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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6687 OF 2016

Madina Begum & Anr.           .…Appellants  

 versus

Shiv Murti Prasad Pandey & Ors.              .…Respondents  

J U D G M E N T

Madan B. Lokur, J.

1. The two questions for our consideration are whether the

suit  filed  by  the  appellant  Madina  Begum  was  barred  by

limitation in terms of the first part of Article 54 of Schedule 1 of

the Limitation Act, 1963 and whether the High Court ought to

have decided the first appeal filed by Madina Begum not only

on  the  preliminary  issue  of  limitation  but  also  on  all  other

issues.  As far as the first question is concerned our answer is

in the negative and as far as the second question is concerned,

in our opinion, the High Court ought to have considered all the

issues in the first appeal rather than only the preliminary issue

of limitation.

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2. The  land  in  dispute  in  this  appeal  is  1.63  acres  of

agricultural land bearing khasra nos. 438, 439, 440 and 456

(total  area  being  2.13  acres)  in  Patwari  Halka  No.  26  Gram

Amkhera, Tehsil and District Jabalpur.

3. There was a dispute about the title of the entire aforesaid

land and to resolve that dispute, Gulab Bai claiming to be the

owner and in possession of the entire land, filed Suit No. 479A

of  1994  in  the  Court  of  the  Additional  District  Judge  in

Jabalpur.   The defendants in the suit were Amar Singh and

Jaswant Singh.  The prayer made by Gulab Bai in her plaint

was for a declaration with regard to her title and possession.

She also prayed for  an injunction restraining the defendants

Amar  Singh  and  Jaswant  Singh  from  interfering  with  her

possession.

4. On 2nd August, 2001 the suit was decreed in favour of

Gulab Bai and thereafter on 3rd September, 2001 she entered

into an agreement to sell 1.63 acres of agricultural land being

the disputed property to Madina Begum.  The consideration for

the sale was Rs.  4,89,000/- out of  which an advance of  Rs.

1,25,000/- was paid by Madina Begum to Gulab Bai.  This fact

is recorded in the agreement to sell.

5. What  we  are  concerned  with  in  this  appeal  is  the

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interpretation of Clause 3 of the agreement to sell which reads

as follows:-    

“3 That Party no. 1 has sold 1.63 acres land at the rate of Rs. 3,00,000/- (Rs. Three lakh) per acre and Party no. 1 Gulab Bai has obtained  Rs.  1,25,000/-  (One  lakh  twenty  five  thousand)  as advance.  The rest of the amount of Rs. 3,64,000/- (Rs. Three lakh sixty four thousand) would be paid by Party no. 2 to Party no. 1 within the period of six months from this date and having received it the party no. 1 will execute Benama Registry in favour of Party no. 2 or any such person specified by party no. 2 in one part or many parts.”

6. Apparently on coming to know that Gulab Bai had agreed

to sell the disputed land to Madina Begum an appeal being F.A.

No.399 of 2001 was filed by Amar Singh and Jaswant Singh in

the High Court of Madhya Pradesh challenging the decree dated

2nd August, 2001.  An interim application under Order XXXIX

Rules 1 and 2 of the Code of Civil Procedure was filed along

with the appeal. The application was taken up for consideration

on  22nd September,  2001  and  while  issuing  notice  in  the

application it was directed as follows:- “In  the  meanwhile  till  the  disposal  of  M(C)  P.  No.  3231/2001, status quo regarding possession over  the  suit  property  shall  be maintained  and  the  respondent  shall  not  alienate  the  suit property.”

7. On  16th November,  2001  Gulab  Bai  executed  a  Will

(which  was  registered)  in  which  she  categorically  mentioned

that she had negotiated the sale of 1.63 acres of land to Madina

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Begum  and  had  given  possession  thereof  to  her  but  the

remaining amount and registration of the sale remained to be

completed.  In her Will, Gulab Bai appointed Shiv Murti Prasad

Pandey and Devendra Prasad Pandey (respondents herein) as

her executors.  The Will mentioned that upon her demise, her

agricultural land except 1.63 acres will devolve on Shiv Murti

Prasad Pandey and Devendra Prasad Pandey and in the event of

her death before the registration of the sale deed it would be

their  responsibility  to  execute  and  register  the  sale  deed  in

favour  of  Madina  Begum.  Unfortunately,  Gulab  Bai  passed

away on 2nd January, 2002.   

8. Thereafter, F.A. No. 399 of 2001 filed by Amar Singh and

Jaswant Singh was heard by the High Court and came to be

dismissed on 28th September, 2006.  We are told that the decree

passed by the High Court has attained finality.   

9. Upon the  dismissal  of  the  aforesaid  appeal,  it  appears

that  Madina Begum required Shiv  Murti  Prasad Pandey and

Devendra  Prasad  Pandey  to  execute  the  sale  deed  but

apparently they did not take any steps in this regard.  On the

contrary, it appears that on or about 2nd August, 2008 the land

in dispute was mutated in the name of Anita Jain pursuant to a

sale  made  in  her  favour  by  Shiv  Murti  Prasad  Pandey  and

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Devendra Prasad Pandey.

10. When Madina Begum came to know of the transfer of the

disputed land, she sent a notice to Shiv Murti Prasad Pandey

and Devendra Prasad Pandey on 13th August, 2008 calling upon

them to execute the sale deed in terms of the agreement to sell

dated 3rd September, 2001 and the Will executed by Gulab Bai

on 16th November,  2001.  The notice  was replied to by Shiv

Murti Prasad Pandey and Devendra Prasad Pandey and we are

told that they declined to execute the sale deed.  This led to

Madina Begum filing a suit, inter alia, for specific performance

of  the  agreement  being  Suit  No.  17A  of  2008  (perhaps

renumbered later as 41A of 2010) in the Court of the Additional

District Judge, Jabalpur.  

11. The  defendants  in  the  suit  namely  Shiv  Murti  Prasad

Pandey and Devendra Prasad Pandey and Anita Jain filed their

written statement and one of the contentions raised was that

the suit was barred by limitation having been instituted more

than three years beyond the date specified in the agreement to

sell  dated  3rd September,  2001.  It  was  also  submitted  that

Madina  Begum  had  given  an  advance  of  only  Rs.  90,000/-

which  had  since  been  returned  to  her  and  that  on  19th

November, 2001 the agreement to sell between Gulab Bai and

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Madina Begum was cancelled.

12. On the pleadings, one of the issues framed by the Trial

Court was issue No. 8: Whether the suit is time barred?

13. The  Trial  Court  considered  the  issue  whether  the  suit

filed by Madina Begum was barred by time and answered it in

the  negative.   It  was  held  in  paragraph  38  of  the  decision

rendered on 1st February, 2011 as follows:-

“38. On perusal of the record it is gathered that agreement Ex. P-1 was executed on 03.09.2001 and thereafter stay has been granted by Hon’ble High Court in first appeal on 22.09.2001 but the first appeal was finally decided on 28.09.2006 vide Ex. P-5 since it was dismissed and  in  this  manner,  the  stay  order  had  become  ineffective  on 28.09.2006.   Thereafter,  the  plaintiffs  have  sent  notice  to  the defendants  in  August  2008  i.e.  after  two  years  from  the  date  of decision  in  the  first  appeal  which  was  dismissed  on  28.09.2006 which was done within prescribed period of three years.  Therefore, it cannot be said that the plaintiffs had filed the suit beyond the period of limitation with a view to harass the defendants.  Thus, issues No. 8 and 9 are being answered against the defendants.”

14. Even though the issue of limitation was decided in her

favour,  the  suit  filed  by  Madina  Begum  was  dismissed  on

merits. Feeling aggrieved by the dismissal of the suit on merits

Madina Begum preferred First Appeal No. 175 of 2011 in the

High Court of Madhya Pradesh and that led to the impugned

judgment  and  order  dated  16th August,  2013.   The  Division

Bench hearing  the  appeal  did  not  go  into  the  merits  of  the

dispute between the parties but only adverted to the issue of

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limitation and since it was found that the institution of the suit

was  barred  by  time  (contrary  to  the  conclusion  of  the  Trial

Court) there was no necessity of considering the merits of the

case.

15. In coming to the conclusion that the suit was barred by

time, the High Court considered Article 54 of Schedule 1 of the

Limitation  Act,  1963  (for  short,  “the  Act”).  The  discussion

thereon was brief and it reads as follows:-

“Under Article 54 of the Limitation Act, the prescribed period of limitation for filing a suit of specific performance of a contract is three  years  and the  period  of  three  years  has  to  be  calculated based on two contingencies i.e. the date fixed for performance of the contract or if no such date is fixed, the date when the plaintiffs had notice about refusal of the performance by the defendants.  In this  case,  admittedly,  a  date  for  performance  is  fixed  i.e.  six months from the date of execution of the contract and, therefore, as a specific period for performance is fixed, the period of limitation would be three years w.e.f. 3.03.2002 i.e. the date when the period of six months for execution of the sale-deed lapsed.”

16. The High Court held that since the suit was barred by

limitation, the Trial Court committed a grave error in recording

a finding that the suit was within limitation.

17. The  interpretation  of  the  first  part  of  Article  54  of

Schedule 1 of the Act is no longer res-integra. Article 54 reads

as follows:-

“54. For specific performance of a  contract

Three years The  date  fixed  for  the performance,  or,  if  no

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such  date  is  fixed, when  the  plaintiff  has notice  that performance  is refused.”

18. In Ahmadsahab Abdul Mulla (2) (Dead) v. Bibijan and

Ors.1 the following question was considered by a three judge

Bench of this Court: “Whether the use of the expression “date”

used in Article 54 of the Schedule to the Limitation Act, 1963

(in  short  “the  Act”)  is  suggestive  of  a  specific  date  in  the

calendar?”

19. While answering this question on a reference made to the

three judge Bench, this Court considered the meaning of the

word “date”  and “fixed”  appearing in Article  54.   Upon such

consideration, this Court held that the expression “date fixed

for the performance” is a crystallized notion.  When a date is

fixed  it  means  there  is  a  definite  date  fixed  for  doing  a

particular act.  Therefore, there is no question of finding out the

intention from other circumstances.  It was reiterated that the

expression “date” is definitely suggestive of a specified date in

the  calendar.   Paragraphs  11  and  12  of  the  Report  in  this

regard are of importance and they read as follows:-

“11. The inevitable conclusion is that the expression “date fixed for the performance” is a crystallized notion.  This is clear from

1 (2009) 5 SCC 462

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the fact that the second part “time from which period begins to run”  refers  to  a  case  where  no  such date  is  fixed.   To  put  it differently,  when date is fixed it  means that there is a definite date fixed for doing a particular act.  Even in the second part the stress is  on “when the plaintiff  has notice that  performance is refused”.  Here again, there is a definite point of time, when the plaintiff notices the refusal.  In that sense both the parts refer to definite dates.  So, there is no question of finding out an intention from other circumstances.   

12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression “date” used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar.  We answer the reference accordingly.  The matter shall now be placed before the Division Bench for deciding the issue on merits.”

20. Quite  independently  and  without  reference  to  the

aforesaid  decision,  another  Bench  of  this  Court  in

Rathnavathi and Another v. Kavita Ganashamdas2 came to

the same conclusion.  It was held in paragraph 42 of the Report

that a mere reading of Article 54 would show that if the date is

fixed  for  the  performance  of  an  agreement,  then

non-compliance with the agreement on the date would give a

cause of  action to  file  a  suit  for  specific  performance within

three years from the date so fixed.  But when no such date is

fixed,  the  limitation  of  three  years  would  begin  when  the

plaintiff  has  notice  that  the  defendant  has  refused  the

performance of the agreement.  It was further held, on the facts

2 (2015) 5 SCC 223

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of the case that it did not fall in the first category of Article 54

since no date was fixed in the agreement for its performance.   

21. The  Clauses  of  the  agreement  for  consideration  in

Rathnavathi were Clauses 2 and 3 and they read as follows:-

“2.  The purchaser shall  pay a sum of  Rs. 50,000 (Rupees fifty thousand only) as advance to the seller at the time of signing this agreement, the receipt of which the seller hereby acknowledges and the  balance  sale  consideration  amount  shall  be  paid  within  60 days from the date of expiry of lease period. 3. The  seller  covenants  with  the  purchaser  that  efforts  will  be made with the Bangalore Development Authority for the transfer of the  schedule  property  in  favour  of  the  purchaser  after  paying penalty.  In case it is not possible then the time stipulated herein for the balance payment and completion of the sale transaction will be agreed mutually between the parties.”

22. As far as the present appeal is concerned, the agreement

between  Gulab  Bai  and  Madina  Begum  did  not  specify  a

calendar  date  as  the  date  fixed  for  the  performance  of  the

agreement. Consequently, the view expressed in Ahmadsahab

Abdul Mulla and Rathnavathi on the first part of Article 54

clearly  applies  to the  facts  of  the case.  In taking a contrary

view,  ignoring  the  absence  of  a  specified  date  for  the

performance of the agreement and reversing the Trial Court, the

High Court has fallen in error.

23. It is not necessary for us to multiply authorities on the

subject  particularly  when  the  issue  has  been  conclusively

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settled  by  a  Bench of  three  learned  judges  of  this  Court  in

Ahmadsahab Abdul Mulla and we see no reason to take a

different view.

24. The  second  question  that  requires  consideration  is

whether the High Court was right in merely deciding the issue

of limitation in a first appeal filed under Section 96 of the Code

of  Civil  Procedure without  going into the merits  of  the case.

Quite recently, in Vinod Kumar v. Gangadhar3 this Court had

occasion to consider the issue whether, under Section 96 of the

Code of Civil Procedure, the first appellate court ought to decide

all the issues before it or not.  Reference was made to a very

large number of decisions rendered by this Court and it was

concluded, particularly relying upon  Madhukar v. Sangram4

decided by a Bench of three learned judges of this Court that

sitting as a court of first appeal it is the duty of the High Court

to deal with all the issues and evidence led by the parties before

recording its findings.

25. In so far as the present appeal  is concerned, the High

Court  only  considered  the  issue  of  limitation  and  did  not

consider  the  other  issues  in  the  appeal.  This  was

impermissible. The result is that since we do not agree with the

3 (2015) 1 SCC 391 4 (2001) 4 SCC 756  

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view taken by the High Court on the issue of limitation, there is

no option but to set aside the view expressed by the High Court

and following the decisions of this Court, remand the matter to

the  High  Court  to  decide  the  remaining  issues  in  the  first

appeal filed under Section 96 of the Code of Civil Procedure.   

26. It is a little unfortunate that the parties have to undergo

another  round  of  litigation  which  could  easily  have  been

avoided if the settled legal principles laid down by this Court

from time to time were followed in regard to the requirements of

Section 96 of the Code of Civil Procedure.  This is quite apart

from the delay caused in the resolution of the dispute between

the parties.

27. In view of our discussion, the appeal is allowed and the

impugned judgment  and order  of  the  High Court  dated  16th

August, 2013 is set aside and the matter is remanded to the

High Court for deciding the remaining issues in the appeal on

merits.  

...………………….J (Madan B. Lokur)

                                             ..………………….J New Delhi;                                         (R.K. Agrawal) August 1, 2016

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