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2003 DIGILAW 1441 (RAJ)

Mahender Singh v. Piara Singh

2003-10-21

PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the appellant. 2. Brief facts of the case are that the plaintiff filed one suit for declaration that plaintiff has rescinded the contract, which was executed on behalf of the plaintiff by his power of attorney. The case of the plaintiff is that plaintiff entered into a contract with defendant to sell his agricultural land and as per the contract, the registry of the agriculture field should have been completed and executed by 1st July, 1983. The defendant did not turn up for getting the sale deed registered in his favour nor he purchased the stamps and even did not appear before the Sub-registrar on the due date. Therefore, in view of the violation of the terms of the contract, the plaintiff rescinded the contract by serving a notice upon defendant on 31st December, 1985. The defendant even did not give reply to this notice. According to plaintiff, the defendant lost his right to seek any relief of specific performance of contract against the plaintiff. In these circumstances, the plaintiff sought declaration that under the agreement no right can be claimed by the defendant and after the termination of contract, the agreement cannot be used against the plaintiff. The plaintiff also claimed possession of the land in dispute. 3. The defendant submitted written statement and stated that on 1st July, 1983 neither the plaintiff nor plaintiff's power of attorney came into the office of the Sub-registrar whereas the defendant was ready and willing to perform his part of the contract. In addition to above, it was also submitted that the land in dispute has already been acquired by the GFC and, therefore, the plaintiff lost his right to sell the land in dispute. Though it was pleaded so, but defendant further pleaded that plaintiff wanted to take the double amount of the sale consideration. In these circumstances, suit of the plaintiff be dismissed. 4. The Trial Court framed the issues and decreed the suit on 25th November, 1994 and held that the defendant did not perform his part of the contract and the plaintiff has rescinded the contract and the contract cannot be used against the plaintiff. The Trial Court also found that the defendant failed to prove by producing any evidence that the land in question was acquired and compensation has been accepted by the plaintiff. 5. The Trial Court also found that the defendant failed to prove by producing any evidence that the land in question was acquired and compensation has been accepted by the plaintiff. 5. The judgment and decree of the Trial Court dated 25th November, 1994 was challenged by the defendant by filing appeal as the Trial Court granted decree for declaration as well as for possession in favour of the plaintiff. The appellate court dismissed the appeal by judgment and decree dated 24th July, 2003. The appellant, therefore, preferred this second appeal. 6. According to learned counsel for the appellant, the suit framed by the plaintiff was not maintainable as it does not fall within the scope and ambit of Section 27 of the Specific Relief Act, 1963. According to learned counsel for the appellant, the court can even pass the appropriate decree under Section 27 of the Specific Relief Act, 1963 even after the decree for specific performance of contract is granted by the court in a suit filed by the vendee, but simply because plaintiff alleged that he has rescinded the contract. It is also submitted that the Trial Court had no jurisdiction to grant the decree for possession in a suit filed under Section 27 of the Act of 1963. Learned counsel for the appellant further submitted that the plaintiff failed to produce the original agreement and no efforts have been made by the plaintiff for production of the agreement from the defendant-appellant and, therefore, the Trial Court should not have decreed the suit declaring the contract rescinded at the option of the plaintiff. 7. I perused the facts of the case and considered the submissions made by the learned counsel for the appellant. Section 27 of the Specific Relief Act, 1963 provides that any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the court in the cases mentioned in clauses (a) and (b) of sub-section (1) of Section 27. The sub-section (1) permits filing of suit where (i) contract is voidable or (ii) the contract is terminable by the plaintiff. Sub-clause (b) of sub-section (1) of Section 27 permits suit, where the contract is unlawful though cause is not apparent on its face and when defendant is more to blame than the plaintiff. The sub-section (1) permits filing of suit where (i) contract is voidable or (ii) the contract is terminable by the plaintiff. Sub-clause (b) of sub-section (1) of Section 27 permits suit, where the contract is unlawful though cause is not apparent on its face and when defendant is more to blame than the plaintiff. It appears from the averments made in the plaint that the plaintiff's suit is falling under second part of the sub-clause (a) of sub-section (1) of Section 27 of the Act of 1963 as the plaintiff submitted that defendant had right to get the title transferred from plaintiff-vendee by execution of the sale deed in favour of the defendant-venodr upto 1st July, 1983, but the defendant-vendor did not perform his part of the contract and, therefore, right accrued to the plaintiff and the plaintiff rescinded the contract on 31st December, 1985 by a serving a notice, which was even not responded by the defendant. The defendant violated the terms and conditions of the agreement and was not ready and willing to perform his part of the contract. Therefore, in view of the above pleading, it cannot be said that plaintiff's suit falls beyond the scope and ambit of Section 27 of the Act of 1963 in any manner. The claim of the plaintiff is founded upon the rescission of the contract. 8. it will be worthwhile to mention here that the defendant had full opportunity to take plea about the non-maintainability of the suit of the plaintiff on this ground, but the defendant did not raise any objection about the non-maintainability of the suit. Even otherwise if the defendant-appellant is permitted to raise objection even in second appeal and the frame of the suit is examined, I do not find any reason to hold that the suit of the plaintiff was not maintainable under Section 27 of the Act of 1963 because of the reasons mentioned above. 9. So far as non-production of the original agreement by the plaintiff is concerned, admittedly, the original agreement was in possession of the defendant and the defendant, who was knowing well about all the contents of the original agreement contested the suit without raising any objection that plaintiff had no right to terminate the contract. 9. So far as non-production of the original agreement by the plaintiff is concerned, admittedly, the original agreement was in possession of the defendant and the defendant, who was knowing well about all the contents of the original agreement contested the suit without raising any objection that plaintiff had no right to terminate the contract. Therefore, it does not lie in the mouth of the defendant to keep the document with him and say that no efforts have been made by the plaintiff for production of the original document from the defendant. In a case where the document is admitted and is in possession of the rival party and if the rival party wants to take benefit of defence founded upon the document then the duty is equally cast upon the party setting up defence to produce the document to prove the defence. Hence in this case, neither it lies in the mouth of the defendant that agreement was not got produced by the plaintiff from the defendant himself nor it lies in the mouth of the defendant after not producing the original document before the court and say that the plaintiff had no right to terminate the contract despite non-complaince of the terms and conditions of the contract by the defendant under the contract. In the facts, it was the duty of the defendant to produce the original agreement to prove his defence rather than the duty of plaintiff to summon the document from the defendant. 10. Learned counsel for the appellant further submitted that the Trialcourt decided issue No. 3 against the defendant. The defendant-appellant submitted an application before the first appellate court under Order 41 Rule 27 Civil Procedure Code seeking permission to produce the document to prove that land in question was acquired by the GFC and the land has been mutated in the name of that department vide mutation No. 262 dated 03.05.1997. According to learned counsel for the appellant, the issue No. 3 was wrongly framed and burden should have been cast upon the plaintiff and the first appellate court committed illegality in rejecting the application under Order 41 Rule 27 Civil Procedure Code while deciding the appeal itself. According to learned counsel for the appellant, the issue No. 3 was wrongly framed and burden should have been cast upon the plaintiff and the first appellate court committed illegality in rejecting the application under Order 41 Rule 27 Civil Procedure Code while deciding the appeal itself. It is submitted by learned counsel for the appellant that the mutation order was passed after the decision of the Trial court and, therefore, the first appellate court should be permitted production of that mutation order. 11. So far as objection about putting wrongly burden upon the defendant is concerned, I do not find any substance because of the reason that this was the defence taken by the defendant to resist the relief claimed by the plaintiff for possession. The person, who took possession of the property from a particular person in pursuance of any contract and lost his right to retain possession, cannot resist the delivery of possession to the person from whom he took possession even on the ground that person lost his title to the property and title to property now vest in third party. Basic reason is that from whom one took some benefit and enjoying that benefit, lost right to benefit, is required to return the property to the person from he took. Title is different from the mere enjoyment of property under contract. The person in possession merely enjoys the benefit of the property only and still title vests in the original owner, the guarantor. Even during the period of enjoyment of the property by such person in possession loss of title of the guarantor, cannot make the person in possession who lost his right to retain possession, to resist the claim of the guarantor of the possession of the property because till guarantor after losing title to the property is dispossessed by subsequent title holder, the original owner can enjoy the benefit of possession. 12. Assuming for the sake of the arguments that property was acquired by the Government department then also the defendant cannot claim his right to remain in possession against his grantor. This litigation cannot be permitted to be converted for the benefit of the defendant, who lost his right to remain in possession. In view of the above, the rejection of the application under Order 41 Rule 27 Civil Procedure Code by the first appellate court is of no consequence. This litigation cannot be permitted to be converted for the benefit of the defendant, who lost his right to remain in possession. In view of the above, the rejection of the application under Order 41 Rule 27 Civil Procedure Code by the first appellate court is of no consequence. However, it may be observed that order of mutation itself does not create right, title or interest in the property. The right, title and interest if was created in the Government department then that was created even before filing of the written statement by the defendant and the defendant had full opportunity to produce evidence and prove the fact that land was acquired. In view of the above, the first appellate court was right in rejecting the application under Order 41 Rule 27 Civil Procedure Code. 13. I do not find any force in the submission of learned counsel for the appellant that relief of possession cannot be granted in a case where suit has been filed under Section 27 of the Act of 1963 because of the reason that the plaintiff can file the suit for declaration with consequential relief, which he can get because of declaration. It is also relevant to mention here that two causes of action in given circumstances can be included in a suit and as per the provisions of Rule 1ORDER2 it is desirable that every suit should be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them, which means inclusion of all the reliefs in a suit, which the plaintiff can include. The relief claimed by the plaintiff is in consonance and in consequence also and cannot be said to be a relief of inconsistent. 14. In view of the above, I do not find any substance in this appeal. Hence, the appeal of the appellant is dismissed.Appeal dismissed. *******