Case Note & Summary
The present Regular First Appeal arises from a judgment and decree dated 03.08.2022 passed by the Principal Senior Civil Judge and CJM, Dharwad, in O.S. No.511/2014. The appellant, originally defendant No.2 (since deceased, represented by legal representatives), challenged the decree of specific performance granted in favor of the respondent No.1 (plaintiff). The plaintiff had filed a suit for specific performance of an alleged agreement to sell dated 01.06.2011 executed by defendant No.1 (since deceased) in respect of suit property. The plaintiff claimed that defendant No.1 agreed to sell the property for Rs.1,50,000 and received earnest money of Rs.1,00,000, with the balance to be paid within one year. The plaintiff alleged that defendant No.1 failed to execute the sale deed despite demands. The trial court decreed the suit, holding that the agreement was proved and the suit was within limitation. The High Court reversed the finding, noting that the plaintiff failed to prove the execution of the agreement and payment of earnest money. The attesting witness and scribe were not examined, and the plaintiff's evidence was inconsistent. The court also held that the suit was barred by limitation under Article 54 of the Limitation Act, 1963, as the suit was filed on 24.11.2014, beyond three years from the date of refusal (01.06.2012). The appeal was allowed, setting aside the trial court's judgment and decree.
Headnote
A) Specific Performance - Agreement to Sell - Burden of Proof - Plaintiff must prove execution of agreement and payment of earnest money - In the absence of credible evidence, the suit cannot be decreed - Held that the trial court erred in decreeing the suit without proper proof (Paras 10-15). B) Limitation - Suit for Specific Performance - Article 54 of Limitation Act, 1963 - Suit must be filed within three years from the date fixed for performance or from notice of refusal - Where no date is fixed, limitation runs from the date of refusal - Held that the suit was barred by limitation as it was filed beyond three years from the date of refusal (Paras 16-20). C) Evidence - Adverse Inference - Section 114(g) of Indian Evidence Act, 1872 - Failure to produce material witness or document leads to adverse inference - Plaintiff did not examine the attesting witness or the scribe of the agreement - Held that adverse inference must be drawn against the plaintiff (Paras 12-14).
Issue of Consideration
Whether the plaintiff proved the execution of the agreement to sell and payment of earnest money? Whether the suit was barred by limitation?
Final Decision
The appeal is allowed. The judgment and decree dated 03.08.2022 passed by the Principal Senior Civil Judge and CJM, Dharwad, in O.S. No.511/2014 is set aside. The suit of the plaintiff is dismissed.
Law Points
- Specific performance
- burden of proof
- limitation
- agreement to sell
- earnest money
- adverse inference
- Section 96 CPC
- Article 54 Limitation Act
