The appellate court can grant possession in a specific performance suit if ownership is established, and limitation does not bar the suit when the plaintiff has fulfilled contractual obligations.

JUDGMENT :

Narendra Singh Dhaddha, J.

1. This Civil Second Appeal has been filed by the appellantoriginal defendant No.2 (for short ‘the original defendant No.2’) under Section 100 CPC against the judgment and decree dated 10.10.1995 passed by Additional District Judge, Baran (for short ‘the appellate court’) in Civil Appeal No.68/95, whereby the appeal filed by the respondent No.1-plaintiff (for short ‘the plaintiff’) has been allowed and judgment and decree dated 03.02.1995 passed by Civil Judge (Lower Division), Mangrol, District Baran (for short ‘the trial court’) in Civil Suit No.255/92 dismissing the plaintiff’s suit for specific performance and permanent injunction has been set aside.

2. Plaintiff filed a suit for specific performance and permanent injunction against the original defendant No.1-Nagar Palika and also sought the relief to deliver physical possession of the disputed plot by dispossessing the original defendant No.2.

3. The original defendant No.1-Nagar Palika was not present. So, ex-parte proceedings were drawn against them.

4. The original defendant No.2 filed written statement and claimed the ownership of the disputed plot and prayed for dismissal of suit.

5. On the basis of the pleadings of the parties, learned trial court framed the following issues:-

(1) Whether for specific performance of the agreement to sell, the plaintiff is entitled to get injunction against the defendant No.1?

(2) Whether plaintiff is entitled to get permanent injunction against the defendant No.1 to the effect that he is entitled to get possession of disputed plot after dispossessing the defendant No.2?

(3) Whether court fees is unsufficiently paid?

(4) Whether defendant No.1 has allotted the disputed plot to defendant No.2 after regularization?

(5) Whether plaintiff’s suit for specific performance is not maintainable?

(6) Whether no cause of action accrued to the plaintiff?

(7) Relief?

6. Trial court dismissed the suit filed by the plaintiff. The plaintiff filed an appeal against the said judgment and decree passed by the trial court. Appellate Court vide judgment and decree dated 10.10.1995 set aside the judgment and decree dated 03.02.1995 passed by the trial court and decreed the plaintiff’s suit and directed the original defendant No.1 for specific performance of the agreement to sell and also directed to give the possession of disputed plot by dispossessing the original defendant No.2.

7. This court had admitted the appeal on the following substantial questions of law:-

“(1) Whether the first appellate court was competent to grant the relief of possession in a suit for specific performance against the appellant particularly when no relief was sought against the appellant to that effect?

(2) Whether the relief is in the nature of mandatory injunction in such circumstances, it in favour of the plaintiff-respondent No.1, could be granted?

(3) Whether the suit was not barred by limitation particularly when the date of sale of the land in question was 9.4.81 and the payment of the price was allegedly made on 14.5.81 and the suit was filed belatedly in the year 1991?”

8. Learned counsel for the original defendant No.2 submits that suit filed by the plaintiff was time barred because as per averments of the plaintiff, plaintiff had paid the entire amount on 14.5.81 and present suit was filed in the year 1991. So, suit was time barred but appellate court wrongly decreed the suit.

9. Learned counsel for the original defendant No.2 also submits that the plaintiff had not sought the relief against the original defendant No.2 but appellate court wrongly decreed the suit against the original defendant No.2. Learned counsel for the original defendant No.2 also submits that there was no contract between the plaintiff and original defendant No.1-Nagar Palika to get delivered the physical possession of disputed plot. So, appellate court had no power to direct the original defendant No.1-Nagar Palika to dispossess the original defendant No.2 from the plot in