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Himachal Pradesh High Court · body

2019 DIGILAW 1535 (HP)

Vinod Kumar v. Chain Singh

2019-10-17

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. 1. Instant Regular Second Appeal under S.100 CPC, lays challenge to judgment and decree dated 1.12.2007 passed by learned Additional District Judge, Sirmaur at Nahan, H.P. in Civil Appeal No. 4-N/13 of 2002, affirming judgment and decree dated 3.12.2001 passed by learned Sub Judge, First Class, Court No. 1, Paonta Sahib in Civil Suit No. 2/1 of 2000, whereby suit having been filed by respondent No. 1/plaintiff (hereinafter ‘plaintiff’) for specific performance of agreement to sell dated 20.4.1998 (Ext. PW-2/A) came to be decreed. 2. Precisely, the facts as emerge from the record are that the plaintiff filed a suit against respondents No. 2 to 8 defendants No. 1 to 5 (hereafter ‘defendants No. 1 to 5’) and present appellants-defendants No. 6 and 7 (hereafter ‘defendants No. 6 and 7’) in the court of learned Sub Judge First Class, Court No. 1, Paonta Sahib, District Sirmaur, Himachal Pradesh, praying therein for specific performance of contract/agreement to sell dated 20.4.1998, qua land comprised in Khasra No. 227/113, measuring 5 Bigha situate in Mohal Kotri, Tehsil Paonta Sahib, District Sirmaur, Himachal Pradesh, surrounded in the North by land of Gian Chand, in the South by the Shamlat land, in the East by the land of Ramesh Chand etc. and in the West by the land of Banwari Lal (hereinafter ‘suit land’). Plaintiff averred that suit land was in possession of defendants No. 1 to 5 as described in Jamabandi for the years 1997-98. On 20.4.1998, defendants No. 1 to 5, agreed to sell the suit land to plaintiff for total sale consideration of Rs. 35,000/- out of which Rs. 7,000/- was paid to them as part payment of sale consideration whereafter, plaintiff was put in possession of suit land. As per plaintiff, aforesaid defendants by way of agreement to sell agreed to execute sale deed on or before 31.12.1999, after payment of balance sale consideration. Parties agreed inter se them that remaining sale consideration would be paid at the time of registration of sale deed and in case, defendants No. 1 to 5 fail to do so, plaintiff would be at liberty to enforce the agreement to sell through court and in case plaintiff fails to pay the balance sale consideration at the time of execution of sale deed, earnest money of Rs. 7,000/- paid by him shall stand forfeited in favour of defendants No. 1 to 5. Plaintiff claimed that he is in possession of suit land with effect from 20.4.1998 and has developed the same by constructing boundary wall. Plaintiff also claimed that he had been always ready and willing to perform his part of contract by paying balance sale consideration to defendants No. 1 to 5 and even today he is ready and willing to perform his part of contract to get sale deed executed and registered in his favour. Plaintiff alleged that on 16.11.1999, when he went to Patwari for getting documents, he came to know that on 28.10.1999, defendants No. 1 to 5 have sold the suit land in favour of defendants No. 6 and 7 and as such, plaintiff approached defendants No. 1 to 5 with the request to perform their part of contract by executing sale deed of suit land in his favour and offered balance sale consideration of Rs. 28,000/- but defendants No. 1 to 5 refused to do so. Plaintiff thereafter also approached Tehsildar Paonta Sahib and filed an application before him not to attest the mutation on the basis of sale deed in favour of defendants No. 6 and 7. Plaintiff also filed objections on 16.12.1999 before Assistant Collector 1st Grade Paonta Sahib requesting him not to attest the mutation but to no avail. Plaintiff claimed that mutation attested in favour of defendants No. 6 and 7 is illegal, void and not binding upon him. Plaintiff averred that defendants No. 6 and 7 who had prior knowledge about possession of the plaintiff over suit land are threatening to disposes him on the basis of sale deed. Plaintiff also claimed that since defendants No. 6 and 7 had prior knowledge about his possession over the suit land and agreement to sell executed inter se him and defendants No. 1 to 5, sale deed executed in their favour, confers no right, title or interest on them qua the suit land. 3. Defendants No. 1 to 3 and 5 by way of separate written statement, admitted the factum with regard to execution of agreement to sell dated 20.4.1998, as well as receipt of Rs. 7,000 as part payment towards total sale consideration of Rs. 35,000/-. 3. Defendants No. 1 to 3 and 5 by way of separate written statement, admitted the factum with regard to execution of agreement to sell dated 20.4.1998, as well as receipt of Rs. 7,000 as part payment towards total sale consideration of Rs. 35,000/-. Defendants No. 1 to 3 and 5 also stated in their written statements that the land, which is in possession of the plaintiff and which was agreed to be sold to him was already cultivable and plaintiff had developed the land by digging bore well. They, while admitting that the sale deed qua suit land has been executed in favour of defendants No. 6 and 7, claimed that defendants No. 1 to 5 sold 5 Bigha of land to defendants No. 6 and 7, beyond the land which was agreed to be sold to plaintiff, which is not cultivable on the spot, but defendants No. 6 and 7, taking advantage of illiteracy of the defendants No. 1 to 5, got wrong Tatima of the suit land prepared from the Patwari, and thereafter got sale deed registered on the basis of same. Defendants No. 1 to 3 and 5 also admitted that sale deed qua suit land was to be executed by defendants No. 1 to 5 in favour of plaintiff but now defendants No. 1 to 5 are not in a position to execute sale deed in favour of plaintiff and accordingly, they refused to receive balance sale consideration i.e. Rs. 28,000/- from him. These defendants specifically stated in their written statement that defendants No. 6 and 7 played fraud with defendants No. 1 to 5. Defendants No. 1 to 5 also admitted that the plaintiff requested them to execute sale deed on payment of Rs. 28,000/- but since defendants No. 1 to 5 were not in a position to execute the sale deed in favour of the plaintiff, sale deed could not be executed. Defendants No. 1 to 3 and 5 also did not deny the fact that the plaintiff is not in possession of suit land. 4. Defendants No. 6 and 7 contested the suit filed by plaintiff on the ground of maintainability, locus standi and cause of action. Defendants No. 1 to 3 and 5 also did not deny the fact that the plaintiff is not in possession of suit land. 4. Defendants No. 6 and 7 contested the suit filed by plaintiff on the ground of maintainability, locus standi and cause of action. On merits, defendants No. 6 and 7 admitted that defendants No. 1 to 5 are owner-in-possession of the suit land as detailed in para-1 of the plaint but denied that they had agreed to sell suit land in favour of the plaintiff on 20.4.1998 and plaintiff was put in possession of suit land by defendants after receipt of Rs. 7,000/- as part payment out of total sale consideration of Rs. 35,000/-. Defendants No. 6 and 7 averred in the written statement that defendants No. 1 to 5 have sold suit land in their favour for Rs. 15,000/- vide sale deed dated 28.10.1999 (Ext. DW-2/A). These defendants also denied possession of the plaintiff on suit land and claimed that defendants No. 1 to 5 never disclosed about execution of alleged agreement to sell at the time of execution of sale deed, rather, they executed sale deed of suit land in their favour of their own free will and as such, they are now in possession of suit land and plaintiff has no right, title or interest over the suit land. Defendants No. 6 and 7 further claimed that Assistant Collector 2nd Grade, Paonta Sahib, rightly attested mutation in their favour. Defendants No. 6 and 7 further averred that they are bona fide purchasers for value in good faith without notice of original contract, if any, inter se plaintiff and defendants No. 1 to 5, as such, suit of the plaintiff is not maintainable. 5. On the basis of aforesaid pleadings adduced on record by respective parties, learned trial Court framed following issues for determination on 3.1.2001: "Issue No. 1 - Whether plaintiff is entitled to decree for specific performance of agreement dated 20-4-1998?......OPP Issue No. 2 - Whether defendants No. 6 and 7 are bonafide purchaser without notice of the agreement dated 20-4-1998. If so, its effect?......OPD 6 & 7 Issue No. 3 - Whether defendants No. 6 and 7 got prepared wrong Tatima at the time of execution of sale deed?......OPD 1 to 5. Issue No. 4 - To what relief plaintiff is entitled? OPP" 6. If so, its effect?......OPD 6 & 7 Issue No. 3 - Whether defendants No. 6 and 7 got prepared wrong Tatima at the time of execution of sale deed?......OPD 1 to 5. Issue No. 4 - To what relief plaintiff is entitled? OPP" 6. Subsequently, vide judgment and decree dated 3.12.2001, learned Sub Judge, First Class, Court No. 1, Paonta Sahib decreed the suit of the plaintiff for specific performance of agreement to sell dated 20.4.1998 (Ext. PW-2/A) on payment of balance sale consideration of Rs. 28,000/- within one month from the date of passing of judgment qua suit land. Learned trial Court directed defendants No. 6 and 7 to join the execution of sale deed by defendants No. 1 to 5 in favour of the plaintiff. 7. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, defendants No. 6 and 7 preferred an appeal before learned Additional District Judge, Sirmaur at Nahan, which also came to be dismissed vide judgment and decree dated 1.12.2007. In the aforesaid background, defendants No. 6 and 7 have approached this court in the instant proceedings, praying therein for dismissal of suit for specific performance filed by plaintiff after setting aside judgments and decrees passed by both the learned Courts below. 8. Instant Regular Second Appeal came to be admitted by this Court on 6.3.2009, on the following substantial questions of law: "1. Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence as also pleadings of the parties particularly the agreement Exhibit PW-2/A, sale deed Exhibit DW-2/A and statement of Chain Singh PW-1, Statement of DW-1 Vinod Kumar, DW-2 Ashok Kumar, DW-3 Panch Ram, DW-4 Gian Chand, DW-5 and DW-6. 2. Whether the court below has misconstrued Section 19 of the Specific Reliefs Act and the findings that the appellant was not a transferee for valuation paid in good faith and without notice to the plaintiff are sustainable in law. 3. Whether in the facts and circumstances of the case, the plaintiff was entitled to a decree for specific performance in view of the provisions of Section 27(b) of Specific Reliefs Act, 1877 and Section 19(b) of the Specific Reliefs Act, 1963." 9. Since all the substantial questions of law are interconnected, as such, to avoid repetition of discussion of evidence, same are being taken up together for determination. 10. Since all the substantial questions of law are interconnected, as such, to avoid repetition of discussion of evidence, same are being taken up together for determination. 10. Having heard learned counsel for the parties and perused the material available on record, this Court finds no force in the arguments of Mr. Rajnish K. Lal, learned counsel for defendants No. 6 and 7 that learned Courts below have failed to appreciate the evidence in its right perspective, as a consequence of which erroneous findings have come to the fore, rather, this Court finds from the evidence led on record by respective parties, be it ocular or documentary, that both the learned Courts below have appreciated the evidence in its right perspective and there is no scope left for this Court to re-appreciate the evidence. Moreover, this Court, while exercising appellate power under S.100 CPC, has a very limited scope to re-appreciate the evidence, especially when there are concurrent findings of fact and law, recorded by learned Courts below. Though, Mr. Rajnish K. Lal, Advocate while making this Court to peruse evidence led on record by respective parties, made a serious attempt to persuade this Court to agree with his contention that the judgments and decrees passed by learned Courts below are not correct in law, but he was unable to point out perversity, if any, in the impugned judgments and decrees. Otherwise also, perusal of material available on record clearly reveals that the factum with regard to execution of the agreement to sell dated 20.4.1998 (Ext. PW-2/A) stands duly admitted by defendants No. 1 to 5, who allegedly agreed to sell suit land in favour of plaintiff for a total sale consideration of Rs. 35,000/-. Defendants Nos. 1 to 5 have fairly admitted the factum with regard to receipt of Rs. 7,000/- as part payment out of total sale consideration. It is also not in dispute that agreement to sell dated 20.4.1998, Ext. PW-2/A, was executed much prior to execution of sale deed, Ext. DW-2/A, which admittedly came to be executed inter se defendants Nos. 1 to 5 and defendants No. 6 and 7, on 28.10.1999. 7,000/- as part payment out of total sale consideration. It is also not in dispute that agreement to sell dated 20.4.1998, Ext. PW-2/A, was executed much prior to execution of sale deed, Ext. DW-2/A, which admittedly came to be executed inter se defendants Nos. 1 to 5 and defendants No. 6 and 7, on 28.10.1999. Careful perusal of written statement having been filed by defendants No. 1 to 3 and 5, clearly proves the case of the plaintiff that the suit land comprising of Khasra No. 227/113, measuring 5 Bigha situate in Mauja Kotri, Tehsil Paonta Sahib, District Sirmaur, Himachal Pradesh was actually agreed to be sold by defendants No. 1 to 5, in favour of the plaintiff and defendants No. 1 to 5, of their own volition, had entered into agreement to sell dated 20.4.1998 (Ext. PW-2/A. Defendants No. 1 to 3 and 5, in their written statement have categorically stated that they had agreed to sell the land measuring 5 Bigha to defendants No. 6 and 7 but that was the land beyond the land agreed to be sold by them to the plaintiff, which is un-cultivable on the spot. These defendants have further stated that defendants No. 6 and 7, taking advantage of their illiteracy, got procured a wrong Tatima of the suit land from the Patwari and thereafter, sale deed was registered on the basis of said Tatima. These defendants have categorically stated in their written statement that sale deed was registered on the basis of Tatima of the land which was agreed to be sold by them in favour of plaintiff, as such, now they are not in a position to execute the sale deed in favour of the plaintiff in terms of agreement to sell dated 20.4.1998. There is no specific denial on the part of defendants No. 1 to 3 and 5 that the plaintiff was not ready and willing to make payment of balance sale consideration, rather, careful perusal of written statement nowhere suggests that the plaintiff expressed inability at any point of time, to pay the balance sale consideration, rather, evidence on record clearly reveals that the plaintiff after having come to know with regard to factum of execution of sale deed in favour of defendants No. 6 and 7, qua the suit land, contacted defendants No. 1 to 5 and requested them to execute sale deed, who in turn expressed their inability to do so, for the reason that the land which was to be sold in favour of the plaintiff was further sold by them to defendants No. 6 and 7. 11. Oral as well as documentary evidence, which otherwise need not be taken note in the instant judgment, clearly proves on record that execution of agreement to sell dated 20.4.1998, Ext. PW-2/A, was proved in accordance with law by the plaintiff. No doubt, defendants No. 1 to 3 and 5, never entered into witness box but the fact remains that in their written statement, they categorically admitted the factum with regard to execution of agreement to sell dated 20.4.1998, as well as receipt of Rs. 7,000/- towards part payment out of total sale consideration for the sale of suit land. Though, defendants No. 6 and 7, made an attempt to carve out a case that defendants No. 1 to 5 neither executed agreement to sell nor received Rs. 7,000/- but admittedly, they did not lead any evidence to substantiate their aforesaid claim. Such assertion of the defendants No. 6 and 7 rightly came to be rejected by learned Courts below in view of specific and candid admission made on behalf of defendants No. 1 to 5, in their written statement with respect to execution of agreement to sell dated 20.4.1998 and receipt of part payment of Rs. 7,000/-. As has been taken note herein above, it stands duly proved on record that the plaintiff was ready and willing to make the payment of balance sale consideration of Rs. 7,000/-. As has been taken note herein above, it stands duly proved on record that the plaintiff was ready and willing to make the payment of balance sale consideration of Rs. 28,000/- but since defendants No. 1 to 5 were unable to execute the sale deed in favour of the plaintiff for the reason that land which was agreed to sold to plaintiff, stood already sold to defendants Nos. 6 and 7, as such, there is no force in the argument of Mr. Rajnish K. Lal, Advocate that no specific evidence, if any, ever came to be led on record by the plaintiff that he was ready and willing to make the payment of balance sale consideration enabling defendants No. 1 to 5 to get the sale deed executed and registered in terms of agreement to sell dated 20.4.1998. 12. Though, defendants No. 6 and 7, claimed that they are bona fide purchasers for value, without notice of agreement, but they failed to lead any cogent and convincing evidence that at the time of execution of sale deed Ext. DW-2/A, they were not informed by defendants No. 1 to 5 with regard to existence of agreement to sell dated 20.4.1998, Ext. PW-2/A. 13. True it is that in the case at hand, defendants No. 1 to 5 never chose to enter into witness box, but as has been noticed herein above, case of the plaintiff stands admitted in the written statement filed by defendants No. 1 to 5. These defendants in their written statement have categorically stated that defendants No. 6 and 7 in connivance with Patwari concerned, got wrong Tatima prepared and on the basis of which sale deed was executed qua the land, which they intended to sell to the plaintiff. In view of specific /candid admission on the part of defendants No. 1 to 5 with regard to execution of agreement to sell dated 20.4.1998, no specific evidence in the shape of oral evidence was required to be led by plaintiff, to the contrary, defendants No. 6 and 7, with a view to prove that the factum with regard to execution of agreement to sell dated 20.4.1998, was not in their notice, ought to have produced some positive evidence, that they were not in the know of prior agreement to sell inter se defendants No. 1 to 5 and plaintiff. 14. 14. By now it is well settled that onus is on subsequent purchaser to prove that he is bona fide purchaser for value without notice of earlier contract and in this regard, person taking such plea must prove absence of notice and payment of consideration without notice. Hon'ble Apex Court in R.K. Mohammed Ubaidhullah and Others vs. Hajeec. Abdul Wahab (D) by LRs. and Others, 2000 3 CLT 187 (SC) has categorically held that protection against bona fide purchaser, in good faith for value without notice of original contract is in the nature of exception to general rule and thus, onus of proof of good faith is on purchaser who pleads that he is innocent purchaser. 15. Though, the evidence led on record clearly suggests that defendants No. 6 and 7 were able to prove on record that they were put in possession of the suit land after execution of sale deed Ext. DW-2/A, and a sum of Rs. 15,000/- towards sale consideration was paid but since they failed to prove that they are bona fide purchasers and had no knowledge with regard to existence of agreement to sell dated 20.4.1998, Ext. PW-2/A, learned Courts below rightly held plaintiff entitled for decree of specific performance of contract under S.19 of the Specific Reliefs Act. As per provisions contained under S.19 of the Act ibid, contract can also be enforced not only against a party to such an agreement but against any such person, who claims himself to be owner of property on account of subsequent contract. S.19 clearly provides that a person, who has paid his money in good faith, without notice of the original contract can claim for specific performance of contract but, in the case at hand, as has been noticed herein above, defendants No. 1 to 5, who have allegedly sold the suit land to defendants Nos. 6 and 7, have themselves stated that they never intended to sell the suit land to defendants No. 6 and 7, who in connivance with revenue Authorities, got prepared wrong Tatima and thereafter sale deed was registered qua suit land, which they actually intended to sell to the plaintiff. 16. Though, in the case at hand, defendants with a view to draw benefit of S.19(b) of the Act ibid, claimed before learned Courts below that they being bona fide purchasers paid Rs. 16. Though, in the case at hand, defendants with a view to draw benefit of S.19(b) of the Act ibid, claimed before learned Courts below that they being bona fide purchasers paid Rs. 15,000/- towards sale consideration as agreed inter se parties but careful perusal of sale deed, Ext. DW-2/A, nowhere suggests that sale consideration was ever paid before the Sub Registrar at the time of registration of sale deed. Though there is recital in the sale deed that vendors have received full and final consideration of sale but if statements of defendants' witnesses with regard to this aspect of the matter are read in conjunction, juxtaposing each other, same certainly compel this Court to agree with the findings of learned Courts below that defendants No. 6 and 7 were not able to prove on record that they have paid sum of Rs. 15,000/- towards sale consideration at the time of execution of sale deed Ext. DW- 2/A. Therefore, this Court does not find any illegality or irregularity in the findings recorded by learned Courts below. 17. Substantial questions of law are answered accordingly. 18. Now, it would be appropriate to deal with the specific objection raised by the learned counsel representing the plaintiff with regard to maintainability and jurisdiction of this Court, while examining concurrent findings returned by both the Courts below. Mr. Rajnish K. Lal, Advocate, invited the attention of this Court to the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 , wherein the Hon'ble Supreme Court has held: "16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." 19. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record. 20. The Hon'ble Apex Court in Parminder Singh vs. Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held as under: "14. In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal." 21. It is quite apparent from aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts below, rather same are based upon correct appreciation of evidence as such, deserve to be upheld. 22. Consequently, in view of detailed discussion made herein above, I find no merit in the appeal at hand, which is accordingly dismissed. Judgments and decrees passed by both the learned Courts below are upheld. 23. However, before parting with the judgment, this Court having taken note of the pleadings adduced on record, especially the written statement of defendants No. 1 to 3 and 5, finds force in the arguments of Mr. Judgments and decrees passed by both the learned Courts below are upheld. 23. However, before parting with the judgment, this Court having taken note of the pleadings adduced on record, especially the written statement of defendants No. 1 to 3 and 5, finds force in the arguments of Mr. Rajnish K. Lal, Advocate appearing for defendants No. 6 and 7 that in view of candid admission made by defendants No. 1 to 5, that they agreed to sell 5 Bigha of land out of suit land, in favour of defendants No. 6 and 7, they (defendants No. 6 and 7) are well within their rights to file appropriate proceedings in appropriate court of law, against defendants No. 1 to 5, for putting them in possession of 5 Bighas of land other than the land directed to be sold in favour of the plaintiff by way of instant judgment. Defendants No. 6 and 7 may file such proceedings immediately, within a period of one month, if so desired, and in that event, limitation will not come in their way. 24. Pending applications, if any, are disposed of. Interim directions, if any, are vacated.