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2016 DIGILAW 2463 (HP)

Tek Chand v. Dhani Ram

2016-11-22

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. This appeal is directed against the judgment and decree dated 8.12.2009, passed by learned District Judge, Mandi, H.P. in Civil Appeal No. 36 of 2009 whereby learned lower appellate Court has dismissed the appeal and affirmed the judgment and decree passed by learned Civil Judge (Jr. Divn.) Court No. III, Mandi, in Civil Suit No. 10/2004. 2. The subject matter of dispute in the present lis is land measuring 0-17-0 bighas, entered in Khata khatauni No. 188/211 min, khasra No. 43, situated in Mauja Dhangu/223, Illaqua Balh, Tehsil Sadar, Distt. Mandi, H.P., being 1/8th share i.e. 0-19-8 bighas of the appellant (hereinafter referred to as the defendant) out of the total land under khata khatauni measuring 07-15-02 bighas. 3. The respondent (hereinafter referred to as the plaintiff) claimed that the defendant had executed agreement to sell Ext. PW-1/A and agreed to sell the suit land to him @ Rs. 1,00,000/- per bigha. A sum of Rs. 20,000/- was paid in advance to the defendant on the date of execution of the agreement Ext. PW-1/A. The sale deed was agreed to be executed on termination of the proceedings pending adjudication in the Civil Court at Mandi, qua execution of the ‘Will’ by late Nanha Ram, the father of the defendant in his favour. Another agreement Ext. PW-2/A came to be executed on 24.8.2001 i.e. on the expiry of the period of previously executed agreement Ext. PW-1/A on 31.7.2001. At the time of execution of the agreement Ext. PW- 2/A, a further sum of Rs.5,000/- allegedly was paid towards payment of balance sale consideration and again it was agreed upon that the sale deed would be executed after the litigation pending in appeal qua the suit land between the co-sharers before learned Addl. District Judge, Mandi is decided. On the failure of the defendant to execute the sale deed, he had to refund Rs. 50,000/- to the plaintiff by way of compensation. The previously instituted suit was decided by learned Sub Judge, Ist Class, Court No. I Mandi vide judgment and decree Ext. PW-4/B and Ext. PW-4/C. The appeal preferred against the same was dismissed by learned Addl. District Judge, Mandi, vide judgment Ext. PW-4/D and the suit was remanded to learned trial Court. 4. The previously instituted suit was decided by learned Sub Judge, Ist Class, Court No. I Mandi vide judgment and decree Ext. PW-4/B and Ext. PW-4/C. The appeal preferred against the same was dismissed by learned Addl. District Judge, Mandi, vide judgment Ext. PW-4/D and the suit was remanded to learned trial Court. 4. The complaint is that the defendant failed to execute the sale deed even on the decision of the appeal in previously instituted litigation as well as the plaintiff having requested the defendant to execute the sale deed in his favour on the receipt of balance sale consideration on several occasions. This, allegedly has resulted in issuance of legal notice Ext. PW-4/E. The defendant, allegedly failed to execute the sale deed even on the receipt of the legal notice also. It is, in this backdrop, the plaintiff had filed the suit for the decree of specific performance of the contract thereby directing the defendant to execute the sale deed in respect of suit land and in the alternative any other and further relief to which the plaintiff was found entitled to in the given facts and circumstances of the case. 5. The defendant, on entering appearance, has contested the suit. In preliminary objections, it was averred that no enforceable cause of action exists in favour of the plaintiff to institute the suit against the defendant nor he has any locus standi to file the same. The suit has also been sought to be dismissed on the ground of jurisdiction and also on maintainability. On merits, it has been denied that he agreed to sell the land measuring 0-17-0 bighas to the plaintiff @ Rs. 1,00,000/- per bigha. It has also been denied that a sum of Rs. 25,000/- was received in advance as earnest money. It was averred that the defendant never executed any agreement to sell the suit land to the plaintiff nor he received any amount towards earnest money. The litigation qua the suit land was stated to be pending between the legal heirs of Sh. Nanha Ram, the father of the defendant. It has also been denied that he has avoided receiving the notice intentionally. 6. In replication, the plaintiff while denying the contents of preliminary objections to be wrong, on merits denied the contentions to the contrary in the written statement and has reiterated his case as set out in the plaint. Nanha Ram, the father of the defendant. It has also been denied that he has avoided receiving the notice intentionally. 6. In replication, the plaintiff while denying the contents of preliminary objections to be wrong, on merits denied the contentions to the contrary in the written statement and has reiterated his case as set out in the plaint. On the pleadings of the parties, the trial Court below had proceeded to frame the following issues: 1. Whether the defendant has executed an agreement to sell suit land to the plaintiff on dated 31.1.2001 which was renewed on 24.8.2001, as alleged? OPP. 2. If the issue No. 1 is proved whether the plaintiff is entitled for the decree of Specific Performance of Contract? OPP. 3. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD. 4. Whether the plaintiff has no locus-standi to file the present suit, as alleged? OPD. 5. Whether the suit of the plaintiff has not been properly valued for the purpose of court fee and jurisdiction, as alleged? OPD. 6. Whether the suit of the plaintiff is not maintainable, as alleged? OPD. 7. Relief 7. The parties were put to trial on all the issues so framed. The plaintiff in turn has stepped into the witness box as PW-4. Sh. Rajesh Verma (Adv.) PW-1 and PW-2 Adv. Pradeep Parmar are Notary Public, who have attested the agreements Ext. PW-1/A and PW-2/A whereas Puran Chand (PW-3) is one of the marginal witness to these agreements. PW-5 Mahinder Singh has scribed the documents. PW-6 Advocate Ravi Rana has been examined to show that both the agreements were dictated to PW-5 Mahinder Singh by him. On the other hand, the defendant has himself stepped into the witness-box as DW-1 and examined Sh. Inder Singh DW-2. 8. Learned trial Court, on appreciation of the oral as well as documentary evidence, has concluded that the agreements Ext. PW-1/A and PW-2/A were executed by defendant in favour of the plaintiff and thereby agreed to sell the suit land to him @ Rs.1,00,000/- per bigha. The objections, raised in preliminary, were rejected while answering issues No. 3 to 6 against the defendant. Issue No. 2 was answered in favour of the plaintiff and consequently the suit was decreed for the relief of specific performance of the agreements Ext. The objections, raised in preliminary, were rejected while answering issues No. 3 to 6 against the defendant. Issue No. 2 was answered in favour of the plaintiff and consequently the suit was decreed for the relief of specific performance of the agreements Ext. PW-1/A and PW-2/A on payment of the balance sale consideration of Rs. 60,000/- by the plaintiff to the defendant. 9. As pointed out at the outset, learned lower appellate Court has dismissed the appeal and affirmed the judgment and decree passed by learned trial Court vide judgment and decree under challenge in the present appeal. The legality and validity of the impugned judgment has been questioned on the grounds, inter alia, that the evidence available on record has not been appreciated by both courts below in its right perspective and to the contrary based its findings on surmises, conjectures and hypothesis. Both the agreements were vague, uncertain and undefined and as such were erroneously relied upon. The description of the land does not find mention in the agreements and the contents thereof reveal that land measuring 0-17-0 bighas would be sold by the defendant to the plaintiff after the same is inherited by him from his father. It has been pointed out that as per the judgment and decree under challenge, out of land measuring 0-17-0 bighas also, it finds mention therein that land measuring 0-9-8 bighas was agreed to be sold to the plaintiff, however, the decree qua execution of the sale deed in respect of land measuring 0-17-0 bighas is not correct. Agreements to sell Ext. PW-1/A and PW-2/A and also copy of jamabandi Ext. PW-4/A have been misread by both the Courts below and thereby caused prejudice to the case of the defendant. The necessary ingredients of specific performance of contract are stated to be not at all established as according to the defendant, for want of any proof qua readiness and willingness of the plaintiff to get the sale deed executed on payment of balance sale consideration, the suit could not have been decreed. 10. This Court has admitted the appeal on the following substantial question of law: “Whether both the courts below have misread, misinterpreted and misconstrued oral as well as the documentary evidence of the parties especially Ex. PW1/A and PW2/A, copy of Jamabandi, Ex. PW4/A, copy of judgment (sic. 10. This Court has admitted the appeal on the following substantial question of law: “Whether both the courts below have misread, misinterpreted and misconstrued oral as well as the documentary evidence of the parties especially Ex. PW1/A and PW2/A, copy of Jamabandi, Ex. PW4/A, copy of judgment (sic. jamabandi) Ex.PW4/B and statement of appellant and his witness Inder Singh including the contents of the plaint which has materially prejudiced the case of the appellant?” 11. Mr. G.R. Palsra, Advocate, learned counsel representing the appellant-defendant has pointed out from the record that the agreements Ext. PW-1/A and PW-2/A have not been proved in accordance with law. According to Mr. Palsra, even if it is presumed that the same have been executed by the defendant, in that eventuality also, the suit land could have not been sold to the plaintiff, being joint property of the defendant and his brothers as well as other legal heirs of his father late Sh. Nanha Ram. According to him, the plaintiff, at the most, is entitled to the alternative relief, which in the given facts and circumstances may be the refund of Rs. 50,000/- by way of compensation to the plaintiff as agreed upon. On the other hand, Mr. S.R. Pandyar, learned counsel representing the respondent-plaintiff has strenuously contended that the findings of facts recorded by both the Courts below cannot be interfered with in second appeal. According to Mr. Pandyar, the execution of both the agreements stands established on record. He further submits that even joint property qua share of particular co-sharer can also be sold, therefore, according to him, even if the defendant had no title in the suit land at the time of execution of the agreement, he is under a legal obligation to execute the sale deed of the land falling in his share out of the joint property. In view of the ratio of the judgment of the Apex Court in Kartar Singh vs. Harjinder Singh and others, AIR 1990 SC 854 , it has been urged that even if the other co-sharer who was not party to the agreement, one of the co-sharers i.e. the defendant could have sold the land out of his share. 12. On analyzing the evidence available on record and taking into consideration the submissions made on both sides, the first and foremost point arises for determination is as to whether the agreements Ext. 12. On analyzing the evidence available on record and taking into consideration the submissions made on both sides, the first and foremost point arises for determination is as to whether the agreements Ext. PW-1/A and PW-2/A were executed by the defendant having due knowledge and notice of the contents thereof. The oral evidence qua this aspect of the matter is equally balanced for the reason that while the plaintiff claims that these documents were executed by the defendant, the latter has denied the plaintiff’s case in this regard being wrong and came forward with the version that he has neither executed these documents nor agreed thereby to sell the land measuring 0-17-0 bighas to the plaintiff. 13. It is seen that both the agreements Ext. PW-1/A and PW-2/A are in English language. It is PW-5 Mahinder Singh who has typed out the same on the dictation of Advocate Ravi Rana (PW-6). As per his version, after typing out these documents, Advocate Ravi Rana had read over and explained the contents thereof to the parties i.e. the plaintiff and defendant. It has come in the evidence that defendant has no knowledge of English language. Nothing is there in the statement of PW-5 Mahinder Singh to suggest that the contents of these documents were read over and explained by Advocate Ravi Rana (PW-6) to the parties in vernacular i.e. in Hindi language. If the testimony of Advocate Ravi Rana (PW-6) is seen, he says that the parties discussed/negotiated the conditions of sale orally and it is thereafter he gave the dictation in English language and got typed out the agreement Ext. PW-1/A. Similarly, the agreement Ext. PW-2/A was also typed out on the dictation given in English language. Nothing has come in his statement that the contents of these agreements were read over and explained by him to the parties in vernacular. 14. Now, if coming to the testimony of Sh. Rajesh Verma, the Notary Public (PW-1), though he has stated that the contents of the agreement Ext. PW-1/A were read over and explained by him to the parties in the presence of witnesses and learned counsel accompanying them, however, he has also not stated as to in which language the contents thereof were read over and explained by him to them. PW-2 Advocate Pardeep Parmar, the Notary Public who has attested the agreement Ext. PW-1/A were read over and explained by him to the parties in the presence of witnesses and learned counsel accompanying them, however, he has also not stated as to in which language the contents thereof were read over and explained by him to them. PW-2 Advocate Pardeep Parmar, the Notary Public who has attested the agreement Ext. PW-2/A, no doubt, tells us that the contents of these documents were made known by him to the parties and others in Hindi, however, his sole testimony is not sufficient to arrive at a conclusion that the contents of the agreement Ext. PW-2/A were explained by him to the defendant in Hindi language. 15. Now, if coming to the testimony of PW-3 Puran Chand, a marginal witness, he is not reliable as he is resident of village Sheel i.e. in Gaggal area of District Mandi, because as per his admission in the very opening line of his cross-examination, he claims himself to be a friend of Dhani Ram (plaintiff) and according to him, he also resides in Colony (BBMB Colony, Sundernagar) with plaintiff and that they are visiting each other regularly. Not only this, but the plaintiff has also admitted in his cross-examination that in a similar suit filed by PW-3 Puran Chand against Khoob Ram, the father of defendant, he has appeared as a witness in support of the case of PW-3 Puran Chand. Therefore, while PW-3 Puran Chand has appeared as a witness in the present suit in support of the case of plaintiff-Dhani Ram, the latter has also appeared as a witness in a similar suit filed by the former against Khoob Ram. Anyhow, even if the testimony of PW-3 Puran Chand is seen, nothing has come therein that Advocate Ravi Rana (PW-6) had read over and explained the contents of the agreement to the defendant in vernacular i.e. in Hindi. Although, the plaintiff has denied his signatures on the agreements Ext. PW-1/A and PW-2/A, yet even if it is believed that these are his signatures, it is not proved that he had signed both the documents to his notice and knowledge that thereby he agreed to sell the suit land @ Rs. 1,00,000/- per bigha. 16. Although, the plaintiff has denied his signatures on the agreements Ext. PW-1/A and PW-2/A, yet even if it is believed that these are his signatures, it is not proved that he had signed both the documents to his notice and knowledge that thereby he agreed to sell the suit land @ Rs. 1,00,000/- per bigha. 16. Even the plaintiff while in the witness-box as PW-4 has also not stated that the contents of the agreements were read over and explained to the defendant in vernacular by Advocate Ravi Rana (PW-6) or the Notary Public. Therefore, the present is a case where the evidence qua execution of agreements Ext. PW-1/A and PW-2/A and the findings that the defendant to his knowledge and notice had sold the suit land thereby @ Rs. 1,00,000/- per bigha has been mis-appreciated, misconstrued and misread and thereby the findings as recorded have vitiated. 17. Significantly, even if it is proved that the defendant has executed the agreements Ext. PW-1/A and PW-2/A, he could have sold the suit land only after the decision of the previously instituted suit by one of his brother and co-sharer Subhash in which the ‘Will’ qua the suit land in his favour was under challenge. The suit filed by his brother was decreed vide judgment Ext. PW-4/B, meaning thereby that the ‘Will’ was held to be illegal, null and void and as a result thereof, all the legal heirs of deceased Nanha were held entitled to inherit the estate left behind by said Sh. Nanha by way of natural succession. The appeal preferred by said Sh. Subhash was dismissed vide judgment Ext. PW-4/D and judgment and decree passed by the trial Court was quashed, however, the suit was remanded to the trial Court for fresh decision. What happened to the suit after its remand to the trial Court, nothing has come on record except a passing reference in para 2 of the judgment passed in the present lis by learned trial Court that on remand learned Sub Judge, Court No. 1 Mandi had finally decided the case vide judgment and decree dated 28.5.2002. What was the result of the suit i.e. whether it was decreed or dismissed, nothing has come on record. What was the result of the suit i.e. whether it was decreed or dismissed, nothing has come on record. Therefore, it cannot be said by any stretch of imagination that the ‘Will’ by virtue of which the defendant allegedly was in possession of the suit land was declared legal and valid. 18. Admittedly, the defendant was not owner of the land in question at the time of institution of the suit, the same as per the jamabandi for the year 1999-2000 was rather in the ownership and possession of Nanha, his father and vide note in the remarks column of this document mutatated in the name of all co-sharers, including the defendant. This Court finds substance in the submissions made by Mr. Pandyar that a share out of the joint land could have been sold, however, no case to this effect is also made out as it is not known that how much land was inherited by the defendant out of the estate left behind by his father on his death. 19. Now, if coming to the service of legal notice Ext. PW-4/E upon the defendant, the plaintiff’s case in this regard is not at all proved for want of envelope because had the same been returned unclaimed to the plaintiff, the remarks to that effect would have been recorded on the envelope itself. Except for producing in evidence the copy of notice and the postal receipt, no other evidence is forthcoming that the defendant had refused to accept the notice intentionally and deliberately. 20. Now, if coming to the receipt of Rs.20,000/- and Rs.5,000/-, though receipts Ext. PW-3/E and PW-3/F have been pressed into service qua this aspect of the matter, however, the defendant has denied any such payment received from the plaintiff. The plaintiff, no doubt, has supported his case qua payment of Rs.20,000/- and Rs.5,000/- on two different occasions vide receipts in question to the defendant, however, the latter has denied that any such payment was ever received by him from the plaintiff. The oral evidence qua this aspect of the matter, as such, is equally balanced and as regards the receipts Ext. PW-3/E and PW-3/F, the same again are in English language and there is no evidence that the contents thereof were read over and explained in vernacular to the defendant, even if it is believed that the receipts bear his signatures. 21. PW-3/E and PW-3/F, the same again are in English language and there is no evidence that the contents thereof were read over and explained in vernacular to the defendant, even if it is believed that the receipts bear his signatures. 21. True it is that in regular second appeal, the findings of facts recorded on appreciation of evidence normally should not be interfered with, however, if such findings are recorded on misconstruction, mis-appreciation and misconstruing the evidence available on record, the High Court certainly can have re-look of the evidence available on record and interfere with the findings so recorded on the appreciation of the evidence in its right perspective, being perverse. Support in this regard can be drawn from the ratio of the judgment of this Court in Sher Mangat Ram vs. Krishna Devi and ors., 2013 (3) Shim. L.C. 1507, relevant portion of this judgment reads as under: “13. As per the settled legal principle, in a second appeal, findings of fact, even may be erroneous, should not normally be interfered with unless and until found to be recorded on the basis of assumptions, conjectures and are perverse. The scope of interference with concurrent findings of fact in a second appeal is limited one and such interference is legally permissible only in a situation where it appears to the High Court that both the Courts below have misdirected themselves in appreciating the question of law. The settled legal proposition, therefore, is that High Court should not interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower Courts. The fate of this appeal has to be decided in the light of the given facts and circumstances and also the legal position, discussed hereinabove.” 22. The law laid down by the Apex Court in Kartar Singh’s case (supra) is distinguishable in the given facts and circumstances of this case because here alleged agreements has not been executed by any other co-sharer but one of the co-sharers i.e. the defendant. 23. Having regard to the facts and circumstances of this case and also the rival submissions, it is held that both the Courts below have failed to appreciate the evidence available on record in its right perspective and to the contrary recorded findings on the basis of conjectures and surmises. 23. Having regard to the facts and circumstances of this case and also the rival submissions, it is held that both the Courts below have failed to appreciate the evidence available on record in its right perspective and to the contrary recorded findings on the basis of conjectures and surmises. The findings, so recorded, being perverse, therefore, have certainly resulted in miscarriage of justice to the defendant. The impugned judgment and decree, therefore, being not factually sustainable, is quashed and set aside and the suit is dismissed. No orders so as to costs.