IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE,
RANGA REDDY DISTRICT
PRESENT : SRI B.SRINIVAS RAO
II ADDL. JUNIOR CIVIL JUDGE,
RANGA REDDY DISTRICT
MONDAY, THE 24th DAY OF MARCH, 2014
O.S.No.1174 OF 2009
BETWEEN:
G.Veereshwara Rao, S/o.Late.G.Bapiraju, Age: 79 years, Occ: Retired Employee, R/o.H.No.12-13-663, Street No.20, Taranaka, Secunderabad.
... Plaintiff
A N D
1.P.Ramprasad, S/o.Late.P.V.Kutumba Rao, Age: 50 years, Occ: Employee, R/o.H.No.7-90/5, Brindavan Colony, Gandipet Raod, Narsing Village, Kokapet Post, Hyderabad, Ranga Reddy District.
2.P.Ravi Prasad, S/o.Late.P.V.Kutumba Rao, Age: 45 years, Occ: Employee, R/o.H.No.7-90/5, Brindavan Colony, Gandipet Raod, Narsing Village, Kokapet Post, Hyderabad, Ranga Reddy District.
3.Satya Prasad, S/o.Not known to plaintifff, Age: 43 years, Occ: Employee, R/o.H.No.7-90/5, Brindavan Colony, Gandipet Raod, Narsing Village, Kokapet Post, Hyderabad, Ranga Reddy District.
4.Smt.P.Annapurnamma, W/o.Late.P.V.Kutumba Rao, Age: Major, Occ: Housewife, R/o.H.No.7-90/5, Brindavan Colony, Gandipet Raod, Narsing Village, Kokapet Post, Hyderabad, Ranga Reddy District.
The defendant No.4 is impleaded vide Orders in I.A.801/2011 dated 17.11.2011
... Defendants
This suit is coming on this day for hearing before me in the presence of Sri.D.Sudershan Rao, advocate for the plaintiff and Sri.Hari 2
Hara Kumar, advocate for defendants and having stood over for consideration this court delivered the following:
JUDGMENT
1. The plaintiff filed this suit against the defendant No.1 to 4 seeking the relief of specific performance to direct the defendants to ex- ecute and register sale deed in respect of suit schedule property i.e., plot No.28 in Sy.No.135 admeasuring 500 sq.yards at Brin- davan Housing Society of Narsingi village, Ranga Reddy District.
Originally, this suit was filed against defendant No.1 to 3 itself and defendant No.4 was subsequently impleaded by the orders of this court in I.A.801/2011 dated 7.11.2011.
2. The contents of the plaint are that plaintiff is member of Brindavan
Housing Society and he was allotted suit schedule property and an agreement of sale was entered in between defendant No.4 and plaintiff dated 14.3.1967. The price was fixed at Rs.2.50 paise per square yard and plaintiff paid Rs.100/- through cash for which receipt is issued. Subsequently, the husband of de- fendant No.4 by name P.V.Kutumba Rao addressed letter dated 4.10.1981 for payment of balance consideration and take pos- session and plaintiff paid the entire balance to the husband of defendant No.4 and plaintiff was accordingly put in possession.
The plaintiff stated that subsequently legal complications arouse regarding layout and defendant No.4 and her husband promised to execute registered sale deed after they get sanc- tioned layout. The plaintiff stated that he approached defendant
No.4 and her husband and they went on postponing and since the plaintiff was in possession he believed the defendant No.4.
3
After demise of Kutumba Rao, the plaintiff approached the de- fendants on several occasions and he finally approached the de- fendants in June 2007 for registered sale deed and the defend- ants refused and demanded unreasonable amounts. The plaintiff finally issued legal notice on 21.6.2007 and the defend- ants got returned the said post, as such the plaintiff filed this suit for the relief of specific performance and prayed to decree the suit as prayed for.
3. The defendant No.3 filed written statement by denying all the alleg- ations and stated that defendant No.1 to 3 are not the legal heirs of said Annapurnamma and stated that said An- napurnamma is still alive and stated that suit is bad for non joinder of proper and necessary parties. The defendant No.3 denied that the plaintiff is member of Brindavan Housing Soci- ety and he do not know if plaintiff entered into agreement with
Annapurnamma and paid any advance. The defendant No.3 stated that he is not aware if Kutumba Rao addressed letter to plaintiff demanding any balance sale consideration and denied that the plaintiff was put in possession after paying entire con- sideration. The defendant No.3 denied that there were any legal complications in the layout and stated that the plaintiff was never put in possession and stated that Annapurnamma is still alive. He denied that the plaintiff approached Kutumba Rao sev- eral times and stated that there is no cause of action and stated that suit is hopelessly barred by limitation. The defendant No.3 stated that suit is bad for non joinder of proper and necessary parties and prayed to dismiss the suit with costs.
4. The defendant No.4 filed written statement by denying all the alleg- ations and defendant No.4 contended that this suit is barred 4 against this defendant by limitation and she is not brought on record within three years after knowing that she is alive. She denied that Kutumba Rao was looking after entire property and denied that plaintiff is member of Brindavan Society. The de- fendant No.4 denied that she entered into agreement of sale on 14.3.1967 and denied that he paid any consideration of
Rs.100/-. The defendant No.4 stated that she is not aware if
Kutumba Rao addressed a letter to the plaintiff and stated that plaintiff did not pay any amount to the defendant and there is no transaction among them. She denied that there was any leg- al complication in the layout and stated that plaintiff is never put in possession and denied that plaintiff approached defend- ant No.4 at any time and stated that this suit is filed to extract money and stated that this suit is barred by limitation and prayed to dismiss the suit with costs.
5. Basing on the above pleadings, the following issues are framed for trial.
1. Whether the plaintiff is entitled for direction to the de- fendants to execute and register sale deed as prayed for?
2. To what relief?
6. Issue No.1: “Whether the plaintiff is entitled for direction to the defendants to execute and register sale deed as prayed for”?
7. The preliminary burden of proof is on the plaintiff to establish that he is entitled for the relief of specific performance and registered sale deed. The plaintiff got examined as PW.1 who filed his ex- amination in chief in the form of affidavit by repeating the con- tents of plaint in a nutshell and marked Ex.A1 to A14 which are 5 as follows: agreement of sale dated 14.3.1967, postcard dated 4.10.1981, letter dated 18.1.1989, postal receipt, copy of letter
dated 16.2.1989, copy of letter and postal acknowledgment
dated 25.4.1989, copy of letter and postal acknowledgment,
postal receipt, postal receipt, office copy of notice, postal re- ceipt, returned postal cover of defendant No.1, returned postal cover of defendant No.2 and returned postal cover of defendant
No.3. The PW.1 got marked the documents through the pro- ceedings of advocate commission and he was also cross ex- amined at his residence through advocate commissioner and the cross examination of PW.1 is as follows: in the course of cross examination PW.1 stated that he did not file any receipt pertaining to balance sale consideration and he did not file any receipt of payment of balance sale consideration and the wit- ness added that he paid entire consideration. He denied that as per agreement of sale plot is not situated in Brindavan Co-oper- ative Society and there is no recital in the sale deed and denied that he did not pay balance sale consideration before February 1968 and denied that he never paid any sale consideration as per Ex.A1. He admitted that after receiving letter dated 4.10.1989 he has not paid the remaining balance sale consider- ation and again he added that he made payment before receiv- ing notice in Ex.A2 and he personally approached and reques- ted for registration. He denied that after receiving Ex.A2 he was not ready and willing to fulfill conditions of agreement of sale and denied that Ex.A1 was terminated in the year 1968 and denied that Ex.A3 to A7 were not addressed to vendor and again he added that since Kutumba Rao was looking after all the matters, he addressed the said letters to him. He denied 6 that under Ex.A3 to A7 he did not mention that he is willing to get the sale deed and only in Ex.A10 which is addressed in 21.6.2007 he asked for registration. He agreed that he visited defendant No.4 and her husband and requested for registration of suit property and admitted that legal notice dated 21.6.2007 was not issued in the name of vendors. He denied that posses- sion of suit property is never handed over to him and denied that suit is barred by law of limitation and denied that he is de- posing falsely.
8. The defendant No.3 got examined himself as DW.1 by filing exam- ination in chief in the form of affidavit repeating the contents of written statement in nutshell. In the course of cross examina- tion, DW.1 stated that he is grandson of defendant No.4 and do not know total extent and survey numbers of Brindavan Hous- ing Society and do not know how many plots are there. He fur- ther stated that lands in Brindavan colony were standing in the name of defendant No.4 and her husband Chukkamma and Na- gaiah who are parents of Kutumba Rao i.e., husband of defend- ant No.4. He stated that defendant No.4 and her husband sold individual plots during 1965-67 and do not know if staff of poly- technic college purchased several plots and stated that employ- ees purchased the plots and do not know about the documents said to have executed in favour of purchasers. He further stated that he is presently residing in the same colony and he did not see any agreement of sale said to have executed by defendant
No.4. He denied that all plots are vacant around their house in the colony and he added that 50 plots are occupied and 100 plots are vacant and stated that he do not know about pen- dency of cases before various courts. He further stated that he 7 might be aged one year in the year 1968 and he is born in Feb- ruary 1967 and he might be one month as on date mentioned in
Ex.A1 and stated that he do not know about addressing of Ex- .A2 by his grandfather and do not have knowledge about corres- pondence under Ex.A3 to A10. He stated that there is no person by name Ravi Prasad and defendant No.1 is son of defendant
No.4 and stated that written statement and chief affidavit are prepared on his instructions and denied that written statement and chief affidavit are contradictory with each other. He denied that husband of defendant No.4 was looking after affairs of land during his lifetime and denied that the transaction under Ex.A1 was made and he paid entire amount and his grandfather and defendant No.4 were prolonging the registration stating that there are legal complications and denied that possession was delivered to plaintiff. He denied that after death of grandfather, they clearly denied transaction to various purchasers and denied that more than 100 plots are vacant because of various litigations with purchasers and denied that he is deposing falsely.
9. From the above discussed evidence, it is seen that the plaintiff has filed suit seeking the relief of specific performance in respect of suit schedule property basing on the alleged agreement of sale
dated 14.3.1967 marked under Ex.A1. It is seen that the
plaintiff has initially filed this suit only against defendant No.1 to 3 alone and subsequently impleaded the defendant No.4 in the year 2011. It is seen that in the initial plaint the plaintiff mentioned that defendant No.1 to 3 are legal heirs of one P.An- napurnamma who is none other than defendant No.4 who was subsequently impleaded. It is seen that the defendant No.3 has 8 filed written statement on 31.12.2010 stating that the said An- napurnamma i.e., defendant No.4 is alive and subsequently plaintiff took steps to bring defendant No.4 on record. It is seen that the plaintiff in his evidence has marked Ex.A1 to A14. Ex- .A1 is agreement of sale, Ex.A2 is post card dated 4.10.1981,
Ex.A3 is copy of letter dated 18.1.1989, Ex.A4 is postal receipt,
Ex.A5 is copy of letter dated 16.2.1989 under certificate of post- ing, Ex.A6 is copy of letter and postal acknowledgement and re- ceipt dated 11.4.1989, Ex.A7 is copy of letter dated 28.9.1989,
Ex.A8 7 A9 are postal receipts, Ex.A10 is office copy of notice
dated 21.6.2007, Ex.A11 is three postal receipts, Ex.A12 to A14
are returned postal covers of defendant No.1 to 3. It is seen that
Ex.A1 is said to be agreement of sale dated 14.3.1967. On per- usal of said document, it is mentioned as if plot No.28 of
Sy.No.135 admeasuring 500 sq.yards is agreed to be sold for
Rs.2.50/- per square yard. It is seen that as per the contents of the said deed the purchaser was supposed to pay further
Rs.150/- within 30 days from the said date in addition to ad- vance of Rs.100/- and balance of Rs.1,000/- should be paid in 10 equal monthly installments by 01.05.1968. It is seen that there is no whisper of any delivery of possession to the plaintiff under the said agreement of sale and it is mentioned that the possession shall be delivered only after execution of registered sale deed. It would be pertinent to see that in the schedule of property, the plaintiff has mentioned the suit property as situ- ated at Brindavan Colony Housing Society but in the agreement of sale there is no such reference of any Brindavan Colony
Housing Society. It is seen that Ex.A2 is said to be letter dated 4.10.1981 said to have addressed by one Kutumba Rao who is 9 none other than husband of defendant No.4. It is seen that in the plaint, the plaintiff mentioned that husband of defendant
No.4 addressed letter under Ex.A2 for payment of balance sale consideration and to take possession and in pursuance of that he made the entire payment and he is in possession since 1981.
It is pertinent to see that as per the contents of Ex.A1, the last payment has to be made by February 1968. But as per the con- tention of plaintiff himself that in 1981 he received a letter from the husband of defendant No.4 to pay the entire balance con- sideration and get the sale deed tends to show that the plaintiff was not prompt to pay the entire consideration within stipu- lated time under Ex.A1. When the plaintiff was not prompt to make the payment as per the stipulated time under Ex.A1, in such case it would tends to draw a presumption that the plaintiff has violated the terms and conditions of Ex.A1. Even otherwise, it would be pertinent to see the contents of Ex.A2 minutely for a while. It is seen that in the said letter under Ex- .A2 which is said to have addressed to the plaintiff it is men- tioned that the plaintiff is advised to complete necessary formal- ities for registration of plot of Brindavan colony at Narsingi vil- lage but the categorical description of the property such as plot number, survey number and the extent of area has been not mentioned and it is not known whether it is pertaining to suit property only or some other property. It is seen that Ex.A3 to A6 are said to be office copy of letters said to have addressed by plaintiff to husband of defendant No.4 and Ex.A7 is the re- gistered covering letter said to have addressed by the plaintiff to defendant No.4 and her husband along with acknowledgements and postal covers. It is seen that Ex.A3 is letter addressed by 10 plaintiff dated 18.1.1989 and in the said letter the plaintiff men- tioned that he is a member in Brindavan colony and he is hav- ing plot No.28 vide reference No.B7/9 and he mentioned that he is intending to construct a small house in the said plot. Even in
Ex.A5 letter dated 16.2.1989, the plaintiff has mentioned the same things and under Ex.A6 dated 11.4.1989 he mentioned that he is the owner of plot No.28 of Brindavan colony. It is seen that Ex.A7 is dated 28.9.1989 which is said to have addressed to defendant No.4 as well as her husband stating that he want to construct a house in plot No.28 and he approached some bankers for loan facility and requested to provide Brindavan So- ciety registration particulars and sanctioned layout plan, ap- proved number and date. It is pertinent to see that on the dates under which the plaintiff has addressed letters under Ex.A3 to
A7, till that date he was not holding any registered sale deed in his favour in respect of suit property and he was only an agree- ment holder. Though he contended that possession was de- livered to him in 1981 after making entire payment, he did not place any proof of documents before the court to show that he is in actual and physical possession of the plot since from the said date. The plaintiff did not choose to file any property tax receipts or any other electricity connection or municipal tax re- ceipts pertaining to suit plot to show that he is in actual pos- session of the suit plot. Even otherwise, a mere agreement of sale do not confer any title in favour of any person and without having a regular registered sale deed, the plaintiff cannot pro- ject himself as the owner of suit plot. Even otherwise, it is per- tinent to see that under Ex.A1 P.Annapurnamma i.e., defendant
No.4 is only shown as vendor and her husband is not a party 11 under Ex.A1. But interestingly, the letters under Ex.A3 to A6 are addressed to said Kutumba Rao who is not a party under
Ex.A1. Though the plaintiff contended that he is a member of
Brindavan Housing Society but he did not place any document
before the court to show that he is a member of Brindavan soci-
ety and he did not mention as to when the said housing society was formed and who is the founder of that society. It is seen that though the plaintiff contended that he has paid initially ad- vance of Rs.100/- as on the date of execution of Ex.A1 and though there is a reference of a receipt number also under Ex- .A1, but the plaintiff did not choose to file any such alleged re- ceipt before the court. Though the plaintiff stated that after re- ceiving letter under Ex.A2 he has paid the amount but he did not file any receipt to that effect and he admitted the said fact even in his cross examination also. It is seen that the PW.1 in his cross examination clearly stated that he did not file any re- ceipt pertaining to balance sale consideration. It is pertinent to see that in the plaint the plaintiff stated that he received letter from the husband of defendant No.4 dated 4.10.1981 to pay balance sale consideration and in accordance with the said let- ter he paid the entire balance sale consideration. But interest- ingly, in the cross examination he mentioned that after receiv- ing letter dated 4.10.1981 he has not paid the balance sale con- sideration and again he added that he paid the entire sale con- sideration prior to Ex.A2 letter which contention is contradict- ory to the contents of plaint. It is pertinent to see that when the plaintiff has approached the court seeking the relief of specific performance, in such circumstance he is required to establish
before the court that he has never violated the terms and condi-
12 tions of agreement of sale and he would be required to establish that he was always and continuously ready and willing to per- form his part of contract. Here in the present case, the agree- ment of sale is alleged to be dated 14.3.1967 and as per Ex.A1 the final payment was to be made by February 1968. If the plaintiff was really willing to perform his part of contract promptly and if the plaintiff was really continuously ready and willing to perform his part of contract then he would have taken steps to pay the balance consideration within stipulated time and get registered sale deed. But here in the present case, ad- mittedly the plaintiff as per his own document under Ex.A2 does not appear to have paid the balance consideration until 1981 which tends to show that plaintiff was never vigilant to perform his part of duties to get the registered sale deed and he was not prompt in making the payment which tends to draw a presumption that plaintiff was not ready and willing to perform his part of contract. It is seen that as already discussed above even in the letters addressed under Ex.A3 to A7 the plaintiff did not request for getting executed registered sale deed and refer- ence of his possession is not made under any letter and he was only stating that he was willing to construct a house over the said plot. It is seen that without getting a registered sale deed in his favour and without getting perfected his title, how the plaintiff expected to raise construction over the said plot and how he expected to get valid permission from the Municipality or Grampanchayat for raising house construction without title is not been understood. Though the plaintiff contended in the plaint that subsequently things went into legal complications regarding layout and defendant No.4 and her husband prom- 13 ised to execute registered sale deed after getting sanctioned lay- out, but he did not mention as to when legal complications arose with whom and when the said complications were settled has been not mentioned. Though the plaintiff mentioned in the plaint that he approached defendant No.4 and her husband several times but they were postponing, but he did not mention the dates on which he approached them. It is seen that as already discussed above, the plaintiff in the original plaint men- tioned that defendant No.1 to 3 are legal heirs of defendant No.4 and after defendant No.3 has filed written statement stating that defendant No.4 is alive then only the plaintiff impleaded defendant No.4. It is seen that both defendant No.3 and defend- ant No.4 have denied the very execution of Ex.A1 in the written statement. The defendant No.4 in her written statement has denied about execution of Ex.A1 and also denied about pay- ment of any consideration to her. When the defendant No.4 who is said to be vendor under Ex.A1 has denied the very execution of Ex.A1, in such circumstances the plaintiff ought to have taken steps to establish that Ex.A1 is validly executed and signed by defendant No.4. But the plaintiff did not take any such steps to establish that defendant No.4 only has executed
Ex.A1 and he did not take any steps for sending the Ex.A1 for comparing disputed signatures of defendant No.4 on Ex.A1 with her admitted signatures on vakalathnamma and written state- ment. Further on perusal of Ex.A1, it is seen that it is signed by two witnesses, but the plaintiff is silent whether the said wit- nesses are alive or not and he did not take any such steps to examine the said witnesses for establishing the execution of Ex- .A1. It is well settled preposition of law that whenever any docu- 14 ment is denied by any executant, in such case the person claiming through such document shall take steps to examine the witnesses who attested such document to establish execu- tion of such document as per the provisions of Section 67 &
Section 68 of Indian Evidence Act. But the plaintiff did not take any such steps in the present case. It is seen that the plaintiff contends that he has addressed letter on 21.6.2007 to the de- fendant No.1 to 3 calling upon them to execute the sale deed which are said to have been returned as per contention of plaintiff. But on perusal of said returned covers, it is not men- tioned as refused or unclaimed but it is mentioned that the party is out of station. It is pertinent to see that in the plaint the plaintiff has mentioned house numbers of defendant No.1 to 3 but on the returned postal covers there is no house numbers and it is simply written as Brindavan colony, Gandipet road,
Narsingi village of Kokapet post. It is pertinent to see that the alleged legal notice under Ex.A10 was the first notice said to have addressed by the plaintiff in respect of suit property seek- ing the registered sale deed since from the date of execution of
Ex.A1 which fact is even admitted by the plaintiff in his cross examination. It is seen that the plaintiff in his cross examina- tion has clearly admitted that he has not mentioned his willing- ness to get the registered sale deed in Ex.A10 and he only asked for registration and he admitted that he addressed Ex.A10 after 40 years of Ex.A1. It is seen that admittedly Ex.A1 said to have executed in the year 1967 but the plaintiff did not choose to take any steps for execution of sale deed registered all these years and after lapse of 40 years he said to have addressed legal notice under Ex.A10 to the sons of his alleged vendor which is 15 not received by them in fact. It is pertinent to see that no notice is addressed by the plaintiff to his real vendor i.e., defendant
No.4 and even in Ex.A10 also he did not express his readiness and willingness to perform his part of contract. When no legal notice is addressed to the real vendor and when Ex.A10 is ad- dressed to defendant No.1 to 3 who are not parties to Ex.A1 as such that legal notice under Ex.A10 do not hold good in the eyes of law since it is addressed to wrong persons and also for the reason that original vendor of plaintiff is very much alive as on the date of addressing that notice. All the above discussed evidence tends to show that the plaintiff was never vigilant over his rights and he did not perform his part of contract promptly and he violated the terms and conditions of Ex.A1. Further, the very fact that he did not choose to address legal notice until 2007 that is up to 40 years after execution of Ex.A1 and since he did not take any steps to get any registered sale deed in his favour all these years, as such it cannot be held that he was al- ways ready and willing to perform his part of contract. When the plaintiff failed to establish that he was always continuously ready and willing to perform his part of contract, in such cir- cumstances he cannot claim any relief of specific performance against the defendants in respect of suit schedule property. The plaintiff counsel argued that the evidence of DW.1 compared to his written statement is totally contradictory and stated that the real owner is not examined only under the fear that if defendant
No.4 comes into witness box the entire truth would be elicited.
Be that as it may be, it is for the plaintiff to establish that he was always ready and willing to perform his part of contract and more so ever when the defendant No.4 denied execution of 16 agreement of sale, in such case the plaintiff ought to have taken steps to establish that defendant No.4 only has executed Ex.A1.
But the plaintiff did not take any such steps. Having not estab- lished the execution of Ex.A1 and having not established that he was always continuously ready and willing to perform his part of contract, in such circumstances the plaintiff cannot be permitted to take shelter over the weakness of the defendant.
Even other wise, it is well settled preposition of law that plaintiff in any case is required to establish his own case through is own independent source of evidence irrespective of the fact whether the defendant is successful in establishing his defence or not.
In other words, the plaintiff in any case is required to establish his own case by his own source of evidence and he cannot seek to win over his case on the weakness of defendant. In view of the above discussed evidence, it is held that since the plaintiff has failed to establish the execution of Ex.A1 and also failed to establish that he was always ready and willing to perform his part of contract promptly, as such he is not entitled for any re- lief of specific performance for execution of registered sale deed in his favour in respect of suit schedule property.
10. Now coming to other aspect whether the suit is filed within the period of limitation or not. It is pertinent to see that defendant
No.3 and defendant No.4 in their written statement has taken a plea that the suit is barred by limitation since the suit is filed after 40 years from the alleged date of execution of agreement of sale under Ex.A1. It is not in dispute that Ex.A1 is showing the date as 14.3.1967 and though the time is not essence of con- tract under Ex.A1, but still it is mentioned under Ex.A1 that the plaintiff is required to pay the sale amount in 10 installments 17 and last installment shall be paid by February 1968. Further, the plaintiff has filed a postal card under Ex.A2 which is dated 4.10.1981 which is said to have addressed to plaintiff by the husband of defendant No.4. Admittedly, as per gist of Ex.A2, the plaintiff was called upon to pay the balance amount and take steps to get registered sale deed and the plaintiff in his plaint stated that Ex.A2 is addressed by husband of defendant
No.4 in 1981 calling upon him to pay the balance amount and accordingly he paid the amount after receiving letter under Ex- .A2 and he was put in possession. Be that as it may be, there are several communications said to have undertook among the plaintiff and husband of defendant No.4 and defendant No.4 under Ex.A3 to A7 and as already discussed above the plaintiff in the said letters never requested to execute registered sale deed in respect of suit schedule property nor he mentioned that he is ready and willing to perform his part of contract. Admit- tedly, the plaintiff is said to have addressed the very first legal notice to defendant No.1 to 3 on 21.6.2007 through his counsel disclosing about Ex.A1 and called upon them to execute re- gistered sale deed. It is seen that the plaintiff even in Ex.A10 has nowhere mentioned that he is always ready and willing to perform his part of contract and he only asked to execute a re- gistered sale deed in the said notice which is even admitted by him in his cross examination. The plaintiff in his cross examin- ation even admitted that Ex.A10 is the first legal notice which he addressed to the defendants and prior to that he never is- sued any notice. Be that as it may be, as already discussed above the notice under Ex.A10 is issued to defendant No.1 to 3 who are not parties under Ex.A1 stating that defendant No.4 is 18 no more and though subsequently defendant No.4 is impleaded, but no notice is admittedly issued by the plaintiff to defendant
No.4 who is said to be vendor under Ex.A1. The very admission of plaintiff in his cross that except Ex.A10 he did not issue any other notice for specific performance and prior to that he did not address any legal notice to the defendants tends to show that the plaintiff did not take any steps for getting registered sale deed till 40 years from the date of execution of Ex.A1.
Though there is no specific time mentioned in Ex.A1 but that does not mean that the plaintiff can take decades together by simply passing the time and it is creating doubt in the mind of court whether this suit is filed within limitation period or not.
Now it would be pertinent to see the column of cause of action in the original plaint and also in the amended plaint. It is seen that in the original plaint the cause of action is said to have arose on 14.3.1967 when Ex.A1 is executed and also in 1981 when balance sale consideration is paid and also in 1989 in the date of correspondence of Ex.A3 to A7 and in the first week of
June 2007. It is seen that if the plaintiff has paid the entire sale consideration in 1981, then he ought to have taken steps within reasonable time from the said period to get registered sale deed but admittedly he did not take any such steps. It is seen that though there is no issue framed with regarding to question of limitation but still when it is evident from the evidence on re- cord and the contents of plaint that suit is barred by limitation, in such circumstances the court has ample powers under Sec- tion 3 of Limitation Act to probe into the question of limitation irrespective of the fact as whether the issued with regarding limitation has been framed or not. For the better understand- 19 ing, it would be just and proper to discuss the provision of Sec- tion 3 of Limitation Act which are as follows:
Bar of limitation : -
1. Subject to the provisions contained in Section 4 to 24 (inclus- ive), every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
2. For the purpose of this Act-
a) a suit as instituted –
i) in an ordinary case when the plaint is presented to the proper officer.
ii) In the case of a pauper when his application for leave to sue as a pauper is made and iii) In the case of a claim against a company which is being wound up by the court when the claimant first sends in his claim to the official liquidator.
b) any claim by way of a set off or a counter claim shall be treated as a separate suit and shall be deemed to have been instituted.
i) in the case of a set-off, on the same date as the suit in which the set-off, is pleaded ii) in the case of a counter-claim on the date on which the counter-claim is made in the court.
c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
11.From the plain reading of the provisions of Section 3 of Limita- tion Act, it is clear that the court can go into enquiry regarding question of limitation even though no issue with regarding lim- itation is framed when it appears to the court from the material 20 available on record or else from the contents of the plaint that the suit is not filed within the period of limitation. Here in the present case when the plaintiff contends that agreement of sale is executed in the year 1967 itself and not taking any steps to get a registered sale deed until 40 years and not issuing any legal notice for execution of sale deed till 40 yeas and not issu- ing proper notice to the alleged vendor in the agreement of sale would inobviously and unhesitatingly laid down path to hold that the suit is not within limitation and the same is barred by limitation. In view of the above held discussion, it is held that this suit is bad not only on merits but also for the reason that the suit is barred by limitation. The issue No.1 is decided ac- cordingly.
12. Issue No.2 : To what relief?
13. In view of findings made while discussing issue No.1, it is held that the present suit of the plaintiff is liable to be dismissed with costs. The issue No.2 is decided accordingly.
14. In the result, the present suit of the plaintiff be, and the same do hereby dismissed with costs.
Dictated to the Personal Assistant of II Addl. Junior Civil Judge, tran-
scribed by him, corrected and pronounced by me in the open court on this, the 24th day of March, 2014.
II Addl. Junior Civil Judge Ranga Reddy District 21
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF FOR DEFENDANT
PW.1: G.Veereshwara RaoDW.1: Y.V.Satya Prasad
EXHIBITS MARKED
FOR PLAINTIFF FOR DEFENDANT
Ex.A1agreement of sale dated 14.3.1967 NIL Ex.A2postcard dated 4.10.1981 Ex.A3letter dated 18.1.1989 Ex.A4postal receipt Ex.A5copy of letter dated 16.2.1989 Ex.A6copy of letter and postal acknowledgment dated 25.4.1989 Ex.A7copy of letter and postal acknowledgment Ex.A8postal receipt Ex.A9postal receipt Ex.A10 office copy of notice Ex.A11 postal receipt Ex.A12 returned postal cover of defendant No.1 Ex.A13 returned postal cover of defendant No.2 Ex.A14 returned postal cover of defendant No.3
II Addl. Junior Civil Judge Ranga Reddy District.