- (1.) PANKAJ Mithal, J.-This second appeal has been preferred by the defendants of Original No. 210 of 1984, Achchey Lal Gupta and others v. Indal Kumar Kushwaha and others, after the suit for specific performance of the agreement to sell had been decreed against them by the two courts below.
(2.) THE defendants Indal Kumar Kushwaha and Raja Ram Kushwaha were undisputedly the bhoomidhars with transferable rights in possession of the following plots of land situate in Tafsil Jail Waka Mauja Banakteechak, Tappa Kasba, Pargana Haweli, Tehsil Sadar, district Gorakhpur : Arazi No. Rakba 15 0-0-9-1/2 16 -12-1/2 17 -9-9- 18 -32-3- 19 -2-7- 20 -25-2- 25 -6-6- Total 90 Decimal In the suit instituted by plaintiffs it is said that the aforesaid two defendants were in need of money and, therefore, they executed an agreement to sell the aforesaid land on 7.7.1973 in favour of the Shiv Poojan and Achche Lal Gupta for a total sale consideration of Rs. 70,000 out of which Rs. 10,000 was paid in advance and the balance of Rs. 60,000 was payable at the time of the execution of the sale deed. The sale deed could not be executed as there was a ban on the registration of the sale deeds in U. P. at the relevant time and, therefore, it was stipulated that the sale deed would be executed within three months of the lifting of the ban. The aforesaid Shiv Poojan Gupta died sometime in July, 1976. Thereafter, his successors and Achche Lal Gupta by a registered notice dated 13/14.2.1984 called upon the defendants to execute the sale deed in pursuance of the agreement. The said notice was served upon the two defendants on 15.2.1984 and 17.2.1984 respectively. The plaintiffs-respondents after the aforesaid notice approached the defendants-appellants in the first week of March, 1984 alongwith the balance sale consideration for the execution of the sale deed but the defendants-appellants paid no heed. The plaintiffs-respondents as well as their predecessor in the interest were always ready and willing to perform their part of the contract but the defendants-appellants failed to execute the sale deed. Therefore, the suit for specific performance. The defendants-appellants contested the suit by filing a joint written statement accepting the execution of the agreement to sell dated 7.7.1973 and having received a sum of Rs. 10,000 as earnest money but rest of the plaint allegations were denied. In the additional pleas it was stated as the Government was contemplating to bring out a legislation providing for the ceiling and regulation of urban land, a ban on the registration of the sale deeds was imposed. Therefore, on account of the said ban it was agreed that the sale deed would be got executed within three months of the lifting of the ban. The ban was only up to 31.12.1975 and it ceased to operate thereafter. However, the plaintiffs-respondents or their predecessor-in-interest never came forward to perform their part of the contract and to get the sale deed executed as per the agreement. Accordingly, after three months of the lifting of the ban from 31.12.1975 the agreement lapsed and the defendants-appellants were set at liberty to transfer the land in favour of third party. There was no stipulation under the agreement that the defendants-appellants would have to take permission for the sale from any Government department. The suit for specific performance after expiry of more than 11 years of the agreement is not only barred by time but also inequitable and as such no decree of specific performance of the agreement is liable to be passed.
(3.) THE parties adduced evidence. THE suit was decreed vide judgment and order dated 12.12.1989 and the appeal was dismissed on 16.11.1995. Aggrieved by the decree of the specific performance so passed by the courts below, the defendants-appellants have preferred this second appeal. At the admission stage, the following substantial questions of law were formulated : 1. Whether the suit was barred by time? ; 2. Whether the suit was barred by Section 16 (c) of the Specific Relief Act? ; and 3.Whether the courts below erred in granting the relief of specific performance ignoring the provisions of Section 20 of the Specific Relief Act? ;