JUDGMENT :

PANKAJ JAIN, J.

CM-58-C-2026

This is an application seeking condonation of delay of 775 days in filing the present appeal.

For the reasons recorded in the application, this Court is satisfied that the applicants-appellants have shown sufficient cause to condone the delay in filing the appeal.

Application is allowed. Delay of 775 days in filing the appeal is condoned.

Main Case

1. Appellants-defendants are in second appeal. For convenience, parties hereinafter are referred to by their original position in the suit i.e. the appellants as defendants and the respondent as plaintiff.

2. Plaintiff filed suit seeking decree of specific performance of agreement to sell dated 16.09.2004 pertaining to a plot measuring 100 sq. yards as detailed out in the plaint (hereinafter referred to as the ‘suit property’). As per the plaintiff, Kaptan, predecessor-in-interest of the defendants executed agreement to sell dated 16.09.2004 in his favour. Kaptan agreed to sell suit property in his favour for a total sale consideration of Rs.30,000/-. Full and final payment was made by the plaintiff to vendor Kaptan on the same day. Kaptan agreed to execute sale deed in favour of plaintiff on his asking. Kaptan died on 14.06.2000 leaving behind defendants as his legal heirs. Mutation qua suit property was sanctioned in favour of defendants. Plaintiff issued legal notice dated 13.11.2014, calling upon the defendants to execute sale deed in his favour on 26.11.2014. Plaintiff claims to have remained present in the office of Sub Registrar on the appointed date. After the defendants failed to execute the sale deed in his favour, the plaintiff instituted the present suit on 22.12.2014.

3. Suit was contested by the defendants by filing joint written statement. Execution of agreement to sell by their predecessor-in-interest, Kaptan was denied. It was claimed that the same is a result of fraud played by plaintiff upon Kaptan. Defendants denied possession of the plaintiff over the suit property. The defendants claimed to have constructed a residential house over the plot. As per defendant, the suit property was gifted by the Gram Panchayat of village Devru to Kaptan vide registered gift deed No.6594 dated 11.03.1994. As per the relevant regulations/rules, the donee is bound by the conditions of the gift and cannot alienate the same for a period of 20 years from the date of gift. The agreement to sell propounded by the plaintiff dated 16.09.2004 being in violation of the terms of the gift is illegal and not binding on the rights of the defendants.

4. Suit filed by the plaintiff was put to trial by the Court of the First Instance framing following issues:-

“1. Whether the plaintiff is entitled to a decree for permanent injunction as prayed for? OPP

1. (a) whether the plaintiff is entitled to a decree for specific performance? OPP (additional issue framed vide order dated 13.9.2018)

2. Whether the suit is not maintainable in the present form? OPD

3. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD

4. Whether the plaintiff has not come to the court with clean hands and suppressed the material facts from the court? OPD

5. Relief.”

5. After analyzing evidence threadbare, the Court of First Instance found that the plaintiff successfully proved execution of agreement to sell and receipt (Ex.P23 and P24). As per the terms of the agreement to sell propounded by the plaintiff, entire sale consideration stands paid to Kaptan. The agreement to sell being open-ended, time was not the essence of the same. The plaintiff proved service of the legal notice upon the defendants and filed the suit thereafter. Thus, the suit is well within the period of limitation. The Court accordingly decreed the suit filed by the plaintiff, holding him entitled to main relief of specific performance.

6. The aforesaid findings stand affirmed by the Lower Appellate Court.

7. Counsel appearing for the defendants has assailed the findings recorded by the Courts below.