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Madhya Pradesh High Court · body

2012 DIGILAW 356 (MP)

Kamaldas v. Badrilal

2012-03-28

N.K.MODY

body2012
JUDGMENT 1. This appeal was admitted for final hearing by this Court vide order dated 5.10.1998 on the following substantial question of law : “Whether the Courts below erred in law in granting decree for possession against appellant (defendant No.3) even when no such relief was claimed against him by the plaintiff in his plaint?” 2. Being aggrieved by the judgment and decree dated 6.4.1998 passed by II ADJ, Dhar in Civil Appeal No.6-A/1996 whereby the judgment and decree dated 12.1.1996 passed by Civil Judge, Class I, Badnawar in Civil Suit No.14-A/1982 whereby suit filed by the respondent No.1 for specific performance was decreed was maintained, present appeal has been filed. 3. During pendency of appeal IA No.6604/2009 was filed by the appellant wherein it is prayed that additional substantial question of law be framed. On 13.11.1998 cross-objections has also been filed by the respondent No.2 against the judgment and decree passed by the learned Courts below with a prayer to frame additional substantial questions of law. 4. Keeping in view the controversy involved following additional substantial questions of law are framed : (i) Whether the findings of learned Courts below are perverse as the same are against the documentary evidence which is on record? (ii) Whether the learned Courts below committed error in holding that the document Ex.P-1 was executed by respondent No.2 in favour of respondent No.1? 5. Short facts of the case are that respondent No.1 filed a suit for specific performance against respondent No.2 on 29.7.1982 alleging that respondent No.2 is owner of land bearing survey No.387 measuring 1.466 hectare situated at village Dolanakala, Tehsil Badnawar. It was alleged that respondent No.2 agreed to sale the suit land vide agreement dated 20.3.1981 for a consideration of Rs.18,000/-. It was alleged that as per terms of the agreement the sale-deed was to be executed by respondent No.2 in favour of respondent No.1 on or before 18th May, 1981 upon payment of Rs.12,000/- in cash and upon execution of promissory note for a consideration of Rs.6,000/- by the respondent No.1 in favour of respondent No.2 of which interest was to be calculated @ 18% per annum. It was alleged that on account of agreement dated 20.3.1981 following amount was paid by the respondent No.1 to respondent No.2 : S.No. Date Hindu Calendar Amount 1. 20.3.1981 Miti Fagun Sudi Fifteen Rs. 4,901.00 Samvat 2037 2. It was alleged that on account of agreement dated 20.3.1981 following amount was paid by the respondent No.1 to respondent No.2 : S.No. Date Hindu Calendar Amount 1. 20.3.1981 Miti Fagun Sudi Fifteen Rs. 4,901.00 Samvat 2037 2. 30.4.1981 Miti Vesakh Elevan 2038 Rs. 650.00 3. 4.5.1981 Miti Vesakh Vadi Rs. 4,150.00 4. 24.5.1981 Jeth Vadi Samvat 2038 Rs. 5,800.00 Total l... Rs.15,509.00 6. It was alleged that balance amount which was to be paid was Rs.2,500/- for which the respondent No.1 was and is always ready and willing to pay but respondent No.2 is not executing the sale-deed, hence it was prayed that decree be passed in favour of respondent No.1 and respondent No.2 be directed to execute the sale-deed and also hand over the possession of the suit property. During pendency of suit on 24.9.1994 appellant was also impleaded as party. The suit was contested by the respondent No.2 as well as by the appellant wherein all the plaint allegations were denied. It was denied that respondent No.2 ever entered into an agreement to sale the suit property. It was prayed that suit be dismissed.After framing of issues and recording of evidence learned trial Court decreed the suit against which an appeal was filed which was also dismissed, hence this appeal. 7. Mr. T.N. Singh, learned senior counsel for the appellant argued at length and submits that the impugned judgment and decree passed by the learned Courts below is illegal, incorrect and deserves to be set aside. It is submitted that in fact no agreement has taken place between the parties. It is submitted that the alleged agreement is dated 20.3.1981 while just after the agreement the suit was filed by respondent No.1 against respondent No.2 on 24.6.1981 which was numbered as Civil Suit No.31-A/1981 wherein it was alleged that respondent No.1 is in occupation of the suit property and the prayer was for injunction against respondent No.2. In the said suit it was alleged that respondent No.1 has become occupancy tenant. It is submitted that in the said suit it was not stated that respondent No.2 entered into an agreement to sale the suit property on 20.3.1981. It is submitted that this itself was enough to dismiss the suit. In the said suit it was alleged that respondent No.1 has become occupancy tenant. It is submitted that in the said suit it was not stated that respondent No.2 entered into an agreement to sale the suit property on 20.3.1981. It is submitted that this itself was enough to dismiss the suit. It is submitted that balance consideration was also not paid as alleged in the plaint and the learned Courts below also came to the conclusion that no amount of Rs.5,800/- ever was paid to the respondent No.2. It is submitted that appellant is in occupation of land under his independent rights. It is submitted that respondent No.1 was in litigation with the appellant before Revenue Authority and it was never disclosed at any point of time that respondent No.1 has entered into an agreement to purchase the suit property from respondent No.2. It is submitted that the orders were pased by Revenue Authority in favour of appellant. It is submitted that in the plaint there is no relief claimed for possession, while admittedly respondent No.1 was not in possession. Reliance is placed on a decision of Supreme Court in the matter of Sheela Burney v. Syed Ali Mossa [2011(4) MPLJ 40], wherein there was no prayer for decree of possession either in the original plaint or amended plaint, it was held that no such relief can be granted. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be allowed and the impugned judgment and decree passed by the learned Courts below be set aside. 8. Mr. Yashpal Rathore, learned counsel for the respondent No.2 supports the arguments advanced by the learned counsel for the appellant and submits that the agreement itself is forged while in fact no agreement has taken place between the parties. It is submitted that even if, it is assumed that there was an agreement, then too, from the terms and conditions of agreement, it is evident that time was the essence of contract. Learned counsel placed reliance on a decision in the matter of Mrs. Saradamani Kandappan v. Mrs. S. Rajalakshmi [ AIR 2011 SC 3234 ], wherein amount of consideration was payable in a short span of time, Hon’ble apex Court held that time was essence of the contract and specific performance of decree was denied. Learned counsel placed reliance on a decision in the matter of Mrs. Saradamani Kandappan v. Mrs. S. Rajalakshmi [ AIR 2011 SC 3234 ], wherein amount of consideration was payable in a short span of time, Hon’ble apex Court held that time was essence of the contract and specific performance of decree was denied. It is submitted that since the signatures were admitted by the respondent No.2, therefore, learned Courts below held that burden to disprove the case of respondent No.1 was on respondent No.2.It is submitted that since the suit was for specific performance of agreement, therefore, the burden was on respondent No.1 to prove that respondent No.2 entered into agreement and respondent No.1 was always ready and willing to perform his part of contract. For this contention reliance is placed on a decision in the matter of Coromandel Indag Products (P) Ltd. v. Garuda Chit and Trading Co. (O) Ltd. [ (2011)8 SCC 601 ], wherein Hon’ble apex Court has held that actual tendering or depositing of money in Court is not essential except when so directed by Court, however, it is incumbent on party who wants to enforce specific performance of contract to aver and prove that he has performed or has always been ready and willing to perform essential terms of contract. Learned counsel further submits that only on the basis of admission of signatures on document, it cannot be said that respondent No.2 has admitted the execution of agreement. For this contention reliance is placed on a decision in the matter of Kapil Corepacks Pvt. Ltd. v. Harbans Lal [2010(4) MPLJ 551], wherein the Hon’ble apex Court has held that admission of signature by party is not admission of document. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be allowed and the judgment passed by learned Courts below be set aside. 9. Mr. Yashpal Rathore, learned counsel for the respondent No.2 supports the arguments advanced by the counsel for appellant and submits that cross-objections filed by the respondent No.2 be allowed and the judgment passed by learned Courts below be set aside. 10. Mr. Sumit Samvatsar, learned counsel for the respondent No.1 submits that even if, the relief of possession is not claimed, then too, the relief can be granted in a suit for specific performance. 10. Mr. Sumit Samvatsar, learned counsel for the respondent No.1 submits that even if, the relief of possession is not claimed, then too, the relief can be granted in a suit for specific performance. It is submitted that the present case is on a better footing as respondent No.1 prayed for possession and appellant was impleaded later on. Learned counsel placed reliance on a decision in the matter of Sitaram Pal v. Ram Prasad [ 2010(III) MPWN 100 ], wherein the relief of possession sought by amendment application, it was held that relief of possession is implicit. It is submitted that it is true that earlier respondent No.1 also filed a suit after execution of agreement but that suit was filed with the consent of both the parties with the object to avoid the expenses of execution of sale-deed and thereafter suit was also withdrawn. It is submitted that in the facts and circumstances of the case, no illegality has been committed by the learned Courts below in passing the decree in favour of respondent No.1. It is submitted that appeal filed by the appellant has no merits and the same be dismissed. It was also prayed that cross-objections filed by the respondent No.1 be also dismissed. 11. From perusal of record, it appears that to prove the case respondent No.1 has filed the documents Ex.P-1 to P-7. Ex.P-1 is the agreement dated 20.3.1981, this document is also having endorsement dated 30.4.1981, 4.2.1981 and 24.5.1981. Ex.P-2 is the notice dated 29.9.1981. Ex.P-3 and P-4 are postal receipts and acknowledgement. Ex.P-5 is reply of notice dated 17.6.1981. Ex.P-6 is the revenue book in which name of respondent No.2 is shown as Bhumiswami. Apart from the documentary evidence respondent No.1 has examined himself as PW1 and also examined Mangilal PW2 and Datarsingh PW3. Appellant has also filed the documents Ex.D-1 to D-7. Ex.D-1 is the copy of plaint filed by the respondent No.1 against respondent No.2 and his son Ashok dated 24.6.1981. Ex.D-2 is the affidavit. Ex.D-3 is the order dated 9.9.1993 in case No.275/88-89 passed by Revenue Commissioner, Indore whereby the appeal filed by respondent No.1 was dismissed and order dated 11.4.1989 passed by SDM, Badnawar was maintained. Ex.D-4 is copy of application filed in Civil Suit No.16-A/1984 filed under section 10 of CPC. Ex.D-5 is copy of order dated 22.7.2008 whereby miscellaneous applications were decided. Ex.D-4 is copy of application filed in Civil Suit No.16-A/1984 filed under section 10 of CPC. Ex.D-5 is copy of order dated 22.7.2008 whereby miscellaneous applications were decided. Ex.D-6 is copy of order dated 19.6.1985 passed by Tehsildar, Badnawar. Ex.D-7 is the order dated 11.4.1989 passed by SDM, Badnawar. Apart from this, respondent No.2 has examined himself as DW1, Ramchand as DW2, Mahipal DW3. Appellant examined himself as DW4, Ishwar Singh DW5 and Mahesh Singh DW6. 12. There are more than one reason which were not taken into consideration by the learned Courts below while decreeing the suit which are as under : (i) The alleged agreement does not bear any date of English Calendar. However, the date is mentioned as per Hindu Calendar, according to which date comes as 20.3.1981. In the said agreement it is alleged that property sold for Rs.18,000/-, out of which Rs.12,000/ shall be received by appellant at the time of execution of sale-deed and for the balance amount of Rs.6,000/- respondent No.1 shall execute Hundi in favour of appellant of which the interest shall be payable @ 18% per annum. If these figures are taken into consideration, then, no amount was paid to the appellant at the time of execution of agreement. (ii) In the agreement it is mentioned that appellant has received a sum of Rs.4,901/- as earnest money. If this amount is taken into consideration, then, neither respondent No.1 was required to pay Rs.12,000/- at the time of execution of sale-deed nor respondent No.1 was required to execute Hundi for balance amount of Rs.6,000/-. (iii) The document Ex.P-10 is on plain paper and it is only revenue stamp of 40 paise is pasted. (iv) On the rear part of the agreement it is alleged that appellant has received a sum of Rs.650/- on account of transaction and thus the appellant has received total sum of Rs.5,500/-. (v) The other endorsement is dated 8.5.1981, according to which appellant has received a sum of Rs.4,152/- and total amount received by the appellant is Rs.9,701/-. (vi) The third endorsement is to the effect that appellant has received Rs.5,800/- and total amount received is Rs.15,500/-. (vii) From the document Ex.P-5 it is evident that in the Civil Suit No.31-A/1981 an application for temporary injunction was filed by the respondent No.1 which was dismissed. As per Ex.D-4 the suit was withdrawn bythe respondent No.1 on 25.8.1983. (vi) The third endorsement is to the effect that appellant has received Rs.5,800/- and total amount received is Rs.15,500/-. (vii) From the document Ex.P-5 it is evident that in the Civil Suit No.31-A/1981 an application for temporary injunction was filed by the respondent No.1 which was dismissed. As per Ex.D-4 the suit was withdrawn bythe respondent No.1 on 25.8.1983. The explanation given by the respondent No.1 was that the earlier suit was filed by the respondent No.1 to avoid the stamp duty and registration fee but to prove this fact copy of the plaint has not been filed by the respondent No.1. (viii) In the notice Ex.P-2 which was issued by the respondent No.1 on 29.8.1981 it is alleged that appellant agreed to sale the suit land @ Rs.18,000/-, out of the sale proceed a sum of Rs.12,000/- was payable at the time of execution of sale-deed. (ix) In the statement respondent No.1 has admitted that respondent No.1 was not in possession of the suit property prior to the date of filing of the suit while in earlier suit the prayer of the respondent No.1 was that the temporary injunction be granted as respondent No.1 is in occupation of the suit property. Both the pleas are contradictory. 13. Thus, it is evident that respondent No.1 was not in possession of the suit property prior to the date of filing of the suit but no prayer for possession was made, however, decree of possession was granted. The respondent No.1 was not possessing the will at the time of agreement and also at the time of execution of sale-deed as it was agreed that respondent No.1 shall execute Hundi in favour of appellant which shows that respondent No.1 was not ready with money but get the sale-deed executed. Apart from this, amount agreed is paid in small instalment. In the facts and circumstances of the case, this Court is of the view that learned Courts below were not justified in granting the decree in favour of respondent No.1. Thus, the substantial question of law as framed is answered in favour of appellant. Appeal filed by the appellant is allowed and the judgment and decree passed by learned Courts below stands set aside. Consequently suit filed by the respondent No.1 stands dismissed. No order as to costs. 14. With the aforesaid observations, appeal stands disposed of. No order as to costs. Appeal filed by the appellant is allowed and the judgment and decree passed by learned Courts below stands set aside. Consequently suit filed by the respondent No.1 stands dismissed. No order as to costs. 14. With the aforesaid observations, appeal stands disposed of. No order as to costs. C.C. as per rules. .............