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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 440 /2008
Smt.Tulsabai wd/o Ramkrishna Avatade
Aged about 51 years, occu: Cultivator
R/o Khadaki (Bu), Tah.Maregaon
Dist. Yavatmal.
( Ori. Defendant No.10 ... ...APPELLANT
v e r s u s
1. Smt. Rajani wd/o Rajkumar Punyani
Aged 56 years, occu: service
R/o Station Road, Yavatmal
Dist. Yavatmal C/o Office of
District Superintendent of Police, Yavatmal
(Ori.Plaintiff)
2. Gopichand s/o Rajkumar Punyani
Aged about 36 years, occu: Business
R/o Shivaji Nagar Yavatmal
Dist. Yavatmal
(Ori.Defendant No.2). .. ...RESPONDENTS
............................................................................................................................
Mr. K.S. Narwade, Advocate for appellant
Mr. A. M. Deshmukh, Advocate for Respondents
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CORAM: A.P.BHANGALE, J.
DATED : 11th August, 2010
JUDGMENT :
This Second Appeal was admitted on 24th September, 2009 on
the following substantial question of law :-
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“Whether the counter-claim for specific performance of
contract could be said to be barred by limitation?”
2. This Appeal is at the instance of original defendant no.1
challenging the judgment and order dated 17th July, 2008 passed by
learned District Judge-1 at Pandharakwada in Regular Civil Appeal
No.77/2003 which was dismissed. The said appeal stems from
judgment and decree passed on 3rd September, 2001 by learned Joint
Civil Judge, Senior Division, Yavatmal in Special Civil Suit No.
95/1991.
3. The plaintiff had instituted the suit for possession, damages
and costs of the suit on the ground that the plaintiff is the owner of the
land bearing Gat No. 53 ( Old S.No. 34) admeasuring 4H 31R situated
at village Khadaki, Taluqa: Maregaon, Dist. Yavatmal. The suit land
was originally allotted in favour of one Shri Rajkumar Punyani, husband
of the plaintiff some in 1967-68, by the Government. After death of
Rajkumar Punyani, the plaintiff and her son (ori. Defendant no.2)
became owner of the suit property and were cultivating as Class II
occupants. The suit land could not be alienated or sold without prior
permission of the Government. In 1995 first defendant’s brother was
assigned the work of summer season (unhalwai) on payment of charges;
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but he took disadvantage and cultivated the suit land and inducted
name of first defendant, who took forcible possession pleading that she
has purchased under an agreement to sell and cultivated the land on
that pretext. First defendant contended that there was an oral agreement
to sell the suit land and price of suit was agreed at Rs. 49,000/-;
whereas Rs. 36,000/- was paid by way of an earnest money and
possession of land was handed over to her, while she agreed to pay Rs.
13,000/- at the time of sale deed pursuant to agreement to sell dated
25.5.1992. Later on, it was agreed on 29.4.1994 to obtain permission
of the Collector so as to execute the sale deed as plaintiff’s husband
was Class II occupant. The permission sought was, however, rejected.
4. The trial Court after dissecting the evidence led before it,
found that the plaintiff and second defendant agreed to sell the suit field
to first defendant and that she had paid earnest money in the sum of Rs.
36,000/- to the plaintiff and her son ( defendant no.2). The trial Court
disbelieved the case of the first defendant that she was put in
possession of the suit land pursuant to an agreement to sell. The trial
Court also negatived the case of the first defendant for specific
performance and alternate case for refund of Rs. 36,000/- and decreed
suit of the plaintiff for possession of suit land and also directed inquiry
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into mesne profits. The trial Court rejected the counter-claim of first
defendant.
5. The Appeal under section 96 of the Civil Procedure Code filed
by first defendant being Regular Civil Appeal No. 77/2003 was also
dismissed as lower Appellate Court recorded concurrent findings of
facts.
6. I have heard submissions at the Bar from rival Advocates.
7. Mr. K S Narwade, learned Advocate for appellant ( Ori. first
defendant ) submitted that the Second Appeal can be heard on the
basis of substantial question of law stated in the memorandum of
appeal although the Court may have failed to formulate it, once the
Court is satisfied that the case involved substantial question of law. He
relied upon single Judge Bench ruling reported in Bapu Khanu
Dhangar & others vs. Gundu Santu Dhangar { Through LRs} : 2001
(3) Mh.L.J. 521. Learned Advocate, further, argued that the counter-
claim by the first defendant ought to have been allowed for specific
performance of the agreement as the first defendant was put in
possession of the suit property pursuant to an agreement to sell and it
was for the vendor to obtain prior permission of the Collector to transfer
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the suit land to the first defendant. He further made reference to
following rulings :-
(i) Nathulal vs. Phoolchand: AIR 1970 SC 546 (ii) Rojasara Ramjibhai Dahyabhai vs. Jani Narottamdas {Through LRs }: AIR 1986 SC 1912; (iii) M.A. Jabbar & another vs. Life Insurance
Corporation Housing Building Employees Society:
2000 AIHC 2761 (AP).
Learned Advocate Shri Narwade, argued that in a contract if
specific date for performance is fixed, Art. 113 of the Limitation Act
1963, (hereinafter referred to as the “Act of 1963”) would be attracted
and not Art. 54 of the Act of 1963.
8. Per contra, Mr Deshmukh, learned Advocate for the
respondents opposed with vim and vigour the submissions on behalf
of the appellant on the ground the alleged agreement to sell was entered
into on 25.5.1992 on the pretext that the plaintiff had agreed to sell
suit land to first defendant. The counter -claim filed on 18.10.1999 in
the suit to claim specific performance of the agreement was hopelessly
barred by Art. 113 of the Act of 1963 as sale deed was to be executed
in the year 1993 and possession was to be given earlier. The
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possession was never given by the plaintiff in 1991 and therefore, for
the first defendant, there was no question of claiming benefit of the
doctrine of possession given in part performance of the agreement to
sell. Learned Advocate for the respondents contended that in the facts
and circumstances of the present case, the rulings relied upon by
learned Advocate for the appellants are not at all attracted, for the
simple reason that the counter-claim was barred under Art. 113 of the
Act of 1963.
9. It appears, in the facts and circumstances of the present
present case, that there was no permission from the Collector to enable
Class II occupant – allottee from the Government land to transfer the
land, therefore, no sale deed could have been executed. Under Art.
113 of the Act of 1963 residuary article clearly provides for period of
limitation of the years from the time when the right to sue accrued.
In the present case, the Collector of Yavatmal had refused to grant
permission on 30.1.1999. Predecessor-in-title of the plaintiff was late
Rajkumar Tekchand Punyani, who was allotted the suit land in 1967-
68 for cultivating it as Class II occupant. The alleged agreement to sell
was entered into between the plaintiff and the first defendant on
25.5.1992 for earnest money of Rs. 36,000/- and the balance of Rs.
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13,000/- was payable by 7.4.1993. Under these circumstances, the
counter-claim was rightly rejected in view of Art. 113 of the Act of 1963
as barred by limitation prescribed.
10. Both the Courts below have recorded concurrent findings
in respect of bar of limitation. Counter-claim is treated as separate suit
and is deemed to have been instituted on the date on which it is made
in the Court. In Dudh Nath Pandey {Through LRs} vs. Suresh
Chandra {Through LRs}: AIR 1986 SC 1509, it is held that finding
on limitation is finding of fact and cannot be interfered with in
Second Appeal by the High Court in exercise of powers under section
100 of the Code of Civil Procedure.
11. In the facts and circumstances of the present case, on merits,
the trial Court has found upon evidence led, that the plaintiff and second
defendant had agreed to sell the suit land to the first defendant and
accepted earnest money in the sum of Rs. 36,000/- from the first
defendant. In view of this finding recorded by the trial Court, although
the agreement to sell became void on account of subsequent refusal
of permission from the Collector, Yavatmal, the agreement turned out to
be void or impossible of performance, but the plaintiffs and original
defendant no.2, in view of the Section 65 of the India Contract Act,
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are liable to restore back the advantage received from the appellant
or to make compensation for it to the first defendant (appellant) from
whom they had received it. An useful reference may be made to ruling
in Chandan Mulji Nishar vs. Union of India : 2008(1) Mh.L.J. 703,
to find support to the above proposition. As a result of this discussion,
this Court must conclude that the counter-claim was barred by
limitation and no interference is required with concurrent findings of
facts recorded by the Courts below. The Appeal has to be dismissed on
this count. The plaintiff and original defendant no.2 are, however, in
view of Section 65 of the Indian Contract Act, are liable to refund the
amount received in the sum of Rs. 36,000 /- as earnest money to the
appellant ( first defendant ), along with interest at the rate of 6 % per
annum, from the date of counter-claim till realisation thereof. As the
parties are required to be restored back to their position as prior to the
suit agreement, there shall be modification to this extent in decree
passed by the trial Court. The Appeal is partly allowed accordingly. No
order as to costs.
JUDGE
sahare
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