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Madhya Pradesh High Court · body

2008 DIGILAW 647 (MP)

Girjashankar v. Taradevi

2008-05-02

SUBHASH SAMVATSAR

body2008
JUDGMENT 1. This appeal is preferred by the defendants being aggrieved by the judgment dated 17.7.1998 passed by First Additional District Judge, Gwalior in Civil Appeal No. 31N98 and 69N98 whereby the first appellate Court has modified the judgment and decree dated 20.3.1996 passed by 8th Civil Judge Class II in Civil No. 139/96. 2. The brief facts of the case are that the appellant plaintiff filed the present suit for specific performance against the respondents alleging that the two portion of the house in question was purchased by plaintiff and defendant jointly from the same owner for equal consideration and registered sale deed dated 27.2.1986 was executed in favour of the defendant while sale deed dated 28.2.1986 was executed by him in favour of the plaintiff. According to the plaintiff the portion falling in the share of defendant is 73.68 sq. meter while plaintiff got portion of the property measured 68.84 sq. meter. Thus, the plaintiff has got 4.84 sq. meter less then the defendant. According to the plaintiff on 15.8.1987 there was an oral agreement between the parties before the husband of plaintiff and the father of defendant whereby it was agreed that the 4.84 sq. meter of land will be sold by the defendant in favour of the plaintiff .on payment of consideration of Rs. 2,000/- and accordingly plaintiff was put in possession of the said portion and he has constructed wall for him. The said line in the portion as map Ex. P-l. 3. Defendant filed written statement and denied the allegations made in the plaint. The trial Court after framing issues and appreciating the evidence, decreed the suit filed by the plaintiff for specific performance and granted decree for specific performance and also awarded compensation to the defendants to the tune of Rs. 4,000/- from the plaintiff. 4. This judgment and decree was challenged by both appellant and defendant by filing two separate appeals. The appellate Court affirmed the decree for specific performance, but set aside the condition of payment of compensation Rs. 4,000/-. Thus, plaintiff suit was decreed in toto, hence this second appeal. 4,000/- from the plaintiff. 4. This judgment and decree was challenged by both appellant and defendant by filing two separate appeals. The appellate Court affirmed the decree for specific performance, but set aside the condition of payment of compensation Rs. 4,000/-. Thus, plaintiff suit was decreed in toto, hence this second appeal. This second appeal was admitted on 30.11.2005 by this Court on the following substantial question of law: "(i) Whether the Courts below have erred in passing decree for specific performance against the present appellants on the basis of oral agreement to sell?" "(ii) Whether the Courts below have erred in holding that plaintiff is entitled to benefit of section 53-A of the Transfer of Property Act, when there is no written agreement between the parties?" "(iii) Whether the finding of the Courts below that the present appellants had granted licence to the respondents for transaction orally is perverse and contrary to the evidence on record?" 5. As regards question No. 1 is concerned, the decree for specific performance can be passed in the present case on the basis of an oral agreement. Under the law there is no bar against the passing a decree for specific performance on the basis of an oral agreement. However, when the plaintiff based his suit on the basis of an oral agreement to sale then it was the duty on plaintiff to disclose all material facts and particulars with all the conditions of the agreement and surrounding circumstances, including the fact that if oral agreement was entered into the parties then whether it was in the presence of any person and if there was any mediator who was he and what negotitation took place and if the agreement was acted upon then all the material particulars, how it was acted upon which includes the writing of any documents by the parties, including the payments, mode of payment receipt if was exected or the transaction was entered into books of accounts and what are the entries which are in the handwriting of other parties. These basic facts are required to make the other party know about the detail facts which will be used by the party king performance of contract against the other party, so that the other party can take the defences. It also avoids chances of subsequent improvement otherwise it may put the other party disadvantageous position. These basic facts are required to make the other party know about the detail facts which will be used by the party king performance of contract against the other party, so that the other party can take the defences. It also avoids chances of subsequent improvement otherwise it may put the other party disadvantageous position. It can safely be said that by not getting the document in writing for sale of immovable property, the purchaser takes a serious risk because normally there appears no reasons for non execution of the agreement for sale evidencing the transaction containing the terms and conditions when it is case of immovable property. Even if the oral agreement there is no law and enforcement through the Court of law even though the plaintiff is required to prove the oral agreement with certainty so that the Court can enforce the agreement to sell in entirety and unless and until all the conditions are not before the Court relating to the contract requiring performance by the parties then this Court cannot enforce the agreement which is required to be enforced specifically and not generally. 6. In the present case, the plaintiff has pleaded oral contract, in para 3 of the plaint, however, from the terms and condition mentioned in para 3, I find that there is no averment that any advance amount was paid by the plaintiff to the defendant at the time of agreement. There is no mention who was mediator about the agreement and in whose presence the agreement was entered into. Even the time limitation for execution in the sale deed or payment of money is not mentioned in the plaint. In absence of these particulars, it cannot be held merely on the basis of oral statement made by the purchaser plaintiff that there was an oral agreement between the parties. In the present case the two Courts below after appreciating the evidence have concurrently found that the agreement is proved. But in absence of particulars of the agreement the said finding cannot be sustained in the eye of law. In the present case the two Courts below after appreciating the evidence have concurrently found that the agreement is proved. But in absence of particulars of the agreement the said finding cannot be sustained in the eye of law. If plaintiff suit for specific performance is decreed only on the basis of oral agreement and the said decree maintained then it will be cause great hardship to the defendant, particularly when the defendant as it will be very easy for person to get property by making allegation about oral agreement and by examining few witness in his support. Moreover, the property is situated in the urban area and the alleged agreement is of the year 1987. The prices in the urban area has gone up in all these years. In the present case as per plaint of the plaintiff, he has not paid any amount in advance to the appellant. Now in passing of decree for specific performance against the present appellant will result in great hardship. In view of these facts now exercising discreation in favour of the plaintiff when grade hardship to the respondent. Hence, in the present case it is held that the defendant plaintiff is not entitled to get decree for specific performance against the appellant. 7. As regards question No.2 is concerned the language of section 53 A' of the Transfer of Property Act, itself clearly mentioned that the purchaser can protect interest under principle of part performance only under written agreement. 8. In the present case, admittedly no written agreement is on record. Thus, in considered opinion of this Court the two Courts below erred in granting the decree for specific performance on the alleged agreement. 9. Hence, this appeal is allowed. The judgment and decree of the two Courts below are set aside. It is held that the plaintiff is not entitled for a decree for specific performance nor he is entitled to the possession in view of the section 53F of the Transfer of Property Act.