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2004 DIGILAW 586 (PNJ)

Tej Kaur (Deceased By L. Rs. ) v. Devinder Kaur

2004-05-19

VINEY MITTAL

body2004
Judgment 1. The defendants have approached this Court through the present Regular Second Appeal. 2. The plaintiffs filed a suit for possession by way of specific performance of an agreement of sale dated July 5, 1977. The plaintiffs claimed that Tej Kaur, defendant No. 1 had agreed to sell the land measuring 14 bighas 2 biswas described in the plaint for a total consideration of Rs. 35,250.00 at the rate of Rs. 2,500.00 per bighas. At the time of execution of the agreement, defendant No. 1 had received a sum of Rupees 2,000.00 as earnest money from the plaintiffs and the sale deed was to be executed on or before May 31, 1978. The plaintiffs claimed that defendant No. 1 intended to sell the suit land to defendants Nos. 2 and 3, therefore, the plaintiffs filed a suit for permanent injunction against the defendants for restraining them from alienating the suit land. 3. The suit was contested by the defendants. They denied execution of the said agreement dated July 5, 1977 in favour of the plaintiffs. Receipt of the earnest money was also denied. It was also denied that the plaintiffs were always ready and willing to perform their part of agreement. 4. Similar pleas, as had been taken by Tej Kaur, defendant No. 1, were taken by defendants Nos. 2 and 3 in the written statement. The aforesaid defendants additionally claimed that vide an agreement dated Feb. 15, 1979, defendant No. 1 had agreed to sell the suit land to the said defendants and had received Rs. 2,000.00 as an earnest money from them. The said defendants also claimed that the possession of the suit land had been delivered to them at the time of execution of the agreement. 5. The learned trial Court, on the basis of evidence available on the record, found that defendant No. 1 had duly executed an agreement dated July, 5, 1977 Ex.P5 in favour of the plaintiffs and had received an earnest money of Rs. 2,000.00 . It was also held that the plaintiffs were ready and willing to perform their part of the agreement and it was defendant No. 1 who had backed out from the execution of the sale deed. 2,000.00 . It was also held that the plaintiffs were ready and willing to perform their part of the agreement and it was defendant No. 1 who had backed out from the execution of the sale deed. The learned trial Court further found that although the agreement had stipulated that defendant No. 1 had agreed to sell her 14 bighas 2 biswas of land but the evidence showed that she had merely 13 bighas 6 biswas of land comprised in khasra No. 380, 381 and 1852. Accordingly, it was held that the aforesaid land was the land which was agreed to be sold by defendant No. 1 in favour of the plaintiffs. On that basis, the suit filed by the plaintiffs for possession by way of performance was decreed for land measuring 13 bighas 6 biswas. With regard to the shortage of the area in the land agreed to be sold by defendant No. 1 in favour of the plaintiffs, the learned trial Court found that the defendants were entitled to be compensated by way of damages. The said damages were accordingly assessed at the rate of Rs. 500.00 per bighas i.e. Rs. 2,000.00 for the total land and Rs. 400.00 being the price for the deficient 16 biswas of land. Accordingly, the plaintiffs were held entitled to Rs. 2,400.00 from defendant No. 1. The learned trial Court further held that defendants Nos. 2 and 3 were merely claiming an agreement of sale in their favour executed by defendant No. 1 and the evidence on the record further showed that the aforesaid defendants could not be held to be bona fide transferees in any manner inasmuch as they did not make any enquiry with regard to the previous agreement. On the basis, the suit filed by the plaintiffs for possession by way of specific performance was decreed. 6. The defendants took up the matter in appeal. The learned appellate Court reappraised the entire evidence. On such reappraisal, the learned first appellate Court came to the similar conclusions as were arrived at by the learned trial Court. Accordingly, the appeal filed by the defendants was also dismissed. 7. The defendants have still remain dissatisfied and have approached this Court through the Regular Second Appeal. 8. The learned appellate Court reappraised the entire evidence. On such reappraisal, the learned first appellate Court came to the similar conclusions as were arrived at by the learned trial Court. Accordingly, the appeal filed by the defendants was also dismissed. 7. The defendants have still remain dissatisfied and have approached this Court through the Regular Second Appeal. 8. I have heard Shri G.S. Punia, the learned counsel for the appellants and Shri P.K. Gupta, the learned counsel for the respondents and with their assistance have also gone through the record of the case. 9. Shri G.S. Punia, the learned counsel for the appellants has argued that the agreement Ex.P5 was not only vague but was incapable of specific performance. It is further argued by Shri Punia that agreement Ex.P5 entered between the parties with regard to the sale of 14 bighas 2 biswas was claimed to have been owned by defendant No. 1. According to Shri Punia, since two Courts below have held it as a fact that defendant No. 1 had merely owned 13 bighas 6 biswas of land and therefore, suit filed by the plaintiffs seeking possession by way of specific performance of agreement was legally not maintainable inasmuch as at no stage the plaintiffs had elected/opted to relinquish their claim with regard to the land in excess 13 bighas 6 biswas. According to the learned counsel, on the other hand, the plaintiffs had persisted with their claim of specific performance with regard to 14 bighas 2 biswas and had been granted damages for the deficiency in the land. The learned counsel for the appellants claims that the decree passed in this regard by the two Courts below was clearly contrary to the provisions of Section 12 of the Specific Relief Act (hereinafter referred to as the Act). 10. Shri P.K. Gupta, the learned counsel for the respondents has refuted the aforesaid arguments of Shri G.S. Punia. 11. At the outset, Shri P.K. Gupta, the learned counsel for the respondents has categorically stated that the plaintiffs are ready to pay the entire sale consideration for getting the specific performance of the agreement Ex.P5 and restrict their claim to 13 bighas 6 biswas of land and also specifically relinquish the claim of damages with regard to the deficiency in the land. As a matter, of fact, Shri Gupta informs the Court that the sale deed in pursuance to the decree of Courts below has already been executed in favour of the plaintiffs. On that ground, Shri Gupta has fairly stated before the Court, that the plaintiffs would be ready to deposit with the learned executing Court the amount of damages awarded in their favour which had already been received by the plaintiffs in execution of the decree. Shri Gupta further states that a bare perusal of the agreement Ex. P5 would show that there was neither any vagueness in the said agreement nor there was any uncertainty in the said agreement, therefore, both the Courts below were absolutely justified in ordering the specific performance of the said agreement. 12. I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties. 13. In my considered opinion, there is no merit in the present appeal. 14. A bare perusal of the agreement Ex. P-5 would show that the parties had recited therein that the land owned by defendant No. 1 in village measuring 14 bighas 2 biswas which was 1/15th shares of the total khewat was agreed to be sold by defendant No. 1 in favour of the plaintiffs. In fact, in the written statement also two sets of defendants had specifically stated that the said land had been subsequently agreed to be sold by defendant No. 1 in favour of defendants Nos. 2 and 3 vide an agreement dated January 15, 1979 and the possession of the said land had been delivered by defendant No. 1 to said defendants Nos. 2 and 3. In these circumstances, when the land was identifiable and defendant No. 1 had agreed to sell the said land in favour of defendants Nos. 2 and 3 and had even delivered the possession, then by no stretch of imagination it could be held that there was any uncertainty or vagueness in the said agreement or that the suit land was not identifiable. Thus, I find that there is no merit in the argument of the learned counsel appearing for the defendant-appellants. 15. This takes me to the second argument raised by Shri Gupta. Shri Punia has primarily relied upon the provisions of Section 12 of the Act. Section 12 of the Act reads as under : "12. Thus, I find that there is no merit in the argument of the learned counsel appearing for the defendant-appellants. 15. This takes me to the second argument raised by Shri Gupta. Shri Punia has primarily relied upon the provisions of Section 12 of the Act. Section 12 of the Act reads as under : "12. Specific performance of part of contract.- (1) Except as otherwise hereinafter provided in this Section, the Court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either- (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money, he is not entitled to obtain a decree for specific performance; but the Court may, at the result of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party- (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b), the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part. Explanation:- For the purposes of this section a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject-matter existing at the date of the contract has ceased to exist at the time of its performance." 16 Section 12 of the Act provides that except as otherwise hereinafter provided in this Section, the Court shall not direct the specific performance of a part of a contract. Sub-section (2) provides that where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. However, sub-section (3) of the Act provides that where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either forms a considerable part of the whole, though admitting of compensation in money or does not admit of compensation in money then he is not entitled to obtain a decree for specific performance but either in case the party seeking specific performance of the agreement relinquishes all claims to the performance of the remaining part of the contract which cannot be performed and rights to compensation, then the Court may decree the suit with regard to the remaining part of the subject-matter which can be performed. 17. The scope of said provisions of Section 12 of the Act have been explained by the Apex Court in AIR 2000 SC 2927, Surjit Kaur V/s. Naurata Singh and laid down as under (Paras 12 and 14) "There can be no dispute with the broad proposition of law. All these cases support the broad proposition. Thus, the facts of each case need not be set out. All these cases support the broad proposition. Thus, the facts of each case need not be set out. It must be mentioned that in many of these cases the option had been exercised at the appellate stage. An exercise of option at the appellate stage has been upheld on the ground that a party could elect to accept part performance at any stage of the litigation. However, it is to be noted that in all these cases the party exercising the option had not earlier elected not to accept part performance. Mr. Rao could not show to Court even a single case where a party had elected not to accept part performance had insisted on full performance and finding that the Courts were against him, then elected to accept part performance." xx xx xx xx xx xx It must be clarified that this Court is not saying that merely because in correspondence or orally a party has insisted on performance of the whole contract he cannot thereafter elect to accept performance in part. A mere assertion that contract must be performed in full or even a filing of a suit for specific performance of the whole contract without averring that the plaintiff is willing to accept performance in part may not amount to electing not to accept performance in part. It is only in cases where a party has categorically refused to accept performance in part i.e. he has unambiguously elected not to accept part performance that he will be precluded from subsequently turning around and electing to accept performance in part. Whether a party has categorically elected or not will depend on facts of each case." 18. It is not in dispute that the agreement in question relates to the sale of immovable property. It is well settled that the said provisions of Section 12 of the Act are duly attracted to the facts of the present case. Two Courts below have concurrently found that defendant No. 1 owned land measuring 13 bighas 6 biswas only in the village. Thus, it is apparent that the agreement Ex. P-5 which pertained to the sale of land measuring 14 bighas 2 biswas could not be specifically enforced in its entirety. Two Courts below have concurrently found that defendant No. 1 owned land measuring 13 bighas 6 biswas only in the village. Thus, it is apparent that the agreement Ex. P-5 which pertained to the sale of land measuring 14 bighas 2 biswas could not be specifically enforced in its entirety. However, in view of the relinquishment of the claim by Shri P. K. Gupta, the learned counsel for the respondents, during the course of present appeal, the said agreement is duly enforceable with regard to 13 bighas 6 biswas of land. Shri Gupta has specifically relinquished his claim with regard to the deficient land and has specifically stated that he is ready to pay the entire sale consideration with regard to the purchase of 13 bighas 6 biswas of land and also ready to relinquish his claim with regard to the remaining land and damages. 19. At this stage, Shri G. S. Punia, the learned counsel for the appellants has argued that once the suit for specific performance had been filed by the plaintiffs with regard to the total land measuring 14 bighas 2 biswas and the plaintiffs had further claimed damages with regard to the deficiency in the land, then it was not open to the plaintiffs to exercise their option to relinquish their claim with regard to the deficient land. However, I find myself unable to agree with the aforesaid contention. The Apex Court in Surjit Kaur s case (AIR 2000 SC 2927) (supra) has categorically laid down that merely because the plaintiffs had filed a suit for specific performance of the agreement without averring that the plaintiff is willing to accept performance in part may not amount to electing not to accept performance in part. It is only in cases where a party has categorically refused to accept performance in part i.e. he has unambiguously elected not to accept part performance that he will be precluded from subsequently turning around and electing to accept performance in part. 20. Nothing has been shown that the plaintiffs at any point of time refused to exercise their option or had declined to accept the part performance of the agreement. In this view of the matter, law laid down by the Apex Court in Surjit Kaur s case (AIR 2000 SC 2927) (supra) applies on all fours to the present situation. 21. Nothing has been shown that the plaintiffs at any point of time refused to exercise their option or had declined to accept the part performance of the agreement. In this view of the matter, law laid down by the Apex Court in Surjit Kaur s case (AIR 2000 SC 2927) (supra) applies on all fours to the present situation. 21. At this stage, it may also be relevant to determine a question as to the stage at which the relinquishment has to be made by the plaintiffs and in what form. 22. An identical question came before the Lahore High Court in Waryam Singh V/s. Gopi Chand, AIR 1930 Lahore 34. While interpreting the provisions of Section 15 of the Specific Relief Act, 1877 (corresponding to Section 12 of the Act), it was observed as follows : "I cannot find anything in S. 15, Specific Relief Act, or any other provision of the law limiting action under S. 15 to any particular stage of the proceedings. It seems to me that it is open to the plaintiff to relinquish his claim to any part of the property in suit on the conditions specified in S. 15, at any time before the suit is finally decided by the Court of appeal. In the present case the prayer appears to me to be perfectly just and reasonable and I can see no valid reason to refuse to accede to it. The plaintiffs have actually performed the contract in the main and have expressed their readiness and willingness to perform what still remains to be done by them." 23. The law laid down in Waryam Singh s case (AIR 1930 Lahore 34) (supra) was approved by the Apex Court in Kalyanpur Lime Works V/s. State of Bihar, AIR 1954 SC 165 wherein the following observations were made (Para 22) : "This statement only shows that the Lime Co. initially put forward its claim to full specific performance under Section 18, but in the alternative confined it to the period from 1-4-1949 to 31-3-1954, with compensation. The last portion of the application, however, leaves no doubt whatever that all claims to further performance were relinquished and compensation prior to 1-4-1948 was also given up. initially put forward its claim to full specific performance under Section 18, but in the alternative confined it to the period from 1-4-1949 to 31-3-1954, with compensation. The last portion of the application, however, leaves no doubt whatever that all claims to further performance were relinquished and compensation prior to 1-4-1948 was also given up. The plaintiff s learned counsel has asked for that relief in the course of his arguments and he has made it clear that he insists on no further performance, nor does he claim any compensation for any period prior to the execution of the leases. Relinquishment of the claim to further performance can be made at any stage of the litigation. See Waryam Singh V/s. Gopi Chand, AIR 1930 Lahore 34. We think, therefore, that subject to what we are going to say on the last point, the plaintiff can claim relief under Section 15 of the Specific Relief Act." 24. Although, a learned single Judge of this Court in the case of Devi Dayal V/s. Manohar Lal, 1982 CLJ (Civ and Cri) 83 had taken a view that the relinquishment had to be made by the plaintiff in his plaint and if not made no benefit of the provisions of Section 12(3) of the Act could be given to him but subsequently a Division Bench of this Court in the case of Harnam Kaur V/s. Jagtar Singh, AIR 1992 Punj and Hary 138, on the basis of law laid down in Waryam Singh s case (AIR 1930 Lahore 34) (supra) and Kalyanpur Lime Works case (AIR 1954 SC 165) (supra) held that law laid down in Devi Dayal s case (supra) was not correct law. The following observations made by the Division Bench in Harnam Kaur s case (supra) may also be noticed (AIR 1992 Punj and Hary 138 at P. 142) : "From a reading of the above quoted passage it is clear that the Lahore High Court as also the Hon ble Supreme Court have pointedly held that the relinquishment envisaged under Section 12 of the Act can be made at any stage of the suit or appeal. We find that this interpretation is not only equitable but flows from the nature of the relief that is available to a party, who is aggrieved on account of the default of the other party on a contract. We find that this interpretation is not only equitable but flows from the nature of the relief that is available to a party, who is aggrieved on account of the default of the other party on a contract. We find that to confine a reading of the pleadings into a strait-jacket and to construe them rigidly and mechanically would defeat the ends of justice and limit artificially the scope of Section 12 of the Act. It is to be borne in mind that a plaintiff seeking the benefit of Section 12 of the Act is already a substantial sufferer, inasmuch as he has agreed to take a smaller portion of the property while paying the full amount and if the Court has to hold that the pleadings must be strictly construed (where even the acceptance of a truncated portion must be pleaded in the plaint) would be to add insult to injury. We have considered the other two judgments cited before us i.e. Balmukund s case and Devi Dayal s case (supra). The question as to the stage at which the relinquishment can be made was not specifically raised before the Supreme Court in Balmukund s case (supra). In Devi Dayal s case the question was specifically raised but the judgments reported as Waryam Singh s case and Kalyanpur Lime Works case (supra) were not cited before the learned single Judge. We, therefore, hold that the relinquishment under Section 12 of the Act can be made at any stage of the suit or appeal and it is not necessary to incorporate the plea specifically in the pleadings." 25. It is, thus, apparent that the plaintiffs are entitled in law to relinquish their claim with regard to damages and with regard to deficiency in the land even at the stage of the present regular second appeal and they having done so specifically, as noticed above, the law laid down in Waryam Singh s case (AIR 1930 Lahore 34) (supra) and Kalyanpur Lime Work s case (AIR 1954 SC 165) (supra) is fully attracted. Thus, the option exercised by the plaintiffs, during the course of arguments in the present appeal, fully entitles them to seek the specific performance of the agreement of the remaining portion i.e. with regard to land measuring 13 bighas 6 biswas. 26. No other point has been urged. 27. Thus, the option exercised by the plaintiffs, during the course of arguments in the present appeal, fully entitles them to seek the specific performance of the agreement of the remaining portion i.e. with regard to land measuring 13 bighas 6 biswas. 26. No other point has been urged. 27. No substantial question of law arises in the present appeal. 28. Accordingly, the present appeal is dismissed. 29. However, the judgments and decree of the learned Courts below are modified to the limited extent that the damages awarded by the two Courts below in favour of the plaintiffs shall be deposited by the plaintiffs with the learned executing Court within a period of three months from the date a certified copy of this order is received. On the deposit of the aforesaid amount, the same shall be payable to the defendants on their application. 30. No costs.