Case Note & Summary
The appellant, Manohar Pamandas Jani, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 5th August 2015 passed by the learned District Judge-5, Solapur, which dismissed Regular Civil Appeal No.299 of 2014 and upheld the judgment and decree dated 22nd January 2014 of the Civil Judge, Senior Division, Solapur, dismissing Regular Civil Suit No.663 of 2012. The suit was filed by the appellant (original plaintiff) seeking specific performance of an agreement to sell dated 17th October 1995. The appellant claimed that the respondent no.1 (defendant no.1) was indebted to the Bank of India and agreed to sell his immovable properties, including Gat No.55 (11529 sq.mtrs) and part of Gat No.53/6/2 (8839 sq.mtrs) along with a shed, for a total consideration of Rs.8 lakhs. According to the appellant, an agreement to sell was executed on 17th October 1995, and the respondent no.1 accepted Rs.1 lakh as earnest money and handed over possession of the suit property. The sale was to be completed within 11 months, i.e., by September 1996. The appellant alleged that the respondent no.1 later demanded an additional Rs.4 lakhs, which the appellant refused, leading to the filing of the suit in 2012. The trial court dismissed the suit on two primary grounds: first, the appellant failed to prove the execution of the agreement to sell; second, the suit was barred by limitation as it was filed after 17 years from the date fixed for performance (September 1996). The first appellate court affirmed these findings. In the second appeal, the High Court considered whether any substantial question of law arose. The court noted that the concurrent findings of fact by the lower courts were not perverse and were based on evidence. The High Court held that the suit was clearly barred by limitation under Article 54 of the Limitation Act, 1963, as the agreement stipulated completion within 11 months from 17th October 1995, i.e., by September 1996, and the suit was filed in 2012. The court also found that the appellant failed to prove the execution of the agreement. Consequently, the second appeal was dismissed, and the civil application was disposed of.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court in second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The court held that the findings of the trial court and first appellate court that the plaintiff failed to prove the execution of the agreement to sell and that the suit was barred by limitation were not perverse and did not give rise to any substantial question of law. (Paras 1-3) B) Limitation - Specific Performance - Article 54 Limitation Act, 1963 - Suit for specific performance must be filed within three years from the date fixed for performance or, if no date is fixed, when the plaintiff has notice that performance is refused. The agreement dated 17th October 1995 stipulated completion within 11 months i.e. by September 1996. The suit was filed in 2012, after 17 years, and was thus clearly barred by limitation. (Paras 2-3) C) Evidence - Agreement to Sell - Proof of Execution - The plaintiff failed to prove the execution of the agreement to sell dated 17th October 1995. The courts below concurrently held that the plaintiff did not discharge the burden of proof. The High Court found no perversity in this finding. (Paras 2-3)
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908 raises any substantial question of law regarding the dismissal of the suit for specific performance of an agreement to sell dated 17th October 1995 on grounds of non-proof of the agreement and limitation.
Final Decision
Second appeal dismissed. Civil application disposed of.
Law Points
- Specific performance
- Limitation
- Agreement to sell
- Burden of proof
- Concurrent findings
- Section 100 CPC
