Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 160 (HP)

SATYA PAL SOOD v. SHAKUNTLA SHARMA

2002-06-07

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J.—This second appeal is directed against the judgment and decree of learned Additional District Judge, Shimla dated December 31, 1998 whereby the appeal of the appellant was dismissed and the judgment and decree of the learned trial Court was upheld. 2. The facts are few and undisputed. Shakuntala Sharma, respondent was plaintiff in the suit. Appellant Satya Pal Sood, defendant, was the owner of a shed located in the land measuring 100 sq. yds., comprised in khasra number 337/H situate at Ram Parwati Niwas Shankli, Station Ward Bara Shimla. He entered into an agreement with plaintiff Shakuntala Sharma to sell this shed alongwith the land appurtenant thereto for a consideration of rupees 30,000/-. Rupees 10,000/- were paid to the defendant at the time of execution of the agreement in advance. In part performance of the contract, possession of the shed alongwith the land, subject matter of agreement, was delivered to the plaintiff. The shed consisted of one storeyed kutcha house. Plaintiff paid the balance sale consideration. Rupees 18,000/- were paid on August 5, 1986 and balance amount of rupees 2,000/- was paid on December 9, 1986 on which defendant made an endorsement on the agreement on that date to the effect that sale deed can be executed at any time. Defendant did not execute the sale deed in spite of the requests made by the plaintiff. The plaintiff, it is admitted position, was ready and willing to perform her part of the agreement. In fact, the entire sale consideration had been received by the defendant. Only thing remained to be done was the execution of the sale deed in terms of the agreement. 3. Plaintiff brought a suit for specific performance of the agreement with directions to the defendant to execute the sale deed in respect of the land subject matter of dispute alongwith kutcha house in favour of the plaintiff. The suit was resisted by the defendant. Defendant preferred a counter claim. According to the defendant, the entire area of khasra number 337 was 1200 sq. yards and the defendant had agreed to sell to the plaintiff only 100 sq. yards, which consisted of a temporary, shed measuring 50 sq. yards with vacant land around house measuring another 50 sq. yards. It was not disputed that the entire consideration amount was received by the defendant. yards and the defendant had agreed to sell to the plaintiff only 100 sq. yards, which consisted of a temporary, shed measuring 50 sq. yards with vacant land around house measuring another 50 sq. yards. It was not disputed that the entire consideration amount was received by the defendant. The defence of the defendant was that the agreement was not enforceable as the same was void being in derogation to the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act and Section 16 (C) of the Himachal Pradesh Town and Country Planning Act, 1977. "Act for short". It was also pleaded that the agreement violated the provisions of the Interim Development Plan, which prohibits the subdivision of the land to an area less than 100 square meters in the urban area of Shimla. It was the further case of the defendant that the defendant is claiming 150 sq. yards of land, whereas the defendant had agreed to sell only 100 sq. yards of the land and this dispute between the parties led to the postponement of the execution of the sale deed. Subsequently, it was discovered that the agreement, being in violation of the statutory provisions, was void and could not have been executed. 4. Learned trial Judge settled the following issues: 1. Whether the plaintiff is entitled for relief of specific performance as prayed? OPD. 2. Whether the agreement in question was executed under mistake of law and is hit by the provisions of H. P. Tenancy and Land Reforms Act as alleged? OPD. 3. Whether the agreement in question is hit by the provisions of H.P. Town and Country Planning Act as alleged? If so, its effect? OPD. 4. Whether the defendant is entitled for possession of suit land as claimed? OPD. 5. Relief. 5. Learned trial Judge found that the agreement in question was neither in derogation to the provisions of the Himachal Pradesh Tenancy and Land Reforms Act nor violative of any provision of the Himachal Pradesh Town and Country Planning Act and consequently held that the plaintiff was entitled to the specific performance of the agreement. The counter claim of the defendant that he was entitled to the possession of the land subject matter of dispute from the plaintiff did not find favour with the trial Court. 6. The counter claim of the defendant that he was entitled to the possession of the land subject matter of dispute from the plaintiff did not find favour with the trial Court. 6. Dis-satisfied, the defendant carried an appeal before the learned District Judge, which was heard by the Additional District Judge and was dismissed by the impugned judgment. 7. The appeal was admitted by this Court on June 25, 1999 on the following substantial questions of law: 1. Can an agreement of sale in contravention of Section 16(c) of the H.P. Town and Country Planning Act, 1977 or offending the said provision of law can specifically be enforced in law? 2. What is the legal effect on the judgments and decrees under appeal if both the Courts below while passing the decrees have completely ignored a specific mandatory provision of law? 3. Whether the findings of the Additional District Judge below are sustainable in the face of the evidence and legal position as applicable to the facts of the case? 4. What is the effect of finding of the First Appellate Court, if there is glaring discrepancy in the pleadings and evidence adduced by the plaintiff? 5. Whether the learned Additional District Judge below has discarded and ignored the relevant and material evidence and has based his decision on immaterial and irrelevant evidence and has also grossly misread the evidence leading to palpably erroneous findings and if so to what effect? 8. I have heard the learned counsel for the parties at length. They also took me through the evidence and record. My answer to the questions raised is: 1. Whether agreement of sale was in contravention of Section 164c) of the H.P. Town and Country Planning Act, 1977 and if so, whether it could be specifically enforced in law? Section 16 (c) of the Act envisages that on or after the date of publication of the "land use map", under Section 15 of the Act, no Registrar or the Sub-Registrar, appointed under the Indian Registration Act will be competent, in any planning area constituted under section 13 of the Act to register any deed or document of transfer of any sub-division of land by way of sale, gift, exchange, lease or mortgage with possession, unless the sub-division of land is duly approved by the Director, Town and Country Planning. Sub-section (c) of Section 16 may be reproduced for convenience: "16(c) no Registrar or the Sub-Registrar, appointed under the Indian Registration Act, 1908, shall, in any planning area constituted under Section 13, register any deed or document of transfer of any subdivision of land by way of sale, gift, exchange, lease or mortgage with possession, unless the sub-division of land is duly approved by the Director, subject to such rules as may be framed in this behalf by the State Government": Provided that the Registrar or the Sub-Registrar may register any transfer.— (i) Where the land is owned by a person and the transfer is made without involving any further divisions; (ii) Where the partition/sub-division of land is made in a Joint Hindu Family; (iii) Where the lease is made in relation to a part or whole of a building; (iv) Where the mortgage is made for procuring the loans for construction of improvements over the land either from the Government or from any other financial institution constituted or established under any law for the time being in force or recognized by the State Government". (Emphasis supplied) 9. It may be noticed that the prohibition in the registration of the sale deed is in respect of the land, which is sought to be transferred, which is result of any sub-division of the land and not otherwise. If the land sought to be transferred is not a result of sub-division of the land then, apparent as it is. Section 16 (c) is not attracted. Reading of proviso to Section 16 (c) makes it clear that where the land is owned by a person and the transfer is made without involving any further sub-division, then the Registrar or the Sub Registrar, as the case may be, would be competent to register such transfer. Now reading of agreement executed between the parties (Exhibit P2) dated March 11, 1986 shows that the defendant Satya Pal agreed to sell to plaintiff "a single storey temporary shed" measuring 50 sq. yards alongwith the land on its three sides, measuring in all 100 sq. yards for a consideration of rupees 30,000/-. Now reading of agreement executed between the parties (Exhibit P2) dated March 11, 1986 shows that the defendant Satya Pal agreed to sell to plaintiff "a single storey temporary shed" measuring 50 sq. yards alongwith the land on its three sides, measuring in all 100 sq. yards for a consideration of rupees 30,000/-. On December 19, 1986, after the receipt of the entire consideration amount, the defendant made an endorsement that entire consideration amount has been received by him and nothing remains to be paid by the plaintiff and only Registry remains to be executed, which the plaintiff can get it executed at any time. It, thus, is clear that the sale contemplated in the agreement was in respect of a shed measuring 50 sq. yards and another 50 sq. yards of the land appurtenant to the shed. There is also no dispute that certain improvements were made by the plaintiff after he came into possession of this shed. He carried out extensive repairs. As no sub-division of the land was involved in the sale of the disputed property to the plaintiff, therefore, Section 16(c) of the Act was not an impediment in the registration of the sale deed. Learned trial Judge observed that what was intended to be sold was a temporary shed alongwith the land without involving sub-division of the land and, therefore, Section 16 (c) of the Act was not applicable. 10. It is noticed that at the time of execution of the agreement (Exhibit P2), a valuation report of the built up structure was obtained. A map of the same was also prepared and annexed with the agreement. The document shows that the shed was about 20 years old and consisted of three rooms of thick walls. The agreement, it may be noticed at the cost of repetition, is not disputed by the defendant. No fault can be found with the finding of fact recorded by the learned trial Court and affirmed by the first appellate Court that the sale was in respect of specific area of the land, which did not involve any sub-division of larger plot. I have no reason to differ with this finding. 11. No fault can be found with the finding of fact recorded by the learned trial Court and affirmed by the first appellate Court that the sale was in respect of specific area of the land, which did not involve any sub-division of larger plot. I have no reason to differ with this finding. 11. Learned Additional District Judge in his judgment took note of the fact that even if sub-division was involved, an approval could have been taken from the Director, Town and Country Planning Department who is competent to give such approval. But defendant asserted that such permission was required and if applied for shall be rejected. It is not the case of the defendant that the Registrar or Sub Registrar refused to register the sale deed of the property. 12. A contention was raised before the learned first Appellate Court that plaintiff started claiming 150 sq. yards of area against an area of 100 sq. yards agreed to be sold to the plaintiff by the agreement Exhibit P3. This was not correct. Plaintiff always maintained that she was entitled for the execution of the sale deed in respect of the area agreed to be sold to her measuring 100 sq. yards including built up structure, as is apparent from the notice Exhibit P4. 13. This apart, under Regulation 10.4.1.4 of the Interim Development Plan for Shimla Planning Area, the minimum area of residential plot in the zone has to be 150 sq. mtr. where new sub-division of the land is effected and such sub-division of the land would require approval of the Director of the Department of Town and Country Planning. The Director is also vested with the powers to relax minimum area requirement in a particular case taking into consideration the topographical constraints or location of the plot or any other social benefit scheme launched by the Government/ Semi-Government organizations. 14. In the present case, as already noticed, the sub-division of the plot for the sale of the plot in agreement to the plaintiff was not involved. In the circumstances, the provisions of Section 16 (c) of the Act are not applicable. The plea taken by the defendant is non-existent. The question is answered accordingly. Question No. 2. 14. In the present case, as already noticed, the sub-division of the plot for the sale of the plot in agreement to the plaintiff was not involved. In the circumstances, the provisions of Section 16 (c) of the Act are not applicable. The plea taken by the defendant is non-existent. The question is answered accordingly. Question No. 2. This question does not survive in view of my answer to question above as no provision of law is violated for the registration of the sale deed of the property subject matter of dispute to the plaintiff in terms of agreement Exhibit P2. Question is answered accordingly. Question No. 3. In view of my answer to question No.l, this question does not survive. There is nothing in the evidence on record, as discussed earlier, which may show that the findings recorded by the learned Additional District Judge were either against any settled legal position or against the evidence on record. Question No. 4. Learned counsel for the appellant could not point out any evidence, on which the courts below relied in derogation to the pleadings. In fact, there is no discrepancy between the pleadings and evidence on record. The question again is non-existent. Question No. 5. Mr. Ajay Kumar; learned counsel for the appellant, could not point out any evidence, which was discarded and ignored, or any other evidence on which findings were rested but was irrelevant or inadmissible. The question is accordingly answered. No other point was urged before me. 15. There is no merit in the appeal. The same is accordingly dismissed. There will be no order as to costs. Appeal dismissed.