Banka Singh v. Surinder Kumar

The Hon(cid:146)ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. N.K. Sood, Advocate. For the Respondent : Mr. Ashok Sood, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been filed against the judgment and decree dated 26.4.2007 passed by the learned District Judge, Kangra, at Dharamshala, Himachal Pradesh in civil appeal No.152-B/XIII-

2005. The brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as (cid:145)the plaintiff(cid:146) for convenience sake) filed suit for possession and permanent injunction. The suit was decided by the trial court on

19.6.2003 and thereafter the plaintiff preferred an appeal and the learned 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 appellate court after setting aside the judgment and decree dated

19.6.2003 vide order dated 19.4.2005 remanded the case back to the trial court for fresh decision after framing two additional issues. The plaintiff after remand examined three witnesses and the defendant also produced one witness. The trial court dismissed the suit on 18.10.2005. The trial court held that the plaintiff had failed to prove the execution of the agreement Ex.PW-2/A, therefore, he was not entitled for possession of the suit land by way of specific performance of contract/agreement. The suit was also found to be barred by limitation. The plaintiff preferred an appeal against the judgment and decree dated 18.10.2005 in the Court of learned District Judge, Kangra at Dharamshala. The learned District Judge, Kangra at Dharamshala dismissed the appeal on 26.4.2007. This Regular Second appeal has been preferred by the plaintiff against the judgment and decree dated 26.4.2007. Mr. N.K. Sood, Advocate has strenuously argued judgments and decrees passed by the learned courts below are not sustainable. He has also argued that the plaintiff was always ready and willing to perform his part of contract. He further argued that the suit was filed within the limitation since according to him the limitation was to run from the date of mutation i.e.12.2.1997. Mr. Ashok Sood, Advocate has supported the judgments and decrees passed by the courts below. I have heard the learned counsel for the parties and perused the record carefully. The application for resumption was decided on 13.4.1983 vide Ex.DA. The suit land was ordered to be resumed in favour of Salig Ram, father of the defendant. The limitation to file the suit was up to 14.6.1986. The suit was filed by the plaintiff on 25.4.1997. The limitation prescribed 3 for filing suit for possession by way of specific performance of agreement to sell is governed by the provisions contained in Article 54 of the Indian Limitation Act, 1963. The period of three years has been prescribed in Article 54 of the Indian Limitation Act, 1963. The mutation was attested on

14.2.1997. The settled law is that the mutation does not confer any right/interest. The sale deed was to be executed as per agreement immediately after the orders of the LRO within two months. The learned District Judge has rightly reversed the findings of the trial court as far as the execution of the agreement Ex.PW-2/A is concerned on the basis of the statement of the plaintiff. The agreement Ex.PW-2/A was scribed by PW-2 Girdhari Lal Sharma, Advocate. PW-3 Jagishwar Singh has testified the agreement Ex.PW-2/A. The defendant when appeared as DW-1 has denied that his father has ever executed agreement Ex.PW- 2/A. The plaintiff has proved the signatures on the agreement Ex.PW-2/A of Sh. Salig Ram as well as Bela Singh. However, the plaintiff has failed to prove that he was ready and willing to perform his part of agreement. He was required to execute sale deed within two months after the date of decision of resumption application. The plaintiff while appeared as PW-1 has not deposed that he was ready and willing to perform his part of agreement within the said period. He was re-examined on 25.7.2005. In his cross-examination, he has not stated any word that his father or he himself was ready and willing to perform his part of agreement within the prescribed period. The mutation, as noticed above, was sanctioned on

14.2.1997. It was only thereafter that a legal notice was served upon the defendant showing his readiness and willingness to perform his part of agreement. He has not taken any steps till the defendant(cid:146)s father was alive. The plaintiff was bound to plead and prove that he was ready and willing to perform his part of contract. The plaintiff on the basis of the 4 statement of PW-2 Girdhari Lal Sharma has tried to prove that the registered sale deed was to be registered on payment of Rs. 3500/-, the remaining sale consideration after the mutation. The document Ex.PW- 2/A was scribed by PW-2. He cannot be permitted to say that the registered sale deed as per the terms and conditions of the agreement to sell Ex.PW-2/A was required to be executed and registered after the attestation of mutation. It is specifically recited in Ex.PW-2/A that the sale deed was to be executed by Salig Ram in favour of Banka Singh within two months of the decision of the LRO. The application was decided on

13.4.1983 vide order Ex.DA. In view of the discussion hereinabove, it is held that the plaintiff has failed to prove that he was ready and willing to perform his part of agreement. The findings recorded by both the courts below that the suit was barred by limitation are upheld. The suit was required to be filed not from the date of attestation of mutation, but it was to be filed immediately after the expiry of two months from the date of order dated 13.4.1983 (Ex.DA). In view of the observations made hereinabove, there is no substantial question of law involved in this appeal and the same is dismissed. There shall be no order as to costs.

3.9. 2008 *awasthi* (Rajiv Sharma ), J.