JUDGMENT :

1. This civil second appeal is preferred against the judgement and decree dated 4.6.2016 passed by the learned District Judge, Dholpur (Rajasthan) (for short-`the learned appellate court’) in regular civil appeal no.21/2010 whereby, while dismissing the appeal preferred by the appellant/defendant no.2 (for short-`the defendant no.2’), the judgement dated 23.2.2010 passed by the learned Additional Civil Judge (Jr. Division) No.1, Dholpur (for short- the learned trial court’) decreeing the suit filed by the respondent no.1/plaintiff (for short-`the plaintiff’) for specific performance, cancellation of sale deed and permanent injunction, has been upheld.

2. The relevant facts in brief are that the plaintiff filed a suit for specific performance of the agreement dated 5.7.1989, cancellation of sale deed dated 29.4.1993 and permanent injunction against the defendant no.2 and the respondents no.2 to 5 stating therein that the defendant no.1-late Shiv Charan, has executed an agreement to sell dated 5.7.1989 in plaintiff’s favour of his 1/2 share in the 17 biswas of land comprising of khasra no.504 and 9 biswas of land comprising of khasra no.505 situated in village Shekhupura, Dholpur, Tehsil Dholpur for a sale consideration of Rs.6,500. It was averred that receiving an advance sale consideration of Rs.2,500/-, possession of the subject property was handed over to him and it was agreed that balance sale consideration of Rs.4000 shall be received by the defendant no.1 at the time of execution of the sale deed in his favour as and when requested by him. It was further stated that from about last six months, the plaintiff has been requesting the defendant no.1 to execute and register the sale deed; but, he kept on avoiding on one pretext or another whereupon, a notice dated 5.8.1993 was served upon him through registered post; but, the same was refused to be accepted. It was alleged that when he met the defendant no.1 with a request to execute the sale deed, it transpired that he has already sold his 1/2 share in 17 biswas land comprising of khasra no.504 in favour of the defendant no.2 and his share in 9 biswas of land of khasra no.505 in favour of the defendant no.3. Stating that he has been ready and willing to perform his part of the agreement, the decree as aforesaid was prayed for.

3. The defendant no.3-Vedo expired during pendency of the suit and it was declared as having abated against him. On expiry of the defendant no.1 during its pendency, his legal heirs were brought on record.

4. Ex-parte proceedings were drawn against all the defendants.

5. After recording evidence of the plaintiff, the learned trial court framed four issues for disposal of the suit. Deciding all the issues in favour of the plaintiff, the learned trial court decreed the suit vide judgement dated 23.2.2010. The first appeal preferred there against by defendant no.2 has been dismissed by the learned appellate court vide judgement and decree dated 4.6.2016.

6. Assailing the impugned judgement and decree dated 4.6.2016, Shri R.K. Mathur, learned senior counsel for the defendant no.2, made four fold submissions; the suit was barred by law of limitation, the plaintiff neither averred that he was always ready and willing to perform his part of the contract, nor, he could establish the same, the plaintiff was not entitled for the discretionary relief of specific performance of the agreement, and lastly, him being a bona fide purchaser, decree of cancellation of sale deed could not have been passed.

7. Elaborating his submissions, the learned senior counsel would submit that since, the limitation for filing the suit seeking specific performance of the agreement dated 5.7.1989 would start from the date of its execution as it was on the plaintiff’s will, the suit filed on 14.9.1993 deserved to be dismissed having been filed beyond the period of limitation of thre