Ruda Ram S/o Harjee Ram v. Mehar Singh S/o Jeewan Singh — 1996 DIGILAW 218 (RAJ)

Honble JAIN, J.–The defendant has filed this Special Appeal against the judgment of learned Single Judge dated 23.11.1983 passed in Civil First Appeal No. 7/1972 whereby the appeal filed by the appellant was dismissed and the judgment and decree dated 9.9.1971 passed by learned Addl. District Judge, No. 2, Sriganganagar was confirmed. The facts relevant for the disposal of this appeal lie in a narrow compass and may be summarized as under. (2). The defendant-appellant was allotted 22 bighas of land in Chack No. 6 JRK on 12.8.1966 by the Senior Settlement Officer, Ministry of Re-habilitation, Government of India, Sriganganagar. Since full payment of instalments was not made, `sanad was not granted to the defendant-appellant. When he entered into an agreement with the plaintiff-respondent for the sale of above land for a consideration of Rs. 28600/- at the time of execution of the agreement the defendant-appellant obtained a sum of Rs. 16000/- from the plaintiff as part of sale consideration and the plaintiff-respondent was put into possession of the aforesaid land by the defendant-appellant. The defendant-appellant agreed that by 15th July, 1967 he would deposit the balance of the amount of instalment in the Settlement Department of Government of India and after obtaining `sanad he will execute the sale- deed in favour of the plaintiff-respondent. The defendant- appellant further agreed to pay a sum of Rs 32000/- in case of breach of contract on his part. (3). The plaintiff-respondent averred before learned trial Judge in his suit for specific performance of contract that he was always ready and willing to perform his part of the contract but the defendant refused to perform his obligation under the above contract. The plaintiff, therefore, filed the suit claiming relief of specific performance of the contract. Averments in respect of improvement of the land were also made by the plaintiff. (4). The defendant-appellant contested the suit and pleaded that he was not the only allottee of the land in question and the land was allotted to other members of his family as well. Hence, the contract was not enfor- ceable against him as other members of the family are not bound by the aforesaid contract .The defendant also denied receipt of Rs. 16000/- as part payment for sale consideration. Hence, the contract was not enfor- ceable against him as other members of the family are not bound by the aforesaid contract .The defendant also denied receipt of Rs. 16000/- as part payment for sale consideration. The defendant also resisted the suit of the plaintiff on the ground that till `sanad was not granted to him, the above contract cannot be specifically performed. The defendant further pleaded that since the above contract contains the specific amount of liquidated damages in case defendant fails to perform the contract, the plaintiff can only claim damages as mentioned in the contract. (5). On the pleadings of the parties, following issues were framed by learned trial court : ``1) Whether the defendant did not receive a sum of Rs. 21000/- against the sale price of the land in question? 2) Whether the Government of India and the Rajasthan Government are necessary parties to the suit as the land in question is comprised in compensation pool? 3) Whether the land in question was allotted to the defendant and his family members jointly hence the defendant was not authorised to sell the above land? 4) Whether the plaintiff is entitled to a decree for specific per- formance? 5) Relief? (6). The defendant produced himself as DW1 and Bachchu Ram as DW2 in his evidence. The plaintiff examined himself as PW 1. (7). The trial court decided issue No. 1 against the defendant and in favour of the plaintiff by holding that a sum of Rs. 21000/- was paid by the plaintiff to the defendant towards sale price of the land in question. Issue No.2 was held against the defendant. Under issue No.3, the learned Addl. District Judge held that the land in question was allotted to the defendant only and not jointly to the defendant and his family members hence the agreement between the plaintiff and defendant was valid and enforceable. Issue No.4 was also decided in favour of the plaintiff and learned Addl. District Judge found that the relief of specific performance of the agreement can be given to the plaintiff in the facts and circumstances of the case. Issue No.4 was also decided in favour of the plaintiff and learned Addl. District Judge found that the relief of specific performance of the agreement can be given to the plaintiff in the facts and circumstances of the case. The suit of the plaintiff, therefore, was decreed and the defendant was directed to execute the sale-deed in favour of the plaintiff within three months after obtaining `sanad on payment of remaining instalments and the plaintiff was directed to pay the remaining amount of sale consideration being Rs. 7600/- to the defendant. In the alternative, it was also ordered that in case `sanad was not granted to the defendant, the plaintiff will be entitled to refund of Rs. 21000/- from the defendant provided he hands-over possession of the land in question back to the defendant. (8). Being dis-satisfied with the above judgment and decree, the defendant preferred appeal before a learned Single Judge of this Court which was decided on November 23, 1983. (9). Before the learned Single Judge, it was urged that the land was allotted by the Rehabilitation Department to the defendant for maintenance of his family on instalment basis. The defendant and his family members had come to India as refugees from West Pakistan. As the land was allotted to the family, every member of the family was having right, title and interest in the property and the defendant alone was not competent to dispose of the same to the plaintiff. The above submission was rejected by the learned Single Judge relying on decision in the case of Deena Nath vs. Chunni Lal (1), on the ground that as per the allotment order Ex.2 the land in question was allotted to the defendant alone. The defendant was, therefore, estopped from pleading that he was not the only allottee but his family members were also other allottees. (10). The second contention made before the learned Single Judge was that the plot was allotted subject to payment of instalments. The defendant has not paid all the instalments and, therefore, `sanad has not been issued to him. In the absence thereof, the land in question can not be said to be transferable. This contention was also found devoid of force. (11). The defendant has not paid all the instalments and, therefore, `sanad has not been issued to him. In the absence thereof, the land in question can not be said to be transferable. This contention was also found devoid of force. (11). In the third place, the learned counsel submitted that since the agreement in question contains a clause of payment of liquidated damages in case the defendant commits breach of the contract. Hence, in case it is held that the defendant has committed any breach of the contract the plaintiff can be awarded damages as mentioned in the agreement. This argument was also found without any substance. It was observed that the insertion of the clause of liquidated damages was only to ensure due performance of the contract. The appeal was, therefore, dismissed. (12). We have heard learned counsel for the appellant as well as learned counsel appearing on behalf of respondent. (13). Learned counsel for the appellant, in the first instance, submitted that the defendant-appellant moved an application under Order VI rule 17, CPC seeking amendment to the effect that the defendant is a `sansi and this fact has also been mentioned in the document Ex. A2 and hence, under Sec. 42 of the Rajasthan Tenancy Act, 1955 the suit could not have been based on the agreement Exhibits 1 and 2. The learned Single Judge dismissed the application of the defendants merely on the ground that it was belated. The above amendment was absolutely necessary to determine the real controversy between the parties and the learned Judge ought not to have dismissed that application. (14). Learned counsel for the respondent submitted that in the reply to the above application the respondent stated several facts which conclusively showed that the word ``sansi mentioned in the above document was only incidental and the appellant is a ``bhat and he has mentioned this caste in several documents filed before courts. In the written statement, the appellant stated that he was ``bhat. Same statement was made by the appellant when he was examined in the suit before the learned trial court. Similarly, in the memo of appeal filed before the learned Single Judge, the appellant stated himself to be ``bhat by caste. Similar is the case with regard to mention of the appellants caste in Exhibits 1 and 2. In the `Jamabandi Ex. Similarly, in the memo of appeal filed before the learned Single Judge, the appellant stated himself to be ``bhat by caste. Similar is the case with regard to mention of the appellants caste in Exhibits 1 and 2. In the `Jamabandi Ex. 3 also, the appellant has been shown to be ``bhat by caste. Hence, the amendment sought by the appellant was factually un- founded and the learned Single Judge was perfectly justified in rejecting the above application. (15). In the memo of this Special Appeal, the appellant has raised this plea under ground (a). (16). We have considered the submission of learned counsel on the point and we find ourself in agreement with the learned Single Judge. From the reply filed by the respondent, it is clear that he incorporated several pleas which also borne out from the record of this-appeal that the appellant has always been writing ``bhat to be his caste. Mere mention in the above documents (Ex.1 and 2) the word ``sansi as his caste cannot be used to accept the caste of the appellant to be ``sansi; overlooking all those documentary evidence on record. The amendment application moved by the appellant was, therefore, without any substance and furthermore, it was filed with inordinate delay. (17). Learned counsel for the appellant, in the second place, while arguing findings on issue No.3 submitted that the land in question was allotted to the defendant and his family members jointly and Ex. A2 may be perused for verification. The defendant-appellant was, therefore, not competent to dispose of the land in question to the plaintiff without consent of other members of his family. Learned counsel for the respondent-plaintiff submitted that even a perusal of Ex. A 2 would show that the allottee is appellant only. The members of his family have been mentioned incidentally and the appellant is the only allottee. Furthermore, he submitted that in the agreement executed by the defendant-appellant, he has clearly stated that the land belong to him. (18). There is a concurrent findings of the trial court and the learned Single Judge of this Court regarding this fact. We have considered the arguments and we find no force in this contention. The allottee is the defendant-appellant. Furthermore, he submitted that in the agreement executed by the defendant-appellant, he has clearly stated that the land belong to him. (18). There is a concurrent findings of the trial court and the learned Single Judge of this Court regarding this fact. We have considered the arguments and we find no force in this contention. The allottee is the defendant-appellant. It was a ``non-claimants allotment meaning thereby that the above land was not allotted to the appellant-defendant on account of his migration to India from West Pakistan as a result of partition of the Country. The names of members of family of the appellant have, of course, been mentioned in Ex.A2 but the allotment is only in favour of the defendant. In the agreement also the defendant-appellant represented unambiguously that the above land was of his exclusive ownership. (19). To further enlighten in this connection, we may refer to decision rendered in Deena Nath vs. Chunni Lal (supra), wherein the vendor took plea that the land being ancestral, the agreement made by him was void because of reluctance of his wife and son to effect the sale. In that case it was held that the vendor cannot be allowed to plead want of title. In an another case-Smt. Chand Rani Mehra vs. Om Shankar Mehra (2), the vendor made a representation that he was owner of the property under sale. Later on a plea was raised by the vendor that the property belongs to Hindu Undivided Family. In that case also the vendor was estopped from raising plea of want of title. (20). Lastly, it was very vehemently argued by learned counsel for the defendant-appellant before the learned Single Judge as well as before us that the learned trial court committed a grave error in decreeing the suit of the plaintiff for specific performance. He referred to the agreement and sub- mitted that it was specifically stated in the agreement that in case the defendant fails to carry out his obligations under the contract he would be liable to pay liquidated damages, to the tune of Rs. 21000/-. Hence, even if it is held that the defendant-appellant backed out from the agreement, the plaintiff-respondent could be awarded the amount of liquidated damages as mentioned in the agreement itself. 21000/-. Hence, even if it is held that the defendant-appellant backed out from the agreement, the plaintiff-respondent could be awarded the amount of liquidated damages as mentioned in the agreement itself. It was the intention of the parties that in case any breach was committed by the defendant, the plaintiff will be entitled to damages and the quantum of damages has also been mentioned in the agreement. (21). Learned counsel for the respondent-plaintiff defended the relief awarded in his favour by the learned trial court as well as by the learned Single Judge and contended that where the contract itself contains a stipulation that in the event of non- performance of obligations under the contract by either of parties to the contract a certain sum of money has to be paid. That fact in itself is not decisive while considering whether or not relief of specific performance should be granted. Normally, parties agreeing to sale of property, a sum as damages is named in the agreement to sale, only for the purpose of secring the performance of the contract and not for the purpose of compensating the party suffering from default. An option to pay money in lieu of specific performance of the agreement. Hence, for as- certaining the real intention of the parties regard must be held to the terms of the contract and other attending circumstances. (22). In the instant case, the intention of the parties is eloquently expressed by the fact that simultaneously with the execution of agreement to sell the property, the defendant-appellant put the respondent-plaintiff in possession of the property and the property in question still continues to be in possession of the plaintiff. The factum of possession in a contract of sale of immovable property constitutes a very important fact for ascertaining the intention of parties to the agreement. The argument of learned counsel, therefore, is that the mention of a sum of money as damages in case of breach of contract is not determinative of the relief which a party can claim on account of such breach under the agreement. This is provided under Sec. 23 of the Specific Reliefs Act. He has placed reliance on a Division Bench decision of this Court in Kripal Singh vs. Mst. Kartara and Ors. (3). This is provided under Sec. 23 of the Specific Reliefs Act. He has placed reliance on a Division Bench decision of this Court in Kripal Singh vs. Mst. Kartara and Ors. (3). He also referred to Explanation under Sec. 10(b) of the Specific Reliefs Act which provides that unless and until the contrary is proved, the court shall presume that the breach of contract of transfer of immovable property can- not be adequately be relieved by compensation in terms of money. He, therefore, submitted that the appeal has got no force and may be dismissed. (23). We have thoughtfully considered the arguments and carefully perused the provisions contained in Sections 10 and 23 of the Specific Reliefs Act. Under the heading ``Contract which can be specifically enforced; Explanation to Sec. 10(b) provides that unless and until contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adeqately relieved by compensation in money. Section 23 provides that a contract, of immovable property otherwise to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the same was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance. (24). Thus, Sec. 23 contains a comprehensive statement of the principles on which the presence of a term in the contract specifying a sum of money to be paid for a breach of contract has to be construed. It is also clear that where the contract contains a stipulation that in the event of non-performance a certain sum of money shall be paid, that fact is not itself decisive in considering whether or not specific performance should be granted. It also appears that in some contracts there is a stipulation to pay a certain sum of money in the event of default in performance. The general rule is that if a thing being agreed upon to be done, though there is a penalty annexed to secure its performance, yet the very thing itself must be done. It also appears that in some contracts there is a stipulation to pay a certain sum of money in the event of default in performance. The general rule is that if a thing being agreed upon to be done, though there is a penalty annexed to secure its performance, yet the very thing itself must be done. Normally, such a stipulation is inserted in order to emphasize the execution or due performance of the contract. Merely that there is such an stipulation, the party committing default cannot exercise option of paying the penalty and avoiding specific performance of the contract. That is the reason that the Legislature in Sec. 23 of the Specific Reliefs Act cast a duty on the court to interpret the intention of the parties and for that, to evaluate the terms of the contract and other circumstances present in the case. If we examine the terms of the contract before us, the most important fact to be borne in mind is that alongwith execution of the contract the defendant-appellant accepted part-payment of the sale price and also delivered possession of the land under sale. Delivery of possession in pursuance of agreement to sale is a very important fact underlying the intention of the parties to the contract. We can, therefore, say that the intention of the defendant was to execute the sale-deed in favour of the plaintiff after obtaining `sanad. It appears to us that if the `sanad would have been granted to the defendant-appellant, he would have got the sale-deed registered then and there. The specific performance was, therefore, not possible till the defendant paid remaining instalments to the Re-habilitation Department and obtained `sanad. In other words, only for want of `sanad the defendant-appellant could not have executed the sale- deed and got it registered. In such a case, possession is a very important ingredient and if the defendant parted with the possession in pursuance of the above agreement to sale, there is nothing to doubt that the intention of the defendant-appellant was to sell the property. Hence, we hold that as per the terms of the contract and the attending circumstances, the defendant intended to sell the property, there is a concurrent finding that the plaintiff has been ready and willing to per- form his part of the contract. A notice was issued by him to the defendant in this connection. Hence, we hold that as per the terms of the contract and the attending circumstances, the defendant intended to sell the property, there is a concurrent finding that the plaintiff has been ready and willing to per- form his part of the contract. A notice was issued by him to the defendant in this connection. The plaintiff even contacted the Sub-Registrar for the purpose of registration. All these facts were noticed by the learned Single Judge and the finding was recorded that the plaintiff was always willing and ready to perform his part of the contract. Hence, the defaulting party in res- pect of the above agreement was the defendant-appellant. Thus, the learned trial court as well as learned Single Judge committed no error in decreeing the suit of the plaintiff for specific performance of the contract. (25). We have gained strength in arriving at this conclusion from decision in Kirpal Singhs case (supra)-a Division Bench decision of this Court, where- in similar circumstances the Division Bench observed : ``Having regard to the terms of the contract Ex.1 and other attending circumstances, we are satisfied that the sum was named in the contract as the amount to be paid in case of its breach only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance. In this view of the matter we have no alternative but to set aside the findings of the learned Single Judge on the question of alternative obligation. (26). For the above reasons, we are disposed to hold that the parties intended for the specific performance of the contract and the mention of the stipulation to pay a fixed sum of money as liquidated damages was only inserted for emphasizing the performance of the contract. There is no force in this appeal and the same is hereby dismissed.