Chandrika Chaubey v. Pyari — 1982 DIGILAW 1084 (ALL)

JUDGMENT Deoki Nandan, J. - This is a plaintiffs Second Appeal in a suit for specific performance of a contract for sale of certain specific plots of land in village Barnai of district Deoria. The plaintiffs case was that the first defendant, Smt. Pyari, since deceased and now represented by her heirs and legal representatives, was the sole bhumidhar of the land, and had agreed to sell it to him for Rs. 1,300/- by an agreement executed on the 1st Nov., 1965. The sum of Rs. 1,000/- was paid as advance at the time of the execution of the agreement. The balance of Rs. 300/- was payable at the time of the registration of the sale deed, which was agreed to be completed within three months. The defendant-respondents nos. 2, 3 and 4, are the grandsons of Smt. Pyari's sister, and, by a sale-deed, dated the 31st Jan., 1966, Smt. Pyari sold a one-half share, which, she alleged, belonged to her in those very plots of land, which she had earlier agreed to sell to the plaintiff on e consideration for the sale of Rs. 1,500/- and it appears that although Smt. Pyari did not appear to admit execution of the sale-decd, when it was presented for registration before the Sub-Registrar on the 7th Feb, 1966, she did appear subsequently on the 23rd April, 1966 before the District Registrar and admitted execution of the sale-deed. 2. The defendants Nos. 2 to 4 contested the suit by filing a joint written statement. The first defendant, Smt. Pyari, also denied the plaintiffs claim by a separate written statement, that was filed by her. The execution of the agreement to sell, that was relied upon by the plaintiff, was denied by the defendants, and it was asserted that it was without consideration, and the defendants nos. 2 to 4 pleaded that they were bona fide purchasers of value without notice of the agreement. Other technical pleas were also raised. The trial court held on issues nos. 1, 2 and 6, which were the material issues in the case that the, defendant no. 1 did execute an agreement for sale in favour of the plaintiff, and further that the said agreement was not without, consideration. It found that Rs. 1,000/ had been paid by the plaintiff to the first defendant at the time of the execution of the agreement. 1 did execute an agreement for sale in favour of the plaintiff, and further that the said agreement was not without, consideration. It found that Rs. 1,000/ had been paid by the plaintiff to the first defendant at the time of the execution of the agreement. On issue No. 6, it found that the defendant Nos. 2 to 4 were not bona fide transferees without notice of the agreement. Issue no. 7 raised the question : "What relief, if any, is the plaintiff entitled?" The trial court held that the share of Smt. Pyari in the land agreed to be sold was only one, half, and the plaintiff was accordingly entitled to specific performance by way of sale of the land only to the extent of the share of Smt. Pyari there in. In the result decreed the suit for specific performance by the sale of the land to the extent of Smt. Pyari's share therein. 3. Three appeals were filed before the lower appellate court, one by the plainly claiming that Smt. Pyari was the sole owner, and, therefore, the suit should have fees decreed in toto, the second by Smt. Pyari, and the third by the defendants Nos. 2 to 4 objecting to, and praying for the setting aside of the decree passed by the trial court. 4. The following were the points, which were raised by the lower appellate court for its determination in the three appeals, which were heard and decided together : "1. Whether Smt. Pyari (defdt. No. 1) agreed to sell the plots in favour of the plff. and had as such duly executed the deed of agreement for sale Dated 1-11-65?" "2. Whether sale-deed dated 31-1-66 was obtained by defendants 2 to 4 without prior notice of the agreement for sale and were bona fide purchasers for value ?" "3. Whether Smt. Pyari defendant No. 1 was the sole bhumidhar of the suit plots ?" 5. The lower appellate court reversed the findings arrived at by the trial court, and held on the first point that the agreement, dated the 11th Jan., 1965 was forged and fictitious, and that no earnest money was paid by the plaintiff. On the second point also it held that the sale-deed dated the 31st Jan., 1966 was obtained by the defendant nos. 2 to 4 without notice and the purchase was made bona fide for value. On the second point also it held that the sale-deed dated the 31st Jan., 1966 was obtained by the defendant nos. 2 to 4 without notice and the purchase was made bona fide for value. On the third point, it held that in view of its findings on the first two points, it was not necessary to record any finding on the third point. In the result, the lower appellate court dismissed the plaintiffs appeal and allowed the two appeals, that were filed by the defendant No. 1, and the defendant Nos. 2 to 4 separately. 6. The Second Appeal was heard by Hon'ble R. R. Rastogi, J., and allowed by judgment dated the 12th February, 1979. The judgment and decree of the lower appellate court was set aside, and the plaintiff suit was decreed for specific performance of the agreement to sell dated the 1st November, 1965, to the extent of Snit. Pyari's one-half share in the land in suit on payment of Rs. 300/- to her legal representatives. That judgment was, however, recalled on an application for review, by order dated the 6th Nov., 1981 on the ground that during the pendency of the appeal in this . Court, the land, which was agreed to be sold, had been exchanged for other land in proceedings for consolidation of holdings, and that in view of the decision of the Supreme Court in Pyare Lal v. Hori Lal, AIR 1977 SC 1226 , the suit for specific performance could not have been decreed in favour of the plaintiff-appellant. The judgment, dated the 12th Feb., 1979 having been thus recalled, the appeal was restored and was listed for hearing before me. On the 1st Feb., 1982 I allowed the plaintiff-appellant time to apply for an amendment of the plaint for claiming compensation in addition to or in substitution of the relief of specific performance, originally claimed in the suit, in view of the impossibility of decreeing that relief by reason of the fact that the land agreed to be sold appeared to have been exchanged for other land in proceedings for consolidation of holdings. An application for amendment of the plaint having been made thereafter, it was allowed by my order, dated the 31st March, 1982 in view of the proviso to sub-section (5) of section 21 of the Specific Relief Act, 1963. An application for amendment of the plaint having been made thereafter, it was allowed by my order, dated the 31st March, 1982 in view of the proviso to sub-section (5) of section 21 of the Specific Relief Act, 1963. The plaint was amended, and the sum of Rs. 937/- was claimed as damages, in respect of 2.53 acres of land, which was said to have been exchanged for other plots in the proceedings for consolidation of holdings. 0.17 acres of land of plot No. 181 was said to have remained with Smt. Pyari even after the consolidation operations. 7. The plaint having been amended, the defendant respondents did not ask any opportunity to take any further pleas in defence, and did not seem to have any objection if a decree for refund of the advance of Rs. 1,000/- made by the plaintiff-appellant to Smt. Pyari, was passed against her, that is, her estate in the hands of her heirs and legal representatives. The only objection raised by the learned counsel for the defendant-respondents was to any decree being passed against the defendant-respondent Nos. 2 to 4, or any charge being created on the property in their hands. The Argument was that a charge could not be levied under S. 55 (6) (b) of the Transfer of Property Act on the land in the hands of the defendant-respondents Nos. 2 to 4, for precisely the same reasons for which a decree for specific performance could not be passed, on the authority of the decision of the Supreme Court in Pyare Lal v. Hori Lal, AIR 1977 SC 1226 (supra), as also that in Rana Sheo Ambar Singh v. Allahabad Bank, AIR 1961 SC 1790 : 1961 All LJ 716. 8. As to the claim for passing a decree for specific performance of the contract only in respect of plot No. 181 having an area of 0.17 acres, which was said to be still in the possession of Smt. Pyari, it seems to me that to do so would not be a proper exercise of the discretion, which the court has in the matter of decreeing specific performance. The claim for specific performance of almost the whole of the agreement has failed, one half of it on account of the fact that Smt. Pyari's share was found to be only one-half, and the remaining half in 2.53 acres of land out of 2.70 acres on the ground, that it had been exchanged for other land in the proceedings for consolidation of holding operation. Moreover, not passing of a decree for specific performance may indeed turn out to be beneficial to the plaintiff-appellant, inasmuch as the decree for refund of the amount paid by him could be executed only against the property of Smt. Pyari in the hands of her heirs and legal representatives. That plot No. 181 having an area of .17 acres might very well be that property. Moreover, from the copy of C. H. Form No. 23 filed along with the review application, it is not clear whether the whole of plot No. 181 said to be comprising of an area of 0.17 acres exists in that form or not, for C. H. Form No. 23 mentions plot No. 181/1 in two parts, one having an area of 0.03 acres and that other having an area of 0.04 acres, total 0.07 acres. This Court is not in a position to find whether plot No. 181 having an area of 0.17 acres continues to exist in that form. 9. However, before a decree for refund of the amount of the advance could be passed, it is necessary to see whether the finding of the lower appellate court that the agreement dated 1st November, 1965 was a forged and fictitious document and that the amount of Rs. 1,000/- had not been paid at all, is vitiated in law. Although the judgment of this Court dated 12th February, 1979 has been recalled on review by Hon'ble R.R. Rastogi, J., the fact remains that the judgment was not recalled on account of any error of law or of fact in the finding arrived at by this Court that the aforesaid findings of the lower appellate court about the genuineness of the agreement to sell and payment of Rs. 1,000/- as advance were vitiated in law. 1,000/- as advance were vitiated in law. The only ground on which the judgment was recalled was the fact that the land agreed to be sold had been exchanged for other land in consolidation, operations during the pendency of the appeal in this Court. Even so I have perused the judgment of Hon'ble R. R. Rastogi, J., with care and have also gone through the material on the record. With respect I agree with the view of Hon'ble R. R. Rastogi, J., that the findings arrived at by the lower appellate court on the aforesaid point are vitiated in law. The findings of the trial court are correct. The agreement dated 1st November, 1965 is genuine and the amount of Rs. 1,000/- was paid to Smt. Pyari. I need not elaborate my reasons inasmuch as I subscribe to the reasons given by Hon'ble R. R. Rastogi, J., in the judgment of High Court dated 12th February, 1979. 10. I accordingly allow the appeal with costs set aside the judgment and decree of the lower appellate court. The claim for specific performance of the agreement to sell is dismissed but the suit is decreed for recovery of Rs. 1,000/- with pendente life and future interest at 6% per annum and costs throughout from the heirs and legal representatives of Smt. Pyari, deceased respondent No. 1 in this Court.