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2009 DIGILAW 791 (PAT)

Ram Prasad Sao v. Sheo Prasad Sao

2009-05-19

V.N.SINHA

body2009
JUDGEMENT V.N.SINHA, J. 1. Defendants in a suit for specific performance of contract are the appellants. They are assailing the judgment and decree dated 18.3.1980 passed by the Additional Subordinate Judge-ll, Aurangabad in Title Suit No.10 of 1980/59 of 1978 whereunder the suit has been decreed directing the defendant no.1 to execute sale deed in respect of the suit lands within three months of the receipt of the balance consideration amount, failing which the court below shall execute the sale deed. Plaintiffs Case: 2. Defendant No.1 executed agreement for sale dated 9.9.1975 whereunder he agreed to sell the suit house situate over half decimal of land for Rs. 12,000/- after obtaining permission for such sale from the Consolidation authorities and in lieu thereof received a sum of Rs. 2,500/- as earnest money. The sale deed was to be executed on or before 28.2.1976 after payment/receipt of the balance amount of consideration money of Rs. 9,500/-. Details of the lands over which suit house is situate has been fully described in the agreement. Further case of the plaintiff is that he approached defendant no.1 for paying the balance consideration money of Rs. 9,500/- on 26.2.1976, 27.2.1976 and 28.2.1976 with request to execute the sale deed. Defendant No.1, however declined the request to receive the balance consideration money and execute the sale deed. Plaintiff thereafter served legal notice dated 22.2.1978, Exhibit-2 through registered post calling upon defendant nos.1. and 2 to accept the balance consideration amount and to execute the sale deed, failing which he shall initiate legal action against them and filed the instant suit on 10.6.1978 praying inter alia to pass decree for specific performance of contract directing defendant no.1 to accept the balance amount of consideration money and to execute the sale deed in terms of the agreement for sale dated 9.9.1975. Defendants Case: 3. Defendant Nos. 1 and 2 are son and mother respectively. They have filed separate written statement. The case of defendant no.1 is that the suit is under valued as also barred under the provisions of Specific Relief Act. According to him correct valuation of the suit house is more than 40,000/- His further case is that he executed the agreement for sale dated 9.9.1975 undertaking to sell his half share in the suit property to the extent of 1/4 decimal of land for Rs. 20,000/- and not half decimal of land for Rs. According to him correct valuation of the suit house is more than 40,000/- His further case is that he executed the agreement for sale dated 9.9.1975 undertaking to sell his half share in the suit property to the extent of 1/4 decimal of land for Rs. 20,000/- and not half decimal of land for Rs. 12,000/- and stipulations to the contrary made in the agreement is on account of fraud played on him by the plaintiff and his men. Her further pleaded that the assertion that he received the earnest money of Rs. 2,500/- on 9.9.1975, the date of execution of the agreement and that plaintiff approached him to pay the balance amount of consideration money on 27.2.1976 and 28.2.1976 and that he received legal notice dated 22.2.1978 is also incorrect and false. Defendant No.2 asserts that she is not a signatory to the agreement dated 9.9.1975, contents thereof are not binding on her. She being separate from her son, defendant no.1 is in exclusive possession over her share in the suit property to the extent of 1/4 decimal of area in the suit house. She further claimed that defendant no.1 is not the Karta of the Hindu undivided family. Defendant No.1 has executed the agreement for sale for lands more than his share. In this connection she pointed out that the suit house belonged to Bakhora Sao, who had two sons, Chamari Sao and Deocharan Sao. Chamari Sao died unmarried. His interest in the suit house devloved on his brother Deocharan Sao. Deocharan Sao died leaving behind his wife, Laxminia Devi, defendant no.2 and son, defendant no.1, who inherited the suit house in equal measure. She further reiterated that fraud was played on defendant no.1 at the time of execution of the agreement for sale and lands beyond his share was included in the agreement for sale as his share in the lands in question was only to the extent of 1/4 decimal but in the agreement 1/2 decimal of land was included reducing the consideration amount from Rs. 20,000/- to Rs. 12,000/-. 4. Trial court having considered the pleadings of the parties, framed the following issues:- i. Is the suit as framed maintainable? ii. Has the plaintiff got cause of action for the suit? iii. Is the suit barred by law of limitation and Specific Relief Act? iv. Is the suit under valued and court fee paid insufficient? 20,000/- to Rs. 12,000/-. 4. Trial court having considered the pleadings of the parties, framed the following issues:- i. Is the suit as framed maintainable? ii. Has the plaintiff got cause of action for the suit? iii. Is the suit barred by law of limitation and Specific Relief Act? iv. Is the suit under valued and court fee paid insufficient? v. Whether there was any contract for sell of the suit land between the plaintiff and defendant no.1 for Rs. 12,000/-? vi. Whether the defendant no.1 received Rs. 2,500/- as alleged? vii. Whether there was any separation between defendant nos. 1 and 2? viii. Whether the plaintiff was ready to perform part of his contract? ix. To what relief or reliefs, if any the plaintiff is entitled to? 5. In support of his case plaintiff examined 14 witnesses. P.Ws. 3, 5, 8, 9, 11, 12, 13 and 14 are formal witnesses and observation to that effect has been made in Paragraph 7 of the impugned judgment, which is not being disputed by the counsel for either of the parties. In the circumstances, this Court does not deem it necessary to consider the merit of their testimony. 6. P.Ws. 1 and 2 are the advocates court clerk, who having perused the agreement for sale, Exhibit-1 stated that they signed the impugned agreement for sale as witness. P.W.1 further confirmed that in his presence earnest money of Rs. 2,500/- was paid by the plaintiff to defendant no.1. P.W.2, however, stated that he is neither acquainted with the executant of the document nor with the proposed vendee, nor is able to recall about the negotiation preceding the execution of the agreement for sale. He further clarified that his deposition is on the basis of the contents of the document. P.W. 3 is the typist, who typed the legal notice, Exhibit-2 from the draft, which was handwritten. He also identified the signature of Shri Jag Narayan Babu, Advocate under whose signature legal notice was sent to the plaintiff. P.W. 4 is the scribe of the agreement for sale dated 9.9.1975 and he states that he explained the contents of the document to defendant no.1, who signed over the same in his presence after he was paid Rs. 2,500/- by the plaintiff as earnest money. P.W. 4 is the scribe of the agreement for sale dated 9.9.1975 and he states that he explained the contents of the document to defendant no.1, who signed over the same in his presence after he was paid Rs. 2,500/- by the plaintiff as earnest money. P.W.6 is the friend and Pairvikar of the plaintiff, in whose presence negotiation for finalizing the terms/conditions for sale was made, the consideration amount was finalized and reduced in the form of a document and signed by the executant and the witnesses. In terms thereof defendant no.1 had to execute the sale deed after obtaining permission from the Consolidation authorities and at the time of execution of the sale deed, the balance consideration amount of Rs. 9,500/- was to be paid to him by the plaintiff. He further stated that the Consolidation Officer was not granting permission for sale of the lands. He has clarified that the house in question is a double storeyed brick built house, in which there are two rooms and one shop. In Paragraph-6 he has stated that he does not know the exact location of the suit house. P.W. 7 is also a friend of the plaintiff, in whose presence plaintiff expressed his readiness to pay the balance consideration money of Rs. 9,500/- at the time of execution of the sale deed in terms of the agreement for sale, Exhibit-1 and requested defendant no.1 to execute the sale deed. P.W. 10 is the plaintiff himself. He has dealt at length the circumstances in which the negotiation for execution of the agreement for sale dated 9.9.1975 was executed and at the time of execution Rs. 2,500/- was paid to defendant no.1 as earnest money from the cash box of his shop, who undertook to execute the sale deed on or before 28.2.1976 after obtaining permission from the Consolidation Authorities. He has further asserted that on 26/ 27.2.1976 he requested defendant no.1 to accept the balance amount of sale consideration and to execute the sale deed. He further asserted that when defendant no.1 did not execute the sale deed in terms of the contract for sale then he served legal notice on both defendant nos. He has further asserted that on 26/ 27.2.1976 he requested defendant no.1 to accept the balance amount of sale consideration and to execute the sale deed. He further asserted that when defendant no.1 did not execute the sale deed in terms of the contract for sale then he served legal notice on both defendant nos. 1 and 2 through his lawyer under registered post calling upon them to accept the balance amount of the consideration money and to execute the sale deed in terms of the agreement, failing which legal action shall be initiated. He also deposed that he does not maintain any account in his shop. Besides the oral testimony, plaintiff relied upon agreement for sale dated 9.9.1975, Exhibit-1, lawyers notice dated 22.2.1978 and the postal receipts dated 22.2.1978, Exhibits-2 and 3A. 7. Defendants have examined 12 witnesses. Defendant No.1 is the shopkeeper of the neighbouring shop, alongwith D.W. 5 and has deposed about the inadequacy of the consideration money. D.Ws. 2, 3, and 4 have also deposed about the inadequacy of the consideration money and have further added that defendant no.2 is in possession of her share of the suit property i.e. 1/4 decimal. D.W.6 has denied payment of earnest amount by the plaintiff to defendant no.1 on the date of execution of the agreement for sale as also about the readiness of the plaintiff to pay the remaining consideration amount. D.W. 7 not only denied about the payment of the earnest money by the plaintiff to defendant no.1 on the date of execution of the agreement for sale but has further asserted that the recitals of the agreement for sale was never read over by the scribe to defendant no.1. D.W. 8 has not only deposed about the inadequacy of the consideration amount but also said that negotiation was made for sale of only 1/4 decimal of land and not for 1/2 decimal of land and that recitals of the agreement was never read over by the scribe to defendant no.1. He further asserts that no earnest money was paid by the plaintiff to defendant no.1 at the time of execution of the agreement. D.W. 9 is defendant no.2 herself. She has reiterated the contents of her written statement and further asserted that she is in possession of her half share in the suit property. He further asserts that no earnest money was paid by the plaintiff to defendant no.1 at the time of execution of the agreement. D.W. 9 is defendant no.2 herself. She has reiterated the contents of her written statement and further asserted that she is in possession of her half share in the suit property. D.W. 10 is the defendant no.1 himself and he has deposed that at the time of execution of the agreement for sale, fraud was played on him as the negotiation was made for sale of only 1/4 decimal of land at Rs. 20,000/- but on account of fraud played on him larger area to the extent of 1/2 decimal was included in the agreement for sale and the sale consideration of Rs. 20,000/- was reduced to Rs. 12,000/-. He further asserts in his deposition that nothing was paid to him as earnest money at the time of execution of the agreement for sale. D.Ws. 11 and 12 are formal witnesses. They have proved the contents of the documents, Exhibit-A, original sale deed dated 21.5.1975 and certificate of the Consolidation Officer dated 5.3.1980, Exhibit-B. 8. Having recorded the evidence, the trial court proceeded to first consider issue nos. 5 and 6 and in paragraphs 9 and 12 of the judgment and with reference to the agreement for sale dated 9.9.1975, Exhibit-I held that agreement for sale of half decimal of land for Rs. 12,000/- was executed on 9.9.1975 after Rs. 2,500/- was paid by the plaintiff to defendant no.1 as earnest money. In terms of the agreement, the sale deed was to be executed on or before 28.2.1976 after receipt of the balance consideration money as also after obtaining permission from the Consolidation Authorities. 9. In paragraphs 13 to 16 of the judgment, the trial court considered issue no.8 and with reference to the oral testimony of P.Ws. 6, 7 and 10, the plaintiff himself as also the contents of legal notice, receipt showing dispatch of legal notice under registered cover, Exhibits-2, 3 and 3/1 recorded a finding that plaintiff approached the defendant no.1 to perform his part of the contract in terms of the agreement for sale dated 9.9.1975. 10. Issue No.7 was considered in Paragraphs-17 to 19 of the judgment and it was held that the defendants have failed to prove the factum of separation between defendant nos. 1 and 2. 11. 10. Issue No.7 was considered in Paragraphs-17 to 19 of the judgment and it was held that the defendants have failed to prove the factum of separation between defendant nos. 1 and 2. 11. In Paragraphs 21 and 22 of the judgment, the learned trial court has considered issue no.4 about the valuation of the suit and the sufficiency of the court fee paid and found that the suit has been adequately valued and the court fee paid is sufficient. 12. From Paragraphs 20 and 23 it appears that issues nos. 1 and 3 have not been pressed. 13. In Paragraph 24 of the judgment, the learned trial court has considered issue nos. 2 and 9 and with reference to the findings recorded in regard to issue nos. 5, 6, 7 and 8 has decreed the suit directing defendant no.1 to execute the sale deed in respect of the suit lands within three months of the receipt of the balance consideration amount, failing which the plaintiff is entitled to get the sale deed executed by the court. 14. Learned counsel for the appellant has assailed the judgment and decree for specific performance of contract on the ground that the agreement for sale was contingent on the grant of permission by the Consolidation Authorities, until such permission is granted by the Consolidation Authorities, the contract cannot be enforced. In this connection, reference is made to the provisions contained in Sections 31 and 32 of the Indian Contract Act, 1872. 15. Learned counsel further submitted that consequence of failure to obtain such permission having not been provided in the contract, the contract was ab initio void and could not be enforced. Reliance in support of the aforesaid two submissions is placed on the judgment of this Court in the case of Shiva Shankar Rai @ Sheo Shankar Rai 6 Babu Janardan Rai, reported in 1986 PLJR 263 and on the judgment of the Honble Supreme Court in the case of Rojasara Ramjibhai Dahyabhai Vs. Jani Narottamdas Lallubhai (dead by LRs.) and Another, reported in AIR 1986 Supreme Court 1912. In the case of Shiva Shankar Rai @ Sheo Shankar Rai Vs. Jani Narottamdas Lallubhai (dead by LRs.) and Another, reported in AIR 1986 Supreme Court 1912. In the case of Shiva Shankar Rai @ Sheo Shankar Rai Vs. Babu Janardan Rai (supra), the learned Single Judge of this Court upheld the observations and findings of the lower appellate court that in the village in question consolidation operation had already begun, the contract for sale of land was contingent in nature, as it did not provide for consequence in case the permission to transfer the land under Section 5 of the Consolidation Act was refused by the Consolidation Authorities. In the case of Rojasara Ramjibhai Dahyabhai Vs. Jani Narottamdas Lallubhai (supra) the appellant/tenant by a contract had agreed to sell the lands to the respondent after the lands were converted into village site on grant of permission by the Collector. Later the appellant himself became the occupant of the lands in terms of the provisions contained in the Saurashtra Land Reforms Act, 1951 and the Bombay Land Revenue Code, 1898 and as an occupant applied for grant of permission for conversion of the disputed land into village site, which was allowed and the Supreme Court having noticed such grant in Paragraph-10 of the judgment observed that there was no legal impediment in the way of the appellant in executing the sale deed. 16. With reference to the aforesaid two case law, learned counsel submitted that in the instant case execution of the sale deed was subject to grant of permission by the Consolidation Authorities, the suit for specific performance of such agreement ought not to have been decreed as permission for execution of the sale deed was never granted by the Consolidation Authorities. In this connection learned counsel further submitted with reference to the certificate dated 5.3.1980, Exhibit-B, granted by the Consolidation Officer, that the suit house was beyond the consolidation scheme as it is located in the Rafiganj market area and the parties entered into the contract to execute the sale deed only after permission for such sale was accorded by the Consolidation Authorities, the contract could not have been executed unless such permission is accorded, as the parties themselves had agreed to sell the suit house on grant of permission by the Consolidation Authorities and unless such permission is accorded by them, the stage for executing the sale deed had not reached. In this connection, it is submitted that the contract is to be executed as is entered into between the parties. In the present case the parties had agreed that the sale deed shall be executed after permission is granted by the Consolidation Authorities and as the permission was not granted, may be for the reason that the house was situate at market place beyond the consolidation scheme, yet the terms of the contract, namely, the grant of permission having not been fulfilled, the contract for execution of the sale deed could not have been executed. Reliance in this connection was placed on the judgment of this Court in the case of Messers Bhowra Kankanee Collieries Ltd. Vs. Sunil Kumar Roy and Another, reported in 1968 PLJR 486. In the said case plaintiff/appellant brought a suit for permanent injunction restraining defendant no.1 from purchasing coal from any other source than the plaintiff as according to the plaintiff, defendant was bound by the terms of the lease that he will purchase slack/dust coal from the collieries of the lessor/plaintiff at the prevailing market rate or at such other rate as may be agreed upon by the parties, provided slack/coal dust is suitable for the manufacture of coke. The suit was dismissed by the trial/appellate court as according to them there was no machinery provided in the contract/lease document to adjudicated the suitability of the coal and affirming the judgment of the trial/appellate court, the High Court also observed that in absence of any machinery for adjudication of the dispute regarding the suitability of the coal produced by the plaintiff, the clause of the lease enjoining a duty on the defendant to purchase the coal from the plaintiff could not be enforced and was barred under the provisions contained in Section 21 (c) of the Specific Relief Act, 1963 . Further reliance in this connection was placed on the judgment of the Madhya Pradesh High Court in the case of Hitkarini Sabha, Jabalpur Vs. Corporation of the City of Jabalpur and Another, reported in AIR 1961 Madhya Pradesh 324. Further reliance in this connection was placed on the judgment of the Madhya Pradesh High Court in the case of Hitkarini Sabha, Jabalpur Vs. Corporation of the City of Jabalpur and Another, reported in AIR 1961 Madhya Pradesh 324. In the said case, the High Court considered the nature of the renewal clause of a lease document, which inter alia provided that the lessee shall on expiry of the period of lease be entitled to have the same renewed on such terms and conditions as may be agreed to between the parties and as the renewal clause did not provide for the terms on which the lease had to be renewed, the High Court observed that the renewal clause was uncertain and in terms of the provisions contained in Section 29 of the Contract Act could not be enforced. 17. Learned counsel with reference to the judgment of this Court in the case of Prabhawati Devi and Others Vs. Mahendra Narain Singh and Others, reported in AIR 1981 Patna 133 submitted that the agreement entered between the parties has to be enforced in its entirety and the suit for specific performance could be decreed only if all the terms of the agreement for sale is carried out by the parties. In the present case, the agreement for sale was subject to grant of permission by the Consolidation Authorities and while pursuing the suit for specific performance of the said contract, which was subject to grant of permission by the Consolidation Authorities, it could not be said that the grant of permission was not necessary, as such submission and finding would tantamount to making out a third case. In this connection, it was submitted that in the case of Prabhawati Devi and Others Vs. Mahendra Narain Singh and Others (supra), the court below in a suit for declaration of easementary rights had declared the customary rights or customary easement without there being any pleadings for such declaration and Single Judge of this Court while setting aside the judgment and decree of the courts below, observed that it is well settled that the decision of a case cannot be based on grounds outside the pleadings and it is the case pleaded that has to be decided. Learned counsel with reference to the said judgment submitted that the agreement for sale was subject to grant of permission and if the permission was not necessary, parties ought not to have provided for such grant of permission in the agreement but as the parties have agreed for grant of permission, the contract for sale has to be executed by the court below only after such grant and not otherwise, as according to learned counsel without such grant if the contract is executed, the same shall tantamount to making out a third case by the parties that the grant of permission by the Consolidation Authorities in the present case was not necessary, which fact has neither been pleaded in the plaint nor answered in the written statement, as such the court below erred both in fact and law when it allowed the suit for specific performance of contract, even though the terms of the contract was not complied with. 18. Learned counsel with reference to the evidence of defendant no.2/D.W.9 that she is sharer in the suit house to the extent of 1/2 and the evidence of defendant no.1/ D.W.10 that his share in the suit house is 1/4 decimal and the other 1/4 decimal belongs to his mother, defendant no.2 as also the findings of the court below in Paragraph-19 of the judgment that the defendants have failed to prove the factum of separation between them, submitted that in the suit house, both defendant nos. 1 and 2 have there share and interest and defendant no.2 being not a party to the agreement, the suit for specific performance ought not to have been decreed in the light of the provisions contained in Sections 17 and 20 of the Specific Relief Act. In this connection he relied upon the judgment of the Honble Supreme Court in the case of Parakunnan Veetill Josephs son Mathew Vs. Nedumbara Kuruvilas son and Others, reported in 1987 (Supp.) Supreme Court Cases 340. Perusal of the facts of the aforesaid reported case would indicate that the suit for specific performance filed by the assignee of the agreement was dismissed as the Honble Court found that the subsequent sale deed was executed after taking into confidence the assignor of the agreement, who was aware about the subsequent sale deed. 19. Perusal of the facts of the aforesaid reported case would indicate that the suit for specific performance filed by the assignee of the agreement was dismissed as the Honble Court found that the subsequent sale deed was executed after taking into confidence the assignor of the agreement, who was aware about the subsequent sale deed. 19. Learned counsel for the appellant with reference to the description of the suit house as given in the schedule of the plaint submitted that it was for the plaintiff to establish the actual area of the suit plot and in this connection he relied upon the judgment of this Court in the case of Bihar State Construction Corporation Limited Kamgar Union Vs. The State of Bihar and Others, reported in 1994(2) PLJR 346. 20. Learned counsel further submitted with reference to the judgment of this Court in the case of Kisan Ram Marwari Vs. Smt. Godawari Debi and Others, reported in AIR 1940 Patna 379, at page 381 that in the facts of this case, defendants have right to lead evidence, contrary to the terms of the contract in regard to consideration money and the area of land as the defendants have been subjected to fraud. In the case of Kisan Ram Marwari Vs. Smt. Godawari Debi and Others (supra) the Division Bench of this Court with reference to Section 92 of the Indian Evidence Act, 1872 observed that the evidence of the manner in which the consideration money was paid is not the evidence tending to vary the terms of the written contract. 21. In view of the aforesaid submissions learned counsel submitted that the appeal is fit to be allowed dismissing the suit for specific performance of contract. 22. Counsel for the respondent has supported the judgment of the trial court and submitted that the execution of the agreement for sale having been admitted by defendant/appellant no.1 in Paragraph-7 of his written statement, pleadings/evidence adduced contrary to the terms of the agreement cannot be accepted in view of the provisions contained in Sections 90 and 91 of the Indian Evidence Act, 1872. In this connection he pointed out that perusal of the agreement for sale clearly indicates that defendant no.1 had agreed to execute the sale deed for his half share in the suit house for Rs. In this connection he pointed out that perusal of the agreement for sale clearly indicates that defendant no.1 had agreed to execute the sale deed for his half share in the suit house for Rs. 12,000/- and pleadings/evidence adduced, contrary to such stipulation in the agreement for sale that defendant no.1 had agreed to sell only 1/4 decimal of the suit house for Rs. 20,000/- cannot be accepted. If fraud was played on defendant/appellant no.1 or there was mutual mistake of the parties, then it was open for defendant no.1 to take recourse to Section 26 of the Specific Relief Act, 1963 and in terms thereof he ought to have taken steps for rectification of the agreement for sale, defendant no.1/appellant having failed to take recourse for rectification of the agreement for sale, he is stopped from leading evidence contrary to the terms of the contract that he had agreed to sell only 1/4 decimal of the suit house for Rs. 20,000/-. 23. Learned counsel for the respondent further submitted with reference to the execution portion of the agreement for sale, whereunder defendant no.1 having agreed to the terms of the contract, received the earnest money of Rs. 2,500/- and undertook to obtain permission from the Consolidation Authorities and to execute the sale deed with regard to subject matter of the agreement by 28.2.1976 and it was the obligation/responsibility of defendant no.1/ appellant to obtain permission for executing the sale deed from the Consolidation authorities and defendant no.1/appellant cannot be allowed to take advantage of his own failure and inaction of not obtaining permission from the Consolidation Authorities. Reference in this connection is made to the judgment of the Honble Supreme Court in the case of Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial and Others, reported in AIR 1964 Supreme Court 978 (Paragraph-4). In the case of Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial and Others (supra) plaintiff entered into a contract for sale of a house belonging to the defendant on the plot leased out by the Government. One of the terms of the contract was that the vendor shall obtain necessary permission of the Government for sale within two months of the agreement and if the permission was not granted within that time it was open for the vendees to extend the date or to treat the agreement as cancelled. One of the terms of the contract was that the vendor shall obtain necessary permission of the Government for sale within two months of the agreement and if the permission was not granted within that time it was open for the vendees to extend the date or to treat the agreement as cancelled. The vendor made an application for permission but for the reasons of her own withdrew the same. In the suit filed by the vendees for specific performance of the contract it was held that the contract was not a contingent contract and that the parties had agreed to bind themselves by the terms of the document executed between them. 24. Learned counsel for the respondent further pointed out that the suit house belonged to Bakhora Sao, who had two sons, Chamari Sao and Deocharan Sao. Chamari Sao died unmarried. His interest in the suit house devolved on his brother, Deocharan Sao. Deocharan Sao died leaving behind his wife, Laxminia Devi, defendant no.2 and son Ram Prasad Sao, defendant no.1, the two appellants, who inherited the suit house in equal measure. At the time of execution of the impugned agreement for sale, defendant No.2 was residing separately from defendant No.1 in the portion of the suit house and her son, defendant no.1 was residing separately in another house. Defendant no.1 by the impugned agreement for sale agreed to sell his half share in the suit house. In this connection, learned counsel referred to Paragraph-5 of the written statement of defendant no.2/ D.W.9 and Paragraph-2 of her cross-examination at pages 82-83 of the brief. In this connection, he also referred to the evidence of defendant no.1/D.W.10 at page 85 and submitted that by executing the impugned agreement for sale, defendant no.1 only agreed to sell his interest in the suit property and for selling his interest in the suit property, he did not require any consent from his mother as he was free to deal with his interest in the suit property and question of title of defendant no.2 in the suit property cannot be adjudicated in these proceedings. In this connection he relied upon the Division Bench judgment of this Court in the case of Diwali Lal and Others Vs. Sardar Baldev Singh and Another, reported in AIR 1985 Patna 344 and on the case of Pradip Narain Singh and Others Vs. In this connection he relied upon the Division Bench judgment of this Court in the case of Diwali Lal and Others Vs. Sardar Baldev Singh and Another, reported in AIR 1985 Patna 344 and on the case of Pradip Narain Singh and Others Vs. Brij Nandan Prasad and Others, reported in AIR 1988 Patna 147. 25. Having considered the pleadings of the parties together with the evidence led on their behalf, both documentary and oral, it is evident that the suit house was inherited by defendant no.1 and 2 in equal measure. On 9.9.1975, defendant no.1 executed the agreement for sale with regard to his share in the suit house. The area forming his share in the suit house has been clearly shown in the agreement together with its boundaries. Perusal of the terms of the agreement including the execution portion of the agreement indicates that defendant no.1 had undertakin to obtain permission of the Consolidation Authorities to execute the sale deed in regard to his share of the suit house in favour of the plaintiff and to execute the sale deed on or before 28.2.1976. At the time of execution of the agreement for sale, defendant no.1 was paid Rs. 2,500/- as earnest money and the remaining 9,500/- was to be paid to him by the plaintiff at the time of the execution of the sale deed. The agreement for sale was scribed by P.W.4, who also explained the contents of the document to defendant no.1. Defendant No.1 having understood the contents of the document not only recorded the factum of receipt of the earnest money of Rs. 2,500/- but went on to record that he shall obtain permission from the Conolidation Authorities by the date fixed and execute the sale deed. The execution of the agreement for sale has been witnessed by the two witnesses, who have also supported the factum of execution of the agreement for sale. P.W.1 has further confirmed that the earnest money was paid by the plaintiff to defendant no.1 in his presence. In view of the aforesaid evidence, documentary and oral, I am of the view that the agreement for sale dated 9.9.1975 was executed by the defendant no.1 after he received Rs. P.W.1 has further confirmed that the earnest money was paid by the plaintiff to defendant no.1 in his presence. In view of the aforesaid evidence, documentary and oral, I am of the view that the agreement for sale dated 9.9.1975 was executed by the defendant no.1 after he received Rs. 2,500/- as earned money from the plaintiff, in terms whereof defendant no.1 had to obtain permission from the Consolidation Authorities and to execute the sale deed for his share in the suit house in favour of the plaintiff by 28.2.1976 and at the time of execution of the sale deed, the balance amount of consideration money of Rs. 9,500/- was to be paid by the plaintiff to defendant no.1. From the evidence of plaintiff/P.W.10 and P.W.7 as also the contents of the legal notice, Exhibit-2 and the receipt showing dispatch of legal notice under registered cover to the two defendants, Exhibits-2 and 3/1, it appears that on 26/27.2.1976 the plaintiff requested defendant no.1 to accept the balance amount of sale consideration and to execute the sale deed but on the failure of defendant no.1 to execute the sale deed, the instant suit was filed. In the circumstances, it is held that the plaintiff was ready and willing to carry out his obligation under the contract dated 9.9.1975, which could not be carried out on account of failure of defendant no.1 to execute the sale deed in terms of the contract. 26. The submission of the learned counsel that the contract for sale was contingent upon grant of permission and until such permission is granted by the Consolidation Authorities, the contract could not be enforced is to be considered in the light of the terms of the contract dated 9.9.1975 including its execution portion, whereunder defendant no.1 having agreed to the terms of the contract had accepted the earnest money of Rs. 2,500/- while accepting the earnest money had under- taken to obtain permission from the Consolidation Authorities for executing the sale deed in regard to his share in the suit house and to execute the sale deed by 28.2.1976. 2,500/- while accepting the earnest money had under- taken to obtain permission from the Consolidation Authorities for executing the sale deed in regard to his share in the suit house and to execute the sale deed by 28.2.1976. It is thus evident that the obligation to obtain permission of the Consolidation Authorities for executing the sale deed was on the shoulders of defendant no.1 and for his failure to obtain such permission from the Consolidation Authorities, he could not have refused the request of the plaintiff to accept the balance amount of consideration money and to execute the sale deed in terms of the contract dated 9.9.1975. In this connection reliance placed by the learned counsel for the appellant on the case of Shiva Shankar Rai @ Sheo Shankar Rai Vs. Babu Janardan Rai (supra) appears to be misplaced as in the said case the subject matter of the contract was within the consolidation scheme and as the contract for sale of land did not provide for consequence in case the permission to transfer the land under Section 5 of the Consolidation Act was refused by the Consolidation Authorities, the said contract was held to be contingent. In the case in hand from Exhibit-B, the certificate dated 5.3.1080 granted by the Consolidation Officer concerned, it is evident that the suit house is located in the Rafiganj market area and was beyond the consolidation scheme, as such in the opinion of this Court, the contract dated 9.9.1975, Exhibit- 1 is not contingent upon grant of permission by the Consolidation Officer for its failure to provide for the consequence in case of refusal of permission by the Consolidation Officer for sale of the house in question. In this connection further reliance placed by the learned counsel on the case of Rojasara Ramjibhai Dahyabhai Vs. Jani Narottamdas Lallubhai (supra) also appears to be misconceived as it is evident from Paragraph-10 of the said judgment that the Honble Supreme Court having noticed the fact that the occupant was allowed permission for conversion of the disputed land into village site, observed that there was no legal impediment in the way of the appellant in executing the sale deed. In the case in hand, the suit house being located in Rafiganj market area was beyond the consolidation scheme, as such no permission was at all necessary to transfer the same in terms of the contract dated 9.9.1975, Exhibit-1. In the circumstances, the contract cannot be held to be contingent for its failure to provide for consequence in the event of refusal of permission to sell the suit house by the Consolidation Authorities. Reliance placed on the judgment in the case of Messers Bhowra Kankanee Collieries Ltd. Vs. Sunil Kumar Roy and Another (supra) and in the case of Hitkarini Sabha, Jabalpur Vs. Corporation of the City of Jabalpur and Another (supra) also appears to be misconceived as in the instant case, the contract was for execution of the sale deed on receipt of the balance consideration money. The execution of the sale deed was never subject to grant of permission by the Consolidation authorities as it was the defendant no.1, who had volunteered to obtain permission for execution of sale deed from the Consolidation Authorities and for failure of defendant no.1 to perform such voluntary act, the request of the plaintiff to execute the sale deed could not have been refused. 27. The submission of learned counsel for the appellant that in view of the provisions contained in Sections 17 and 20 of the Specific Relief Act, 1963 , the instant suit for specific performance ought not to have been decreed as defendant no.2 also had her share to the extent of 1/2 in the suit house and she being not a party to the contract, the suit for specific performance ought to have been dismissed, also appears to be misconceived in view of the legal position that the agreement is binding on the parties and the decree for specific performance as also the safe deed ex-ecuted in terms thereof shall bind only defendant no.1 and not the defendant no.2 or her legal heirs who have been substituted in this appeal under order no.12 dated 3.9.1996. While considering the case of the plaintiff and defendant no.1, I have examined the motive behind the litigation, as is required by the court considering the plea for specific performance of contract in view of the law laid down by the Honble Supreme Court in the case of Praakunnan Veetill Josephs son Mathew Vs. While considering the case of the plaintiff and defendant no.1, I have examined the motive behind the litigation, as is required by the court considering the plea for specific performance of contract in view of the law laid down by the Honble Supreme Court in the case of Praakunnan Veetill Josephs son Mathew Vs. Nedumbara Kuruvilas son and Others (supra) and it appears that defendant no.1 having executed the contract for sale of his half share in the suit house changed his mind and declined the request of the plaintiff to receive the balance consideration amount on 26/27.2.1976 and to execute the sale deed. Plaintiff had no option but to institute the instant suit. In the circumstances, in my opinion, there is no ill-motive on the part of the plaintiff in instituting the suit and the contract document does not appear to be instrument of oppression as the same was executed by defendant no.1 after he agreed to the terms of the contract and received the earnest money, which is so evident from the execution portion of the contract. In the instant case, the court below rightly exercised its discretion in decreeing the suit for specific performance. 28. The submission of the learned counsel for the appellant that it was for the plaintiff to establish the actual area of the suit plot as the description of the land given in the plaint: is not complete, also appears to be misconceived as the subject matter of the contract has been fully described in the contract for sale dated 9.9.1975, Exhibit-1 and if there was any omission in the schedule of the plaint then the same is required to be rectified in the light of the contents of the contract, Exhibit-1 and the decree is to contain the same description, which is provided in the contract for sale dated 9.9.1975, Exhibit-1. 29. The submission of the learned counsel for the appellant that the evidence led by the defendants that defendant no.1 had agreed to sell 1/4 decimal of land for Rs. 20,000/- be accepted contrary to the terms of the written contract about the area proposed to be transferred and its consideration money cannot be entertained in view of the provisions contained in Sections 91 and 92 of the Indian Evidence Act, 1872. 20,000/- be accepted contrary to the terms of the written contract about the area proposed to be transferred and its consideration money cannot be entertained in view of the provisions contained in Sections 91 and 92 of the Indian Evidence Act, 1872. The pleading and submission that fraud was played on defendant no.1 by the plaintiff cannot be accepted as neither pleading has been made nor evidence has been led on behalf of the defendants in terms of Proviso-1 to Section 92 of the Indian Evidence Act, 1872 to allege and prove the manner in which fraud was played on defendant no.1. In the absence of such pleading and evidence the terms of the contract that defendant no.1 had agreed to sell half decimal of land for a sum of Rs. 12,000/- as provided in the contract itself, has to be taken as sacrosanct. Reliance placed by the learned counsel on the case of Kishan Ram Marwari Vs. Smt. Godawari Debi and Others (supra) also appears to be misconceived as in the said case, the Division Bench of this Court having considered the terms of the deed of assignment, observed that the evidence of the manner in which the consideration money was paid is not the evidence tending to vary the terms of a written contract. 30. In view of the discussions made and the findings recorded in different paragraphs of this judgment, there does not appear to be any merit in this appeal, which is, accordingly, dismissed with observation that the sale deed executed in terms of the contract dated 9.9.1975, Exhibit-1 shall not be binding on defendant no.2 or her heirs and legal representatives, substituted in this appeal under order no. 12 dated 3.9.1996.