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Chhattisgarh High Court · body

2006 DIGILAW 76 (CHH)

UMASHANKER SAO v. SONSAI SAHU

2006-02-08

V.K.SHRIVASTAVA

body2006
( 1 ) THIS appeal is directed against the judgment and decree dated 4-7-1996 passed by the learned additional District Judge, Surajpur, in Civil Suit No. 27-A/92 whereby the suit for specific performance of the contract, has been decreed. ( 2 ) APPELLANT and respondent entered into an agreement on 10-2-1989 for sale of land bearing Khasra No. 926/1 area O. 20 decimal @ Rs. 1050/- (Rupees one thousand fifty) per decimal and the appellant received an advance of Rs. 5,000/- (Rupees Five thousand) towards this agreement. There was a condition that the appellant after demarcating the land shall execute a registered sale deed for the land available there up to the extent of O. 20 decimal @ Rs. 1050/- (Rupees One thousand and fifty ). But, the appellant neither got the suit land demarcated nor executed the sale deed; despite several attempts made by the respondent to get the sale deed executed. Ultimately, the respondent served a registered notice demanding execution of registered sale deed after demarcation of the suit land. Instead of performing the remaining part of contract, i. e. , demarcation of land and execution of sale deed, replied that he is ready to sell the land @ Rs. 2,000/- (Rupees two thousand ). Hence, the respondent filed a civil suit for specific performance of contract and in alternative for refund of advance with interest @ 18%. ( 3 ) APPELLANT denied the claim and pleaded that the value of land was not finalized. No amount was received by him. As per agreement, the identity of land has not been mentioned. The value was to be determined after demarcation of the land. The liability for demarcation was rested on the respondent. Respondent neither got the suit land demarcated for two years nor was anxious to purchase the same. When notice was served on him, he replied that if the respondent is willing to purchase the land described in agreement he can sell the same at the prevailing rate within one month, but the respondent did not take any interest towards it. As the respondent has not complied with the terms and condition of agreement, therefore, he is responsible for breach of contract. Set apart, the suit land is coparcenary joint property of Hindu Undivided family belonging to appellant and other members of appellant's family. As the respondent has not complied with the terms and condition of agreement, therefore, he is responsible for breach of contract. Set apart, the suit land is coparcenary joint property of Hindu Undivided family belonging to appellant and other members of appellant's family. ( 4 ) BOTH the parties adduced the evidence in support of their cases. ( 5 ) LEARNED trial Court minutely appreciating the evidence held that the appellant alone is the owner of the suit land bearing khasra No. 926/1, situated at Chandrapur, who executed agreement to sell the land o. 20 decimal @ Rs. 1050/- (Rupees One thousand and fifty) per decimal to respondent on 10-2-1989 and received an advance of Rs. 5,000/- (Rupees Five thousand) towards it with a condition that after demarcation the sale deed shall be executed. Learned trial Court further held that the respondent was always willing and ready to purchase the same, but the appellant neither got the suit land demarcated nor executed the sale deed. Therefore, respondent is entitled for the decree of specific performance of the contract. ( 6 ) BOTH the parties are heard and record of lower Court perused. ( 7 ) APPELLANT's contention is that the execution of sale deed was subject to demarcation, but the respondent failed to get it demarcated. Per contra, respondent's contention is that it was for the appellant to get the land demarcated who wilfully avoided to get it demarcated. ( 8 ) LEARNED trial Court deeply examined the factual and legal scenario and arrived at the conclusion that the responsibility for getting the land demarcated was on the appellant who did not perform his part of demarcation. It was for the recorded bhoomiswami of the suit land to apply and get the land demarcated and admittedly the recorded Bhoomiswami was the appellant. Therefore, the responsibility for getting the suit land demarcated was on the appellant. From the evidence of Sonsai (PW/1) and ramkaran (PW/3), it is apparent that on the invitation of appellant to present at the time of demarcation they were present on the spot, but the land could not be demarcated because of the appellant who insisted the revenue Inspector to demarcate the land along with the house adjoining to it and the owner of the house was not present. Nothing substantial was brought in the cross-examination so as to disbelieve their version. Nothing substantial was brought in the cross-examination so as to disbelieve their version. This fact also establishes that the burden of demarcation of the suit land was on the appellant who did not get the suit land finally demarcated. ( 9 ) APPELLANT's further contention is that the suit land is coparcenary property of joint hindu Undivided Family and he is one of the co-parceners. Therefore, he was not entitled to sell any part of the joint property of hindu Undivided Family. To prove that the suit land was joint property of Hindu Undivided Family, no documentary evidence has been adduced. From the evidence of Sonsai (PW/1 and Uma Shankar (DW/1), it is clearly established that Uma Shankar is the son of Kanhaya Sao and the suit land was self acquired property of Kanhaya Sao. There is no bar to sell the land belonging to the appellant. Therefore, if he pleads that he has partial interest over all the property of his father, in that case also to the extent of his share he was competent to sell. Learned trial court very minutely considered the evidence adduced by both the parties on record and held that if for the sake of argument, it may be held that the appellant alone is not the owner of the suit property and the suit property was owned by Hindu undivided Family in that case also appellant was not relieved from his responsibilities. ( 10 ) APPELLANT further contended that the agreement (Ex. P/1) does not contain any description of the suit land. Neither boundary of the land has been specified nor Khasra number has been shown. Therefore, the agreement is vague and cannot be enforced. Per contra, respondent submits that at the time of agreement Khasra number was not known, but the land was shown and in evidence and pleading correct description not only by Khasra number but also boundary of the land has been brought on record. ( 11 ) IT is clear from proviso 2 of Section 92 of the Evidence Act that if document is silent on any matter and which is not inconsistent with the terms that can be proved. Therefore, in the instant case although in agreement (Ex. P/1)detailed description of the suit land or its boundary has not been mentioned, despite that by oral evidence the identity of the suit land can be established. Therefore, in the instant case although in agreement (Ex. P/1)detailed description of the suit land or its boundary has not been mentioned, despite that by oral evidence the identity of the suit land can be established. Sonsai (PW/1) and Ram Karan (PW/3) in their statements have clearly deposed that they accompanied the appellant and have gone to spot to inspect the land. On the west of the suit land the house of "sethain" is there, on south there is a road, on east there is a road and on north there is a road leading to Manindragarh. So far as khasra number is concerned, the evidence of Sonsai (PW/1) is that at the time of measurement he got the Khasra number from the Inspector. Although Uma Shankar (DW/ 1) denied these facts, but in his evidence he did not say or disclosed the identity of the disputed land or its Khasra number. In cross-examination he says that he was inclined to sell the land situated at north of the road and that land was about 15 decimals. He denied the fact that Patwari disclosed to Sonsai that the land bears Khasra no. 926/1. ( 12 ) LEARNED trial Court appreciated the evidence at length and held that the agreement was executed to sell 20 decimal of land bearing Khasra No. 926/1 @ Rs. 1050/- (Rupees one thousand fifty) per decimal on 10-2-1989. The evidence regarding identity of the suit land placed on record by the respondent does not suffer from any infirmity and the reasoning and appreciation of the trial Court are also based on proper appreciation of evidence. Therefore, it was proved that the appellant on 10-2-1989 agreed to sell 20 decimals of land bearing Khasra No. 926/1 situated at Chandrapur. Therefore, although in agreement to sell (Ex. P/1) no description of the suit land its Khasra number has been mentioned, yet that does not vitiate the said agreement and the said agreement was not void because of any uncertainty as per Indian Contract Act, 1929. ( 13 ) APPELLANT's further contention is that the agreement is void as no consideration of Rs. 5,000'/-" (Rupees Five thousand) has been paid to appellant. This contention has no force because agreement (Ex; P/1) has been signed by the appellant and the document contains the recital that the appellant received an advance of Rs. ( 13 ) APPELLANT's further contention is that the agreement is void as no consideration of Rs. 5,000'/-" (Rupees Five thousand) has been paid to appellant. This contention has no force because agreement (Ex; P/1) has been signed by the appellant and the document contains the recital that the appellant received an advance of Rs. 5000/- and oral evidence of Sonsai (PW/1) and Ramkaran (PW/3) which is credible duly corroborated with the evidence of Ramkhilawan Gupta (PW 2) clearly proves that the appellant received an advance of Rs. 5,000/- from the respondent. ( 14 ) APPELLANT's further contention is that the learned lower Court completely lost sight of the provisions contained in Sections 9, 10, 20 and 22 of the Specific Relief Act while passing the judgment and decree of specific performance of the contract. I am afraid to accept the contention of the appellant looking to the overwhelming evidence in favour of the respondent as well as finding of the lower Court which is neither perverse nor without evidence. It is established that the appellant who is' the owner of the suit land entered into contract to sell the suit land to respondent @ Rs. 1050/- per decimal and received an advance of Rs. 5,000/- (Rupees five thousand) and failed to perform his part of getting the land demarcated and executed the sale deed though the respondent was willing and ready to purchase the same who for the same called on appellant by legal notice and it appears that by that time the value of the suit land had increased, therefore, the appellant, was ready to execute the sale deed on prevailing market rate, which is not permissible. There is nothing which prohibits the passing of decree of specific performance of the contract. ( 15 ) IN the result, I agree with the findings of the lower Court which are neither perverse nor erroneous. Therefore, the appeal filed by the defendant/appellant is liable to be dismissed and is accordingly dismissed. ( 16 ) APPELLANT shall pay the cost of the appeal to respondent. Advocate's fee as per rule. --- *** --- .