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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:JUDGMENT:
S.B. Civil Second Appeal No.86/1992.
(Smt. Gheeshi Bai & Another Vs. Smt. Mangi Bai & Another)
DATE OF JUDGMENT : July 21, 2009
PRESENT
HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS
______________________________________
Reportable
Mr. Rajat Dave for the appellant.
Mr. Rameshwar Chauhan for the respondent.
In this second appeal filed under Section 100, C.P.C.,
the appellants are challenging the judgment and decree
dated 21.04.1992 passed by the Addl. District Judge No.1,
Udaipur in Civil Appeal No.43/1986, whereby, the learned
appellate Court reversed the judgment and decree dated
31.08.1985 passed by Addl. Civil Judge No.1, Udaipur in
Civil Original Case No.174/1978.
Challenge is made to the adjudication made on the
issue of relief clause because the learned appellate Court
decided issues No.1, 2 and 3 in favour of the plaintiff-
appellant; but, in the relief clause denied the relief of
specific performance of agreement and passed the decree
that the appellant will be entitled to the relief of payment
of Rs.500/- which is part-payment made by the appellant-
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plaintiff to the defendant when the agreement was
executed along with 9% interest with effect from
22.12.1973.
According to brief facts of the case, appellant-plaintiff
preferred suit against the defendant Mangi Bai and her
father for specific performance of the agreement for sale of
house for consideration of Rs.4,500/-. It is stated in the
plaint that out of Rs.4,500/-, an amount of Rs.500/- was
paid in cash towards advance; but, later on, the house was
not sold to the appellant-plaintiff but sold to Bhanwar Lal
and Bhanwar Lal purchased the property knowing it well
that an agreement was entered into in between defendant-
respondent and plaintiff-appellant.
After notice, written-statement was filed by the
defendant and as a result of adjudication made upon the
issues the trial Court dismissed the suit with cost. The
said judgment and decree was further challenged by the
appellant-plaintiff in the Court of District Judge, Udaipur
who transferred the case to the Addl. District Judge No.1,
Udaipur. Learned Addl. District Judge decided the appeal
vide judgment dated 21.04.1992. Learned appellate
Court allowed the appeal filed by the appellant-plaintiff and
finding upon issues No.1, 2 and 3 arrived at by the trial
Court was reversed and said issues were decided in favour
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of the appellant-plaintiff while holding that agreement was
arrived at in between the parties. The lower appellate
Court, however, refused to grant relief for specific
performance of the sale of property on the ground that
respondent No.2 purchased the suit property bona fide and
he was not having any knowledge, so also, 19 years have
passed, therefore, instead of granting decree for specific
performance of agreement for sale, the appellate Court
granted relief for returning the amount of Rs.500/- paid in
advance by the appellant-plaintiff to the defendant, along
with 9% interest.
Learned counsel for the appellant vehemently
challenged the finding with regard to the relief clause given
by the appellate Court, whereby, the learned appellate
Court refused to grant decree for specific performance of
sale and granted the other relief. Learned counsel for the
appellant argued that once the appellate Court arrived at
the finding that agreement was validly executed and
defendants were bound by the agreement, then, relief in
toto as prayed for in the suit was to be granted; but, for
unsound and baseless reasons, learned lower appellate
Court has denied relief which is not tenable.
Learned counsel for the appellant invited my
attention towards judgments of the apex Court reported in
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AIR 1972 SC 1520, Dr. Govind Das & Another Vs. Smt.
Shanti Bai; AIR 2001 SC 1658, R.K. Mohammed Abidullah
Vs. AG Abdul Wahim; and, AIR 2005 SC 1320. While citing
these judgments, it is submitted by learned counsel for the
appellant that the reasons for denial of basic relief is totally
illegal and once it is held that valid agreement is arrived at
in between the parties, then, relief cannot be denied,
therefore, the judgment impugned dated 21.04.1992 to
the extent of denial of the relief of specific performance of
sale of property may be set aside and relief as prayed for
by the appellant-plaintiff in the suit may be granted and
defendants be directed to execute the sale of the property
in question.
On the other hand, Mr. Rameshwar Chauhan, learned
counsel for the respondent argued that finding arrived at
by learned lower appellate Court is perverse and has no
basis to stand before the eye of law. According to him,
the finding arrived at by the trial Court deserves to be
upheld and cross-objection deserves to be accepted.
Therefore, the judgment rendered by the first appellate
Court may be set aside and this second appeal may also be
dismissed.
I have considered the rival submissions, so also,
perused the entire record of the case.
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In this case, while admitting this second appeal,
following question of law was framed :
“Whether the plaintiff appellants can be non-
suited on the ground that on the date of
judgment 19 years limitation has expired
irrespective of the fact that they have filed
the suit will within the limitation as
contemplated under Indian Limitation Act
with promptitude ?”
For deciding the above issue and cross-objection, it is
worthwhile to consider the important aspect of the matter
that appellant himself has made alternative prayer in the
suit with regard to granting relief to him. Following relief
was prayed for in the suit :
"क- कक पत व द न द र व द न क पक म द न क ५-
८-à¥à¥© ई० क तनषप द ववकय सवव (agreement to
sale) क यथ व ! कक आजत$ व द न क पक म व
पत व %गण क ववरद पस रर कर व ।
ख- कक पत व द न द र पत व % सखय २ क पक म
द न क ५-९-à¥à¥© क0 तनषप द ववकय पत व ववव
गस समपव5 क सव ममतव व सवतव ! सम8न:; समस
पलख (document) व द न क0 द ल न व आध;पतय
व द न क0 द ल न क> आज पत व %गण क ववरद
प न कर व ।
ग- कक समस व वयय :य य शल
A क सदC पत व %गण
स व द न क0 द ल व ।
घ- अ:य परर 0ष (relief) ज0 उधI C0 पत व %गण स
व द न क0 द ल व ।
ड- ववकलप म तनव न CK कक यद द न क ५-८-à¥à¥© ई०
क व द न क पक म तनषप द ववकय अनA8:; क
थव तनषप न क> डडक> ककस क रण पस रर नC% क>
ज सक 0 ठ५ 00) रपय अधगम र श (earnest
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money) ४,000) रपय पर बय ज व कत पतA P क
५ 00) रपय पत व %गण स व द न क0 द ल य ज व ।"
The learned trial Court dismissed the suit after
framing 4 issues including issue whether defendant No.2
Bhanwar Lal s/o Saw Ram purchased the property having
any knowledge or not. The first appellate Court though
deciding issues No.1, 2 and 3 in favour of appellant,
accepted the finding of the trial Court with regard to issue
No.4 and, while doing so, the first appellate Court
observed that in relief clause of appeal, the appellant is
entitled for the alternative prayer made in the suit.
Further, it is observed in the judgment that property in
question was sold to respondent No.2 Bhanwar Lal before
19 years; meaning thereby, learned appellate Court was of
the opinion that respondent No.2 Bhanwar Lal was bona
fide purchaser of the property in question and he was not
having any knowledge with regard to the agreement
arrived at in between the plaintiff and defendant No.1.
It is also obvious from the relief clause made by the
appellant-plaintiff himself that he has made a prayer
before the trial Court that in the event of not granting
relief of execution of the sale-deed, he may be granted
relief for payment of his money. Therefore, apparently
the finding of the learned appellate Court is not perverse
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and does not require any interference.
For the reasons mentioned above, the question
formulated by this Court while admitting this second
appeal is required to be answered in favour of the
defendant. With regard to the judgments cited by learned
counsel for the appellant, it is worthwhile to observe that
peculiar facts of this case with regard to issue No.4 speak
that upon the facts of this case the judgments cited by
learned counsel for the appellant are not applicable.
In this view of the matter, there is no force in this
appeal, so also, I have considered the cross-objection
raised by respondent-defendant. I do not find any
substance in the cross-objection so as to disturb the
finding of the lower appellate Court, therefore, it is held
that the learned trial Court rightly non-suited the plaintiff-
appellant on the ground that sale was executed in favour
of Bhanwar Lal by defendant No.1 before 19 years and,
now, at this stage, property which is sold to bona fide
purchaser cannot be ordered to be re-sold to the
appellant-plaintiff after 19 years. Therefore, even if suit
was filed within limitation by the appellant, finding of the
learned lower appellate Court with regard to granting relief
to the extent of return of money does not require any
interference because the property in question was
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purchased by third person 19 years ago. There is thus no
substance in this appeal.
This appeal is accordingly dismissed. Cross-
objection is also rejected.
(Gopal Krishan Vyas) J.
Ojha, a.
