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2023 DIGILAW 1114 (RAJ)

Bhagirath v. Ram Pyari Wife of Late Mani Ram

2023-05-16

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT : 1. This appeal has been preferred under Section 96 of the Code of Civil Procedure (CPC), 1908, against the judgment and decree dated 07.08.1987 passed by the learned Additional District & Sessions Judge, Raisinghnagar in Civil Original Suit No.35/81 (Mani Ram Vs. Bhagirath & Ors.), decreeing the suit (instituted by the plaintiff-Mani Ram -since deceased, represented through his LRs herein) for specific performance of the contract of sale against the defendants (appellants herein), while also holding the plaintiff entitled to receive the costs of litigation from the defendants (appellants herein). 2. As per the pleaded facts, an agricultural land of Chak no.51 NP bearing murabba no.30 in killa no. 1 to 18 measuring about 14 bighas 6 biswas, was allotted to one Brij Lal (father of appellants/ defendants), since deceased, under the Rajasthan Colonization (Gang Canal Lands Permanent Allotment and Sale) Rules, 1956 (hereinafter referred as ‘Rules of 1956’) on 16.02.1970. Late Brij Lal was required to pay the price of the allotted land according to the rates which were in force at the time of allotment. 2.1. The provisions of the Rajasthan Colonization (General Colony) Conditions, 1955 (hereinafter referred as ‘Conditions of 1955’) were applicable as the General Conditions, on which the land was to be granted in a colony. According to condition no.9 (Procedure for Acquisition of Rights) of the Conditions of 1955, all grants made under the allotment rules in Gang Canal Colony area were to be initially on a Gair Khatedari tenancy only and by way of a lease for a period of 10 years from the date of the commencement of the grant or allotment. 2.1.1. Thus, after payment of complete dues to the government, Late Brij Lal would have become entitled to receive a Sanad from the appropriate authority of the Government, conferring upon him a right of a Khatedari Tenancy pertaining to the land. The Sanad, as per the said condition no.9, was to be issued under the signature and seal of the Collector and the Sanad was stipulated to be registered by the grantee (Late Brij Lal – father of the appellants/defendants -in the present case), according to the provisions of the Rajasthan Tenancy Act. 2.2. The Sanad, as per the said condition no.9, was to be issued under the signature and seal of the Collector and the Sanad was stipulated to be registered by the grantee (Late Brij Lal – father of the appellants/defendants -in the present case), according to the provisions of the Rajasthan Tenancy Act. 2.2. However, since Late Brij Lal was not having sufficient money to pay the due installments to the State towards the allotment of the land in question, therefore, prior to making such payments, an agreement for sale of the said land was entered into between the grantee-Late Brij Lal (father of the appellants/defendants) and plaintiff-Mani Ram, since deceased, (father of the respondents herein) on 09.09.1974 for a consideration of Rs.29,000/-; out of which Rs.18,200/-was paid (in cash) by plaintiff-Mani Ram to Late Brij Lal, while the remaining amount of Rs. 10,800/-was to be paid by plaintiff-Mani Ram to the State Government, towards the due installments, in pursuance of the allotment of the land in question (made in favour of Late Brij Lal). It was agreed between Late Brij Lal and the plaintiff-Mani Ram, under the said agreement, that the sale deed, in respect of the land in question, would be registered on 15.11.1978, meaning thereby, by that date, the complete payment towards allotment of the land in question in favour of Late Brij Lal, would be duly paid by plaintiff-Mani Ram to the State Government. 2.2.1. In pursuance of the aforementioned sale agreement, plaintiff-Mani Ram accordingly, paid, against the remaining installments to the State Government, Rs.1470/-on 09.09.1974, Rs. 2530/-on 1.03.1976 and Rs. 8000/-on 15.09.1978; thus, in all, a sum of Rs.12,000/-was paid in installments to the State Government by the plaintiff. 2.3. However, before the sale deed in respect of the land in question between Brij Lal and plaintiff-Mani Ram, could be registered on the date (15.11.1978) as mentioned in the sale agreement, Brij Lal passed away in the year 1977; whereupon, plaintiff-Mani Ram approached the legal representatives (appellants/defendants herein) of Late Brij Lal to honour the sale agreement, but the legal representatives refused to register the sale deed. Thus, in those circumstances, on 16.11.1981, Mani Ram instituted a suit (bearing no.35/81) for specific performance of the contract of sale on the basis of the sale agreement dated 09.09.1974 entered into between him and Late Brij Lal (father of the appellants/defendants), before the learned District Court, Srigangangar. 2.4. Thus, in those circumstances, on 16.11.1981, Mani Ram instituted a suit (bearing no.35/81) for specific performance of the contract of sale on the basis of the sale agreement dated 09.09.1974 entered into between him and Late Brij Lal (father of the appellants/defendants), before the learned District Court, Srigangangar. 2.4. After institution of the said suit, the trial commenced before the Additional District Judge, Raisinghnagar. The learned Court below, on the basis of the pleadings of the parties, framed the following eight issues, for adjudication:- ^^¼1½ vk;k izfroknh us okn i= ds iSjk ua- 1 esa of.kZr Hkwfe 14 ch?kk 6 fcLok ds fodz; dk lkSnk 29000 : esa fd;k vksj oknh ds gd esa fn- 9-9-74 dks ,d bdjkjukek rgjhj o rdehy fd;kA ¼2½ vk;k oknh us fookfnr tehu ds lkSns dh dher ds isVs izfroknh ds 18200a :- udn vnk fd;s vkSj tehu dk dCtk oknh dks fn;k x;kA ¼3½ vk;k oknh us fookfnr Hkwfe ds fd'rksa ds dqy 12000 :- ljdkjh [ktkus esa nkos dh en ua- 4 esa vafdr rkjh[kksa esa tek djk;sA ¼4½ vk;k oknh vuqca/k dh vius ftEes dh 'krksZ dh ikyuk djus dks o csukek tehu vius gd esa djkus dks ges'kk rS;kj o rRij Fkk vkSj vc Hkh gSA ¼5½ vk;k fookfnr Hkwfe dks cspus dk vf/kdkjh izfroknhx.k ds firk c`tyky dks ugha FkkA ;fn ,slk gS rks nkos ij D;k vlj \ ¼6½ vk;k nkok oknh E;kn cgkj gSA ¼7½ vk;k nkos esa elyk Mis joinder and Non joinder of necessary parties font face="Kruti Dev 011">vk;k gSA ¼8½ nknjlh D;k gksxhA ** 2.4.1. For the purpose of deciding the issues, plaintiff-Mani Ram (since deceased, represented through his LRs-respondents herein) produced two witnesses for examination, namely, i.e. PW-1 Mani Ram (plaintiff) himself and PW-2 Sadul Ram, and one document i.e. sale agreement dated 09.09.1974 was exhibited as EX.P-1. On behalf of the appellant-defendants (LRs of Late Brij Lal grantee), Hanuman son of Late Brij Lal was examined as DW-1. 2.4.2. After hearing the parties in the suit, the learned Court below, vide the impugned judgment and decree dated 07.08.1987, decided all the issues, so framed, in favour of plaintiff-Mani Ram and against the appellants/defendants herein (LRs of deceased-Brij Lal), and decreed the suit of the plaintiff against the appellants/defendants, as above. 2.5. Thus being aggrieved by the aforementioned judgment and decree dated 07.08.1987, the appellants/defendants have preferred the present appeal. 2.5. Thus being aggrieved by the aforementioned judgment and decree dated 07.08.1987, the appellants/defendants have preferred the present appeal. 2.6 However, during pendency of the present first appeal original respondent-plaintiff (Mani Ram) expired on 07.12.2014; hence, a combined application under Order 22 Rule 4 & Rule 9 CPC was preferred to bring his legal representatives (respondents herein) on record and for setting aside the abatement; the same was allowed on 05.05.2018; accordingly, while setting aside the abatement in the wake of death of original respondent-Mani Ram, the present respondents, being his LRs, were taken on record. 3. Learned counsel for appellant/defendants, while making submissions qua the finding of the learned Court below on issue No.1, in the impugned judgment and decree, submitted that the learned Court below erred deciding the said issue, with the finding that as per the statements of PW-1 Mani Ram (plaintiff) and PW-2 Sadul Ram, it was proved that the sale agreement in question was executed, as claimed in the suit by plaintiff-Mani Ram. 3.1. It was further submitted that as per Section 134 of Indian Evidence Act, 1872, there exists no requirement that a particular number of witnesses needs to be examined, to prove or disprove a particular fact. Thus, as per learned counsel, the learned Court below committed an error of law, in deciding the issue against the appellants/defendants, while holding that though DW-1 Hanuman denied the genuineness of Ex.P-1 (sale agreement dated 09.09.1974), but no other witness to support such version of DW1, was produced for examination before the learned Court below. 4. As regards the finding on issue no.2, learned counsel for the appellants/defendants submitted that the learned Court below was of the opinion that since execution of EX.P-1 had been proved, therefore, issue no. 2 was decided in favour of the plaintiff, whereas in the year 1974, when the sale agreement in question was stated to be entered, grantee-Late Brijlal (father of the appellants/defendants) was mentally ill, and thus, plaintiff-Mani Ram took undue advantage of Late Brij Lal’s mental illness, and got the alleged document in question prepared. 5. Learned counsel for the appellants/defendants further argued that the due installments to be deposited with the State Government was Rs. 10,200/-, whereas in the plaint, the amount of Rs. 5. Learned counsel for the appellants/defendants further argued that the due installments to be deposited with the State Government was Rs. 10,200/-, whereas in the plaint, the amount of Rs. 12,000/-was stated to have been deposited by plaintiff-Mani Ram, and no explanation was given in regard to excess amount being deposited by the plaintiff; also no receipt(s) were produced before the learned Court below, regarding deposition of the due installments. 6. Learned counsel for appellants/defendants also, while vehemently opposing the decision given by the learned Court below issue No.5, in the impugned judgment and decree, submitted that Late Brij Lal (father of the appellants/defendants) was simply holding the Gair Khatedari rights at the time of entering into the alleged sale agreement, and further, till that that, Late Briji Lal had not paid the price towards allotment of the land in question. 6.1 It was argued that it was not proved whether the final payment towards the price of the land in question was paid by the grantee (Late Brij Lal in the present case) or any other person on his behalf and a Sanad was issued in his favour or in favour of his successor, even at the time of filing of the suit by the plaintiff-respondent. 6.2 Learned counsel further asserted that according to condition no.17 (10) of the Conditions of 1955, the grantee was bound not to enter into any agreement for the transfer of the allotted land in favour of any other person(s). Further, as per learned counsel, a bare perusal of the conditions enumerated in Section 13 of Rajasthan Colonization Act, 1954, (hereinafter referred as ‘Act of 1954’), the agreement to sale was hit by the expression ‘expressio unius est exclusion alterius’ which means that express mention of one thing implies the exclusion of other as well. 6.3 It was also argued that the learned Court below decided the issue against the appellants-defendants on the ground that as per Section 13 of the Act of 1954, there was no bar on agreement to sale of land but there was a bar on execution of sale-deed. 6.4. In support of such submission, learned counsel for the appellants/defendants placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of Bhadar Ram (dead) through LRs v. Jassa Ram & Ors. 6.4. In support of such submission, learned counsel for the appellants/defendants placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of Bhadar Ram (dead) through LRs v. Jassa Ram & Ors. (Civil Appeal No. 5933/2021, decided on 05.01.2022), while submitting that in the said judgment, it was held that transactions in contravention of Section 13 of the Act of 1954 are void. 7. Learned counsel for the appellants/defendants further submitted that given the facts and circumstances of the case, instead of the decree of specific performance, the decree should have been for return of the price of the disputed land alleged to have been paid in advance by plaintiff-Mani Ram along with compensation. 8. Learned counsel for the appellants/defendants, thus, submitted that the impugned judgment and decree dated 07.08.1987 passed by the learned Court below deserves interference by this Court. 9. On the other hand, the learned counsel for respondents (LRs of plaintiff-Mani Ram) submitted that the sale agreement was entered between the parties on 09.09.1974 in favour of Mani Ram, and accordingly, in pursuance of the same, the possession was duly handed over to plaintiff-Mani Ram. 9.1. In furtherance, it was submitted that Rs.18,200/-was paid in cash to Late Brij Lal (father of the appellants/defendants) and the remaining amount of Rs.10,200/-(amount of Rs.12,000/-, as claimed by the respondents) was paid in installments to the State Government by 15.09.1978. 10. Learned counsel for the respondents further submitted that under the agreement in question, the sale deed was agreed to be registered and executed on 15.11.1978 and the map and Sanad were to be obtained by Late Brij Lal; it was also agreed on the date of the sale agreement that in case Late Brij Lal fails to execute the sale deed or violate the terms of the sale agreement, the plaintiff-Mani Ram (since deceased – represented through his LRs-respondents herein) would be entitled to seek and obtain the decree of specific performance of the contract of sale on the basis of the agreement in question. 10.1. In addition, it was also agreed that in the event of failure on the part of Late Brij Lal in execution of the agreement in question, he would pay Rs. 10.1. In addition, it was also agreed that in the event of failure on the part of Late Brij Lal in execution of the agreement in question, he would pay Rs. 36,400/-as compensation to plaintiff-Mani Ram or recovery from the property of the defendant; it was also agreed that the actual possession of the land in question shall be delivered to plaintiff-Mani Ram on the same day; accordingly, the actual possession of the land in question was handed over to plaintiff-Mani Ram, and the respondents being his legal representatives are in possession thereof; the agreement in question was attested by witnesses Sadul Ram, Bhura Ram and Arjeenvish Laxmi Narayan on 09.09.1974 itself. Learned counsel further submitted that Sadul Ram son of Brij Lal supported the execution of the agreement during the witness examination before the learned Court below. 11. Learned counsel for the respondents submitted that plaintiff-Mani Ram was always willing to perform his part of the contract, and has accordingly done so by paying the entire due amount to the State Government in respect of the land in question, and only thereafter, he, time and again requested Late Brij Lal to get the execution of contract of sale done. 12. As regards issue No.5, it was submitted by learned counsel for the respondents that there was no restriction on agreement to sale, as on account of Section 13 of the Act, 1954, after getting sanction from the Collector, the same can be executed. Thus, the sale of the land in question was valid, and on obtaining the tenancy rights, the sale can be registered and executed. 13. Learned Counsel for the respondents, in support of his submissions, has placed reliance on the judgments rendered by the Coordinate Benches of this Hon’ble Court in the cases of LRs of Surja Ram & Ors. v. LRs. Of Asha Ram & Ors. (2008 (2) DNJ (Raj.) 818) and Shri Ram & Anr. v. Board of Revenue, Ajmer & Ors., (S.B. Civil Writ Petition No. 4338 of 2006, decided on 12.05.2008). 14. Heard learned counsel for the parties as well as perused the record along with judgments cited at the Bar. 15. v. LRs. Of Asha Ram & Ors. (2008 (2) DNJ (Raj.) 818) and Shri Ram & Anr. v. Board of Revenue, Ajmer & Ors., (S.B. Civil Writ Petition No. 4338 of 2006, decided on 12.05.2008). 14. Heard learned counsel for the parties as well as perused the record along with judgments cited at the Bar. 15. This Court observes that Late Brij Lal (father of the appellants/defendants) and plaintiff-Mani Ram (since deceased, represented through his LRs-respondents herein) entered into an agreement for sale of the aforementioned agricultural land on 09.09.1974 for a consideration of Rs.29,000/-, out of which Rs.18,200/-was paid in cash and the remaining amount was paid to the State Government in installments by Mani Ram, by the year 1978. Since Brij Lal expired in the year 1977, plaintiff-Mani Ram approached the legal representatives of Late Brij Lal (the grantee), but they refused to execute the sale deed, while dishonouring the sale agreement in question. Thus, a suit for specific performance of the contract of sale was instituted by plaintiff-Mani Ram before the learned District Court, Sriganganagar; thereafter, the learned Additional District Judge Raisinghnagar, vide the impugned judgment and decree dated 07.08.1987, decreed the suit in favour of the plaintiff and against the appellants/defendants. 16. This Court further observes that the entire controversy revolves around the issue no.5 as framed by the learned Court below, which was, whether Late Brij Lal (father of appellants-defendants) was authorized to sell the land in question, on the basis of the sale agreement in question, or not. It is clear that Section 13 of the Act of 1954 prohibits transfer of land by way of sale without previous consent of State Government or an officer of State Government. 16.1. This Court however, observes that Section 13 of the Act of 1954 only prohibits the execution of a sale deed, and not entering into the sale agreement. In the present case, only an agreement to sale (dated 09.09.1974) took place to be executed at a later date (i.e. 15.11.1978); such execution was stipulated to be made after due deposition of the complete amount towards the allotment of the land in question with the State Government by plaintiff-Mani Ram; whereafter, Brij Lal was to receive the requisite Sanad from the Collector, so as to become Khatedar Tenant of the land in question, as observed by the learned Court below in the impugned judgment and decree. 16.2. Plaintiff-Mani Ram performed his part of the contract, duly depositing the outstanding installments with the State Government; however, after the death of Brij Lal, his legal heirs, who are appellants/defendants herein, refused to honour the agreement in question, thereby, failing to discharge their obligation under the agreement in question. 16.3. This Court further observes that as per the findings recorded by the learned Court below in the impugned judgment and decree, the appellants/defendants did not qualify with regard to the rest of the issues either. It was observed that the sale agreement dated 09.09.1974 was written by one Laxmi Narayan and registration/execution of the same was to be done in the year 1978 (on 15.11.1978) and the actual possession of the land in question was handed over to plaintiff-Mani Ram, immediately after the agreement itself, and that, the respondents (LRs of plaintiff-Mani Ram) are still in possession thereof. 16.4. In furtherance, it was also observed by the learned Court below in the impugned judgment and decree that only oral evidence was given by DW 1 Hanuman (son of Late Brij Lal), who questioned the genuineness of the agreement in question, and no documentary evidence was placed on record to substantiate the same. It was further observed that the remaining amount of consideration (Rs.12,000/-) had also been paid in installments in the Government treasury as part of his (plaintiff-Mani Ram’s) performance of the contract; thus, it was evident that Mani Ram was always willing and ready to perform his part of the contract, which he duly performed. 17. The judgment cited on behalf of the appellants/defendants does not render any assistance to their case. 18. In light of the aforesaid observations, the present petition is dismissed, while upholding the impugned judgment and decree dated 07.08.1987 passed by the learned Additional District & Sessions Judge, Raisinghnagar. All pending applications stand disposed of. The record of the learned court below be sent back forthwith.