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2000 DIGILAW 568 (RAJ)

Dhudi W/o Rupa Jat v. Nand Ram S/o Virama Ram Jat

2000-05-03

SUNIL KUMAR GARG

body2000
JUDGMENT 1. - This is a civil regular first appeal filed by the appellant- defendant No. 2 (hereinafter referred to as 'the defendant No. 2') against the judgment and decree dated 30.4.1985 passed by the learned District Judge, Balotra Camp Barmer, by which the suit for specific performance filed by the plaintiff- respondent No. I (hereinafter referred to as 'the plaintiff') against defendant No. 1-respondent No. 2 (hereinafter referred to as 'the defendant No. l') and defendant No. 2, was decreed and it was ordered by the Court that plaintiff would deposit Rs. 2,000/- as expenses for registry etc. within two months and, thereafter, both defendants No. 1 & 2 would get the sale deed registered in favour of the plaintiff in pursuance of agreement Ex. 1 and the possession of Khasra Nos. 32, 33 & 34 measuring 67 bighas 10 biswas would be delivered to the plaintiff. 2. This first appeal arises in the following circumstances:- The plaintiff-Nand Ram filed a suit for specific performance and permanent injunction against bath defendants in the Court of District Judge, Balotra on 28.8.1982 alleging that on 26.1.1981, the husband of defendant No. 1-deceased-Kheta (hereinafter referred to as 'the deceased') executed an agreement Ex. 1 in favour of the plaintiff, by which he agreed to sell Khasra No. 34 measuring 66 bighas 7 biswas and Khasras No. 32 & 33 for Rs. 12,000/- to the plaintiff and out of that Rs. 12,000/-, Rs. 10,000/- were taken by the deceased as advance and it was agreed that rest of the amount of Rs. 2,000/- will be paid by the plaintiff to deceased within six months and, thereafter, the registered sale deed would be executed but the possession of the land was given to the, plaintiff on the date of execution of agreement Ex. 1. The plaintiff requested two three times to deceased for making the registry, in pursuance of agreement Ex. 1, but it was not done by the deceased and after seven months from the date of execution of agreement Ex. 1, deceased died and after his death, defendant No. 1 became heir of the deceased and the plaintiff also requested defendant No. 1 for making the registry in favour of the plaintiff, in pursuance of agreement Ex. 1, but she also did not do so. 1, deceased died and after his death, defendant No. 1 became heir of the deceased and the plaintiff also requested defendant No. 1 for making the registry in favour of the plaintiff, in pursuance of agreement Ex. 1, but she also did not do so. It is further alleged that defendant No. 2 is the sister-in-law of defendant No. 1 and defendant No. 1 made a gift deed on 9.6.1982 and the land which was agreed to be sold by deceased to plaintiff was also given by defendant No. 1 to defendant No. 2 through the said gift deed and the same has been registered and since they were threatening the plaintiff to disposes him from the disputed land, therefore, he has filed this suit for permanent injunction and also with the prayer that the defendants be directed to get the sale deed registered in pursuance of agreement Ex. 1. The suit of the plaintiff was contested by the defendant No. 2 by filing a written statement in the lower Court on 15.7.1983 alleging : (i) That no agreement Ex. 1 was executed by deceased in favour of the plaintiff and the said agreement is a forged one; (ii) That the land in question is still in the possession of the defendant No. 2 and it was never given to the plaintiff and the case of the plaintiff that he is in possession of the disputed land is totally false one. (iii) That the plaintiff has never said either to defendant No. 1 or defendant No. 2 for getting the sale deed registered in his favour. (iv) That the defendant No. 1, who is the owner of the disputed land, has made a gift deed on 9.6.1982 in favour of the defendant No. 2 in respect of disputed land and since 9.6.1982, defendant No. 2 has been in possession of the disputed land. (v) That when the plaintiff is not in possession of the disputed land, no question of dispossessing him arises. (vi) That the stamp of agreement Ex. 1 was never purchased by deceased, but it was purchased by PW 3. Note:-That deceased is the nephew of PW 3 Harupa Ram. (vii) that though stamp was purchased on 8.1.1981, the agreement was executed on 26.1.1981. (viii)That agreement Ex. (vi) That the stamp of agreement Ex. 1 was never purchased by deceased, but it was purchased by PW 3. Note:-That deceased is the nephew of PW 3 Harupa Ram. (vii) that though stamp was purchased on 8.1.1981, the agreement was executed on 26.1.1981. (viii)That agreement Ex. 1 has been forged by PW 3 with the conspiracy of PW 2, PW 4, PW 5, PW 6 and others, inasmuch as, deceased filed a complaint under section 107 Cr.P.C. against PW 3 Harupa, Tulcha and Dungra on 8.9.1981 and defendant No. 1 also filed an application under section 97 Cr.P.C. about the search of her husband deceased against PW 3 and, thereafter, deceased was released from the custody of PW 3 etc. and apart from this, many litigations were going on between defendant No. 1 and PW 3 and others. Thus, it was prayed by the defendant No. 2 that the suit filed by the plaintiff be dismissed.On the pleadings of the parties, the learned District Judge on 24.5.1984 framed the following issues : " 1 D;k izfroknh ua0 1 ds LoxZoklh ifr us oS/k bdjkukek ckcr fooknxzLr Hkwfe fy[k dk oknh ls fnukad 26-1-1981 dks :i;s nl gtkj izkIr dj dCtk lqiqnZ dj cspku ckcr eqgkn;k eq0 12]000@& oknh ds gd esa fn;k\ 2 D;k izfroknh ua0 1 us izfroknh ua0 2 ds gd esa fooknxzLr Hkwfe ckcr ,d c['kh'k fu"ikfnr fd;k\ ;fn gkWa rks bldk okn ij D;k vlj gS\ 3 nknjlh\ " In the lower Court, six witnesses were examined by the plaintiff and six witnesses were also examined by the defendant No. 2. Though the proceedings remained ex-parte so far as the defendant No. 1 is concerned, but she has been examined in the lower Court as DW 6. Some documents were also got exhibited by the parties.The learned District Judge, Balotra Camp Barmer, after hearing both the parties decided issue No. 1 in the following terms:- That on 26.1.1981 agreement Ex. 1 was executed by deceased in favour of the plaintiff for Rs. 12,000/- and Rs. 10,000/- were received by deceased, but the possession as alleged by the plaintiff was not given by deceased to the plaintiff. On issue No. 2, the learned District Judge held that the gift deed Ex. 1 was executed by deceased in favour of the plaintiff for Rs. 12,000/- and Rs. 10,000/- were received by deceased, but the possession as alleged by the plaintiff was not given by deceased to the plaintiff. On issue No. 2, the learned District Judge held that the gift deed Ex. 2 would not help the defendants at all.Hence, the learned District Judge, Balotra Camp Barmer by his judgment and decree dated 30.4.1985 decreed the suit of the plaintiff against the defendants. Against the said judgment and decree dated 30.4.1985 passed by the learned District Judge, Balotra Camp Barmer, the defendant No. 2 has filed this first appeal in this Court. 3. The learned counsel for the appellant-defendant No. 2 has raised the following points in this first appeal:- (i) That the learned lower Court has erred in holding that agreement Ex. 1 was executed by deceased in favour of the plaintiff. (ii) That the witnesses of the defendants and their documents have not been discussed by the learned lower Court and, therefore, the findings recorded by the learned lower Court on issue No. 1 stand vitiated. (iii) That since the possession of the disputed land was found with the defendant No. 2, the whole case of the plaintiff stands disapproved and thus, the findings of the learned lower Court that agreement Ex. 1 was executed by deceased in favour of the plaintiff should be set aside, merely on this ground alone. 4. On the other hand, the learned counsel for the plaintiff-respondent No. 1 has supported the impugned judgment passed by the learned lower Court. 5. I have heard the learned counsel for both the parties. 6. Before proceeding further, it would be appropriate to see how the issue No. 1 is decided by the learned lower Court. 7. In this respect, para 7 of the judgment dated 30.4.1985 of the learned District Judge can be seen. 5. I have heard the learned counsel for both the parties. 6. Before proceeding further, it would be appropriate to see how the issue No. 1 is decided by the learned lower Court. 7. In this respect, para 7 of the judgment dated 30.4.1985 of the learned District Judge can be seen. In the beginning, the learned District Judge has narrated the story as given by the witnesses of the plaintiff and, thereafter, he has written the following lines : " tks dqN foi{k dh vksj ls lk{; vkbZ gS og bl izdkj gS fd [ksrk fcekj jgrk Fkk vkSj mls gLc cstk esa j[k dj mlls g:ik jke us igys jftLV~h djkbZ Fkh vkSj ckn esa uun jke us Hkh bdjkj djk;k gSA izfroknh x.k us g:ik jke ds fo:) dh xbZ dk;Zokgh dh dqN izekf.kr izfrfyfi;ka Hkh is'k dh gS ysfdu uUn jke [ksrk e`rd ls fcuk otg bdjkj fy[kok ysxk ,slk dksbZ Hkh lk{; izfroknhx.k dh vksj ls is'k ugha gqbZ gSA [ksrk ,oa izfroknhx.k ls uUn jke ,oa mlds xokgku dh dksbZ nq'euh Hkh ugha gSA " 8. From the above lines, it appears that so far as the evidence of defendants is concerned, it has been narrated in the above lines and nothing more and documentary evidence of defendants has not been discussed at all. 9. As already stated above, six witnesses have been examined by the defendants and they have not been discussed at all the the defendants have produced the following documents:- (1) Ex. A-1. It is a khewat khatoni, village Samu Chimanji, District Barmer, which shows that the disputed land has been entered in the name of defendant No. 2, as per the terms of registered gift deed Ex. 2. (2) Ex. A-2. It is a certified copy of the suit which was filed by defendant No. 1 against Dungra Ram, Tulcharam and Kheta Ram. (3) Ex. A-3. It is a certified copy of the order-sheet dated 13.8.1981 of the Court of S.D.M., Balotra passed in Criminal Case No. 17/81 between defendant No. 1 and Harupa (PW 3) and others. (4) Ex. A-4. It is a certified copy of the suit which was filed by defendant No. 1 against Dungra Ram, Tulcharam and Kheta Ram. (3) Ex. A-3. It is a certified copy of the order-sheet dated 13.8.1981 of the Court of S.D.M., Balotra passed in Criminal Case No. 17/81 between defendant No. 1 and Harupa (PW 3) and others. (4) Ex. A-4. It is a certified copy of the complaint filed on 13.8.1981 by defendant No. 1 against PW 3, on which a case No. 17/81 was registered under sections 97 & 98 Cr.P.C., in which it was prayed that deceased, who was in the custody of PW 3, be got released. (5) Ex. A-5. It is a report dated 30.5.1982 filed by PW 3 and on that report, a case under section 447 was registered with the Police Station Sindri. (6) Ex. A-6. It is the site plan which was prepared on the report (Ex. A-5) of PW 3. 10. Two facts are admitted in this case now (1) That the learned District Judge has held that when agreement Ex. 1 was executed by deceased in favour of the plaintiff, the possession as alleged by him was never given to the plaintiff and it remained with the deceased. (2) That gift deed Ex. 2 was executed by defendant No. 1 in favour of defendant No. 2 on 9.6.1982 and the possession of the land, which was mentioned in the agreement Ex. 1, has been given by defendant No. 1 to defendant No. 2 and for that mutation proceedings have already taken place in favour of defendant No. 2. 11. Thus, one part of agreement Ex. 1 dated 26.1.1981 that possession was given by deceased to plaintiff has not been found correct by the learned District Judge himself. 12. Now, the question that arises for consideration is whether deceased executed agreement Ex. 1 in favour of the plaintiff on 26.1.1981 after taking Rs. 10,000/- or not and whether he has put his thumb impression or not.Note.- That findings of the learned District Judge on issue No. 1 are being examined with respect to above point and not with respect to possession. 13. The burden to prove this agreement Ex. 1 lies on the plaintiff. In support of this, he has examined himself as PW 1 and has stated that deceased executed this agreement in his favour and scribe of this agreement Ex. 13. The burden to prove this agreement Ex. 1 lies on the plaintiff. In support of this, he has examined himself as PW 1 and has stated that deceased executed this agreement in his favour and scribe of this agreement Ex. 1 is PW 2 and Rs. 10,000/- were given by him to deceased and he has been put in possession of the land in dispute by deceased. In cross- examination, this witness has admitted the following facts:- 1. That the terms of the agreement Ex. 1 were settled one month prior to its execution. 2. That the stamps of agreement Ex. 1 were purchased by PW 3. 3. That deceased is the nephew of PW 3. 4. That stamps were purchased after one month of settlement. 5. That defendant No. 1 has made gift deed in favour of defendant No. 2 was known to him, but he did not take any step to cancel that gift deed. 6. That he did not give any notice either to defendant No. 1 or defendant No. 2 for getting the sale deed registered in his favour as per the terms of agreement Ex. 1. 7. He never asked defendant No. 2 for making registry in his favour in purchase of agreement Ex. 1. 8. That when Ex.1 agreement was executed by deceased in his favour, at that time besides him and deceased, PW 2, PW 3, PW 4, PW 5, PW 6 and others were also present. 9. That the agreement Ex. 1 was written in the Dhani of PW 3. 10. That he has a bank account in the Bank. 11. That he did not sign Ex. 1. 12. That whenever he reminded deceased for registry, PW 2 was with him. Statement of PW 2 14. PW 2 is the alleged scribe of agreement Ex. 1 and he has admitted the following facts in his cross-examination:- 1. That after execution of agreement Ex.1, he saw deceased only once. 2. That he did not know from where plaintiff has brought money. 3. That he did not know whether defendant No. 2 has been put in possession on 9.6.1982. 4. That he has written only one agreement Ex. 1 in his life. 5. That plaintiff is more educated than him and he did not know who brought the stamps. 6. That why agreement Ex. 3. That he did not know whether defendant No. 2 has been put in possession on 9.6.1982. 4. That he has written only one agreement Ex. 1 in his life. 5. That plaintiff is more educated than him and he did not know who brought the stamps. 6. That why agreement Ex. 1 was written in the Dhani of PW 3, he did not know. Statement of PW 3 15. PW 3 is the uncle of deceased, who stated in his statement that Ex. 1 agreement was got written by PW 2 and Rs. 10,000/- were given by plaintiff to deceased. In his cross-examination, he admitted the following facts : 1. That stamps for agreement Ex. 1 have been purchased by him one month prior to its execution i.e. 26.1.1981. 2. That in the stamps, the name of the purchaser is PW 3 not deceased. 3. That agreement Ex. 1 was executed on 26.1.1981 and the terms of the agreement were also settled on that day. He said again that terms of agreement were settled 15 days prior to its execution. 4. That he did not know whether any suit was filed by defendant No. 1 against him in the Court of SDM or not. It is true that he filed a criminal case against defendant No. 1 etc. etc. Note:- From the statement of PW 3 and Ex. A-2 to A-6, it appears that criminal as well as civil cases were being fought between PW 3 and defendant No. 1 in respect of land etc. and not only this even it appears that deceased was being confined by PW 3 and for that defendant No. 1 has to take the help of the Court and search warrant for release of the deceased was issued by the Court. These matters show how much rivalry was between PW 3 and defendant No. 1. In this background, the evidence of the plaintiff would be examined. 16. PW 4 is also a witness of agreement Ex. 1 and he admits the following facts in his cross-examination : 1. That the terms of the agreement Ex. 1 were not read over to him. 2. That when the agreement Ex. 1 was executed, the rate of land was 1,000/- per bighas. Note.- In this case, it appears that near about 61 bighas 10 biswas was agreed to be sold for Rs. 12,000/- only. 17. That the terms of the agreement Ex. 1 were not read over to him. 2. That when the agreement Ex. 1 was executed, the rate of land was 1,000/- per bighas. Note.- In this case, it appears that near about 61 bighas 10 biswas was agreed to be sold for Rs. 12,000/- only. 17. PW 5 also admits that the rate of land at the time of execution of agreement Ex. 1 was Rs. 1,000/- per bigha. 18. PW 6 is a witness, who was facing a murder case in the criminal Court. 19. In rebuttal, DW 1 Dhudi (defendant No. 2) has categorically stated that no such agreement Ex. 1 was ever executed by deceased in favour of the plaintiff and she has been put in possession through Ex. 2 gift deed and she has also proved her documents Ex. A-1 to A-6. 20. The other material witness on behalf of the defendants in DW 6 (defendant No. 1 and wife of deceased). She has categorically stated that she made a gift deed in favour of defendant No. 2 voluntarily and she was put in the possession of the disputed land and plaintiff has never approached her for making registry in his favour in pursuance of agreement Ex. 1. 21. Since the learned District Judge has not discussed the evidence of the defendants and their documents, the findings recorded by him on issue No.1 cannot be accepted. In this case, there is no dispute on the point that there is a rivalry between PW 3 and defendant No. 1. PW 3 is the uncle of deceased. Thus, he is a very close relative of deceased. The plaintiff No. 1 is the wife of deceased. Many civil and criminal cases are being fought by each one. In this background, when the stamps of agreement ex. 1 were purchased by PW 3 in his own name, a doubt has arisen by on the stamps purchased by PW 3, deceased would execute agreement in favour of the plaintiff. 22. The fact that plaintiff has never approached defendants No. 1 & 2 for making registry in his favour in pursuance of agreement Ex. 1, after the death of deceased, further goes to show that such type of agreement Ex. 1 was never in existence and the same has been forged later on. The plaintiff was also aware about the gift deed Ex. 1, after the death of deceased, further goes to show that such type of agreement Ex. 1 was never in existence and the same has been forged later on. The plaintiff was also aware about the gift deed Ex. 2 which was made by defendant No. 1 in favour of plaintiff No. 2 on 9.6.1982 and he has not taken any steps to cancel it. This fact also goes to show that no such agreement Ex. 1 was ever executed by deceased in favour of the plaintiff. 23. The important aspect in this case is the dispute about possession. The plaintiff and his witnesses have deposed in the witness box categorically that plaintiff was put in possession by deceased on 26.1.1981, the date of execution of agreement Ex. 1, but this fact is found totally false. When the basic aspect of the agreement Ex. 1 i.e. of possession goes away, it throw serious doubt on the execution of agreement Ex. 1 in the manner as alleged by the plaintiff and on the veracity of the statements of plaintiff and his witnesses. The circumstances which have been narrated above further go to show that agreement Ex. 1 was never executed by deceased in favour of the plaintiff and it was a result of the conspiracy hatched by PW 3. 24. To strengthen the above case, the following aspects could also be taken into consideration. 25. For granting relief of specific performance, the following settled principles should be kept in mind by the Court:- 1. That the contract in question must be certain, unambiguous and fair. 2. That there should be no gross carelessness on the part of the plaintiff, who is seeking relief of specific performance. 3. That if there is a possibility of multiplicity of suits, the decree of specific performance should be granted. 4. That the plaintiff should come with clean hands. 5. That if there is inadequacy of price, decree of specific performance should not be granted. 6. That the plaintiff should always be ready and willing to perform his part of the contract from the beginning upto the date of decree. 7. That there should be no laches on the part of the plaintiff. Some light on the point of readiness and willingness 26. 6. That the plaintiff should always be ready and willing to perform his part of the contract from the beginning upto the date of decree. 7. That there should be no laches on the part of the plaintiff. Some light on the point of readiness and willingness 26. It is the duty of the plaintiff to aver and prove that he was ready and willing to perform the essential terms of the contract. Before granting the specific performance, the Court has to see whether the plaintiff has complied with the conditions precedent laid down in Cl. (c) of Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act of 1963'), which is based on the maxim he who seeks equity must do equity. 27. Section 16(c) of the Act of 1963 provides that specific performance of a contract cannot be enforced in favour of a person, who fails to aver and prove that he was or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him other than terms, the performance of which has been prevented or arrived by the plaintiff. Not only this, the plaintiff has to prove his continuous readiness and willingness to perform his part of the contract from the date of the contract till the date of hearing. Readiness and willingness have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. The discretion to grant or decline the relief of specific performance is to be exercised not arbitrarily, but on sound judicial principles. The plaintiff's readiness and willingness must be in accordance with the terms and conditions of the contract. The plaintiff cannot add any additional terms for the performance of his part of the contract. If the real agreement is not what is alleged by the plaintiff and the readiness and willingness displayed was not in relation to the contract as interpreted by the Court, the plaintiff will not be entitled to any relief. 28. If we examine this point in the present case, the plaintiff was never found that he was ever ready and willing to perform his part of the contract. 28. If we examine this point in the present case, the plaintiff was never found that he was ever ready and willing to perform his part of the contract. The plaintiff had clearly admitted in his statement as PW 1 that he never approached defendant No. 2 (DW 1) and defendant No. 1 (DW 6) asking them for making registry in his favour. From the evidence available on record, it also appears that he gave no notice either to deceased or both defendants. Therefore, from the evidence of the plaintiff, it appears that there is absence of continuous readiness and willingness on the part of the plaintiff and actually as stated above, no agreement Ex. 1 was executed by deceased in favour of the plaintiff. Therefore, no question of readiness and willingness would arise, that is why, the evidence of plaintiff on this aspect is very shaky and the plaintiff has not been able to prove in this case that he has always been ready and willing to perform his part of the contract. From this point of view also, the case of the plaintiff stands nowhere. Not only this, both defendants have categorically denied and rebutted the evidence of the plaintiff on this aspect and furthermore, since no issue was framed by the learned lower Court on the point of readiness and willingness, therefore, the learned lower Court has further committed mistake in deciding this point without framing issues and in the column of relief. While in a suit for specific performance, it is the bounden duty of the plaintiff to aver and prove that he was ready and willing to perform his part of contract from the beginning. This important aspect of the matter was left as no issue was framed and in a cursory manner, it was decided in the relief column by the learned lower Court. 29. PW 4 and PW 5 in their statement have admitted that the price of the land was Rs. 1,000/- per bigha on the date of execution of agreement Ex. 1. This price appears to be inadequate and from this point of view also, there is a doubt on the agreement Ex. 1 whether it was executed by deceased in favour of the plaintiff. 30. 1,000/- per bigha on the date of execution of agreement Ex. 1. This price appears to be inadequate and from this point of view also, there is a doubt on the agreement Ex. 1 whether it was executed by deceased in favour of the plaintiff. 30. In a suit for specific performance, the plaintiff must come with clean hands and in the present case, the plaintiff has not come with clean hands and he and his witnesses are giving false evidence on the point of possession stating that deceased put plaintiff in possession of the disputed land on the date of execution of agreement Ex. 1, though this fact is found otherwise and thus, it can be easily held that plaintiff has not come with clean hands in this case and the statements of plaintiff and his witnesses become unreliable. 31. From the above discussion, it appears that the learned District Judge has wrongly decided issue No. 1 in favour of the plaintiff. The findings recorded by the learned District Judge on this issue No. 1 are perverse as they are not based on appreciation of evidence of both sides critically and analytically and, therefore, the same are set aside and it is decided that agreement Ex. 1 was never executed by deceased in favour of the plaintiff nor Rs. 10,000/- were paid by the plaintiff to deceased. Hence, the issue No. 1 is decided against the plaintiff and in favour of the defendants. 32. The decision relied on by the learned counsel for the plaintiff in Babu Lal v. M/s. Hazari Lal Kishori Lal & Ors., (1982) 1 SCC 525 could not be helpful to the plaintiff, inasmuch as, issue No. 1 is now totally decided against the plaintiff. 33. Similarly, the decision relied on by the learned counsel for the plaintiff in Syed Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337 is also not helpful to the plaintiff, inasmuch as, the case of the plaintiff on issue No. 1 is decided not only on one point i.e. readiness and willingness, but also many other factors, which have led to the conclusion that no agreement Ex. 1 was ever executed by deceased in favour of the plaintiff. 34. 1 was ever executed by deceased in favour of the plaintiff. 34. In view of the findings on issue No. 1 against the plaintiff, this first appeal should be allowed, the judgment and decree dated 30.4.1985 passed by the learned District Judge, Balotra Camp Barmer should be set aside and the suit of the plaintiff- respondent No. 1 should be dismissed.Hence, this first appeal of the appellant-defendant No. 2 is allowed, judgment and decree dated 30.4.1985 passed by the learned District Judge, Balotra Camp Barmer are set aside and the suit filed by the plaintiff-respondent No. 1 against the defendants is dismissed. No order as to costs.First appeal allowed. *******