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2020 DIGILAW 401 (ALL)

Baijnath Prasad Dwivedi v. Asha Devi

2020-02-06

SIDDHARTHA VARMA

body2020
JUDGMENT : 1. A Suit for specific performance was filed by the Plaintiff/Appellant Baijnath Prasad Dwivedi which was decreed in part by the Trial Court on 30.11.2010 and instead of a direction that a sale deed be executed upon the payment of the remaining amount, Rs. 30,000/- alongwith 6 percent interest was ordered to be returned to the Plaintiff/Appellant. A cross case was brought by the defendant praying that possession be delivered to her by the plaintiff if in case he was found to be in possession. The cross case of the defendant was dismissed for want of court fees. Against the decree, both the Plaintiff/Appellant and the Defendant filed separate Appeals. The Appeal filed by the Plaintiff/Appellant was numbered as 52 of 2011 and the First Appeal filed by the Defendant was numbered as 168 of 2010. The Plaintiff/Appellant had filed the Appeal for decreeing the Suit in toto meaning thereby that the Defendant be directed to execute the sale deed as per the registered agreement dated 5.1.1988 and the Defendant filed the First Appeal for dismissing the Suit as a whole and for decreeing her cross-claim. The First Appeal of the Plaintiff/Appellant was dismissed whereas the First Appeal of the Defendant was allowed. 2. The Second Appeal No. 1403 of 2014 as also the Second Appeal No. 1404 of 2014 were filed by the plaintiff. At the time of admission, the following questions of law were framed. “(I) Whether the failure on the part of the court below to decide the civil appeal after formulating the points of determination as required under the mandatory provisions of order 41 Rule 31 C.P.C. is manifestly illegal and consequently the judgment and decree passed by the court below is liable to be set-aside. (II) Whether in the facts and circumstances of the case the finding recorded by the trial court on issue no.1 refusing the decree of specific performance on account of contingency even when the registered agreement to sell was duly proved in evidence is manifestly illegal.” 3. The Original Suit being Original Suit No.98 of 1991 was instituted by the Plaintiff/Appellant on 29.1.1991 wherein it was stated that the Plaintiff/Appellant was entitled for getting a sale deed executed in pursuance of the registered agreement to sell dated 5.1.1988. The Original Suit being Original Suit No.98 of 1991 was instituted by the Plaintiff/Appellant on 29.1.1991 wherein it was stated that the Plaintiff/Appellant was entitled for getting a sale deed executed in pursuance of the registered agreement to sell dated 5.1.1988. It was further stated that the cause of action had arisen on 11.1.1991 when the Defendant Asha Devi it was learnt had entered into a compromise with Rambabu, the brother of Budh Prakash from whom Asha Devi herself had bought the property on 26.5.1987. It was stated in the Plaint that initially one Budh Prakash, the son of Mata Prakash resident of Balkaranpur was the owner of the property with regard to which the Defendant Asha Devi had entered into an agreement to sell on 5.1.1988. The Plaintiff/Appellant had stated that when the Defendant had purchased the property on 26.5.1987 from Budh Prakash, she had filed an application for mutation in her name before the Consolidation Officer, Soraon and this application was still pending. The sale deed executed by Budh Prakash was admitted by him. After Budh Prakash had sold the property to the Defendant Asha Devi, the brother of Budh Prakash, Rambabu had tried to get his name mutated over the property in question, to the exclusion of Asha Devi. However, when Asha Devi contested the case with Rambabu, the name of Budh Prakash had continued despite the fact that the Defendant Asha Devi had agreed to sell the property to the Plaintiff/Appellant by a registered agreement dated 5.1.1988. When on 11.1.1991, the Plaintiff/Appellant came to know that the Defendant was entering into a compromise with Rambabu then he filed the instant Suit. Before filing the Suit, he had put the Defendant Asha Devi to notice that she had to appear before the Registrar for executing the sale deed. 4. The Defendant Asha Devi had contested the Suit and had come forward with a case that the Defendant Asha Devi was neither the owner of the property in question nor was the Plaintiff/Appellant in possession over it. She also stated that the agreement was entered into under some misconception. She also stated that the Plaintiff/Appellant by some illegal means had got himself entered as a person in possession under proceedings initiated under Section 145 of the Cr.P.C. and had got possession over the property illegally. She also stated that the agreement was entered into under some misconception. She also stated that the Plaintiff/Appellant by some illegal means had got himself entered as a person in possession under proceedings initiated under Section 145 of the Cr.P.C. and had got possession over the property illegally. She also, therefore, prayed that the Plaintiff/Appellant be dispossessed and she be given possession. 5. During the course of trial as many as 10 issues were framed. The First Issue was with regard to the fact as to whether any agreement was entered into between the Defendant and the Plaintiff/Appellant on 5.1.1988 and as to whether it was to be enforced. 6. The second issue was as to whether the agreement to sell dated 5.1.1988 was a result of fraud and misrepresentation. 7. On the basis of the decision of these two issues, the Suit was partly decreed. However, the relief of specific performance and therefore the execution of the sale deed was refused saying that the name of Budh Prakash was still entered and mutation proceedings were still going on and that the Defendant had yet not got any permission to sell. The Plaintiff/Appellant's money which he had paid to the Defendant amounting to Rs. 30,000/- was, however, ordered to be returned. The Second Issue with regard to the fact that as to whether the agreement was a result of fraud and misrepresentation was decided in favour of the Plaintiff/Appellant. The cross-claim of the Defendant though was found to be within limitation was dismissed under Order 7 Rule 11 of the C.P.C. as no court fee was paid and the Suit was decreed only to the extent that the Plaintiff/Appellant was to be returned Rs. 30,000/- with an interest of 6 per cent. 8. The First Appellate Court, however, reversed the decree. With regard to the fact as to whether the agreement dated 5.1.1988 was enforceable, it held that it was not enforceable as the statement given by the witnesses of the Plaintiff/Appellant and the Statement as was recorded at the time of the registration before the Sub-registrar had some discrepancies. The statement of P.W. 1 stated that Rs. 30,000/- advance was given in two installments whereas the Sub-registrar had noted that Rs. 30,000/- were paid by the Plaintiff/Appellant(purchaser) and that Rs. 15,000/- was still to be paid to the seller. 9. The statement of P.W. 1 stated that Rs. 30,000/- advance was given in two installments whereas the Sub-registrar had noted that Rs. 30,000/- were paid by the Plaintiff/Appellant(purchaser) and that Rs. 15,000/- was still to be paid to the seller. 9. Further more, the Appellate Court while deciding the issue no. 2 had found that the agreement to sell was not a result of a bonafide agreement but was a result of misrepresentation and fraud. This it had said because Devi Shankar Ojha even though was a marginal witness did not appear before the Registrar and further the husband of the Defendant, Hari Shankar, who was as per the Defendant, an alcoholic had put in his signature on the agreement. After reversing the two findings given on the two issues by the Trial Court the Appeal of the Plaintiff/Appellant was dismissed in toto and the appeal of the Defendant was allowed. When the Appeal was allowed it meant that the cross-claim was decreed and eviction of the Plaintiff/Appellant was directed from the property in dispute. With regard to substantial questions of law, learned counsel for the Plaintiff/Appellant submitted that a judgement of the First Appellant Court which did not contain points for determination was an erroneous one. In this regard, learned counsel for the Plaintiff/Appellant relied upon the following judgements : (1). 2018 (1) SCC 604 (C. Venkata Swamy v. H.N. Shivanna (dead) by legal representative and another) (2). 2018 (13) SCC 715 (Kanailal & others v. Ram Chandra Singh & others) (3). 2017 (2) SCC 415 (Laliteshwar Prasad Singh & others v. S.P. Srivastava (dead) through Lr's) 10. So far as the substantial question of law no. 2 is concerned, learned counsel for the Plaintiff/Appellant submitted that when the Trial Court had found that the Defendant Asha Devi had purchased the property from Budh Prakash then there was no other option with the courts below but to conclude that she was the owner. Execution of the sale deed could not have been denied simply on account of the fact that the name of Asha Devi had yet not been mutated. He submitted that it is settled principle of law that mutation is only an exercise which is undertaken by the Revenue Authorities to collect revenue. The mutation of the name of a particular individual does not bestow any title in that person. He submitted that it is settled principle of law that mutation is only an exercise which is undertaken by the Revenue Authorities to collect revenue. The mutation of the name of a particular individual does not bestow any title in that person. He submits that if Budh Prakash was the owner and Asha Devi had purchased the property in question from him on 26.5.1987 then the claim of the Plaintiff/Appellant could not have been denied simply because the name of Asha Devi had not been entered. 11. Learned counsel for the Plaintiff/Appellant relied upon 2008 RD (105) 618 (Ram Pher v. Deputy Director of Consolidation Faizabad), 1996 (6) SCC 223 (Smt. Sawarni v. Smt. Inder Kaur and Ors.), 2009 RD (106) 440 (Faqruddin v. Tajuddin) and 2007 RD (103) 116 (Suraj Bhan and Ors. v. Financial Commissioner and Ors.) and submitted that mutation entries in revenue records did not confer any title. In fact, the court below erred in not looking into the sale deed dated 26.5.1987 by which the defendant had got the title. 12. Learned counsel for the respondent/defendant, however, supported the judgement of the First Appellate Court and submitted that when issues as had been framed at the Trial Stage and had been decided once again by the First Appellate Court then there was no error as such committed by the First Appellate Court. Learned counsel for the Defendant submitted that when the agreement dated 5.1.1988 was a result of misrepresentation and fraud then no indulgence had to be granted to the Plaintiff/Appellant. He once again reiterated the reasons as had been mentioned by the First Appellate Court, namely, that there was discrepancy in the statements of the witnesses and the statement of the Assistant Registrar as was endorsed on the registered agreement to sell. 13. Learned counsel for the Defendant also relied upon 2018 (7) ADJ 840 (Smt. Veena Agarwal v. M/s Unjha Ayurvedi Pharmacy and Others) and submitted that there was no right with plaintiff to get the sale deed executed. 14. Having heard the learned counsel for the parties and after having gone through the judgements of the two courts below and also the record, I am of the view that the Appellate Court had erred in reversing the findings as had been arrived at by the Trial Court. 14. Having heard the learned counsel for the parties and after having gone through the judgements of the two courts below and also the record, I am of the view that the Appellate Court had erred in reversing the findings as had been arrived at by the Trial Court. Furthermore, I am of the view that the Trial Court also had erred in not granting the relief of Specific performance to the plaintiff. The Defendant ought to have been directed to execute the sale deed as per the registered agreement to sell dated 5.1.1988. The facts as they were had been proved to the hilt at the stage of Trial that Budh Prakash had sold the property to the Defendant Asha Devi on 26.5.1987 and thereafter the Defendant Asha Devi had agreed to sell the property to the Plaintiff/Appellant on 5.1.1988 by means of a registered agreement to sell. If the name of the Defendant had not been entered it did not mean that the title had not flown to the Defendant. The agreement to sell had been proved to the hilt and the execution of the sale deed should, therefore, have been directed. I also find that when the Defendant had denied her title then she should not have contested the suit itself. Further the Court finds that the reversal of the judgement of the Trial Court by the First Appellate Court by relying upon the discrepancies in the statement of the witnesses and the statement made on the agreement to sell by the Assistant Registrar also was an error which resulted in a wrong decision of the First Appeal. The First Appellate Court also wrongly relied upon the fact that in the agreement another individual had signed whereas before the Registrar another individual had signed. The First Appellate Court also erred in finding that the husband of the defendant who, as per the Defendant, was an alcoholic should not have signed on the agreement. The Court finds that when there was no issue framed with regard to the reliability of the husband's evidence then the First Appellate Court could not have concluded that the signature of the husband of the Defendant on the agreement could lead to a conclusion that the agreement was entered into fraudulently. The Court finds that when there was no issue framed with regard to the reliability of the husband's evidence then the First Appellate Court could not have concluded that the signature of the husband of the Defendant on the agreement could lead to a conclusion that the agreement was entered into fraudulently. The First substantial question of law as to whether the First Appellate Court could have given a decision without formulating any point of decision is answered in favour of the plaintiff/appellant. It is settled law that the First Appellate Court could not have given a decision without formulating the points for determination in the First Appeal. The Second substantial question of law as was formulated at the time of admission of the Second Appeal is also answered in favour of the Plaintiff/Appellant. When in fact, the agreement to sell was not a result of fraud and misrepresentation as had been found by the Trial Court then the suit ought to have been decreed in toto. The Trial Court had concluded that the agreement to sell was entered into and had also correctly concluded that there was no fraud or misrepresentation at the time when the agreement to sell was entered into. 15. I also find that the Plaintiff/Appellant was always ready and willing to perform his part of the agreement as he had put to notice the Defendant to reach the Registrar's office. 16. Under such circumstances, the substantial question no. 2 is also answered in favour of the Plaintiff/Appellant. 17. Under such circumstances, the Second Appeals No. 1403 of 2014 and 1404 of 2014 are allowed. The Plaintiff's Suit for the execution of the sale deed upon the payment of the remaining amount of Rs. 15,000/- is decreed. The cross-claim of the Defendant that possession be handed over to the Defendant is dismissed. The Suit is, therefore, decreed in toto.