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Himachal Pradesh High Court · body

2016 DIGILAW 1442 (HP)

Deepa Devi v. Munnshi Ram

2016-07-20

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of present appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Mandi in Civil Appeal No. 80 of 2005 dated 01.06.2006 vide which, the learned Appellate Court upheld the judgment passed by the Court of learned Civil Judge (Senior Division), Court No. 1, Mandi in Civil Suit No. 69 of 1994 dated 21.12.2004. 2. This appeal was admitted on 03.05.2007 on the following substantial question of law: “1. Whether both the learned Courts below have dell into error by not drawing adverse inference against the respondents/defendants as Amar Nath defendant was not examined, who is best evidence available to the defendants? 2. Whether the learned Courts below have misread, misinterpreted and misconstrued the oral as well as documentary evidence of the parties especially documents Ex. PA, PB, PD and PW3/A which has resulted into great miscarriage of justice to the appellant? 3. Whether the defendants are estopped to deny the execution of the agreement to sale Ex. PA in view of the notice Ex. PD dated 5.1.1994 sent by the defendant Amar Nath jointly with appellant to defendant Munshi Ram? 3. Brief facts necessary for the adjudication of the present case are that the plaintiff filed a suit for specific performance of agreement dated 02.05.1986 vide which, defendant No. 1 had agreed to sell 0-0-6 bighas of land to the plaintiff and she further sought declaration to the effect that sale deed executed on 12.01.1994 and registered on 15.01.1994 by defendant No. 1 in favour of defendant No. 2 be declared wrong, null and void. She also prayed for decree of possession of the suit premises against defendant No. 2 as well as for damages. Her case was that defendant No. 1 was owner in possession of land comprised in Khata No. 286 /410 min, Khasra No. 1277, measuring 0-2-0 bighas to the extent of 1/5th share, situated in Mauja Rewalsar, Illaqa Bagra, Tehsil Sadar, District Mandi, H.P. Defendant No. 1 agreed to sell 0-0-6 bighas of land out of his share in favour of the plaintiff for consideration of Rs.5700/- on 02.05.1986, in lieu of which, the plaintiff paid an amount of Rs.1000/- on the same day and a written agreement to this effect was also executed. It was further the case of the plaintiff that possession of the land was also delivered to her by defendant No. 1 and the balance amount was agreed to be paid on 15.05.1986, on which date, the defendant No. 1 had agreed to execute sale deed in her favour. However, the said defendant came to the plaintiff on 12.05.1986 and asked her to make the balance payment and he also executed receipt to this effect on 12.05.1986 and agreed to execute a sale deed within few days. The plaintiff in lieu of having paid the entire amount to defendant No. 1 immediately constructed a double storeyed house on the suit land. Thereafter, plaintiff asked defendant No. 1 to execute a sale deed in her favour, but defendant No. 1 denied the execution of said sale deed. It was further the case of the plaintiff that her husband defendant No. 3 was a habitual drunkard and had sold major part of his property to various persons to satisfy his lust of drinking on very meager rates. Defendant No. 3 was not even maintaining her and their children. She had also filed a petition under Section 125 Cr. P.C. against defendant No. 3. Taking advantage of the habit of drinking of defendant No. 3, the defendant No. 2 without the consent permission of the plaintiff and in connivance with defendant No. 3 took possession of the suit premises on 15.01.1993 and from the said date, he was in illegal possession of the suit premises and was not vacating the same. Further case of the plaintiff was that she again asked defendant No. 1 to execute a sale deed in her favour, but he delayed the matter till 05.01.1994, on which date, she came to Mandi in order to get the sale deed executed in her favour. Thereafter, as per the plaintiff, rather than executing the sale deed in her favour, defendant No. 1 executed a sale deed of the suit land with defendant No. 2 dated 12.01.1994 which was registered on 15.01.1994. It was in these circumstances that the suit was filed by the plaintiff. 4. In the written statement filed on behalf of the defendants, the defendants denied the case of the plaintiff. It was in these circumstances that the suit was filed by the plaintiff. 4. In the written statement filed on behalf of the defendants, the defendants denied the case of the plaintiff. As per the defendants, no agreement to sell was executed between the plaintiff and defendant No. 1 nor any money was received by defendant No. 1 from the plaintiff. According to the defendants, the agreement was sheer manipulation of plaintiff as she was a shrewd lady and had concocted a false story to grab the land of defendant No. 1. It was further denied that there was any connivance or collusion as alleged between the defendants and it was also stated in the written statement that defendant No. 2 was not in illegal possession of the suit land as he had purchased the suit land through a registered sale deed and had been put in possession of the same by defendant No. 1. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues: “Issue No. 1: Whether the suit land was purchased vide an agreement to sell for valid consideration by the plaintiff, as alleged OPP Issue No. 2: Whether the possession of the suit land was taken over by the plaintiff after the agreement for sale and paying of the valuable consideration as alleged? If so, its effect? OPP Issue No. 3: Whether the house has been constructed by the plaintiff, as alleged? If so, its effect? OPP Issue No. 4: Whether the plaintiff is entitled for decree for specific performance of the contract as alleged? OPP Issue No. 5: Whether the specific sale deed executed by the defendant on 12.01.1994 is null and void and not enforceable, as alleged? OPP Issue No. 6: Whether the possession of the plaintiff was dislodged on 15.01.1993 by the defendant and the possession thereafter with the defendant is illegal, as alleged? OPP Issue No. 7: Whether the plaintiff is entitled for relief of possession, as prayed? OPP Issue No 7(a) Whether the plaintiff is entitled for damages, as prayed for? OPP Issue No. 8: Whether the suit is not maintainable in the present form? OPD Issue No. 9: Whether the suit is beyond limitation? OPD Issue No. 10: Whether the suit is bad for necessary parties? If so who are the necessary parties? IPD Issue No. 11: Relief. 6. OPP Issue No. 8: Whether the suit is not maintainable in the present form? OPD Issue No. 9: Whether the suit is beyond limitation? OPD Issue No. 10: Whether the suit is bad for necessary parties? If so who are the necessary parties? IPD Issue No. 11: Relief. 6. On the basis of evidence produced on record by the respective parties, the following findings were returned on the said issues by the learned trial Court: Issue No. 1: No. Issue No. 2: No. Issue No. 3: No. Issue No. 4: No. Issue No. 5: No. Issue No. 6: No. Issue No. 7: No. Issue No. 7(A) Yes. Issue No. 8: No. Issue No. 9: No. Issue No. 10: No. Relief: Suit partly decreed and partly dismissed per operative part of the judgment. 7. Learned trial Court held that agreement Ex. PA was executed on 02.05.1986 in the presence of witnesses Chhote Lal and Kanshi Ram and the document was also signed by Deepa Devi and Amar Nath. A perusal of the said document demonstrated that the land agreed to be sold was not mentioned by the executant in material particulars, like Khasra number, Khata Khatauni numbers and area of the suit land. It was simply stated in the agreement that vacant land adjoining to the house of Amar Nath, measuring 8 feet was sold to the plaintiff. Accordingly, learned trial Court held that the property for which the agreement to sell was executed was vague. Learned trial Court further held that from the pleadings of the plaintiff, it stood demonstrated that she was not in possession of the suit property because she herself had stated that defendant No. 2 had disturbed her possession in connivance with her husband and that it was defendant No. 2 who was in possession of the suit land. Accordingly, learned trial Court concluded that agreement to sell Ex. PA cannot be said to be specifically performed and the tatima which had been placed on record by the plaintiff could not be said to be a valid tatima since the same had not been verified by the Kanungo. Accordingly, learned trial Court concluded that agreement to sell Ex. PA cannot be said to be specifically performed and the tatima which had been placed on record by the plaintiff could not be said to be a valid tatima since the same had not been verified by the Kanungo. Learned trial Court also held that the alleged house situated over the suit land was not constructed by the plaintiff and even if the said construction was her, that was also of no consequence as plaintiff had herself admitted that it was defendant No. 2 who was in possession of the suit land/suit property. Learned trial Court further held that sale deed Ex. D1 cannot be said to be a null and void document and rather the said deed was held to be a legal and valid document executed by defendant No. 1 in favour of defendant No. 2. Learned trial Court further held that the plaintiff had not produced any cogent and reliable evidence to the effect that she was in possession of the suit land/suit property nor the record supported her version. Learned trial Court also took note of the fact that no FIR etc. was lodged by the plaintiff at the time when she was allegedly dislodged from the suit land/property nor any complaint to this effect was filed by her before appropriate authority. On these basis, learned trial Court held that the story put forth by the plaintiff was concocted one. While deciding Issue No. 7(a), learned trial Court held that the plaintiff was entitled to the damages of amount given by the plaintiff to defendant No. 1 in pursuance of agreement Ex. PA and it decreed the suit of the plaintiff for damages to the tune of Rs.5700/-. However, the suit filed by the plaintiff qua declaration, injunction and possession was dismissed. 8. Feeling aggrieved by the said judgment, the plaintiff preferred an appeal which was also dismissed by the Court of learned District Judge, Mandi vide judgment dated 01.06.2006. Learned Appellate Court while upholding the judgment and decree passed by the learned trial Court held that it was well settled position of law that grant of decree of specific performance of contract was the discretion of the Court and that the Court had to consider before ordering specific performance whether it will be fair, just and equitable to order specific performance. Learned Appellate Court further held that as far as execution of agreement Ex. PA was concerned, the plaintiff had led ample evidence to prove the execution of the same. It further held that it was ex-facie clear from a cursory look at agreement Ex. PA that there was no mention of Khasra number or plot number which was agreed to be sold by defendant No. 1 in favour of plaintiff. It further held that there was no mention of the area or length or width of the plot belonging to defendant No. 1, which was to be sold to be the plaintiff vide Ex. P1. Learned Appellate Court further held that plaintiff had heavily relied upon Aksh tatima Ex. PW3/A to prove the identity of the suit land, however, when the suit was filed by the plaintiff, Ex. PW3/A was not annexed with the plaint. The suit was filed on 20.01.1994, whereas the tatima Ex. PW3/A was prepared on 24.01.1994. It was also held that admittedly the said tatima was not verified by Field Kanungo as was the requirement under the provisions of H.P. Land Record Mannual. It further held that law was fairly settled that in a suit for specific performance of agreement for the sale of immoveable property, it was incumbent upon the plaintiff to file map of the property alongwith the plaint, particularly when agreement was regarding sub plots out of specific khasra number. It was also held that Order 7 Rule 3 C.P.C. require that plaintiff must give sufficient description of the property subject matter of the suit to identify the same so that an effective decree could be passed. Learned Appellate Court after discussing the relevant law, upheld the findings returned by the learned trial Court to the effect that plaintiff had failed to establish identity of the land. It also held that plaintiff had not produced any material on record to suggest that defendant was ready and willing to execute the sale deed in her favour. It also held that the factum of the plaintiff not filing any report regarding her forcible eviction from the shop made her conduct unusual. It also held that there was no occasion for the plaintiff to serve notice on 05.01.1994 when it was her own case that she was allegedly forcibly evicted from the suit land in the year, 1993. It also held that the factum of the plaintiff not filing any report regarding her forcible eviction from the shop made her conduct unusual. It also held that there was no occasion for the plaintiff to serve notice on 05.01.1994 when it was her own case that she was allegedly forcibly evicted from the suit land in the year, 1993. It also held that even if it was assumed for the sake of arguments that plaintiff was dispossessed only in the year, 1993 then also suit of the plaintiff could not be decreed for specific performance for the reason that suit land was not identifiable as its dimensions were neither given in the plaint nor in the agreement. On the findings so returned, the learned Appellate Court dismissed the appeal filed by the plaintiff and upheld the judgment and decree passed by the learned trial Court. 9. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgment passed by the learned Courts below. 10. The first submission which has been made by Mr. G.R. Palsra, learned counsel for the appellant is that the judgments and decrees passed by the learned Courts below were liable to be set aside on this count alone that both the learned Courts below had erred in not drawing adverse inference against the respondents on the ground that defendant No. 1 Amar Nath had not entered into the witness box. In my considered view, keeping in view the findings which had been returned by both the learned Courts below on the basis of material which was produced by the respective parties, this contention of the learned counsel for the appellant deserves rejection. Non examination of defendant Amar Nath in the present case cannot be termed to be so fatal so as to conclude that the same was sufficient to decree the suit of the plaintiff. Adjudication of a case has to be made on the basis of the pleadings of the parties and the material which is placed on record by them by way of ocular and documentary evidence. 11. Further, it is not as if no one has actually put in appearance as a witness on behalf of the defendants. Adjudication of a case has to be made on the basis of the pleadings of the parties and the material which is placed on record by them by way of ocular and documentary evidence. 11. Further, it is not as if no one has actually put in appearance as a witness on behalf of the defendants. In the present case, the suit property was sold by defendant No. 1 in favour of defendant No. 2 and the said witness who actually has interest in the suit property having become its owner by virtue of sale deed executed in his favour by defendant No. 1 has duly entered into the witness box and supported his case. 12. Therefore, there is no merit in the said contention which has been raised by Mr. Palsra and the substantial question of law framed in this regard is answered accordingly. 13. The second contention raised by Mr. Palsra is that both the learned Courts below have misread, misinterpreted and misconstrued both ocular as well as documentary evidence, i.e., Ex. PA, Ex. PB, Ex. PD and Ex. PW3/A. Ex. PA is copy of the agreement to sell. Ex. PB is the copy of receipt of payment dated 02.05.1986. Ex. PD is copy of notice and Ex. PW3/A is the copy of tatima. 14. On the other hand, Mr. Lakshay Thakur, learned counsel for respondent No. 1 has argued that there is neither any misreading nor any misrepresentation or misconstruction of evidence on record. He has further argued that on the basis of material on record, both the learned Courts below have rightly come to the conclusion that the sale deed which was executed by defendant No. 1 in favour of defendant No. 2 was a valid sale deed and the alleged agreement to sell executed by defendant No. 1 in favour of plaintiff was unexecutable as there was no proper description of the property in the same. 15. In my considered view, a perusal of the judgments passed by both the Courts below demonstrate that there is no misreading or misconstruction of oral or documentary evidence by the learned Courts below. The conclusions which have been arrived at by both the learned Courts below to the effect that agreement to sell Ex. 15. In my considered view, a perusal of the judgments passed by both the Courts below demonstrate that there is no misreading or misconstruction of oral or documentary evidence by the learned Courts below. The conclusions which have been arrived at by both the learned Courts below to the effect that agreement to sell Ex. PA cannot be ordered to be specifically performed is the correct conclusion because a perusal of the said exhibit demonstrates that there is neither any mention of khasra number or plot which was agreed to be sold by defendant No. 1 in favour of the plaintiff nor there is any mention of the area or width of the plot which defendant No. 1 had agreed to sell to the plaintiff. Further, it is relevant to mention that the suit of the plaintiff has been partly decreed for damages to the tune of Rs.5700/- As far as Ex. PD is concerned, learned counsel for the appellant could not substantiate as to how it could be said that Ex. PD was not correctly appreciated by the learned Courts below. All that learned counsel has stated is that because the said notice was not replied, therefore, it has to be deemed that whatever was contained in the said notice was admitted by the defendants. In my considered view, the factum of no reply having been filed to the said notice cannot be stretched to the extent to which the appellant wants the same to be stretched. This is for the reason that as has already been held by me above that adjudication has to be made on the basis of harmonious reading of the entire evidence on record and not on the basis of reading of one or two documents in isolation. 16. Similarly, as far as Ex. PW3/A is concerned, it is apparent from the record that tatima Ex. PW3/A was not annexed by the plaintiff alongnwith the plaint. Not only this, the said tatima has also not been verified by Field Kanungo as is required under the H.P. Land Record Mannual. Records demonstrate that the suit was filed by the plaintiff on 20.01.1994, whereas the said tatima was prepared on 24.01.1995, i.e. after the filing of the case. PW3/A was not annexed by the plaintiff alongnwith the plaint. Not only this, the said tatima has also not been verified by Field Kanungo as is required under the H.P. Land Record Mannual. Records demonstrate that the suit was filed by the plaintiff on 20.01.1994, whereas the said tatima was prepared on 24.01.1995, i.e. after the filing of the case. No adjoining owner of the land was present when preliminary demarcation was carried out by PW-3 Krishan Lal, who in his deposition has stated that there are houses as well as shops over the suit land. It is settled law that in a suit for specific performance of an agreement pertaining to the sale of an immovable property, it is incumbent upon the plaintiff to file a map of the suit property with the plaint itself especially when the agreement pertains to min khasra numbers out of a specific khasra number. The same is necessary in order to ensure that there is no difficulty in the execution of the decree which may be passed on the basis of the said agreement. 17. Therefore, in view of what has been discussed above, there is no merit in the contention of learned counsel for the appellant that learned Courts below have mis-red, mis-interpreted and misconstrued the ocular as well as documentary evidence on record. 18. Now reverting to the third contention raised by Mr. Palsra, he has also argued that the defendants were estopped from denying the execution of agreement to sell Ex. PA keeping in view the factum of issuance of notice Ex. PD dated 05.01.1994, which was incidentally sent jointly by the appellant and defendant No. 1 Amar Nath. 19. Incidentally, the factum of the existence of agreement to sell Ex. PA was the basis for the learned trial Court to partly decree the suit of the plaintiff and grant damages in her favour. Therefore, it cannot be said that Ex. PA has not been recognized by the learned Courts below. What has been held by the learned Courts below is that from the said agreement to sell, it could not be deciphered as to what was the description of the property to which the said agreement to sell pertained to and in my considered opinion, there is no infirmity with the findings so returned by both the learned Courts below. 20. 20. Therefore, in view of what has been discussed above, it cannot be said that there is either any misreading or misconstruction of the evidence on record by either of the learned Courts below. The substantial questions of law are answered accordingly and in view of the findings returned by me, I do not find any merit in the present appeal and the same is accordingly dismissed with costs.