JUDGMENT
M.L. Singhal, J.
1. This is a regular second appeal brought by Harnam Singh plaintiff against the judgment and decree dated 31.1.1996 of Additional District Judge, Ferozepur whereby he had allowed the defendant Mangat Singh’s appeal against the judgment and decree dated 4.11.1993 of Sub Judge First Class, Zira whereby he had decreed the plaintiff-appellant Hamam Singh’s suit for specific performance of the agreement dated 1.11.1982 and 11.1.1984 to sell land measuring 8 kanals 0 marla situated in village Sherpur Taiban.
Facts:-
2. Harnam Singh filed suit for specific performance of agreement to sell dated 1.11.1982 confirmed by subsequent agreement dated 11.1.1984 directing defendant Mangat Singh to execute registered sale deed in his favour for a sum of Rs. 21,250/- on receipt of the remaining sum of Rs. 1,750/- after adjusting Rs. 17,000/- paid to him as earnest money at the time of execution of agreement dated 1.11.1982 and another Rs. 2,500/- paid to him vide agreement dated 11.1.1984 in respect of 8 Kanals of land as detailed in the heading of the plaint; in the alternative, for the recovery of Rs. 21,250/- as damages and compensation for breach of agreement dated 1.11.1982 confirmed by
agreement dated 11.1.1984. It was alleged in the plaint that this land was originally owned by the Centra! Government. Defendant Mangat Singh purchased this land from the Central Government. On 11.1.1982, he entered into agreement to sell this land measuring 8 kanals with the plaintiff Harnam Singh for a sum of Rs. 21.250/-. He received Rs. 17,000/- as earnest money at the time of execution of agreement which was scribed by Bhagwan Singh, Document Writer, Dharamkot and witnessed by Harnam Singh and Cha-nan Singh both residents of village SherpurTaiban. At the time of agreement, there was no mutation sanctioned in favour of the defendant. It was agreed that after mutation was sanctioned, the defendant will serve one month’s notice upon the plaintiff for the execution of the sale deed and only after notice, sale deed was to be executed. Itwas alleged in the plaint that the defendant required more money and on 11.1.1984, he received Rs. 2,500/- from the plaintiff. Fresh agreement of saie was executed in favour of the plaintiff by the defendant in which the defendant admitted the correctness of agreement dated 1.11.1982. This agreement was scribed by same Bhagwan Singh Document Writer and witnessed by Wariam Singh and Jaswant Singh both residents of village Sherpur Taiban, It was alleged in the plaint that he had always been ready and wiling to obtain sale deed from the defendant on payment of the remaining sum of Rs. 1,7507-. He was always ready and willing to perform his part of the agreement. He enquired about the sanction of mutation from the defendant a number of times and requested him to execute sale deed in his favour. Every time the defendant replied that mutation had not been sanctioned in his favour. On 30.5.1991, he enquired about the sanctioning of mutation from the office of Sales Department, Zira and came to know that muia-tion had been sanctioned in his favour. On 1.6.1991, he issued notice to the defendant through registered post requesting him to execute sale deed in his favour. He received notice bui did not reply. On these allegations, lie filed suil for specific performance, in the alternative for the recovery of Rs. 21,2507-as damages and compensation with pendente lite future interest @ 12% per annum.
3. Defendant contested the suit of the plaintiff. Itwas denied that he executed any agreement dated 1.11.1982 in favour of the plaintiff. It was denied ihat he received any sum of Rs. 17,000/- on 1.11.1982. It was denied that he confirmed that agreement vide another agreement dared 11.1.1984. It was denied that he received any sum of Rs. 2500/- on 11.1.1984 from the plaintiff. Land was purchased by him from the Central Government vide conveyance deed dated 5.4.1991. He always signs and never thumb marks while the so-called agreements bear thumb impressions. On these pleadings of the parties, the following issues were framed :
1. Whether the defendant entered into an agreement to sell the suit property with the plaintiff dated 1.11.1982 confirmed on 11.1.1984 and received
Rs. 17,000/- as earnest money on 1.11.1982 and Rs.2500/- on 11.1.1984 ? OPP
2. Whether the plaintiff has always been ready and wiling to perform his part of the agreement ? OPP
3. Whether the plaintiff is entitled to the specific performance of the agreement ? OPP
4. Whether the plaintiff is entitled to recover Rs. 21,250/- in the alternative ? OPP
5. Whether the suit is time barred ? OPD
6. Relief.
4. Vide order dated 4.11.1993, Subordinate Judge First Class, Zira decreed the plaintiff’s suit for specific performance directing the defendant to execute sale deed in his favour on receipt of the remaining sum of Rs. 1,7507- in view of his finding mat the defendant had executed agreement to sell dated 1.11.1982 Ex.P1 in favour of the plaintiff whereby he had agreed to sell land measuring 8 kanals to him for a sum of Rs. 21,250/- and that he had received Rs. 17,000/- as earnest money thereunder and further he had executed another agreement Ex.P2 dated 11.1.1984 confirming the previous agreement and received Rs. 2,500/- thereunder. Ii was found that the plaintiff had always been ready and willing to obtain sale deed from the defendant on payment of the remaining sum of Rs. t ,7507- to him and that the defendant defaulted and ran away.
5. Defendant went in appeal which was allowed by Additional District Judge, Ferozepur vide order dated 31.1.1996. Not satisfied wiih the order of Additional District Judge, Ferozepur, plaintiff Harnam Singh has come up in appeal to this court.
6. It was submitted by the learned Counsel for the appellant that both the agreements are proved to have been executed by Mangat Singh in favour of the appellant namely Ex.P1 dated 1.11.1982 and Ex.P2 dated 11.1.1984 if we look to the statement of Harnam Singh, Bhagwan Singh, and Wariam Singh PWs. Harnam Singh plaintiff (PW1) stated that agreement to sell Ex,PI was executed by Mangat Singh respondent-defendant in his favour whereby he undertook to sell land measuring 8 kanals to him fora sum of Rs. 21,250/-. He further stated that he paid Rs. 17,000/- as advance (o Mangat Singh defendant. He was to pay the remaining sale money to him at the time of the registration of the sale deed. Agreement Ex.Pl was attested by Harnam Singh son of Sunder Singh and Chanan Singh son of Kapur Singh. It was thumb marked by him. Itwas thumb barked by Mangat Singh defendant. He stated that Bhagwan Singh PW scribed this agreement. After he had scribed this agreement, he read out this agreement to him, Hamam Singh, Chanan Singh and Mangat Singh. Harnam Singh signed while they thumb marked this agreement. Agreement Ex.Pl could not be thrown on the mere ground that Harnam Singh did not produce either of its attesting witnesses (o state that a sum of Rs. 17.000/- was paid to Mangat Singh by Harnam Singh in his presence.
7. Such agreements are not required by law to be com-
pulsorily attested. If such agreements are not required by law to be compulsorily attested, the production of Hamam Singh son of Sunder Singh or Chanan Singh son of Kapur Singh was not necessary. Bhagwan Singh PW3 who is the scribe of this agreement stated thai he scribed this agreement. A sum of Rs. 17,000/-was paid to Mangat Singh by Harnam Singh. Things do not stop here. Bhagwan Singh is the scribe of agreement Ex.P2 dated 11.1.1984. He stated that vide agreement Ex.P2, agreement Ex.PI was renewed. Vide agreement Ex.P2, a sum of Rs. 2,500/- was paid to Mangat Singh by Harnam Singh. He further stated that in agreement P2, Mangat Singh acknowledged to have executed agreement daled 1.11.1982 and the receipt of Rs. 17,000/- thereunder. Vide agreement Ex.P2, Mangat Singh acknowledged to have received in all a sum of Rs. 19,5007- towards agreement dated 1.11.1982 and agreement dated 11.1.1984. How can these admissions be brushed aside ? Wariam Singh PW3 is the attesting witness of agreement Ex.P2. He stated that vide agreement Ex.P2, agreement Ex.Pl was renewed by Mangal Singh defendant. Mangat Singh defendant received Rs. 2,500/- vide agreement Ex.P2. He admitted to have received Rs. 17,000/- earlier vide agreement dated 1.11.1982. Sale was to take place for a total consideration of Rs. 21,2507-. It was submitted that agreement Ex.Pl should not have been brushed aside by the learned lower Appellate Court by merely observing that attestation of the attesting witnesses appears on the first page of the stamp papers only and there is no attestation by the attesting witnesses on the second page of the stamp paper where the subject-matter of the agreement ends and, therefore, the agreement is not genuine.
8. Learned Counsel for the respondent submitted that the attestation of Hamam Singh and Chanan Singh appears only on the first page of the agreement Ex.Pl and it does not go further on the second page of the agreement. At the second page of the agreement, there is recital about the receipt of Rs. 17,000/- by Mangat Singh from Harnam Singh. It was submitted by the learned Counsel for the respondent that Hamam Singh son of Sunder Singh and Chanan Singh son of Kapur Singh attesting witnesses of this agreement were not thus witnesses to the payment of Rs. 17,000/- by Harnam Singh to Mangat Singh. Suffice it to say, this submission is fallacious. There is no evidence that Harnam Singh son of Sunder Singh and Chanan Singh son of Kapur Singh left immediately after the first page was complete and they were not present when the second page was being scribed, more so, when there is admission by Mangat Singh in agreement Ex.P2 about the receipt of Rs. 17,000/- on 1.11.1982 per this agreement (dated 1.11.1982).
9. Learned counsel for the appellant submitted that no doubt onus was on the plaintiff Harnam Singh to prove the execution of agreements Ex.P 1 and Ex.P2 by Mangat Singh in his favour and the receipt of consideration therefor by Mangat Singh from Harnam Singh but as soon as he had discharged this onus, the burden shifted
on to the respondent-defendant Mangat Singh to show that he had not executed these agreements nor had be received any sale consideration therefor. In his written statement/statements before the Court, Mangat Singh defendant had denied the very execution of these agreements and the receipt of consideration thereof. He could examine document expert to prove that the thumb impressions appearing on these agreements purportedly his are not in fact his. He did not do so. Non-production of the document expert by defendant-Mangat Singh gives rise to an inference against him, that is to say, if he had examined some document expert, he would have gone against him. In my opinion, thus the finding of the learned first Appellate Court that agreement Ex.P1 and Ex.P2 had not been executed by Mangat Singh in favour of Harnam Singh cannot be sustained as it is based on gross misappreciation of evidence that it has resulted into serious miscarriage of justice. Similarly, the finding of the lower appellate Court that Mangat Singh had received no consideration vide agreement Ex.Pl dated 1.11.1982 and Ex.P2 dated 11.1.1984 can also not be sustained. Finding of the learned trial Court that Mangat Singh had executed agreements Ex.P 1 and Ex.P2 and had received consideration evidenced by them is restored.
10. Learned counsel for the appellant next submitted that the plaintiff’s suit for specific performance was rightly decreed by the learned trial Court and this decree should be restored. It was submitted that in this case, the grant of relief for damages will not do justice to the appellant-plaintiff. In support of this submission, he submitted that out of the agreed sale consideration of Rs. 21,250,’-, Rs. 17,0007- had been paid as earnest money to the respondent-defendant on 1.11.1982 and anothe sum of Rs. 2500/- on 11.1.1984 and only a paltry sum of Rs. 1,750/- remained to be paid which was to be paid at the time of the registration of the sale deed. He submitted that the grant of the relief of specific performance might not have been possible after a lapse of 10-12 years if very small portion of consideration had been paid as earnest money and major portion of the sale money remained to be paid at the time of the registration of the sale deed. It is true that the grant of relief of specific performance is discretionary with the court and in fit cases court can refuse to grant this relief and grant mere relief of damages. In this case, the plaintiff came to the court with clean hands.
11. It was submitted by the learned Counsel for the respondent that at the time when the alleged agreement was entered into, Central Government was the owner of the land. Suffice it to say, if Central Government was owner of the land at the time of the execution of the agreement to sell and Mangat Singh acquired title to the land subsequently, he could be called upon to honour the agreement in view of (he provisions of Section 13 of the Specific Relief Act. Section 13 of the Specific Relief Act, 1963 reds as follows :-
“13. Rights to purchaser or lessee against person with no title or imperfect”.
(1) Where a person contracts to sell or left (let ?) cer-lain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely –
(a) if the vendor or lesser has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;
(b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;.
(c) where the vendor professes to sell unencumbered property, but the property is mortgaged Tor an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it the purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgagee;
(d) where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the vendor or lessor in the property which is the subject-matter of the conlract.
(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of moveable property.”
12. It is clear from the provisions of section 13 ofthe Specific Relief Act that if a person does not have title, the puncher has the right to compel the vendor to execute sale deed after he has acquired title. Mangat Singh entered into agreement to sell this land belonging to the Central Government because he was in its cultivating possession and the policy of the Central, Government was to allot such lands to the occupiers. Mutation of (his land was auctioned in favour of Man-gat Singh on 5.4.1991. After 5.4.1991, he could be called upon to execute sale deed in terms of agreement Ex.P1 and P2 as in agreement Ex.Pl, it is recited that Mangat Singh defendant would give notice to the plaintiff calling upon him to obtain sale deed from him wilhin a month. Defendant did not serve any notice upon the plaintiff. Plaintiff served notice Ex.P1/A daled 1.6.1991 calling upon him to execute sale deed in his favour within one month of copy of receipt of this notice in terms of agreements dated 1.11.1982 and 11.1.1984.
13. Plaintiff filed this suit on 27.7.1991 i.e. quite
within limitation. In this case, limitation would have commenced on the receipt of notice from Mangat Singh if it had been served upon the plaintiff informing him of the sanctioning of mutation. Assuming that the limitation commenced on 5.4.1991, the suit was within time in view of the provisions of Article 54 of the Limitation Act. Articles 54 of the Limitation Act prescribes 3 years as the period within which a suit for specific performance can be filed. Period of 3 years is to be calculated from the date specified in the agreement for performance or in the absence of any such stipulation, within 3 years from ihe date the performance was refused. In this case, 3 years limitation will commence when specific performance was refused. Specific performance shall be deemed to have been refused when notice Ex.Pl/A dated 1.6.1991 was received by Mangat Singh. In this case, the relief of specific performance could not be refused to the plaintiff simply because he filed this suit in the year 1991 of agreement dated 1.11.1982 and 11.1.1984 because cause for specific performance arose after conveyance deed (which is dated 5.4.1991) had been issued in favour of Mangat Singh by the Central Government conveying this land to him. Even otherwise also, Mangat Singh had already received more than 90% of the sale consideration on the basis of these agreements i.e. Rs. 17,000/- on 1.11.1982 and Rs. 2.500/- on 11.1.1984.
14. Plaintiff was always ready and willing to obtain sale deed on payment ofthe remaining sale money to the defendant. It is defendant who prevaricated and defaulted.
15. For the reasons given above, this appeal succeeds and is accordingly allowed. Judgment and decree of Additional District Judge, Ferozepur dated 31.1.1996 are set aside and those of Sub Judge First Class, Zira dated 4.11.1993 are restored. Plaintiff-appellant’s suit is decreed for specific performance of agreement to sell dated 1.11.1982/11.1.1984 in his favour against the respondent-defendant on the former’s paying to the latter a sum of Rs. 1,7507- at the time of execution/registration ofthe sale deed. Defendant-respondent shall execute sale deed in favour ofthe plaintiff within 3 months ofthe date of this order. If he fails to do so, the plaintiff- appellant can obtain sale deed through the process of executing this decree. Parties shall bear their own costs throughout.
16. Appeal allowed.