2017 Supreme(HP) 774

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
Shiv Saran Dass - Appellant
Versus
Smt. Rajindera Devi & Others - Respondents
Regular Second Appeal No. 555 of 2005 alongwith CMPMO No. 166 of 2007
Decided On : 05-09-2017

Headnote:

The court held that the time was not the essence of the contract and the suit for specific performance was not barred by limitation. The court also held that the plaintiff was ready and willing to perform his part of the contract and that he had acquired title to the property by way of adverse possession.

Fact of the Case:

The appellant-plaintiff (hereinafter referred to as the ‘plaintiff’), filed a suit for specific performance of contract and in the alternative for declaration to the effect that the plaintiff has become owner by way of adverse possession. It is averred in the plaint that Shri Raj Kumar Rajinder Singh, predecessor-in-interest of the defendants, was the owner of the suit property comprised in ‘Padam Castle Compound’, as detailed in the judgment and decree of the learned trial Court. It is further averred by the plaintiff that he was inducted as a tenant by said Shri Raj Kumar Rajinder Singh in respect of residential premises in ‘Padam Castle Compound’ in the year 1966. It is the claim of the plaintiff that on 18.12.1973, Shri Raj Kumar Rajinder Singh agreed to sell the suit property to the plaintiff for Rs.45,000/-, for which plaintiff had paid a part sale consideration of Rs.10,000/- to Shri Raj Kumar Rajinder Singh. It is the claim of the plaintiff that he was already in possession of the suit property as tenant and his possession was deemed to have been surrendered in part performance of the agreement. It is further averred that balance sale consideration was agreed to be paid by the plaintiff at the time of registration of the sale deed. Subsequently, another agreement, dated 15.01.1975 was executed between them, when a further part of sale consideration was paid by the plaintiff to the vendor-predecessor-in-interest of the defendants (hereinafter referred to as the ‘vendor’). Since the suit property was mortgaged by the vendor with the Himachal Pradesh State Cooperative Bank, Shimla, (for short ‘Co-operative Bank’) sale deed was agreed to be executed after redemption of the mortgage by the vendor Shri Raj Kumar Rajinder Singh. It is averred by the plaintiff that thereafter, he had been requesting the predecessor-in-interest of the defendants and then defendants personally as well as through their General Power of Attorney Shri Surat Ram Jhingta, for execution of the sale deed, but they repeatedly informed the plaintiff that the deed shall be executed after redemption of the mortgage. It is claimed by the plaintiff that defendants recently raised a hotel upon the property adjoining to the suit property, causing apprehension in his mind that defendants must have redeemed the property. It is averred that thereafter plaintiff sent a latter, dated 14.9.2001 to the defendants requesting them to execute a sale deed in terms of the agreements, but no response was received from the defendants. Consequently, a legal notice, through lawyer was issued to the defendants, claiming that part of sale consideration has been paid to them and he is ready and willing to perform his part of the contract. It is further averred by the plaintiff that he, throughout after agreement, treated himself to be the owner of the property and liable to be declared as such and defendants were required to perform their part of agreements, dated 18.12.1973 and 15.01.1975 and execute sale deed in favour of the plaintiff.

Finding of the Court:

The court held that the time was not the essence of the contract and the suit for specific performance was not barred by limitation. The court also held that the plaintiff was ready and willing to perform his part of the contract and that he had acquired title to the property by way of adverse possession.

Issues: 1. Whether the plaintiff is entitled for the relief of specific performance of agreement, as prayed? OPP. 2. Whether the plaintiff has become owner of suit property by way of adverse possession, as alleged? OPP. 3. Whether the plaintiff is entitled for the relief of injunction? OPP. 4. Whether the suit is barred by limitation? OPD. 5. Whether the suit is not maintainable? OPD. 6. Whether there is never valid transfer of title in favour of the plaintiff? OPD. 7. Whether the plaintiff is estopped from filing the present suit against the defendants, on account of his own acts, deeds and acquiescence? OPD. 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 9. Relief.

Ratio Decidendi: The court held that the time was not the essence of the contract and the suit for specific performance was not barred by limitation. The court also held that the plaintiff was ready and willing to perform his part of the contract and that he had acquired title to the property by way of adverse possession. The court relied on the following principles: * Time is not the essence of the contract unless it is expressly stated to be so or can be inferred from the circumstances of the case. * A suit for specific performance of a contract for the sale of land is not barred by limitation if it is filed within three years from the date on which the contract was to be performed. * A plaintiff is entitled to a decree for specific performance of a contract if he is ready and willing to perform his part of the contract. * A plaintiff can acquire title to property by way of adverse possession if he is in possession of the property for a period of 12 years without interruption.

Final Decision: The appeal is allowed. The judgments and decrees passed by both the Courts below are set aside and suit filed by the plaintiff is decreed. A decree for specific performance of contract, as prayed for in the plaint, is granted in favour of the appellant-plaintiff. Decree sheet be prepared, accordingly. There shall be no order as to costs. Interim order, if any, stands vacated. All miscellaneous applications are disposed of.