KARAN SINGH Vs. BHAGWANI

JUDGEMENT

(1.) THIS is defendant appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below. It has been concurrently found by both the Courts below that the claim made in the suit filed by the plaintiff-respondents for specific performance for contract directing the defendant-appellant to execute and get the sale deed registered in respect of the suit land is meritorious and deserved to be accepted. Both the Courts below have found that on 24.4.1984 agreement to sell Ex.P7 was executed and at that time an amount of Rs. 20,000/- was paid as earnest money by the plaintiff-respondents to the defendant-appellant with the stipulation that the sale deed was to be executed by 30.5.1985. On 2.2.1985 an amount of Rs. 50,000/- was paid by the plaintiff-respondents to the defendant-appellant and time for executing the sale deed was extended by 30.6.1986. Defendant-appellant executed the sale deeds Exs. P2 and P3 through his general power of attorney Ram Krishan on 25.2.1986 in favour of plaintiff-respondent Rohtas and a sum of Rs. 45,000/- was paid. The sale deed Ex.P2 was executed on 14.6.1988 in favour of Mohinder Raj Singh and Ramesh and a sum of Rs. 45,000/- was paid on that day. Still further on 27.3.1989 another registered sale deed Ex.P2 was executed in favour of Chattar Singh one of the plaintiff-respondents and sale consideration has been admittedly received by the defendant-appellant. The aforementioned execution of sale deed and the registration has been considered to be part performance of the agreement to sell dated 24.4.1984 and subsequent agreement dated 2.2.1985. On 31.7.1986 another agreement to sell was executed by the defendant-appellant which has been proved on record by the opinion of handwriting expert Deepak Jain as well as the statement made by PW8 Chattar Singh. The agreement dated 24.4.1984 has also been duly proved on the basis of the statement made by Mulakh Raj PW7 who testified that Charanjit Singh Bhutani was a Deed Writer of the agreement dated 24.4.1984 and it was signed by Charanjit Singh Bhutani. Similar statement has been made by PW7 Mulakh Raj in respect of the agreement dated 2.2.1985. Defendant-appellant had executed the power of attorney in favour of Rain Krishan on the basis of which sale deed was executed on 31.7.1986.

(2.) EVEN the plea of limitation for filing the suit has been rejected by the Courts below holding that a new agreement to sell was executed on 31.7.1986 and since no time was fixed the sale deed had to be executed and registered on a date mutually agreed upon between the parties. On 28.9.1990 a legal notice Ex.P9 was sent by the plaintiff-respondents and thereafter the suit was filed on 29.11.1990. It is further appropriate to mention that after the execution of the agreement to sell dated 31.7.1986, two sale deeds were executed on 14.6.1988 and 27.3.1989 Ex. P1 And P2 in respect of the part of the suit property which has been considered to be extension of time for execution of the sale deed for rest of the property. It is further appropriate to mention that conduct of the defendant-appellant has been found to be dishonest because on account of the reason that an amount of Rs. 3,67,500/- was paid out of the total amount of Rs. 3,68,000/- and only Rs. 500/- was required to be paid. On account of the meagre balance, the Courts below have found that the defendant-appellant ignored the legal notice dated 28.9.1990 Ex.P.9 which showed his dishonest intention.

(3.) I have thoughtfully considered the submissions made by the learned Counsel and do not feel persuaded to accept the same because there are three agreements on record. The agreement dated 24.4.1984 stipulated the date for execution of sale deed to be 30.5.1985. However, on 2.2.1985 a sum of Rs. 50,000/- in addition to Rs. 20,000/- already paid was paid to the defendant- appellant and the sale deed was agreed to be executed and registered on 30.6.1986. On 25.2.1986 as well as on 14.6.1988 sale deeds Ex. P1 and P2 were executed after acceptance of sale consideration in favour of one or the other plaintiff-respondents. Similarly another sale deed was executed on 27.3.1989 in favour of still another plaintiff-respondents against the receipt of sale consideration. It has been found as a fact by both the Courts below that on 31.7.1986 agreement to sell Ex.P4 was executed by the defendant-appellant. Firstly, by no stretch of imagination the limitation can be deemed to commence from the date of agreement to sell dated 31.7.1986. A bare reading of Article 54 of the Act would show that a period of three years is to run from the date fixed for the specific performance of the agreement. In case no such date is fixed then from the date the plaintiff get a notice that date for performance has been fixed. In the agreement to sell dated 31.7.1986 no date of performance was fixed and it was to be decided by the mutual agreement of the parties. On 28.9.1990 notice Ex. P9 was sent and about two months thereafter i.e. on 29.11.1990 the suit was filed. It cannot, therefore, be said that the suit was time barred if the date of issuance of legal notice dated 28.9.1990 is taken as the commencing point of limitation. Even otherwise two sale deeds in pursuance to the agreement to sell dated 31.7.1986 have been executed on 14.6.1988 and 27.3.1989. As the aforementioned sale deeds were the result of the part performance of the agreement to sell the non-performance of the remaining part could be complained of by filing a suit within three years from the execution of the last sale deed dated 27.3.1989. Even from the date the suit filed by the plaintiff-respondents is within a period of three years. By no stretch of imagination it could be held that limitation could be deemed to have commenced from 31.7.1986. Therefore, the findings on all the issues have been correctly recorded by the Courts below and the appeal is without any merit. No question of law much less a substantial question of law has been raised nor the one would arise warranting admission of the appeal. In view of the above, the appeal fails and the same is dismissed. Appeal dismissed.