Fakir Babu Dhodi v. Dhiru Mangal Dhodi

Second Appeal No. 628 of 2025 is preferred by theoriginal plaintiff to challenge the concurrent judgments anddecrees dismissing his suit for specific performance. Theappellant filed the suit for specific performance on 29th July2015 to enforce an agreement dated 17th January 1989. Therespondent is the owner of the suit land. The respondent hadfiled a suit for possession. Second Appeal No. 640 of 20251/7Swapnil 37-SA-628-2025.docxarises out of the concurrent judgments and decrees forpossession in the suit filed by the respondent. Commonevidence was recorded in both suits. Since the facts in boththe appeals are in respect of the same property and betweenthe same parties, both the second appeals are decided bythis common order. 2. The appellant claims to be in possession of the suitland based on an agreement dated 17th January 1989. Hecontends that he was already in possession of the suit landand, by the said agreement, the respondent had agreed totransfer the land in his favour for a total consideration of Rs.20,000/- which was entirely paid to the respondent. Thecause of action to file the suit for specific performance ispleaded on the ground of a notice issued by the respondentobjecting to the construction carried out by the appellant andcalling upon the appellant to remove the illegal constructionand hand over the possession of the land. According to therespondent, the appellant was in permissive cultivation of theland.

Both courts have disbelieved that the suit agreement isa concluded contract between the parties. Hence, the prayer2/7 37-SA-628-2025.docxfor specific performance is refused. Both courts havedismissed the appellant’s suit on the ground that a concludedcontract is not proved and the suit for specific performance isnot within the period of limitation. So far as the respondent’ssuit for possession is concerned, both courts have held thatthe respondent is the owner of the suit land and the appellantwas in permissive use of the land only for cultivation. Theprayer for specific performance was refused, and theappellant is directed to hand over the possession afterremoving the construction carried out on the land.

Learned counsel for the appellant submits that theattesting witnesses to the suit agreement were examined bythe appellant. Thus, the terms and conditions of the contractare proved. It was a concluded contract between the parties, as the entire consideration had been paid and the appellantwas already in possession of the suit land. It was only afterthe respondent called upon the appellant to hand over thepossession of the suit land that the cause of action arose tofile the suit, as it was a refusal on the part of the respondentto specifically perform the contract. Since the appellant wasalready in possession, the respondent was only required to3/7 37-SA-628-2025.docxexecute the sale deed and transfer the land in favour of theappellant. He, therefore, submits that the second appealwould raise a substantial question of law on the perversefindings recorded by both the courts in refusing specificperformance despite the concluded contract proved by theappellant.

So far as the second appeal arising out of the decreefor possession is concerned, he submits that the decree waspassed only on the ground of refusal of specific performancein favour of the appellant. Hence, if the appellant succeeds inthe suit for specific performance, he would be entitled toconfirm his possession as the owner. Hence, even thissecond appeal would raise a substantial question of law onthe ground of whether, in view of the concluded contract infavour of the appellant, the respondent would be entitled toseek possession of the suit land.

I have perused the papers of both the second appeals. The copy of the agreement is annexed to the second appeal. The agreement states that the appellant has been cultivatingthe land since 17th January 1980 and that the respondent, ofhis free will and consent, handed over the land for sale to the4/7 37-SA-628-2025.docxappellant. The respondent has disputed this agreement, contending that he had never agreed to sell the suit land tothe appellant and that he was only in permissive cultivation ofthe land. The respondent’s contention is accepted by bothcourts, which hold that the respondent called upon theappellant to hand over possession because he had startedillegal construction on the suit land. The oral evidence of theattesting witnesses was appreciated by both courts anddisbelieved the execution of a concluded contract.

A perusal of the plaint does not indicate any specificterms of the contract regarding the execution of the saledeed, thereby making the suit agreement a concludedcontract. Hence, both courts have disbelieved that theagreement is a concluded contract to sell the suit land. So faras the point of limitation is concerned, both the courts haveheld that in view of Article 54 of the Schedule of LimitationAct, the plaintiff has failed to prove that the suit for specificperformance of the agreement dated 17th January 1989 wasfiled within three years as contemplated under Article 54. Thenotice issued by the respondent, objecting to the constructionundertaken by the appellant and calling upon him to vacate5/7 37-SA-628-2025.docxthe land, is not considered a refusal to perform the contract.

In the absence of any particulars of the contract and avalid cause of action pleaded and proved, the prayer forspecific performance is rightly rejected by holding that thereis no concluded contract and the suit is not within the periodof limitation under Article 54. I see no reason to interfere withthe findings recorded by both courts, refusing specificperformance on the ground of no concluded contract and thesuit barred by limitation. There is no illegality or perversity inthe reasons recorded by both the courts. Arguments raised inthe second appeal arising out of the suit for specificperformance would amount to reappreciation of the evidenceon record, which is not permissible under Section 100 of the Civil Procedure Code, 1908 (“CPC”). Hence, no interferencein the dismissal of the suit for specific performance iswarranted in the second appeal, as it raises no question oflaw.

As far as the concurrent judgments and decrees forpossession are concerned, the respondent is admittedly theowner of the suit land. The appellant has contended that hewas already in possession before the execution of the6/7 37-SA-628-2025.docxagreement. There is no valid source of possession pleadedand proved by the appellant for retaining possession. Hence, even in the second appeal arising out of the concurrentjudgments and decrees for possession, no question of lawarises.