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2006 DIGILAW 1788 (RAJ)

Har Lal v. Bhanwar Lal

2006-05-22

PRAKASH TATIA

body2006
Judgment Prakash Tatia, J.-The appellants are aggrieved against the Judgment and decree of the trial Court dated 15.02.1979 passed in Civil Original Suit No. 19/1977 by which the appellant-plaintiffs’ suit for specific performance of the contract dated 010.1976 was dismissed and the appeal of the appellant-plaintiffs was also dismissed by Judgment and decree dated 20.09.1983 by the first appellate Court. 2. Brief facts of the case are that four plaintiffs filed the suit for specific performance of the contract against Defendant No. 1 Bhanwar Lal and Defendant No. 2 Navla with the allegations that Defendant No. 1 agreed to sell the agriculture land mentioned in Para 2 of the plaint to the plaintiffs by written agreement date 010.1976. The agricultural land is 16 bighas and the sale consideration has been shown as Rs. 5,251/-. Accordingly the plaintiffs paid Rs. 350/-to Defendant No. 1 on 010.1976 itself . Defendant No. 1 did not execute the sale-deed in favour of the plaintiffs, therefore, the plaintiffs gave a notice to Defendant No. 1 on 112.1976 but still Defendant No. 1 did not execute the sale-deed in favour of the plaintiffs. It is also submitted that despite agreement to sell in favour of the plaintiffs, Defendant No. 1 executed a released deed on 110.1976 in favour of Defendant No. 2 but by that release deed, rights of the plaintiffs cannot be affected. The plaintiffs, therefore, filed the suit for specific performance of the contract dated 010.1976 on 24.01.1977. 3. The Defendant No. 1 submitted written statement and denied any agreement to sell by him in favour of the plaintiffs and also denied receipt of any consideration. Defendant No. 1 further submitted that in fact the land in question was purchased by Defendant No. 1 from Defendant No. 2 and because of that the plaintiff developed ill-will against Defendant No. 1 and they want to grab the land of Defendant No. 1 and plaintiff also instigated Defendant No. 2, therefore, Defendant No. 2 also started quarrelling with Defendant No. 1. It is also submitted that one gift deed was got executed from Defendant No. 2 Navla in favour of one Uda by concealment and was not brought to the notice of Defendant No. 1. Because of that dispute, plaintiffs have filed this false suit. 4. It is also submitted that one gift deed was got executed from Defendant No. 2 Navla in favour of one Uda by concealment and was not brought to the notice of Defendant No. 1. Because of that dispute, plaintiffs have filed this false suit. 4. Defendant No. 2 submitted separate written statement and stated that in fact Defendant No. 2 had no issue, therefore, Defendant No. 1 was taking care of Defendant No. 2 and was serving him. To satisfy Defendant No. 1, the Defendant No. 2 executed sale-deed in favour of Defendant No. 1 and this sale was with understanding that in case Defendant No. 1 will not serve Defendant No. 2 then Defendant No. 2 shall have right to get the land from Defendant No. 1 by getting a release deed. Defendant No. 2 submitted that in fact Defendant No. 2 alone is in possession of the suit property and in term of the understanding, the release deed was executed by Defendant No. 1 in favour of Defendant No. 2 on 110.1975. Defendant No. 2 also submitted that Defendant No. 1 was never the tenant or the khatedar tenant of the land in dispute. Defendant No. 2 further submitted that after release deed dated 110.1976, the land has already been gifted to Gokul s/o Jaluji on 09.09.1976 and plaintiff No. 3 himself was witness in the gift-deed dated 09.09.1976, therefore, said Gokul is also necessary party. 5. The trial Court framed various issues and held that the plaintiffs entered into agreement for purchase of the suit property from Defendant No. 1 and Defendant No. 1 executed the agreement on 010.1976 and received Rs. 350/-from the plaintiffs. The issue of readiness and willingness of the plaintiffs to perform their part of the contract was decided against the plaintiffs by the trial Court and after holding that Gokul was not necessary party, the trial Court decreed the suit of the plaintiffs for refund of Rs. 350/-alongwith interest @ 12% by Judgment and decree dated 15.02.1979. 6. The regular first appeal was preferred by the plaintiffs which was dismissed by the first appellate Court not only on the ground that the plaintiffs failed to prove that they were ready and willing to perform their part of the contract but on the ground of lack of pleading about the readiness and willingness of the plaintiffs to perform their part of the contract. Hence this second appeal. 7. Following substantial question of law was framed by this Court while admitting this appeal on 05.01.1984 :-“Whether the finding of the lower Court that the plaintiff has not averred his readiness and willingness to perform his part of the contract as required by Section 16(c) of the Specific Relief Act is based on mis-reading and mis-construction of the pleading.” 8. During the pendency of the appeal, plaintiff-Appellant No. 1 died on 25.09.1992 whereas defendant-Respondent No. 1 died on 211.1992 and defendant-respondent No. 2 died on 05.06.1991. Defendant No. 2 had no legal representatives and, therefore, his name was struck off from the array of the parties, whereas legal representatives of Appellant No. 1 and Respondent No. 1 were taken on record by order of this Court dated 20.07.1994. 9. Heard Learned Counsel for the parties and perused the record. 10. It is submitted by the learned Counsel for the appellants that the Courts below misread the plaint and wrongly held that the plaintiffs have not pleaded their readiness and willingness to perform their part. It is also submitted that the first appellate Court took hyper-technical view about the pleadings. It is also submitted that the defendant denied the agreement and in the facts and circumstances of the case, the rigor of readiness and willingness on the part of the plaintiffs should not have been given such importance so as to deny the relief to the appellant-plaintiffs only on this ground. The learned Counsel for the appellants also submitted that the agreement is dated 010.1976 and the plaintiffs even served notice upon Defendant No. 1 within about two months and thereafter, filed the present suit, therefore, in the facts of the case, it is clear that the plaintiffs were vigilant and willing to purchase the property. 11. The learned Counsel for the respondents vehemently submitted that apart from the fact that sufficient pleadings were not there about readiness and willingness of the plaintiffs to perform their part of the contract, there is sufficient material available on record which clearly shows that the entire case of the plaintiff is concocted one and the plaintiffs suppressed important material evidence also. The two Courts below considered the facts of the case to find out whether in fact that plaintiffs were ready and willing to perform their part of the contract or not. The two Courts below considered the facts of the case to find out whether in fact that plaintiffs were ready and willing to perform their part of the contract or not. The only substantial question of law framed by this Court is that whether the Courts below misread and misconstrued the pleadings. This Court rightly did not frame issue about finding of the trial Court with respect to the plaintiffs’ readiness and willingness to perform their part of the contract because of the reason that that finding of fact is based on evidence and after careful appreciation of the facts of the case. It is also submitted that the readiness and willingness of the plaintiffs to perform their part of the contract is an inference drawn from the totality of the facts and circumstances of the case. It is also submitted that other relevant facts considered by the two Courts below cannot be disputed by the appellants. 12. I considered the submissions of the learned Counsel for the parties and perused the facts of the case. 13. So far as first appellate Court’s finding that the plaintiffs did not plead their readiness and willingness to perform their part of the contract is concerned, that appears to be because of misreading as well as misconstruing the pleadings and in addition to above, because of hyper-technical view taken by the first appellate Court. But even if substantial question of law framed by the Court is decided in favour of the appellants, no relief can be granted to the appellants because of the simple reason that the two Courts below after careful analysis of the evidence and appreciating the facts of the case and circumstances, held that the plaintiffs failed to show their readiness and willingness to perform their part of the contract and that finding of fact has not vitiated because of no reason. 14. It will be worthwhile to mention here that according to the plaintiffs, they entered into agreement for purchase of agricultural land measuring 16 bighas from Defendant No. 1 for a consideration of Rs. 5,251/-. Admittedly, they had no money to pay any amount on 010.1976 as has been admitted by the plaintiffs. The petty amount of even Rs. 350/- only was paid to defendants by borrowing the amount on interest @ 24% per annum. 5,251/-. Admittedly, they had no money to pay any amount on 010.1976 as has been admitted by the plaintiffs. The petty amount of even Rs. 350/- only was paid to defendants by borrowing the amount on interest @ 24% per annum. The plaintiffs’ own case was that time for execution of sale was only four days within which the plaintiffs were to pay the balance amount. According to the plaintiffs, they offered amount of Rs. 4,900/- to Defendant No. 1 as stated by PW . 1 Onkar Lal. There is no trustworthy evidence in support of it. The plaintiffs even did not produce copy of notice dated 112.1976 from which it could have been found out whether the plaintiffs offered balance amount to Defendant No. 1 on 4th day or within four days which was the time for performance of the contract by the plaintiffs. Said one fact itself might not have been a fact against the plaintiff as time was too short for performance of contract relating to sale to immovable property and time is not always essence of contract in such matter but said fact coupled with peculiar facts of having consideration of Rs. 5,251/-(odd figure amount) with payment of Rs. 350/-as advance for 16 bighas land that too sale agreement in favour of four persons, who jointly had no money, Rs. 350/-and who took this petty amount on loan on interest @ 24% per annum and they agreed to pay, “then huge” amount of Rs. 4,900/-within four days, all makes it totally suspicious and both the Courts below did not consider these facts. In view of the above reasons, there was sufficient reason for not passing the decree for specific performance of the contract and, therefore, this Court is not inclined to interefere with the finding of fact recorded by the Courts below on issue of fact whether the plaintiffs were ready and willing to perform their part of the contract or not. 15. Apart from it, it will be now unjust and inequitable to grant any decree in favour of the plaintiffs for specific performance of the contract dated 010.1976 which shall be after almost 30 years from the date of the agreement in a case where it has been alleged that out of the total sale consideration of Rs. 5,251/-, only Rs. Apart from it, it will be now unjust and inequitable to grant any decree in favour of the plaintiffs for specific performance of the contract dated 010.1976 which shall be after almost 30 years from the date of the agreement in a case where it has been alleged that out of the total sale consideration of Rs. 5,251/-, only Rs. 350/-was paid by the plaintiffs to Defendant No. 1 and the balance amount has not been paid and further in a case where possession of the property is with the seller since last 30 years. 16. In view of the above, I do not find any merit in this appeal. The appeal of the appellant is, therefore, dismissed.