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2009 DIGILAW 753 (PNJ)

Abhay Singh v. Ramesh Kumar

2009-04-21

AJAY K.MITTAL

body2009
Judgment Ajay Kumar Mittal, J. 1. This regular second appeal filed by defendants No. 3, 5 and the legal heirs of defendant No. 2-Teeka Singh is directed against the judgment and decree dated 15.9.2008 passed by the Additional District Judge, Rewari, whereby that of the Additional Civil Judge (Senior Division), Rewari dated 17.10.2007, dismissing the suit of the-plaintiff for specific performance of the agreement dated 4.8.1997 had been set aside and the suit was decreed. 2. Briefly stated, the facts of the case are that the plaintiff, Ramesh Kumar filed a suit for possession by way of specific performance of the agreement dated 4.8.1997 on the averments that defendant No. 1 being general power of attorney of defendant No. 2 entered into an agreement to sell the land situated within the revenue estate of village Pehrajwas, fully detailed in para No. 1 of the plaint (hereinafter referred to as the "suit land") for a sale consideration of Rs. 4,60,000/- and received the entire amount of the sale consideration in the presence of the witnesses. It was pleaded that possession of the suit land was handed over to the plaintiff and the sale deed was agreed to be executed upto 31.1.1998 owning to the pendency of the civil suit titled as `Abbey Singh and others v. Teeka Singh and others. It was further pleaded that the plaintiff was ready and willing to perform his part of the contract and to get the sale deed executed but the defendants failed to execute the same despite the dismissal of the aforesaid suit on 24.8.1998. The plaintiffs also served a registered legal notice upon the defendants. to get the sale deed of the suit land registered in pursuance of the agreement or to make the payment of Rs. 9,20,000/- (i.e. double the amount of Rs. 4,60,000/- paid at the time of execution of the agreement) with interest and costs. Despite repeated requests, the defendants had refused to get the sale deed registered in favour of the plaintiff. 3. Upon notice, five sets of written statements were filed by the defendants. Defendant No. 1 in his written statement besides raising various preliminary objections pleaded that he entered into the agreement with the plaintiff to sell the suit land with the plaintiff in the capacity of a general power of attorney of defendant No. 2, who had the knowledge of the said transaction. Defendant No. 1 in his written statement besides raising various preliminary objections pleaded that he entered into the agreement with the plaintiff to sell the suit land with the plaintiff in the capacity of a general power of attorney of defendant No. 2, who had the knowledge of the said transaction. It was further pleaded that no cause of action arose against the answering defendant as defendant No. 2 had already alienated the suit land before the date fixed for the execution of the sale deed in pursuance of the agreement dated 4.8.1997. 4. Defendant No. 2 pleaded that defendant No. 1 had no authority to enter into the agreement to sell the suit land to the plaintiff. No amount of sale consideration, as alleged by the plaintiff, was ever received by him and the agreement in question was the result of collusion between the plaintiff and defendant No. 1. It was further pleaded that the suit land was under the possession of Abbey Singh, defendant No. 3, who had become owner of the same by way of adverse possession as the partition application filed by the plaintiff was dismissed on 27.2.1959 and thereafter on 6.4.1960 and that the agreement dated 4.8.1997 was just a paper transaction. 5. Defendant No. 3 in his separate written statement pleaded that he was a bona fide purchaser for valuable consideration and that defendant No. 1 had no authority to enter into agreement with the plaintiff to sell the suit land on behalf of defendant No. 2 and that the alleged agreement was false and fictitious as the answering defendant was owner in possession of the suit land. 6. Defendant No. 4 filed his written statement almost on the similar lines to that of defendant No. 3 except pleading that he had purchased the suit land vide registered sale deed dated 27.10.1997. 7. Defendant No. 5 pleaded that the agreement to sell dated 4.8.1997 was based upon facts as defendant No. 1 never received a sum of Rs. 4,60,000/- from the plaintiff. It was further pleaded that the plaintiff was not in possession of the suit land, rather defendant No. 3 was in possession of the same. 8. From the pleadings of the parties, the trial court framed the following issues : "1. 4,60,000/- from the plaintiff. It was further pleaded that the plaintiff was not in possession of the suit land, rather defendant No. 3 was in possession of the same. 8. From the pleadings of the parties, the trial court framed the following issues : "1. Whether the plaintiff is entitled to relief of specific performance by getting sale deed registered in his name pertaining to the land in dispute vide agreement to sale deed dated 4.8.1997 ? OPP 2. Whether the suit is not maintainable in the present form ? OPD 3. Whether the defendants No. 2 to 5 are continuing as owner in possession of the suit land by way of adverse possession ? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD Para 3 was recast by the trial court which is as under :- "3. Whether the defendants No. 3 to 5 are bona fide purchasers for value and consideration ? OPD" 9 The trial court on appreciation of the oral as well as the documentary evidence led by the parties decided issue No. 1 against the plaintiff holding that since he had not been able to prove the execution of the agreement, he was not entitled to the relief of specific performance of the agreement to sell, Ex.P 1. Issue No. 2 was decided in favour of the defendants holding that the suit was not maintainable in the present form, whereas issue No. 3 was decided against the defendants holding that defendants No. 3 to 5 had not adduced sufficient evidence to prove that they were bona fide purchasers for value and consideration. Issue No. 4 was also decided against the defendants. accordingly, the trial Court vide judgment and decree dated 17.10.2007 dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff took the matter in appeal before the lower appellate court which vide judgment and decree dated 15.9.2008 accepted the appeal and decreed the suit of the plaintiff for specific performance of the agreement to sell, Ex.Pl. The lower appellate court directed the defendants to get the sale deed qua the suit land registered in favour of the plaintiff. Hence, the present appeal by defendants No. 3 to 5 and the legal heirs of defendant No. 2. 10. I have heard the learned counsel for the appellants and have perused the impugned judgments with his assistance. 11. The lower appellate court directed the defendants to get the sale deed qua the suit land registered in favour of the plaintiff. Hence, the present appeal by defendants No. 3 to 5 and the legal heirs of defendant No. 2. 10. I have heard the learned counsel for the appellants and have perused the impugned judgments with his assistance. 11. The appeal raises two primary issues for adjudication, namely; a) whether agreement to sell dated 4.8.1997 (Ex.P1) had been validly executed between the parties; b) once the execution of agreement to sell is proved, whether decree for specific performance was required to be passed in the present case. 12. Adverting to the first point, it requires special mention that the trial Court on the basis of suspicion, conjectures and surmises arrived at the conclusion that agreement to sell dated 4.8.1997 was not proved. However, the lower appellate Court after evaluating the evidence on record and particularly the situation when the General Power of Attorney, defendant No. 1-Jagmal Singh had admitted the execution of the agreement of sale and passing of consideration had concluded that a legal and valid agreement of sale came into existence between the parties. The findings recorded by the lower appellate Court in para 17 read thus :- "17......It is note worthy that in this peculiar case, respondent No. 1-Jagmal Singh had filed the written statement admitting the claim of the appellant. As per the contents of the general power of attorney Ex.PW8/1, Jagmal Singh is the real brother-in-law (SALA) of respondent No. 2-Tikka Singh. Although, during the proceedings of the case, respondent No. 1 Jagmal Singh was proceeded against ex parte. It means that he did not resist the present suit. It is again note worthy that respondent No. 2-Tikka Singh has also not appeared into the witness-box to controvert the allegations of the appellant nor any evidence has been led by his LRs during the case. Respondent No. 1 has categorically admitted that he executed the agreement to sell on behalf of respondent No. 2 and received the amount of Rs. 4,60,000/- from the appellant. Admission is the best piece of evidence. The execution of the agreement to sell dated 4.8.1997, Ex.P1, is at least duty proved on the strength of the statement of PW2 Chatarbhuj, deed writer, because the same finds mentioned in his register at serial No. 308. 4,60,000/- from the appellant. Admission is the best piece of evidence. The execution of the agreement to sell dated 4.8.1997, Ex.P1, is at least duty proved on the strength of the statement of PW2 Chatarbhuj, deed writer, because the same finds mentioned in his register at serial No. 308. The copy of the register has also been proved. PW9 Ramesh Kumar has categorically stated that he paid the amount of Rs. 4,60,000/- at the time of execution of agreement to sell by the respondent No. 1. The person, who has taken the money on behalf of the respondent No. 2 being the general power of attorney has admitted this fact. It is also mentioned that respondent No. 1 handed over the entire money to respondent No. 2. The document, i.e. agreement to sell Ex.P1, stands duly proved." 13. The aforesaid finding of fact being based on evidence does not call for any interference in this appeal. 14. Once execution of the agreement to sell stood established, the next important question that is to be seen is - whether specific performance has been rightly granted by the lower appellate court. Section 20 of the Specific Relief Act, 1963 (in short "the Act") deals with the discretion of the court in directing specific performance of an agreement of sale and Section 21 of the Act provides for awarding compensation in suitable cases. The aforesaid provisions came up for consideration before this Court in Dharampal Sood v. Atul Thapar, 2006 (3) R.C.R. (Civil) 221, wherein while analyzing the aforesaid provisions, it was held that :- "17. A bare reading of Section 20 of the Act shows that the discretion has been conferred on the court to decree a suit for specific performance and the court is not bound to pass such a decree merely because it is lawful to do so but the discretion has to be exercised in a judicial and reasonable manner and should not be arbitrary. The discretion has to be exercised keeping in view the facts of the case and to do justice between the parties. Sub-section (2) of the said Section clearly enumerates the cases in which the Court should not exercise discretion in passing a decree for specific performance. The discretion has to be exercised keeping in view the facts of the case and to do justice between the parties. Sub-section (2) of the said Section clearly enumerates the cases in which the Court should not exercise discretion in passing a decree for specific performance. Sub-section (3) provides wherein the court may exercise discretion to decree specific performance where the plaintiff has done substantial acts and suffered losses in consequence of a contract which is capable of specific performance. The court under sub-section (4) shall not refuse specific performance merely on the ground that the contract is not enforceable at the instance of the other party. Section 21 of the Act provides for jurisdiction of the Court to award compensation in certain cases." 15. Further, this Court in Swaran Singh v. Swarn Kaur and others, (2004-2)137 P.L.R. 184 had held that in a suit for specific performance of an agreement with regard to the sale of immovable property, the normal rule is to allow the specific performance and it is only in rare circumstances that the said relief may he denied. Nothing could be shown that the normal rule has to be deviated in the present case or that the discretion exercised by the lower appellate court directing specific performance of agreement to sell is erroneous or perverse in any manner. 16. Still further, the trial court had decided issue No. 3 against the defendants holding that defendants No. 3 to 5 were not bona fide purchasers. The lower appellate court while affirming the aforesaid finding, concluded that the subsequent sale-deeds executed by defendant No. 2 in favour defendants No. 3 to 5 had got no binding affect on the plaintiff and, therefore, decreed the suit of the plaintiff while setting aside the judgment and decree of the trial Court. No illegality or perversity could be found in the findings recorded by the lower appellate court which may warrant interference by this Court in the regular second appeal. 17. No question of law, much less a substantial question of law arises in this appeal for determination by this Court. 18. Accordingly, finding no merit in this appeal, the same is hereby dismissed. There shall, however, be no order as to costs.