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2012 DIGILAW 698 (PNJ)

Taro Devi v. Inder Dass

2012-05-10

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal J.: (Oral) - This is second appeal by defendants No.1 to 6 having failed in both the Courts below. 2. The suit was filed by respondent No.1-plaintiff Inder Dass against the appellants and proforma respondent No. 2 as defendant No. 7 and against Raj Devi defendant No. 8 (since deceased and represented by defendants No.1 to 7). 3. The plaintiff-respondent No.1 sought specific performance of agreement to sell dated 06.04.1999 alleging that Ballu Ram, predecessor of the defendants, agreed to sell the suit land measuring 20 Kanals to the plaintiff and executed agreement dated 06.04.1999. Some earnest money was paid. Sale deed was to be executed upto 05.03.2000. However, on 03.03.2000, some further amount was paid and date of execution of the sale deed was extended from 05.03.2000 till 02.02.2001. Ballu Ram died on 24.06.2000. Plaintiff has always been ready and willing to perform his part of the contract, but the defendants, who are legal heirs of Ballu Ram failed to execute the necessary sale-deed in terms of the agreement. Notice dated 18.04.2011 was also served on the defendants, but to no avail, necessitating filing of the suit. 4. Defendants broadly controverted the averments of the plaintiff. Execution of agreement by Ballu Ram and receipt of earnest money and execution of document dated 03.03.2000 regarding receipt of further amount and extension of date for execution of sale-deed, was denied. It was alleged that signatures on the documents were obtained by fraud. The documents were alleged to be forged and fabricated. Various other pleas were also raised. 5. Learned Civil Judge (Senior Division), Kurukshetra vide judgment and decree dated 12.12.2007 decreed the plaintiff’s suit. First appeal preferred by defendants No.1 to 6 has been dismissed by learned Addl. District Judge, Kurukshetra vide judgment and decree dated 08.10.2010. Feeling still aggrieved, defendants No.1 to 6 have filed this second appeal. 6. Along with the appeal, the appellants have moved Civil Miscellaneous Application No. 3983-C of 2011 for additional evidence. By way of additional evidence, the appellants want to produce copies of five sale deeds and copy of jamabandi for the year 2006-07. 7. I have heard learned counsel for the parties and perused the case file. 8. 6. Along with the appeal, the appellants have moved Civil Miscellaneous Application No. 3983-C of 2011 for additional evidence. By way of additional evidence, the appellants want to produce copies of five sale deeds and copy of jamabandi for the year 2006-07. 7. I have heard learned counsel for the parties and perused the case file. 8. As regards additional evidence, counsel for the appellants contended that the plaintiff purchased other properties vide four saledeeds 28.09.1999, 11.10.1999, 04.11.1999 and 02.12.1999 prior to the target date fixed in the instant case and purchased another property vide sale-deed dated 22.12.2004 during pendency of the suit and therefore, the plaintiff had no money to pay to the defendants for getting the sale-deed executed in terms of the agreement. It was thus argued that production of these sale-deeds by way of additional evidence is very essential. It was also submitted that copy of jamabandi for 2006-07 depicts that the defendants are in self cultivating possession of the suit land and this document would, therefore, falsify the assertion of the plaintiff that possession of the suit land had been delivered to him on 03.03.2000 and, therefore, production of this jamabandi is also essential. 9. It was argued on merits of the appeal that document dated 03.03.2000 extending the date for execution of the sale deed is forged and fabricated because according to the said document, possession of the suit land was delivered to the plaintiff but possession of the suit land is still with the defendants. It was thus argued that suit filed on 06.11.2003 is time barred having been filed beyond the limitation period of three years from the date fixed for execution of the saledeed in the original agreement. It was also argued that even after extended target date of 02.02.2001, suit was filed after two years nine months and therefore, plaintiff is not entitled to specific performance of the agreement. Reliance in support of this contention has been placed on judgment of Hon’ble Supreme Court in K.S.Vidyanadam and others Vs. Vairavan AIR 1997 Supreme Court 1751. It was also submitted that since the plaintiff has not come with clean hands and has made false averment regarding delivery of possession of the suit land to him, he is not entitled to relief of specific performance of the agreement. Vairavan AIR 1997 Supreme Court 1751. It was also submitted that since the plaintiff has not come with clean hands and has made false averment regarding delivery of possession of the suit land to him, he is not entitled to relief of specific performance of the agreement. In support of this contention, learned counsel for the appellants has cited judgment of Hon’ble Supreme Court in Lourdu Mari David V. Louis Chinnaya Arogiaswamy 1997(1) RCR (Civil) 286 and judgment of this Court in Jaspal Singh V. State of Haryana and others 2003(2) Punjab Law Reporter 296. 10. Relying on judgment of Allahabad High Court in Ram Singh and others V. Sughar Singh 2011(1) Civil Court Cases 766 and judgment of Hon’ble Supreme Court in A.C.Arulappan V. Smt. Ahalya Naik 2001(4) R.C.R. (Civil) 109, it was contended that Court is not bound to grant the relief of specific performance of agreement merely because it is lawful to do so. Counsel for the appellants also submitted that the plaintiff did not deposit the balance sale consideration in the trial Court within two months of the decree of the trial Court as directed by the trial Court and therefore, in view of Section 28 of the Specific Relief Act, 1963 (for short, ‘the Act’), the contract stands rescinded. Reliance for this proposition has been placed on judgment of Andhra Pradesh High Court in Susheela Devi V. Maharshi Commerce Ltd. 2011(2) RCR(Civil) 49. Counsel for the appellants also referred to Section 20 of the Act to plead that the plaintiff is not entitled to relief of specific performance of the agreement. Judgment of Hon’ble Supreme Court in Tejram V. Patirambhau AIR 1997 2702 has also been cited. 11. I have carefully considered the aforesaid contention but the same cannot be accepted. There is concurrent finding by both the Courts below regarding execution of the original agreement dated 06.04.1999 as well as document dated 03.03.2000 relied upon by the plaintiff. Plaintiff has led sufficient evidence to prove the same. There is practically no evidence to rebut the same. Jagat Ram defendant No.4, of course, appeared in the witness box but he had no personal knowledge of the aforesaid documents which were not executed in his presence. Similarly, Hem Raj DW2 examined by the defendants could not disprove the execution of the aforesaid documents. 12. There is practically no evidence to rebut the same. Jagat Ram defendant No.4, of course, appeared in the witness box but he had no personal knowledge of the aforesaid documents which were not executed in his presence. Similarly, Hem Raj DW2 examined by the defendants could not disprove the execution of the aforesaid documents. 12. As regards additional evidence of the five sale-deeds sought to be produced, the said sale-deeds rather go against the appellants. These sale-deeds would depict that plaintiff had sound financial position and he purchased other properties also before the target-date fixed in the impugned agreement. Even later on, he purchased other property during the pendency of the suit. These assertions of the appellants rather negative the contention of the counsel for the appellants that the plaintiff did not have sufficient money to get the sale-deed executed in terms of the impugned agreement. 13. Jamabandi for the year 2006-07 also cannot be admitted in evidence having come into existence during the pendency of the suit. It would not show that possession of the suit land was not delivered to the plaintiff vide writing dated 03.03.2000 nor it would show that plaintiff was not in possession of the suit land at the time of filing of the suit. 14. Courts below have exercised their discretion in the matter of grant of relief of specific performance. Since the said discretion is not perverse or illegal in any manner, the same cannot be reversed in exercise of second appellate jurisdiction merely because the suit was filed two years nine months after the target date. It is the case of the plaintiff that he has always been ready and willing to perform his part of the contract. He even served notice dated 18.04.2001 on the defendants for performance of the impugned agreement. On the other hand, it is not the case of the defendants that they were ever ready or willing to perform their part of the contract. In this view of the matter also, relief of specific performance of the agreement cannot be declined to the plaintiff merely because the suit was filed two years nine months after the target date. Judgment of Hon’ble Supreme Court in the case of K.S.Vidyanadam and others (supra) is not applicable to the case in hand. In that case, there was action by the plaintiff in violation of the terms of the agreement. Judgment of Hon’ble Supreme Court in the case of K.S.Vidyanadam and others (supra) is not applicable to the case in hand. In that case, there was action by the plaintiff in violation of the terms of the agreement. It is not so in the instant case. In that case, there was total inaction on the part of the plaintiff where as in the instant case, the plaintiff even served notice on the defendants to seek specific performance of the agreement. 15. The agreement cannot be said to have been rescinded under Section 28 of the Act due to non-compliance with the alleged direction of the trial Court for deposit of balance sale consideration within two months. Perusal of the impugned judgment and decree of the trial Court reveals that no such direction was issued to the plaintiff to deposit the balance sale consideration. The contention in this regard is, therefore, factually untenable. Judgment in the case of Susheela Devi (supra) is also, therefore, not applicable to this case. 16. It cannot be said that plaintiff made false averment that possession had been delivered to him on 03.03.2000. His averment in this regard is supported by the recital in the document dated 03.03.2000 executed by the defendants’ predecessor Ballu Ram. Consequently, judgments in the cases of Jaspal Singh (supra) and Lourdu Mari David (supra) are not attracted to the case in hand. 17. It is correct that relief of specific performance of an agreement is discretionary and Courts are not bound to grant the same merely because if it is lawful to do so. However, in the instant case, both the Courts below have exercised their discretion in favour of the plaintiff. Since the said discretion has been exercised in a judicial manner, there is no ground to reverse the same in exercise of second appellate jurisdiction. Therefore, judgments in the cases of Ram Singh and others (supra) and A.C. Arulappan (supra) have no applicability to the facts of the case in hand. Judgment in the case of Tej Raj (supra) is also not applicable to the case in hand. In that case, the plaintiff was a money lender and it appeared to be money transaction and not genuine agreement to sell. In the instant case, the plaintiff is neither money lender nor it is the case of the defendants that the agreement was executed as security for loan. In that case, the plaintiff was a money lender and it appeared to be money transaction and not genuine agreement to sell. In the instant case, the plaintiff is neither money lender nor it is the case of the defendants that the agreement was executed as security for loan. Consequently, in the instant case, there is no reason to decline the relief of specific performance of the agreement to the plaintiff. 18. It may be added that in the case of agreement to sell immovable property, the relief of specific performance should ordinarily be granted and grant of compensation or other relief is not just and appropriate alternative to the relief of specific performance. Time is also not the essence of the contract in the case of agreement to sell immovable property unless so intended by the parties expressly or by necessary implication. For these reasons also, the relief of specific performance of the impugned agreement cannot be declined to the plaintiff. 19. Concurrent finding recorded by the Courts below to decree the suit of the plaintiff is fully justified by the evidence on record. The said finding is not shown to be perverse or illegal or based on misreading or mis-appreciation of evidence. The said finding is the only reasonable finding that can be arrived at on appreciation of the evidence on record. Therefore, the said finding does not call for any interference. No question of law much less substantial question of law arises for determination in this second appeal. The appeal is meritless. Accordingly, the appeal as well as the application for additional evidence are dismissed. ---------0.B.S.0------------