Sudhir Chandra Das v. Gopal Mistry And Others

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS) SA/5/2024 SHRI SUDHIR CHANDRA DAS ... Appellants/Defendants

Versus

GOPAL MISTRY & Ors.

... Respondents/Plaintiffs For the appellant : Mr. Gopala Binnu Kumar For the respondents : Mr. Ananda Halder Heard on : 18.03.2026 Judgment on : 20.03.2026 CHAITALI CHATTERJEE (DAS), J.

1.

The second appeal under Section 100 of the Code of Civil Procedure, 1908 is filed against the judgment dated March 9, 2020 passed by the learned Additional Judge, North & Middle Andaman, Mayabunder in Other Appeal No. 5 of 2019 whereby the judgement of the trial court, dismissing the suit for specific performance was set aside without affirming the judgment and decree and no decree passed, for specific performance of

contract when his possession of the suit premises was protected in view of section 53A of the Transfer of property Act. FACT OF THE CASE:

2.

A suit for Specific Performance of Contract was filed by the present appellant against the respondent and other proforma respondents praying for transferring the land of 0.80 hectares to the plaintiff by a sufficient instrument following the terms of the agreement dated June 20, 1993 and also to pay an amount of Rs.25,000/- by the defendant to the plaintiff as compensation withholding the same.

3.

The present respondent being defendant No.4 filed the written statement denying the contention of the plaintiff and also that there was no actual sale transaction entered by the defendant with the plaintiff in respect of the suit property and prayed for dismissal of the suit.

4.

At the time of filing of written statement a counter claim was also filed by the present respondent and proforma respondent no. 2 and 5 against the plaintiff praying for, i) a decree declaring the suit properties are undivided joint properties of the defendants and a decree declaring the sale agreement dated 10.06.1993 of the plaintiff is forged manufactured and null and void and ii) a decree declaring the plaintiffs are in illegal possession of the suit property and

iii) a further decree directing the plaintiff to quit and vacate the schedule property after removing the tin shed house enabling the defendant to take possession of the schedule property.

5.

The learned Trial Court while dismissing the suit of the plaintiff allowed the prayer of the counter claim of the defendants to get a decree for recovery of possession against the plaintiff in respect of the schedule property. 6.

Being aggrieved thereby an appeal was filed by the plaintiff/appellant and the learned Appellate Court after hearing parties passed the judgment on 9th day of March, 2022, whereby the appeal was allowed and the judgment and decree passed by the learned Trial Court in Other Suit No. 19 of 2011 was set aside and protected the possession of the plaintiff as a part performance while dismissed the counter claim along with the suit.

7.

Challenging which both the parties filed second appeal being SA No. 4/2024 as well as SA No. 5/2024. The points of law formulated so far as this appeal is concerned at the time of admission was;

i) Whether a suit for specific performance on the basis of an agreement dated June 20 ,1993 filed in 2011 after a notice for specific performance being received by the defendant on July 7,2011 is barred by laws of limitation/

SUBMISSION 8.

The Learned advocate representing the appellant argued that unless the decree in the form of specific performance is passed the plaintiff will never have any title over the suit property . It is further argued that the Learned Appellate court affirmed the observation of the Learned trial court that the suit was barred by limitation without considering that the suit was filed after the refusal by the respondents in the year 2011 .In the agreement there was no specific date and hence the date is to be recokened from the date of refusal . In this regard relied upon the decision reported in 2009 O Supreme (SC)623 Ahmmadsahab Abdul Milla (dead) By proposed Lrs.vs Bibijan and ors. It was further argued that the agreement was proved ,the possession of the plaintiff was admitted and the legal notice was issued and also he expressed his readiness and willingness in the suit hence all the required formalities to maintain a suit for specific performance was there but the learned trial court as well as the appellate court did not consider that suit is maintainable.

9. Per Contra the argument advanced by the Learned Advocate representing the Respondent that the order of the Learned appellate court is patently illegal as while setting aside the judgment of dismissal also set aside the decree judgment passed in counter claim filed by the appellant herein by way of

misconception of law under Section 53 A of the Transfer of Property Act. However the Learned appeal court rightly observed that the suit was barred by limitation as the plaintiff/appellant himself admitted to have approached the defendant on several times and even after obtaining no dues certificate in the year 2020 but waited till 2011 prior to issuing the legal notice .Therefore admittedly the suit was barred by limitation and hence the appeal filed by the appellant is liable to be dismissed .

ANALYSIS 10.

Heard submission of the learned Advocate. This appeal is preferred by the appellant qua the plaintiff of the suit filed for specific performance of contract . The point of law formulated pertains to the maintainability of the suit which was filed in the year 2011 when the alleged agreement executed in the year 2011.

11.

Prima-facie it appears from the pleadings that in the year 1993 the defendant Nos. 1 to 5 offer to sale their land measuring an area of 0.80 hectares, situated in a village of Madhupur and the plaintiff approach them to purchase the said land. The terms and conditions were finalized and fixed between the parties that the plaintiff will purchase such land out of total area of 2.4 hectare land on consideration of Rs.33,000/-. In terms of the same a written agreement of sale

was executed between the parties on 20th day of June, 1993 and accordingly, an advance amount of Rs.25,000/- was paid by the plaintiff to the defendant in presence of witnesses and the plaintiff was put into possession of the said land on the said date by the Vendor. In terms of the agreement all defendants should execute registered sale deed in favour of Sudhir Chandra Das, the plaintiff having performed all the necessary formalities required for sell within one month. The remaining consideration amount of Rs.8,000/- to be paid to the defendants at the time of registration by the plaintiff. After possessing the purchasing land of 0.

80 hectares , the plaintiff with the family members cleared the jungle for the purpose of agriculture and continuing agriculture over the suit property till the day of filing of the plaint and as per agreement he requested all the Vendors to transfer the land in his favour by following all required formalities to which he informed to them that a loan was obtained from bank by mortgaging their land and until repayment of the said loan they would not be able to transfer the land in his favour.

12.

It was the specific case of the plaintiff that after realizing the fact that the execution and registration of sale deed would not be possible within time bound period, The plaintiff continued with cultivating agricultural crops over that part of suit property. In between on many occasions the plaintiff

approached the defendant Nos.1 to 5/respondents for execution of sale deed and that the defendant gave such consent for obtaining the 'no-dues certificate' from the concerned department and thereafter the plaintiff obtained all the 'no-dues' clearance, but the defendant denied to execute the deed and refused to transfer the land. The plaintiff then issued a legal notice to the defendant on July 6, 2011 through his Advocate, but no reply was received me and filed the suit. The cause of action of the suit was mentioned of June 20,1993, when the plaintiff entered into the sale agreement with defendant for purchase of suit property and paid Rs.25,000/-.

13. Interestingly the defendant /respondent make out a totally different story after denying the execution of any agreement. They also denied to receive any amount of Rs.25,000/- at any point of time from plaintiff and according to them the plaintiff was in permissive possession by consent of deceased Kanak Bala Mistry for a period of 18 years which was completed on 05.01.2011. According to the written statement, the agreement was challenged as fake and manufactured document .Subsequently, the defendants also filed the counter claim. The case made out therein was that Hemanta Kumar Mistry was the owner of the landed property and after his demise his legal heirs succeeded the said landed property and then mutated the names of all the legal heirs. After demise of

Kanak Bala and thereafter Gopal Mistry the second defendant used to pay the land revenue of the allotted land in the name of the legal heirs. Kanak Bala Mistry since deceased who was an illiterate widow allowed the plaintiff to reside in the suit property by raising a tin shed house and to cultivate the suit property of the deceased and accordingly they became the permissive possessor by consent of deceased Kanak Bala Mistry for a period of 18 years which completed on 05.01.2011. Before the death of said Kanak Bala Mistry the defendants were told not to vacate the plaintiff or his family before 18 years and abiding by the promise they never asked the plaintiff to deliver possession of the suit property and allow them to continue with the cultivation. On 05.01.

2011 when the defendant went to the plaintiff asking for delivery of possession by removing such Katccha house. The plaintiff made a request to allow them further to reside in the suit property. Again on 20.03.2011, the defendant asked them to vacate the property and they prayed for further time and all those two occasions the plaintiff never denied to vacate the suit property, but only prayed for extension of time and the suit has been filed only after the defendants approached the plaintiff to vacate the suit property . 14.

The learned Trial Court while dismissed the suit and allowed the counter claim with the observation that the deed of agreement for sale was proved. The 'no-dues' certificate was

issued on 11.08.2000 and it was evident from the record that no registration was made even after getting the certificate. Therefore, in terms of Section 54 of the Limitation Act, the starting point of three years starts from 12.08.2000 and the suit was filed in the year 2011. Since, there was no date fixed and no refusal by the defendant the plaintiff cannot take his own time for filing a suit for specific performance. The plaintiff did not even leave any clue about the defence under Section 53 A of the Transfer of Property Act and no distinct evidence was placed to set up the defence against the defendants and therefore no case of adverse possession was made out and thereby ultimately held that the plaintiff failed to prove the case and hence the suit was dismissed on contest.

15.

The learned Trial Court further found no convincing and substantial evidence was found to declare that the deed of agreement Exhibit 1 as fake or manufactured and therefore held that the defendants are entitled to get the order of eviction of the plaintiff from the suit property and accordingly decreed the counter claim. The learned Appellate Court also affirmed the observation of the learned Trial Court that the agreement for sale Exhibit 1 was duly proved. The learned Appellate Court further observed that there was no time period fixed in the agreement for sale for performance i.e registration of sale deed, but it was agreed that the defendant would execute the sale

deed in favour of the plaintiff within a year after performing all necessary formalities. So, the time was not the essence of contract in that case. The learned Appellate Court endorsed to the fact that the 'no-dues' certificate was obtained by the plaintiff on 11.08.2011 and after that the plaintiff approached the defendant for execution and registration of the sale deed and refused hence the limitation to file suit for specific performance of contract commenced in the year 2000, but it was instituted in the year 2011 and therefore it was hopelessly barred by limitation.

16.

However, the learned Appellate Court also observed that the plaintiff/appellant was proved his part in the contract therefore the two conditions required for seeking protection under Section 53 A of the Transfer of Property Act was satisfied. Therefore the learned Appellate Court protected the possession in the suit property under provision of Section 53 A of the Transfer of Property Act after relying the decision of the learned Trial Court. The appellate court did not allow the defendant's prayer in the counter claim to recover possession of the suit property as allowed by the trial court and accordingly, allowed the appeal and dismissed the counter claim.

17. So the specific contention of the appellant that the agreement was of the year 1993 without any specific time for execution of Sale Deed but certain terms were agreed by the

parties and accordingly, the no-dues certificate was obtained in the year 2000 by the plaintiff, and in the year 2011 he send the legal notice after which also the respondents did not execute the Sale deed and hence the limitation starts from the date of such legal notice . It further transpires that it was also within his knowledge that the present appellant was not willing to execute the said alleged deed as time and again as approached by the respondents he found refusal on the part of the present appellant. The legal notice was never exhibited. Therefore, Article 54 of Limitation squarely applies as the limitation starts either from 1993 or at least after 2000 but not from the date of said legal notice..

18. In view of the decision as relied upon by the learned advocate representing the appellant in Ahmmadsahab Abdul Milla (Supra) the expression "date fixed for performance" in Section 54 was discussed. A reference was made to three judge bench by reference Order dated 21st April, 2008 for deciding whether the use of the expression "date" used in Article 54 of the Schedule -II Limitation Act 1963 is suggestive of a specific date in the calendar and the finding of the Court was answered in the affirmative. The Hon'ble Supreme Court held in Paragraph-7 of the above mentioned decision which is as follows:- "The inevitable conclusion is that the expression "date fixed for the performance" is a crystallized notion". This is clear from the fact that the second part "time from which period begins to

run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part of the stress is on "when the plaintiff has noticed that the performance was refused". Here again, there is definite point of time, when the plaintiff notices the refusal. In that sense both the bards refer to definite dates. So, there is no question of finding out an intention from other circumstances. Whether the date was fixed or not the plaintiff had noticed that performance was refused and the date whereof are to be established with reference to materials and evidence to be brought on record. The expression "date" used in Article 54 of the Schedule to the Act definitely is suggestive of the specified date in the Calendar. We answered the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits".

19.

In the light of the above decision, if the factual matrix of the present case is considered, it would manifest that the agreement was executed in the year 1993 on consideration of Rs.33,000/- out of which an amount of Rs.25,000/- was paid on June 20,1993 to the Vendors that is the defendants who duly acknowledged the same and allowed the present plaintiff to possess the said land. Accordingly, he approached on many times to the defendant Nos.1 to 5 for execution of sale deed and defendant gave consent for obtaining 'no-dues certificate' from the concerned department. Despite such No dues certificate was obtained, defendant denied and refused to transfer. Lastly, issued a legal notice upon the defendant on July 6, 2011. Therefore, the contention of the learned Advocate representing the appellant that the limitation would start from the date of refusal from the legal notice i.e. on July 6, 2011 cannot be said to have any legal sanctity as the plaintiff approached on several occasions to the defendant for registration prior to such legal

notice . So, admittedly, there was no date specified in the alleged agreement and definitely time was not the essence of contract, but when the plaintiff was very much sure that the defendants are delaying the matter and refusing to execute the deed of sale but he did not take any steps and as the period under Article 54 was over, he issued the legal notice through his Advocate only in order to save himself from the points of limitation and then immediately thereafter filed the suit for specific performance of contract. The said notice was also not filed or proved during trial. Both the learned Trial Court and the Appellate Court decided that suit was hopeless by barred.

20. This Court is unable to accept the contention of the learned Advocate of the respondent that there is no connection in between registration of a deed of sale and 'no-dues certificate' from Fisheries Department since, such 'no-dues certificate' was necessary from Revenue Department and hence, the starting date cannot be consider when such certificate was received. Once the plaintiff himself established by way of pleading as well as by adducing evidence that after 1993 despite several approaches the defendants did not agreed to go for registration of the deed of sale and even when he procured the no-dues certificate from Fisheries Department as assured by the defendants, failed to execute the same definitely the cause of

action arose immediately after such denial by the defendant which was in the year 2020.

21. The learned Appellate Court though set aside the trial court's judgement dismissing the suit affirmed the observation that the suit is barred by limitation which prima-facie appears to be illegal since the suit was for specific performance as of contract by transferring the land by sufficient instrument following the terms of agreement dated July 20, 1993 and once it is decided that the suit in time barred, question of setting aside the judgment and decree passed dismissing suit does not arises. However, the observation of the Appellate Court rightly affirmed the observation of the Trial Court that the suit is barred by limitation.

CONCLUSION 22.

In the light of the above discussion, this Court is of the view the suit for specific performance was barred by limitation and hence there is no reason to interfere with the said observation.

23.

No order as to costs.

24.

Decree be drawn up accordingly.

25.

The Registry is directed to send down the copy of this judgment along with Trial Court Record to the learned Trial Court at once.

24.

Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.

(CHAITALI CHATTERJEE (DAS), J.)