JUDGMENT
T. Ch. Surya Rao, J.
1. These appeals can be disposed of together since they emanate from a common judgment and as the parties are also the same.
2. The unsuccessful defendant in O.S. No. 648 of 1985 and O.S. No. 187 of 1990 and the plaintiff in O.S. No. 108 of 1988 is the appellant in these appeals. She is assailing the common judgment dated 6.8.1993 passed by the learned Additional Chief Judge-cum-Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, in O.S. No. 648 of 1985, O.S. No. 108 of 1988 and O.S. No. 187 of 1990 and the decrees passed therein.
3. It is expedient here to refer the parties as they are originally arrayed to avoid any confusion. The factual matrix may be set forth at the outset thus: One Karnataka Mangamma filed the suits O.S.No. 648 of 1985 and O.S.No. 187 of 1990 against one A.Prameela Reddy-the defendant. The defendant in turn filed the suit O.S.No. 108 of 1988 against the plaintiff in the other two suits. While the suits O.S.No. 648 of 1985 and O.S.No. 187 of 1990 were filed by the plaintiff seeking the reliefs of specific performance and perpetual injunction respectively; O.S.No. 108 of 1988 was filed for the relief of eviction by the defendant. The subject matter in all the three suits is one and the same and is the house bearing No. 2 RT 125-B and bearing Municipal No. 7-1-621/247 situate at Sanjeeva Reddy Nagar, Hyderabad (for short ‘the suit house’). It is the case of the plaintiff that the suit house was allotted to the defendant by the A.P. Housing Board on the basis of an agreement of sale-cum-lease under the document dated 10.12.1969. She (defendant) was inducted into possession thereof on 14.12.1969. Pursuant to the terms stipulated inter alia in the document dated 10.12.1969 the defendant paid an amount of Rs. 5,851/-initially and agreed to pay the balance of 80% of the cost in annual instalments spread over for a period of 25 years. Since the defendant was in financial troubles and was unable to pay the annual instalments and having been afraid of the forfeiture clause entailing the forfeiture of the amount already paid in the event of any default, she entered into an agreement of sale with the plaintiff agreeing inter alia to sell the house to the plaintiff who should clear the balance instalments of sale consideration of the suit house to the A.P. Housing Board. The agreement of sale dated 5.12.1970 was executed by the defendant in favour of the plaintiff and received an amount of Rs. 5,851/- thereunder representing the amount paid by the defendant initially under the agreement of sale-cum-lease which she entered into with the A.P. Housing Board. The defendant agreed to execute the sale deed after the payment of the entire sale consideration by instalments by getting the sale deed registered in her name by A.P. Housing Board itself or to execute the registered sale deed directly by her in favour of the plaintiff after getting the sale deed executed by A.P. Housing Board in her (defendant) favour. The plaintiff was given vacant possession of the suit house immediately under the agreement and thus the plaintiff has been in possession and enjoyment of the suit house since then. The plaintiff paid all the instalments to the A.P. Housing Hoard from 11.12.1970 to 14.4.1980, even far before the period fixed under the document dated 10.12.1969 and obtained the receipts for a total amount of Rs. 41,310.01 ps. After such clearance, when the plaintiff approached the defendant for execution of the sale deed, the defendant promised to get the sale deed executed in her favour by the A.P. Housing Board first and in turn to execute the registered sale deed in favour of the plaintiff but she has been postponing till the month of August, 1985. On 1.8.1985 the husband of the defendant came with anti-social elements to the suit house and threatened to dispossess the plaintiff. The plaintiff came to know on that day that the A.P. Housing Board executed the sale deed on 7.10.1980 already in favour of the defendant in respect of the suit house. Thereafter, the plaintiff got it confirmed from the A.P. Housing Board about the execution of the sale deed. Till then, the plaintiff was kept in dark by the defendant. When the plaintiff sent a representative to the defendant, the defendant falsely represented that she was not expected to execute a sale deed before the expiry of five years from the date of the execution of the sale deed by the A.P. Housing Board. Apprehending dispossession, the plaintiff, therefore, filed a suit for perpetual injunction in O.S. No. 2711 of 1985 before the VIII Assistant Judge, City Civil Court, Hyderabad, and obtained an interim injunction. Thereafter, she got legal notice dated 16.8.1985 issued to the defendant calling upon her to execute the sale deed. The defendant having received the same on 20.8.1985 failed to execute the sale deed. It is the case of the plaintiff that she has performed her part of obligation under the contract of sale but there has been breach of the terms of the contract by the defendant. Therefore, ultimately she filed the suit on 23.9.1985 for specific performance.
4. The plea of the defendant, inter alia, in her written statement was that she never entered into an agreement of sale dated 5.12.1970 with the plaintiff and in fact she did not know the plaintiff even. She having purchased the same from the A.P. Housing Board under hire purchase agreement dated 10.12.1969 paid all the instalments, under the registered sale deed dated 7.10.1980 executed by the A.P. Housing Board in her favour. The father of the defendant, by name, Sri G.V. Malla Reddy used to help the defendant for payment of annual instalments to the A.P. Housing Board pursuant to his promise to the defendant at the time of her marriage towards pasupukumkuma. She entrusted the monies thus paid by her father to the respondent by making the payment in the Office of the A.P. Housing Board. She was in fact informed by her husband that the husband of the plaintiff, by name, Chandrasekhar who happened to be his friend was searching for accommodation in Hyderabad in the year 1977 and on the recommendation of her husband, she permitted the plaintiff’s husband and his family to occupy the suit house temporarily for a period of two or three months till he acquires suitable accommodation in Hyderabad. However, the husband of the plaintiff taking undue advantage of his friendship with the husband of the defendant was avoiding to vacate the suit house on one pretext or the other. The husband of the plaintiff died about three years prior to the filing of the suit and after his death, on sympathetic consideration the defendant allowed the plaintiff to remain in the possession of the suit house till she finds alternative accommodation. Having waited for a period of six months when the defendant asked her husband to see that the plaintiff vacates, the plaintiff having misused the sympathy while avoiding to vacate the suit house ultimately filed the suit with mala fide intention. Therefore, the defendant filed a suit O.S.No. 297 of 1986 on the file of the II Additional Judge, City Civil Court, Hyderabad, seeking eviction of the plaintiff from the suit premises.
5. The suit O.S.No. 297 of 1986 filed for eviction was transferred and renumbered as O.S.No. 108 of 1988 on the file of the Additional Chief Judge-cum-Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. Similarly, the suit O.S.No. 2711 of 1985 filed before the VIII Assistant Judge, City Civil Court, Hyderabad by the plaintiff for perpetual injunction was transferred and re-numbered as O.S.No. 187 of 1990. All the three suits O.S.No. 648 of 1985 for specific performance; O.S.No. 108 of 1988 for eviction; and O.S.No. 187 of 1990 for perpetual injunction were tried together. The evidence was let in the suit O.S.No. 648 of 1995.
6. The following issues were settled at the time of settlement of issues for trial in between the parties in O.S.No. 648 of 1985:
(1) Whether the agreement of sale dated 5.12.1970 is true, valid and binding on the defendant?
(2). Whether the plaintiff is entitled to the specific performance as prayed for?
(3) To what relief? O.S. No. 187 of 1990:
(1) Whether the plaintiff is entitled to perpetual injunction as prayed for?
(2) To what relief? O.S.No. 108 of 1988:
(1) Whether the defendant is in permissive possession of the suit house?
(2) Whether the possession of the defendant in the suit house is in part performance of the agreement of sale dated 5,12.1970?
(3) Whether the suit claim is barred by adverse possession?
(4) To what relief?
7. At the time of the trial, three witnesses were examined on the side of the plaintiff and Exs.A.1 to A.20 were got marked. Four witnesses were examined on the side of the defendant and Exs.B.l1to B.8 were got marked. Exs.C.1, C.2 and X.1 and X.2 were got marked at the instance of the plaintiff separately.
8. Having regard to the competing claims of the plaintiff and defendant and appreciating the evidence both oral and documentary on the point, the learned Additional Chief Judge decreed the suit for specific performance in O.S.No. 648 of 1995 and the suit O.S.No. 187 of 1990 for perpetual injunction in favour of the plaintiff and dismissed the suit O.S.No. 108 of 1988 for eviction filed by the defendant. While decreeing two suits and dismissing the other suit, the learned Judge was of the view that the suit agreement of sale dated 5.12.1970 marked as Ex.A.2 is true, valid and binding on the defendant and the plaintiff was inducted into possession of the suit house under Ex.A.2 pursuant to the terms incorporated therein. As aforesaid, having been aggrieved by the common judgment and decrees passed in the three suits, the defendant filed the present appeals.
9. The learned Counsel appearing for the appellant-defendant seeks to contend that Ex.A.2-agreement of sale is not true, valid and binding; and that Ex.A-4-receipts prove that the bulk amount of Rs. 21,284/- was paid by the defendant but not by the plaintiff; and that the suit filed for specific performance is barred by limitation; and, therefore, the plaintiff is not entitled to the relief of specific performance.
10. The learned Counsel appearing for the respondent-plaintiff, on the other hand, contends that the suit filed for specific performance is well within the time inasmuch as the plaintiff had the knowledge about the execution of the sale deed by the A.P. Housing Board in favour of the defendant only on 1.8.1985 and in view of the clear oral and documentary evidence, the plaintiff is entitled to the relief of specific performance.
11. The points, therefore, that arise for my determination in these appeals are:
(1) Whether Ex.A.2-suit agreement of sale is true, valid and binding on the defendant?
(2) Whether the suit filed for specific performance is barred by limitation? And
(3) Whether the plaintiff has performed her part of contract pursuant to the terms of the suit agreement of sale (Ex.A.2) and is entitled to the relief of specific performance?
Point No. 1:
12. Admittedly, the defendant purchased the suit house from the A.P. Housing Board. The original contract of sale-cum-lease/hire purchase agreement has not been produced before the Court. The consideration should be paid in instalments. It is a Middle Income Group (MIG) house bearing No. 2RT 125-B and its municipal number is 7-1-621/247. While it is the case of the plaintiff that the defendant having not been in a position to pay instalments, agreed to sell the suit house in favour of the plaintiff under Ex.A.2-contract of sale and it is she (plaintiff) who paid the instalments till the end and has been inducted into possession thereof; the case of the defendant is that she never executed Ex.A.2-contract of sale in favour of the plaintiff; and that the husband of the plaintiff being a friend of the husband of the defendant, had been permitted to reside in the house temporarily and continued therein and, therefore, the possession of the plaintiff is only permissive. Thus, the execution of Ex.A.2-contract of sale has been denied by the defendant. In proof thereof, the plaintiff examined P.Ws.2 and 3 the attestors of the document. The plaintiff, however, has not chosen to come into the witness box on the premise that she had been old and sick. Instead, her son-in-law who is said to have been conversant with the state of affairs has been examined as P.W.1. That P.W.1 has been looking after the affairs of the plaintiff has squarely been admitted by D.W.1-the defendant in her cross-examination in answer to a specific question put in regard thereto. It may be mentioned at the outset that non-examination of the plaintiff is of no consequence under the circumstances. The oral testimony of P.Ws. 1 to 3 is consistent on the point of execution of Ex.A.2. As discussed hereinabove, P.Ws.2 and 3 are the attestors of Ex.A.2. The credibility of these two witnesses has not been shaken in any way in the cross-examination. In fact, no ill-will or motive has been suggested to these two witnesses in the cross-examination so as to depose falsehood against the defendant. Therefore, there is no reason as to why the evidence of these two witnesses shall not be believed. As against this evidence on the side of the plaintiff in proof of the execution of Ex.A.2, there is the testimony of the defendant, her husband, and father as D.Ws.1 to 3 respectively and D.W.4 the clerk of the A.P. Housing Board. The testimony of D.W.4 is not relevant to this issue. There remains, therefore, the evidence of the defendant, her husband and her father respectively. One probability which is sought to be highlighted by the defendant is that she used to sign as “Prameela Reddy” or “Prameela Devi” but not as “Prameela” and inasmuch as Ex.A.2 bears the signature as “Prameela”, it is not her signature at all. True, in Ex.C.2-vakalath she signed as “Prameela Reddy”. No other document has been filed to show such a practice on the part of the defendant preceding the date of execution of Ex.A.2. Even otherwise, the probability cannot outweigh the clear and cogent oral evidence of P.Ws.2 and 3 who deposed categorically that the defendant signed in their presence on Ex.A.2.
13. It is the case of the plaintiff that she was inducted into possession of the suit house on the date of execution of Ex.A.2-contract of sale. Ex.A.2 is silent as regards the delivery of possession. P.W.2 deposed in his cross-examination that after the execution of Ex.A.2, three or four months later the plaintiff and her husband shifted to the suit house. Except the stray admission on the part of P.W.2, there is nothing on record to show that the plaintiff and her family entered into the suit house subsequent to the execution of Ex.A.2. That the plaintiff has been in possession of the suit house as on the date of filing of the suit house is an undisputed fact. The fact in dispute being the date of entry into the suit house by the plaintiff. The specific case of the defendant, inter alia, in her written statement was that on account of the friendship between her husband and the husband of the plaintiff, the husband of the plaintiff was permitted to reside temporarily in the suit house for a period of two or three months by her husband and they continued there subsequently; and that after the demise of the plaintiff’s husband, out of sympathy she had been allowed to continue for some more time but she did not vacate the house thereafter. It may be mentioned here that it is not a case of any tenancy between the plaintiff and the defendant. As per the defendant’s case it is nothing but sheer permissive possession of the plaintiff having been inducted for the first time in the year 1977. As against these rival claims, the plaintiff has sought to prove her possession from the year 1971 itself. Exs.A.16 to A.20 are the documents upon which the plaintiff seeks to place reliance. Ex.A.16 is the radio licence issued in favour of the husband of the plaintiff. The address mentioned therein is 2RT/125 of Sanjeeva Reddy Nagar, Hyderabad, undoubtedly the address of the suit house. Ex.A.17 is the letter received by the husband of the plaintiff from Prime Minister’s Secretariat. This letter is nothing but an acknowledgement of the letter received in the Prime Minister’s Office addressed by the plaintiffs husband. Again the address mentioned inter alia in that letter is of the suit house. Ex.A.18 is the enumeration slip. The names of the plaintiff and her husband have been enumerated in the Voters’ List. The door number has been mentioned in this document as 7-1-621/247, which is the municipal door number of the suit house. Ex.A.19 is the cash bill given by the Hyderabad Gas Company in favour of the plaintiff’s husband. Ex.A.20 is the contract between the Cal. Gas Agency and the husband of the plaintiff for the gas connection. The address given inter alia in this document is again that of the suit house. All these documents dated 12.4.1972; 8.7.1975; 28.6.1971; 10.2.1971; and 20.2.1971 respectively would amply prove the possession of the suit house by the plaintiff right from the year 1971 onwards. As against these documents, there are Exs.B.3 to B.8 on the side of the defendant. Exs.B.3 to B.6 are the property tax receipts. They stand in the name of the defendant. The house number mentioned therein is obviously 621/247. However, they are in between 16.8.1985 to 30.6.1992. There is nothing extraordinary in paying the property tax of the suit house by the defendant – obviously the owner thereof -and obtaining the receipts in token thereof. There is no covenant to the effect that the plaintiff should pay the property tax. Admittedly, the sale deed was executed in favour of the defendant by the A.P. Housing Board on 7.10.1980. The suit for specific performance was instituted on 23.9.1985. Earlier to the institution of the suit, the plaintiff got the registered notice dated 16.8.1985 issued to the defendant which was received by her on 20.8.1985. The documents which are dated subsequent to the institution of the suit being the documents post litem motem cannot have any evidentiary value. Obviously, such documents are emanated subsequent to the arising of the dispute between the parties inter se. Therefore, they shall have to be eschewed from consideration. Even otherwise, as discussed hereinabove, they being the property tax receipts and the defendant being the owner, there is nothing significant in having paid the property tax payable over the suit house. Such documents per se cannot prove the possession over the suit house. Exs.B.7 and B.8 are the office copies of the notice issued by the A.P. Housing Board to the husband of the defendant and the reply letter said to have been given by the husband of the defendant in reply to Ex.B-7-notice. It has been mentioned inter alia in these documents that the husband of the defendant is a tenant in respect of the house bearing No. l25/2RT B Type. This evidence cannot be considered for the simple reason that it is not the plea of the defendant that the plaintiff had been inducted into the possession of the suit house as a tenant. On the other hand, it is the specific plea of the defendant that it is a permissive possession. No amount of evidence which is contrary to the plea can be permitted to be adduced and relied upon by the Court. Vide Ravinder Singh v. Janmeja Singh, , (Head Note “B”). Therefore, Exs.B.7 and B.8 shall have to be eschewed from consideration. There remains no documentary evidence to show the earlier possession of the defendant prior to the alleged induction of the plaintiff in the year 1977. The documentary evidence adduced on the side of the plaintiff as discussed hereinabove show the possession from the year 1971 onwards. This evidence is consistent with the plea of the plaintiff that she had been inducted into the possession of the suit house under Ex.A.2-contract of sale. The stray allegation of P.W.2 in this regard that the plaintiff and her husband moved into the suit house three or four months after the execution of Ex.A.2 pales into insignificance having due regard to the specific plea in the plaint and proof of the same by means of Exs.A.16 to A.20.
14. Coming to the probability part of the permissive possession pleaded by the defendant, on the face of it suggests that it is highly improbable. It cannot be believed without any pinch of salt that a friend who has been inducted into possession of the house for a short period of two or three months has been allowed to continue therein without taking even a pie from him for a period of nearly eight years, however much the friendship might be. Can it be a case where a person is allowed to continue for a period of more than seven years who entered the house to remain therein for a short period of two or three months. This plea of permissive possession appears to be highly improbable and quite inconsistent with the natural course of events and human conduct. When the defendant who wanted to purchase the house for her personal residence and that too when the consideration has not yet been paid in full and is being paid in instalments, it appears very odd for any reasonable prudent man to believe that a person has been inducted into possession gratuitously. Therefore, the plea of the defendant that it is a case of permissive possession for the reasons hereinabove discussed cannot be accepted.
15. Turning to the payment of instalments to A.P. Housing Board, Exs.A.3 to A.12 are the challans whereunder the instalments have been paid to the A.P. Housing Board in the name of the defendant and in respect of the suit house. All these documents emanated from the custody of the plaintiff. While Ex.A.4, bears the signature of the defendant, all other documents bear different signatures above the column meant for the signature of the remitter. The explanation offered in this regard by the defendant is that she used to give this amount to her husband as given by her father-D.W.3 and her husband in turn used to get the instalments paid by the husband of the plaintiff. Her specific plea being that her father paid the amount in lump sum of Rs. 21,284.90 ps. and that amount was paid under Ex.A.4 under her signature. Even then, the custody of the challan by the plaintiff cannot be denied. In ordinary course, if the plea of the defendant were to be accepted, these challans should have been in the custody of the defendant or her husband. They cannot be allowed to be remained in the possession of the plaintiff. There has been no explanation whatsoever on the part of the defendant as to why these documents have been allowed to remain in the custody of the plaintiff. In the absence of any such cogent explanation, the plea of the plaintiff that she paid the instalment amounts under Exs.A.3 to A.12 pursuant to the terms of the contract of sale under Ex.A.2 is quite consistent Therefore, there is no reason as to why it shall not be accepted. Well, the payment of instalments under Exs.A.3 to A.12 and the possession as proved under Exs.A.16 to A.20 are the two important circumstances which render any amount of support to the plea of execution of Ex.A.2-contract of sale. The cumulative effect of the oral evidence of P.Ws.2 and 3 the attestors, the circumstantial evidence of possession as well as payment of consideration by instalments under the challans and the improbability of the plea of permissive possession taken up by the defendant, would certainly go in support of the proof of execution of Ex.A.2. Added to it, it is for the first time, the plaintiff got a notice issued to the defendant and then filed the suit for perpetual injunction. There has been no effort whatsoever on the part of the defendant to dispossess the plaintiff having pleaded the permissive possession.
16. For the foregoing reasons, I am of the considered view that there is nothing to interfere with the finding of the Trial Court that Ex.A.2-contract of sale is true, valid and binding on the defendant.
Point No. 2:
17. Apropos the plea of limitation, it is appropriate here to consider the terms and conditions incorporated in Ex.A-2-contract of sale. The last condition incorporated in page three of Ex.A.2 shows that the transferor, namely, the defendant was at liberty to pay the Board at any time before the expiry of the period of 25 years set forth in the document for clearance of the instalments, the balance of the consideration in one lump sum and get the property transferred in her name by the Board after five years from the date of the lease-cum-sale agreement dated 10.12.1969 and only on such payment, the Board shall convey the property in the name of the transferor. The condition incorporated in page 4 of Ex.A.2 shows that the transferee agreed to have all the future ownership over the property, which rights accrued to the transferor on or after 10.12.1974 on the following conditions:
(1) That she should pay a sum of Rs. 5,851/-to the transferor towards the expenditure incurred by her till that date;
(2) That she shall pay all such annual instalments as fixed by the Board on behalf of the transferor and obtain the receipts and keep them in her custody till such time she is entitled for conveyance by the Board and thereafter the transferor shall execute the proper assignment deed with notice to the Board for executing the conveyance in favour of the transferee to avoid double costs of conveyance;
(3) That the transferor shall after obtaining the previous sanction of the Board, deliver the possession to the transferee;
(4) That the agreement is only a transfer of future rights of the transferor and such an agreement is not opposite to the terms of the lease-cum-sale agreement; and
(5) That the transferor does give notice of assignment to the Board to have the property conveyed in favour of the transferee within three years from 10.12.1974 or on payment on behalf of the transferor to the Board the entire balance of the sale price, the transferee shall be at liberty to have the conveyance duly executed by the transferor through Court of law.
18. As can be seen from the above conditions stipulated inter alia in Ex.A.2-contract of sale, it is obvious that there has been no date set forth specifically for the performance of the contract. It is conspicuous in the terms of the contract that the transferor should get the conveyance first from the A. P. Housing Board and thereafter she should execute a proper assignment deed with notice to the Board to avoid double costs of conveyance. Such conveyance may be after five years from 10.12.1969 i.e., after 10.12.1974 in the event of the balance sale consideration is paid in lump sum or after the payment of the entire balance of sale consideration in instalments on which event the Board is expected to transfer the property in favour of the purchaser, namely, the defendant, It may be reiterated here that the period for payment of instalments is spread over to 25 years. Even before that, it is open to the defendant to pay the entire consideration in lump sum. In the instant case, the plaintiff cleared the balance of sale consideration in paying the instalments within a period of 10 years. The cause of action arises for her to claim the conveyance from the defendant only when the defendant executes an assignment deed with the knowledge of the Board. It is obvious, therefore, that there has been no specific date set forth inter alia in Ex.A.2 for the performance of the contract. Well, once that is clear, Article 54 of the Limitation Act, the appropriate article which provides for the period of limitation, shows that the period begins to run from the date set forth in the contract inter alia if any or in the event no such date is set forth, on the date when the performance is refused. Here is a case where the plaintiff got issued the notice in Ex.A.13, which was received by the defendant as per Ex.A.14 on 20.8,1985. But the defendant refused to execute the sale deed by taking up the plea that she never executed Ex.A.2-contract of sale. That gives the cause of action for the plaintiff and since then within three years she can lay the suit for specific performance against the defendant.
19. Coming to the law on the point, the Apex Court in Ramjibhai v. Narottamdas, AIR 1986 SC 1912, held that inasmuch as the vendor has undertaken upon himself the obligation of procuring the necessary sanction from the Collector for conversion of the disputed land into village site, the suit could be laid within three years from the date of obtaining such permission in view of Article 113 of the Limitation Act. The delay in obtaining the permission cannot be attributed to the vendee.
20. In Babu Ram v. Indra Pal Singh, , the Apex Court held thus:
“Under Article 54 of the Limitation Act, 1963, it is stated in the third column that the suit for specific performance had to be filed within 3 years from the date stipulated in the contract or from the date of refusal to perform the contract. In the present case, even though a period of 5 years is fixed for exercising the option to repurchase, it is not specified in the agreement that the vendee shall execute the deed of repurchase within a particular period from the date of exercise of option. Hence, the first part of the third column of Article 54 does not apply. The second part applies. Time therefore starts to run only from 22.7.1968, the date when the defendant refused to execute the deed of reconveyance. The suit was filed on 6.10.1969 within 3 years from 22.7.1968. Suit is in time as held by the Trial Court.”
21. The first judgment of the Apex Court pertains to a case where there has been no refusal but there has been an obligation to be performed by the vendor himself by obtaining necessary sanction and there has been delay in having obtained such sanction. That was a case where Article 54 of the Limitation Act has no application and it is only the residuary Article 113 applied inasmuch as such situation has not been covered by either of the two limbs of Article 54. It is a clear case where no date has been set forth for performance nor does it a case where no such date having been set forth in the contract, the performance has been refused. However, from the facts in the latter judgment of the Apex Court, it is obvious that the latter part of Article 54 covers the situation inasmuch no date has been set forth in the contract for performance. That was a case where there had been a refusal to perform the contract. I am of the considered view, therefore, that the latter judgment of the Apex Court applies in all fours to the facts of the instant case.
22. As seen from the judgment in D.S. Thimmappa v. Siddaramakka, , it is a case of agreement of reconveyance. In case the repayment of amount was made within the stipulated period, the purchaser is expected to reconvey the property to the seller. The sale deed was executed on 20.7.1968. On that date, an agreement of reconveyance was also executed with a stipulation that in the event of the purchaser repaying Rs. 5,000/-within 8 years from that date in one lump sum, the purchaser would be entitled to have the sale deed executed and registered in her favour. It is the case of the purchaser that sometime in June, 1976 before the expiry of 8 years she approached the appellant but the appellant avoided reconveyance. Therefore, she got a notice issued through her lawyer to the purchaser. In such circumstances, it was held that the appellant by conduct refused to execute the sale deed on 19.7.1976 and suit filed on 20.7.1968 is well within the time.
23. In K. Sambasiva Rao v. P. Bangaru Raju, , the facts disclose that the contract of sale does not stipulate the date for performance but the defendant is expected to sell one acre out of the 13 acres of land within six months from the date of agreement and he is obliged to execute the sale deed. There has been no action on the part of either of the parties for ten years after such execution of the agreement. It was held that six months period stipulated for selection of one acre land cannot be termed as the period for performance of the contract. Therefore, the first part of Article 54 of the Limitation Act does not apply and the suit filed within three years from the date of refusal was held to be within the time.
24. In Shrikrishna Keshav Kulkarni v. Balaji, , the facts show that the sale deed was to be executed as per the terms of the agreement of sale after the attachment over the property got made by the creditors was raised. There was no indication as to when the attachment would be raised. Therefore, the Bombay High Court held that it was a case that no date was fixed for performance of the contract and the starting point of limitation was when the plaintiff had notice that the performance was refused.
25. Having due regard to the line of authority hereinabove discussed, it is manifest that when the date for performance of the contract is not set forth inter alia in the contract of sale, the period of limitation begins to run only from the date of refusal of such performance by the vendor of the contract of sale. Coming to the instant case, there has been no specific date set forth, as discussed hereinabove, inter alia in Ex.A.2 for the performance of the contract. Therefore, the first part of Article 54 of the Limitation Act has no application in this case. This is a case where the second part of Article 54 applies and the limitation would begin to run only from the date of refusal of such performance by the defendant. It cannot be said that the suit is barred by limitation. As hereinabove discussed, the plaintiff having got knowledge about the execution of the sale deed by the A.P. Housing Board in favour of the defendant after making necessary enquiries requested the defendant to execute the sale deed and got the registered notice issued in that regard. Therefore, it is only on and after the receipt of the registered notice under Ex.A.20 and when the defendant refuses to execute the sale deed, the limitation begins to run. Even the date of execution of Ex.B.1-sale deed by the Board in favour of the defendant is not the criterion in view of the second part of Article 54 of the Limitation Act.
26. For the above reasons, 1 am of the considered view that the suit is not barred by limitation.
Point No. 3:
27. On the question of the relief of specific performance, it is well settled that it is a discretionary relief to be granted by the Court in favour of the plaintiff. As can be seen from the facts and circumstances of the instant case, no delay or laches can be attributed to the plaintiff. The last payment was made towards the instalments due on 14.4.1980 as can be seen from Ex.A,3 by the plaintiff. The defendant obtained the sale deed from the Board on 7.10.1980. The plaintiff pleads that the defendant surreptitiously obtained the sale deed in her favour without disclosing the same to the plaintiff and she could realise that such a sale deed was executed by the A.P. Housing Board in favour of the defendant, when the husband of the defendant came along with some anti-social elements to dispossess her, and that after making necessary enquiries in the Office of the A.P. Housing Board she could come to know after 1.8.1985 that the defendant obtained the sale deed in her favour. Even assuming for a moment that it was a case where the plaintiff could have requested the defendant to execute the sale deed so soon after the payment of the last instalment in the year 1980 under Ex.A.3, still it cannot be said that, that would be the starting point of limitation and no knowledge could be attributed to the plaintiff in that regard about the existence of Ex.B.1-sale deed in favour of the defendant. The evidence let in by the plaintiff on the point remained almost uncontroverted. Therefore, no laches or inequity can squarely be attributed on the plaintiff under the circumstances.
28. Well that be the case, I see no bar for refusing the equitable relief. The learned Counsel appearing for the defendant-appellant seeks to contend that here is a case where the property was purchased way back in the year 1969 and by 1985 there has been appreciation of the value of the property in such an event that if the defendant is asked to execute the sale deed it would be causing hardship to her. The learned Counsel further seeks to place reliance upon the judgment of the Apex Court in K. Narendra v. Riviera Apartments (P) Ltd. That was a case where the parties showed intention to perform the contract within a period of about 2 1/2 to 3 1/2 years. Therefore, the agreement incorporated inter alia specifically time limit within which it should be performed. When there has been failure on the part of the purchasers to perform their obligation within the reasonable time and in the period interregnum if there has been astronomical rise in the value of the land, and also a part of the property rendered inalienable having been acquired by the State and some other part also found to be inalienable under the Urban Land Ceiling Regulation Act, it was held by the Apex Court that the discretionary jurisdiction of decreeing specific performance ought not to be exercised. The facts of the present case are not similar to those facts. I, therefore, see no legal impediment for granting relief to specific performance in favour of the plaintiff. Having regard to the findings that the plaintiff is entitled to the reliefs of permanent injunction and specific performance the defendant is not entitled to the relief of eviction and therefore her suit filed for eviction in O.S 129/94 must fail.
29. For the foregoing reasons, the appeals must fail. In the result, these appeals – CCCA No. 6 of 1994, CCCA No. 129 of 1994 and CCCA No. 172 of 1994 – are dismissed with costs.
