ORDER

The appellant/plaintiff has preferred the appeal being aggrieved by the judgment and decree dated 05/09/2014 passed by the Third Additional District Judge, Gwalior in Civil Suit No.29-A/2014 whereby the suit for declaration, injunction and specific performance of contract has been dismissed.

2. The facts of the case, in brief are that the defendant/respondent executed agreement to sale in favour of the plaintiff/appellant on 15/04/2005 in respect of the disputed property owned by her through this agreement. The respondent agreed to sell this property to the plaintiff for a sum of Rs.3,25,000/- and received Rs.1,60,000/- as advance money from the plaintiff. It was agreed upon between the parties that the registered sale deed will be executed within two months and rest amount of consideration will be paid by the plaintiff at that time. Thereafter, the defendant avoiding and procrastinating. The execution of the sale deed in favour of plaintiff, started the efforts to sell the property in dispute elsewhere. When plaintiff came to know about it, he gave the notice to the defendant and also got it published in the newspaper, but to of no avail. Hence, prayer is made to make a declaration that the defendant has no right to sell the disputed property to anyone else except the plaintiff, injunction be granted in this regard and also specific performance of agreement to sale be also ordered.

3. The defendant/respondent denied the plaint allegations in her written statement and averred that the plaintiff has prepared false and fabricated agreement. She is still in possession of the suit property and has not received any notice from the plaintiff. The suit deserves to be rejected and hence be dismissed.

4. The Trial Court while dismissed the suit on the ground of limitation held the existence of agreement and the payment of part consideration to the defendant by the plaintiff and the readiness and willingness on the part of plaintiff to get sale deed executed in his favour.

5. It is submitted by the learned counsel for the appellant that the findings given by the Trial Court on issue No.8 is against the principles of law. Even no order has been given by the Trial Court for the refund of money with or without interest. Much money has been spent by the appellant for the payment of Court fees and penalty imposed for impounding the document for agreement to sale. Hence, prayer has been made to set aside the impugned judgment and decree and also to decree the suit of the appellant.

6. Per contra, the learned counsel for the respondent has supported the judgment and decree of the Trial Court as it is in consonance with the provisions of law. He has prayed for the dismissal of appeal.

7. Heard the arguments advanced by the counsels for the rival parties and perused the record of the Trial Court.

8. It is an admitted fact that the findings given by the Trial Court in favour of the plaintiff/appellant on issue Nos. 5 to 7 regarding the execution of agreement to sale, receiving of earnest money by the defendant/respondent and readiness, willingness on the part of the plaintiff have not been assailed by the respondent either by cross-objections or separate appeal. Hence, these findings have become final. The suit for specific performance has been dismissed solely on the ground that the suit is barred by limitation.

9. It is not in dispute between the parties that initially the suit was filed for declaration and injunction on 03/10/2005 on the basis of agreement to sell. During the trial on the observation/ advice by the Court below, in its order dated 30/06/2009 relief of specific performance of the sale agreement dated 15/04/2005 has been added by the plaintiff through amendment in the plaint on 30/07/2009. As per the agreement, the sale deed was to be executed within a period of 60 days from the date of agreement i.e. 15/06/2005. The Trial Court has held that the date of institution of the suit for specific performance is 30/07/2009 w