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2006 DIGILAW 469 (UTT)

Poorna Nand v. Smt. Prakashwati

2006-08-23

PRAFULLA C.PANT

body2006
JUDGMENT Prafulla C. Pant, J. 1. This appeal, preferred by the plaintiff (present appellant) under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 19-12-1977, passed by learned District Judge, Dehradun in Civil Appeal Nos. 162 of 1976 and cross objection No. 55 of 1977, whereby the appeal and cross objections are dismissed, affirming the judgment and decree dated 28-8-1976, passed in Suit No. 85 of 1975. The trial Court had dismissed the suit for specific performance of contract and decreed for recovery of Rs. 2,500/- paid to the defendant as part consideration by the plaintiff and further directed that plaintiff should restore the possession of land in suit to the defendant. 2. I heard learned Counsel for the parties and perused the entire record. 3. Brief facts of the case are that plaintiff-- appellant filed suit for specific performance of agreement to sell land in question and in alternative for recovery of damages from the defendant -- respondent. According to the plaint case, three brothers, namely Govind, Sobha and Ram Swaroop were bhumidhar of plot No. 488 in village Ajabpur Kalan in district Dehradun. The recorded area of said plot was 0.37 acres. By way of execution of three separate sale deeds, they transferred the land to Mohan Singh, Bhagwan Singh and defendant Prakashwati. Later, Mohan Singh transferred his share to Balbir Singh Sajwan, through a registered sale deed dated 12-4-1973. The three new owners partitioned the property by making over eastern portion (area 0.13 acres) to Balbir Singh, the middle portion (area 0.12 acres) to Prakashwati (defendant) and remaining 0.12 acres on the western side went to Bhagwan Singh. Thereafter, vide agreement dated 25-6-1973, Smt. Prakashwati agreed to sell the land, owned and possessed by her, to plaintiff Poorna Nand for a sum of Rs. 5,000/-. Sale deed in pursuance of said agreement was to be executed by 25-6-1974 and one of the terms of the agreement was that vendor would get her share demarcated and the boundary walls erected around the same. Later, the period for execution of the sale deed was extended by 31-3-1975 as the defendant failed to raise the boundary wall over land agreed to be sold. However, later on it was found that the land actually possessed by the defendant was only 0.072 acres and not 0.12 acres. Later, the period for execution of the sale deed was extended by 31-3-1975 as the defendant failed to raise the boundary wall over land agreed to be sold. However, later on it was found that the land actually possessed by the defendant was only 0.072 acres and not 0.12 acres. The rest of the land of plot No. 488 was possessed by other two owners. Meanwhile, the plaintiff got possession of the said area of 0.072 acres of land from the plaintiff, but sale deed remained to be executed. On this, the plaintiff served notice on the defendant for alleged violation of her part in executing sale deed and filed suit for specific performance of contract and in alternative recovery of the consideration paid by the plaintiff to the defendant. 4. The defendant-respondent Prakashwati contested the suit but she admitted having executed agreement to sell 0.12 acres of land to the plaintiff-appellant. However, she pleaded that consideration agreed to be paid was Rs. 6,000/-. She further pleaded that the plaintiff took advantage of condition mentioned in the agreement regarding the measurement and demarcation of the plot and made misrepresentation as to the boundary of the plots. On this ground it is pleaded by the defendant that she is not bound to execute the sale deed in favour of the plaintiff. It is also alleged by the defendant that defendant never refused to execute the sale deed or to sell the land owned by her i.e. 0.12 acres, but the plaintiff wants that sale deed be executed only in respect of 0.072 acres, for lesser consideration. 5. The trial Court after going through the pleadings of the parties, framed following issues: i) Whether, the defendant owned and possessed 0.12 acres of land on the spot, agreed to be sold to the plaintiff? ii) Whether, the plaintiff is bound to pay full agreed price of Rs. 6,000/-, even after the area of the plot found is less than the agreed one? iii) Whether, the plaintiff is entitled to any reduction in price in proportion and damages for the land not available in possession with defendant? iv) Whether, the defendant is entitled to forfeit the amount of Rs. 2,500/- paid to her as advance amount of consideration? 6. iii) Whether, the plaintiff is entitled to any reduction in price in proportion and damages for the land not available in possession with defendant? iv) Whether, the defendant is entitled to forfeit the amount of Rs. 2,500/- paid to her as advance amount of consideration? 6. Learned trial Court, after recording the evidence and hearing the parties, decided that it is not proved on the record that the defendant actually possesed 0.12 acres of land, for which she agreed to transfer it to plaintiff. It further held that plaintiff could purchase land in suit only for Rs. 6,000/-, whether the area is 0.12 acres or less than that and the price cannot be reduced for the lesser area. Lastly, it is found that the plaintiff is entitled to recover the amount of consideration to the tune of Rs. 2,500/- from the defendant. With these findings, the suit for specific performance of contract was dismissed and it is decreed for recovery of Rs. 2,500/- with the direction that the plaintiff should restore possession of the land back to the defendant. 7. Against said judgment and order dated 28-8-1976, passed in suit No. 85 of 1975, the plaintiff preferred civil appeal No. 162 of 1976 and the defendant filed cross objection No. 55 of 1977, before the first appellate Court. After hearing the parties, the first appellate Court dismissed the appeal as well as the cross objections. Aggrieved by the same plaintiff-appellant has preferred this appeal. 8. The substantial question of law on which this appeal was admitted by the Allahabad High Court, on 10-4-1979, reads as under: Whether, in the facts and circumstances of the case, the Courts below were justified in dismissing the suit of plaintiff- appellant, for specific performance of contract and refusing to reduce the sale price in proportion to the actual area on land in dispute available with the defendant on the spot? 9. It is admitted between the parties that defendant respondent had executed agreement dated 25-6-1973 in favour of the plaintiff-appellant to sell her land, owned by her, in plot No. 488 in village Ajabpur Kalan. It is also clear from the pleadings and evidence on record that dispute erupted between the parties on account of the fact that area of the land agreed to be sold was shown to be 0.12 acres while actually the possession of the defendant-respondent was over only 0.072 acres. It is also clear from the pleadings and evidence on record that dispute erupted between the parties on account of the fact that area of the land agreed to be sold was shown to be 0.12 acres while actually the possession of the defendant-respondent was over only 0.072 acres. 10. Before further discussions, it is pertinent to mention here the relevant provision of law applicable to the case. Sub-section (2) and Sub-section (3) of Section 12 of the Specific Relief Act, 1963, reads as under: 12. Specific performance of part of contract-- (1) ... (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 suit 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) pays or has paid 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)... 11. The Courts below have refused decree of specific performance of contract on the ground that the actual area at the spot was not found as mentioned in the agreement of sale. (4)... 11. The Courts below have refused decree of specific performance of contract on the ground that the actual area at the spot was not found as mentioned in the agreement of sale. In the opinion of this Court, the Courts below have erred in law in dismissing the suit for specific performance of contract for sale of 0.072 acres of land found in possession of the defendant-respondent out of 0.12 acres of land agreed to be sold by her. The land actually on the spot i.e. 0.072 acres is larger part of area out of 0.12 acres. As such, the Courts below should have felt no difficulty in decreeing the suit for specific performance of contract, in view of the provisions of Section 12 of the Specific Relief Act, 1963. In this Second Appeal, also the plaintiff-appellant Poorna Nand has filed an application No. 4395 of 2006 with affidavit dated 16th April, 2006, in which it has been stated 'that inspite of the fact that an agreement was executed in respect of 0.12 acres of land and as per respondent she is only in a position to convey the title of 0.072 acres of land, the appellant is ready for the specific performance of the land available at the spot and he is also ready to relinquish all his right in respect of the balance land. The appellant is ready to purchase 0.072 acres of land for the consideration amount, which was for 0.12 acres of land.' 12. In Rachakonda Narayana v. Ponthala Parvathamma and Anr. , the Apex Court has held that as to the relief of directing the defaulting party to perform specifically so much of his part of the contract as he can perform, can be pleaded by the other party (plaintiff) at the appellate stage also when the fact of the defaulting party's inability to perform a part of the contract comes to his knowledge. In view of said principle of law, the plaintiff-appellant is entitled to the relief of specific performance of contract for the purchase of 0.072 acres of land for a consideration (which was agreed for 0.12 acres of land), and the Courts below have erred in law in refusing the decree of specific performance of contract in favour of the plaintiff -- appellant, particularly, when the plaintiff-appellant has also got possession of the land (measuring 0.072 acres) from the defendant-respondent. Accordingly, the substantial question of law stands answered. 13. For the reasons as recorded above, the appeal deserved to be allowed. The same is allowed. The judgments and orders passed by the trial Court and the first appellate Court are set aside. The suit No. 85 of 1975 of the plaintiff-appellant is decreed for specific performance of contract to the extent of 0.072 acres of land (for a consideration agreed for land measuring 0.12 acres). The defendant-respondent shall execute the sale deed accordingly, within a period of one month from today, failing which the plaintiff -- appellant shall deposit the said remaining amount of consideration before the trial Court and get the decree executed through the Court Costs easy throughout.