We have gone through the impugned
judgment and order passed by the High Court as well as the findings
recorded by the learned Trial Court confirmed by the First Appellate Court.
We have also considered the deposition of the plaintiff witnesses
which were elaborately considered by the learned Trial Court. From the
deposition of the plaintiff witnesses, it can be seen that the plaintiff
and other witnesses specifically admitted that the land in question on
the land of the plaintiff was constructed in the year 1987. The
plaintiff witnesses have also admitted that the retaining wall was constructed100 on the
land of the plaintiff in the year 1987. Even according to the plaintiff
and his witnesses,120 the fruit trees were destroyed in the year 1987.
Even the cause of action pleaded in the suit was construction of road in the
year 1987. Considering the aforesaid facts and circumstances when the learned
Trial Court held that the suit was barred by limitation considering Articles 58
and 72 of the Limitation Act and when the same was confirmed by the
First Appellate Court, the High Court ought not to have interfered with the
said200 findings of facts in exercise of powers under Section
100 of the Code of Civil Procedure. At this stage, it is required to be
noted that it was the specific case on behalf of the defendants
that the road was240 constructed with the help and consent of the plaintiff
which is established and proved by the conduct on the part of the plaintiff
mainly not raising any dispute till 2002. From the
impugned judgment and order passed by the High Court and the substantial question
of law framed it is to be noted that the High Court has300 not framed
any substantial question of law on the limitation or the suit being barred by
limitation. The High Court has gone on general and broad principles.
However, the High Court has not at all considered the real facts which are
narrated hereinabove. Even the substantial question of law framed by the
High Court also cannot be said to be360 a
substantial question of law at all.
Be that as it may, the fact
remains that the road in question was constructed in the year 1987; the trees,
if any, were removed in the year 1987;400 the retaining wall was constructed on the land of the
plaintiff in the year 1987, and the suit was filed in the year 2003 and
therefore the suit was barred by limitation considering Articles 58 and 72 of
the Limitation Act. The impugned judgment and order passed by the High Court is
unsustainable and the same deserves to be quashed and set
aside. In view of the above and for the reasons stated above,480 the
present appeals succeed. The impugned judgment and order passed by the High
Court is hereby quashed and set aside.500 The judgment and decree passed by the learned Trial
Court confirmed by the First Appellate Court dismissing the suit is hereby
restored.
It is a matter of
record that appropriate request for constituting an Inter-State River
Water Disputes Tribunal to go into the issues has not yet been made
by the plaintiff State. However, the matter has been engaging attention of
this Court principally on the issue of the interim relief to be granted in
the matter. At this length of time, when 19 years have elapsed, it will
be extremely difficult to consider the matter purely from the
perspective600 of grant or non-grant of interim relief. During the last 19
years, various developments, such as augmentation of water from the
concerned river for various developmental activities including the need of the people
in the Basin, have taken place. At this juncture, the matter requires to be
considered in the light of the present-day situation. Having considered the entirety of the matter, in our
view, the proper course would be to relegate the plaintiff State to
take appropriate proceedings as are open to it in law afresh, including
approaching the Central Government for constituting Inter-State River
Water Disputes Tribunal700 or for any other appropriate remedy. We, therefore, dispose of
this Suit giving liberty as aforesaid to the plaintiff State.720 At this stage, learned
Advocate appearing for the State brought to our notice that the
parties have exchanged pleadings and evidence was placed on record. If said
pleadings and the evidence are to be relied upon, the plaintiff State may take
appropriate steps in accordance with law at any given stage.
We have heard the learned counsel appearing on behalf of the respective
parties at length. At the outset, it is required to be noted that as such there
are800 concurrent
findings of facts recorded by all the courts below on the readiness and willingness
of the plaintiff to perform his part of the contract which are not
required to be interfered with by this Court in exercise of powers840 under Article 136 of the
Constitution of India. However, at the same time, what is required to be
considered is whether in the facts and circumstances of the case, the High
Court is justified in overturning the judgment of the learned Trial Court as
well as the First Appellate Court refusing to pass the decree for
specific performance of the900 sale agreement? At the outset, it is required to be noted that as
such while allowing the second appeal and overturning the judgment and order
passed by the learned Trial Court as well as the First Appellate Court,
the High Court has not framed the substantial question of law, which is
required to be framed under Section 100 of the960 Code of Civil Procedure. Even
otherwise on merits also, looking to the terms and conditions stipulated
in the sale agreement, the High Court has erred in passing the decree for
specific performance which was refused by the learned Trial Court1000 as well as the First
Appellate Court. As per clause 2 of the sale agreement, if the second
party fails to pay the balance amount within stipulated time, the advance
will be forfeited and if the seller fails or refuses to execute the sale
deed and other necessary document in favour of the buyer or in the name
of his nominees within the stipulated time, the seller will be responsible to
pay double the amount given as an advance. Therefore,1080 on failure on the part of the
seller to execute the sale deed within the stipulated time, the buyer
shall1100 be entitled to
the double of the amount given as an advance. It cannot be disputed that
the plaintiff being a party to the agreement to sell is bound by the terms
and conditions stipulated in the sale agreement. Therefore, on true
interpretation of clause 2 of the sale agreement, the learned Trial Court as
well as the First Appellate Court as such rightly refused to pass the decree
for specific performance of the sale agreement and rightly passed the decree
for recovery of Rs. 4 lakhs being double the amount given as an advance which
was in consonance with the clause 2 of the sale agreement.1207
