- (1.) THE facts giving rise to this revision petition are as follows: As per the plaint averments, one Daulat Ram was the owner of plot no. 143 and half portion of plot no. 144 situated at Bazar no. 3, Bhopalganj Mandi. Bhilwara. He mortgaged the aforesaid plots to Bala Bux, Kedai mal Banshi Dhar, Ram Narain and Bhagat Ram, all sons of Shri Ram Agarwal, on 24. 3. 43 for a sum of Rs. 2200/ -. THE mortgage-deed was registered on 26. 3,43. THE possession of the aforesaid plots was transferred to the mortgagees. One of the stipulations in the mortgage-deed was that the mortgagees could make such constructions on the said plots as they liked and the plots could be re-deemed only on payment of the mortgage money and the costs of improvement. It is averred that on 24. 3. 43 itself mortgagor Daulat Ram executed a separate agreement in favour of the mortgagees and reiterated the stipulations that the mortgagees would be free to raise constructions on the plots as they liked and after completion of the house on the plots the mortgagor shall receive Rs. 11/- from the mortgagees and shall execute a sale-deed in respect of the aforesaid property. It is alleged that the mortgagees raised constructions upon the said plots between the years 1943 and 1947.
(2.) IT was further averred that the mortgagees paid a sum of Rs. 11/- to mortgagor Daulat Ram on 17. 12. 47 and Daulat Ram made an oral sale of the disputed property in favour of the mortgagees under the Mewar Laws and the mortgagees became full owners of the suit property and since then they were in possession of the said Haveli as its owners. It was further averred that on 13. 11. 47 a partition took place amongst mortgagees and by this partition the suit Haveli fell to the share of Bala Bux and Kedar Mal. A declaration was got registered in respect of aforesaid partition on 9. 11. 52. It was averred that plaintiffs no. 1 to 4 were sons of Kedar Mai and plaintiffs no. 5 to 8 were sons of Bala Bux. It was further averred that on 2. 7. 1960 Daulat Ram made a gift of the equity of redemption in respect of the aforesaid mortgage in favour of defendant no. 1 Smt. Kanchan Bai even though the aforesaid property was ancestral in the hands of Daulat Ram and Daulat Ram could not have made a gift of the aforesaid property to Smt. Kanchan Bai. Moreover, the plaintiffs predecessors in interest Bala Bux and Kadar Mal having become full owners of the property, for this reason also Daulat Ram could not have made a valid gift in favour of Kanchan Bai It was further averred that one Habib Chhipa obtained a money decree against mortgagor Daulat Ram. In execution of the said decree, namely, execution case no. 4/16,habib Chhipa got the aforesaid Haveli attached. Against this attachment, the plaintiffs filed an objection petition under 0. 21 rule 58 C. P. C. This objection petition was allowed on 13. 4. 1964 by the District Judge, Bhilwara and the Haveli was released from attachment. This judgment became final between the parties as Daulat Ram did not institute any suit under O. 21 Rule 63 C. P. C. to challenge the said order. It is averred that in this objection petition mortgagor Daulat Ram had raised an objection that he had not paid Rs. 1l/- in pursuance of agreement dated 24. 3. 43 but this contention of Daulat Ram was not accepted. It was averred that the plaintiffs relying upon the decision of the learned District Judge did not institute any suit for specific performance of the contract of sale entered into between the mortgagor and the mortgagees. It was further averred that on 12. 4. 65, defendant no 1 Smt. Kanchan Bai instituted a suit for redemption of the mortgaged property. This suit was decreed on 21. 9. 81, where it was held that the mortgagees had paid a sum of Rs. ll/-to go mortgagor Daulat Ram on 17. 12. 47. In that very suit it was held that the agreement to sale dated 24. 3. 43 was not a colg on equity of redemption. In that very case the High Court held that reley by making a payment of Rs. 11/- to the mortgagor the mortgagees did not become owners of the suit property though a right to a specific performance of the contract of sale dated 24. 3. 43 had accrued in their favour. It was further averred that the plaintiffs challenged these findings before the Hon'ble Supreme Court by way of a Special Leave Petition but this Special Leave Petition was dismissed on 3. 10. 1983. The plaintiffs had to believe that they were misled by the order of the District Judge dated 13. 4. 64. Hence they were compelled to institute the suit out of which the present revision petition arises.
(3.) IT was pleaded that Smt. Kanchan Bai or her predecessor in interest Daulat Ram or legal heirs of Daulat Ram never refused to fulfill the contract of sale dated 24. 3. 43 nor did they ever give a notice to the plaintiffs refusing specific performance of the said contract. IT was averred that since the contract of sale did not prescribe any period within which the contract was to be performed, the limitation, did not start running and as such suit was within limitation within article 54 of the Indian Limitation Act. It was further pleaded that plaintiffs and their fathers had been prosecuting in good faith and with due diligence their claim that they had paid Rs. 11/-to Daulat Ram on 24. 3. 47 and that the agreement was not a clot on equity of redemption, and that they had become full owners of the property, hence they were entitled to claim benefit of section 14 of the Indian Limitation Act. It was further pleaded that the plaintiffs as well as their predecessors in interest were always ready and willing to perform their part of the contract and are even now ready and willing to perform their part of the contract. They were and are also ready and willing to pay stamp duty for the sale deed and registration charges on the same and, therefore, they are entitled to specific performance of contract of sale the 10. It was further pleaded that market value of the suit property was around three lacs of rupees and defendant no. 1 would be getting this Haveli only on a payment of Rs. 23499. 62 in pursuance of the decree for redemption and it would amount to unjust Smt. Kanchan Bai which should not be allowed. Upon such pleadings the plaintiffs claimed a decree for specific performance of the contract of sale and also claimed a permanent injunction restraining the contesting defendant from dis-possessing the plaintiffs of the suit property. It may be stated that the learned trial court was of the view that on the plaint averments read with documents filed by the plaintiffs and the defendant the suit was barred by limitation. Upon such view of the matter it rejected the plaint under 0. 7 rule 11 C. P. C. by its judgment and order dated 23. 11. 85. The plaintiffs went in appeal to the District Judge, Bhilwara who assigned the same to the Addl. District Judge, Bhilwara. The learned Addl. District Judge was of the view that the learned trial court, in arriving at the conclusion, took into consideration the document of the parties, which course he could not have adopted and, therefore, the order of the trial court rejecting the plaint was not proper. He, therefore, directed the learned trial court to re-consider the question of rejection of plaint afresh on the basis of the plaint averments only. This order of the learned Addl. District Judge was set aside by this Court in S. P. Civil Misc. Appeal no. 90/86- Kanchan Bai v. Khetsidas and others. decided on 17. 1. 1989 and the learned Addl. District Judge was directed to decide the appeal afresh against rejection of the plaint on merits in terms of 0. 7 rule 11 C. P. C on the basis of the plaint averments. In pursuance of the aforesaid judgment of this Court, the learned Addl. District Judge re-heard the matter, He was of the view that the learned trial court could not have taken into consideration the documents filed by either side and should have based the order only on plaint averments and on such averments the suit was not barred by limitation. He, therefore, allowed the appeal and passed order dated 26. 4. 89 setting aside the order of the rejection of the plaint made by the trial court on 23. 11. 85. Aggriment, Smt. Kanchan Bai has come in revision. ;