Allahabad High Court
Ajay Pal Singh Yadav vs Harendra Kumar And 2 Others on 26 August, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- SECOND APPEAL No. - 331 of 2020 Appellant :- Ajay Pal Singh Yadav Respondent :- Harendra Kumar And 2 Others Counsel for Appellant :- P.C. Mishra,Deepesh Kumar Ojha Counsel for Respondent :- Sushant Misra,Devesh Kumar Verma,Suresh Chandra Verma Hon'ble Vivek Agarwal,J.
Heard Sri P.C. Mishra, learned counsel for the appellant and Sri Devesh Kumar Verma, learned counsel for the respondents.
This appeal has been filed by the plaintiff being aggrieved by judgment and decree dated 11.12.2019/21.12.2019 passed by learned District and Sessions Judge, Farrukhabad in Civil Appeal No. 08 of 2017 (Harendra Kumar and others vs. Ajay Pal Singh Yadav) reversing the judgment and decree dated 09.02.2017 in Original Suit No. 736 of 2012 passed by the Court of Civil Judge (Senior Division), Farrukhabad.
Brief facts leading to the present second appeal are that plaintiff filed a suit for specific performance of the agreement. Plaintiff's case is that on 05.05.2011, he had entered into an agreement for purchase of 1/4th of land contained in survey no. 705 measuring 0.0475 hectares at Mauza Allahnagar @ Badhpur, Pargana Pahada , Tehsil- Sadar, District- Farrukhabad for a total consideration of Rs. 50,000/- (fifty thousand rupees) against which a sum of Rs. 40,000/- (forty thousand rupees) was paid and it was decided that remaining sale consideration of Rs. 10,000/- (ten thousand rupees) will be paid within a period of one year. Plaintiff's case is that though he was always ready and willing to pay the remaining sale consideration, but defendants always kept postponing the matter, as a result of which, plaintiff had sent a notice on 30.04.2012 asking the defendants to remain present in the Office of Sub-Registrar on 05.05.2012 and thereafter again a notice was sent on 30.05.2012 for appearance of the parties before the Office of Sub-Registrar on 20.06.2012, but when defendants failed to execute the sale deed, suit for specific performance was filed and that was decreed in favour of the plaintiffs.
Defendant submits that while decreeing the suit, learned trial court has not taken into consideration a fact that defendants had disputed their signatures and thumb impression on the registered agreement to sale and moreover, the agreement was allegedly obtained by fraud inasmuch as total sale consideration of the land was reflected as Rs. 50,000/- (fifty thousand rupees) against own admission of the plaintiff-appellant that circle rate was Rs. 84,000/- (eighty four thousand rupees) per Are and 1 Are is equal to 100 sq. mts. It is submitted that in fact, the land which formed the subject matter of the agreement was 0.0475 hectares or 4.75 Are. Therefore, as per the circle rate, rate of the land will come out to Rs. 3,99,000/- (three lakhs ninety nine thousand rupees) against which agreement was made only for a sum of Rs. 50,000/- (fifty thousand rupees). This is sufficient to prove fraud on the part of the plaintiffs.
Learned counsel for the appellant places reliance on the judgment of the Supreme Court in case of Nanjappan vs. Ramasamy and others as reported in 2015 All.C.J. 894 and submits that as per Section 92 of the Evidence Act, when there is a written agreement to sell, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument for the purposes of contradicting, varying, adding to or subtracting from terms.
Similarly, reliance has been placed on the judgment of this High Court in case of Jor Singh and Aothers vs. Prabal Pratap Singh as reported in 2013 All.C.J. 823 wherein it has been held that once execution of agreement is admitted, onus lies upon defendant to prove that intention and purpose was not such as was evident from the reading of aforesaid documents.
Reliance has also been placed on the judgment of Allahabad High Court in case of Nardev Singh and Others vs. Mahabir Singh and Anothers as reported in 2006 All.C.J. 1656 wherein it has been held that to determine the readiness and willingness to perform once part of the obligation as per the requirements of Section 16 of the Specific Relief Act, there is no straight jacket formula and they are to be read in between the pleadings and the proof.
Reliance has also been placed on the judgment of Hon'ble Supreme Court in case of Jamila Begum (D) through LRS. vs. Shami Mohd. (D) through LRS. and Another as reported in 2007 All.C.J. 2282 to bring home a point that a registered document carries with it a presumption that it was validly executed. It is submitted that it has been further held that while passing a judgment of reversal, the learned first appellate court has to show the conscious application of mind and record its findings based on the evidence adduced by the parties and the judgment must record the reasons as to why the first appellate court defers from the judgment of the Trial Court.
Reliance has also been placed on the judgment of Hon'ble Supreme Court in case of Biswanath Ghosh (D) through LRS. and Others vs. Gobinda Ghosh @ Gobindha Chandra Ghosh and Others as reported in 2014 All.C.J. 1144 wherein while dealing with the provisions contained in Section 16(c) of the Specific Relief Act, meaning of the words "ready and willing" have been explained. It has held that it is not necessary for the plaintiff to aver his 'readiness and willingness', in the same words used in the section. Absence of the specific words in the plaint would not result in dismissal of the suit, if sufficient facts and evidences are brought on record to satisfy the Court as to the factum of the readiness and willingness to perform his part of the contract.
In this backdrop, it is submitted that this appeal raises an important substantial question of law as to whether the plaintiff-appellant having not averred and prove his readiness and willingness to perform his part of contract can be treated to be so fatal so to discredit him and reverse the judgment and decree of the trial court.
After hearing learned counsel for the parties and going through the record, it is apparent that learned trial court had framed three issues namely:-
(i) Whether plaintiff is entitled to get the sale deed executed on the basis of the registered agreement dated 05.05.2011, as is mentioned in the plaint?
(ii) Whether any cause of action has not accrued in favour of the plaintiff to file a suit?
(iii) Whether plaintiff is entitled to any other relief?
Questions which were framed clearly reveals that aspect of readiness and willingness was not made a subject matter of issue and no issue was framed on it. Similarly, as per the plea of the defendant, aspect of defendant being in inebriated condition due to the influence of the alcohol and were not in a position to understand and appreciate the circumstances under which agreement was executed too has not been adverted to. Similarly, the trial court did not frame any issue in regard to the denial of the defendants that they had not put their thumb impression/signatures on the said agreement to sale. Also the trial court did not frame any issue as to the pleadings that the circle rate of the land was much higher and agreement to sale at 1/4th of the price prevailing in the market at the relevant time smacks of malafide.
Learned first appellate court i.e., the Court of District and Sessions Judge has dealt with these aspects and has clearly recorded a finding that once defendants denied their thumb impression/ signatures on the said agreement to sale, then it was necessary for the plaintiff to have led evidence that the document in question actually bears thumb impression/ signatures of the defendants.
PW1-Ajay Pal Singh, plaintiff on his affidavit, document 23-A, when was subject to cross-examination, admitted that he was not aware as to the valuation of the property in dispute. PW1 makes a mention that sale consideration was paid in presence of PW2- Santosh Gupta, who had accompanied him to the Office of Sub-Registrar. PW-1 also admits that transaction had taken place in the house of the defendants, whereas PW2 did not say that amount was paid in front of him, but on the contrary averred that when deed was produced before the Sub-Registrar, then Harendra Kumar and Mahendra Kumar both admitted receiving Rs. 40,000/- (forty thousand rupees) cash in advance. PW2 has further admitted that he was not aware of the khasra number of the land so also the area and share of the vendor, but had attested the agreement to sale at the instance of Ajay Pal Singh who had called him to Tehsil-Sadar for execution of agreement to sale. Ajay Pal Singh had asked him to attest the agreement to sale as witness and he is not aware as to what was mentioned in the agreement. Thus, there is a major contradiction in the version of PW1 and PW2 as to the passing of the sale consideration.
Besides this, learned first appellate court has categorically noted that agreement was valid up to 04.05.2012 whereas notice was given on 30.04.2012 to appear on 05.05.2012. Second notice was given on 30.05.2012 asking the defendant to appear before the Office of Sub-Registrar on 20.06.2012. Plaintiff filed a document showing his presence before the Sub-Registrar on 05.05.2012, but by that time period of agreement was already over.
There is another important aspect which needs consideration is that judgment in case of Jor Singh (supra) is based on the aspect that once execution of agreement is admitted, then onus lies upon defendant to prove that intention and purpose was not such as was evident from the reading of aforesaid documents. However, in the present case, facts are different, execution of agreement has not been admitted by the defendant and on the contrary defendant has disputed the factum of execution of the agreement denying their thumb impression/ signatures. Therefore, the judgment in case of Jor Singh (supra) is not applicable to the facts and circumstances of the case.
It is true that as per the law laid down by Hon'ble Supreme Court in case of Biswanath Ghosh (supra) and the law laid down by the Allahabad High Court in case of Nardev Singh provides that there is no straight jacket formula to aver readiness and willingness to perform once part of the obligation and it has been held that the courts would be slow to throw out the claim on mere technicality of the pleadings, but at the same time it is necessary to appreciate that conduct of the parties, recital of the sole agreement and respective interest are very relevant as has been held in para-13 of the judgment rendered by Hon'ble Supreme Court in case of Nanjappan vs. Ramasamy (supra).
When pleadings are tested on such touch stone of conduct of parties, recitals of sale agreement and respective interest, it is important to note that in the present case, not only the defendants have denied execution of the agreement, but have also questioned the authenticity of the sale consideration as is mentioned in the agreement to sale. Defendants produced paper no. 17-C and paper no. 18-C that both dated 31.05.2010 and 04.06.2010 respectively to show that the circle rate of 0.0475 hectare was to the tune of 3.424 lakhs and therefore, mentioning of consideration of Rs. 50,000/- (fifty thousand rupees) only in the year 2011 definitely pinches the judicial conscious as to how and under what circumstances such agreement was executed at a throw away price. This very fact coupled with the contradiction of the evidence of PW1 vis-a-vis PW2 wherein PW1 says that sale consideration was transferred in presence of PW2 and on the other hand PW2 has admitted that no sale consideration was paid in front of him, demonstrates conduct of the parties being at variance to the recitals of the sale agreement and respective interest, the first appellate court has rightly relied on the judgment of Allahabad High Court in case of Satish Kumar Rao and Others vs. Gorakhpur University as reported in AIR 1981 Allahabad 377 to hold that fraud has always a secret in its working and it is seldom possible for a party alleging fraud to adduce the direct evidence.
However, aforesaid circumstances being attendant to the facts of the case indicate sufficiently to the conduct of the parties especially to that of the plaintiff and therefore, the findings of the appellate court reversing the judgment and decree, cannot be faulted with. It also does not give rise to any substantial question of law so to warrant admission of this appeal. Therefore, appeal fails and is dismissed.
Order Date :- 26.8.2020 Vikram/-