A suit for specific performance is barred by limitation when filed beyond three years from the date of refusal, and cannot succeed if the vendor lacked the title to the property.

JUDGMENT :

EASWARAN S., J.

The defendants in O.S No.314 of 2005 before the Sub Court, Kozhikode, in a suit for specific performance are the appellants herein.

Succinctly stated the facts are as follows:

2. The plaint schedule property was a subject matter of an agreement dated 22.01.1979 between the predecessor-in-interest of the defendants and Kerala State Housing Board. By virtue of the said agreement, the Kerala State Housing Board agreed to transfer plot No.M-10-11 in Chevayur Village, Kozhikode Taluk, having an extent of 2 Ares 24 Square Meters. Pursuant to the said agreement, the predecessor-in-interest of the defendants entered into an agreement of sale with one Smt.K.Suseela. The respondents herein, are the predecessor-in-interest of Smt.K.Suseela. Going by the agreement, the predecessor of the appellants agreed to transfer the plot to the predecessor of the plaintiffs, after getting the necessary documents for transfer from the Kerala State Housing Board. The parties were in serious variance as regards the modality of performing the contract. Therefore the predecessor of the defendants did not complete the contract by executing necessary conveyance in favour of Smt.K.Suseela, who is the predecessor-in-interest of the plaintiffs. Hence, the plaintiff issued a lawyer’s notice on 01.02.2005 calling upon the defendants to perform the contract. On 02.03.2005, the defendants issued a reply notice, wherein they refused to perform the contract and therefore the plaintiffs filed O.S No.314/2005 before the Sub-Court, Kozhikode. The defendants entered appearance and contested the suit and contended that the suit for specific performance is barred by limitation. It was further contended that, at the time of execution of Ext.A2, the predecessor of the defendants had no right title to be conveyed and therefore the agreement is hit by the provisions contained under Section 17 of the SPECIFIC RELIEF ACT , 1963. It was further contended that though it was agreed between the parties that the predecessor of the plaintiff would discharge the entire liability to the Housing Board, there was a default and that was the reason why the conveyance was not executed. Reference was made to the letter dated 25.11.2009, issued by the Housing Board to the plaintiff to discharge the final outstanding amount under Ext.A2 contract. According to the defendants, the aforesaid amount was discharged by them and therefore the plaintiffs have no right to claim the execution of the agreement. As regards the prayer sought for in the plaint, for a decree against the Housing Board to execute the Sale Deed, it was contended that inasmuch as there is no privity of contract between the supplemental 5^th defendant-Board and the plainti suit for specific performance is not maintainable. In support of the pleadings, Ext.A1 to A10 documents were produced on behalf of the plaintiff and PW1 was examined. On behalf of the defendants Exts.B1 to B6 documents were produced and DW1 was examined. In the light of the rival contentions, the Trial Court framed the following issues:-

1. Whether the suit is maintainable?

2. Whether the suit is bad for non joinder of necessary parties?

3. Whether the suit is barred by limitation?

4. Whether the plaintiffs are entitled to get a decree for specific performance as prayed for?

5. Whether the plaintiffs are entitled to get damages from the defendants as prayed for?

6. Relief and cost?

3. The Trial Court proceeded to hold that the suit was within the period of limitation and further found that in the light of the agreement entered between the parties the p