SHARMA, J. - (1.) WHILE admitting the appeal this court framed following substantial question of law :- (i) Whether the appellate court has misconstrued and mis- integrated the agreement Ex. 17. (ii) Whether in the facts and circumstances of the case the appellate court has wrongly held the suit to be barred by time. (iii) Whether on the language of Ex. 1 7 the plaintiff can be said to be not ready and willing to perform his part of the contract in not directly depositing the government dues when Suchcha Singh did not disclose the Government dues to him? (iv) Whether in the facts and circumstances of the case the court below has committed an error in not passing a decree of possession in favour of the appellant?
(2.) THE plaintiff appellant (for short the plaintiff) instituted suit for possession and specific performance of agreement alleged to have been entered on June 19, 1964 (Ex. 17) between the plaintiff and one Suchha Singh (defendant No. 1) in respect of agricultural land measuring 8 bighas situated in the limits of village Titarka (Alwar ). On November 4, 1969 Suchha Singh executed sale deed in respect of said land in favour of defendants Subekhan and Abdulla and thus committed breach of agreement Ex. 17. THErefore the plaintiff was entitled to the decree for specific performance of agreement. Defendant Suchha Singh in his written statement denied the execution of agreement Ex. 17. Defendant Subekhan and Abdulla in their written statement pleaded that the suit land was purchased by them with consideration in good faith and without notice of the alleged agreement Ex. 17. On the basis of pleadings of the parties the trial court framed as many as ten issues, which have been set out in the judgment of the trial court. THE plaintiff thereafter examined nine witnesses. Defendant Suchha Singh did not enter into witness box while defendants Sube Khan and Abdulla examined five witnesses. Learned trial court decided all the issues except issue No. 10 in favour of the plaintiff and decreed the suit for specific performance of contract. As regards issue No. 10 the learned trial court decided the same against the plaintiff for want of payment of court fees on the amount of mesne profits claimed by him. The trial Court declined the relief of possession of the suit land on the ground that the said relief in respect of agricultural land could only have been granted by the revenue court. The plaintiff as well as defendants Sube Khan and Abdulla assailed the judgment and decree of the trial court by filing separate appeals. The plaintiff in his appeal sought decree for possession while the defendants in their appeal sought dismissal of the suit. Learned appellate court in the impugned judgment and decree observed that suit was barred by limitation. Thus appeal preferred by the defendan- ts Sube Khan and Abdulla was allowed and appeal of the plaintiff was rejected. The plaintiff has called in question the judgment and decree dated Nov. 10, 1989 of the learned appellate court in this second appeal. I have given my thoughtful consideration to the rival contentions and carefully perused the record. According to the plaint the agreement Ex. 17 was executed on June 19, 1964 whereas the suit was instituted on November 15, 1969 after a period of more than five years. According to the conditions incorporated in the agreement Ex. 17 only the plaintiff had to deposit the dues stood in the name of Suchha Singh. The agreement provides thus: *** It has been established from the pleadings of the parties and from the eviden- ce adduced by them that the plaintiff did not care to deposit the dues shown against Suchha Singh and thus the plaintiff was not ready and willing to perform his part of the contract. According to the agreement it was for the plaintiff to make inquiry about the dues stood against Suchha Singh.
(3.) ACCORDING to Article 54 of the Limitation Act, 1963 the limitation for the specific performance of contract is three years from the date fixed for the performance or if no such date is fixed, the limitation starts when the plaintiff has notice that performance is refused. In the case on hand the plaintiff had to deposit the dues so as to enable Suchha Singh to obtain `sanad' of the land in dispute and thereafter within one month the sale deed had to be executed. The plaintiff in not depositing the dues did not fulfil his part of the contract and the learned appellate court rightly held that the plaintiff was not ready and willing to perform his part of the contract. The finding of the trial court was based on improper appreciation of the evidence and it was rightly reversed by the appellate court. The plaintiff also did not seek relief in respect of cancellation of sale-deed executed by Suchha Singh in favour of Sube Khan and Abdulla on November 4, 1969. It has also been established that sale deed was executed with consideration and Sube Khan and Abdulla had no notice of agreement Ex. 17. I am of the considered view that in the facts and circumstances of the case the plaintiff had to do something to perform his part of the contract. If he was not in a position to enquire about the dues stood against Suchha Singh, the plaintiff ought to have served notice to Suchha Singh seeking information about the dues. There are serious laches on the part of the plaintiff and under these circumstances the suit instituted by the plaintiff is rightly held as time barred. The learned appellate Court did not misconstrue and mis interpret the agreement Ex. 17. No error has been committed by the learned appellate Court in passing the impugned judgment and decree. ;