Preetam Singh v. Sandhya Rani And ORS

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT : THE HON'BLE JUSTICE SUVRA GHOSH SA/8/2024 PREETAM SINGH ... APPELLANT VS.

SANDHYA RANI AND OTHERS ... RESPONDENTS For the appellant : Ms. Anjili Nag, Sr. Advocate Ms. S. Bhawani For the Respondent : Mr. Rakesh Pal Gobind Hearing concluded on : July 31, 2025 Judgment delivered on : August 05, 2025 SUVRA GHOSH, J.

1.

The second appeal arises out of an order of reversal by the learned First Appellate Court of the decree for specific performance of contract granted by the learned trial Court.

2.

At the admission of the second appeal the following substantial questions of law were framed:- (i) Whether the learned First Appellate Court substantially erred in law in arriving at the perverse finding that it is evident from the plaint that the limitation for filing the suit started from the year 2000 whereas in the relevant

paragraphs of the plaint, the plaintiff did not make any such statement.

(ii) Whether the learned appellate Court below substantially erred in law in erroneously interpreting the applicability of the second limb of Article 54 of the Schedule of the Limitation Act, 1963 in the context of the present case. 3.

The case of the plaintiff/appellant, in a nutshell, is that he entered into the impugned agreement for sale with the predecessor in interest of the defendants, Raja Ram, since deceased, for sale of the suit land for a consideration of Rs. 15,000/-. The plaintiff and Raj Ram were childhood friends. The location of the land in question being adjacent to house of the plaintiff, he agreed to purchase the land and on December 24, 1998, sale agreement was entered into by and between them and the plaintiff paid Rs. 10,000/- as advance towards purchase of the land. It was agreed between the parties that the balance consideration of Rs. 5,000/- would be paid by the plaintiff to Raja Ram at the time of registration and Raja Ram would handed over possession to the suit land to the plaintiff within three months from the date of the agreement. Peaceful physical possession was handover to the plaintiff by Raja Ram in the last week of March, 1998.

4.

The agreement was signed by two witnesses Prem Lall and Narayan Lall out of whom Prem Lall has expired in the meantime.

The plaintiff approached Raja Ram several times for registration of sale deed and in 2000 was informed that Raja Ram had applied for sale permission which was mandatory for sale of the suit land. Once such permission was granted, the deed would be registered. Raja Ram expired on March 19, 2003 after which the plaintiff approached his legal heirs, being the defendants in the suit, sometime in December, 2003 requesting registration of the deed. The defendants being aware of the sale agreement, assured such registration in favour of the plaintiff. Despite several approaches made by the plaintiff, the defendants informed that the deed could not be executed unless the land was mutated in their names. Finally, in the first week of July, 2016, the defendants started disturbing the plaintiff by asking him to vacate the suit land.

They refused to execute the deed of sale in his favour and tried to demolish the fencing of the suit land. The plaintiff is in possession of the suit land and has spent around Rs. 50,000/- for developing the land. The plaintiff lodged a complaint before the police authorities alleging interference with his possession of the land by the defendants. The plaintiff being ready and willing to pay the remaining sale consideration amount of Rs. 5,000/- sought execution the deed of sale by the defendants. 5.

By filing written statement before the learned trial Court, the defendants submitted that the deceased approached the plaintiff for a loan of Rs. 10,000/- and the plaintiff obtained the signature of the deceased in a blank bond paper which, after his death, was converted

to a sale agreement. The defendants claimed to be in possession of the suit land and submitted that the plaintiff never approached Raja Ram or his legal heirs, nor issued any legal notice for execution of the sale deed. The defendants were not aware of any sale agreement at all.

6.

Upon consideration the material on record, the learned trial Court, by a judgment delivered on October 29, 2021, decreed the suit on contest and directed the defendants to execute and register the sale deed in respect of the suit land in favour of the plaintiff within three months from the date of judgment. The judgment was carried in appeal by the defendants and the learned First Appellate Court, by a judgment delivered on March 6, 2024, reversed the judgment of the learned trial Court solely on the ground of the suit being barred by limitation. Issue nos. 2 and 5 and additional issue no. 1 were set aside. Though the other issues were discussed by the learned First Appellate Court, they remain as they were and were not either affirmed or set aside.

7.

Learned counsel for the appellant has taken this Court to the averments in the plaint and has submitted that it was only in the first week of July, 2016 that the appellant understood about the refusal of performance of the contract when the respondents started disturbing his peaceful possession in the property and tried to demolish the fencing therein. Raja Ram, since deceased, was

admittedly a peon in the office of the Deputy Commissioner and the appellant was under the impression that he was aware of the procedural requirements for execution of a sale deed. In his crossexamination, the appellant has stated that possession of the suit land was given to him after three months of execution of the sale agreement. He has also stated that he did not raise any objection to mutation of the land in favour of the respondents. Once of the witnesses to the deed Narayan Lall has supported the case of the appellant in his evidence. The land in question has been mutated in favour of the respondents despite which they have not executed the deed of sale. Such mutation was not done upon notice to the appellant.

8.

Learned counsel has further submitted that the issue of hardship of the respondents in executing the deed of sale after passage of a considerable period of time has not found place in their written statement despite which the said issue has been dealt with by the learned First Appellate Court.

9.

Learned counsel has placed reliance on the authorities in Gunwantbhai Mulchand Shah and others vs. Anton Elis Farel and others reported in (2006) 2 SCC 634, Panchanan Dhara and others vs. Monmatha Nath Maity (Dead) Th. LRs and another reported in (2006) 5 SCC 340, Rathnavathi and another vs. Kavita Ganashamdas reported in 2014 SCC OnLine SC 860, Lakshamamma and others vs. Jayamma

and another (Civil Appeal No. 1402 of 2024) before the Hon'ble Supreme Court and a judgment of this Court in SA 004 of 2018 (Shri Narottam Biswas vs. Smt. Bimal Acharjee and others) in support of her contention.

10.

Opposing the contention of the appellant, learned counsel for the respondents has submitted that the agreement was purportedly executed on December 24, 1998 whereas the plaintiff/appellant has averred in the plaint that possession of the land was handed over to him by Raja Ram in the last week of March, 1998. No readiness or willingness on the part of the appellant to pay the balance consideration amount was either pleaded or proved. The register of house sites indicates that the land was mutated in the names of the respondents on May 14, 2007 though respondent no. 1 has stated in her evidence that such mutation was done in 2015. 11.

Learned counsel has also submitted that the appellant being a Government employee ought to have intimated his department about purchase of the property, which was not done. There is no document to suggest possession of the land by the appellant. The respondents claim to be in possession of the disputed land. There is also no document which suggests that the appellant took any steps in writing demanding execution of the sale deed by the respondents or their predecessor. The disputed land was demarcated in 2016. The demarcation report does not indicate presence of any fencing in the

land. Therefore alleged attempt to demolish such fencing by the respondents does not arise. The respondents have deposited the amount as directed by the First Appellate Court. 12.

Learned counsel for the respondent has relied upon the authorities in Parakunnan Veetill Josephs Son Mathew -VersusNedumbara Kuruvilas Son and Others reported in 1986 Supreme (SC) 724, A.C Arulappan -Versus- Smti. Ahalya Naik reported in 2001 Supreme (SC) 1077, Ahmmadsahab Abdul Milla -Versus- Bibijan and Others reported in 2009 Supreme (SC) 623, Mrs. Saradamani Kandappan -Versus- Mrs. S. Rajalakshmi and Others reported in 2011 Supreme (SC) 604, Jayakantham and Others -Versus- Abaykumar reported in 2017 Supreme (SC) 175, A. Valliammai -Versus- K.P. Murali and Others reported in 2023 Supreme (SC) 852, Pydi Ramana @ Ramulu -Versus- Davarasety Manmadha Rao reported in 2024 Supreme (SC) 571, Lakha Singh -Versus- Balwinder Singh & Another reported in 2024 Supreme (SC) 839, Vijay Prabhu -Versus- S.T Lajapathie and Others reported in 2025 Supreme (SC) 62 and Rajeev Gupta and Others -Versus- Prashant Garg and Others reported in 2025 Supreme (SC) 697 in support of his contention. 13.

I have considered the material on record.

14.

The short point which falls for consideration before this Court is the issue of limitation and interpretation of the applicability of the second limb of Article 54 of the Schedule of the Limitation Act, 1963.

15.

Issue nos. 2 and 5 and additional issue no. 1 which have been set aside by the First Appellate Court are reproduced herein below :- "(i) Issue no. 2 - Whether the suit is barred by law of limitation?

(ii) Issue no. 5 - Whether the plaintiff is entitled to the decree as prayed for?

(iii) Additional issue no. 1 - Whether the suit filed by the plaintiff is barred under law of limitation?" 16.

The alleged sale agreement was executed on December 24, 1998. The agreement records willingness of the appellant to purchase the property in question and payment of Rs. 10,000/- by him as a advance to Raja Ram out of the decided consideration amount of Rs. 15,000/-. It is stated in the agreement that the first party thereto shall hand over the land to the second party within three months. The agreement is silent regarding the date/period of time within which the balance consideration amount is to be paid or the deed of sale registered.

17.

Article 54 of the Schedule of the Limitation Act, 1963 envisages the period of limitation for specific performance of a contract to be the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused.

18.

In the present case, the purported sale agreement does not disclose any date fixed for the performance. Therefore the second limb of Article 54 is applicable herein and it is to be determined when the plaintiff/appellant had notice that the performance was refused. The authorities in Lakshamamma and others (supra), Rathnavathi and another (supra), Panchanan Dhara and others (supra), Gunwantbhai Mulchand Shah and others (supra) and SA 004 of 2018 (supra) have interpreted Article 54.

19.

It is settled law as observed by a coordinate Bench of this Court that limitation is a matter of prescription which has to be strictly construed. As much as it is the obligation of the Court to ensure that time-barred action is not permitted to be continued or allowed, Courts are loathe to dismiss claims without going into the merits thereof.

20.

In dealing with the appeal, the learned first Appellate Court has dismissed the suit solely on the ground of limitation, without deciding the other issues pertaining to the merits thereof. 21.

Herein, the agreement does not contain a date for performance of the contract. The appellant has stated in the plaint as well as in his evidence that once in 2000, Raja Ram told him that sale permission would be required in order to execute the sale deed. Such assurance of Raja Ram was an indication of his willingness to execute the deed as soon as sale permission was obtained. It cannot be said

that Raja Ram refused performance in 2000. Record reveals that the plaintiff/appellant approached the legal heirs of Raja Ram/the respondents sometime in December, 2003 and was assured of registration of the deed. It appears from the register of house sites that the property was mutated in the name of the respondents on May 14, 2007 though DW-1 has stated in her statement that such mutation was done in 2015.

22.

Be that as it may, the appellant was not in a position to know about the said mutation and the question of his opposing the same did not arise since the property could have been transferred in his name only after it was mutated in favour of the legal heirs of Raja Ram/ respondents herein. Demarcation of the property was done in 2016. Therefore, the first opportunity of sensing refusal of performance by the respondents could have been in 2016 when such demarcation was done and also when the respondents started disturbing the alleged possession of the appellant. Though several approaches have been made by the appellant to Raja Ram or his legal heirs for execution of the deed, such execution could have been deemed to be refused only in 2016. There being no specified date of performance in the agreement itself, the second limb of Article 54 comes into play and the time to file the suit shall be deemed to start running only when the appellant had notice that the performance had been refused. It can be inferred from the evidence on record that

the performance was refused by the respondents in 2016 and the suit has been filed within the period of limitation. 23.

The judgments relied upon by the respondents deal with the interpretation of Article 54 as well the merits of the case. Since the suit has been dismissed solely on the ground of limitation and no conclusion has been arrived at by the learned First Appellate Court with regard to merits of the case though issues were placed and discussed before/by the learned Court, this Court refrains from recording any observation on merits.

24.

In the light of the discussion made hereinabove, the question of law raised are answered as follows:

(i) The learned First Appellate Court did err in law in arriving at the perverse finding that it is evident from the plaint that the limitation for filing the suit started from the year 2000 whereas in the relevant paragraphs of the plaint, the plaintiff did not make any such statement. (ii) The learned First Appellate Court did err in law in erroneously interpreting the applicability of the second limb of Article 54 of the schedule of limitation Act, 1963 in the context of the present case.

25.

In view of the above, the judgment and decree of the First Appellate Court in Other Appeal No. 01 of 2022 dated March 6, 2024

is set aside. It is held that the suit has been filed within the statutory period of time and is not barred by limitation. 26.

Learned First Appellate Court is directed to deal with the appeal on merits and dispose of the same upon granting reasonable opportunity of hearing to the parties, in accordance with law. 27.

It is made clear that this Court has not gone into the merits of the case and any observation made herein shall not be construed as an expression of opinion of this Court on merits. 28.

The learned First Appellate Court shall deal with the appeal independently in accordance with law without being influenced by any observation which may have been made in the body of the judgment.

29.

The second appeal being SA/08/2024 is allowed. 30.

There shall, however, be no order as to costs. 31.

Let the trial court records be sent back immediately. 32.

Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.

( SUVRA GHOSH, J. )