JUDGMENT
Hemant Gupta, J.
1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the First Appellant Court whereby his suit for specific performance of his agreement dated 29.9.1961 was dismissed.
2. It is the case of the plaintiff that defendant No. 1 entered into an agreement dated 29.9.1961 with the plaintiff and defendant No. 2 agreeing to sell southern portion of quarter No. 40 on the terms and condition mentioned in the agreement for a total consideration of Rs. 1,200/- out of which the plaintiff has paid Rs. 600/-. The possession of the property was delivered to the plaintiff and defendant No. 2 at the time of execution of the agreement and defendant agreed to execute the sale deed after getting no objection certificate and deed of conveyance from the Rehabilitation authorities.
3. It is the case of the said plaintiff that 13 months prior to the institution of the suit, defendant No. 1 in the absence of the plaintiff illegally occupied portion marked by letter A.B.C.D. and further constructed bath room and latrines on the said portion without any authority. Thereafter, the plaintiff served notice dated 21.9.1978 calling upon the defendants to execute the sale deed. Since the sale deed was not executed, the plaintiff filed the present suit on 20.11.1978.
4. The suit was contested by the defendants, inter alia on the ground that no such agreement for sale of the property was executed nor the possession was ever delivered to the plaintiff. The defendants also took up the stand that even if the execution of the agreement is proved still the plaintiff has no cause of action as no objection certificate and deed of conveyance has not been received so far. An additional plea was raised that the suit of the plaintiff is barred by time as full ownership right vests with the defendants on 25.6.1962 and the sale deed could not be got executed within two months from the date of acquiring full property rights so the plaintiff got cause of action immediately after expiry of said two months.
5. Learned trial Court decreed the suit holding that the defendants executed the agreement and that the plaintiff has the right to seek specific performance of agreement Ex.P9 notwithstanding the fact that so far conveyance deed has not been issued. The trial court also held that the entire consideration amount has been paid by the plaintiff and, therefore, he is proved to be ready and willing to perform his part of the agreement. However, the First Appellate reversed the finding recorded by the trial court holding that the suit for specific performance is barred by limitation. It has been found that the plaintiff has been sleeping over the matter for 17 years and then suddenly got issued notice Ex.P1 dated 21.9.1978 requiring the defendant No. 1 to execute the sale deed. The suit for specific performance was filed within one month of the issuance of the notice. The court also returned a finding that the plaintiff has not pleaded that he was ready and willing to perform his part of the contract. Still aggrieved the plaintiff is in second appeal.
6. It is the categorical case of the plaintiff that it was a vacant land on which defendant No. 1 has raised construction of bathroom and latrine about 13 months prior to the filing of the suit. However, it was the stand of the defendants that it was not a vacant land and possession was not delivered to the plaintiff. The latrine and bathroom in the said portion were always in existence. There is no finding recorded by the Court below that the possession was with the plaintiff since the date of agreement in the year 1961. Since according to the plaintiff, it was a vacant land, therefore, the possession in the absence of any other evidence would go with the ownership. It was the plaintiff who alleged that the defendants have raised construction of bathroom and latrine. The possession of the defendants is admitted. Therefore, I am unable to accept the argument raised by the learned counsel for the appellant that the possession was delivered to the appellant at the time of execution of the agreement as recited in the agreement.
7. Under Article 54 of the Limitation Act, 1963, the limitation to seek specific performance of the contract is either the date fixed for the performance of agreement or if no such date is fixed when the performance is refused. As per the terms of the agreement, the sale deed in favour of the plaintiff was required to be executed after execution of the conveyance deed. As per the plaintiff no conveyance deed has been executed, therefore, the plaintiff could not seek specific performance of an agreement without execution of the conveyance deed in favour of the defendants. Alternatively, the plaintiff has sought specific performance of an agreement without the execution of the sale deed then the plaintiff has to seek specific performance from the date of agreement. Such an agreement was executed in the year 1961. However, the suit has been filed in the year 1978.
8. Thus, I do not find that finding recorded by the First Appellate Court that the suit is barred by limitation is suffering from any patent illegality raising any substantial question of law in second appeal. Dismissed.