Chhattisgarh vs Years At Present R/o Chandni Chowk, Kududand, Bilaspur, District Bilaspur,

Appellant/plaintiff has filed this appeal questioning the legality and sustainability of the impugned judgment and decree dated 27.04.2017, passed in Civil Suit No.34-A/2011, whereby learned Additional District Judge, Pendraroad, District – Bilaspur (C.G.) has dismissed the civil suit filed by plaintiff/appellant.

2. Facts relevant for disposal of this appeal are that appellant/plaintiff filed a civil suit for specific performance of contract with respect to the land bearing Kh.No.26/1 measuring area 2.00 acres and Kh.No.29/1 measuring area 0.06 acres total 3.05 acre, situated at Village Sarbahara, P.C. No.25, R.I. Circle Gourella, Tehsil – Pendraroad, District – Bilaspur (C.G.) owned and possessed by defendant No.1 pleading therein that when defendant No.1 was in need of money for running of his business, he offered the suit land for sale to plaintiff. The deal between them was finalized for consideration of Rs.1,00,000/- and agreement was executed between the parties on 06.05.2005 and Rs.20,000/- was obtained by defendant No.1 as an advance on

31.05.2005. Defendant No.1 delivered possession of the suit land to plaintiff. According to sale agreement, defendant No.1 to execute registered sale deed in favour of plaintiff within one year. Plaintiff has always been prompt in complying with the terms of agreement and has arranged the money required at the time of execution of sale deed. Plaintiff many times requested defendant No.1 to execute sale deed in his favour, however, defendant No.1 abruptly left Gourela and kept delaying execution of sale deed. Plaintiff sent legal notice to defendant No.1, which was returned unserved with note ‘not residing in given address’. It was further pleaded that defendant No.2 to 5 without any 3 right and authority have encroached the suit land. Cause of action arose in the year 2006.

3. Defendant No.1 did not participate in the proceedings and was proceeded ex-parte.

4. Defendant No.2 to 5 filed their written statement to the suit denying averments made therein. It was pleaded that suit land is owned and possessed by defendant No.1. Defendant No.1 executed an agreement to sell the suit land in favour of Kuldeep Singh Dheeraj in 2005, pursuant to which possession was delivered to him. Defendant No.2 has been cultivating the land under lawful lease arrangements, initially from Ajay Budhia and thereafter through Kuldeep Singh. He denied execution of any sale agreement in favour of plaintiff with respect to suit land nor plaintiff has ever possessed the suit land.

5. Defendant No. 6 & 7 also filed their written statement denying the plaint averments. It was pleaded that defendant No.1 was original owner of the suit land. Defendants No.2 to 5 were in possession of the land as tenants and carried out agricultural activities on behalf of defendant No.1. Subsequently, on 14.06.2005, Kuldeep Singh Dheeraj purchased the suit land for consideration of ₹1,50,000, making an initial payment of ₹40,000 to defendant No.1, and took possession. Since then, Kuldeep Singh is cultivating the land. It is categorically denied that the plaintiff ever cultivated or possessed the suit land. Defendants No. 6 and 7 purchased the suit land by a registered sale deed dated 05.02.2014 executed through general power of attorney holder of Ajay Budhiya, and they have been in possession of the suit land since then. It is further pleaded that Defendants No. 2 to 5 had 4 earlier leased out the suit land through Ajay Budhiya and were cultivating it. In 2005, Ajay Budhiya entered into an agreement of sale with Kuldeep Singh and handed over possession to him. Thereafter, Defendants No. 2 to 5 continued agricultural activities as tenants under Kuldeep Singh.

6. Learned trial Court based on the pleadings made by respective parties formulated 8 issues for consideration. Parties led their evidence and upon appreciation of the documentary and oral evidence brought on record, learned trial Court dismissed the suit filed by plaintiff by impugned judgment and decree holding that the suit is barred by limitation and further held that plaintiff failed to prove that he was ready and willing to get the sale deed executed in his favour within the period prescribed under the agreement.

7. Learned counsel for appellant/plaintiff would submit that the impugned judgment and decree passed by learned Trial Court is bad in law, perverse and without appreciation of documentary and oral evidence brought on record. It is further contended that learned Trial Court has gravely erred in holding that the suit instituted by appellant/plaintiff was barred by limitation. The said finding is wholly unsustainable in law and facts, inasmuch as the appellant/plaintiff had consistently demonstrated his readiness and willingness to perform his part of the contract within the period of limitation. It is further contended that appellant/plaintiff had always been ready and willing to comply with terms and conditions of the said agreement to sell, and his readiness and willingness is established through pleadings, evidence and conduct throughout the proceedings. He submits that once execution 5 of agreement stood proved, learned Trial Court had no occasion to dismiss the suit merely on erroneous assumptions regarding limitation or alleged failure of the appellant/plaintiff to perform his obligations.

8. Learned counsel for respondent No.7 and 8 opposes the submission of learned counsel for appellant and would submit that they have subsequently impleaded as party defendants after they purchased land in dispute from original owner. He contended that learned trial Court dismissed the suit on merits as also on the ground that it was barred by limitation. Agreement is dated 06.05.2005 and the period prescribed to get the sale deed executed was within the period of one year from the date of execution of agreement to sale. Plaintiff/appellant has not made any attempt to get the sale deed executed within the period fixed in the agreement, which shows that he was not interested in getting the sale deed executed and delaying the execution of sale deed of subject land. Initially he filed a civil suit in the year 2007, against the persons cultivating the land under command and directions of original owner of land seeking relief of permanent injunction against them, which was registered as Civil Suit No. 176A/2007, which came to be dismissed on merits vide judgment and decree dated

29.04.2009. He next contended that even in the year 2007 suit for permanent injunction was filed without impleading the original owner, he has not filed civil suit for specific performance of contract against owner of land based on the agreement to sale Ex.P-1. He further contended that the legal notice said to have been issued to the owner of the land by plaintiff is undated and there is no evidence available in record to show that copy of notice which is marked as Ex.P-2 is even sent through post or by any other mode, therefore, it cannot be said 6 that at any point of time, plaintiff had shown his intention to get the sale deed registered and further that he was ready and willing to get sale deed executed.

9. I have heard learned counsel for parties and perused record of trial Court.

10. Perusal of the record would show that plaintiff filed a suit for specific performance of contract and for possession based on agreement to sale (Ex.P-1) executed between the plaintiff and defendant No.1 in respect of the land mentioned therein.

11. In order to assess the correctness of the findings recorded by the trial Court, it would be appropriate to first examine the documentary evidence produced by the parties, including the terms of the sale agreement.

12. The agreement (Ex.P-1) was executed on 06.05.2005 between the plaintiff and defendant No.1, wherein it is mentioned that defendant No.1, being in need of money, agreed to sell his land bearing Kh. No.28/1, measuring 2.99 acres, and Kh. No.29, measuring 0.06 acres, total 3.05 acres of land, situated at Sharbahara, P.C. No.25, R.I. Circle Gourela, Tahsil Pendra Road, District Bilaspur, for a total consideration of Rs.1,00,000/-. Out of the said amount, Rs.20,000/- was paid in cash as earnest money, and it was agreed that the balance amount of Rs.80,000/- would be paid at the time of execution of the sale deed. The agreement further stipulated that the sale deed for the suit land is to be executed within one year on receipt of the balance consideration, failing which the agreement would stand cancelled.

13. Document (Ex.P-2) is a legal notice issued by appellant/plaintiff 7 through his Advocate to defendant No.1 asking him to execute the sale deed in terms of agreement. It further mentions that despite repeated requests, defendant No.1 failed to comply and avoided his obligations by vacating his residence at Gourela Nagar. It also mentions that appellant/plaintiff has always been ready and willing to perform his part of the agreement, including payment of the balance consideration.

14. Perusal of agreement (Ex.P-1) dated 06.05.2005 shows that "time" was the essence of contract. Purchaser, i.e., plaintiff, was required to register the suit land in his favor within one year of 6-5-2005, i.e., before 6-5-2006. Failure to execute a registered sale deed within the said period rendered the agreement (Exhibit P-1) inoperative after one year.

15. Plaintiff was examined as (P.W.-1.) In plaint, it was pleaded that plaintiff obtained possession of the suit land on 06.05.2005, however, he has not made any statement in his evidence regarding taking possession over suit land nor he has produced any document of possession which shows that plaintiff was ever in possession of the suit land. He further stated that he was always willing to have the suit land registered in his favor as per agreement (Ex.P-1) and had repeatedly approached and requested defendant No.1, Ajay Budhia in this regard. When defendant No.1 failed to execute sale deed in his favour, plaintiff, along with Atul Tiwari, visited his house in 2006, where defendant No.1, assured him that land would soon be registered in his favour. However, defendant subsequently left Gaurela. Thereafter, plaintiff issued a registered notice (Ex.P-2) through his counsel and 8 also published the same in a newspaper. However, plaintiff has not examined any witness to corroborate his statement. Moreover, notice (Ex.P-2) bears no date, therefore, the exact date on which the notice was allegedly sent and served upon defendant No.1 cannot be ascertained, or whether it was ever served at all and plaintiff has not placed in record any acknowledgment receipt to prove the service of notice upon defendant No.1.

16. Hon’ble Supreme Court in case of Sangita Sinha v. Bhawana Bhardwaj, reported in 2025 SCC OnLine SC 723 has discussed the law with respect to readiness and willingness to succeed in the suit of specific performance and observed thus : “17. It is trite law that ‘readiness’ and ‘willingness’ are not one but two separate elements. ‘Readiness’ means the capacity of the Respondent No. 1-buyer to perform the contract, which would include the financial position to pay the sale consideration. ‘Willingness’ refers to the intention of the Respondent No. 1-buyer as a purchaser to perform his part of the contract, which is inferred by scrutinising the conduct of the Respondent No. 1-buyer/purchaser, including attending circumstances.

18. Continuous readiness and willingness on the part of the Respondent No. 1-buyer/purchaser from the date of execution of Agreement to Sell till the date of the decree, is a condition precedent for grant of relief of specific performance. This Court in various judicial pronouncements has held that it is not enough to show the readiness and willingness up to the date of the plaint as the conduct must be such as to disclose readiness and willingness at all times from the date of the contract and throughout the pendency of the suit up to the decree. A few of the said judgments are reproduced hereinbelow:— A. In Gomathinayagam Pillai v. Palaniswami Nadar, (1967) 1 SCR 227, it has been held as under:— “6. But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do 9 so, his claim for specific performance must fail. As observed by the Judicial Committee of the Privy Council in Ardeshir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43: “In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit.” The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit….” (emphasis supplied) B. In Vijay Kumar v. Om Parkash, 2018 SCC OnLine SC 1913, it has been held as under:— “6. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff….” (emphasis supplied) C. In J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429, it has been held as under:— “27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. “Readiness and willingness” to perform the part of the contract has to be determined/ascertained from the conduct of the parties.” (emphasis supplied) 10 D. In Umabai v. Nilkanth Dhondiba Chavan (Dead) By LRs., (2005) 6 SCC 243, it has been held as under:— “30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff- respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16 (c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in- chief would not suffice. The conduct of the plaintiff- respondents must be judged having regard to the entirety of the pleadings as also the evidence brought on records.” (emphasis supplied) E. In Mehboob-Ur-Rehman (Dead) through Legal Representatives v. Ahsanul Ghani (supra), it has been held as under:— “16. Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so…” (emphasis supplied) F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal Representatives (supra), it has been held as under:— “16. The words “ready and willing” imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be 11 proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.

17. In N.P. Thirugnanam v. R. Jagan Mohan Rao [N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115], it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.

18. In Pushparani S. Sundaram v. Pauline Manomani James [Pushparani S. Sundaram v. Pauline Manomani James, (2002) 9 SCC 582], this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus : (SCC p. 584, para 5) “5. … So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.”

17. On a careful consideration of the evidence available on record, it is clear that the plaintiff has failed to establish that he ever approached 12 the defendant for execution of the sale deed prior to the expiry of the stipulated period under the agreement. The record further reveals that no genuine or effective steps were taken by the plaintiff to secure registration of the sale deed in his favour within the prescribed time. The absence of such steps on the part of the plaintiff demonstrates that he neither took timely action nor established his readiness and willingness to perform his part of the contract.

18. Hon’ble Supreme Court in case of K.S. Vidyanadam v. Vairavan, reported in (1997) 3 SCC 1 has discussed the law regarding limitation in the cases of suit for specific performance in light of Article 54 of Limitation Act and observed thus :-

9. Article 54 of the Limitation Act prescribes three years as the period within which a suit for specific performance can be filed. The period of three years is to be calculated from the date specified in the agreement for performance or in the absence of any such stipulation, within three years from the date the performance was refused.

10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time- limit(s) specified in the agreement have no relevance 13 and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519] : (SCC p. 528, para 25) “… it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract.” ……….”

19. Plaintiff had earlier filed Civil Suit No. 176-A/2007, which was dismissed on 29.04.2009. According to the plaintiff, the cause of action arose from the date of dismissal of his earlier suit. However, agreement (Ex.P-1) was executed on 06.05.2005, and as per its terms, the registered sale deed was required to be executed within one year, i.e., on or before 06.05.2006. Since the sale deed was not executed within the stipulated time, the cause of action accrued on

06.05.2006 itself. According to Article 54 of the Limitation Act, 1963, the plaintiff was required to file a suit for specific performance within three years thereof, i.e. by 06.05.2009. The present suit, however, was instituted on 30.10.2009, beyond the prescribed period of limitation.

20. For the foregoing reasons, this Court is of the considered view that the findings recorded by the Trial Court that the suit filed by the plaintiff/appellant is barred by limitation and the plaintiff failed to establish his readiness and willingness to have the sale deed executed in his favour within the period prescribed under the agreement, are findings based on due appreciation of the oral and 14 documentary evidence placed on record by the respective parties and do not warrant any interference.

21. For the forgoing discussions I do not find any infirmity or illegality in the impugned judgment and decree passed by the learned trial Court. The appeal being devoid of merit is liable to be and it is hereby dismissed.

22. The Decree be drawn accordingly.

23. The parties to bear their own costs. Sd/- (Parth Prateem Sahu) Judge Balram