NARSI BHAGAT MADAN Vs. SOHAN LAL

JUDGEMENT

(1.) This order of mine shall dispose of two Regular Second Appeals bearing No.3977 and 3976 of 2011 as the common questions of law and fact are involved in both the appeals.

(2.) Civil Suit No.37 of 2006 titled as "Sohan Lal Versus Rajiv Madan and others" seeking permanent injunction with alternative prayer of possession was decreed, whereas Civil Suit No.263 of 2009 titled as "Narsi Regular Second Bhagat Madan and others Versus Sohan Lal and another" for specific performance of the agreement to sell dtd. 15/3/1990, has been dismissed.

(3.) Mr.Arun Jain, learned Senior Counsel assisted by Mr.Arjun Veer Sharma, Advocate, representing the appellants (defendants in Suit No.37 and plaintiffs in Suit No.263) submitted that agreement to sell dtd. 15/3/1990 in respect of the property in question was entered into against the payment of total sale consideration of Rs.2,36,500.00. The possession of the property was handed over. Time was not the essence of the agreement to sell, therefore, filing of the suit in the year 2009, i.e., on 22/4/2009 cannot be said to be beyond period of limitation as prior to filing of the suit, aforementioned, legal notice dtd. 26/7/2003 (Ex.P2) was served followed by another notice dtd. 18/1/2006. Since the appellants were put into possession, they constructed five shops, thus, are also entitled to seek protection as per the provisions of Sec. 53-A of the Transfer of Property Act, 1882 (for short "1882 Act") as the averments made in the plaint are only for seeking permanent injunction. The entire pith and substance of the claim made in the suit is that it is the defendants in Suit No.37 of 2006, i9.e., Rajiv Madan and others, who were in possession of the property, yet the Courts below have erroneously ordered for returning of the possession by decreeing the suit of plaintiff Sohan Lal. The right to seek the possession has been lost in view of the provisions of Sec. 53-A of 1882 Act. The Courts below have rendered the findings on all the issues in favour of the appellants (plaintiffs in Civil Suit No.263 of 2009), but dismissed the suit on the ground of limitation. The stand of the defendants in the written statement and as well as in the suit throughout was for denial of the execution of the agreement to sell, much less handing over of the possession Regular Second and once the Courts below have rendered the findings in favour of the plaintiff qua possession due to execution of the agreement to sell, the suit for injunction seeking alternative relief of possession in the absence of the court fees was, thus, not maintainable. In support of his contention, has relied upon the ratio decidendi culled out in Mahadeva and others Versus Tanabai, 2004 (3) R.C.R. (Civil) 215 and Shrimant Shamrao Suryavanshi, 2002 (1) RCR 302. Regarding applicability of the provisions of Sec. 53-A of 1882 Act and as regards the averments in the plaint, relied upon the ratio decidendi culled out in Romesh Mohan and another Versus Raj Krishan and others, 1984 PLR 211.