 100 were paid by the plaintiff-respondent to the defendant-appellant. Thereafter the Iqrarnama was registered before the Sub-Registrar and at the time of registration of the agreement to sell a further amount of Rs. 2,000 was paid by the plaintiff- respondent to the defendant-appellant. After that on the asking of the defendant-appellant the plaintiff- respondent gave Rs. 500 to her in May, 1980 and then Rs. 500 in May, 1983 and only Rs. 1000 remained to be paid at the time of the execution of the sale-deed. Since it was an urban land it was agreed between the parties in the Iqrarnama that the defen dant-appellant would take permission to sell from the Ceiling Department and execute the registered sale-deed within a period of a month from the date of the permission obtained. The allegations were that the defendant-appellant kept on avoiding the execution of the sale-deed stating that a dispute has arisen in respect of the land in dispute and the other properties between her and one Lala Jawahar and so it was necessary to obtain permission as early as possible from the Ceiling Department. It was further claimed that she called upon the defendant-appellant to move an application to the competent authority for obtaining permission to sell and also to obtain her signatures but she (defendant-appellant) did not do so and her intentions were not quite fair and she kept on avoiding for a long time and ultimately on 26. 4. 84 and 25. 5. 84 she sent a registered notice to her (the defendant-appellant) to obtain permission and to execute the sale-deed. The first registered notice came back unserved and the second notice came back after personal service. Before the registered notice she has sent similar notice by post on 26. 7. 79 but she kept on avoiding. After the service of the last registered notice the defendant-ap pellant sent a reply through an advocate claiming that the term of the Iqrarnama has expired and that the earnest money paid to her has been forfeited and refused to execute the sale-deed and made denial of having received any money as alleged. It was averred in the plaint by the plaintiff-respondent that she was ready and willing to perform her part of the contract.

(2.) IN the written statement various pleas were taken. IN the written state ment there was no denial to the execution of the Iqrarnama or the receipt of the earnest money of Rs. 3,000 but there was denial of having received the subsequent amounts of Rs. 500 each in May, 1980 and in May, 1983 aforesaid. About the permission the defendant-appellant claimed that she had kept on meeting the plaintiff- respondent about the permission and had taken even the papers for signing but it was she (plaintiff- respondent) who always kept on avoiding. It was further claimed that when three years expired after the date of Iqrarnama, she made a strong demand to the plaintiff-respondent for sign ing on the permission papers and to obtain the sale-deed but she declined and thereupon she (defendant- appellant) forfeited the earnest money. It was also claimed that the plaintiff-respondent had no money and was not ready to obtain the sale-deed. It was also claimed that the suit was barred by time. It was further claimed that compliance of Section 16 (b) and (c) of the Specific Relief Act was not made and, therefore, the suit was barred under that provision.

(3.) I have heard learned Counsel for the parties and have also gone through the record. This second appeal has no force and deserves to be dis missed. In the memo of this second appeal questions (a) to (g) have been taken as substantial questions of law. The second appeal was admitted on substantial question (a ). It was, whether the suit was barred by time as well as the principles of estoppel and acquiescence. Substantial question (c) related to two receipts of payment of Rs. 500 each. These receipts related to question of limitation. There is a categorical finding of the lower appellate court about these payments based on oral evidence and also the report of the expert. The limitation was to be counted in accordance with Article 54 of the Limitation Act, 1963 from the date fixed for the performance and if no such date is fixed from the date the plaintiff has notice that the performance is refused. In his case no date for performance was fixed but time for performance was one month from the date the permission is obtained from the ceiling department. No such permission had yet been obtained till the date of the suit.