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2023 DIGILAW 220 (JHR)

Ambika Devi v. Sita Devi

2023-02-22

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Sanjay Kumar Dwivedi, J. Heard Mr. Kundan Kumar Ambastha, learned counsel for the appellant and Mr. Pandey Neeraj Rai, learned counsel for respondent no. 11. 2. This second appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 12.09.2012 (decree signed on 22.09.2012) passed by the learned District and Additional Sessions Judge III, Ranchi allowing the Title Appeal No. 75 of 2007 with modification and setting aside the judgment and decree dated 11.05.2007 (decree signed on 25.05.2007) passed by the learned Sub-Judge-VI, Ranchi in Title Suit No. 68 of 1991. 3. Title Suit No. 68 of 1991 was instituted by the appellant/plaintiff seeking relief against all defendants that a decree for specific performance of agreement dated 17.09.1990 be passed in favour of the appellant/plaintiff and against the defendants and the defendants be directed to execute the registered deed of sale with respect to the property in suit within a time to be fixed by the court failing which the same may be executed and registered in favour of the appellant/plaintiff through the process of the court. The said suit was dismissed on contest vide judgment dated 11.05.2007. Aggrieved with that judgment, the appellant/plaintiff has preferred Title Appeal No. 75 of 2007, which was decided vide judgment dated 12.09.2012 and the learned appellate court found that the appellant/plaintiff has been fully able to prove her case in her favour, but since the property in question has been sold to the defendant no. 3 by defendant no. 2 through registered deed after receiving the entire consideration amount and it has been proved that defendant no. 3 is bonafide purchaser and she is on the possession of the suit property, so the appellant/plaintiff is only entitle for refund of the entire consideration amount along with Rs. 7,000/- for stamp paper with interest @ 6% per annum from the institution of the suit till the realization. The appellate court further held that the substituted defendant no. 1(A) to 1(E) are jointly liable to pay the entire amount of Rs. 47,000/- with interest as stated in the judgment within three months from the date of that order, failing which, the appellant/plaintiff is at liberty to realize the amount through the process of the court and the learned appellate court set aside the judgment of the learned trial court with modification and the appeal was allowed. 47,000/- with interest as stated in the judgment within three months from the date of that order, failing which, the appellant/plaintiff is at liberty to realize the amount through the process of the court and the learned appellate court set aside the judgment of the learned trial court with modification and the appeal was allowed. Aggrieved with that judgment, the appellant/plaintiff has filed this second appeal. 4. The appellant/plaintiff instituted the said title suit stating therein that the defendant no. 1 being the owner of the suit property has executed a registered agreement for sell dated 17.09.1990 in favour of the plaintiff with respect to 5 kathas of land out of R.S. Plot no. 552 of Khata No. 37 situated at village - Gari, P.S. Sadar, Thana No. 194, District - Ranchi more fully described in the schedule of the plaint for a consideration of Rs. 8,000/- only per katha and in pursuance of the agreement the defendant no. 1 received a sum of Rs. 20,000/- only as advance from the plaintiff on the date of execution and registration of the said agreement itself. It was further stated that according to the terms of the agreement the defendant no. 1 was required to execute and register the deed of sale in favour of the plaintiff within a period of three months from the date of execution and registration of the agreement after obtaining necessary permission from the competent authority i.e. Urban Land Ceiling and Regulation Act, 1976. The defendant no. 1 received a further advance of Rs. 20,000/- from the plaintiff on 26.10.1990 and made an endorsement on the back of the certified copy of the registered agreement aforesaid and thus the defendant no. 1 received the entire consideration money amounting to Rs. 40,000/- from the plaintiff and defendant no. 1 promised to execute and registered the deed of sale after obtaining necessary permission of the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 but despite the repeated request made by the plaintiff defendant no. 1 did not take care to seek permission of the competent authority and to execute and get the registered deed of sale in favour of the plaintiff in pursuance to said agreement. It was also stated that the defendant no. 1 persuaded the plaintiff to pay a sum of Rs. 1 did not take care to seek permission of the competent authority and to execute and get the registered deed of sale in favour of the plaintiff in pursuance to said agreement. It was also stated that the defendant no. 1 persuaded the plaintiff to pay a sum of Rs. 7,000/- for the purpose of purchase of non judicial stamp paper for getting the deed of sale executed and registered after obtaining permission of the competent authority and to meet the necessary registration fees and other expenses of registration and the plaintiff believing on the representation of defendant no. 1 paid a sum of Rs. 7,000/- only on 11.12.1990 and defendant no. 1 made an endorsement on back of the certified copy of the registered agreement to this effect. Despite the above facts the defendant no. 1 neither took any steps for the grant of the permission of the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 nor executed and registered the deed of sale in favour of the plaintiff though the plaintiff was and is always willing and ready to purchase the property as per agreement. It was also stated that the plaintiff has learnt that defendant no. 2 with connivance of defendant no. 1 has sold the suit property in favour of defendant no. 3 by virtue of a registered deed of sale dated 04.10.1990 though the defendant no. 2 and 3 had full knowledge and notice of the plaintiff's agreement of sale of the suit property. The plaintiff has also learnt that in the said registered deed of sale the defendant no. 2 has falsely described the suit property being comprised within holding no. 2228/I within ward no. VII although there is no holding with respect to the aforementioned land. Moreover the said holding stands in the name of a different person namely Sri Babu Lal Mahto. It is apparent that the defendant no. 1 with ulterior motive and malafide designed and with a view to defeat the agreement in collusion and connivance with defendant no. 2 and defendant no. 3, the defendant no. 1 has cheated and deceived the plaintiff and extracted the sum of Rs. 47,000/- only hence all the defendants are equally bound under the agreement aforesaid as the contents of the agreement are within the knowledge and notice of all the defendants. 2 and defendant no. 3, the defendant no. 1 has cheated and deceived the plaintiff and extracted the sum of Rs. 47,000/- only hence all the defendants are equally bound under the agreement aforesaid as the contents of the agreement are within the knowledge and notice of all the defendants. The conduct of the defendants have clearly established and proved that their intention is to cheat the plaintiff and the defendant no. 1 is not willing and ready to perform his part of the contract and thus they have violated the terms of the agreement. Accordingly, the plaintiff gave an advocate's notice through registered post with A/D to the defendant no. 1 on 11.03.1991 which has been sent on 12.03.1991 which was duly received by the defendant no. 1 on 22.03.1991 and the same notice on the other postal address of the defendant no. 1 at village-Bandhgari, District - Ranchi was also sent to the defendant no. 1 on 23.03.1991 through registered post requesting him to execute and registered the deed of sale in his favour within a period of one month from the date of receipt of the notice. Despite service of the notice the defendant did not take step to get the permission from the competent authority and also failed to execute and registered the deed of sale in favour of the plaintiff. It was also stated that the plaintiff was always ready and willing and is still ready and willing to perform his part of the agreement and to get the deed of sale executed and registered in her favour but the defendant no. 1 has failed to perform his part under agreement though he has received more than the entire consideration money. The cause of action for the suit arose on 17.09.1990 when the defendant no. 1 executed the agreement for sale of the property in suit and on various date on which the plaintiff requested the defendant no. 1 for execution and registration of the deed of sale and on 26.10.1990 when the defendant no. 1 received further advance amounting to Rs. 20,000/- and Rs. 7,000/- for the purpose of purchase of non judicial stamp papers and on the date when the plaintiff gave advocate's notice by registered post to defendant no. 1 and on expiry of the period for non complying the request of the plaintiff by the defendants. 5. The defendant no. 1 received further advance amounting to Rs. 20,000/- and Rs. 7,000/- for the purpose of purchase of non judicial stamp papers and on the date when the plaintiff gave advocate's notice by registered post to defendant no. 1 and on expiry of the period for non complying the request of the plaintiff by the defendants. 5. The defendant no. 3 appeared in the suit and filed written statement stating therein that the suit is not maintainable and is liable to be dismissed as it is barred by law of limitation, waiver and acquiescence. The suit is also bad for mis-joinder and non-joinder of the necessary parties. There is no cause of action for the suit and the plaint is false and fabricated for the purpose of the suit. It was also stated that the suit is not maintainable for specific performance of contract against the persons who are not bound by any such contract or agreement and who are not the parties to the same and hence the suit is liable to be dismissed so far the defendant no. 3 is concerned. It was also stated that the suit is collusive and the plaintiff with the defendant no. 1 has managed to file the present suit for declaration of the title of the defendant no. 1 in the garb of the suit for specific performance and by cheating a false and forged document purported to the agreement for sale for which the defendant no. 1 has got neither any right nor title or possession with respect to the property concerned therein as per agreement between them for valid consideration paid to the defendant no. 2 subsequent to which alienation by the registered deed of sale dated 04.10.1990 was made and since then defendant no. 3 is coming in possession of the same by paying the rent and taxes for the same. It was also stated that the entire document alleged to be an agreement for sale is collusive and executed without any valid right and title. 3 is coming in possession of the same by paying the rent and taxes for the same. It was also stated that the entire document alleged to be an agreement for sale is collusive and executed without any valid right and title. The payment of entire consideration money is also false and so far the statement that the permission under provision of the Urban Land Ceiling Regulation Act, 1976 was required to be obtained was also false as from the alleged agreement it is clear that the suit property is not the vacant land but consist of house and hence no permission is required for transfer of any such property. It was also stated that that nobody will pay the entire consideration money of the land which will not be put in possession of the purchaser and without drafting of deed no purchaser will pay the cost of stamp and other expenditure to any such seller who is avoiding to execute the sale deed and the allegation of making endorsement on 11.12.1990 on the payment of Rs. 7,000/- in the agreement separately is also unbelievable and denied. It was further stated that there was neither any notice of the alleged agreement nor there was any necessity or occasion as the defendant no. 1 was or is neither the owner of the suit property nor has got any right to execute any such agreement to sale the suit property and as such this defendant is not bound by such illegal and false agreement. 6. The defendant no. 2 has also appeared in the suit and filed his written statement separately denying the entire contents of the plaint and has stated that the suit is not maintainable for specific performance of contract who are not bound by such contract or agreement and who are not the parties to the same and hence the suit is liable to be dismissed. It was also stated that suit is collusive and is of result of collusion of the plaintiff with the defendant no. 1 who has filed the suit for declaration of title of the defendant no. 1 in the garb of suit for specific performance of contract by creating a false document purported to be an agreement. It was also stated that suit is collusive and is of result of collusion of the plaintiff with the defendant no. 1 who has filed the suit for declaration of title of the defendant no. 1 in the garb of suit for specific performance of contract by creating a false document purported to be an agreement. It was further stated that the suit is not maintainable as the agreement in question is no longer in existence by virtue of the execution of deed of cancellation dated 31.12.1990 which has been executed by the defendant no. 1 and registered on 31.12.1990 being deed no. 12548 dated 31.12.1990 by which the registered agreement of sale executed in favour of the plaintiff has been cancelled by stating that the plaintiff fail to perform the commitments of the agreement during the stipulated time made therein. It was also stated that the allegation of making payment of entire consideration money is false and not liable to be believed and the suit property is not the vacant land rather it consist of house hence no permission is required for transfer of any such property. It was also stated that the alleged agreement is false and fabricated and collusive and the question of execution of false deed does not arise by the defendant no. 1 who has got no right to make any such sale rather the plaintiff was knowing from the very beginning that the suit property is exclusively belong to this defendant and this defendant is going to transfer the suit land to the defendant no. 3 and in order to put obstruction the defendant no. 1 first of all tried to stop the said transaction by this defendant no. 2 in favour of the defendant no. 3 and having failed to achieve evil intention has managed to create the present agreement for sale concerning in the suit in collusion with the plaintiff. It was further stated that there was neither any notice of the alleged agreement nor there was any necessity or occasion as the defendant no. 1 was or is neither the owner of the suit property nor has got any right to execute any such agreement to sale the same and even there was any notice, thus this defendant was not bound by such illegal and false agreement. 1 was or is neither the owner of the suit property nor has got any right to execute any such agreement to sale the same and even there was any notice, thus this defendant was not bound by such illegal and false agreement. It was also stated that suit plot consist of house and within the municipal area and as such previously the holding number which was allotted to the said plot is in the name of Sri Babu Lal Mahto and others who are nobody else but co-sharers of the said plot which was subsequently divided among themselves and out of which portion of the same being the suit property was allotted to this defendant exclusively by mentioning that the suit property is a part of the holding allotted to the entire plot earlier the deed has been registered. It was also stated that the defendant no. 1 has got no title or right to execute any such agreement or contract to sale the land which exclusively belongs to this defendant and as such the plaintiff is not entitle for any decree or any relief as prayed for. 7. The defendant no. 1 has also appeared in the suit and filed his written statement admitting the entire contents of the plaint. He has stated that he is the sole exclusive owner by virtue of memorandum of partition dated 15.05.1990 of the suit property which has been allotted to him by his father Bisheshwar Mahto and he is in possession over the same. He has admitted that he entered into an agreement of sale with respect to suit property with the plaintiff vide registered agreement dated 17.09.1990 and the defendant has received the entire consideration money as stated by the plaintiff. He also admitted that he has received a sum of Rs. 7,000/- only as cost of stamp for registration of the sale deed on 11.12.1990 and the defendant no. 2 has no right, title or interest over the suit land and thus any deed of sale executed by him to the defendant no. 3 is totally invalid under the law and the defendant no. 3 has not acquired any interest over the same. It was also stated that this defendant is still willing and ready to sale the property in suit in favour of the plaintiff and the defendant no. 3 is totally invalid under the law and the defendant no. 3 has not acquired any interest over the same. It was also stated that this defendant is still willing and ready to sale the property in suit in favour of the plaintiff and the defendant no. 2 has no right to sale the suit lands in favour of the defendant no. 3 as such the suit of the plaintiff may be decreed in his favour. 8. In the aforesaid background, the learned trial court as well as the appellate court held, which has been recorded herein above. 9. Mr. Ambastha, learned counsel appearing for the appellant submits that the learned appellate court has committed error of law in granting a decree for realization of the amount of advance worth Rs. 40,000/- i.e. the entire consideration money paid by the appellant/plaintiff to the original defendant no. 1 Falindra Gope besides a sum of Rs. 7,000/- paid by the appellant/plaintiff to the said Falindra Gope with interest @ 6% per annum from the date of institution of the suit till realization instead of granting a decree for specific performance of agreement dated 17.09.1990 in favour of the appellant/plaintiff. He further elaborates his argument by way of submitting that Falindra Gope had executed registered agreement for sale of the suit land to the appellant/plaintiff on 17.09.1990 and had received the entire consideration money amounting to Rs. 40,000/- besides a sum of Rs. 7,000/- for meeting necessary expenses towards registration of the sale deed and the appellant/plaintiff was all along ready and willing to get the deed of sale executed and registered in her favour and the learned appellate court has committed error of law in not granting a decree for specific performance of the agreement. He further submits that both the learned courts have failed to appreciate the evidence led on behalf of the appellant/plaintiff and in that view of the matter, there is substantial question of law and this second appeal may kindly be admitted. 10. On the other hand, Mr. Rai, learned counsel appearing for respondent no. 11 submits that respondent no. 11 is purchaser of the land in question and she was not party in the agreement and that is why the learned trial court has held that the suit is not maintainable under Section 19(b) of the Specific Relief Act, 1963. 10. On the other hand, Mr. Rai, learned counsel appearing for respondent no. 11 submits that respondent no. 11 is purchaser of the land in question and she was not party in the agreement and that is why the learned trial court has held that the suit is not maintainable under Section 19(b) of the Specific Relief Act, 1963. He submits that there is no illegality in the judgment of the learned trial court. He further submits that considering this aspect of the matter, the learned appellate court has also held that respondent no. 11 has purchased the land in question bonafidely and no relief can be extended to the appellant/plaintiff, however the learned appellate court has been pleased to grant some relief by way of granting refund of the entire consideration amount along with Rs. 7,000/- for stamp paper with interest @ 6% per annum from the institution of the suit till the realization in favour of the appellant/plaintiff by substituted defendant nos. 1(A) to 1(E). He also submits that there is no illegality in the judgment of the learned appellate court. Apart from that, there is no perversity also and there is no substantial question of law involved in this second appeal and this second appeal may be dismissed. 11. In view of the above submissions of the learned counsel appearing for the parties, the Court has gone through the judgments of the learned trial court as well as the appellate court and finds that the learned trial court has framed 9 issues to decide the suit. Issue nos. (v) and (vi) were with regard to specific performance of agreement and about the terms of the agreement for sale and while deciding these issues, the learned trial court found that it is the admitted case of the plaintiff and overwhelmingly evident from Ext.5, which is the registered agreement that it was only defendant no. 1-Falindra Gope and plaintiff who have entered the agreement and if it is so, the learned trial court held that the agreement entered into between the plaintiff and defendant no. 1 cannot create any legal responsibility, liability or obligation upon defendant nos. 2 and 3 to discharge anything out of that contract because defendant nos. 2 and 3 are totally stranger to the said agreement. 1 cannot create any legal responsibility, liability or obligation upon defendant nos. 2 and 3 to discharge anything out of that contract because defendant nos. 2 and 3 are totally stranger to the said agreement. The learned trial court has further gone into the documents and provisions under the Specific Relief Act and held that defendant nos. 2 and 3 are not party to the agreement and that is why the said issues were decided against the appellant/plaintiff. 12. Aggrieved with the judgment of the learned trial court, the appellant/plaintiff preferred the said title appeal. The learned appellate court while deciding issue nos. 5 and 6 found that in view of general rule, Specific Performance of a Contract/agreement can only be obtained if it can be found to be capable of mutual enforcement i.e. at the time it was entered into, it could have been enforced by either party to it against the other. Section 19(b) of the said Act lays down that a contract may be specifically enforced against either party thereto and not against a stranger and in the case in hand, defendant no. 2 and defendant no. 3 are not the party to the agreement, so they are not bound by the said agreement and that is why, that issue has been decided by the learned appellate court against the appellant/plaintiff. Thus, both the courts have given concurrent finding on the issue that defendant no. 2 and defendant no. 3 were not party to the agreement. While deciding issue no. 4, the learned appellate court has held that the suit is hit by Section 34 of the Specific Relief Act and that was also decided against the appellant/plaintiff. While deciding issue no. 7, the learned appellate court held that defendant no. 3 is the bonafide purchaser and she has no knowledge about execution of the agreement and after purchase of the land, she is in possession of the land in question and it has been further held by the learned appellate court that defendant no. 3 was not bound by the agreement executed by defendant no. 1 in favour of the appellant/plaintiff and that issue was also decided against the appellant/plaintiff. While deciding issue no. 3 was not bound by the agreement executed by defendant no. 1 in favour of the appellant/plaintiff and that issue was also decided against the appellant/plaintiff. While deciding issue no. 8, the learned appellate court has considered the agreement (Ext.5) and after discussing the law points under the said Act, held that the appellant/plaintiff is entitled for refund of entire consideration amount along with Rs. 7,000/- for stamp paper with interest and, accordingly, the appeal was allowed with certain modification. Thus, this Court finds that the learned trial court as well as the appellate court, which are two fact finding courts, have concurrently held that defendant no. 2 and defendant no. 3 are not party to the agreement and defendant no. 3 is the bonafide purchaser. Moreover in the suit, alternative prayer was not made and merely title has been prayed, which is barred under Section 34 of the Specific Relief Act and in this regard, a reference may be made to the judgment passed by the Hon'ble Supreme Court in Union of India v. Ibrahim Uddin; [ (2012) 8 SCC 148 ]. Paragraphs 55 to 57 of the said judgment are quoted herein below: “55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so. 56. In Ram Saran v. Ganga Devi [ (1973) 2 SCC 60 : AIR 1972 SC 2685 ] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 (hereinafter called “the Specific Relief Act”) and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC 129 : AIR 1993 SC 957 ] this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [ (2011) 4 SCC 567 : (2011) 2 SCC (Civ) 366].) 57. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [ (2011) 4 SCC 567 : (2011) 2 SCC (Civ) 366].) 57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.” 13. In view of the above facts, reasons and analysis, this Court comes to the conclusion that there is no perversity in the judgments of the learned trial court as well as the appellate court particularly considering that no substantial question of law is involved in this second appeal. This Court is not required to interfere with the judgments of two fact finding courts sitting under Section 100 of the Code of Civil Procedure. 14. Accordingly, this second appeal is dismissed. 15. Consequently, I.A. No. 450 of 2016 is also dismissed.