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Madhya Pradesh High Court · body

2013 DIGILAW 691 (MP)

Veer Singh v. Uday Singh @ Gotia

2013-06-20

M.K.Mudgal

body2013
JUDGMENT 1. The appellants-plaintiffs have filed this appeal under section 96 of the Code of Civil Procedure against the judgment and decree dated 5.2.2000 passed by the Court of Additional District Judge, Karera District Shivpuri in Civil Suit No.20-A of 1992 rejecting the suit for specific performance of contract based on agreement to sell dated 1.3.1989 Ex.P-1. In this appeal, the appellants are referred as ‘plaintiffs’ and respondents as ‘defendants’. 2. The following admitted facts have come on record that : (i)The defendant No.1 Uday Singh was the owner of the disputed property as described in para 2 of the plaint. The defendant No.1 sold the disputed land vide registered sale-deed dated 28.9.1989 Ex.D-1 to the defendants No.6 to 9. 3. In brief, the facts of the plaint are that the defendant No.1 Uday Singh had entered into an agreement to sell in respect of the disputed property to the plaintiffs No.1 and 2 on 1.3.1989 Ex.P-1 for a consideration of Rs.30,000/-. The plaintiff No.2 was minor at the relevant time and his father i.e. plaintiff No.3 acted for him as guardian. Rs.4,000/- was paid to the defendant No.1 as part of the consideration who in turn delivered the possession of the disputed property to the plaintiffs. The agreement to sell was registered with the office of Sub-Registrar, Karera. The plaintiffs have further alleged that the defendant No.1 in pursuance of the aforesaid agreement, has further received on 20.3.1989 one bullock cart with two oxen worth Rs.6,000/-, silver kardhoni and two payals worth Rs.3,000/- and Rs.500/- in cash in all Rs.9,500/- as further consideration. The sale-deed was to be executed upto 1.4.1989 but the defendant No.1 instead of executing the registered sale-deed went on assuring the plaintiffs. The defendant No.1 colluded with defendants No.2 to 4 and bent upon executing the registered sale-deed in their favour in order to defeat the aforesaid sale agreement in favour of plaintiffs No.1 and 2 whereas, defendants No.2 to 4 were aware about the sale agreement. The plaintiffs were ready and willing to perform their part as per the sale agreement dated 1.3.1989. They are still ready and willing to pay the balance consideration and further to bear the expenses of registered sale-deed right from the beginning. However, the defendant No.1 has avoided the sale, hence, the suit for specific performance was filed on 27.9.1989 against defendants No.1 to 4. They are still ready and willing to pay the balance consideration and further to bear the expenses of registered sale-deed right from the beginning. However, the defendant No.1 has avoided the sale, hence, the suit for specific performance was filed on 27.9.1989 against defendants No.1 to 4. During pendency of the suit, the defendant No.1 executed the sale-deed on 28.9.1989 Ex.D-1 in favour of the defendants No.6 to 9 with connivance of defendants No.2 to 4. 4. The defendant No.1 neither submitted his written statement nor contested the suit. 5. The defendants No.2 to 4 have filed the joint written statement and defendants No.6 to 9 have also filed joint written statement. Substance of the written statements are the same. All the defendants have denied the allegations of plaint. They have pleaded that they had no knowledge about the agreement to sell Ex.P-1 before executing the sale-deed dated 28.9.1989 Ex.D-1. The defendants have further asserted that possession of the disputed property was not handed over by the defendant No.1 to the plaintiffs as claimed by him in consequence of agreement Ex.P-1. They have claimed to be the bona fide purchaser of the disputed property and have asserted their possession. The defendants have further pleaded that the plaintiffs had never been ready and willing to perform the contract before filing of the suit and so, they are not entitled to get any decree as called for in the plaint. 6. The learned trial Court after framing issues vide impugned judgment has dismissed the suit in toto. 7. The following questions have cropped up for consideration in this appeal : (i) Whether, the defendant No.1 after executing the agreement to sell dated 1.3.1989 Ex.P-1 handed over possession of the disputed property to the plaintiffs? (ii) Whether, the plaintiffs had been ready and willing to perform the contract to sell Ex.P-1 for getting the sale-deed executed in their favour? (iii) Whether, findings of learned trial Court are based on proper reasonings? 8. Learned counsel for the appellants has submitted that the findings of the trial Court are perverse in spite of the fact that as the possession of the disputed property was given by the defendant No.1 to the plaintiffs vide agreement to sell datd 1.3.1989, the lower Court has given a finding to the effect that the possession was not given to the plaintiffs. Learned counsel has further submitted that the defendant No.1 vendor of the property has not submitted his written statement to deny the allegations of the plaint. Moreover, he has not turned up in the witness box to rebut the evidence of the plaintiffs. Because of this, the contents of the agreement to sell could not have been discredited by the trial Court. Learned counsel has further submitted that the defendants No.2 to 4 and 6 to 9 were aware about the agreement to sell Ex.P-1 is also of the fact that possession had already been given to the plaintiffs, in spite of that, they had got executed the sale-deed in their favour and so they, cannot be deemed to be the bona fide purchaser of the property. 9. Learned counsel for the respondents supporting the findings and reasoning given by the lower Court, has submitted that the plaintiffs had never been ready and willing to perform the agreement for getting the sale-deed executed in their favour before filing the suit. No notice was given by the plaintiffs to the defendant No.1 for getting the sale-deed executed in their favour. Learned counsel has further submitted that the relief of specific performance is a discretionary relief where, the compliance under section 16(c) of the Specific Relief Act has not been proved by the plaintiffs, hence,they are not entitled to get any relief in this case. Finding of impugned judgment being based on proper reasoning, deserve to be conformed and appeal is liable to be dismissed. 10. The plaintiffs’ suit is mainly based on the agreement to sell dated 1.3.1989 which is a registered document. Execution of Ex.P-1 has not been denied by the defendant No.1 who is the executant of the same. The defendant No.1 neither submitted his written statement to deny the allegations of plaint nor turned up in the witness box to rebut the plaintiffs’ evidence in this regard. 11. Harnam Singh (PW1) has deposed in para 1 that defendant Uday Singh contracted to sell the disputed property to the plaintiffs vide registered agreement dated 1.3.1989 Ex.P-1 for consideration of Rs.30,000/ Rs.4,000/- was given as earnest money at the time of execution of Ex.P-1 to which, Uday Singh put his thumb impression ‘A’ to ‘A’ and Tulsidas (PW2) and Toran (PW3) signed Ex.P-1 as witnesses. The witnesses Tulsidas (PW2) in para 1 and Toran (P3) in para 1 have also deposed in their statement similarly. Both the witnesses have stated that defendant Uday Singh had contracted to sell the property in their presence and the document Ex.P-1 was prepared which was signed by them as witnesses.No cross-examination has been made on behalf of the defendants to challenge the testimony of the witnesses in respect of execution of Ex.P-1, besides, the defendants too did not depose anything in their statements that Uday Singh had not executed the agreement to sell Ex.P-1 in favour of the plaintiffs. 12. Uday Singh who is executant of Ex.P-1 was the only witness who could have denied the execution of Ex.P-1, but he neither submitted his written statement nor turned up in the Court to rebut the execution of the document. In view of the facts, the statements given by the plaintiffs’ witnesses regarding executionof Ex.P-1 by Uday Singh are found to be convincing and credible. The lower Court having taken into account the aforesaid evidence in paras 7 to 9 in the impugned judgment has given the finding to this effect that Ex.P-1 was executed by Uday Singh and contracted to sell the disputed property to the plaintiffs. The findings are based on proper reasoning and also they are affirmed by this Court. 13. The learned counsel for the appellants has submitted that the finding given by the lower Court in para 10 of the impugned judgment regarding the possession not having been given to the plaintiffs are totally baseless and perverse to the recorded evidence as in Ex.P-1, it has been specifically mentioned that the possession was given by Uday Singh to the plaintiffs. The contention raised by the appellants’ counsel appears to be correct as Ex.P-1 executed by Uday Singh has been found proved as discussed earlier. Uday Singh could have denied that the possession was not given to the plaintiffs but he remained absent. The defendants have tried to say that the possession of the disputed property was given to them vide agreement to sell dated 9.1.1989 Ex.D-2 as also by earlier document of the plaintiffs i.e. 1.3.1989 Ex.P-1. 14. Ex.D-2 is not a registered document. The defendants have not produced in their evidence Uday Singh for proving the same and no explanation in this regard has been tendered by them. 14. Ex.D-2 is not a registered document. The defendants have not produced in their evidence Uday Singh for proving the same and no explanation in this regard has been tendered by them. Moreover, if Ex.D-2 was in existence earlier than the execution of Ex.D-1, in the sale-deed dated 28.9.1989, it should have been mentioned in the same but there is no such mention in it. Apart from this, if Ex.D-2 was in existence earlier to the execution of Ex.P-1 i.e. 1.3.1989, there was no need for the defendant No.1 Uday Singh to execute Ex.P-1 in favour of the plaintiffs.Therefore, it cannot be accepted that the possession of the disputed property was given to the defendants No.2 to 4 vide Ex.D-2. At this juncture, it would be appropriate to mention here that the defendants No.2 to 4 are not buyers of the property vide Ex.D-1, actually, the sale-deed Ex.D-1 was executed in favour of the defendants No.6 to 9. 15. The agreement to sell dated 9.1.1989 Ex.D-2 appears to be a suspicious document as it was not proved by the cogent and reliable evidence. Statement of stamp vendor and Hari Niwas Gupta, Advocate were not got recorded on behalf of the respondents. Besides, name of typist has not been mentioned in it. No independent witness has been examined to prove Ex.D-1. The witness Maniram (DW3) is not an independent witness as he has admitted in para 2 that the defendants are his uncles, owing to which, he has been made a witness to Ex.D-1 dated 28.9.1989 as well as Ex.D-2 dated 9.1.1989 which shows his close proximity to the defendants. Otherwise, there was no reason to make him witness to each and every document of the respondents. Hence, Ex.D-2 is discredited. 16. Contents of document Ex.P-1 are binding on subsequent purchasers such as defendants No.6 to 9 of vendor Uday Singh. When possession of the disputed property was already handed over to the plaintiffs by the vendor vide Ex.P-1 dated 1.3.1989, it was not possible for him to give possession again to the respondents No.6 to 9 vide sale-deed Ex.D-1 dated 28.9.1989. It has not been pleaded by the defendants No.2 to 4 and 6 to 9 to this effect that the defendant No.1 Uday Singh had received the possession back from the plaintiffs and thereafter, the possession was handed over to the buyers. It has not been pleaded by the defendants No.2 to 4 and 6 to 9 to this effect that the defendant No.1 Uday Singh had received the possession back from the plaintiffs and thereafter, the possession was handed over to the buyers. The lower Court has not considered the aforesaid evidence in a perspective manner. Hence, the finding of lower Court regarding possession of the disputed property not having been given to the plaintiffs, is found erroneous and is hereby set aside. 17. For seeking the relief of specific performance of contract, it is mandatory for a plaintiff to plead and prove compliance of section 16(c) of the Specific Relief Act. Otherwise, the decree for specific performance cannot be granted to a plaintiff. 18. The Supreme Court in the matter of J.P. Builders v. A. Ramadas Rao, reported in (2011)1 SCC 429 , while considering the requirement of section 16 of the Specific Relief Act has held that in terms of section 16(c) of the Act, person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The distinction between readiness and willingness is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Section 16(c) envisages that the plaintiff must plead and prove that he had performed or always been ready and willing to perform the essential terms of the contract. ‘The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance and while adjudging the same. Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. It is also settled by the Supreme Court in the case of J.P. Builders (supra), even in the absence of the specific plea by opposite party, it is the mandate of the statute that plaintiff has to comply with section 16(c) of the Act. Supreme Coujrt in the matter of J.P. Builders (supra), has held as under : “22. The words “ready” and “willing” imply that the person was prepared to carry out the terms of the contract. Supreme Coujrt in the matter of J.P. Builders (supra), has held as under : “22. The words “ready” and “willing” imply that the person was prepared to carry out the terms of the contract. The distinction between “readiness” and “willingness” is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness. 23. In N.P. Thirugnanam v. Dr. Jagan Mohan Rao, this Court held: 5. ... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms if the contract, which are to be performed by him, other than those terms, the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances.The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. 24. In P.D. Souza v. Shondrilo Naidu, this Court observed that : 19. It is disputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. 24. In P.D. Souza v. Shondrilo Naidu, this Court observed that : 19. It is disputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf ... 21. ... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. 25. Section 16(c) of the Specific Relief Act, 1963 mandates “readiness and willingness” on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous “readiness and willingness” to perform the contract on his part from the date of the contract. The onus is on the plaintiff. 26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal, that “readiness and willingness” cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. 27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute and the plaintiff has to comply with section 16(c) of the Specific Relief Act, and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. “Readiness and willingness” to perform the part of the contract has to be determined/ascertained from the conduct of the parties.” 19. It is also clear that readiness to perform must be established throughout the relevant points of time. “Readiness and willingness” to perform the part of the contract has to be determined/ascertained from the conduct of the parties.” 19. In the case in hand, the plaintiffs have pleaded in paras 6 and 9 to this effect that the plaintiffs were ready and willing to perform the contract on their part and are still so but defendant No.1 Uday Singh had not complied the same and the sale-deed was not got registered by him. On perusal of the plaint, it is crystal clear that no notice was given by the plaintiffs to the defendant No.1 for getting the sale-deed executed in their favour, whereas, as per agreement to sell Ex.P-1, the sale-deed was to be executed till 1.4.1989, but no serious efforts have been made on behalf of the plaintiffs. 20. Harnam Singh (PW1) has deposed in para 2 of his statement that, he told to Uday Singh for getting the sale-deed executed in their favour, but he did not do so. In para 6, the witness has stated that a registered notice was given to Uday Singh and a copy of the same was in his possession but in spite of that fact, notice or receipt of registry have not been produced on record. No reason has been shown on behalf of plaintiffs why the aforesaid documents have not been produced. In view of these facts, it becomes clear that the statement of Harnam Singh regarding giving notice to Uday Singh is totally false. As, if the notice had been given prior to the filing of the suit, it would have been pleaded in the plaint. Therefore, it is inferred that no notice was given by the plaintiffs to the defendant No.1 Uday Singh for performance of the contract and getting the sale-deed executed in their favour. After execution of Ex.P-1 dated 1.3.1989, no attempts have been made on behalf of the plaintiffs till filing of the suit i.e. on 27.9.1989. Though the suit for specific performance is not time barred, yet, it shows that the plaintiffs have failed to express their readiness and willingness for purchase of the property mentioned in the agreement Ex.P-1. In this regard, the trial Court has discussed the evidence in paras 13, 17 and 18 of the impugned judgment. Though the suit for specific performance is not time barred, yet, it shows that the plaintiffs have failed to express their readiness and willingness for purchase of the property mentioned in the agreement Ex.P-1. In this regard, the trial Court has discussed the evidence in paras 13, 17 and 18 of the impugned judgment. The conclusions drawn by the trial Court are based on proper reasonings. 21. Learned counsel for the appellants has submitted that no issue regarding readiness and willingness has been framed by the trial Court in this case, therefore, the matter should be remanded back for framing the issue and for recording the evidence.This argument was considered, but in this case, it has no substance because, the plaintiffs have pleaded in this respect in paras 6 and 9 in the plaint as well as tendered the evidence also. Besides, the evidence produced by the parties was considered by the trial Court in the impugned judgment. 22. In the case of Ganpat Rao v. Ashok Rao [ 2004(4) MPHT 101 corresponding to 2004(3) MPLJ p.571], it has been held that the trial will be vitiated by not framing the specific issue if the parties understood each other’s case and led evidence and contested the matter on that particular issue. Considering the aforesaid judgment, the objection raised by the appellants’ counsel is rejected. 23. Neither specific dates have been mentioned in the plaint nor stated in the statements of the plaintiffs’ witnesses regarding saying to the defendant No.1 Uday Singh for execution of the sale-deed and so, plaintiffs’ evidence cannot be relied about their readiness and willingness for performing the contract Ex.P-1 as required under section 16(c) of the Specific Relief Act. In such circumstances, it would not be appropriate to grant the decree of specific performance of contract in favour of the plaintiffs. The Hon’ble apex Court in the case of Madan Satyanarayan v. G. Yelloji Rao and others, reported in AIR 1965 SC page 1405, has held as under with regard to grant of relief of specific performance in view of section 22 of Specific Relief Act : “Under section 22 of the Specific Relief Act, relief of specific performance is discretionary but not arbitrary, discretion must be exercised in accordance with sound and reasonable and judicial principles. The case providing for a guide to Courts to exercise discretion one way or other re only illustrative, they are not exhaustive.” In the above mentioned case, the Hon’ble Court quoted with approval of words of Lord Chelmsford in Caesar Lamare v. Thoms Dixen, reported in (1878)6 HL 414 : “The conduct of the party applying for relief is always an important element for consideration.” 24. It is pertinent to mention here that when the suit for specific performance of contract Ex.P-1 has been dismissed by the lower Court as well as by this Court, there is no need to discuss whether the defendants No.6 to 9 are bona fide purchaser or not, as admittedly, sale-deed Ex.D-1 was executed by the defendant No.1 Uday Singh in favour of defendants No.6 to 9. The question of bona fide purchaser would have been relevant for consideration, if, compliance of section 16(c) of Specific Relief Act has been found proved. 25. Hence, it is concluded that the lower Court has not committed any illegality in rejecting the plaintiffs’ suit for specific performance of contract Ex.P-1. 26. As discussed earlier, admittedly, Rs.4,000/- was given by the plaintiffs at the time of execution of registered document Ex.P-1. Though the plaintiffs have pleaded in para 5 of the plaint that the articles of total worth Rs.9,500/- were also given to the defendant No.1 Uday Singh as part consideration of the sale and Harnam Singh (PW1) has deposed in his statement in this regard also, but no receipt was taken from the defendant Uday Singh for delivering aforesaid articles. Besides, nothing has been mentioned in this respect in Ex.P-1. No other witness has corroborated in his evidence in this regard. Therefore, it is not found proved that the plaintiffs had given the articles worth Rs.9,500/- to Uday Singh. In such situation, only Rs.4,000/- has to be refunded by the defendant No.1 Uday Singh to the plaintiffs. 27. Consequently, while affirming the judgment and decree passed by learned lower Court to the extent of dismissing the suit of the plaintiffs for specific performance of contract, this appeal is partly allowed and the suit filed by the plaintiffs is partly decreed for giving Rs.4,000/- only as indicated herein above to the plaintiffs by the respondent-defendant No.1 Uday Singh. However, considering the facts and circumstances of the case, there would be no order as to the costs. However, considering the facts and circumstances of the case, there would be no order as to the costs. Decree be drawn up accordingly. .............