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2001 DIGILAW 825 (PNJ)

Amarjit Singh v. Bhag Singh

2001-08-08

M.L.SINGHAL

body2001
JUDGMENT M.L. Singhal, J. - Vide order dated 18.4.1994 Subordinate Judge Ist Class, Barnala decreed the plaintiffs suit for possession through specific performance of the agreement 19.2.1988 against Shinder Singh (since deceased) now represented by his widow Smt. Mukhtiar Kaur and children Jagsir Singh and Paul Kaur, Jagjit Singh and Karamjit Singh and Amarjit Singh and Paramjit Singh, defendants on payment of the balance sale money and also for permanent injunction restraining them from alienating the land in suit i.e. 1/2 share of land measuring 56 kanals 10 marlas to any body else. Facts 2-3. Bhag Singh filed suit for possession through specific performance against Shinder Singh (dead) now represented by his LRs Mukhtiar Kaur and others qua half share of land measuring 56 kanals 10 marlas, as detailed in the head note of the plaint and for permanent injunction restraining them from alienating the land in suit in any manner whatever. It is alleged in the plaint that on 19.2.1988, Shinder Singh executed an agreement to sell 1/2 share of land measuring 56 kanals 10 marlas as detailed in the heading of the plaint to him at the rate of Rs. 30,000/- per killa. At the time of execution of the agreement to sell dated 19.2.1988 a sum of Rs. 10,000/- was paid as earnest money to Shinder Singh. Shinder Singh undertook to execute sale deed in favour of then plaintiff on or before 30.6.1988. Expenses of stamp and registration were to be borne by him (Bhag Singh). Agreement to sell was thumb marked by Shinder Singh. It was attested by Bhag Singh and Zora Singh as witnesses. It is alleged in the plaint that he has always been ready and willing to pay the remaining sale money to Shinder Singh and obtain sale deed from him. On 30.6.1988 he went to the office of the Sub-Registrar with money ready with him including the one which was required for meeting the expenses of stamp and registration. He waited for Shinder Singh upto 5.00 PM. Shinder Singh, however, did not turn up. At last, he made application to the Sub-Registrar for getting his presence marked. That application was entered at Sr. No. 235. 4. Shinder Singh (since deceased) now represented by Smt. Mukhtiar Kaur etc. contested the suit of the plaintiff. It was admitted that the had executed agreement dated 19.2.1988 in favour of Bhag Singh. At last, he made application to the Sub-Registrar for getting his presence marked. That application was entered at Sr. No. 235. 4. Shinder Singh (since deceased) now represented by Smt. Mukhtiar Kaur etc. contested the suit of the plaintiff. It was admitted that the had executed agreement dated 19.2.1988 in favour of Bhag Singh. It was also admitted that he had received Rs. 10,000/- as earnest money. It was, however, denied that on 30.6.1988, plaintiff came present in the office of Sub-Registrar. On 30.6.1988, he appeared before the Sub-Registrar but plaintiff did not turn up. As such, earnest money paid by him stood forfeited. He had been asking the plaintiff time and again to pay him the remaining sale money and obtain sale deed from him and when he failed, he sold the land to Amarjit Singh and Paramjit Singh-defendants. 5. Amarjit Singh and Paramjit Singh-defendants No. 6 and 7 contested the suit of the plaintiff. It was urged that they are bona fide purchasers for valuable consideration without notice of the agreement to sell dated 19.2.1988. They are protected by the provisions of Section 41 of the Transfer of Property Act. It was denied that Shinder Singh executed any agreement to sell dated 19.2.1988 in favour of Bhag Singh. It was denied that he received any amount of Rs. 10,000/- by way of earnest money. It was also denied that Bhag Singh was ready and willing to pay the remaining sale money to Shinder Singh and Shinder Singh prevaricated and ran away. It was urged that they had been cultivating this land as tenants and as such this land was sold to them by Shinder Singh. 6. On the pleadings of the parties, the following issues were framed : 1. Whether defendant Shinder Singh had executed sale agreement dated 19.2.1988 in favour of the plaintiff ? OPP 2. Whether the plaintiff has been ready and willing to perform his part of the contract ? OPP 3. Whether the plaintiff is entitled to injunction prayed for ? OPP 4. Whether the plaintiff has no locus standi to file the suit ? OPD 5. Whether the suit is not within limitation ? OPD 6. Whether the plaintiff is entitled to seek specific performance of sale agreement ? OPD 7. Whether the agreement in dispute is invalid as alleged in the written statement, if so its effect ? OPD 8. Whether the plaintiff has no locus standi to file the suit ? OPD 5. Whether the suit is not within limitation ? OPD 6. Whether the plaintiff is entitled to seek specific performance of sale agreement ? OPD 7. Whether the agreement in dispute is invalid as alleged in the written statement, if so its effect ? OPD 8. Whether the defendants No. 6 and 7 are bona fide purchasers for consideration without notice ? If so, its effect ? OPD 9. Relief. 7. Vide order dated 18.4.1994 Subordinate Judge Ist Class, Barnala decreed the plaintiffs suit for possession through specific performance of the agreement dated 19.2.1988 against Shinder Singh (since deceased) now represented by his widow Smt. Mukhtiar Kaur and children Jagsir Singh, Paul Kaur, Jagjit Singh and Karamjit Singh, and Amarjit Singh and Paramjit Singh- defendants on payment of the balance sale money to them and also for permanent injunction restraining them from alienating the land in suit to any body else, in view of his finding, that Shinder Singh had executed agreement to sell dated 19.2.1988 in favour of Bhag Singh with regard to 1/2 share of land measuring 56 kanals 10 marlas at the rate of Rs. 30,000/- per killa. It was found that he received Rs. 10,000/- as earnest money. It was also found that the plaintiff had been ready and willing to obtain sale deed and pay the remaining sale money to him. It was found that he appeared before the Sub- Registrar on 30.6.1988 and made application Ex.P-2 whereby he expressed his readiness and willingness to obtain sale deed from Shinder Singh and to pay him the remaining sale money. It was found that it was Shinder Singh who prevaricated and ran away and did not perform his part of the agreement which was the receiving of the balance sale money and the execution of the sale deed. It was found that the plea that they are bona fide purchasers for valuable consideration without notice of agreement could not be available to Amarjit Singh and Paramjit Singh as they purchased the land on 28.6.1990 while suit had been filed in Court on 23.6.1990 and sale in their favour was hit by the doctrine of lis-pendens embodied in Section 52 of the Transfer of Property Act. The plaintiffs suit was found to be within time as the sale deed was to be executed till 30.6.1988 while suit was filed on 23.6.1990 i.e. within three years of the date of refusal to execute the sale deed. 8. LRs of Shinder Singh and Amarjit Singh and Paramjit Singh defendants No. 6 and 7 filed appeal which was dismissed by Additional District Judge, Barnala vide order dated 1.2.2000. 9. Still not satisfied, Amarjit Singh and Paramjit Singh-defendants No. 6 and 7 have come up in further appeal to this Court. 10. I have heard learned counsel for the parties and have gone through the record. 11. It was submitted by the learned counsel for the appellants that agreement Ex.P-1 is vague inasmuch as it was not signed or thumb marked by Maghar Singh whereas the agreement reads as, "we Shinder Singh and Maghar Singh sons of Jangir Singh resident of village Thikriwala, Tehsil Barnala require money for meeting our domestic requirement. As such, we agree to sell our land measuring 56 kanals 10 marlas and receive Rs. 10,000/- as earnest money." It was submitted that it was thumb marked by Shinder Singh and was not thumb-marked by Maghar Singh. It was submitted that this agreement should not be enforced at all as through this agreement earnest money was received by Shinder Singh and Maghar Singh. 12. Suffice it to say, agreement Ex.P-1 could be enforced qua 1/2 share of land measuring 56 kanals 10 marlas pertaining to Shinder Singh. In the agreement it is recited that land would be sold at the rate of Rs. 30,000/- per kila. There is thus no vagueness so far as agreement Ex.P-1 is concerned. It could be conveniently bifurcated into two parts. It could be taken to have been executed by Shinder Singh qua 1/2 share of land measuring 56 kanals 10 marlas on receipt of Rs. 5,000/- as earnest money. Why could not agreement Ex.P-1 be not bifurcated when it could be conveniently bifurcated and allowed to operate qua the share of Shinder Singh qua which this agreement was quite enforceable. Where a contract consists of two parts, the part which is enforceable and the part which is not enforceable, it should be allowed to operate qua that part qua which it can operate. Where a contract consists of two parts, the part which is enforceable and the part which is not enforceable, it should be allowed to operate qua that part qua which it can operate. In this case, it is as if Maghar Singh did not execute this agreement at all in favour of Bhag Singh and this agreement was executed only by Shinder Singh. 13. There is ample evidence that agreement Ex.P-1 was executed by Shinder Singh. Plaintiff has stated that he was ready and willing to obtain sale deed from Shinder Singh and pay him the balance sale money. He stated that on 30.6.1988, he appeared before the Sub-Registrar with the money required to be paid to Shinder Singh and the money required for meeting the expenses of stamp and registration. On 30.6.1998, he went to the office of Sub-Registar, and remained there till 5.00 PM and waited for Shinder Singh but he did not turn up. Eventually, he made application Ex.P-2 before the Sub-Registrar who made endorsement Ex.P-3. Shinder Singh DW-2 stated that he approached the plaintiff alongwith his relation Nachhattar Singh and requested him to obtain sale deed from him and pay him the remaining sale consideration and the plaintiff replied that he had no money with him. It was about 15.6.1988. It was when the plaintiff expressed his in-capacity to purchase the land that after two years, he sold this land to Amarjit Singh and Shinder Singh. He stated that the had to sell the land to them at a cheaper rate vis-a-vis the rate at which it had been agreed to be sold to Bhag Singh. He stated that he had to sell the land at cheaper rate because he was owing money to the bank and bank had filed suit against him and the bank had got warrant of attachment of the said land. 14. Amarjit Singh and Paramjit Singh could not be viewed as bona fide purchasers for valuable consideration without notice of this agreement Ex.P-1 as they purchased this land during the pendency of the suit on 28.6.1990 i.e. during the pendency of the suit. They must take the property subject to the result of this "lis" in view of the principle enshrined in Section 52 of the Transfer of Property Act. 15. They must take the property subject to the result of this "lis" in view of the principle enshrined in Section 52 of the Transfer of Property Act. 15. It was submitted that if Bhag Singh wanted specific performance of 1/2 share of land measuring 56 kanals 10 marlas, he should have been ready and willing to pay the price for the entire land measuring 56 kanals 10 marlas and he should have averred this fact in the plaint and also further that he would not claim any damages with regard to the part un-performed. 16. Suffice it to say, no weight can be given to this submission as this agreement was executed only by Shinder Singh. Shinder Singh could agree to sell only his own share. He could not bind his brother Maghar Singh by means of this agreement. It cannot, therefore, be said that he could have 1/2 share of the land on payment of the price settled for the entire land measuring 56 kanals 10 marlas and that too if he had averred that he would be satisfied if his claim is accepted with regard to 1/2 share of land measuring 56 kanals 10 marlas on payment of the price for entire land measuring 56 kanals 10 marlas and he would not claim any damages with regard to 1/2 share, which is going un-performed as it is misnomer to say that this agreement was executed by Shinder Singh and Maghar Singh both. In fact this agreement was executed by Shinder Singh only. Maghar Singh did not figure on this agreement. If he had agreed to execute this agreement, he would have signed or thumb marked this agreement. 17. It was further submitted that the plaint is not in accord with the requirement of Forms 47 and 48 as given in schedule appended to the CPC we have to go through the plaint and comprehend its essence. If we go through the plaint and comprehend its essence, it would emerge that he had clearly averred that on 30.6.1988, he went to the office of Sub-Registrar with the money ready for payment to the vendee and also the money required for meeting the expenses of stamp and registration. He waited for Shinder Singh up to 5.00 PM and when he did not turn up, he made application to the Sub-Registrar on which he put his endorsement. He waited for Shinder Singh up to 5.00 PM and when he did not turn up, he made application to the Sub-Registrar on which he put his endorsement. This shows that he was ready and willing to perform his part of agreement. If Shinder Singh had been ready and willing to perform his part of agreement, he could also reach the office of Sub-Registrar on 30.6.1988 for executing sale deed in favour of Bhag Singh. He did not do so which shows that there was lack of readiness and willingness in Shinder Singh. 18. It was submitted by the learned counsel for the appellants that the grant of relief of specific performance is in the discretion of the Court. Court should have granted decree for damages to Bhag Singh. It should not have granted decree for specific performance when he himself had claimed decree for damages in the alternative. In support of this submission, he drew my attention to Kanshi Ram v. Om Parkash Jawal and Others, JT 1996(4) SC 733 where it was held that the grant of decree of specific performance is discretionary and to be exercised on sound principles. Rise in prices of property during the pendency of suit is not the sole consideration for refusing to grant the decree. In view of the fact that the respondent himself had claimed alternative relief for damages, the courts would have been well justified in granting alternative decree for damages, instead of ordering specific performance which would be unrealistic and unfair. The decree for specific performance was inequitable and unjust to the appellant. 19. In JT 1996(4) SC 733 (supra) appellant was ordered to pay Rs. 10 lacs as alternative relief though respondents had only claimed Rs. 12,000/-. Honble Supreme Court held that instead of granting specific performance as inequitable and unfair, alternative relief should be allowed. Honble Supreme Court awarded Rs. 10 lacs to the respondents. Agreement was dated 7.4.1969 on the basis of which specific performance was being claimed and the matter reached the Supreme Court in 1996. Suit for specific performance was filed on 13.7.1970. 20. Honble Supreme Court awarded Rs. 10 lacs to the respondents. Agreement was dated 7.4.1969 on the basis of which specific performance was being claimed and the matter reached the Supreme Court in 1996. Suit for specific performance was filed on 13.7.1970. 20. In Ram Awadh (dead) by LRs and Others v. Achhaibar Dubey and another, JT 2000(1) SC 535 the Honble Supreme Court held that a court may not grant to a plaintiff, who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. 21. In Gurdev Singh v. Nand Singh, AIR 1986 P&H 334 it was held that a decree for specific performance can be ordered for lesser share of the property than agreed upon to be sold subject to the fulfilment of the conditions enumerated in Section 12. Section 12 of the Act envisages passing of the decree for specific performance of a part of contract in the event of the satisfying of the pre- requisites as enumerated in the respective provisions of the section. Where a party agrees to sell a property in which some other persons have also a share, then with regard to such a property under Section 12(3), specific performance can be directed in respect of so much of his/their part of the contract at he/they could perform in other words, he/they could be directed to sell his/their share of land to the plaintiff but this could be done provided the latter relinquished all claims to further performance and also all right to compensation for the deficiency or the loss or damage sustained through the default of the defendant. 22. Suffice it to say, it depends upon the facts and circumstances of the case whether relief of specific performance should be allowed or relief of damages should be allowed. 23. 22. Suffice it to say, it depends upon the facts and circumstances of the case whether relief of specific performance should be allowed or relief of damages should be allowed. 23. In this appeal only questions of fact arose and those questions of fact have been denied by both the courts below on consideration of evidence in favour of Bhag Singh. Consideration of evidence by them cannot be said to be unjust or unreasonable. In this appeal no question of law arise what to talk of substantial question of law. The jurisdiction in respect of second appeal being limited, procedure prescribed by Section 100 CPC ought to be followed. For this view I am supported by Ashok Umraomal Sanehati v. Rispalchand, JT 2000(1) SC 535. 24. For the reasons given above, this appeal fails and is dismissed. No order as to costs. Appeal dismissed.