Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 807 (HP)

Udi Ram v. Anant Ram Negi

2019-06-28

SURESHWAR THAKUR

body2019
JUDGMENT Sureshwar Thakur, J. - The plaintiff''s suit, for, rendition of a decree for specific performance of contract of sale, executed inter se him, and, the defendant, stood decreed, by the learned trtial Court, and, in an appeal carried therefrom by the aggrieved defendant, hence, before the learned first appellate court, also begot, a verdict in affirmation thereto. The defendant, is, aggrieved from the concurrent judgments, and, decrees recorded against him, upon, civil suit No. 120/1 of 2009, and, upon Civil Appeal No. 14-T/13 of 2013/12, hence, has, thereagainst instituted the instant appeal before this Court. 2. Briefly stated the facts of the case are that the plaintiff has filed a suit for specific performance of agreement dated 22.2.22009 vide which the defendant had agreed to sell the land comprised in Khata No.74, Khatauni No.208, Khasra No.795, 797 and 798, Kita 3, measuring 5-13 bighas, situated in Chak Bagain, Pargana Shilla Ghoond, Tehsil Theog, District Shimla, H.P. along with single storeyed house having three rooms for sale consideration of Rs.5,00,000/-. The oral agreement to sell was entered into in the month of January, 2009, at that time, the possession of suit land was delivered to the plaintiff. The plaintiff had planted 500 apple plants over the suit land. The sale deed was to be executed on or before 30.09.2009. The plaintiff requested the defendant to receive the balance sale consideration of Rs.2,00,000/- as the plaintiff is still ready and willing to perform his part of agreement. Despite the legal notice of 28.7.2009, the defendant threatened to alienate the suit land in favour of the third person. On 22.8.2009, the wife and, son of defendant started interference in the suit land and forcibly tried to dispossess the plaintiff. The matter was reported to the police and FIR No.136/2009 has been registered at police station Theog. The defendant failed to execute the sale deed. The plaintiff has prayed that the decree for specific performance of contract of sate dated 22.2.2009 be passed in his favour and further prayed that decree for permanent prohibitory injunction be passed against the defendant restraining him from interfering with the possession of the plaintiff over the suit land in any manner. 3. The plaintiff has prayed that the decree for specific performance of contract of sate dated 22.2.2009 be passed in his favour and further prayed that decree for permanent prohibitory injunction be passed against the defendant restraining him from interfering with the possession of the plaintiff over the suit land in any manner. 3. The defendant contested the suit and filed written statement, wherein he has taken taken preliminary objections qua the suit of the plaintiff as framed is not competent, plaint deserves to be rejected as the agreement is neither registered nor properly stamped. On merits. The defendant has denied that he had entered into an agreement to sell the suit land for sale consideration of Rs.5,00,000/-. The defendant further denied that he has executed any agreement. The agreement is a forged and fabricated document in view to grab the land of the defendant. The plaintiff had obtained the signatures of the defendant on blank papers on the pretext of exchange of land. It is denied that the earnest money to the tune of Rs.3,00,000/- were paid by the plaintiff to the defendant. The oral agreement has also been denied. It is also denied that in the month of January, 2009, the possession was delivered to the plaintiff. It is denied that the plaintiff has planted the apple orchard over the suit land. The defendant claimed that the electricity meter is also in his name. The defendant further averred that the plaintiff on 22.8.2009 tried to trespass into the house along with 4-5 persons, and, gave beating to the son of the defendant, threw the articles belonging to the defendant and outraged the modesty of wife of the defendant, as, the FIR was registered against the plaintiff at police station Theog. The question of readiness and willingness to perform the agreement does not arise at all as no agreement has been executed. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is ready and willing to perform his part of the agreement dated 22.2.2009, as prayed for? OPP 2. Whether the plaintiff is entitled for specific performance of agreement dated 22.2.2009, as prayed for?OPP. 3. Whether the plaintiff is entitled for permanent prohibitory injunction as prayed for?OPP 4. Whether the suit is not properly framed as alleged?OPD. 5. Whether the plaintiff is ready and willing to perform his part of the agreement dated 22.2.2009, as prayed for? OPP 2. Whether the plaintiff is entitled for specific performance of agreement dated 22.2.2009, as prayed for?OPP. 3. Whether the plaintiff is entitled for permanent prohibitory injunction as prayed for?OPP 4. Whether the suit is not properly framed as alleged?OPD. 5. Whether the suit is liable to be rejected as alleged?OPD. 6. Whether the defendant has agreed to exchange his land with the plaintiff, as alleged?OPD 7. Whether the plaintiff has obtained the signature of the defendant over the agreement dated 22.2.2009 on the pretext of filing of the application for exchange as alleged?OPD. 8. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom, by, the defendant/appellant herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court. 6. Now the defendant/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 4th May, 2016, this Court, admitted the appeal, instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:- 1. Whether on account of mis-appreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by both courts below are erroneous and, as such, the judgment and decree impugned in this appeal, being perverse and vitiated is not legally sustainable? Substantial question of Law No.1 : 7. The contract of sale, executed inter se the contesting litigants, was entered into, on 22.2.2009. Substantial question of Law No.1 : 7. The contract of sale, executed inter se the contesting litigants, was entered into, on 22.2.2009. The learned counsel appearing for the appellant/defendant has contended with much vigour, before this Court, that since the contract of sale stood executed subsequent, to an amendment being made to Section 17(1)(A), of, the Indian Registration Act, provisions whereof stand extracted hereinafter:- "The documents containing contracts to transfer for consideration, any immovable pro9perty for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered, if they have been executed on or after the commencement of the Registration and, other related laws (Amendment) Act, 2001, and, if such documents are not registered on or after such commencement, then, they have have not effect for the purpose of the said Section 53A." (a) and when the afore extracted provisions, hence peremptorily, require qua any document rather embodying therewithin, a contract of sale, vis-a-vis, any immovable property, hence containing a value of more than Rs.100/-, and, entered subsequent, to, the afore amendment taking place, vis-a-vis, the provisions of Section 17 (1)(A) of the Indian Registration Act, (b) and when therethrough, the possession, of, immovable property, has been evidently delivered, vis-a-vis, the purchaser, as uncontrovertedly hereat, possession, of, the suit property, stands delivered by the defendant to the plaintiff, (c) thereupon, hence, it being compulsorily registrable, (d) and, when uncontestedly, the contract of sale hereat, embodied in Ex.PW1/A, is, not registered, rather in consonance with the afore requirement of law, (e) thereupon, he contends, that the afore document hence being neither readable in evidence, nor became admissible in evidence, rather was required to be impounded, and, thereafter, he contends, that the rendition of a decree of specific performance, with respect to the suit property, embodied in Ex.PW1/A, by both the learned courts below, being shaky, and, infirm. 8. 8. However, the afore submission, as, addressed before this Court by the learned counsel, appearing for the aggrieved defendant/appellant herein, is, a gross mis-dependence, upon, the afore provisions of law, (a) given the afore amendment made to Section 17(1)(A) of the Indian Registration Act, being interpreted by the Hon''ble Apex Court in a case titled as S. Kalawati Devi vs. V.R. Somasundaram and others,2010 2 SLJ 770 (SC) , and, in a judgement rendered by the Orissa High Court and reported in AIR 2002, Orissa 77, (b) both the verdicts whereof, pronounce a candid, view that a document, containing sale of immovable property, hence holding, a value more than Rs.100/-, though, requiring it being compulsorily registered, (c) and, also make trite expostulation qua when a suit for specific performance is founded, upon, an unregistered contract of sale of immovable property, embodying therein rather property, holding a value of more than Rs.100/-, and, when therethrough, the afore contract, of, sale is, strived to be enforced, through, rendition, of a decree for specific performance of contract, (d) rather, not, on a combined interpretation, of, the provisions of Section 49 of the Registration Act, alongwith the proviso to Section 49 of the Registration Act, being either discardable, nor inadmissible, nor unreadable, (e) rather it being admissible evidence, vis-a-vis, strivings by the plaintiff concerned, for his, on anvil thereof, hence, staking a claim, for rendition, of, a decree for specific performance. Moreover, as propounded, in a judgment rendered, in a case, titled as Didar Singh Vs. Moreover, as propounded, in a judgment rendered, in a case, titled as Didar Singh Vs. Nasib Kaur, and, others, (2012) 2 CivCC 428 (P and H), even, if in, pursuance to execution, of, though a compulsorily registrable contract, of sale hence possession, of the property, as,l enclosed therein rather standing delivered to the plaintiff, by the defendant, (f) yet even on the afore anchorage, no leverage being drawable, by the defendant, from, the provisions borne, in Section 53-A, of, the Transfer of Property Act, (g) and, further thereonwards, it also stands explicitly pronounced therein, that, dehors the afore bar or embargo being peremptorily erectable, against the plaintiff, upon, his previously receiving possession, or in contemporaneity, vis-a-vis, the execution, of, the contract of sale, of the suit property, embodied in Ex.PW1/A, though a compulsorily registrable contract of sale, (h) and, when in consonance therewith, he is rather baulked to seek rendition of a decree, of, specific performance, rather on anvil of the mandate borne in Section 53-A of the Transfer of property Act, conspicuously, upon, its remaining unregistered, (i) yet the plaintiff not being barred, to, on anvil thereof, claim rendition of a decree for specific performance, (j) and, nor the plaintiff''s suit for specific performance, anchoraged, upon, an unregistered contract of sale, being oustable nor any unregistered contract of sale, being hence construable rather to be completely nullified. Reiteratedly, the subtle nuance, of the afore verdict, is qua, that the salutary purpose, of, the mandate engrafted in Section 53A of the Transfer of Property Act, being, qua, it being used as a sword, than, as a shield, (k) with a concomitant effect, vis-a-vis, it working adversarially only qua the defendant/counter-claimant, than qua the plaintiff, thereupon, the effect, if any, of, possession of the suit property being delivered, to the plaintiff, stands, fully negated, nor hence, the plaintiff is debarred to institute, a suit, for rendition of a decree for specific performance, of, contract , of, sale. 9. 9. In summa, even if the contract of sale stood executed subsequent to the requisite amendment, made to the provisions of Section 17(1)(A), of, the Indian Registration Act, and, even if, possession of the suit property, was delivered, by the plaintiff to the defendant, (i) and, even if, the contract of sale embodied, in, Ex.PW1/A rather peremptorily enjoined its being registered, and, uncontestedly, when it is not registered, (ii) nonetheless, the plaintiff is not debarred, to enforce the unregistered contract of sale, by his instituting, a suit for specific performance of contract of sale, against the defendant, (iii) nor in pursuance thereto he is barred to seek a decree against the defendant for executing, with him, a, registered deed of conveyance. 10. Be that as it may, the factum of execution of Ex.PW1/A, has been proven by the plaintiff, and, his testification, vis-a-vis, the completest execution, of Ex. PW1/A, also stands corroborated by PW-2. The defendant though, in his deposition has not denied the existence, of his signatures, on Ex.PW1/A, yet, he in his testification, rather projected qua his being beguiled, (a) to append his signatures upon Ex.PW1/A, (b) under the pretext of it being, executed in lieu of exchanges of some lands, inter se him, and, the plaintiff. However, when he further, in his cross-examination, has admitted qua his working, as a Senior Assistant in HPPWD, and, his being a matriculate, (c) thereupon, he is concluded to comprehend the recitals borne in Ex.PW1/A, and, furthermore, when he has not disputed, the authenticity of his signatures, as exist, upon, Ex.PW1/A, (d) hence he cannot also contend, that, the plaintiff beguiled him, under, the afore pretext, to, hence emboss his signatures upon Ex.PW1/A, and, sequel thereof, is that, when hence assured proof, is adduced, vis-a-vis, the completest satisfactory execution Ex.PW1/A, and, also vis-a-vis, with the apt fullest volition, of, the executants concerned, (e) thereupon, the contract of sale, strived, to be enforced, through, rendition of a decree, for specific performance, of, the afore agreement, is, rather a striving bearing tandem, with the afore proclamation of law, and, enjoins it being affirmed. Predominantly also with the defendant, admitting qua a part of the sale consideration, comprised in a sum of Rs.3 lakhs standing received by the defendant, from, the plaintiff, hence, in contemporaneity, vis-a-vis, the execution of Ex.PW1/A. Furthermore, when the plaintiff, has shown, his readiness and willingness to perform his part of contract, and, with recitals also being carried in Ex.PW1/A, that, upon refusal by the defendant, to execute the sale deed, vis-a-vis, the suit property, borne in Ex.PW1/A, thereupon, the plaintiff being reserved with a right, to enforce Ex.PW1/A, by recoursing all the remedies available under law, thereupon, the concurrent adversarial decrees, as, stand pronounced against the defendant, by both the learned courts below, do not deserve, any interference. 11. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court, as well as by the learned trial Court, being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, both the learned Courts below have not excluded germane and apposite material from consideration. Accordingly, the substantial question, of law is answered in favour of the plaintiff/respondent, and, against, the defendant/appellant. 12. In view of the above discussion, the instant appeal is dismissed, and, the impugned judgments, and, decrees are maintained and affirmed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.