# Sushant Kumar & Anr v. Rajeshwar & Ors - **Citation:** (2016) 5 ILRA 464 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-18 - **Bench:** Arun Tandon, Yashwant Varma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushant-kumar-anr-v-rajeshwar-ors-43854 - **Pages:** 5 ## Headnote Civil Procedure Code, 1908 - Order VII Rule 11 - Limitation Act, 1963 - Section 3 - Specific Relief Act, 1963 - Article 54 (Limitation for specific performance) Agreement to sell executed on 27.01.2006 with a stipulated period of one year for execution of sale deed - Last date for performance being 26.01.2007 - Suit for specific performance instituted in 2013 - Held,limitation for filing suit for specific performance is three years from the date fixed for performance - Suit filed beyond the prescribed limitation period is barred by law - Plaint liable to be rejected under Order VII Rule 11 CPC - Plea that plaint should 5 All. Sushant Kumar & Anr. Vs Rajeshwar & Ors. 465 be read as a whole rejected where, even on entire reading, suit is ex facie time-barred - Technicalities of limitation cannot be ignored to adjudicate substantive rights - Appeal dismissed. Held: Para- Case Law discussed: Ram Prakash Gupta v. Rajiv Kumar Gupta - (2007) 10 SCC 59 Mohan Lal v. Mohan Lal & Others - (2016) 2 SCALE 571 Popat and Kotecha Property v. State Bank of India Staff Association - (2005) 7 SCC 510 Sunni Central Waqf Board v. Gopal Singh Vishrad - AIR 1991 All 89 Fatehji & Company v. M.L. Nagpal - 2015 (111) A.L.R. 515 ## Text 464 INDIAN LAW REPORTS ALLAHABAD SERIES 45. On the basis of aforesaid discussion, in our considered opinion and also applying the rule of caution, conviction of the appellant namely Mahavir can not be sustained and is liable to be set-aside and in the circumstances of the case, the appellant deserves acquittal. 46. Consequently, the appeal is allowed. 47. The impugned judgement and order dated 5.12.1983 passed by Sri P.C. Joshi III Addl. Sessions Judge,Bijnor in Session Trial No. 123 of 1983 convicting the appellant Mahavir for the offences punishable under Section 302 I.P.C. and sentencing him to undergo imprisonment for life for the said offence is set-aside and the appellant is acquitted of the charges levelled against him and his conviction and sentence is hereby quashed. The appellant Mahabir Singh is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from his liability. 48. Let a copy of this judgment along with the trial court record be sent to the court concerned for compliance. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.05.2016 BEFORE THE HON'BLE ARUN TANDON, J. THE HON'BLE YASHWANT VARMA, J. First Appeal Defective No.- 168 Of 2016 Sushant Kumar & Anr. ...Appellants Versus Rajeshwar & Ors. ...Respondents Counsel for the Appellants: Rajiv Sharma Counsel for the Respondents: Sanjay Kumar Pundir Civil Procedure Code, 1908 - Order VII Rule 11 - Limitation Act, 1963 - Section 3 - Specific Relief Act, 1963 - Article 54 (Limitation for specific performance) Agreement to sell executed on 27.01.2006 with a stipulated period of one year for execution of sale deed - Last date for performance being 26.01.2007 - Suit for specific performance instituted in 2013 - Held,limitation for filing suit for specific performance is three years from the date fixed for performance - Suit filed beyond the prescribed limitation period is barred by law - Plaint liable to be rejected under Order VII Rule 11 CPC - Plea that plaint should 5 All. Sushant Kumar & Anr. Vs Rajeshwar & Ors. 465 be read as a whole rejected where, even on entire reading, suit is ex facie time-barred - Technicalities of limitation cannot be ignored to adjudicate substantive rights - Appeal dismissed. Held: Para- Case Law discussed: Ram Prakash Gupta v. Rajiv Kumar Gupta - (2007) 10 SCC 59 Mohan Lal v. Mohan Lal & Others - (2016) 2 SCALE 571 Popat and Kotecha Property v. State Bank of India Staff Association - (2005) 7 SCC 510 Sunni Central Waqf Board v. Gopal Singh Vishrad - AIR 1991 All 89 Fatehji & Company v. M.L. Nagpal - 2015 (111) A.L.R. 515 (Delivered by Hon'ble Arun Tandon, J. & Hon'ble Yashwant Varma, J.) 1. Heard Sri Rajiv Sharma, learned counsel for the appellants and Sri Sanjay Kumar Pundir, learned counsel for the respondents. 2. This appeal under Section 96 of the Code of Civil Procedure has been filed by the plaintiff Sushant Kumar and another against the judgment and and order dated 11th February, 2016 passed by the Additional District Judge, Court No.11, Saharanpur in Original Suit No. 346 of 2013 (Sushant Kumar & others vs. Rajeshwar & others). 3. The facts in short leading to the present appeal are as follows: 4. An agreement to sell was executed by defendant nos. 1 to 3, namely, Rajeshwar, Umesh alias Chhota and Smt. Rammurti Devi in favour of Sushant Kumar and Rampal on 27th January, 2006. Under the agreement to sell, it was agreed that the defendants would sell their property in favour of the plaintiffs for a sum of Rs. 9,00,000/-. The plaintiffs paid a sum of Rs. 50,000/- and it was agreed that the balance amount of Rs. 8,50,000/- shall be paid at the time of registry of the sale-deed. The time limit fixed under the agreement to sell for execution of the sale-deed was one year. Since the defendants refused to execute the sale-deed, the plaintiffs instituted Original Suit No. 346 of 2013 with the following prayer: "अ. द्वारा डिक्री तकमील मुहायदा बैय बहक वादीगण खिलाफ, प्रडतवादी गण संख्या 1 ता 3 प्रडतवादीगणस 1 ता 3/प्रडतवादीगण को डिदेष डदया जावे डक वे न्यायालय द्वारा डियत अवडि के अन्तगगत सम्पडि डिम्नडलखित का बैिामा वादीगण के हक मे तहरीर व तकमील कर कराकर पंजीकृत करावे और बडकया जरे समि बैिामे के पंजीकरण के समय वसूल कर ले और सम्पडि डिम्नडलखित पर कब्जा वाकई वादीगणस का करा दे वसूरत रहिे काडसर प्रडतवादीगण, प्रडतवादीगण की ओर से माििीय न्यायालय द्वारा स्वंय वादीगणस के हक मे सम्पडि डिम्नडलखित तहरीर व तकमील कर कराकर पंजीकृत कराया जावे ओर उस सूरत मे बडकया जरे समि मािीय न्यायालय मे वादीगण से जमा करा डदया जावे और कब्जा वाकई सम्पडि डिम्नडलखित पर वादीगण का बजररये अमीि अदालत कराया जावे। ब. िर्ाग वाद वादीगणस को प्रडतवादीगण से डदलाया जाये। 466 INDIAN LAW REPORTS ALLAHABAD SERIES स. अन्य अिुतोष जो राय अदालत मे उडर्त बहक वादीगण डवरूद्ध प्रडतवादीगण हो प्रदाि की जावे।'' 5. The defendants of the suit filed their objections and amongst others, submitted that the suit was barred by limitation and therefore, the plaint may be rejected in view of Order VII Rule 11 of the Code of Civil Procedure. 6. The trial court framed a specific issue for the said purpose being issue no. 4. The trial court vide judgment and order impugned dated 11th February, 2016, has decided the issue against the plaintiffs and rejected the plaint, as it has been found that the suit was barred by limitation. It is against this judgment and order that the present appeal has been filed. 7. Learned counsel for the appellants challenging the order passed by the trial court submitted that the plaint allegations are to be read as a whole and the period of limitation has to be determined with reference to the various paragraphs of the plaint and not one para alone is to be read in isolation. In support whereof, reliance has been placed upon the judgment of the Apex Court in the case of Ram Prakash Gupta vs. Rajiv Kumar Gupta reported in 2007 (10) SCC 59. Reference is also made to another judgment of the Apex Court in the case of Mohan Lal vs. Mohan Lal & Others passed in Civil Appeal Nos. 788-789 of 2016 decided on 29th January, 2016 reported in 2016 (2) Scale 571 for the same proposition. He has also placed reliance upon the judgment of the Apex Court in the case of Popat & Kotecha Property vs. State Bank of India Staff Association reported in 2005 (7) SCC 510. Learned counsel for the appellant has also placed reliance upon the Full Bench judgment of this Court in the case of Sunni Central Waqf Board vs. Gopal Ingh Vishrad reported in 1991 AIR (All) 89. 8. We have considered the submissions made by the learned counsel for the appellant and have examined the records of the present first appeal. 9. The trial court under the judgment impugned has specifically recorded that under the agreement to sell the period prescribed for execution of the sale deed is one year, which would expire on 26th January, 2007. The suit for specific performance of the agreement to sell was instituted on 1st May, 2013. The trial court having regard to the law laid down by the Apex Court in the case of Fatehji & Company vs. M.L. Nagpal reported in 2015 (111) A.L.R. 515 SC, has specifically held that the period of limitation for filing a suit for specific performance of contract is three years and this period would start running from the last date fixed for performance under the agreement. 10. The trial court has found that if the period of limitation i.e. 3 years is counted from the last date for execution of the sale deed , as mentioned in the agreement to sell i.e. 26th January, 2007, the period would expire in the year 2010. It has further been held that if the period of limitation is counted from the notice, the notice was issued by the plaintiff to appear before the Sub-Registrar, which was not responded to then the period of 5 All. Sushant Kumar & Anr. Vs Rajeshwar & Ors. 467 limitation would expire in the year 2011. It has, therefore, been held that in no circumstance and from a reading of the plaint allegations, it could be said that the suit as filed was within the period of limitation i.e. 3 years from the date fixed for performance under the agreement to sell. 11. The trial court has accordingly found that the suit, as instituted by the plaintiff, was barred by the provisions of the Limitation Act and more specifically Section 3 thereof, the plaint was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure. 12. In our opinion, the conclusion so drawn by the trial court is based upon a true and correct reading of the provisions of Order VII Rule 11 of the Code of Civil Procedure and the provisions regulating the period of limitation for filing of a civil suit in the matter of specific performance of a contract. The trial court has rightly come to the conclusion in the facts of the case that if the period of limitation i.e. 3 years is counted from the last date for execution of the sale deed, as mentioned in the agreement to sell i.e. 26th January, 2007, the period would expire in the year 2010 and if counted from the date when the registered notice was sent for appearance before the Registrar for execution of the saledeed, the period would expire in the year 2011. In both the circumstances i.e. on both the dates, the suit as instituted by the plaintiff in the year 2013 would be hopelessly barred by limitation. 13. We are more than satisfied in recording that the trial court has rightly come to the conclusion that the period of limitation for specific performance of contract has to be computed from the date fixed for performance. 14. We see no reason to take any different view. 15. So far as the judgments relied upon by the learned counsel for the appellants in the cases of (1) Ram Prakash Gupta, (2) Mohan Lal, (3) Popat & Kotecha Property & (4) Sunni Central Waqf Board, are concerned, there can be no two opinions on the law, as explained by the Apex Court and this Court, but in the in facts of the case, we find that from the plaint allegations, the suit as presented by the appellant could not be demonstrated to be within the period of limitation prescribed under the Limitation Act. 16. For the aforesaid reasons, the present appeal lacks merit and is dismissed. 17. At this stage, learned counsel for the appellants has submitted that the technicalities of law may not be permitted to defeat the substantial right of getting his right adjudicated by a Court of law. The contention so raised on behalf of the appellants does not appeal to us, inasmuch as Section 3 of the Limitation Act specifically bars entertaining a suit, which is not filed within the period of limitation. ----------- 468 INDIAN LAW REPORTS ALLAHABAD SERIES APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 11.05.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 174 Of 2012 Smt. Siddh Sri Devi ...Appellant Versus Satish Chandra Tripathi & Ors. ...Respondents Counsel for the Appellant: Sri Ram Singh Parihar, Sri Prabhat Agrawal Counsel for the Respondents: Sri Sandeep Saxena ................................. Unregistered Agreement to Sell Cannot Confer Title - Suit for Permanent Injunction Dismissed - Plaintiff-appellant claimed ownership of disputed property through an unregistered agreement to sell from former owner Murad Ali and filed suit for permanent injunction before Civil Judge (Senior Division), Auraiya (Original Suit No. 62/2006); trial court dismissed suit holding that an unregistered transaction cannot confer any right or title over immovable property and that plaintiff failed to prove possession; first appellate court (Civil Appeal No. 9/2010) confirmed dismissal holding that plaintiff, who alone had personal knowledge of the transaction, did not examine herself and her power-of-attorney holder could not substitute for such knowledge; concurrent findings of both courts confirmed; Held, courts below had correctly and independently appreciated all available evidence - second appeal dismissed with cost. (Paras 2-6, 11-12) Husband Competent Witness u/s 120 Evidence Act - But Testimony Must Be Believable - Sole substantial question of law framed: whether non-examination of plaintiff-wife and reliance only on husband's evidence renders the case unproved, in view of Section 120 of Evidence Act; Held, husband/wife of a party is a competent witness for facts within his/her personal knowledge under Section 120, provided testimony is found believable and passes the test of cross-examination; PW-1 Nathuram (husband) admittedly resided 5 kms away from disputed property, had no knowledge of boundaries, constructions or things present on the disputed property - testimony found unreliable and insufficient to prove plaintiff's ownership or possession; contention that lower courts erred in insisting on examination of plaintiff herself repelled; substantial question of law decided against appellant. (Paras 8-10) (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. Heard argument of learned counsel for the parties and perused the records. 2. In Original Suit No. 62/2006, plaint case in brief was that plaintiff had acquired ownership of disputed property detailed in plaint by unregistered agreement to sell from its former owner Murad Ali (father of defendants no. 3 and 4) and taken possession of this land and has been