The lawsuit for specific performance was barred by limitation as it was filed beyond three years from the fixed date, with prior litigation not warranting an exclusion of time.

JUDGMENT :

DEEPAK GUPTA, J.

1. Dalip Singh (respondent herein through his LRs) brought a suit for possession of the suit property by way of specific performance against defendant Amar Singh (now appellant through his LRs), based upon an agreement to sell dated 01.06.1978. The suit was dismissed by trial Court of ld. Additional Civil Judge (Sr. Division), Kaithal vide judgment dated 01.10.1996. However, the appeal preferred by plaintiff - Dalip Singh was accepted by the Appellate Court of Ld. Additional District Judge, Kaithal, who decreed the suit vide his judgment dated 16.07.2001. Before the First Appellate Court itself, defendant Amar Singh had expired and his LRs had been brought on record.

2. Against the aforesaid reversal, the LRs of original defendant - Amar Singh have filed the present Regular Second Appeal.

3. Trial Court record was called. The same has been perused. In order to avoid confusion, parties shall be referred as per their status before the Trial Court.

4. On perusal of the entire file including the trial Court record and after hearing learned counsel for both the sides, certain admitted facts emerge, which are as under:

 On 01.06.1978, agreement to sell (Ex.P2) was executed by owner of the suit property i.e., defendant - Amar Singh in favour of plaintiff - Dalip Singh regarding a plot measuring 200 sq. yards for total sale consideration of ₹10,500/-, out of which ₹5500/- was paid as earnest money.

 15.06.1978 was the agreed target date for execution and registration of the sale deed, on which date balance sale consideration was also to be paid.

 On 05.06.1978 i.e. prior to the target date, Jai Karan s/o defendant-Amar Singh filed civil suit N: 595 of 1978 seeking permanent injunction against his father Amar Singh, the proposed vendee of this case i.e. plaintiff-Dalip Singh and one Baisakhi, by claiming to be owner in possession of the suit property.

 An injunction order dated 05.06.1978 was passed in above case, staying the alienation.

 The above suit was dismissed as withdrawn on 24.11.1981, but prior thereto, on 23.11.1981, Jai Karan had already filed another Civil Suit N: 882 of 1981 against Amar Singh & Dalip Singh i.e. parties to the present lis.

 Above suit was partly decreed on 30.05.1986, prompting the present plaintiff Dalip Singh to file an appeal, which was accepted by ld. Additional District Judge, Kurukshetra on 10.08.1987.

 It is after the decision of the appeal that the present suit for specific performance was filed on 29.08.1988 by pleading that cause of action in favour of the plaintiff Dalip Singh had accrued on 10.08.1987 i.e. after the decision in the appeal as referred above.

5. Contesting the suit, defendant pleaded that suit was barred by limitation. Controverting other averments of the plaint, he prayed for dismissal of the suit.

6. Necessary issues were framed. None of the parties produced any oral evidence. Only certain documents were tendered in evidence on behalf of the parties.

7. Trial Court held that in the absence of plaintiff entering the witness box, neither the agreement to sell was proved, nor his readiness and willingness to perform his part of contract was established. It was further held that suit was barred by limitation. With these findings on the material issues, suit was dismissed on 01.10.1996.

8. In the appeal filed by the plaintiff, application for production of additional evidence was allowed. Plaintiff appeared in the witness box so as to prove the agreement to sell as well as his readiness and willingness. As by that time, defendant had expired, so one of his LRs/son Jai Karan (who had earlier filed two suits referred above) appeared in the witness box and also examined two other witnesses. The Appellate Court held that since the execution of the agreement was not specifically denied by the defendant, so obs