The court reaffirmed that suits for specific performance must be filed within the limitation period, and failure to do so results in dismissal.

JUDGMENT :

NISHA M. THAKORE, J.

1. The present appeal is filed by a partnership firm through his administrator partners who were the original plaintiffs in Special Civil Suit preferred by them seeking specific performance of agreement to sell as well as for declaration and permanent injunction in respect of the suit land. The learned Civil Judge while entertaining the application preferred by the present respondents – original defendants at Exh.22, under Order-VII Rule-11(a)(d) of the Code of Civil Procedure, has consequently rejected the suit by order dated 18th January, 2024 passed in Special Civil Suit no.102 of 2021.

2. In nutshell the averments made by the original plaintiff firm, in the plaint are as under :-

2.1 The old tenure land bearing revenue survey no.1 of Mouje Udera, sub-district District Vadodara is of joint ownership of the defendants (hereinafter referred to as the suit land). The aforesaid land was admeasuring 3136 sq. mtrs. and fall within the residential zone of GUDA. The defendants herein were in need of financial assistance and had therefore, approached the plaintiff firm to sell the aforesaid suit land. The plaintiff on the other hand intended to purchase the suit land for non-agricultural purpose or for residential purpose by payment of appropriate premium.

2.2 The parties have therefore mutually agreed and fixed the consideration of the suit land @ Rs.1001/- per sq. ft., which was to be paid after the conversion of the suit land into nonagriculture land and subject to measurement. The terms and conditions of the agreement to sell were reduced in writing by executing the agreement to sell dated 12th August, 2011 before the Notary in presence of two witnesses. The aforesaid agreement to sell was executed by original defendant nos.1 and 2 and had also received an amount of Rs.11,11,000/- as acknowledge in the agreement to sell, which was witnessed by the original defendant no.1/2.

2.3 The plaintiff had thereafter approached the defendant nos.1 and 2 and as instructed had paid further amount of consideration by handing over the cheque no.1361 of Dhanlaxmi Bank of an amount of Rs.30,000/- to the son of the defendant no.1 viz. Tusharbhai Patel (defendant no.1/2) and cheque bearing no.953502 of Punjab National Bank of an amount of Rs.20,000/-. The plaintiff had therefore pleaded that total sale consideration of Rs.16,61,000/- which also include an amount of Rs.2,00,000/- given in cash to the defendant no.2 and the expenses of Rs.3,00,000/- incurred for conversion of the land into NA, which was paid in the year 2016 in different parts.

2.4 It was agreed between the parties that the aforesaid amount shall be adjusted towards the final sale consideration amount and remaining amount was to be paid after the conversion of the land into NA land. The plaintiff had at every stage shown his readiness and willingness to fulfill the terms and conditions of the contract since the plaintiff had already made payment of the major part of the sale consideration, the defendants were requested to handover the possession and therefore, the plaintiff claims to be in possession of the suit land. The plaintiff has further pleaded that the appropriate proceedings were also undertaken by the defendants for converting land for NA purpose. However, in the revenue proceedings, the suit land was recognized as Devsthan land and was therefore treated as new tenure land.

2.5 Consequently, the Collector had refused to grant NA permission and had sought payment of premium for such conversion. As per the plaintiff, the defendants have assured to make payment of the premium amount and the plaintiff had relied upon such assurance. However, though the period had expired, the defendants have failed to undertake such exercise.

2.6 The plaintiffs were therefore constrained to issue legal notice dated 15th March, 2016, which was duly served upon the defendant through RPAD. It is pleaded that the defendants have immediately approached the plaintiffs and have