Raghunath Ji Maharaj & Anr Vs. Ramesh Chandra  Insc 303 (11 May 2001)
Babu & Shivaraj V. Patil Shivaraj V. Patil J.
CIVIL APPEAL NO. 6973 OF 1999
defendants are the appellants before this Court in Civil Appeal No. 6972/1999
challenging the correctness and validity of the judgment and decree passed in
the second appeal No. 1020/97 by the High Court of Judicature at Allahabad. The plaintiff is the appellant in
Civil Appeal No. 6973/1999 challenging the impugned judgment to the extent of
granting one year time to the defendants for constructing college building in
the suit land. The Plaintiff was bhumidhar of the suit plot of land No. 233
measuring 1.98 acres. He executed a gift deed in favour of the defendant Thakur
Raghunath Ji Maharaj, Virajman Shri Ram Mandir Chutar Teka Village Sakitara,
District Mathura on 16.8.1971 for the purpose of construction of college
building on the said plot of land. On the same day, a deed of agreement was
executed to the effect that the land was gifted for building of degree college
and the said building should be constructed within the period of six months
from the date of the execution of the gift deed failing which the plaintiff would
have the right over the suit plot of land.
building was not constructed within the said period inspite of repeated
requests and demand by the plaintiff.
notice was sent by the plaintiff on 16.10.1985 to comply with the conditions of
the agreement but the defendants refused to do so. The plaintiff also stated
that his possession over the land continued as there were two `samadhis of his
father and mother existing on the land.
defendants filed written statement resisting the said suit contending that the
suit filed by the plaintiff was barred by time; the plaintiff executed the gift
deed in favour of defendant no. 1 without any conditions and that there was no
agreement between the plaintiff and the defendant for the construction of degree
college on the disputed land. The trial court held that the suit filed by the
plaintiff was beyond the period of limitation and the defendant had not
executed any agreement dated 16.8.1971.
this view, the suit was dismissed. Aggrieved by the judgment and decree of the
trial court, the plaintiff filed the first appeal, which was allowed, decreeing
the suit of the plaintiff holding that the suit was filed within time and that
the agreement mentioned above was executed. The defendants approached the High
Court by filing the second appeal, aggrieved by the judgment and decree passed
by the first appellate court.
High Court by the impugned judgment concurred with the view taken by the first
appellate court; however, noticing that the suit plot was still vacant, instead
of directing the defendants to return the suit plot, gave an opportunity to the
defendants to establish a degree college within a period of one year. It is
made clear that in case the college is established and the building is constructed
on the said plot of land within the time allowed, the defendants need not
comply with the decree passed by the first appellate court and its operation
shall be deemed to have been stayed for a period of one year. Hence this
learned counsel for the appellants urged that the suit filed by the plaintiff
is clearly barred by time; the gift deed executed by the plaintiff was
unconditional and absolute and the so-called agreement could not defeat the
rights conferred under the gift deed on the defendants. The learned counsel for
the respondents argued supporting the impugned judgment.
the execution and validity of the agreement, the first appellate court recorded
a categorical finding based on the pleadings and evidence that it was a genuine
document. The finding of fact recorded by the first appellate court was not
interfered with by the High Court in the second appeal and rightly so. The gift
deed and agreement were executed on the same day. Having regard to the
evidence, the High Court and the first appellate court were right in taking the
view that both formed the part of one transaction. It is not disputed that the
gift deed did not contain any conditions in regard to the building of college
on the suit plot but in the agreement it is clearly stated that in the suit
land, there are built up chabutaras of `samadhis of the father and mother of
the plaintiff, shall be maintained in the same condition; the suit land shall
be used for the construction of a degree college and not for any other purpose;
if the college is not built within six months, the gift deed will be deemed to
have come to an end and that the plaintiff shall be considered to be the owner
of the land; the possession will be of the plaintiff till the degree college is
not built; in case the college building is not constructed within the said
period, the plaintiff will be entitled to take appropriate action in the court
of law and in the event the degree college is constructed, the plaintiff will
have no right over the land.
these terms contained in the said deed of agreement, it is clear that the gift
was not absolute and/or unconditional. The gift deed and the agreement forming
one transaction are to be read together and given effect to accordingly. In
other words, the defendants had to take both the benefit and burden. They could
not reap the benefit and avoid to unload the burden. Since the defendants did
not construct a college building on the suit land, the gift did not come into
the High Court, the learned counsel for the defendants contended that the
substantial question of law that arose for consideration was whether Article 54
or Article 66 of the Limitation Act would apply to the suit.
54 of the Limitation Act relates to specific performance of a contract. It has
no application at all to the present suit, as the suit filed was not for
specific performance but one for possession based on reason of forfeiture by
breach of condition. Article 66 prescribes period of limitation as 12 years for
filing a suit for possession of immovable property when the plaintiff has
become entitled to possession by reason of any forfeiture on breach of
condition and the time begins to run when the forfeiture is incurred or the
condition is broken.
of parents of the plaintiff exist in the land which were to be maintained; the
land could not be used for any purpose other than constructing building for
degree college and that the possession of the land shall continue with the
plaintiff so long the college is not built.
to the plaintiff, the defendants finally refused to construct degree college
building in the land on 16.10.1985, giving rise to immediate course of action.
the suit filed immediately thereafter in the year 1985 itself was not barred by
time, as rightly accepted by the first appellate court. The same was not
disturbed in the second appeal by the High Court. Having regard to the
pleadings, facts and circumstances of the case, evidence placed on record and
the nature of transaction between the parties, we are of the view that the suit
was not barred by time.
the relationship between the plaintiff and the defendants was fiduciary as the
suit property was gifted for a specific charitable purpose and the condition
attached to the gift that in case college building was not constructed within a
specified time, the plaintiff would be entitled to the property, was a valid
condition; the donee continued to be trustee and the donor could claim back
property on the breach of conditions mentioned in the agreement. The High Court
rightly relied on the decision of this Court in State of Uttar Pradesh vs. Banshi Dhar and Ors. (AIR 1974
SC 1084) which fully supports the case of the respondent in regard to his claim
for possession of the property. In the said judgment, it was held that the
donation given by Dubey was conditional; the Government was a mere custodian of
the cash till condition was complied with and if the performance thereof was
defeated by the Government, the gift did not take effect. It was further held
that the transaction was not a gift simpliciter but was subject to certain
conditions; as conditions were not carried, the State could not keep the money
and the suit was liable to be decreed.
present case, the land was given for charitable purpose in the public interest
as already noticed above.
High Court was right and justified in giving concession to the defendants to
construct building within a period of one year and staying the decree of first
appellate court for a period of one year. The High Court has also indicated
that in case the defendants take necessary steps and start constructing college
building over the land and for no fault of them, the construction of the
college building is not completed within the time allowed, it is open to them
to seek further extension. The High Court, having agreed with the findings
recorded by the first appellate court, however, in the larger public interest
to serve charitable purpose and to adjust equities has granted time to the defendants
to construct the college building as stated above. Since substantial justice
has been done, the impugned judgment does not call for any interference at the
hands of this Court. Thus, we see no merit in these appeals. Hence they are
dismissed. No costs.