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2010 DIGILAW 2787 (ALL)

Siya Ram and another v. Tulsa Bai

2010-09-13

PRAKASH KRISHNA

body2010
Prakash Krishna, J.;- This is plaintiffs' second appeal under Section 100 C.P.C. The appellants instituted Suit No. 423 of 1971 for specific performance of contract of re-conveyance. The said suit was decreed by the trial judge and the said decree has been reversed in Civil Appeal No. 232 of 1974 by the first appellate court. 2. House No. 177 situate in Mohalla Nai Basti, Jhansi is the subject matter of the suit. The said house admittedly belonged to the plaintiffs, as it their ancestral property. Their case is that they were in need of money and mortgaged the house with the defendant for a sum of Rs.1000/-. But the defendant instead of getting the mortgage deed executed, got a sale-deed executed on 27th April, 1968. An agreement of repurchase on the same day was simultaneously executed separately by the defendant in their favour for return of the said property on a sum of Rs. 1000/- within a period of three years. The plaintiffs who were owners agreed to pay a sum of Rs. 20/- per month towards the interest as rent. The defendant having failed to execute a sale deed in pursuance of an agreement of repurchase dated 27th April, 1968, the suit was filed. In the written statement the allegations that the plaintiffs wanted to execute mortgage deed, were denied. It was pleaded that they have sold the house in question on 27th April, 1968 for a sum of Rs.1000/-. An agreement for re-conveyance was admitted by her with the condition that therein it was agreed upon that if the plaintiffs fail to pay rent for a period of more than three months, the agreement of repurchase would be void. 3. The trial judge framed three issues on the basis of the pleadings of the parties. The parties led evidence in support of their respective cases. It is significant to mention here that neither the agreement dated 27th April, 1968 nor its copy was filed by the plaintiffs. They came out with the case that the agreement was in the custody of original plaintiff Gaya Prasad who died during the pendency of suit and it was not traceable. 4. The trial court by its judgment and decree dated 28th February, 1974 decreed the suit. They came out with the case that the agreement was in the custody of original plaintiff Gaya Prasad who died during the pendency of suit and it was not traceable. 4. The trial court by its judgment and decree dated 28th February, 1974 decreed the suit. The matter was carried in civil appeal which has been allowed by the first appellate court and the decree of the trial court has been reversed. The first appellate court has reversed the decree on the short ground that the plaintiffs have failed to prove that they were not defaulter in payment of rent for more than three months. In other words, it was found that that since the plaintiffs have not paid the rent regularly, therefore, the agreement of repurchase has become void. 5. The above appeal was admitted vide order dated 11th August, 1978 without framing any specific substantial question of law. It has been mentioned in the order that the substantial question of law as stated in ground No. 2 is involved. For the sake of convenience the ground No. 2 is reproduced below: "2. Because in the agreement to re-convey there was no clause that plaintiffs would not be entitled for re-conveyance, if more than three months rent was due and the same could not be proved by oral evidence." 6. Heard Shri A.N. Bhargava, learned counsel for the appellants. None appeared on behalf of the contesting respondent although the appeal was listed on number of times in the cause list. But the case was passed over as the learned counsel for the contesting respondent was not present. 7. After hearing the learned counsel for the appellants and going through the record, in my considered view the substantial question of law involved in the appeal is required to be re-framed in the following manner: "Whether on the facts and circumstances of the case, the finding recorded by the first appellate court that the plaintiffs have failed to prove the regular payment of rent, the suit is liable to be dismissed? " 8. Before proceedings further it may be noted that the only ground which was found favour with the first appellate court in reversing the judgment and decree of the trial court is, that the plaintiffs failed to prove the payment of rent regularly. Thus other findings recorded by the trial court have attained finality. 9. " 8. Before proceedings further it may be noted that the only ground which was found favour with the first appellate court in reversing the judgment and decree of the trial court is, that the plaintiffs failed to prove the payment of rent regularly. Thus other findings recorded by the trial court have attained finality. 9. It is also not out of place to mention here that there was a dispute between the parties as to whether the agreement of repurchase contains any such clause with regard to default of payment of rent for more than three months or not? The trial court and the first appellate court as well have held that there was such clause in the said agreement of re-conveyance, this Court proceeds to decide the above appeal in the light of the aforesaid findings by the two courts below, which is otherwise a finding of fact binding on this Court also. 10. So far as the question of default is concerned, the appellate court considered the rent receipts Exhibit Nos. 4 to 8. The rent receipts filed by the plaintiffs evidencing the payment of rent to the defendant from time to time. These rent receipts as discussed by the first appellate court do show that there is a gap of payment of rent for the intermediate months. The first appellate court was very much influenced as is apparent from its judgment that there being no rent receipt for the intermediate months, the default in payment of rent is established. The record of the trial court particularly aforesaid four documents were examined by me. On examination of these rent receipts, it is difficult to agree with the finding of the first appellate court. Exibhit-4 is the hand written rent receipt dated 27th May, 1968 showing the payment of rent for the month of May amounting to Rs. 20/-. Exhibit-5 is the printed rent receipt dated 27th August, 1968 showing the payment of rent for the months of June and July amounting to Rs. 40/-. Exhibit-6 is the rent receipt dated 11th November, 1968 showing the payment of rent for the months of August to October amounting to Rs. 60/-. Exhibit-7 is the rent receipt dated 2nd February, 1969 showing the payment of rent for the months of November and December amounting to Rs. 40/-. 40/-. Exhibit-6 is the rent receipt dated 11th November, 1968 showing the payment of rent for the months of August to October amounting to Rs. 60/-. Exhibit-7 is the rent receipt dated 2nd February, 1969 showing the payment of rent for the months of November and December amounting to Rs. 40/-. Exhibit-8 is the rent receipt dated 7th July, 1969 showing the payment of rent for the months of January to June amounting to Rs. 120/-. These rent receipts have been accepted by the defendant in his deposition. It appears that thereafter some dispute arose between the parties and the notice (Exhibit-12) dated 15th June, 1970 was given by the defendant on the allegations that the plaintiffs have not paid any rent in spite of demand. The said notice was obviously given on incorrect facts in view of the admitted rent receipts referred to above. 11. Now coming to the oral evidence, the case of the plaintiffs is that they have paid the rent regularly. As against this, case of the defendant was that no rent was paid ever as stated in the said notice. In the oral deposition, the defendant was confronted with the said notice dated 15th July, 1970 but he could not give any reply nor he could explain as to why in the said notice it was mentioned that no rent has been given. The trial court disbelieved the statement of the defendant and rightly so. The first appellate court while reversing the finding of the trial court in this regard has failed to consider the above documents i.e. notice given by the defendant. The plaintiffs have discharged their initial burden with regard to the payment of the rent successfully. There being no evidence worth the name on the record regarding non payment of rent from the side of the defendant, the plaintiffs have proved their case in this regard. The finding recorded by the first appellate court is vitiated for non consideration of the documentary evidence on the record. 12. The appellate court has failed to consider the evidence which was taken into account by the trial court while reversing the finding of the trial court. This vitiates the judgment and decree of the first appellate court. 13. At this stage, it is also relevant to consider the pleadings of the parties. 12. The appellate court has failed to consider the evidence which was taken into account by the trial court while reversing the finding of the trial court. This vitiates the judgment and decree of the first appellate court. 13. At this stage, it is also relevant to consider the pleadings of the parties. A bare perusal of the written statement would show that the defendant has not pleaded anywhere in the written statement that the period, if any, for which the plaintiffs have failed to pay the rent. Only a vague and general allegation has been made in para-13 thereof that the plaintiffs have failed to pay the rent regularly, without specifying the period or giving any particulars for the months in respect of which the plaintiffs were in arrears or failed to pay the rent. 14. The conduct of the defendant also leads to the conclusion that she has not come to the court with clean hand and her case is based on falsehood. Significantly, it may be noted that from the very beginning the case of the plaintiffs was that the house was very valuable and since they were in financial crisis as also admitted by the D.W.-1 Prem Narain in his examination. The transaction in question took place for a sum of Rs. 1000/-. P.W.-1 has stated that at the time of execution of the sale deed, the value of the property was around Rs. 20,000/- and on the date of deposition it was around Rs. 25,000/- to Rs. 26,000/-. Similarly P.W.-2 Mishri Lal has stated that presently the value of the house is around Rs. 25,000/- and was around Rs. 20,000/- prior to 5-6 years. Similar statement has been made by P.W.-3 Siya Ram. 15. As against this, there is no denial either in the pleadings of the defendant or in any oral deposition. Ram Charan, husband of the defendant, has been examined as D.W.-1. He has not said a word in his entire deposition with regard to the value of the house. When he was confronted with at what price he is prepared to sell the house in question, the reply is that he was never prepared to sell the house either at Rs.1500/- or at any price. The property in question contains the constructed portion as also vacant piece of land. When he was confronted with at what price he is prepared to sell the house in question, the reply is that he was never prepared to sell the house either at Rs.1500/- or at any price. The property in question contains the constructed portion as also vacant piece of land. The other defendant's witness D.W.-2 Laxman stated that the plaintiffs had come to the defendant for extension of period of one year before him but the defendant refused to do so. But he has not said a word with regard to the price of the property in question. This leads to the conclusion that the house was valued at around Rs. 20,000/- on the date of the execution of the sale deed. As the plaintiffs were in need of money, they entered into transaction in question and agreed with the stipulation that the house will be returned to them within a period of three years on the same price i.e. Rs. 1000/-. This being so, the suit for specific performance of contract of re-conveyance deserves to be decreed. The finding recorded by the first appellate court is vitiated and the above substantial question of law is decided accordingly by holding that on the facts and circumstances of the case, the first appellate court has committed illegality in reversing the judgment and decree passed by the trial court. 19. In the result, the appeal succeeds and is allowed. 20. The judgment of the first appellate court dated 11th August, 1978 is, hereby, set aside and the decree of the trial court is restored. No order as to costs.