MAHENDRA SINGH v. NIRANJAN SINGH — 1995 DIGILAW 114 (ALL)

R. B. MEHROTRA, J. This is defendants second appeal. 2. The facts necessary for the decision of the appeal are as under: The plaintiff-respondent Niranjan Singh filed a suit for specific performance of contract to sell against the defendant and in the alternative for recovery of Rs. 7,000 from the defendant. The suit was contested by the defendant. On the pleading of the parties, issues were framed. Following issues are relevant for the purposes of the decision of the present appeal; (1) Whether the defendant agreed to sell the house in dispute to the plaintiff for a consideration of Rs. 7,300 on 17-4-1973 and executed the Ikrarnama in suit ? (2) Whether the defendant received Rs, 6,000 from the plaintiff towards the part payment of the sale consideration ? (3) Whether the defendant is owner of the house in suit or not ? If so its effect ? 3. The trial court decided all the aforesaid issues together in favour of the defendant and against the plaintiff. The findings were recorded on the basis of detailed appraisal of evidence, noticing demeanour of the witnesses. 4. Aggrieved there by the plaintiff filed Civil Appeal No. 229 of 1974, which was allowed by lower appellate court and the suit of the plaintiff was decreed. 5. Aggrieved thereby the defendant preferred the present second appeal. 6. It is necessary to notice facts to appreciate the controversy involved in the present appeal. 7. The plaintiffs case is plain and simple that the house in suit was initially ancestral property, but in mutual partition it fell in share of defendant. The defendant agreed to sell the house on 17-4-1973 for Rs. 7,000, the defendant received Rs 6,000 as advance from the plaintiff on 17-4-1973 towards part payment of the agreement and executed the Ikrarnama agreeing to sell the house. It was agreed that the sale deed shall be executed after receiving Rs. 1,000 from the plaintiff. The plaintiff is an employee in Armed Forces. The plaintiff came to village on 12-10-1973 and asked the defendant to execute the sale-deed in accordance with the agreement dated 17-4-1973 but the defendant refused, hence the suit has been filed. The defendant in his written statement stated that he never agreed to sell the house in suit to the plaintiff nor executed any agreement in favour of the plaintiff. He did not receive Rs. The defendant in his written statement stated that he never agreed to sell the house in suit to the plaintiff nor executed any agreement in favour of the plaintiff. He did not receive Rs. 6,000 from the plaintiff towards part payment or price of the house in dispute, claiming the agreement is a forged document, that the disputed house is an ancestral property of the parties and no portion of it came in the share of the defendant. The house was never partitioned. Both plaintiff and defendant and their father are residing in the house. The defendant has borrowed Rs. 1,000 from his father in connection of marriage of his daughter and at that time the father of the defendant had taken thumb- impression of the defendant on blank stamp paper, that the defendant paid off all the loan to his father and when demanded back, the blank stamp paper from his father he said that the paper was with the plaintiff Rishal Singh (father of the plaintiff and defendant) had two waves, the plaintiff is son of the second wife whereas the defendant is the son of first wife, as such, both of them are step brothers. The mother of the plaintiff is alive whereas the mother of the defendant is dead. 8. In the aforesaid background the trial court considered in detail, assessed the oral evidence of the parties and noticed the demeanour of the witnesses particularly of the plaintiff and recorded following findings in respect of the testimony of the plaintiff that the house in dispute was parti tioned and fell in the share of the defendant alone: ". . . . . . . . . . I have already pointed out above Niranjan Singh the partition of the ancestral house took place in his presence, but by the end of cross-examination he admitted that partition of the house did, not take place in his presence. The above con tradictions in the testimony of the Niranjan Singh also go to show that he is not a truthful witness. I am, therefore unable to place any reliance on the interest testimony of Nirajan Singh, PW 1" 9. The above con tradictions in the testimony of the Niranjan Singh also go to show that he is not a truthful witness. I am, therefore unable to place any reliance on the interest testimony of Nirajan Singh, PW 1" 9. Likewise on the issue as to whether the defendant has executed the agreement in favour of the plaintiff, the trial court again considered in detail the statement of the plaintiff and his witnesses and the circumstance that the stamp paper was not in the name of the plaintiff and recorded a finding, on the basis of the appraisal of evidence and noticing the demeanour of the witnesses, that the plaintiff has failed to prove that the alleged agreement was executed by the defendant and came to the conclusion that there is force in defendants case that some blank stamp papers were produced by his father before him on which his thumb-impressions were taken by his father at the time when the defendant took loan of Rs. 1,000. The appellate court has set aside the findings of the trial court without meeting the specific findings recorded by the trial court On the question of the parti tion of the house, the appellate court only records that though there at a contradictions in the statement of the plaintiff and his witnesses but since the partition took place 12-13 years back the contradictions are of no consequence. On the aforesaid basis the appellate court inferred that the plaintiff has proved that a family partition took place in which the house in question came exclusively in the share of the defendant. Likewise lower appellate court also laid stress on the weakness of the defendants case for believing the plaintiffs version. 10. Two substantial questions of law arise for consideration in the present second appeal are : (1) Whether the appellate court considering an issue turning on oral evidence, should set aside the finding of the trial court, without noticing any special feature of that testimony of the witnesses having escaped the notice of trial court ? (2) Whether a suit for specific performance is maintainable without complying with the provision Section 16 (C) read with Explana tion II of the Specific Relief Act ? 11. (2) Whether a suit for specific performance is maintainable without complying with the provision Section 16 (C) read with Explana tion II of the Specific Relief Act ? 11. I have carefully examined the findings of the appellate court and I am clearly of the view that the appellate court was justified in the present case in reversing the findings of the trial court which were based on assess ment of oral evidence, particularly noticing demeanour of the witnesses. 12. In Madhusdan Das v. Naryani Bai, AIR 1983 SC 114 , it has been held: "at this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony, when there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. " 13. In the present case no exceptional circumstance has been pointed out by the appellate court for dislodging the findings of fact recorded by the trial court on the basis of appraisal of oral testimony and on the basis of noticing the demeanour of the witness. The appellate court fell in error in upsecting the findings of the trial court on all the three issues referred to earlier. The appellate court erred in reversing the finding of the trial court based on oral testimony of witnesses without addressing itself to the principles enumerated by the Apex Court in Madhusudan Dass case (supra ). 14. The appellate court fell in error in upsecting the findings of the trial court on all the three issues referred to earlier. The appellate court erred in reversing the finding of the trial court based on oral testimony of witnesses without addressing itself to the principles enumerated by the Apex Court in Madhusudan Dass case (supra ). 14. The defendant has raised objection before the appellate court that the suit of the plaintiff was not maintainable for want of specific averment in the plaint as required under Section 16 (c) read with Explanation-II of the Specific Relief Act and the appellate court dismissed the defendants objection by observing that from the reading of the plaint it can be inferred that necessary averments of the plaintiff being ready and willing to perform the essential terms of the contract which are to be perform ed by him, were made in the plaint. 15. In Ouseph Varghese v. Josph Aley, 1969 (2) SCC 539 , the Supreme Court held : "the plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken into those pleas. As observed by this Court in Pt. Prem Rai v. The D. L. F. Housing and Construction (Private) (Ltd.), that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allengation the suit is not maintainable. " 16. I have myself perused the averments made in the plaint. " 16. I have myself perused the averments made in the plaint. There is no such avernment in the plaint complying with the provisions of Section I6 (c) and Explanation-II of the Specific Relief Act read with Form No. 47 and 48 Appendix a to C. P. C. , I am clearly of the view that the suit, as framed, was not maintainable and the appellate court clearly fell in error in rejecting the defendants objection raised in the first appeal. For both the aforesaid reasons, I am satisfied that the first appellate court has wrongly set aside the findings of the trial court on the question of facts based on the assessment of oral evidence and particularly noticing the demeanour of the witnesses and the appellate court wrongly rejected the defendants objection in the first appeal regarding maintainability of the suit for want of compliance of the provisions of Section 16 (c) of the Specific Relief Act. 17. Accordingly, I allow the appeal and set aside the judgment of the lower appellate court and restore that of the trial court. The appellant will be entitled to his costs throughout. Appeal allowed. .