Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 373 (ORI)

Jagannath Mallik v. Surendra Gartia

2017-04-07

A.K.RATH

body2017
JUDGMENT : A.K.RATH, J. The defendants are the appellants against a reversing judgment in a suit for specific performance of contract. 2. The respondent as plaintiff instituted the suit pleading inter alia that defendant no.3 was the owner in possession of the suit land. Defendant nos.1 and 2 are the sons of defendant no.3. There was a family partition. The suit land fell to the share of defendant nos.1 and 2. On 20.9.1980, defendant nos.1 and 2 entered into an agreement with him to sell the suit land for a consideration of Rs.6500/-. They received an amount of Rs.1400/-towards part consideration and thereafter delivered possession. He requested defendant nos.1 and 2 to execute the sale deed after receiving the balance consideration amount. He is ready and willing to perform his part of contract. But then the defendant nos.1 and 2 in breach of contract executed a lease deed in favour of one Sadhu Meher. Thereafter defendant nos.1 and 2 sent a registered notice to the plaintiff to take back the money. Hence he filed the suit seeking the reliefs mentioned supra. 3. Pursuant to issuance of summons, defendant nos.1 and 2 entered appearance and filed their written statement denying the assertions made in the plaint. According to them, there was no partition between them and their father. Their father is the owner in possession of the suit land. They had not entered into contract with the plaintiff to sell the suit land for consideration of Rs.6500/-. The specific case of the defendants is that they need money for gambling for which they incurred a loan of Rs.1400/-from the plaintiff. The plaintiff obtained an agreement. Defendant no.2 sent a registered letter requesting the plaintiff to receive the said amount. The plaintiff never requested the defendants to execute the sale deed. They are in possession of the suit land. Defendant no.3 had mortgaged the suit land in favour of defendant no.4 for legal necessity. 4. On the inter se pleadings of the parties, the learned trial framed nine issues. To prove the case, the plaintiff had examined five witnesses and on their behalf, three documents had been exhibited. The defendants had examined five witnesses and on their behalf, five documents had been exhibited. The learned trial court came to hold that there was no partition between defendants 1 to 3. To prove the case, the plaintiff had examined five witnesses and on their behalf, three documents had been exhibited. The defendants had examined five witnesses and on their behalf, five documents had been exhibited. The learned trial court came to hold that there was no partition between defendants 1 to 3. Defendants 1 and 2 were not competent to execute Ext.1 in favour of the plaintiff. Ext.1 does not show delivery of possession and the same is not free from doubt. The suit land is a part plot and the same is not specified. There are several cuttings and over-writings in the boundary and description of the suit land. The boundary given in Ext.1 does not tally with the evidence of P.W.1 and use different ink is another suspicious circumstance. Held so, the learned trial court dismissed the suit. Assailing the judgment and decree of the learned trial court, the plaintiff filed Title Appeal No.8 of 1985 before the learned District Judge, Bolangir. Subsequently the same was transferred to the court of the learned Additional District Judge and renumbered as T.A.No.8/14 of 1985-86. The learned appellate court held that the suit land was partitioned between defendant no.3 and his brothers. Ext.1 was marked without objection. Its contents are proved. Cogent evidence of partition between defendant nos. 1 to 3 cannot be expected from the plaintiff, who is a stranger to the family. Though there are interpolation and scorings in Ext.1, but the recital is a strong piece of evidence to show partition and separate possession. Other son of defendant no.3 is not a necessary party as he must have been allotted a share. Defendant nos. 1 and 2 have executed Ext.1. Held so, the learned lower appellate court allowed the appeal. 5. The Second Appeal was admitted on 20.7.1989 on the following substantial question of law:- “The substantial question of law arises for consideration is whether in the facts and circumstances of the case, the lower appellate court committed any illegality in holding that breach of contract can be compensated and on such account the judgment and decree have been vitiated.” 6. Heard Mr.Budhiram Das, learned Advocate on behalf of Mr.N.C.Pati, learned Advocate for the appellants and Mr.N.K.Sahu, learned Advocate for the respondent. 7. Heard Mr.Budhiram Das, learned Advocate on behalf of Mr.N.C.Pati, learned Advocate for the appellants and Mr.N.K.Sahu, learned Advocate for the respondent. 7. Mr.Das, learned Advocate for the appellants submitted that the learned appellate court held that Ext.1 has been marked as exhibit without objection and as such the contents are proved. But then the defendants had categorically stated in the written statement that they had not entered into any such agreement for sale with the plaintiff. They had received an amount of Rs.1400/-for gambling, but Ext.1 was created for the purpose. Besides that the plaintiff had averred that the defendants sent a registered notice to the plaintiff to take back the money. The finding of the learned appellate court that the defendants have admitted execution of Ext.1, is perverse. The plaintiff has failed to prove the alleged partition between the co-sharers of the defendants. A Hindu family is presumed to be joint, unless contrary is proved. Heavy onus lies on the person who alleges partition. The plaint is silent as to when the alleged partition took place. There is no documentary evidence on partition. There are several interpolations, overwriting and use of different ink in Ext.1. In view of the same, Ext.1 is a void document. He further submitted that even if there is agreement for specific performance, the same is the discretion of the court. The courts will take into consideration the conduct of the parties and circumstances of the case. The relief for specific performance being discretionary, the court is not bound to grant such relief merely because the agreement is lawful. 8. Per contra, Mr.Sahu, learned Advocate for the respondent submitted that the learned appellate court, on a threadbare analysis of evidence on record and pleadings, allowed the appeal. There is no perversity in the finding of the learned appellate court. Provision of Section 100 C.P.C. is clear and unambiguously stipulates that the judgment passed by the courts below cannot be interfered with on the ground that the same vitiates with erroneous finding of fact. Where the judgment rendered by the appellate court is based upon appreciation of relevant evidence, the Second Appeal cannot be entertained, unless the same is perverse. The learned appellate court, on appreciation of evidence, came to hold that there was a partition among defendant no.3 and co-sharers. The suit land fell in favour of defendant no.3. Where the judgment rendered by the appellate court is based upon appreciation of relevant evidence, the Second Appeal cannot be entertained, unless the same is perverse. The learned appellate court, on appreciation of evidence, came to hold that there was a partition among defendant no.3 and co-sharers. The suit land fell in favour of defendant no.3. Had the land not been allotted to defendant no.3, he could not have executed Ext.1. Further, the mortgaged deed vide Ext.E relied upon by the defendants shows that there was partition between the co-sharers of defendant no.3. The execution of Ext.1 having been admitted by defendant nos.1 and 2, it is not open for them to say that no such document was at all executed. When the contents of Ext.1 are taken into consideration, it is evident that the suit land was in exclusive possession of defendant nos. 1 and 2. The same was allotted in their favour in partition. They were paying land revenue to the State. The recitals are binding. With regard to allegation of interpolation of the description of the disputed land, the learned appellate court came to hold that the stamp papers were purchased by defendant no.1 according to the endorsement made by the stamp vendor on the reverse of stamp paper. At the instance of the defendants alone the deed was executed and some interpolations and scorings appear while giving the boundaries of the land in different ink. The schedule of land does not appear to have been materially interpolated. Therefore the contract, itself for these do not appear suspicious. The deed cannot be said to be forged. He further submitted that the plaintiff was/is ready and willing to perform the part of contract. Since the defendants failed to execute the same, he instituted the suit. He further submitted that the learned appellate court negatived the contention of the defendants with regard to continuous willingness on the ground that no evidence has been adduced by the defendants that breach of contract had been adequately compensated by means of money. 9. This is a suit for specific performance of contract. The assertions of the plaintiff are that he is ready and willing to perform his part contract. The plaintiff has to plead and prove the readiness and willingness before he succeeded. This is a condition precedent. 9. This is a suit for specific performance of contract. The assertions of the plaintiff are that he is ready and willing to perform his part contract. The plaintiff has to plead and prove the readiness and willingness before he succeeded. This is a condition precedent. Admittedly, no notice along with a draft sale deed was sent before institution of the suit. On this ground, the suit will fail. 10. In Baruna Giri and others Vs. Rajakishore Giri and others, AIR 1983 Orissa 107, a Division Bench of this Court held : “14. No doubt the entire consideration had been paid, but the next step in the performance of the contract was the execution of the sale deed. It was the duty of the defendants to propose a proper draft of the sale deed and submit it to the plaintiff as contemplated under Section 55(1)(d) of the T.P.Act. Under the provisions of Section 29 of the Stamp Act the expenses for the sale-deed were to be borne by the purchaser. Until the defendants paid the money for the stamp duty, the sale-deed could not be executed. By virtue of the combined effect of Section 55(1)(d), T.P.Act and Section 29 (c), Stamp Act it was the duty of the defendants to propose a draft of the sale deed and to express their readiness and willingness to pay the money and to call upon the plaintiffs to execute the sale-deed -See ILR (1975) Cut 993 at page 998, Bhimasen Mohapatra v. Bhabani Mahapatrani. In para 14 of the written statement it was stated as follows:-- "...... But as the executants of the agreement for sale were residing in the District of Singhbhum and as all of them were not available at a time the registered sale deed could not be executed by them and as the land remained in possession of Chandramohan and the members of his family no required steps were taken for a registered sale deed.............." This shows that instead of complying with the requirements of Section 55(1)(d) of the T.P. Act and Section 29(c) of the Stamp Act, the defendants remained contented with possession of the land. Had it really been a fact that the defendants were ready and willing to perform their part of the contract, instead of sitting quiet for such a long time they would have sent a written notice calling upon the plaintiffs to execute the sale deed. Their failure to send such a notice shows that they were not ready and willing to perform their part of the contract. We accordingly hold that the defendants are not entitled to the benefit of Section 53-A, T. P. Act.” (emphasis laid) 11. The ratio in the case of Baruna Giri (supra) applies with full force to the facts of this case. 12. In Sardar Singh Vrs. Krishna Devi (Smt.) and another, (1994) 4 SCC 18 , the apex Court held that the court has to see the totality of the circumstances, conduct of the parties and respective interests under the contract while granting/refusing such reliefs. 13. In the agreement to sell, Ext-1, there are several interpolations and overwriting in the boundary and description of the land. In view of the same, it is not appropriate to grant the discretionary relief of specific performance of contract to the plaintiff. 14. The defendants have admitted that they have taken an amount of Rs.1400/-from the plaintiff. They have also sent a notice to return back the money. In view of the same, the defendants are liable to pay a sum of Rs.1400/-with interest at the rate of 9% per annum. 15. In the result, the judgment and decree of the learned appellate court is set aside and the appeal is allowed. The defendants shall refund Rs.1,400/-(One thousand four hundred) with interest @ 9% per annum from the date of the agreement. Both the parties shall bear their respective costs.