CHANDRAWALI Vs. NARENDER

JUDGEMENT

(1.) The petitioners are the defendants No. 1 to 5, heirs of Ram Pratap, in a suit for specific performance filed by the non-petitioners No. 1 to 3, who are the heirs of Bhupendra Singh.

(2.) The present revision is directed against the order dated 3rd March, 2003 passed by the learned trial Court on Issue No. 8 which was framed for determination of the question as to whether the suit was within limitation. An agreement for sale is alleged to have been executed on 9th December, 1982 by the deceased Ram Pratap in favour of the deceased Bhupendra Singh for selling of 12 bighas of land situated in Kila Nos. 3, 4, 5, 6, ,8, 14, 15, 16, 17, 24 and 25 of Murabba No. 37 at Chak -2. Tehsil Ganganagar. Inter alia, it is the averment of the plaintiffs that the aforesaid land was agreed to be sold by Ram Pratap to Bhupendra Singh at a consideration of Rs. 10.000/- per bigha. Out of the total consideration of Rs. 1.20.000/-, Rs. 50.000/- were received by the vendor at the time of execution of the agreement, the sale document was agreed to be executed on 15th March, 1983 with other stipulation that Fardkhata and NOC from Income-tax Department shall be obtained by the vendor and then the sale-deed would be executed. It was agreed that upon obtaining the requisite documents, the vendor would receive the remaining sale consideration and execute the sale-deed in favour of vendee or his nominee. It has also been averred that the possession of the entire land was delivered in part performance of the agreement on 9th December, 1982 itself and since then late Bhupendra Singh and after him the plaintiffs are in possession of the land and using and occupying the same. The plaintiffs have alleged payment of the remaining consideration by Bhupendra Singh to Ram Pratap of Rs. 40.000/- on 14th March, 1983 and Rs. 30.000/- on 21st March, 1983 and thereafter only the registration expenses were to be borne by the purchasers and else they were always ready and willing to have the sale-deed executed. It has been averred in the plaint that thereafter Ram Pratap executed sale-deed for 5 bighas of land comprised in Kila Nos. 4, 7, 14, 17 and 24 at the instructions of late Bhupendra Singh in favour of his nominated person, namely, Sumer Singh son of Ram Narain, resident of Sri Ganganagar and the sale-deed for remaining 7 bighas was yet to be executed. The plaintiffs have alleged the defendants to be avoiding to execute the sale-deed for remaining 7 bighas and that on 17th October, 1995 they had filed a suit for dispossessing them before the Assistant Collector (Revenue), Sri Ganganagar and have also prayed for appointment of Receiver. The plaintiffs have alleged themselves to be always ready and willing to perform the contract. Regarding limitation it has been averred that the cause of action for the suit arose when the agreement was executed on 2nd December, 1982 and thereafter when Ram Pratap received the sale consideration. This apart, in terms of the conditions of the agreement Ram Pratap and thereafter his heirs have not executed sale-deed by obtaining Fardkhata and NOC from the Income-tax Department, therefore, the cause of action is uninterruptedly continuing because till the requisites are not obtained, the sale-deed cannot be executed. Therefore, the suit was within limitation.

(3.) In the written statement, firstly it has been averred that the entire land was not the self acquired property of Ram Pratap and his share in the total ancestral land of 56 Rights 16 Biswas was only to the extent of 1/6th i.e. about 8 Bighas and 9.3 Biswas and he had already sold land of about 10 Bighas 10 Biswas. Therefore, he was not entitled for any thing in relation to the remaining 46 Bighas and 6 Biswas of land. The sale agreement, receiving of consideration and delivery of possession have been denied. Further, payment on 14th March, 1983 and 21st March, 1983 have also been denied. Regarding the sale deed in favour of Sumer Singh, this fact has also been denied and it has also been the objection of the defendants that Sumer Singh has not been impleaded a party in the suit and if at all Ram Pratap has executed any sale deed in favour of Sumer Singh at the instructions of Bhupendra Singh then Sumer Singh was a necessary party for determination of the questions involved in the case.