Parmeshwar Mandal v. Mahendra Nath Tewari — 1960 DIGILAW 179 (PAT)

Judgment Tarkeshwar Nath, J. 1. This appeal by defendant No. 2 (defendant second party) arises out of a suit for specific performance of contract and recovery of possession. 2. The plaintiffs case was that defendant No. 1 had 2.23 acres of land in village Majrohi and 1 bigha 10 kathas of land in village Tarwa, described in Schedule I of the plaint. On the 22nd Magh 1362 Fasli corresponding to the 30th of January, 1955, defendant No. 1 contracted to sell these lands to Dwarkanath Tewary (who was originally the plaintiff, but later on died during the trial) for Rs. 3,130, and he executed a deed of contract the same day on taking Rs. 930 as earnest money. Defendant No. 1 stipulated to execute the sale deed by Bhado 1362 Fasli, and he put Dwarkanath Tewary in possession of those lands. On the 23rd April, 1955, defendant No. I received a further sum of Rs. 1,200 out of the amount of consideration. On the 6th September, 1955, Dwarkanatli sent a notice to defendant No. 1 to execute a sale deed, but he did not do so, and it transpired that he had already executed a sale deed in favour of defendant No. 2 on the 4th February, 1955, in respect of those lands. Defendant No. 2 had knowledge of the previous contract in favour of Dwarkanath Tewary, but in spite of that he got the sale deed executed by defendant No. 1. Dwarkanath instituted the suit on the 14th October, 1955, but after his death his heirs were substituted in his place. They got the plaint amended and sought for recovery of possession as well in case they were found to be out of possession. 3. Defendant No. 1 contested the suit on grounds inter alia that he neither executed the deed of contract nor received any sum as earnest money. He further denied to have received a sum of Rs. 1,200 and asserted that the sale deed executed in favour of defendant No. 2 was valid Defendant No. 2, on the other hand, averred that he was a bona fide purchaser for value without any notice of the contract between the plaintiffs and defendant No. 1. 4. He further denied to have received a sum of Rs. 1,200 and asserted that the sale deed executed in favour of defendant No. 2 was valid Defendant No. 2, on the other hand, averred that he was a bona fide purchaser for value without any notice of the contract between the plaintiffs and defendant No. 1. 4. The Subordinate Judge held that there was a valid and subsisting contract between, the plaintiffs and defendant No. 1 for the sale of the lands in question, and the latter had received the earnest money besides the sum of Rs. 1,200 out of the amount of consideration. He further held that defendant No. 2 had notice of the contract and he was not a bona fide purchaser for value. Accordingly, he decreed the suit for specific performance of contract and recovery of possession, directing the plaintiffs to deposit the balance of consideration amounting to Rs. 1,000 by the 31st January, 1958, and defendant No. 1 to execute a sale deed in respect of the lands in suit within the first week of February, 1958. 5. Defendant No. 2 (defendant second party), being aggrieved by the said decree, preferred an appeal. The Additional District Judge affirmed the findings and held that there was a valid contract of sale of the lands in suit between Dwarka Nath Tewary (the Original plaintiff) and defendant No. 1. He further found that defendant No. 2 had notice of this contract and he was not a bona fide purchaser. Accordingly, he dismissed the appeal. Hence defendant No. 2 has preferred this appeal. 6. The concurrent finding of the Courts below that there was a valid and subsisting contract of sale and defendant No. 2 had notice of this contract was based on a consideration of the evidence adduced in the case, and they have not been challenged in this appeal. Mr. Lalnarayan Sinha for the appellant, however, raised the point that, in view of the decree passed by the trial Court and affirmed by the lower appellate court, which related to the execution of. the sale deed by defendant No. 1 only there could be no decree for recovery of possession against defendant No. 2. Mr. Lalnarayan Sinha for the appellant, however, raised the point that, in view of the decree passed by the trial Court and affirmed by the lower appellate court, which related to the execution of. the sale deed by defendant No. 1 only there could be no decree for recovery of possession against defendant No. 2. He developed his point in this mannerr (1) The Subordinate Judge directed, that defendant No. 1 should execute a sale deed in respect of the lands in suit in favour of the plaintiffs, and there was no direction that defendant No. 2 should either join in that sale deed or execute independently a sale deed, with the result that the tide acquired by defendant No. 2 on the basis of the sale deed executed in his favour still remained intact, (2) the sale in favour of defendant No. 3 was not void but voidable, and (3) his title not having been extinguished, there could be no decree for recovery of possession against him. He further submitted that the plaintiffs did not file any appeal against the decree of the trial Court, and, as such, that had become final. He referred to the case of Durga Prasad V/s. Deep Chand, AIR 1954 SC 75 in support of his proposition. In that case their Lordships observed as follows: "..... the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenant made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafilladdin V/s. Samiraddin, AIR 1931 Cal 67 and appear to be the English practice." It may be pointed out that the appeal in that case was by the subsequent purchasers, and their Lordships modified the decree of the High Court directing them to join in the conveyance to be executed by the vendor in the plaintiffs favour in accordance with the terms of the contract entered into between them. It was further held in that case that the title had validly passed from the vendor to the subsequent transferee and the sale, was not void, but only voidable at the option of the earlier "contractor." Relying on this case the learned counsel urged that the title of defendant No. 2 still remained intact and the decree passed by the trial Court directing him to give up possession was erroneous. Mr. Kaushal Kishore Sinha for the plaintiffs-respondents submitted that even if there was no appeal by them, it was open to this Court to correct the form of the decree in view of the provisions of Order 41 Rule 33, Code of Civil Procedure. He referred to the case of Chunder Kant Roy V/s. Krishna Sunder Roy, ILR 10 Cal 710. That appeal arose out of a suit for specific performance of an oral agreement to sell certain property. The Munsiff found that the agreement had been entered into between the plaintiff and defendant No. 1, and defendant No. 3, the subsequent purchaser, had notice of that agreement. He set aside the sale in favour of defendant No. 3 and ordered defendant No. 1 to execute a sale deed in favour of the plaintiff, in default of which, the decree was to be deemed to be a sale in favour of the plaintiff. The said decree was affirmed by the District Judge, and defendant No. 3 preferred a Second Appeal. Their Lordships dismissed the appeal, but set aside that portion of the decree which directed that on the failure of defandant No. 1 to execute the kobala, the decree should, to all intents and purposes, be deemed to be a kebala, in favour of the plaintiff. Their Lordships, however, directed that in the event of the failure of defendant No. 1 to execute the kebala the Court should take steps for the purpose of carrying out the conveyance. The learned counsel for the respondents relying on this decision, submitted that the High Court in that case exercised the powers under Order 41 Rule 33 and the same power should be exercised in this appeal. He next referred to the case of Subiah Pillay V/s. Velappa Naicken, 13 Ind Cas 176 (Mad). That appeal also arose out of a suit for specific performance of an agreement to sell certain lands, entered into between the plaintiff and the first defendant. He next referred to the case of Subiah Pillay V/s. Velappa Naicken, 13 Ind Cas 176 (Mad). That appeal also arose out of a suit for specific performance of an agreement to sell certain lands, entered into between the plaintiff and the first defendant. The latter subsequently sold the land to the second and fourth defendants. The plaintiff asked for a declaration that the sale in favour of defendants 2 to 4 was void as against him and for a direction that the first defendant should execute a conveyance ,of the land in his favour. The plaintiff got a decree for specific performance of contract. The subsequent purchaser raised a point that the suit should be dismissed On the ground that there was no prayer in the plaint for the execution of the conveyance by defendants 2 to 4. Their Lordships overruled that contention and held that they had the power under Order 41 Rule 33, if necessary to direct the subsequent purchaser to execute the conveyance. In that case, however, it was considered unnecessary to adopt that course. Reference has been made to the case of Ranga Reddi V/s. Pitch Reddi, AIR 1915 Mad 37. In that case as well the decree was amended under Order 41 Rule 33 by directing that the subsequent purchaser also should execute a proper sale deed along with the vendor in favour of the person with whom there was an agreement to sell. A similar question arose in the case of AIR 1931 Cal 67. The appeal in that case was by defendants 8 to 10, the subsequent purchasers of the property, and at the time of the hearing of the appeal a question arose as to whether the decree passed by the trial Court directing the contracting party alone to execute the sale deed was in accordance with law. On a review of a catena of authorities it was held that in a suit for specific performance of a contract for sale the conveyance should be executed in favour of the plaintiff by the contracting party as well as by the subsequent transferee of his interest. In that view of the matter the decree passed by the trial Court was modified, and the subsequent purchasers also were directed to execute a sale deed along with the contracting party in favour of the plaintiff. In that view of the matter the decree passed by the trial Court was modified, and the subsequent purchasers also were directed to execute a sale deed along with the contracting party in favour of the plaintiff. This decision was refered to with approval by the Supreme Court in the case of AIR 1954 SC 75 . Having regard to the principles laid down in these cases it is manifestly clear that if in a suit for specific performance of contract, a plaintiff succeeds, then there should be a direction to the subsequent purchaser as well to join along with the contractor in the conveyance to be executed in his (plaintiffs) favour. The form of the decree can be corrected under Order 41 Rule 33, even when there is no appeal by the plaintiff, and this power has been exercised in the cases referred to above. The terms of Order 41 Rule 33 "are very wide, and in a proper case it gives the appellate Court ample discretion to pass any decree, or make any order to prevent the ends of justice from being defeated." (Vide Ganesh Ram V/s. Baikunthesh Prasad, AIR 1951 Pat 291 .) 7. The learned counsel for the appellant objected to the exercise of this power at this stage under Order 41 Rule 33 on the ground that the mistake in passing the decree was committed by the trial Court and not by the lower appellate Court. There is, however, no fetter to the exercise of this discretion in a Second Appeal, and the provisions of Order 41 Rule 33 apply not only to appeals from original decrees, but also to appeals from appellate decrees: Vide Doman Sahu V/s. Gangu Nayak, AIR 1940 Pat 300. His other objection was that there was no equity in favour of the plaintiffs, and there was no justification for Dwarkanaths paying a sum of Rs. 1,200 to defendant No. 1 after the execution of the sale deed hi favour of defendant No. 2. The Courts below having held that defendant No. 2 was not a bona fide purchaser for value and that he had notice of the contract, this objection is not tenable. 1,200 to defendant No. 1 after the execution of the sale deed hi favour of defendant No. 2. The Courts below having held that defendant No. 2 was not a bona fide purchaser for value and that he had notice of the contract, this objection is not tenable. The learned counsel for the appellant relied On the decision in the case of Bir Singh V/s. Budhu Ram, AIR 1950 Pat 346 in support of his contention that the power under Oder 41 Rule 33 should not be exercised in this case as there was no appeal by the plaintiffs. It was held in that case that the terras of that Rule, although wide, should not be interpreted in such a way as to abrogate the other provisions in the Code with regard to the filing of appeals and cross-objections, and, as an ordinary rule, an appellate court should not reverse or vary a decree in favour of a party who had not preferred any appeal or cross objection. It is true that there is no appeal in this case by the plaintiffs, but, as already observed, there is ample authority for exercise of this power in a case like this for correcting the form of the decree passed by the trial Court. Thus, the decree in the present case for the execution of the sale deed has to be modified in the manner laid down by the Supreme Court in the case referred to above. 8. The learned counsel for the appellant raised an objection with regard to the decree for recovery of possession passed against defendant No. 2. The relief as to possession, however, was ancillary to that for the specific performance of the contract: Vide Deonandan Prasad Singh V/s. Janki Singh, 56 Ind Cas 322 : (AIR 1920 Pat 89). "The right to possession sprang out of the contract of sale, and, when the court is asked to give relief by giving possession, such, a relief is comprised in the relief for the specific performance of the contract of sale:" Vide Kashi Prasad V/s. Baiju Paswan, AIR 1953 Pat 24 . 9 The learned counsel for the appellant finally submitted that in this case there should be a direction that defendant No. 2 was entitled to the sum of Rs. 9 The learned counsel for the appellant finally submitted that in this case there should be a direction that defendant No. 2 was entitled to the sum of Rs. 1,000 which the plaintiffs were to deposit in terms of the decree, and besides that, he was entitled to a further sum of Rs. 1,200 which was alleged to have been paid to defendant No. 1 on the 23rd of April, 1955, after the execution of the sale deed dated the 4th February, 1955. He relied once again on the decision of the Supreme Court in the case of AIR 1954 SC 75 in support of this contention. Their Lordships, however, made it clear in that case that the normal rule was to require that the money should be paid to the vendor, and it was not right to lay down that in every case the balance of the purchase money should be paid to the subsequent transferee. In the peculiar circumstances of that case a direction was given that the subsequent purchasers were entitled to the sum lying in deposit in Court as compensation for the loss they had suffered, without prejudice to any further rights which they might have against the vendor or his estate. The learned counsel for the plaintiffs-respondents has objected to this course being adopted and has relied on the finding of the Courts below that the purchase of defendant No. 2 was not a bona fide one and there was no consideration for that sale. The learned Subordinate Judge dealt with the evidence with regard to the payment of the consideration, and the question as to whether defendant No. 2 was a bona fide purchaser for value. His conclusion was that defendant No. 2 was not a bona fide purchaser for value without notice of the contract. The learned Additional District Judge pointed out that a sum of about Rs. 5,000 was alleged to have been paid in cash just before the registration of the sale deed, but the precaution was not taken to make that payment before the Sub Registrar and get an endorsement to that effect on the sale deed itself. The learned Additional District Judge pointed out that a sum of about Rs. 5,000 was alleged to have been paid in cash just before the registration of the sale deed, but the precaution was not taken to make that payment before the Sub Registrar and get an endorsement to that effect on the sale deed itself. He further referred to the fact that the sale deed (Exhibit A) in favour of defendant No, 2 was in respect of 2 kathas of land of village Tarwa as well which had already been sold by defendant No. 1 to one Sheonarain Singh on the 8th March, 1952, and the amount of rent mentioned in the sale deed of defendant No. 2 was incorrect. He took note of these circumstances which indicated that the consideration had not been paid. These observations lead to the inference that he was not satisfied with regard to the passing of the consideration of the sale deed executed in favour of defendant No. 2. The onus was on the transferee, defendant No. 2, to establish that he was a purchaser for value, but he failed to discharge that onus. The second point formulated by the learned Additional District Judge was as to whether defendant No. 2 was a bona fide purchaser of the lands in suit for consideration without notice of any contract for sale between the plaintiffs, and defendant No. 1, and, on a consideration of the relevant matters he decided this point against defendant No. 2; in other words, he affirmed the finding of the trial Court that defendant No. 2 was not a bona fide purchaser for value without notice of the contract between Dawarika Nath Tewary (the original plaintiff) and defendant No. 1. In view of these concurrent findings there are no equities in favour of defendant No. 2 and sufficient grounds have not been made out for departing from the normal rule that the balance of the purchase money should be paid to the vendor. The contention of the learned counsel that defendant No. 2 was entitled to the balance of the purchase money and the amount paid by Dwarika Nath Tewary to defendant No. 1 has no merit, and it is accordingly overruled. 10. The contention of the learned counsel that defendant No. 2 was entitled to the balance of the purchase money and the amount paid by Dwarika Nath Tewary to defendant No. 1 has no merit, and it is accordingly overruled. 10. The decree of the trial Court is, however, modified to this extent only that Bajrangi Mandal and Parmeshwar Mandal (defendants 1 and 2) do execute a sale deed in respect of the lands in suit in favour of the plaintiffs within two months of this order and put them in possession of those lands, failing which they are entitled to get, at the cost of the defendants, a sale deed executed and registered by the court and delivery of possession in respect of the lands in suit. 11. The result is that the appeal is dismissed, but without costs in the circumstances of the present case, with the modification in the decree of the trial Court as indicated above.