The Calcutta High Court allowed the appellants’ second appeals, setting aside the trial and first-appellate judgments and holding that the suit for specific performance was time-barred under Article 54 of the Limitation Act, 1963, while the defendants’ counter-claim for possession was timely under Article 65.
Background & Facts
The Dispute
The respondent, SMT. Rama Mondal, filed Other Suit No. 20/2016 seeking specific performance of a sale agreement dated 26.03.1993, execution of a registered deed, a permanent injunction, and costs with 18% interest. The appellants, SMT. Usha Raju and others, denied the plaintiff’s claims and filed a counter-claim for declaration of title and eviction of the plaintiff.
Key Facts
- 26.03.1993: Sale agreement executed between the plaintiff and the predecessor-in-interest, T. Balakrishna.
- 04.02.2015: Plaintiff approached defendants to execute the registered deed; defendants allegedly refused.
- 06.03.2007: Letter (exhibit-C) from T. Balakrishna to the Tehsildar alleging illegal encroachment by the plaintiff.
- 2007: Revenue case initiated under Section 161 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966.
- 21.07.2016: Plaintiff filed the suit for specific performance.
- 06.03.2013: Death of T. Balakrishna.
- 27.05.2013: Undated letter by plaintiff indicating knowledge of refusal.
- 06.03.2017: Defendants filed the counter-claim.
- 29.03.2022: Trial Court judgment and decree dismissing the counter-claim and granting relief to the plaintiff.
- 18.07.2023: First Appellate Court dismissed both appeals.
- 28.07.2026 - 31.07.2026: Hearing of the present second appeals.
- 04.08.2026: Judgment delivered.
Procedural History
- 21.07.2016: Suit O.S. No. 20/2016 filed before Civil Judge (Senior Division), North & Middle Andaman at Mayabunder.
- 29.03.2022: Trial Court passed judgment and decree dismissing the counter-claim.
- 04.2022: Appellants filed Other Appeal No. 04/2022.
- 05.2022: Appellants filed Other Appeal No. 05/2022.
- 18.07.2023: First Appellate Court dismissed both appeals by common judgment.
- 28.07.2026 - 31.07.2026: Second appeals SA/3/2025 and SA/4/2025 heard before a Division Bench of the Calcutta High Court.
- 04.08.2026: Present judgment delivered.
Parties' Positions
- Appellants (Usha Raju et al.): Assert that limitation for the specific performance suit began in 2007 when the plaintiff became aware of the predecessor’s refusal, making the suit barred; argue that the counter-claim is within the 12-year period of Article 65 because adverse possession arose in 2007.
- Respondent (Rama Mondal): Contend that the cause of action arose on 04.02.2015 when the defendants refused to execute the deed; maintain that no fixed date for performance exists, so limitation runs from that refusal; argue that the counter-claim is barred.
Relief Sought
- Appellants: Set aside the trial and first-appellate judgments, decree of declaration of title, eviction of the plaintiff, and costs.
- Respondent: Specific performance of the sale agreement, execution of the registered deed, permanent injunction, costs, and 18% interest.
The Legal Issue
The central questions were: (A) Does the limitation period for a suit for specific performance under Article 54 of the Limitation Act, 1963 commence from the date the plaintiff notices refusal of performance, or from the date of actual refusal in 2015? (B) Does the limitation period for a counter-claim for possession under Article 65 of the Limitation Act, 1963 begin when the plaintiff’s possession becomes adverse in 2007, thereby making the claim timely?
Arguments Presented
For the Appellants
The appellants relied on the plaintiff’s own testimony and documentary evidence (exhibit-C, revenue case records) to show that the plaintiff became aware of the predecessor’s refusal in 2007. They argued that Article 54 requires the limitation to start when the plaintiff has notice of refusal, and that the plaintiff’s knowledge in 2007 triggers a three-year limitation expiring in 2010. Regarding the counter-claim, they invoked Article 65, which provides a twelve-year period from the date adverse possession commences, i.e., 2007, making the 2016 claim timely. They also cited precedents Hazari Lal (Dead) v. Ramesh Kumar and Shri Sudhir Chandra Das v. Gopal Mistry on limitation principles.
For the Respondent
The respondent argued that the cause of action arose on 04.02.2015 when the defendants refused to execute the deed, a date fixed in the plaint. He contended that no specific performance date was stipulated in the agreement, so the limitation should run from the refusal in 2015, keeping the suit within time. He further maintained that the counter-claim was barred because the plaintiff’s possession was never adverse until after 2015. The respondent relied on Sucha Singh Sodhi (Dead) v. Baldev Raj Walia and the trial court’s finding that the plaintiff proved refusal in 2015.
The Court's Analysis
The Court first examined the scope of Section 100 of the Code of Civil Procedure, 1908, emphasizing that a second appeal is limited to substantial questions of law and cannot re-appreciate factual findings of the lower courts. Citing Karnataka Board of Wakf and Navaneethammal v. Arjuna Chetty, the Court reiterated that concurrent findings of fact are not open to interference absent a perverse or unsupported conclusion.
Turning to Article 54, the Court noted that the provision states the limitation period begins when the plaintiff has notice that performance is refused. The plaintiff’s deposition and the letter dated 06.03.2007 (exhibit-C) demonstrated that she became aware of the predecessor’s refusal in 2007. The Court held that the plaintiff’s later claim of notice in 2015 could not override the earlier, contemporaneous knowledge. Consequently, the three-year limitation expired in 2010, rendering the suit time-barred.
"The plaintiff had definite knowledge regarding refusal by the defendant’s predecessor-in-interest in the year 2007 and thus the period of limitation for filing the suit for specific performance would be three years from the year 2007 i.e. up to the year 2010."
Regarding Article 65, the Court observed that adverse possession of the plaintiff began when the revenue case was initiated in 2007, as evidenced by the Tehsildar’s order sheets (exhibit-A). The twelve-year limitation therefore ran until 2019, making the 2016 counter-claim well within time. The Court rejected the trial court’s view that the counter-claim was barred.
"Possession of the plaintiff in respect of the suit property became adverse to the defendant in the year 2007 and therefore the defendants’ counter-claim filed in June 2017 is within the twelve-year period prescribed under Article 65."
The Court also clarified that the High Court, while entertaining the second appeal, must confine its adjudication to the two substantial questions of law framed, without delving into factual re-assessment. Accordingly, the Court set aside both the trial and first-appellate judgments.
The Verdict
The Court allowed both SA/3/2025 and SA/4/2025. It set aside the judgment and decree dated 29.03.2022 and the common judgment dated 18.07.2023. The counter-claim is decreed, granting the appellants a declaration of title and an order for the plaintiff to vacate the suit property within 30 days of the judgment. No order as to costs was made. The registry is directed to draw up the decree forthwith.
What This Means For Similar Cases
Limitation Starts on Notice of Refusal
- Practitioners must identify the earliest date the plaintiff became aware of a refusal, even if it stems from a predecessor-in-interest, as the limitation clock under Article 54 starts then.
- Evidence such as letters to authorities or revenue proceedings can establish that notice.
Possession-Based Claims Follow Article 65
- For counter-claims involving possession, the 12-year period begins when the plaintiff’s possession becomes adverse, not when the plaintiff files the suit.
- Documenting the date of adverse possession (e.g., revenue case initiation) is crucial.
Second Appeals Are Purely Legal
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High Courts must limit second-appeal review to substantial questions of law; they cannot re-appreciate factual findings of lower courts.
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Counsel should frame appeals around clear legal questions and avoid re-litigating evidence.
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Ensure that the appeal memorandum precisely states the substantial question of law as required by Section 100 CPC.
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Avoid arguments that hinge on factual reinterpretation unless a clear error in law is demonstrated.
