Limitation Act, 1963 – Article 54 of Schedule 1 – Interpretation of – Specific Performance of a Contract – date fixed for performance of the contract – Agreement did not specify a calendar date as the date fixed for the performance of the agreement – when no such date is fixed, the limitation of three years would begin when the plaintiff has notice that the defendant has refused the performance of the agreement – in taking a contrary view, ignoring the absence of a specified date for the performance of the agreement and reversing the Trial Court, the High Court has fallen in error.
Code of Civil Procedure, 1908 – Section 96 – First Appeal – Limitation – Whether the High Court ought to have decided the first appeal not only on the preliminary issue of limitation but also on all other issues? Held, the High Court ought to have considered all the issues in the first appeal rather than only the preliminary issue of limitation.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
(Madan B. Lokur) and (R.K. Agrawal) JJ.
August 1, 2016
CIVIL APPEAL NO. 6687 OF 2016
Madina Begum & Anr. .…Appellants
Shiv Murti Prasad Pandey & Ors. .…Respondents
J U D G M E N T
Madan B. Lokur, J.
1. The two questions for our consideration are whether the suit filed by the appellant Madina Begum was barred by limitation in terms of the first part of
Article 54 of Schedule 1 of the Limitation Act, 1963
and whether the High Court ought to have decided the first appeal filed by Madina Begum not only on the preliminary issue of limitation but also on all other issues. As far as the first question is concerned our answer is in the negative and as far as the second question is concerned, in our opinion, the High Court ought to have considered all the issues in the first appeal rather than only the preliminary issue of limitation.
2. The land in dispute in this appeal is 1.63 acres of agricultural land bearing khasra nos. 438, 439, 440 and 456 (total area being 2.13 acres) in Patwari Halka No. 26 Gram Amkhera, Tehsil and District Jabalpur.
3. There was a dispute about the title of the entire aforesaid land and to resolve that dispute, Gulab Bai claiming to be the owner and in possession of the entire land, filed Suit No. 479A of 1994 in the Court of the Additional District Judge in Jabalpur. The defendants in the suit were Amar Singh and Jaswant Singh. The prayer made by Gulab Bai in her plaint was for a declaration with regard to her title and possession. She also prayed for an injunction restraining the defendants Amar Singh and Jaswant Singh from interfering with her possession.
4. On 2nd August, 2001 the suit was decreed in favour of Gulab Bai and thereafter on 3rd September, 2001 she entered into an agreement to sell 1.63 acres of agricultural land being the disputed property to Madina Begum. The consideration for the sale was Rs. 4,89,000/- out of which an advance of Rs. 1,25,000/- was paid by Madina Begum to Gulab Bai. This fact is recorded in the agreement to sell.
5. What we are concerned with in this appeal is the interpretation of Clause 3 of the agreement to sell which reads as follows:-
“3 That Party no. 1 has sold 1.63 acres land at the rate of Rs. 3,00,000/- (Rs. Three lakh) per acre and Party no. 1 Gulab Bai has obtained Rs. 1,25,000/- (One lakh twenty five thousand) as advance. The rest of the amount of Rs. 3,64,000/- (Rs. Three lakh sixty four thousand) would be paid by Party no. 2 to Party no. 1 within the period of six months from this date and having received it the party no. 1 will execute Benama Registry in favour of Party no. 2 or any such person specified by party no. 2 in one part or many parts.”
6. Apparently on coming to know that Gulab Bai had agreed to sell the disputed land to Madina Begum an appeal being F.A. No.399 of 2001 was filed by Amar Singh and Jaswant Singh in the High Court of Madhya Pradesh challenging the decree dated 2 nd August, 2001. An interim application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure was filed along with the appeal. The application was taken up for consideration on 22nd September, 2001 and while issuing notice in the application it was directed as follows:-
“In the meanwhile till the disposal of M(C) P. No. 3231/2001, status quo regarding possession over the suit property shall be maintained and the respondent shall not alienate the suit property.”
7. On 16th November, 2001 Gulab Bai executed a Will (which was registered) in which she categorically mentioned that she had negotiated the sale of 1.63 acres of land to Madina Begum and had given possession thereof to her but the remaining amount and registration of the sale remained to be completed. In her Will, Gulab Bai appointed Shiv Murti Prasad Pandey and Devendra Prasad Pandey (respondents herein) as her executors. The Will mentioned that upon her demise, her agricultural land except 1.63 acres will devolve on Shiv Murti Prasad Pandey and Devendra Prasad Pandey and in the event of her death before the registration of the sale deed it would be their responsibility to execute and register the sale deed in favour of Madina Begum. Unfortunately, Gulab Bai passed away on 2nd January, 2002.
8. Thereafter, F.A. No. 399 of 2001 filed by Amar Singh and Jaswant Singh was heard by the High Court and came to be dismissed on 28th September, 2006. We are told that the decree passed by the High Court has attained finality.
9. Upon the dismissal of the aforesaid appeal, it appears that Madina Begum required Shiv Murti Prasad Pandey and Devendra Prasad Pandey to execute the sale deed but apparently they did not take any steps in this regard. On the contrary, it appears that on or about 2nd August, 2008 the land in dispute was mutated in the name of Anita Jain pursuant to a sale made in her favour by Shiv Murti Prasad Pandey and Devendra Prasad Pandey.
10. When Madina Begum came to know of the transfer of the disputed land, she sent a notice to Shiv Murti Prasad Pandey and Devendra Prasad Pandey on 13th August, 2008 calling upon them to execute the sale deed in terms of the agreement to sell dated 3rd September, 2001 and the Will executed by Gulab Bai on 16th November, 2001. The notice was replied to by Shiv Murti Prasad Pandey and Devendra Prasad Pandey and we are told that they declined to execute the sale deed. This led to Madina Begum filing a suit, inter alia, for specific performance of the agreement being Suit No. 17A of 2008 (perhaps renumbered later as 41A of 2010) in the Court of the Additional District Judge, Jabalpur.
11. The defendants in the suit namely Shiv Murti Prasad Pandey and Devendra Prasad Pandey and Anita Jain filed their written statement and one of the contentions raised was that the suit was barred by limitation having been instituted more than three years beyond the date specified in the agreement to sell dated 3rd September, 2001. It was also submitted that Madina Begum had given an advance of only Rs. 90,000/- which had since been returned to her and that on 19th November, 2001 the agreement to sell between Gulab Bai and Madina Begum was cancelled.
12. On the pleadings, one of the issues framed by the Trial Court was issue No. 8: