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2006 DIGILAW 1375 (PNJ)

Santa Singh v. Binder Singh

2006-03-29

HEMANT GUPTA

body2006
JUDGMENT Hemant Gupta, J. - The defendant is in first appeal aggrieved against the judgment and decree passed by the learned trial Court on 9.3.1979, whereby the suit for specific performance filed by the plaintiff-respondents, was decreed. 2. Originally, the suit was filed by six plaintiffs to seek specific performance of an agreement to sale dated 3.12.1976 entered in favour of plaintiff Nos. 1 to 3 in respect of 1/2 share of the land measuring 59 kanals in the sum of Rs. 34,000/-. Plaintiff Nos. 4 to 6 relied upon another agreement for sale dated 7.12.1976 of the balance 1/2 share of the said land measuring 59 kanals for the sum of Rs. 34,000/-. The plaintiff Nos. 1 to 3 have withdrawn their suit in respect of the agreement dated 3.12.1976, therefore, the present suit for specific performance is confined to the agreement dated 7.12.1976. 3. As per the case of the plaintiffs in a suit filed on 8.3.1977, the defendant agreed to sell land measuring 29 kanals 10 marlas i.e. 1/2 share of 59 kanals for Rs. 34,000/-. The defendant received Rs. 19,100/- at the time of execution of agreement. Since the land was mortgaged with one Jhanda for Rs. 29,800/-, the plaintiffs were to redeem the land after paying Rs. 12,900/- to Jhanda Singh. The balance consideration of Rs. 2,000/- was to be paid at the time of registration. The sale-deed was to be registered within one month of agreement and in case of default, the defendant was to pay Rs. 10,000/- as compensation. Since the defendant committed the breach of agreement, the plaintiffs filed the present suit for specific performance of agreement. The defendant denied the execution and receipt of any consideration of the agreement in his written statement dated 9.6.1977. It was further submitted that the defendant has not committed any breach of contract nor negotiated with anybody. On the basis of the pleadings of the parties, following issues were framed by the learned trial Court on 28.7.1978 :- "1. Whether the defendant had entered into agreement dated 2.12.1976 for sale of 1/2 share of the suit land in favour of plaintiff Nos. 1 to 3 for Rs. 34,000/- as alleged ? OPP 2. Whether the defendant had entered into agreement dated 7.12.1976, for the sale of 1/2 share of the suit land in favour of plaintiff Nos. 4 to 6, for Rs. 1 to 3 for Rs. 34,000/- as alleged ? OPP 2. Whether the defendant had entered into agreement dated 7.12.1976, for the sale of 1/2 share of the suit land in favour of plaintiff Nos. 4 to 6, for Rs. 34,000/- as alleged ? OPP 3. Whether the plaintiffs have always been ready and willing to perform their part of the contract ? OPP 4. Whether the defendant have committed breach of agreement in dispute ? OPP 5. Whether the suit is bad for misjoinder of causes of action ? OPD 6. Whether the plaintiffs are entitled to specific performance of the disputed agreement ? If so on what terms ? OPP 7. If issue No. 6 is not proved, to what amount, they are entitled in the alternative relief ? OPP 8. Relief." 4. In proof of the case pleaded by the plaintiffs, the plaintiffs examined PW-1 Niranjan Singh, the scribe of the agreement dated 7.12.1976 as well as PW-2 Mehar Singh and PW-3 Narinder Nath, the attesting witnesses of the agreement. The guardian of the minor plaintiff Surjit Singh appeared as PW-4. To controvert such evidence, the defendant appeared as his own witness as DW-1 and produced Gurcharan Singh as DW-2 and Puran Singh as DW-3, in support of his case that the agreement was not executed. 5. I have heard learned counsel for the parties at length and also gone through the evidence on record. The issue-wise finding is as under :- Issue Nos. 1, 2 and 4 : 6. Since plaintiff Nos. 1 to 3 have withdrawn their suit in respect of an agreement dated 3.12.1976, therefore, Issue No. 1 is redundant for the purposes of the present appeal. However, in respect of Issue No. 2, PW-1 Niranjan Singh, Scribe has appeared as witness and deposed that he has scribed agreement Exhibit P-2 at the instance of Santa Singh. He has deposed that the sale consideration was settled at Rs. 34,000/- and 1/2 of the mortgage amount i.e. Rs. 12,900/- was to be adjusted. He has further deposed that a sum of Rs. 19,100/- was paid to Santa Singh in his presence. The agreement was read over and Santa Singh has put his thumb impression after understanding the contents thereof. He has brought his register. 34,000/- and 1/2 of the mortgage amount i.e. Rs. 12,900/- was to be adjusted. He has further deposed that a sum of Rs. 19,100/- was paid to Santa Singh in his presence. The agreement was read over and Santa Singh has put his thumb impression after understanding the contents thereof. He has brought his register. Such entries in the register have been produced as Exhibit P1/B and P2/B. Similarly, PW-2 Mehar Singh and PW-3 Narinder Nath have supported the execution of the agreement. Both the witnesses are categorical to the effect that the sum of Rs. 19,100/- was paid to Santa Singh in their presence and that Santa Singh has thumb marked the documents after the same were read over to him and understanding the contents thereof. Though PW-4 Surjit Singh has stated that he cannot depose about the total amount paid at the time of agreement but he has stated that the agreement Exhibit P-2 was read over to Santa Singh and he thumb marked the same. 7. On the other hand, the defendant, while appearing his own witness denied the execution of the agreement and receipt of any consideration. But the witnesses produced by the defendant had made out a new case for the defendant, which was not even the case pleaded. As per DW-2 Gurcharan Singh, about 2-1/2 years ago, Santa Singh defendant was present at the shop of Niranjan Singh, deed writer, along with Surjit Singh, father of the plaintiff. Santa Singh had taken liquor at that time and was not in senses. Santa Singh called him while he was going to bazar along with Puran Singh. He has further deposed that Surjit Singh called him to attest an agreement executed by Santa Singh but he refused to attest the said agreement as Santa Singh was under the influence of alcohol. Similarly, DW-3 Puran Singh also deposed that he knew the parties. He was going to the shop of Niranjan Singh along with Gurcharan Singh when Surjit Singh, father of the plaintiff present at the shop along with Santa Singh, who was unconscious due to alcohol. Surjit Singh asked him to attest the agreement to sell, but he refused to do so as Santa Singh was under the influence of liquor. 8. He was going to the shop of Niranjan Singh along with Gurcharan Singh when Surjit Singh, father of the plaintiff present at the shop along with Santa Singh, who was unconscious due to alcohol. Surjit Singh asked him to attest the agreement to sell, but he refused to do so as Santa Singh was under the influence of liquor. 8. A perusal of the statements of DW-2 and DW-3, in fact proves the presence of Santa Singh with Surjit Singh at the shop of Niranjan Singh. The allegation that Santa Singh was under the influence of liquor was not even pleaded by the defendant in his defence nor such was his stand in the written statement nor in the statement on oath. Therefore, keeping in view the statements of the witnesses examined by the parties, the finding recorded by the learned trial Court that the defendant entered into an agreement dated 7.12.1976 for the sale of 1/2 of the suit land, cannot be said to be suffering from any error. Thus, Issue No. 1, 2 and 4 are decided in favour of the plaintiffs and against the defendant. Issue No. 3 9. It is the case of the plaintiffs that a sum of Rs. 19,100/- was paid at the time when the agreement was executed and a sum of Rs. 12,900/- was kept for payment to the mortgagee. The balance sale consideration was only Rs. 2,000/-, which was to be paid within one month of the date of the agreement. PW-4 Surjit Singh, while appearing as a witness has deposed that he was always ready and willing to get the registration of the sale-deed. He has further deposed that he has asked Santa Singh to execute the deed but he refused to do so. Therefore, he has filed the suit. 10. Since the case of the defendant is that of one of denial, therefore, the statement of the plaintiff that he was ready and willing to perform his part of the contract is sufficient to infer that plaintiffs were ready and willing to perform their part of the contract. It was a meagre amount of Rs. 2,000/- alone which was required to be paid at the time of registration of the sale- deed. The substantial amount was paid at the time of execution of the agreement. More than Rs. 12,000/- was kept for payment to the mortgagee. It was a meagre amount of Rs. 2,000/- alone which was required to be paid at the time of registration of the sale- deed. The substantial amount was paid at the time of execution of the agreement. More than Rs. 12,000/- was kept for payment to the mortgagee. Therefore, the argument raised by the learned counsel for the appellant that the plaintiffs have not led evidence to prove their ready and willingness to perform the contract is not tenable. 11. Learned counsel for the appellant has relied upon Manjunath Annadappa urf Shivappa Hanasi v. Tammanasa and others, 2003(10) SCC 390 to contend that Forms 47 and 48 of Schedule appended to the CPC, prescribe the procedure to prove the readiness and willingness of a party to an agreement. In the said case, the plaintiff has not raised any pleading that he was ready and willing to perform his part of the contract nor he deposed that he was ready and willing to perform his part of the contract. The Court held that a plaintiff in a suit of specific performance of a contract not only must raise a plea that he had all along been and even on the date of filing of the suit, was ready and willing to perform his part of the contract but also prove the same. Only in certain exceptional situations where although in letter and spirit, the exact word had not been used, but readiness and willingness can be culled out from reading all the averments made by the plaintiff as a whole coupled with the materials brought on the record at the trial of the suit, the statutory requirement of Section 16(c) of the Specific Relief Act may be held to have been complied with. The said judgment does not lend any support to the case set up by the appellant. 12. In the present case, there is a specific pleading about the readiness and willingness of the plaintiffs supported by their statements on oath. Meagre amount of Rs. 2,000/- alone remains to be unpaid. The plaintiffs have filed the suit for specific performance within two months of the date fixed for the execution of the sale-deed. Prior thereto the plaintiffs have filed a suit for injunction as the defendant intended to sell the property in violation of the agreement. Meagre amount of Rs. 2,000/- alone remains to be unpaid. The plaintiffs have filed the suit for specific performance within two months of the date fixed for the execution of the sale-deed. Prior thereto the plaintiffs have filed a suit for injunction as the defendant intended to sell the property in violation of the agreement. The said acts leave no manner of doubt that the plaintiffs have discharged the onus to prove that they were ready and willing to perform their part of the contract. Thus, issue No. 3 is decided in favour of the plaintiffs and against the defendant. Issue No. 5 : 13. There is nothing on record to show that how the suit is bad for misjoinder for cause of action. No argument has been raised on the said issue as well. Consequently, the said issue is decided against the defendant and in favour of the plaintiffs. Issue Nos. 6 and 7 : 14. Learned counsel for the defendant-appellant has argued that since the plaintiffs have claimed alternative relief, therefore, the decree for specific performance could not have been passed. However, the said argument is not tenable in law. In Manjunath Annandappas case (supra), the relief of specific performance of the decree of the agreement was declined on the ground that the suit was filed six years from the date of entering into the agreement to sell. It was found that having regard to Section 20 of the Specific Relief Act, it was obligatory on the part of the plaintiff to approach the Court within a reasonable time. In the present case, the plaintiffs have filed suit for specific performance on 8.3.1977 in respect of agreement dated 7.12.1976. Since the suit was filed after the failure to execute the sale-deed by the defendant, it cannot be said that the plaintiffs are not entitled to decree for specific performance of an agreement. In the above-said case, it was also held that the Court in appeal should not ordinarily interfere with the discretion exercised by the Courts below. Therefore, there is no circumstance, which may call for the interference in the discretion exercised by the trial Court. Hence, issue Nos. 6 and 7 are decided in favour of the plaintiffs and against the defendant. 15. Therefore, there is no circumstance, which may call for the interference in the discretion exercised by the trial Court. Hence, issue Nos. 6 and 7 are decided in favour of the plaintiffs and against the defendant. 15. In view of the above, I do not find that there is any error of jurisdiction in the findings recorded by the learned trial Court. Consequently, the present appeal is dismissed with no order as to costs. Appeal dismissed.