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CASE NO.: Appeal (civil) 6972  of  1999

PETITIONER: THAKUR RAGHUNATH JI MAHARAJ & ANR.

       Vs.

RESPONDENT: RAMESH CHANDRA

DATE OF JUDGMENT:       11/05/2001

BENCH: S. Rajendra Babu & Shivaraj V. Patil

JUDGMENT:

W I T H CIVIL APPEAL NO. 6973 OF 1999

J U D G M E N T

Shivaraj V. Patil J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  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. College  building was not constructed within the said period inspite  of  repeated requests and demand by the  plaintiff. Finally,  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.

   The  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

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the  plaintiff  was beyond the period of limitation and  the defendant  had  not executed any agreement dated  16.8.1971. In  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.

   The  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 appeal.

   The  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.

   As  to 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. From 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

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land, the gift did not come into effect.

   Before  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. Article  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. ‘Samadhis  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. According  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. Hence 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.

   Further  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.

   In  the present case, the land was given for  charitable purpose  in  the public interest as already  noticed  above. The  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

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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.