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2012 DIGILAW 22 (CHH)

MOHAMMAD YUSUF RAJA v. AZIZ KHAN

2012-01-13

G.MINHAJUDDIN, I.M.QUDDUSI

body2012
JUDGMENT As per Hon'ble Shri G. Minhajuddin, J.:- 1. This appeal has been filed under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908 (for short 'the CPC') against the impugned judgment and decree dated 06-08-2010 passed by Tenth Additional District Judge, (ET.C.), Raipur (C.G.) in Civil Suit No. 18-A/2005 whereby and whereunder the suit filed by the appellant/plaintiff for specific performance of contract of sale has been dismissed. 2. All the facts are disputed. The appellant/plaintiff's case in brief is that the respondents/defendants had entered into an agreement of sale with the appellant/plaintiff on 04-11-1999 in respect of the suit house in village Telibandha, Guru Ghasidas Ward, bearing Khasra No. 189/7, Plot No. 42, area 1404 Sq. ft. for Rs.8,00,000/- and an agreement of sale was executed on the same date and the entire amount of Rs.8,00,000/- was paid to the respondents by the appellant/plaintiff in presence of the witnesses. The agreement of sale was got registered and it was agreed upon that as the respondents had taken loan from the bank on account of which the documents of the suit house were pledged with the bank, and therefore, the respondents will get the said documents released from the bank and after obtaining no dues certificate as well as certificate under Section 230 of the Income Tax Act, 1961 (for short 'the Act, 1961') that the sale deed will be executed and registered at the expenses of the appellant/plaintiff within a period of eight months which in extreme circumstances would be extendable for a further period of four months. On the execution of the agreement of sale Ex.P-l that the possession of the suit house was delivered to the appellant/ plaintiff by the respondents after which a portion of the house was let out on rent by the appellant to the respondents on a monthly rent of Rs.16,000/- and the remaining portion of the house was in possession of the appellant who had locked that portion. 3. 3. The appellant/plaintiff had been at all times ready and willing to perform 'his part of the contract but the conduct of the respondents had been indifferent, evasive and negligent and despite reminders they were neither getting the documents of the suit house released from the bank nor trying to obtain a certificate under Section 230 of the Act, 1961 from the income Tax Department which was at the relevant time necessary for getting the sale deed registered. After some time, the appellant learnt that the respondents are trying to dispose of the suit house on higher price to some other person and to hand over possession of the house to him. After this, the appellant served notice on the respondents as well as copy of a public notice published in the local newspaper informing the general public about the registered agreement of sale dated 04-11-1999 and asking the respondents not to dispose of the suit property to any one else and also to execute the sale deed in favour of the appellant. 4. After this, the appellant/plaintiff filed a suit for declaring the respondents as his tenants in the suit house and for injunction restraining them from creating third party interest over the suit house. During pendency of the civil suit No.63-A/2001 before the 5th Civil Judge, Class-2, Raipur, the respondents after breaking upon the lock took forcible possession of that portion of the suit house which was in possession of the appellant. On learning this, the appellant tried to lodge a FIR at the concerned Police Station but the police refused to register the F.I.R. After this, the second civil suit was filed for eviction, arrears of rent and-damages. After that the present suit for specific performance was filed on 17-10-2002. 5. The case of the respondents/defendants is that they are doing business of scrap and used to take loan from the appellant. On 01-11-1999, the accounts between the appellant and the respondents were settled and Rs.6,74,135/- was found due from the respondents to the appellant. After that the present suit for specific performance was filed on 17-10-2002. 5. The case of the respondents/defendants is that they are doing business of scrap and used to take loan from the appellant. On 01-11-1999, the accounts between the appellant and the respondents were settled and Rs.6,74,135/- was found due from the respondents to the appellant. On the insistence of the appellant/plaintiff with assurance that the documents will not be acted upon an agreement of sale was executed by the respondents/defendants in favour of the appellant/plaintiff for the security of the amount due including interest and Rs.8,00,000/- is shown as the amount for which the agreement of sale was executed whereas in fact, no amount was given by the appellant/ plaintiff to the respondents/defendants on 4-11-1999. The possession of the house or any portion thereof was never handed over to the appellant/plaintiff. It was also agreed upon that the interest of Rs.16,000/- to be paid on the amount due per month will be paid in the form of rent and for that a rent note was contemporaneously got executed. The respondents/ defendants had been residing in the suit house as owners and neither they had ever handed over the possession of the suit house to the appellant/ plaintiff nor they had ever been inducted as a tenant in a portion of the house and the entire house had been and is still in their possession. The respondents/defendants had pleaded that they had neither executed any agreement of sale in respect of the suit house nor had received any amount from the appellant/plaintiff on 04-11-1999. 6. Learned Trial Court, after affording opportunity of hearing and adducing evidence to both the parties, had dismissed the suit of the appellant/plaintiff by the impugned judgment and decree challenging the same, the present appeal has been filed. 7. The appellant/plaintiff has examined himself as PW-1 and Income Tax Officer Shri H.K. Jha as PW-2. In addition to this, the appellant has filed documents Ex. P-1 to P-8 in his favour. 8. On the other hand, the respondents/defendants have examined Abdul Gaffar as DW-1 and Sabdar Ali as DW-2. 9. We have heard learned counsel for the parties and perused the record of the Court below as well as the impugned judgment and decree. 10. In addition to oral arguments, learned counsel for the respondents/ defendants has also filed written submissions. 11. On the other hand, the respondents/defendants have examined Abdul Gaffar as DW-1 and Sabdar Ali as DW-2. 9. We have heard learned counsel for the parties and perused the record of the Court below as well as the impugned judgment and decree. 10. In addition to oral arguments, learned counsel for the respondents/ defendants has also filed written submissions. 11. In this appeal, the points for determination under Order 41 Rule 31 CPC are the following: "(1) Whether the suit for specific performance of contract is not maintainable in view of the provisions of Section 17 of the• Specific Relief Act, 1963? (2) Whether the present suit for specific performance of contract is barred under the provisions of Older 2 Rule 2 CPC? (3) Whether an agreement of sale was executed by the respondents/ defendants in favour of the appellant/plaintiff in respect of the suit house on 04-11-1999? (4) Whether the appellant/plaintiff had at all times been ready and willing to perform his part of the agreement? (5) Whether the possession of the suit house was delivered by the respondents/defendants to the appellant/plaintiff on 04- 11-1999? (6) Whether a portion of the suit house was let out on monthly rent of Rs. 16,000/- by the appellant to the respondents and contemporaneously a rent note was executed on 04-11-1999? (7) Whether the entire amount of sale consideration i.e. Rs.8,00,000/-was paid in cash on 04-11-1999 by the appellant to the respondents?" 12. So far as the question of the present suit being barred by the provisions of Section 17 of the Specific Relief Act, 1963 is concerned, Section 17 of the Specific Relief Act, 1963 provides as under: "17. Contract to sell or let property by one who has no title, not specifically enforceable.-(1) A contract to sell or let any immoveable property cannot be specifically enforced in favour of a vendor or lessor- (a) who, knowing not to have any title to the property, has contracted to sell or let the property; (b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the Court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt. (2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property." 13. From perusal of the provisions of Section 17 of the Specific Relief Act, 1963 which has been mentioned above, it is clear that when the title of the vendor is defective, then the suit for specific performance of contract by the vendor against the vendee is not enforceable. In the instant case, the trial Court held that as no documents of title have been produced by the respondents/defendants who were vendors, therefore, the suit for specific performance of contract of sale cannot be enforced in view of the provisions of Section 17 of the Specific Relief Act, 1963. We are of the opinion that the learned Trial Court has committed a manifest error of law in holding the present suit to be not specifically enforceable because the present suit for specific performance of contract has not been filed by the vendor but by the intending vendee. Therefore, the finding of the trial Court on this point is set aside. 14. So far as the question of present suit being barred under the provisions of Order 2 Rule 2 CPC is concerned, it is necessary to quote the provisions of Order 2 Rule 2 CPC which is as under: "ORDER II FRAME OF SUIT 1. Frame of suit.-(1) xxx xxx xxx xxx 2. Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court (2) Relinquishment of part of claim.-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." 15. (3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." 15. It is not in dispute that the first suit was filed by the appellant for declaring the respondents/defendants as his tenants in the suit house and for permanent injunction. It is also not in dispute that a second suit was filed by the appellant/plaintiff in the Court of Additional District Judge, Raipur for eviction of the respondents from the suit house, arrears of rent and for damages. The appellant/plaintiff has admitted in para 20 of his statement that the said suit has been dismissed. It is also not in dispute that the present suit which is filed for specific performance of contract is the third suit filed by the appellant/plaintiff and all the three suits have been filed on the basis of registered agreement of sale and rent note both dated 04-11-1999, the appellant/plaintiff himself in para 25 of his statement has admitted in very clear terms that in the first suit filed by him for declaration and injunction against the respondents/defendants in the year 2001 that the respondents/defendants had denied through their written statement that they had executed any agreement of sale in respect of the suit house in favour of the appellant/plaintiff. It is a settled principle governing appreciation of evidence that admission is the best piece of evidence against a person. As such, from the admission made by the appellant/plaintiff himself in para 25 of his statement, it is clear that the cause of action for filing the suit for specific performance of contract of sale had arisen to the appellant/plaintiff on the date the respondents/defendants had filed their written statements in the first suit which was filed by the appellant/plaintiff against the respondents/defendants for declaring them as his tenants in the suit house and for permanently restraining them from creating any third party interest over the same. Even after denial by the respondents/defendants that they had not executed any agreement of sale in favour of the appellant/plaintiff in respect of the suit house, the appellant/plaintiff has neither amended his plaint in the first suit incorporating the relief of specific performance of contract of sale nor filed a separate suit for the same but he preferred to file a second civil suit against the respondents/defendants for their eviction from the suit house and for arrears of rent as well as for damages. In view of this, looking to the provisions of Order II Rule 2 CPC, the present civil suit which is for specific performance of contract and which is the third suit by the appellant/plaintiff against the respondents/defendants based on the same documents contract of sale dated 04-11-1999 is certainly barred under the provisions of Order II Rule 2 of CPC. 16. So far as the points No.3 to 7 for determination are concerned, the respondents/defendants have admitted the execution of document dated 04-11-1999 but have stated that the same was executed as a security for loan which was advanced from time to time to the respondents/defendants by the appellant/ plaintiff 17. On the contrary, according to appellant/plaintiff, the respondents have agreed to sell the suit house for Rs.8,00,000/- and pursuant to this, an agreement of sale Ex. P-l was got executed and registered on 04-11-1999 and on the same date Rs.8,00,000/- was paid in cash to the respondents/defendants towards the price of the suit house and the sale deed was to be executed and registered within a period of eight months and the said period was agreed to be extendable for a further period of four months. As such, total period of twelve months had expired on 04-11-2000. The reason shown by the appellant/plaintiff for not getting the sale deed executed and registered were that as the documents of title were pledged by the respondents/defendants with the bank and a certificate under Section 230 of the Act, 1961 was not obtained by the respondents/defendants which was necessary, therefore, the sale deed was not got executed and registered immediately. 18. From the evidence available on record and the conduct of the appellant/ plaintiff, it is clear that he was not persuading the respondents/defendants to get the documents of title released from the bank and to obtain a certificate under Section 230 of the Act, 1961. 19. 18. From the evidence available on record and the conduct of the appellant/ plaintiff, it is clear that he was not persuading the respondents/defendants to get the documents of title released from the bank and to obtain a certificate under Section 230 of the Act, 1961. 19. According to appellant/plaintiff on the very same date i.e. 04-11-1999, the possession of the suit house was handed over to him who on the request of the respondents/defendants had let a portion of it on a monthly rent of Rs.16,000/- to the respondents/defendants and had locked the remaining portion on the ground that the respondents/defendants were trying to create third party Interest that a suit was filed by the appellant/plaintiff against the respondents/defendants for declaring them as his tenants in the suit house and permanent injunction. As per the appellant/plaintiff during pendency of the suit, the respondents/defendants after breaking open the lock had taken forcible possession of the portion of the house which was in possession of the appellant/plaintiff on account of which the appellant/plaintiff had filed a second suit against the respondents/defendants for their eviction, arrears of rent and damages. After this, the appellant/plaintiff ultimately filed the present suit for specific performance of contract. Even after breaking of the lock and taking forcible possession of a portion of the suit house by the respondents/defendants, neither any report was lodged against them nor any other action was taken against them except the suit for eviction. Also regarding payment of cash amount of Rs.8,00,000/-on 04-11-1999 to the respondents/defendants by the appellant/plaintiff. There is no evidence on the point that the appellant/plaintiff was in a position to pay an amount of Rs.8,00,000/- in cash on 04-11-1999. Although the appellant/plaintiff has stated that he has shown payment of Rs.8,00,000/- on 04-11-1999 to the respondents/defendants in his income tax return of the year 1999-2000 but the same has not been filed. The appellant/plaintiff has also not adduced evidence as to from which bank he has withdrawn that amount or from where he had arranged such a huge amount. On account of non-filing of the relevant documents that an adverse inference is to be drawn against the appellant/plaintiff that had he filed his income tax return or his bank pass book, then the same would not have supported the appellant/plaintiff's version regarding cash payment of Rs.8,00,000/- on 04-11-1999 to the respondents/defendants. 20. On account of non-filing of the relevant documents that an adverse inference is to be drawn against the appellant/plaintiff that had he filed his income tax return or his bank pass book, then the same would not have supported the appellant/plaintiff's version regarding cash payment of Rs.8,00,000/- on 04-11-1999 to the respondents/defendants. 20. In view of the evidence available on record and the conduct of the appellant/plaintiff, it is clear that the document executed on 04-11-1999 was not an agreement of sale but in fact it was executed as a security for the loan which was advanced by the appellant/plaintiff to the respondents/ defendants. The fact of handing over of possession of the suit house by the respondents/defendants to the appellant/plaintiff on 04-11-1999 and subsequent forcible taking possession of a portion of the suit house also does not stand proved. Even if it is assumed that an agreement of sale was executed on 04-11-1999 in respect of the suit house, then also the suit filed for specific performance is barred under the provisions of Order 2 rule 2 CPC. In addition to this, from the conduct of the appellant it is clear that he was not ready and willing to get the sale deed executed and registered as the transaction was of a loan. 21. On the basis of evidence adduced and the conduct of the parties, the appellant/plaintiff has not been successful even in establishing that on 04-11-1999, he had let a portion of the suit house on a monthly rent of Rs.16,000/- to the respondents/defendants. As such, on the basis of material on record, the case set up by the respondents/defendants is rendered more probable on the basis of preponderance of probabilities. In view of this, there is no illegality and infirmity in the judgment and decree passed by the trial Court and the same deserves to be affirmed. 22. In the result, the appeal is dismissed and the judgment and decree dated 06-08-2010 passed by Tenth Additional District Judge, (F.T.C.)"Raipur (C.O.) in Civil Suit No. 18-A/2005 is hereby affirmed. 23. There shall be no order as to costs. 24. A decree be drawn up accordingly by the Additional Registrar (Judicial). Appeal Dismissed.