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2011 DIGILAW 865 (KAR)

K. Sukumaran v. Muniyamma

2011-08-26

K.GOVINDARAJULU, MOHAN M.SHANTANAGOUDAR

body2011
JUDGMENT MOHAN SHANTANAGOUDAR, J.—This appeal is filed by the unsuccessful plaintiff in O.S. No. 879/1995 against the judgment and decree dated 21.8.2006 passed by the Prl.Civil Judge (Sr.Dn.,) Bangalore Rural District, Bangalore. For the sake of convenience, the parties will be referred to as per their respective ranking before the trial Court, 2. The defendants 1 to 13 (respondents 1 to 13 herein) are the owners of one compact block of land bearing Survey No. 40, measuring 0.08 guntas, Survey No. 41/1, measuring 0.12 guntas. Survey No. 42/1, measuring 0.15 guntas. Survey No. 42/2, measuring 0.34 guntas, situated at Beretena Agrahara Village, Begur Hobli village, Bangalore South Taluk. The agreement came to be entered into between the plaintiff and defendants on 10.1.1993 as per Ex. P-1 by which the defendants agreed to sell the aforementioned compact block of four survey numbers in favour of the plaintiff for a sum of Rs. 19,500/- per gunta which aggregates to a total sum of Rs. 13,45,500/-. On the date of agreement, an advance amount of Rs. 3 lakhs was paid. The Sale Deed was to be executed within the period of six months and the balance of sate consideration was payable at the time of execution of the Sale Deed. A survey was required to be conducted through Survey Department. 3. In furtherance of the aforementioned agreement of sale, a Sale Deed dated 22.12.1993 was executed by the defendants 1 to 11 in favour of the plaintiff selling 15 guntas of land in Survey No. 42/1 (i.e., item No. 3 of the Agreement of Sale) as per Ex. P-5.So also, another Sale Deed dated 21.3.1994 (registered on 22.3.1994) was executed by defendants 1 to 11 in favour of the plaintiff selling 12 guntas of land in Survey No. 41/1 of Beretena Agrahara (i.e., stem No. 2 of the Agreement of Sale) as per Ex. P-7. Thus, it is clear that, out of four survey numbers of the compact block, two survey numbers were sold by defendants 1 to 11 in favour of the plaintiff on 22.12.1993 and 22.3.1994 respectively, 4. On 31st October 1995, the defendants 12 and 13 who were not signatories to the earlier two Sale Deeds Exs,P-5 and P-7, executed two Deeds of Consent in respect of Sale Deeds dated 22.12.1993 and 22.3.1994 referred to herein above. On 31st October 1995, the defendants 12 and 13 who were not signatories to the earlier two Sale Deeds Exs,P-5 and P-7, executed two Deeds of Consent in respect of Sale Deeds dated 22.12.1993 and 22.3.1994 referred to herein above. The two Consent Deeds dated 31.10.1995 are produced and marked at Exs.P-6 and P-8 respectively before the trial Court. 5. On 21.3.1994, the defendants executed two agreements of sale as per Ex. P-9 and Ex. P-24 dated 21.3.1994 and 22.3.1994 respectively agreeing to sell the remaining two items of the property viz., the land bearing Survey No. 40, measuring 8 guntas and the land bearing Survey No. 42/2, measuring 34 guntas of Beretena Agrahara village, which are item Nos. 1 and 4 of the Agreement of Sale dated 10.1.1993. The said agreements Exs. P-9 and P-24 state that out of Rs. 13,45,500/- which was agreed to be paid by the plaintiff to the defendants under the Agreement of Sale dated 10.1.1993 (Ex. P-1), an amount of Rs. 9 lakhs have been received by the defendants already and the balance of Rs. 4,45,500/- is payable by the plaintiff to the defendants at the time of registration of the Sale deed. 6. In the meanwhile, the plaintiff requested the Assistant Director of Land Records to survey the land by filing an application on 28.1.1995 as per Ex. P-17.Defendant No. 4 objected to the request of the plaintiff for the survey on 26.9.1995. Having no other go, the plaintiff sent a legal notice to the defendants to complete the sale transaction in respect of the remaining two items of the properties viz., Survey No. 40, measuring 8 guntas and Survey No. 42/2, measuring 34 guntas. The legal notice is marked at Ex. P-10. Few of the defendants sent reply to the legal notice as per Ex. P-11 on 3.11.1995. Since the defendants did not come forward to execute the Sale Deed, plaintiff filed a suit in O.S. No. 879/1995 before the City Civil Court seeking specific performance of the Agreements of Sale dated 10.1.1993 and 21.3.1994 (actually executed on 22.3.1994). 7. During the pendency of the matter, the aforementioned two suit properties are acquired by Karnataka Industrial and Development Board, Bangalore. The plaintiff/appellant herein questioned the acquisition proceedings before this Court. 7. During the pendency of the matter, the aforementioned two suit properties are acquired by Karnataka Industrial and Development Board, Bangalore. The plaintiff/appellant herein questioned the acquisition proceedings before this Court. However, the writ petition came to be dismissed by the Division Bench of this Court, It is brought to the notice of the Court by the learned counsel for the appellant/plaintiff that the plaintiff has approached the Apex Court against the said order of this Court, as well as the acquisition notifications. The appeals filed by the plaintiff are pending consideration before the Apex Court. 8. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff proves that the defendants executed agreement dated 10.1.1993 and 21.3.1994 agreeing to sell the properties including the suit schedule property in his favour for a consideration of Rs. 19,500/- per gunta amounting to Rs. 13,45,500/-? 2. Whether the plaintiff proves that he paid earnest amount of Rs. 9,00,000/- our of the sale consideration? 3. Whether the plaintiff proves that the defendants have executed two sale deeds in respect of the two items of the properties orally? 4. Whether the plaintiff proves that he was always ready and willing to perform his part of the contract? 5. Whether the plaintiff is entitled for specific performance of the agreement dated 10.1.1993 and 21.3.1994? 6. What order? In order to prove his case, plaintiff examined himself as PW-1 and another witness as PW-2 and got marked 23 exhibits. On behalf of the defendants, 4th defendant was examined as DW-1 and 7 documents were got marked. After hearing both the parties and on consideration of the material on record, the trial Court dismissed the suit. Hence, this appeal is filed. 9. Sri Udaya Holla, learned Senior Counsel appearing on behalf of the appellant/plaintiff submits that the conclusion of the trial Court is wholly untenable, inasmuch as, it ignores certain material facts on record. According to him, the reasons assigned and the conclusions arrived at are not just and proper; the trial Court is not justified in observing that there is no assignment of agreement Ex. P-1 in favour of plaintiff and, therefore, he cannot seek for specific performance in his individual capacity; the trial Court is not justified in concluding that Ex. According to him, the reasons assigned and the conclusions arrived at are not just and proper; the trial Court is not justified in observing that there is no assignment of agreement Ex. P-1 in favour of plaintiff and, therefore, he cannot seek for specific performance in his individual capacity; the trial Court is not justified in concluding that Ex. P-9 cannot be pressed into service as the appellant’s signature is not found therein; and the trial Court has wrongly observed that the plaintiff has paid consideration amount only in respect of the properties sold under Exs. P-5 and P-7 and has not paid sale consideration in respect of suit schedule properties. According to him, the amount of Rs. 9 lakhs paid in installments to the defendants was in respect of the entire compact block of the land having four survey numbers and, therefore, it cannot be presumed that the amount of Rs. 9 lakhs paid by the plaintiff was only in respect of the property sold under Exs. P5 and P7; and the trial Court is also not correct in holding that the defendants have not agreed to sell the suit schedule properties. On these among other grounds, he prays for setting aside the judgment and decree passed by the trial Court by allowing the appeal. The appeal is opposed by learned counsel appearing on behalf of the respondents by inter alia contending that the trial Court is justified in not relying upon Ex. P-1 and Ex. P-9 particularly when there is no assignment of agreement Ex. P-1 in favour of the plaintiff, inasmuch as, the signature of the plaintiff is not found in Ex. P-9; the trial Court is justified in concluding that the consideration is not paid in respect of suit schedule properties, inasmuch as, the amount of Rs. 9 lakhs paid by the plaintiff was only in respect of two properties, i.e., item Nos. 2 and 3 of the suit schedule; since Sale Deeds are already executed in respect of item Nos. 2 and 3 as per Exs.P-7 and P-24 and as the defendants 12 and 13 have also executed two Deeds of Consent in respect of the very properties, the sale consideration of Rs. 9 lakhs paid by the plaintiff relates only to Survey No. 42/1 and 41/1. i.e., item Nos. 3 and 2 respectively. 2 and 3 as per Exs.P-7 and P-24 and as the defendants 12 and 13 have also executed two Deeds of Consent in respect of the very properties, the sale consideration of Rs. 9 lakhs paid by the plaintiff relates only to Survey No. 42/1 and 41/1. i.e., item Nos. 3 and 2 respectively. On these among other grounds, he prays for dismissal of the appeal. 10. From the rival contentions of the parties, the following points arise for consideration in this appeal: (a) Whether the trial Court is justified in not relying upon Ex. P-9 on the ground that the plaintiff has not signed Ex. P9? (b) Whether the Court below is justified in ignoring the fact that the defendants had agreed to sell four items of the properties Ex. P-1 and that the four items of properties form a compact block while coming to the conclusion that the amount of Rs. 9 lakhs paid by the plaintiff does not relate to Survey No. 40 and Survey (No. 42/2 which are the subject matters of Ex. P-9 and Ex. P-24? 11. It is not in dispute that plaintiff K. Sukumaran, son of Govindan is the Power of Attorney Holder of K. Karunakaran, son of E. Krishna Menon. The copy of the Power of Attorney is produced at Ex. P-23. Under the said Deed, the executant of the Power of Attorney has empowered Mr. K. Sukumaran to enter into any agreement for purchase/ or to take on lease or otherwise acquire for K. Karunakaran and for his use and benefit any property or properties wherever as the Attorney thinks proper. He has also empowered K. Sukumaran to institute, commence, prosecute or defend or resist all suits, other actions and proceedings or compromise and withdraw the same in any Court or revenue authority. Thus, by the said General Power of Attorney-Ex. P-23, the plaintiff in the suit viz., K. Sukumaran (appellant) is empowered for purchasing the properties, as well as, initiating proceedings in Courts and Revenue Tribunals. The Court below has refused the decree for specific performance in favour of the plaintiff on the ground that there is no assignment of agreement Ex. P-1 in favour of the plaintiff and, therefore, he cannot seek for specific performance of the agreement Ex. P-1 in his individual capacity. Such a conclusion is erroneous, as could be seen from Ex. The Court below has refused the decree for specific performance in favour of the plaintiff on the ground that there is no assignment of agreement Ex. P-1 in favour of the plaintiff and, therefore, he cannot seek for specific performance of the agreement Ex. P-1 in his individual capacity. Such a conclusion is erroneous, as could be seen from Ex. P-1 dated 10.1.1993 it is clear that all the survey numbers were agreed to be sold by all the defendants in favour of K. Karunakaran, represented by General Power of Attorney holder K. Sukumaran. The said agreement clearly mentions the name of the prospective vendee as Sri K. Karunakaran, represented by General Power of Attorney holder K. Sukumaran. Thus, it is clear that K. Sukumaran has entered into agreement with all the defendants as Power of Attorney holder of Mr. K. Karunakaran. Therefore, there need not be assignment of Ex. P-1 in favour of the plaintiff. Plaintiff is none other than the Power of Attorney holder of Mr. K. Karunakaran. Even the two Sale Deeds dated 22.12.1993 and 22.3.1994 as per Exs,P-5 and P-7 in respect of Survey No. 42/1 (item No. 3) and Survey No. 41/1 (item No. 2) of the suit schedule are in the name of K. Sukumaran only. The defendants have not opposed the execution of the aforementioned Sale Deeds in favour of K. Sukumaran. Thus, it is amply dear that the defendants knew very well that K. Sukumaran is the Power of Attorney holder of K.Karunakaran and is acting so on behalf of K. Karunakaran. Ex. P-1 is signed by K. Sukumaran as General Power of Attorney for Mr. K. Karunakaran. 12. As aforementioned, after executing the two Sale Deeds in respect of item Nos. 2 and 3 of the agreement of sale - Ex. P-1, the defendants have entered into Agreements of Sale as per Ex. P-9 and P-24 on 21.3.1994 and 22.3.1994 respectively. Ex. P-9 is signed by K. Sukumaran obviously as a prospective vendee, so also, Ex. P-24. In the aforementioned two agreements, as well as, the Sale Deeds entered into between the parties, Mr. K. Karunakaran has not signed and whereas, Mr. Sukumaran has signed as a Power of Attorney of Mr. K. Karunakaran for purchasing. As aforementioned, the General Power of Attorney is produced in the suit and marked as Ex. P-23. P-24. In the aforementioned two agreements, as well as, the Sale Deeds entered into between the parties, Mr. K. Karunakaran has not signed and whereas, Mr. Sukumaran has signed as a Power of Attorney of Mr. K. Karunakaran for purchasing. As aforementioned, the General Power of Attorney is produced in the suit and marked as Ex. P-23. Thus, the trial Court is not justified in concluding that there is no assignment of the agreement Ex. P-1 in favour of the plaintiff. Since Ex. P-1 is entered into by Power of Attorney of Mr. Karunakaran, he can seek specific performance of Ex. P-1 as a General Power of Attorney of Mr. K. Karunakaran. 13. The Court below in paragraph 22 of the judgment has held that the plaintiffs signature is not found in Ex. P-9, i.e., the Agreement of Sale dated 21.3.1994 under which all the defendants agreed to sell Survey No. 40 and Survey Mo,42/2 (i.e., item Nos. 1 and 4 of the agreement of sale Ex. P-1) in favour of the plaintiff. The said observation is incorrect, Ex. P-9 contains the signature of the plaintiff, He has signed it in English. He has signed below the signatures of the witnesses. Thus, the observation of the trial Court that Ex. P-9 is not signed by the plaintiff is totally incorrect. Even otherwise, in India, an agreement of Sale signed by the vendor alone and delivered to the purchaser and accepted by the purchaser is always considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. However, there is no practice in India of purchaser alone signing the agreement of sale, inasmuch as; vendor being the owner of the property should show his intention to convey by putting his signature on the agreement. In this context it is relevant to note the observations of the Apex Court in the case of Aloka Bose vs. Parmatma Devi and others, AIR 2009 SC 1527 wherein it is observed thus: “ Para 7: …………………….. In this context it is relevant to note the observations of the Apex Court in the case of Aloka Bose vs. Parmatma Devi and others, AIR 2009 SC 1527 wherein it is observed thus: “ Para 7: …………………….. All agreements of sale are bilateral contracts as promises are made by both - the vendor agreeing to sell and the purchaser agreeing to purchase, On the other hand, the observation in S.M. Gopal Chatty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound, An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms, It can he oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it Section 10 of the Act provides ail agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act The proviso to Section 10 of the Act makes it dear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter offers by offers or other modes of recognised communication). In India, an agreement of sale signed by the vendor alone and breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.” (Emphasis supplied) From the above it is clear that, even if the prospective vendee does not sign the agreement of sale, but is duly signed by the prospective vendor and if such an agreement is accepted by the prospective vendee, then, the said contract is a valid contract which can be specifically enforced by the prospective vendee. In the matter on hand, as aforementioned, the said question does not arise in view of the fact that Power of Attorney himself has put his signature on the agreement of sale Ex. P-9. 14. The Court below has further erred in observing that the plaintiff has paid sale consideration amount only in respect of the properties, i.e., Survey Nos. 42/1 and 41/1 sold under Exs.P-5 and P-7 and he has not paid any sale consideration amount in respect of the suit schedule properties, i.e., Survey Nos. 40 and 42/2 (item Nos. 1 and 4 of the Agreement of Sale dated 10.1.1993) and consequently, the Court below has erred in holding that the defendants have not agreed to sell the suit schedule properties. 15. The records clearly reveal that the defendants 1 to 13 have entered into an agreement of sale initially on 10.1.1993 in respect of four properties, i.e., Survey Nos. 40, 41/1, 42/1 and 42/2 of Beretena Agrahara village. All the four properties are adjacent and the total extent is 69 guntas. All the four properties can be encircled by a single compound. The price fixed for one gunta was Rs. 19,500/-. The defendants by the said agreement Ex. P-1 agreed to self all the four properties in favour of the plaintiff herein. All the four properties are adjacent and the total extent is 69 guntas. All the four properties can be encircled by a single compound. The price fixed for one gunta was Rs. 19,500/-. The defendants by the said agreement Ex. P-1 agreed to self all the four properties in favour of the plaintiff herein. Before the Sale Deed could be executed in respect of all the four survey numbers, 11 defendants executed Sale Deeds in respect of Survey Nos. 42/1 and 41/1 (item Nos. 2 and 3 of the Agreement of Sale dated 10.1.1993) as per Exs. P-8 and P-7 dated 22.12.1993 and 22.3.1994 respectively. The other two defendants executed Consent Deeds dated 31.10.1995 in respect of the aforementioned Sale Deeds dated 22.12.1993 and 22.3.1994. Such Consent Deeds are found at Exs,P-8 and P-8, After executing the aforementioned two Sale Deeds dated 22.12.1993 and 22.3.1994, all the defendants have executed Agreements of Sale as per Exs.P-9 and P-24. The recital of Ex. P-9 clearly reveals that, out of Rs. 13,45,500/- which was originally agreed to between the parties as a sale consideration in respect of all the four survey numbers under Agreement of Sale dated 10.1.1993, the amount of Rs. 9 lakhs has been received by the defendants and the balance of Rs. 4,45,500/- is payable by the plaintiff to the defendants at the time of registration of the sale deed. Ex. P-9 refers to the first agreement of sale dated 10.1.1993. Based on the very conditions mentioned in Ex. P-l dated 10.1.1993 that the sale consideration would be Rs. 19,500/- per gunta, which totally amounts to Rs. 13,45,500/-, the defendants agreed that they have received Rs. 9 lakhs already and the remaining sale consideration of Rs. 4,45,500/- should be paid by the plaintiff to the defendants at the time of registration of the Sale Deed in respect of other two properties viz., Survey No. 40, measuring 8 guntas and Survey No. 42/2, measuring 34 guntas. The said Agreement of Sale Ex. P-9 also refers to the Sale Deeds in respect of Survey Nos. 42/1 and 41/1 which were sold on 22.12.1993 and 22.3.1994. Thus, it cannot be said that the defendants have not received any sale consideration from the plaintiff in respect of the suit schedule properties and that the defendants have not agreed to sell the suit schedule properties. P-9 also refers to the Sale Deeds in respect of Survey Nos. 42/1 and 41/1 which were sold on 22.12.1993 and 22.3.1994. Thus, it cannot be said that the defendants have not received any sale consideration from the plaintiff in respect of the suit schedule properties and that the defendants have not agreed to sell the suit schedule properties. At the cost of repetition, we observe that, on the day item No. 2 of the suit schedule property was sold in favour of the plaintiff under Sale Deed dated 21.3.1994 (registered on 22.3.1994), the defendants executed another Agreement of Sale dated 21.3.1994 as per Ex. P9 agreeing to sell the remaining two items of the property viz., the land bearing Survey No. 40, measuring 8 guntas and the land bearing Survey No. 42/2. Measuring 34 guntas (item Nos. 1 and 4 of the Agreement of Sale dated 10.1.1993). The said agreement Ex. P-9 further states that out of Rs. 13,45,000/- which was agreed to be paid by the plaintiff to the defendants under Agreement of Sale dated 10.1.1993, an amount of Rs. 9 lakhs have been received by the defendants. The balance of Rs. 4,45,000/-is payable by the plaintiff to the defendants at the time of registration of the Sale Deed. Another agreement of sale as per Ex. P-24 dated 22.3.1994 is also to the said effect. Ex. P-24 is executed by 11 prospective vendors out of total 13 vendors. Thus, it is clear that Ex. P-9 is executed by all the defendants and whereas, Ex. P-24 is executed by 11 defendants. Be that as it may, since all the defendants have agreed to sell once again the two items of the property bearing Survey No. 40, measuring 8 guntas and Survey No. 42/2, measuring 34 guntas (i.e., item Nos. 1 and 4 of the suit schedule) after receiving the balance of Rs. 4,45,500/-, the said agreement binds them. 16. Thus, it is more than dear that the defendants agreed to self all the four survey numbers in one block to the plaintiff. But they sold only two survey numbers initially on 22.12.1993 and 22.3.1994. However, they agreed to sell the remaining two survey numbers by executing one more Agreement of Sale dated Ex. P9 dated 22.3.1994 wherein the defendants have clearly mentioned that out of the total amount of Rs. 13,45,500/- as agreed under Ex. But they sold only two survey numbers initially on 22.12.1993 and 22.3.1994. However, they agreed to sell the remaining two survey numbers by executing one more Agreement of Sale dated Ex. P9 dated 22.3.1994 wherein the defendants have clearly mentioned that out of the total amount of Rs. 13,45,500/- as agreed under Ex. P-1 dated 10.1.1993, they have received Rs. 9 lakhs, and they would be receiving remaining amount of Rs. 4,45,500/- at the time of getting the other two survey numbers, i.e., Survey Nos. 40 and 42/2 registered in favour of the plaintiff. Hence, the trial Court is not justified in holding that the amount of Rs. 9 lakhs paid by the plaintiff to the defendants relates only to Survey Nos. 42/1 and 41/1 which are the subject matters of the Sale Deeds Exs.P-5 and P-7. On the other hand, Rs. 9 lakhs paid by the plaintiff relate not only in respect of the properties conveyed under the aforementioned two Sale Deeds, but also part of the sale consideration in respect of other two survey numbers, i.e., Survey Nos. 40 and 42/2 which are agreed to be sold. As has been held by the Apex Court in the case of Narbada Devi Gupta vs. Birendra Kumar Jaiswal and another, ILR 2004 Kant. 183, where the documents are admitted by the signatories thereto and then marked as exhibits, no further burden to lead additional evidence to prove their writing and its execution would exist. While dealing with similar question, the Apex Court observed thus: “Para 17: We have already reproduced above the contents of Order No. 53 dated 3-9-1982 of the Trial Court. The appellant cannot be allowed to question the correctness of the said order. The documents were admitted and then exhibited. The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence of proof of the writing on the rent receipts and its due execution by the deceased landlady.” 17. DW-1 in his cross-examination (paragraph-10 of the deposition) has clearly admitted that signature shown to him in Ex. P1 is his. The signature of DW-1 is marked in Ex. P-l (a). He further agrees that the defendants have agreed to sell four items of the properties under Ex. P-l and that the signature shown to him in Ex. P-9 is his. P1 is his. The signature of DW-1 is marked in Ex. P-l (a). He further agrees that the defendants have agreed to sell four items of the properties under Ex. P-l and that the signature shown to him in Ex. P-9 is his. The said signature is marked at Ex. P-9(a). The signatures at Ex. P-9 (c), (d), (e) and (f) are also his signatures. However, he denies the suggestion that he had agreed to sell remaining two items of the properties to the plaintiff and executing Ex. P-9 containing similar terms and conditions as contemplated in Ex. P-l. Such an explanation cannot be accepted, as inasmuch as, the best evidence to prove the contents of the document is the document itself. Section 91 of the Evidence Act clarifies that no evidence shall be given in proof of the terms of such agreement/contract, except the document itself or the secondary evidence of its contents, as the case may be. None of the defendants, except defendant No. 4, have entered the witness box. Defendant No. 4 is examined himself as DW-1. He admits his signature over the agreements in question. In the light of the voluminous material against the defendants, the contention of DW-1 that contents of Ex. P-9 are not known to him cannot be accepted. 18. Looking to the totality of the facts and circumstances of the case, we are of the clear opinion that all the defendants agreed to sell the suit schedule properties in favour of plaintiff, firstly under Ex. P-1 and thereafter under Ex. P-9. They have received Rs. 9 lakhs out of the total agreed sum of Rs. 3,45,500/-. The balance to be paid by the plaintiff to the defendants is Rs. 4,45,500/- only. From the above, it is clear that 65% to 70% of the amount is already paid by the plaintiff to the defendants. Plaintiff was ever ready and willing to perform his part of the contract. There are no equities in favour of the defendants/ inasmuch as, they have received major portion of the sale consideration and have executed the Sale Deeds in respect of two items of the property also. The remaining two items of the property under Ex. P1, which are the suit schedule properties are contiguous to the properties which are already sold in favour of the plaintiff. Hence, the plaintiff is entitled to the decree for specific performance. The remaining two items of the property under Ex. P1, which are the suit schedule properties are contiguous to the properties which are already sold in favour of the plaintiff. Hence, the plaintiff is entitled to the decree for specific performance. 19. But, the suit properties are acquired by the State for Karnataka Industrial and Development Board. The acquisition proceedings were questioned by the plaintiff herein before this Court and he failed in his attempt. It is brought to the notice of the Court that the plaintiff herein has approached the Apex Court questioning the judgment of this Court in writ proceedings, as well as, the acquisition notifications. Since the lands are acquired and as the challenge to the acquisition proceedings is made by the plaintiff, and their corpus has seized to exist, no decree for specific performance can now be granted for the present. However, in our opinion, with the acquisition of the suit properties, plaintiffs rights do not get extinguished in toto. The Appellate Court always suitably moulds the relief which circumstances of the case may require or permit. The power in this regard is ample and wide enough. 20. In the matter on hand, the suit schedule properties have not been totally lost. What happens in the case of acquisition is that for the proper compensation payable in lieu thereof is substituted. Ultimately, if the plaintiff succeeds before the Apex Court and if the acquisition notifications are quashed, he may be entitled to get the Sale Deeds registered in his favour. But, as of now, we find that the decree for specific performance of contract in question is incapable of being executed due to acquisition of the subject land. Thus, the decree to be passed by this Court shall stand suitably substituted by decree for realisation of compensation payable in lieu thereof as may be or have to be determined under the relevant Act. The plaintiff shall have the right to recover such compensation together with solatium and interest thereon. The plaintiff shall have the right to recover it from the defendants if the defendants have already realised these amounts and in that event, the defendants shall be further liable to pay interest at the rate of 12% p.a. from the date of realisation till the date of payment on the entire amount released in respect of the disputed lands. The plaintiff shall have the right to recover it from the defendants if the defendants have already realised these amounts and in that event, the defendants shall be further liable to pay interest at the rate of 12% p.a. from the date of realisation till the date of payment on the entire amount released in respect of the disputed lands. In this regard, we may refer to the observations and conclusions reached by the Apex Court while dealing with similar question in the case of Jagdish Singh vs. Natthu Singh, (1992) 1 SCC 6476, wherein it is held thus: “Para 29: In the present case there is no difficulty in assessing the quantum of the compensation. That is ascertainable with reference to the determination of the market value in the land acquisition proceedings. The compensation awarded may safely be taken to be the measure of damages subject of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. Para 30: We accordingly, confirm the finding of the High Court that respondent was willing and ready to perform the contract and that it was the appellant who was in breach. However, in substitution of the decree for specific performance, we make a decree for compensation, equivalent to the amount of the land acquisition compensation awarded for the suit lands together with solatium and accrued interest, less a sum of Rs. 1,50,000 (one lakh fifty thousand only) which, by a rough and ready estimate, we quantify as the amount to be paid to the appellant in respect of his services, time and money expended in pursuing the legal claims for compensation,” (Emphasis supplied) In the light of the dictum laid down as mentioned supra by the Apex Court, we conclude that the appellant-plaintiff was ready and willing to perform his part of the contract and that it was the respondents who are in breach. Since the land is acquired, in substitution of the decree for specific performance, we make a decree for compensation equivalent to the amount of land acquisition compensation awarded for the suit lands together with solatium and other statutory benefits. Since the land is acquired, in substitution of the decree for specific performance, we make a decree for compensation equivalent to the amount of land acquisition compensation awarded for the suit lands together with solatium and other statutory benefits. Since the respondents have not questioned the acquisition notifications before any forum and as there is no material to show that the respondents have spent any amount of money, time or service in relation to pursuing the legal claims for compensation, they are not entitled to any amount of compensation. On the other hand, if the appellant herein succeeds before the Apex Court and the acquisition notifications are quashed by the Apex Court, the plaintiff is entitled to get the Sale Deed executed in his favour in respect of the suit schedule properties. 21. We are conscious of the legal position that if the plaintiff is entitled to specific performance of the contract and if the land is acquired during the pendency of the proceedings, he may be entitled to claim compensation under Section 21 of the Specific Relief Act. In the matter on hand, the prospective purchaser, i.e., the plaintiff is fighting the litigation up to the Supreme Court questioning the acquisition notifications. He must have spent lot of time and money during such litigation. It appears, none of the defendants are serious in questioning the acquisition proceedings. None of the defendants, except defendant No. 4 had entered the witness box. Only the defendant Nos. 2, 3 and 4 have filed the written statement. In view of the above and having regard to the totality of the facts and circumstances of the case we are of the opinion that interest of justice will be met if we grant relief in favour of the plaintiff as granted by the Apex Court in similar matter, i.e., in the case of Jagdish Singh (mentioned supra). 22. However, from the records it is clear that the plaintiff has paid the amount of Rs. 9 lakhs out of the total sale consideration of Rs. 13,45,500/-, the balance of Rs. 4,45,500/- is payable by the plaintiff to the defendants at the time of registration of the Sale Deed. Since the Sale Deed cannot be executed as of now and as the plaintiff will get the entire compensation amount, the defendants are entitled to the balance of safe consideration of Rs. 13,45,500/-, the balance of Rs. 4,45,500/- is payable by the plaintiff to the defendants at the time of registration of the Sale Deed. Since the Sale Deed cannot be executed as of now and as the plaintiff will get the entire compensation amount, the defendants are entitled to the balance of safe consideration of Rs. 4,45,500/- alongwith interest at the rate of 12% p.a. from the date of agreement of sale, i.e., on 10.1.1993 till the date of payment by the plaintiff. Accordingly, the following order is made: Since no decree for specific performance can now be granted, in substitution of the decree for specific performance, we make a decree for compensation, equivalent to the amount of land acquisition compensation awarded for the suit lands, together with solatium and other statutory benefits. The appellant/plaintiff shall pay Rs. 4,45,500/- alongwith interest at the rate of 12% p.a. from the date of agreement of sale dated 10.1.1993 till the date of payment by the plaintiff to the defendants/respondents. Appeal is accordingly allowed in part. The judgment and decree passed by the trial Court in O.S. No. 879/1995, stands set aside. Suit is partly decreed as mentioned supra.