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2019 DIGILAW 2192 (ALL)

Janki Devi v. Subhash Chandra

2019-09-19

SIDDHARTHA VARMA

body2019
JUDGMENT : Siddhartha Varma, J. A suit for specific performance was filed by the respondent no. 1 against one Buddhiram with a prayer that the defendant Buddhiram be directed to execute a sale deed and to handover possession of the property regarding which an agreement to sell was entered into between the defendant Buddhiram and the plaintiff on 21.4.1992. The plaint allegations were that the defendant had taken Rs. 35,000/- as an advance on 21.4.1992 and had also entered into an agreement that he would after taking the remaining Rs. 5,000/- execute a sale deed within a year in favour of the plaintiff. When the defendant did not execute the sale deed and the year was coming to an end on 30.3.1993 a notice was sent by the plaintiff to the defendant Buddhiram that he may appear on 15.4.1993 before the Office of Registrar to execute the sale deed. The defendant filed his written submission and stated that, in fact, no agreement to sell was entered into and the defendant had only taken Rs. 5,000/- from the plaintiff by way of a loan. He did not ever enter into any agreement to sell his property. 2. It appears that when the plaintiff came to know about some sale deed having been there in existence dated 21.10.1993 by which the defendant no. 1 had allegedly sold the property in question to the defendant no. 2 then he amended the plaint and stated that the defendant no. 2 and her husband were always in the know about the registered agreement dated 21.4.1993 and, therefore, the plaintiff's right would not get affected. 3. The Trial Court framed as many as 7 issues and decreed the suit and directed the defendants to execute the sale deed in favour of the plaintiff within thirty days. The defendant filed a First Appeal which was when dismissed on 10.12.2018, the instant Second Appeal was filed by the defendant no. 2. 4. The plaintiff was represented by his counsel Sri V.K. Baranwal before this Court. The appellant who was the defendant no. 2 in the Suit and had alleged a purchase from the defendant no. 1 by a sale deed dated 21.10.1993 has vehemently argued that there was no specific finding of readiness and willingness as was mandatory under Section 19(c) of the Specific Relief Act and has relied upon judgements reported in (N.P. Thirugnanam (dead) by Lrs. 2 in the Suit and had alleged a purchase from the defendant no. 1 by a sale deed dated 21.10.1993 has vehemently argued that there was no specific finding of readiness and willingness as was mandatory under Section 19(c) of the Specific Relief Act and has relied upon judgements reported in (N.P. Thirugnanam (dead) by Lrs. vs. Dr. R. Jagan Mohan Rao and others, (1995) 5 SCC 115 ) and (Jugraj Singh and another v. Labh Singh and others, (1995) AIR SC 945). 5. Learned counsel for the appellant further made his submissions with regard to the other substantial questions of which he had framed and submitted that the agreement was not proved properly. He further submitted that any admission made in the reply to the notice could not be treated as an admission and took recourse to Section 31 of the Indian Evidence Act. He also denied any presumption of notice under the explanation I of Section 3 of the Transfer of Property Act. 6. Learned counsel for the caveator, however, submitted that there were enough findings to reveal that the plaintiff was always ready and willing. What is more, he submitted that it did not lie in the mouth of the defendant no. 2 (the appellant here) to question the readiness and willingness of the appellant as she was not the defendant who was required to execute the sale deed but was a purchaser of the property after the agreement between the plaintiff and the defendant had been entered into. She had also no right to raise the issue with regard to the finding regarding the admission of the defendant no. 1. The counsel for the caveator/plaintiff submitted that no interference be made with regard to the findings as had been arrived at by the two courts of law. 7. Learned counsel for the plaintiff-caveator also submitted that when the agreement to sell dated 21.4.1992 was a registered agreement to sell then the there was a presumption that the defendant no. 2 and her husband always knew about the agreement to sell. 8. Having heard the learned counsel for the appellant/respondent no.2 and learned counsel for the caveator/the plaintiff, this Court is of the view that no substantial question of law is involved in this case. What is more, the defendant no. 2 and her husband always knew about the agreement to sell. 8. Having heard the learned counsel for the appellant/respondent no.2 and learned counsel for the caveator/the plaintiff, this Court is of the view that no substantial question of law is involved in this case. What is more, the defendant no. 2 the appellant who was a purchaser during the subsistence of the agreement to sell could not raise the issue about the fact as to whether the findings regarding the readiness and willingness were correct. 9. In this view of the matter, the Second Appeal which is concluded by findings of fact requires no interference. The Second Appeal is, accordingly, dismissed.