T.P. Sharma, J.@mdashBy this second appeal filed u/s 100 of the Code of Civil Procedure, 1908 (for short ''CPC''), the appellants have challenged the legality and propriety of the judgment and decree dated 19-4-1991 passed by the 2nd Additional District judge, Ambikapur, in Civil Appeal No. 14A/85, affirming the judgment and decree of dismissal of civil suit passed by the 2nd Civil Judge Class-II, Ambikapur, in Civil Suit No. 97A/79 dated 29-3-82. The present appeal has been admitted for consideration on the following substantial questions of law:
(1) Whether the finding of the first appellate Court with respect to the disputed land is perverse?
(2) Whether the suit is within time?
2. As per allegation made in the plaint, original defendant No. 1 Narayan Ram entered into agreement for sale of his land bearing khasra No. 1442 area 0.07 acres situated at Ambikapur with plaintiffs Surendra Kumar Gupta, Virendra Kumar Gupta and Baijnath Prasad Gupta. His mother Indiya Devi also co-operated in execution of such agreement. Out of sale amount of Rs. 1400/-, Rs. 421/- was paid to Narayan Ram at the time of execution of the agreement. Possession was immediately delivered by Narayan Ram to the plaintiffs. Narayan Ram further received Rs. 783/- installments and executed the receipt from the back of said agreement. After October, 1971, Narayan Ram and his mother Indiya Devi left Ambikapur, their address was not known to the plaintiffs. Subsequently, mother of Narayan Ram, Indiya Devi died. Thereafter, the plaintiffs came to know that Narayan Ram was residing at Bhopal. The plaintiffs contacted with Narayan Ram at Bhopal and requested for execution of sale deed but Narayan Ram denied the performance of his part of contract. On 16-1-1979 Narayan Ram tried to dispossess the plaintiffs from the suit land. On that day, they have informed that Narayan Ram has sold the land to other defendant Gendaram. In these circumstances, suit for specific performance was filed by the plaintiffs along with claim of permanent injunction. By filing written statements, original respondents/defendants have denied the adverse allegation made in the plaint and have alleged that Narayan Ram has not entered into agreement for sale of his land to the plaintiffs. Original defendant No. 2 Gendaram has purchased the land from Narayan Ram and Gendaram is a bona fide purchaser.
3. After providing opportunity of hearing to the parties, learned 2nd Civil Judge Class-II, Ambikapur has dismissed the civil suit by holding that possession was never delivered to the plaintiffs, suit is time barred and Gendaram is a bona fide purchaser. Same was challenged before the lower appellate Court and by the judgment and decree impugned, learned lower appellate Court has affirmed the judgment and decree of the trial Court.
4. During pendency of second appeal, Surendra Prasad Gupta and Baijnath Prasad Gupta died. Name of Surendra Prasad Gupta has been deleted and legal representative of Baijnath Prasad Gupta has been brought on record. Likewise, respondents Narayan Ram and Gendaram also died and their legal representatives have also been brought on record.
5. I have heard B.P. Sharma with Mr. A.K. Prasad, counsel for the appellants, Mr. Neeraj Mehta, counsel for respondents No. 1 (a) to 1 (c) and Mr. Anurag Dayal Shrivastava, counsel for respondent No. 2a, perused the judgment and decree impugned, judgment and decree of the trial Court and records of the Courts below.
6. Learned counsel for the appellants vehemently argued that finding of the lower appellate Court relating to disputed property is perverse and both the trial Court has wrongly dismissed the suit on the ground of limitation. Learned counsel further argued that the lower appellate Court has held that the property in dispute has not been identified, therefore, agreement was not executable and has not considered that the plaintiffs have given detailed description of the property required under Order VII Rule 3 of the CPC. Likewise learned trial Court has illegally dismissed the suit on the ground of limitation, although suit was within limitation and as per second limb of Article 54 of the Limitation Act, limitation shall run from the date of notice to the plaintiff that performance has been refused.
7. Learned counsel placed reliance in the matter of
8. On the other hand, learned counsel for the respondents vehemently opposed the appeal and argued that as held by the lower appellate Court, the appellants/plaintiffs have not given description of the property in plaint which is sine qua non for them in accordance with Order VII Rule 3 of the CPC. In the absence of such description, any decree in terms of agreement was not executable, especially in the present scenario when area of khasra No. 1442 was 0.25 acre and only 0.07 acre was in dispute in this case. It was not possible for any of the party or the Court to decide that which 0.07 acre was subject-matter of the suit, therefore, learned lower appellate Court has rightly held that the alleged agreement is not executable. Learned counsel further argued that appeal is hopelessly time barred. The appellants/plaintiffs were under obligation to file suit within three years from the date of execution of such agreement or in case, the appellants/plaintiffs were under obligation to prove the exact date when original defendant No. 1 Narayan Ram has refused to perform his part of contract, but as per evidence of the plaintiffs, original defendant No. 1 Narayan Ram and his mother Indiya Devi has left Ambikapur in the year 1971 and only they came to know about address of defendant Narayan Ram in the year 1979, but has admitted in his evidence that his mother Indiya Devi was residing in Ambikapur till 1975 within a close distance of resident of the plaintiffs and was available to give address of original defendant Narayan Ram, although she was not owner of the property in dispute. As per pleadings of the parties, Indiya Devi had co-operated in execution of such agreement by signing on agreement. In these circumstances, in the absence of any specific date of refusal of specific performance, suit was not covered by second limb of Article 54 of the Limitation Act and was covered by first limb of the Limitation Act and was hopelessly barred by limitation. Learned counsel also argued that the plaintiffs and original defendant No. 1 Narayan Ram were parties to the suit, therefore, they were required to abide the terms and condition written in the agreement and no oral evidence is permissible in terms of Sections 91 and 92 of the Evidence Act. At the time of the alleged agreement, parties were under obligation to specify the property, but agreement Ex. P/1 does not contain any description of the property, only khasra No. 1442 is mentioned in Ex. P/1, however, other details have been given in Ex. P/1 but description has not been given which further shows that agreement was never intended to be executed. Learned counsel contended that original defendant No. 2 Gendaram and present legal representative of Gendaram are bona fide purchaser and are claiming title under original defendant Narayan Ram who has sold the land to him. Original defendant No. 2 Gendaram has purchased the property in dispute without notice to the original contract, therefore, their claim are protected u/s 19 (b) of the Specific Relief Act, 1963. Learned counsel further contended that the alleged agreement for sale was void on the ground of uncertainty u/s 29 of the Contract Act.
9. Learned counsel for respondent No. 2 (a) placed reliance in the matter of
10. In the present case, as per evidence of both the parties, Ex. P/1 was executed. Ex. P/1 shows only khasra No. 1442 area 7 decimal length and breath was 120 x 24 feet. No other description has been given in Ex. P/1. The area of khasra No. 1442 was not only for 7 decimal. No other supporting agreement or document has been executed or proved by the parties to specify the property in dispute, but plaint contents Schedule A in which specification of the property has been given as 7 decimal of nazul khasra No. 1442. Boundaries were shown in Schedule A but it does not find any support from Ex. P/1. Both the parties led evidence. The plaintiff Baijnath has examined himself and his witnesses but has not stated that what was the boundary of the property in dispute and how it was identifiable. Only in para 5, plaintiff Baijnath has deposed that the land was adjoining to his land and possession was delivered on the same day, but in para 12 of his cross-examination he has specifically deposed that area of khasra No. 1442 was 25 decimal. In accordance with Order VII Rule 3 of the CPC, the plaintiffs were under obligation to give description of the property sufficient to identify and in case, such property can be identified by the boundaries or numbers or any record of settlement or survey. The plaintiffs were required to specify such boundaries and numbers in Schedule A of their plaint. The plaintiffs have specified khasra No. 1442 and boundaries but khasra No. 1442 is related to 24 decimal of the land and not for only 7 decimal of the land. Boundaries shown in Schedule A do not find support from Ex. P/1 the alleged agreement. Plaintiff Baijnath has also not deposed anything in his evidence relating to boundary of disputed property and has also not explained that why such decree has not been recorded in Ex. P/1. Definitely Ex. P/1 is the document related to immovable property and in such circumstance, normally except relating to collateral purpose, oral evidence relating to document is not permissible in terms of Section 92 of the Evidence Act. The appellants/plaintiffs were under obligation to give complete description by giving khasra number or boundary number. The appellants have mentioned khasra number and boundary in Schedule A, but same is not supported by Ex. P/1 the alleged agreement or evidence of the parties, therefore, description given in Schedule A of the plaint is of no use and support of claim of the parties.
11. As held by the Supreme Court in the matter of Pratibha Singh and another (supra), the Court is under obligation to point out the defect and direct for supplying of such description. In the present case, the plaintiffs have given plot number and area, but have not mentioned the fact that whether they were part of khasra number or were full number. In these circumstances, description given and also boundaries were not found sufficient in the absence of map, therefore, the Supreme Court has held that it can be decided at the time of execution, but in the present case, without any documentary or oral evidence or any other support, the plaintiffs have mentioned boundary and khasra number in Schedule A. In these circumstances, the Courts below have not taken the note at the time of examination of the plaint. It was duty of the plaintiffs to give description on the basis of document or evidence, but they have given such description arbitrarily without any basis, therefore, the facts of the case of Pratibha Singh and another (supra) are distinguishable on the facts of the present case.
12. As held by the High Court of Allahabad in the matter of Smt. Phuljhari Devi (supra), in a suit for specific performance the contract of sale must be definite and precise and if it is uncertain it must be held to be void u/s 29 of the Indian Contract Act. Specific performance is an equitable relief and the contract of which specific performance is sought must appear to be correct and precise and no oral evidence was admissible to add to the terms or contents of Ex. 6 (See Sections 91 and 92 of the Evidence Act). It must, therefore, be held that the contract of sale, Ex. 6 was void for uncertainty.
13. In the present case, the plaintiffs have also not given true description of the property, inter alia, they have given the description which does not find support from Ex. P/1 agreement and evidence.
14. As regards the question of limitation, as held by the Supreme Court in the matter of Gunwantbhai Mulchand Shah and others (supra), case in which no date fixed for performance of contract, in such case court has to find the date on which plaintiff had notice that performance was refused. In the present case, as per allegation made in the plaint, original defendant Narayan Ram and his mother has left Ambikapur since October, 1971 (para 6 of the plaint) and mother of original defendant died, then in the year 1979, the plaintiffs came into knowledge of address of defendant No. 1. In para 19 of cross-examination of plaintiff Baijnath, he has admitted that Indiya Bai was residing in the house where at present Gendaram is residing but he did not remember that Indiya Bai died in that house or not. As per evidence of the parties, the alleged house of Gendaram is situated in a close distance of the house of the plaintiffs, but plaintiff Baijnath has deposed that he did not remember that whether mother of original defendant Narayan Ram died in that house or not. The plaintiffs were under obligation to prove the date of refusal of performance of the contract, but have not adduced cogent evidence to prove such fact for definite date of such denial, specially when original defendant Narayan Ram has left Ambikapur and it was bounden duty of the plaintiffs to inquire relating to whereabouts of defendant Narayan Ram or at least to save his claim to file the suit within limitation, but the plaintiffs have not filed suit within limitation, as held by the Supreme Court in the matters of Gunwantbhai Mulchand Shah and others (supra) and Ahmadsahab Abdul Mulla (2) (dead) by proposed LRs. (supra).
15. The plaintiffs have also filed suit for permanent injunction and both the Courts below have held that the plaintiffs were not in possession of the suit property, therefore, they were not entitled to file suit for permanent injunction within three years from any threat upon the possession and suit was beyond limitation.
16. While dealing with the question of propriety to grant discretionary relief of specific performance in case of inordinate delay and in filing of suit after selling the property by owner to other person, the Supreme Court in the matter of Manjunath Anandappa Urf Shivappa Hansi (supra) has held that refusal of such discretionary and equitable relief is proper.
17. Original defendant No. 2 Gendaram was a bona fide purchaser of the suit property and has proved that he was not having any knowledge of previous agreement. In these circumstances, the plaintiffs were under obligation to prove that original defendant No. 2 was not a bona fide purchaser and he was having knowledge. Evidence and pleadings of the parties clearly reveal that finding of the lower appellate Court relating to description of disputed property is based on pleading and evidence and in the absence of description of the property, the lower appellate Court has rightly declined to grant discretionary and equitable relief of specific performance of contract. Finding of the lower appellate Court is not perverse. Suit was also filed beyond limitation.
18. Consequently, substantial questions of law No. 1 and 2 are decided as negative. On the basis of decision on the substantial questions of law formulated for the decision of the appeal, I do not find any substance in the appeal. The appeal being without substance is liable to be dismissed and it is hereby dismissed. The parties shall bear their own cost.
19. Advocate fee as per schedule. A decree be drawn accordingly.
