Rajasthan High Court - Jaipur
Smt.Gulab Devi vs Smt. Narangi Devi on 23 August, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 36/1982
Smt. Gulab Devi W/o Jai Kumar (Deceased)
1. Jai Kumar S/o Ramjeevan, Husband (Deceased)
2. Rajendra Kumar S/o Jai Kumar s/o Smt. Gulab Devi
3. Ashok Kumar S/o Jai Kumar s/o Smt. Gulab Devi
4. Navratan S/o Jai Kumar s/o Smt. Gulab Devi
5. Kumari Manju D/o Jai Kumar d/o Smt. Gulab Devi
All R/o H. No.1545-47, SMS Highway, Jaipur
----Plaintiffs-Appellants
Versus
1. Smt. Narangi Devi (Deceased) represented by her legal heirs
1/1/1. Smt. Prabhati Devi widow of Late Shri Gajju Lal pre-
deceased son of Smt. Narangi Devi
1/1/2. Shankar Lal Laskhari s/o Late Gajju Lal
1/1/3. Suresh Laskari S/o Late Shri Gajju Lal
1/1/4. Ved Prakash Lashkari
All resident of Moti Doongari Road, Jaipur
1/1/5. Smt. Beena D/o Late Shri Gajju Lal W/o Raj Kumar Gupta
R/o Lal Kothi, Tonk Road, Jaipur
1/2. Damodar Lal S/o Phool Chand Lashkari (Deceased)
1/2/1. Hariom S/o Late Shri Damodar Lal Lashkari
1/2/2. Ramkant S/o Late Shri Damodar Lal Lashkari
1/2/3. Banwari S/o Late Shri Damodar Lal Lashkari
1/2/4. Smt. Madhu D/o Late Shri Damodar Lal Lashkari
1/2/5. Dr. Rekha Jain D/o Late Shri Damodar Lal Lashkari
1/2/6. Vijay Gopal S/o Late Shri Damodar Lal Lashkari
(predeceased)
1/2/6/1. Smt. Suman W/o Late Shri Vijay Gopal
1/2/6/2. Vinay Lashkari S/o Late Shri Vijay Gopal
1/2/6/3. Kehsav Lashkari S/o Late Shri Vijay Gopal
1/2/6/4. Smt. Sunanda D/o Late Shri Vijay Gopal
All R/o Bada Akhada, Brahmpuri, Jaipur
1/3. Shyam Sundar S/o Phool Chand Lashkari
R/o Bada Akhada, Brahmpuri, Jaipur (Deceased)
1/3/1. Smt. Parvati Devi W/o Shyam Sundar
1/3/2. Pawan Lashkari S/o Shyam Sundar
1/3/3. Murari Lashkari S/o Shyam Sundar
1/3/4. Manju W/o Dinesh Gupta D/o Shyam Sundar
1/3/5. Meenu W/o Kamal Kishore D/o Shyam Sundar
All R/o Bada Akhada, Brahmpuri, Jaipur, Presently residing at
P.No.304, Janta Colony, Jaipur.
1/4. Shri Kishan Lashkari R/o A-27 (A) Janta Colony, Jaipur
1/5. Smt. Shanti Devi D/o Phool Chand Lashkari (Deceased)
1/5/1. Shri Satya Narain S/o Late Shri Prabhu Narayan Agarwal
R/o Bhoaraji Ka Bhag Lal Kothi Scheme Jaipur
1/6. Smt. Prem Devi W/o Bihari Lal Gupta D/o Phool Chand
Lashkari Jaiv Lal Munshi Ka Rasta, IIIrd crossing Jaipur.
1/7. Smt. Gayatri Devi W/o Shri Kishan Lashkari R/o A-27 A
Janta Colony Jaipur
2. Smt. Sharda Bhargava W/o Sh. Bhagwandas Bhargawa
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(deceased) through her legal heirs and representatives
2/1. Mr. Bharat K Bhargava S/o Sh. Bhagwandas Bhargava,
1070- Dougal Court, Great Falls, VA 22066, USA
2/2. Mr. Ashok Kumar Bhargava S/o Sh. Bhagwandas Bhargava,
393, Charles Drive, Cheshitre CT-06410, USA
2/3. Mr. Harsh V Bhargava S/o Sh. Bhagwandas Bhargava, 6-
Crest Lane, Fan Wood, NJ-07023 USA
2/4. Mr. Vikram Bhargava S/o Sh. Bhagwandas Bhargava, 3675
Aubusson Trace, Alpha Ratta, GA-30202, USA
2/5. Mrs. Shachi Bhargava D/o Sh. Bhagwandas Bhargava, 1623
Blakely Drive, Comwall Ont. 16J515, CANADA
----Defendants-Respondents
For Appellant(s) : Mr. N.K. Maloo Sr. Adv. with
Mr. V.k. Tamoliya
For Respondent(s) : Mr. B.L. Agarwal with
Mr. Akash Gupta
Mr. Praveen Kumar Purohit for
Mr. Rajendra Arora
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
Reserved On: August 02, 2022
Pronounced On: August 23rd, 2022
BY THE COURT
REPORTABLE
1. This first appeal under Section 96 CPC has been filed by plaintiff (now deceased and represented through his legal heirs) against the judgment and decree dated 24.11.1981 passed by the Additional District Judge, Jaipur City, Jaipur in Civil Suit No.192/1980, whereby and whereunder the civil suit for specific performance and declaration, filed by plaintiff has been decided in a manner that an alternative prayer of the plaintiff to declare sale deed of defendant No.1 dated 5.4.1980 as null and void, has been granted to the extent of bukhari but the principle prayer of specific performance seeking directions against defendants No.1 & 2 to sell the two shops in question to the plaintiff on the basis of an (Downloaded on 24/08/2022 at 12:00:04 AM) (3 of 28) [CFA-36/1982] agreement dated 5.7.1969, has been declined and plaintiff's suit for specific performance has been dismissed.
Plaintiff has assailed the judgment and decree dated 24.11.1981, to the extent of dismissing his suit for specific performance and defendant No.1 has submitted cross-objections under Order 41 Rule 22 CPC, challenging the part of decree passed in favour of plaintiff, declaring the sale deed of defendant No.1 as null and void in relation to the bukhari situated on the top of one of the shop in question.
2. The facts of case, leading to the present first appeal and cross-objections, in a nutshell, are as under:-
2.1 Plaintiff instituted present civil suit jointly against defendants No.1 & 2 on 1.5.1980, seeking a decree for specific performance on the basis of an agreement dated 5.7.1969 and for seeking a direction against the defendants to sell and deliver the possession of both the two shops in questions to plaintiff. 2.2 The agreement dated 5.7.1969 is a hand written document and the suit is solely based on condition incorporated in clause 11, of that agreement.
2.3 Plaintiff's case is that defendant No.2 being owner of the haveli and four shops situated at Chowkdi Modikhana, Chaura Rasta, Swai Mansingh Highway, Jaipur entered into an agreement dated 5.7.1969, to sell her haveli except the four shops. Plaintiff himself does not dispute that in pursuance to that agreement, the sale deed dated 6.8.1969 has been executed in his favour for the portion of haveli excluding four shops situated in the ground floor of haveli itself.
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(4 of 28) [CFA-36/1982] 2.4 Plaintiff has pointed out that in clause 11 of agreement dated 5.7.1969, a condition was incorporated in relation to two shops in question to the effect that "whenever defendant No.2 would sell both shops, she will first offer to sell both the shops to the plaintiff on the same cost, which would be offered by another person, because in these shops, stop switch, water meter, nala (नाला) and electric fittings are fixed so plaintiff would face difficulty if shops are sold to others. If the shops are sold to other persons, then plaintiff would have right to initiate legal actions." In hindi the exact words of the aforesaid condition is in following terms:-
"परन्त जब कभभी यह ददोननों दतकाना आपकदो उउसभी की कीम् पर बरचेचूंंग ब भी जदो की कीम् दबउसरा व्यक्ति दर ्ा हदोंगा। कयेचूंकब क इन दतकाननों मा आपका पानभी का स्टॉप व मभी्र, नाला व कबजलभी किक्ेचूंंग हदो रहा है कजउसउसर दबउसरर कदो बरचनर ..आपकदो परर शानभी हदोंगभी। यकद अनय वयक्ति कदो बरचेचूंंग ब भी ्दो आपकदो क़ाानन ब भी कायय वाहभी का हक़ा हदोंगा ।"
2.5 It was stated in the plaint that thereafter defendant No.2 has sold both the shops in question to defendant No.1 vide sale deed dated 5.4.1980, against a sum of Rs.47,000/-, without giving the offer to plaintiff whereas plaintiff was/is ready to purchase both shops on the same price, as paid by defendant No.1, hence defendant No.1 has committed breach of the condition No.11 of the agreement dated 5.7.1969.
2.6 Plaintiff further pleaded that by virtue of condition incorporated in clause 11 of the agreement dated 5.7.1969, the plaintiff has securing his preferential right to purchase both the shops in question and thus plaintiff had acquired a right of pre- emption. It was pleaded that since in the shops in question, water (Downloaded on 24/08/2022 at 12:00:04 AM) (5 of 28) [CFA-36/1982] stop switch & meter, electric fitting are fitted and nala (नाला) of haveli is passing through beneath the floor of shops, therefore, if shops in question are not sold to plaintiff, he would face grave hardship.
2.7 The plaintiff prayed that the sale deed dated 5.4.1980, executed by defendant No.2 in favour of defendant No.1, in relation to both the shops in question, be declared as null and void qua the right of plaintiff and it may be directed that both shops be sold and possession be delivered to plaintiff. 2.8 An alternative prayer was also made by the plaintiff that since defendant No.2 had already sold the bukhari, situated on the top of the roof of one shop in question, to the plaintiff through sale deed dated 6.8.1969, however, defendant No.2 has again sold the bukhari to defendant No.1 vide impugned sale deed dated 5.4.1980, while selling out both the shops, therefore, if the sale deed is not declared null & void as a whole, at least, the sale deed in favour of defendant No.1 be declared as null and void to the extent of bukhari of plaintiff.
2.9 Both defendants No.1 & 2 submitted their separate written statements.
2.10 Defendant No.1, who is purchaser of both the shops in question, pleaded that he is a bona fide purchaser of the shops in question for value without having any notice about such agreement by defendant No.2 in favour of plaintiff, giving a preferential right to purchase the shops in question by the plaintiff. Further defendant No.1 categorically denied any such agreement dated 5.7.1969 between plaintiff and defendant No.2 (Downloaded on 24/08/2022 at 12:00:04 AM) (6 of 28) [CFA-36/1982] and also contended that, if any such agreement was entered into, such preferential right to purchase the shops in question is not enforceable in law. No relief of pre-emption in relation shop can be created by an agreement, which is barred and against the Rajasthan Pre-emption Act, 1966.
2.11 Defendant No.2 specifically did not deny the execution of the agreement dated 5.7.1969, however, categorically denied the condition, said to be incorporated in clause 11 of the agreement dated 5.7.1969 and on which plaintiff has placed reliance and prayed to dismiss the present suit for specific performance. 2.12 Learned trial court framed following issues:-
(I). Whether defendant No.2 entered into agreement dated 5.7.1969 to sell the shops in question to plaintiff? (II). Whether plaintiff is entitled to get the sale of the shops in question by defendant No.2 in his favour? (III). Whether the sale of bukhari by defendant No.2 through sale deed dated 5.4.1980 is null and void? (IV). Relief?
2.13 On behalf of plaintiff, her husband namely Jai Kumar appeared as PW.1 and another witness Gopal Prasad Bhargava, who was scriber of the agreement, appeared as PW.2. In documents, the sale deed of plaintiff dated 6.8.1969, was exhibited as Exhibit 1, the receipt of part of sale consideration was exhibited as Exhibit 2 and the agreement dated 5.7.1969, wherein the condition in question, incorporated in clause 11, was exhibited as Exhibit 3.
2.14 In rebuttal, from the side of defendants, Damodar Lal who is son and power of attorney holder of defendant No.1 and Mr. (Downloaded on 24/08/2022 at 12:00:04 AM) (7 of 28) [CFA-36/1982] Shyam Sundar, who is another son of defendant No.1, appeared and deposed their statements as DW.1 & DW.2.
2.15 Learned trial court, after appreciation of evidence of parties, oral and documentary, concluded that an agreement dated 5.7.1969 (Ex-3) was executed between plaintiff and defendant No.2, before execution of sale deed dated 6.8.1969 to sell the portion of haveli, excluding four shops by defendant No.2 in favour of plaintiff but this agreement suffers with interpolation at several places. Several sentences have been scored off after writing and few sentences have been inserted in smaller letter and with lesser gap between two lines and words. There are no signature or initials of any of the party on such places of interpolation, therefore, the impugned condition, incorporated in clause 11 of the agreement, which is marked as O to P, does not seem to be genuine and it does not appear that such condition was incorporated & agreed between the parties, at the time of execution of the agreement into between plaintiff and defendant No.2. The trial court observed that the condition seems to be inserted later on. Thus, issue No.1 was decided against plaintiff. Learned trial court while deciding issue No.2 observed that the defendant No.1 is bona fide purchaser for value of the shops in question. While deciding issue no.3, trial court recorded a finding that from the map appended with the sale deed of plaintiff dated 6.8.1969, it stands proved that bukhari along with the portion of haveli had been sold by defendant No.2 to the plaintiff, therefore, the sale deed made by defendant No.2 in favour of defendant No.1 dated 5.4.1980 is void to the extent of sale of bukhari again. (Downloaded on 24/08/2022 at 12:00:04 AM)
(8 of 28) [CFA-36/1982] 2.16 As a consequence, the trial court vide judgment dated
24.11.1981 dismissed plaintiff's suit for specific performance but decreed the same to the extent of declaring the sale deed dated 5.4.1980 of defendant No.1 as null and void in relation to the bukhari of plaintiff.
2.17 Against the judgment and decree dated 24.11.1981 passed by the trial court, plaintiff has preferred this first appeal and the defendant No.1 has submitted cross-objections.
3. During course of this first appeal, plaintiff passed away, hence her legal heirs have come on record. Defendant No.1 and 2 also died during course of this first appeal, hence their legal representatives have also come on record.
4. Heard counsel for both parties, perused the impugned judgment and scanned the record.
5. At the outset it may be noted that agreement dated 5.7.1969 (Ex-3) is a hand written document and execution of this agreement between defendant No.2 and plaintiff, is not in dispute. Plaintiff has admitted that pursuant to this agreement, defendant No.2 has executed the sale deed dated 6.8.1969 (Ex-1) in favour of plaintiff and has sold out the portion of her haveli excluding four shops situated at the ground floor of the haveli. It is an admitted fact that as far as two shops in question are concerned, the defendant No.2 has sold and delivered the possession of the both shops in question to defendant No.1 by executing a registered sale deed dated 5.4.1980, against sale consideration of Rs.47,000/-. Plaintiff is claiming a preferential right to purchase both the shops in question on the basis of a condition, incorporated in clause 11 of the agreement dated 5.7.1969, executed between defendant (Downloaded on 24/08/2022 at 12:00:04 AM) (9 of 28) [CFA-36/1982] No. 2 and plaintiff. Defendant No.2 is party no.1 and plaintiff is party no.2, as indicated in the agreement. The defendant No.1 is not party to this agreement. Thus it stands clear that substantially, the prayer of plaintiff for specific performance is based on the condition as incorporated in clause 11 of the agreement dated 5.7.1969.
6. The plaintiff is deriving his preferential right to purchase both the shops in question and claiming his right of pre-emption on both the shops in question on the basis of agreement. It is settled proposition of law that the right of pre-emption does not accrue in relation to the shops being commercial properties. Section 5(a) of the Rajasthan Pre-emption Act, 1966 clearly envisages a provision that right of pre-emption shall not accrue upon the transfer of a shop. Counsel for appellants-plaintiff does not and cannot dispute such proposition of law. Notwithstanding, the counsel for appellants has tried to make a persuasive attempt and argued that the plaintiff is not claiming right of pre-emption under the law of pre-emption i.e. the Rajasthan Pre-emption Act, 1966 but plaintiff's claim of preferential right to purchase the shops in question is basically based on condition No.11 of the agreement dated 5.7.1969 entered into between plaintiff and defendant No.2. Although, as far as the execution of the agreement dated 5.7.1969 by defendant No.2 in favour of plaintiff, same is not in dispute, however, as far as the condition of having agreement to sell the shops in question on priority basis to the plaintiff is concerned, as is additionally inserted in clause 11 of the agreement, the same has been categorically denied and disputed by the defendant No.2 in his written statement. (Downloaded on 24/08/2022 at 12:00:04 AM)
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7. Therefore, in the present case, it is necessary for the plaintiff to establish that such an agreement, as appearing in clause 11 of the agreement dated 5.7.1969, was entered into and if yes, such an agreement is lawful and enforceable in law and further if defendant No.2 has sold out both the shops in question to defendant No.1 through sale deed dated 5.4.1980, in breach of such agreement, the plaintiff is entitled for the decree of declaration against defendant No.1 to declare his sale deed dated 5.4.1980 as null & void and for the decree of specific performance against defendant No.2 to sell both the shops in plaintiff and for seeking relief of the delivery of possession against the defendants.
8. Now in the backdrop of factual matrix, narrated hereinabove, the issues involved in the present case are being discussed and decided, having considered the findings passed by the trial court in the impugned judgment as also after considering the documents and evidence on record.
9. Issues No.(I) & (II):
9.1 The trial court while deciding issue No.1 has categorically recorded a finding, after appreciation of evidence on record that no such condition to have an agreement to sell the shops in question, was entered into between plaintiff and defendant No.2 at the time of execution of agreement dated 5.7.1969. After such finding, it appears that trial court has not discussed about other points, even in a situation if agreement was entered into and what in effect of such agreement on the sale deed of defendant No.1.
as to whether plaintiff is entitled for the specific performance of The trial court discussed the defence taken by defendant No.1, as to whether he is bona fide purchaser of the shops in question for (Downloaded on 24/08/2022 at 12:00:04 AM) (11 of 28) [CFA-36/1982] value without notice and decided the issue in favour of defendant No.1.
9.2 This Court has read the terms & conditions of the hand written agreement dated 5.7.1969 (Ex-3) and also the conditions of the sale deed dated 6.8.1969 (Ex-1), as it is admitted case of plaintiff that sale deed was executed in pursuance of the agreement by the defendant No.2 in favour of plaintiff to sell the portion of haveli excluding all four shops situated in the haveli. During course of arguments, the typed copy of the agreement has been made available by the counsel for appellants. In the agreement, defendant No.2 is referred as party no.1 and plaintiff is referred as party no.2. On perusal of terms and conditions of agreement dated 5.7.1969, it appears that the defendant No.2 agreed to sell her haveli excluding four shops to plaintiff against a total sale consideration of Rs.47,001/-. Out of total agreed sale consideration, Rs.12,000/- were received by defendant No.2 through a separate receipt dated 5.7.1969 (Ex-2) on the date of agreement itself. In clause 4 of the agreement there is a reference of four shops including three big shops and one small shop, situated at ground floor of the haveli, which are not included in the deal of sale. The roofs of shops and houses situated upon the shops, are included in the sale agreement. It appears that one bukhari is constructed above one of the shops, and due to construction of that bukhari, the roof level of that shop has come to lower in level, than the roof of other adjoining three big size shops. The bukhari was included in sale agreement and therefore, in clause 5 of agreement, it is mentioned that whenever defendant No.2 (party No.1 in the agreement) would construct showroom by (Downloaded on 24/08/2022 at 12:00:04 AM) (12 of 28) [CFA-36/1982] joining her shops, the bukhari situated at the top of one small sized shop, due to which its roof level gone down, would be given by plaintiff (party No.2 in the agreement) to defendant No.2, so that she may be able to bring the level of the ceiling of the showroom uniform and in equal level. Thereafter, one condition is also mentioned in clause 5 that if party No.1 i.e. defendant No.2 would sell the shop to another person, he would have no such right and would retain the shop in the same condition. But lines of this condition are crossed and scored off, yet there are readable. 9.3 Clause 11 of the agreement talks about the term for closing, the gate of one another shop, having its opening in the chowk of haveli. Thereafter, in smaller size letters than other letters of the agreement and with a lesser gap of space between two lines, the condition which is disputed in the present matter, is incorporated, additionally in clause 11 of the agreement dated 5.7.1969. This condition is marked as O to P in agreement (Ex.3). 9.4 In next clause 12, there is a condition about the cleaning of the Nala. In case it is blocked due to garbage and this is the same Nala of haveli which is passing through beneath the floor of the shops in question. Clause 13 of the agreement is crossed and has been scored off as a whole but the same is still readable. 9.5 For ready reference, clause 11, clause 12 and clause 13 of the agreement dated 5.7.1969 are being reproduced hereunder:-
"(11) उ्ति हवरलभी मा दतकाना् नेचूं. 2 याकन बभीच की की बडभी दतकान का एक दरवाजा चौक हवरलभी मा खतल्ा हहआ है यह दरवाजा पा्र्टी नेचूं.1 अपनर उसरिा उसर बयनामा उसर पहलर बेचूंद करा दरवरंगभी । चौक हवरलभी उसर दतकाना् का कदोई उसमबेचूंद व उसरदोकार नहहीं रहर ंगा। परन्त जब कभभी यह ददोननों दतकुकाना आपकदो उसभी कीम् पर बाचूंगभी जदो कीम् दूसरुका वयकक्ति दा्ुका हदोगुका। कयनोंकक इन दकत ुकाननों मं आपकुका पुकानभी कुका स्ुकाप व मभी्र, नुकालुका व कबजलभी किक्ंग हदो रहुका है कजसमं दूसरा कदो बाचना आपकदो परा शुकानभी हदोगभी। यकद अनय वयकक्ति (Downloaded on 24/08/2022 at 12:00:04 AM) (13 of 28) [CFA-36/1982] कदो बाचंग ू भी कुकायकवुकाहभी कुका हक़ हदोगुका।
ू भी ्दो आपकदो कुकानन (12) उ्ति हवरलभी मा एक नाला चौक का दतकान कर नभीचर उसर पवब य की की ओर उसडक पर कनकाउस ब बना हहआ है, जदो इउस उसमय उसाि है । यकद पा्र्टी नेचूं. 2 ककउसभी उसमय नाला रूक जानर पर उसाि कराना चाहर ंगभी ्दो उउसकदो अपनर उसरिा उसर उसाि करा उसकरंगभी पा्र्टी नेचूं. 1 कदो ककउसभी प्रकार की की आपकत नहहींहदोंगभी।
(13) इउस हवरलभी कर नभीचर चार दतकाना् है यह दतकानर जब कभभी पा्र्टी नेचूं. 1 िरदोख्् करर ंगभी ्दो उउस उसमय जदो दभींगर व्यक्ति पा्र्टी नेचूं. 1 कदो की कीम् दर वरंगभी और पा्र्टी नेचूं. 2 दबउसरर व्यक्ति कर अनतउसार की कीम् दर नर पर रजामनद हदो जावरंगभी ्दो पा्र्टी नेचूं. 1 दतकाननों कदो पा्र्टी नेचूं. 2 कर हक मा कवकय कर दर ंगभी। पा्र्टी नेचूं. 2 का दतकाना् पर हकउसिा कायम रहर ंगभी। 9.6 The condition in question as incorporated in clause 11 of the agreement (Ex-3) is marked as O to P and it is apparently visible that this condition has been inserted additionally after written of the clause 11, as the size of letters is smaller and gap between the lines is lesser, in comparison to size of other letters & gap between other lines of sentences of the agreement. There is no initials or signature of any party on such additionally inserted sentences. Though there is no initials of either of the parties on the other scored off lines as well. But the possibility of interpolation and tempering with the terms of agreement cannot be ruled out. PW.2, who is scriber of the agreement, states in his evidence that terms of agreement were written by him as dictated by defendant No.2 and her husband namely Bagwandas Bhargava. It is undisputed that clause 13 was scored off after writing the same. The scored off words of clause 13 were about securing the preferential right of plaintiff (party No.2 in agreement) to purchase the unsold four shops, in case defendant No.2 (party No.1 in agreement) would ever sell those shops in future to any (Downloaded on 24/08/2022 at 12:00:04 AM) (14 of 28) [CFA-36/1982] other person. This seems to be unjustified and unreasonable that the specific terms regarding giving a preferential right in favour of plaintiff to sell the four shops by defendant No.2, as was mentioned in clause 13 of the agreement, was clearly crossed and scored off, nevertheless, same condition was incorporated additionally in clause 11 in relation to two shops in question. Undisputedly, there is no signature or initials of any party to the scored off lines and to the additionally inserted lines. Such additional incorporation of the condition in relation to two shops, when the specific condition, agreeing to sell the shops as mentioned in clause 13 was scored off, seems to be suspicious and unjustified. There is no explanation as to why if any such additional sentences were incorporated with the consent of parties and such a substantive term of agreement was additionally written, the signature or initials were not put on such addition and alteration? The trial court also disbelieved on the execution of such condition with consent of both parties and the probabilities to incorporate such a condition later on, cannot be ruled out. The manner in which the condition is incorporated, does not inspire confidence and on the basis of the principle of preponderance of probabilities, findings of the trial court cannot be held to be unjustified rather seems to be just and proper, as also one of possible views.
9.7 Although, counsel for appellants-plaintiffs has tried to persuade this Court that since there is no initial or signature of any parties on other places of agreement also where written terms of agreement have been crossed or some additional or alterations have been made, therefore, merely on the count of having no (Downloaded on 24/08/2022 at 12:00:04 AM) (15 of 28) [CFA-36/1982] initials over the additionally inserted terms of condition in clause 11 of the agreement, the same may not be doubted and may not be treated as unagreed term of the agreement, more so when the execution of the agreement is not in dispute. Learned counsel for appellants-plaintiffs has further stressed that an adverse inference be drawn against defendant No.2, who has neither appeared in witness box nor her husband namely Bagwandas Bhargava, who is one of the signatory of the agreement as witness, has appeared. 9.8 This Court finds that burden to prove the condition as additionally incorporated in clause 11 of the agreement is upon the plaintiff. The suit for plaintiff for specific performance is based on only such condition. Thus, as per Section 101 of the Evidence Act, burden of proof lies on the person who asserts the fact. The basic rule of Section 101 of the Evidence Act is inflexible. Plaintiff namely Gulab Devi, in whose favour such an agreement was executed herself has not appeared to depose her evidence and to clear the picture about the condition of agreement in question. Only plaintiff's husband Mr. Jai Kumar appeared as PW.1, but his signatures are not available on the agreement. Therefore, evidence of PW.1 Jai Kumar giving explanation about the insertion of such an important condition of agreement and for some others, which are scored off, and some are additionally inserted, is not trust worthy and cannot be relied upon. There is no explanation and plausible justification as to why signature of parties on insertion of such an important agreement, in clause 11 of the agreement was additionally written, has not made. Initials on other scored off sentences or words are visible in the original agreement. As far as statement of PW.2 Gopal Prasad Bhargava, (Downloaded on 24/08/2022 at 12:00:04 AM) (16 of 28) [CFA-36/1982] who is scriber of the agreement, admits that the condition in clause 11 of the agreement marked as O to P was incorporated after execution of the agreement but PW.2 has not given any creditable explanation of having no initials on the inserted additional sentences in clause 11, that in smaller size of letter and O to P additionally added conditions were written in the bottom of the page 3 and continue on the top of the next page unnumbered. More so when at other places where words or sentences have been crossed after writing, initials are visible in the agreement. This seems to be unnatural & specious.
9.9 PW.1 & PW.2 also admits that the sale deed (Ex-1) was executed in accordance with and in pursuance to the terms of agreement (Ex-3). When the conditions mentioned in the sale deed dated 6.8.1969 (Ex-1) are examined, it appears that all other conditions of the agreement as mentioned in clause 3, clause 4, clause 5, clause 12 and clause 14 are in consonance and congruity as they have been referred in the sale deed as well. But there is no reference of the condition as alleged to be additionally incorporated in clause 11 of the agreement, in the sale deed. Rather in the sale deed it is specifically stated that the four shops situated in haveli are not included in the sale and plaintiff would have no concern and relation with the shops in haveli. Such recital in the sale deed, is wholly contrary to the condition as alleged to be additionally incorporated in clause 11 of the agreement, rather same is in-confirmity to the conditions of clause 13 of the agreement, which were undisputedly written but later on were crossed and scored off. If the condition as appearing and has been incorporated in clause 11 of the agreement, would have been (Downloaded on 24/08/2022 at 12:00:04 AM) (17 of 28) [CFA-36/1982] treated as an agreed and operative condition for future, obviously same could have been incorporated in the sale deed also, like all other conditions of the agreement which were incorporated. Plaintiff has not clarified this incoherence between the condition no.11 in agreement & sale deed and his evidence is wholly silent about this aspect of the matter. Therefore, when plaintiff's evidence lacks and is insufficient to prove the condition as alleged to be incorporated in clause 11 of the agreement, same cannot be treated as proved as an agreed term of condition merely by drawing an adverse inference due to non-appearance of defendant No.2 or her husband.
9.10 Even if, for a moment, it is assumed for the sake of argument that any such condition was agreed and incorporated in the agreement dated 5.7.1969 (Ex-3) between plaintiff and defendant No.2, then also such condition does not give any right to plaintiff for seeking decree of specific performance. By bare perusal of condition in question, it appears that this term of the agreement only gives a right of pre-emption to plaintiff which is otherwise not available in law for commercial premises of shops in haveli. The counsel for appellants has referred the judgment of Hon'ble the Supreme Court delivered in case of Shri Shivji Vs. Shri Raghunath (Dead) By L.Rs [AIR (1997) SC 1917] following the principle of law settled in case of Rambaran Prosad vs Ram Mohit Hazra & Ors [AIR (1967) SC 744]. In that judgment, Hon'ble the Supreme Court held that the agreement which creates a preemptive right to purchase any property of agricultural land of co-owner in favour of another co-owner, is enforceable in law and does not operate against rule of perpetuity. (Downloaded on 24/08/2022 at 12:00:04 AM)
(18 of 28) [CFA-36/1982] In that case, firstly agreement was entered into between two co- owners in relation to the agricultural lands and secondly such right was prayed to be enforced before creation of third party rights. Whereas the facts of present case are all together different. In the present case, agreement creating the right of pre-emption is in relation to shops, which is specifically denied under Section 5(a) of the Rajasthan Pre-emption Act, 1966, so agreement itself is in conflict with the statutory provision of law and further shops have already been sold by defendant No.2 to defendant No.1 and possession has also been delivered through registered sale deed dated 5.4.1980 for a consideration. It is settled proposition of law that right of pre-emption is not a right to re-purchase but only is a right to seek substitution in place of purchasers in the sale deed. This proposition of law was expounded by Hon'ble the Supreme Court in case of Bishan Singh Vs. Khazan Singh [AIR (1958) SC 838] followed in Tilak Raj Bakshi Vs. Avinash Chand Sharma [(2020) 15 SCC 605] has held as under:
"11. The plaintiff is bound to show not only that his right is as good as that of the vendee but that it is superior to that of the vendee. Decided cases have recognized that this superior right must subsist at the time the pre-emptor exercises his right and that that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee courts have not looked upon this right with great favour, presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore, permitted to avoid accrual of the right of pre-emption by all lawful means. The vendee may defeat the right by selling the property to a rival pre-emptor with preferential or equal right. To summarise: (1) The right of pre-emption is not a right to the thing sold but a right to (Downloaded on 24/08/2022 at 12:00:04 AM) (19 of 28) [CFA-36/1982] the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place."
For the reason explained hereinabove, there is no disagreement to the ratio decendi expounded by Hon'ble the Supreme Court in case of Shri Shivji (Supra) relied upon by appellants, but same does not apply to the facts of present case and does not render any support to the case of plaintiff where agreement itself is neither proved nor stands congruous to the statutory provision of law.
9.11 Apart from above reason, there are other multiple reasons for denial of the decree for specific performance in favour of plaintiff, even if, for sake of argument, the condition in question was accepted to be incorporated in clause 11 of the agreement dated 5.7.1969 (Ex.3) and is assumed to be entered into between plaintiff and defendant No.2.
9.11.1 The proposition of law with regard to the issue of specific performance is well clear that the jurisdiction of Court to pass the decree for specific performance is discretionary and the Court is not bound to grant such a relief of specific performance merely because it is lawful to do so. It is settled that discretion (Downloaded on 24/08/2022 at 12:00:04 AM) (20 of 28) [CFA-36/1982] must be exercised in accordance with sound and reasonable judicial principles but since the remedy for specific performance is an equitable remedy, it is necessary to consider the balance of interest of the parties and how the equity between parties can be maintained, in order to avoid hardship to the parties. Hon'ble the Supreme Court in case of Sardar Singh Vs. Krishna Devi [(1994) 4 SCC 18] & followed in case of Nanjappan Vs. Ramasamy and Ors. [(2015) 14 SCC 341] held as under:
"14. The next question is whether the courts below were justified in decreeing the suit for specific performance. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract."
The reference of judgment of Hon'ble Supreme Court in case of Zarina Siddiqui Vs A.Ramalingam @ R.Amarnathan [2015 (1) SCC 705] may also be given to multiply the aforesaid principle of law. It is also settled that a vague, specious and unclear agreement is not liable to be specifically enforceable for specific performance. Section 14 of the Specific Relief Act, 1963, prescribes the nature of contracts which cannot be specifically enforced as referred in case of Vimlesh Kumari Kulshrestha Vs Sambhajirao And Anr. [2008 (5) SCC 58].
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(21 of 28) [CFA-36/1982] 9.11.2 On examination of terms of the alleged condition
incorporated in clause 11 of the agreement (although the condition of the agreement itself is not found proved), this Court finds that it is admitted case of the plaintiff that after execution of the agreement dated 5.7.1969 (Ex.3), a sale deed dated 6.8.1969 (Ex.1) has been executed in pursuance thereof by defendant No.2 in favour of plaintiff for the haveli excluding the shops in the haveli. Obviously, the terms and conditions incorporated in the agreement, have been superseded by the terms and conditions mentioned in the sale deed. In the sale deed, defendant No.2 did not mention any such condition in favour of plaintiff securing her right or to have a preferential right of purchase of the shops in haveli. Rather a contrary recital is mentioned in the sale deed that plaintiff would not have any relation or concern and any right with the shops in haveli. Thus, the alleged condition, if was incorporated in clause 11 of the agreement, stands superseded by conditions mentioned in the sale deed.
9.11.3 The contents of the agreement in question only gives a right to initiate legal action by plaintiff, if defendant No.2 would sell the shops in question to another person. Here Section 14(b) of the Specific Relief Act, 1963, comes in application to the facts of present case. The legal action by plaintiff may not be construed only for the purpose of specific performance but it can be construed for other purpose also. The case of plaintiff is because stop switch, water meter & electric fitting are fitted in the shops, and one nala of haveli is passing through the shops to plaintiff, he would suffer trouble. Hence the plaintiff could have/would have initiated legal actions to ensure the right to use the stop switch, (Downloaded on 24/08/2022 at 12:00:04 AM) (22 of 28) [CFA-36/1982] water meter and electric fitting or for shifting over the same to another place. This alternative remedy & relief is available to plaintiff other than for seeking specific performance of purchasing the shops. Plaintiff, obviously could have resorted to other alternative remedies for continuous use of the water meter, stop switch and electric fittings, fitted in the shops in question even after the sale of the shops in question by defendant No.2 to defendant No.1. In relation to the Nala, which is passing through beneath the floor of the shops in question, there is clear recital in the sale deed itself that in case of blockage of the nala, the plaintiff would have right to clean the same.
9.11.4 Further, it may be noted that it is not the case of plaintiff that she has given any token amount or any consideration to defendant No.2, to keep alive this condition, incorporated in clause 11 of the agreement, even after execution of the sale deed in pursuance thereof.
9.11.5 It may not be held that any equity stands in favour of plaintiff and she would suffer any undue hardship, if the specific performance is not granted. Now about more than 40 years have passed, in such circumstances, there is no case of plaintiff for granting a decree for specific performance in his favour to sell the shops in question on the basis of alleged agreement in question, which is otherwise disputed & specious.
9.12 The right of plaintiff to claim specific performance can be examined in other way also. Plaintiff is claiming that the sale deed for the shops in question executed by defendant No.2, in favour of defendant No.1 be declared as null and void and same is executed in breach of condition no.11 of agreement. Whereas defendant (Downloaded on 24/08/2022 at 12:00:04 AM) (23 of 28) [CFA-36/1982] No.1 is defending her sale deed on the plea that she is bona fide purchaser for value without notice about the alleged condition as incorporated in clause 11 of the agreement between plaintiff and defendant No.2. Counsel for appellants submits that burden lies upon defendant No.1 to prove that she is a bona fide purchaser. In support, reference of the judgments of Hon'ble the Supreme Court in cases of AIR 1963 SC 1150 & AIR 1972 SC 1520 have been given. It has been argued that defendant No.1 should have made an inquiry about the agreement, as in evidence DW.1 and DW.2 they admit to have knowledge about the agreement dated 5.7.1969. This Court is of opinion that there is no disagreement to the proposition of law that the burden to prove that transferee is a bona fide purchaser in good faith, lies upon the transferee. It is a settled law that the person, who pleads a fact should proved that fact. In the present case, it is not in dispute that sale of the shop in question by defendant No.2 to defendant No.1 through sale deed dated 5.4.1980 is lawful and valid as also for value and possession has also been delivered to defendant No.1. The issue is only about as to whether defendant No.1 had any knowledge about the condition, incorporated in clause 11 of the agreement in question. Defendant No.1 nowhere admits that she had any knowledge about the agreement dated 5.7.1969. There is no reference of this agreement in the sale deed dated 6.8.1969. If the sale deed executed by defendant No.2 dated 6.8.1969 is examined, it appears that there is only a reference of receiving a sum of Rs.12,000/- on 5.7.1969, out of total sale consideration of Rs.47,001/-. A receipt dated 5.7.1969 (Ex.2) is available on record. The statements of DW.1 and DW2, having knowledge of (Downloaded on 24/08/2022 at 12:00:04 AM) (24 of 28) [CFA-36/1982] the agreement dated 5.7.1969, cannot be connected with the date of sale deed of defendant No.1 dated 6.8.1969. DW.1 and DW.2 deposed their evidence, after laying the claim by plaintiff on the basis of alleged agreement dated 5.7.1969 (Ex.3) so they adduced their evidence in rebuttal. This is not in dispute that defendant No.1 purchased the shops in question for value through registered sale deed. From the evidence of defendant No.1, her plea of being purchaser of the shops in question in good faith and without any notice about the alleged agreement, is proved. There is no counter evidence from the side of plaintiff. Legal position is well clear that bona fide purchaser is protected under Section 19(b) of the Specific Relief Act as referred by Hon'ble the Supreme Court in case of Padmakumari and Ors. Vs. Dasayyan And Ors. [(2015) 8 SCC 695]. It may be noticed here that when plaintiff has miserably failed to prove the condition of clause 11 of the agreement, there is no requirement to consider and deal with this defence, however, the trial court dealt with this defence of defendant No.1 and decided in her favour. The findings given by the trial court in this regard are in accordance with law and based on appreciation of evidence. Hence, there is no reason to interfere with such findings.
Thus as a result, this Court is not inclined to interfere with the findings of the trial court passed on issues No.1 & 2 and same are affirmed.
10. Issue No.(III):-
10.1 As far as this issue is concerned, same has already been held in favour of plaintiff and for the bukhari, the sale deed dated 5.4.1980, executed by defendant No.2 in favour of defendant No.1 (Downloaded on 24/08/2022 at 12:00:04 AM) (25 of 28) [CFA-36/1982] has already been declared as null and void. Defendant No.1 has submitted cross-objections. His contention is that in the sale deed dated 6.8.1969 (Ex-1), the details of bukhari are not mentioned and in the certified copy of map appended with sale deed (Ex-A-
2), the bukhari is not included in the property, which is sold out to plaintiff. In relation to another certified copy of map (Ex-1/1) and the original map (Ex.C) called by the Court, where bukhari is shown as yellow colour and included in sold out property, defendant No.1 submits that the same is manipulation by the plaintiff. But the DW.1 himself admits that bukhari is in possession of plaintiff. The map appended with the original sale deed, which is marked as Exhibit C, was summoned by the trial court wherein bukhari is shown with yellow colour with the property of haveli under sale and there is no evidence to infer that in the original record of Sub-Registrar, any manipulation has been done by plaintiff to include the bukhari with the purchased portion of haveli and the bukhari was shown by yellow colour later on. In Prem Singh Vs. Birbal [(2006) 5 SCC 353], Hon'ble the Supreme court held that there is presumption about genuineness of registered instrument.
10.2 Further, plaintiff-appellant has also moved an application under Order 41 Rule 27 CPC dated 28.03.2011. Along with the application one certified copy of the map appended with the sale deed dated 6.8.1969, which was filed by defendant No.1 himself, in another Civil Suit No.2/2007 titled as Jai Kumar Vs. Dyal Das, has been produced on record. In the certified copy of map, the bukhari is shown in yellow colour with properties of haveli purchased by plaintiff through sale deed dated 6.8.1969 (Ex.1). (Downloaded on 24/08/2022 at 12:00:04 AM)
(26 of 28) [CFA-36/1982] This map is inseparable part of sale deed dated 6.08.1969. The High Court on filing of such application passed an order dated 1.11.2011 that the application shall be heard at the time of final disposal of the appeal. Neither any reply to the application has been filed by respondents nor any doubt about the certified copy of the map, which is part and parcel of the sale deed dated 6.8.1969, has been pointed out nor this has been disputed by the counsel for respondent No.1. It is stated from the side of appellants in the additional affidavit dated 8.12.2011 filed in support of application under Order 41 Rule 27 CPC that the defendant No.1 produced this map appended with sale deed in Civil Suit No.2/2007 titled as Jai Kumar Vs. Dayal Dal, on 11.10.2007. In that suit, this map was exhibited as Exhibit 2-A. Thereafter, plaintiff obtained certified copy of the map from the file of civil Suit No.2/2007 and produced the same in this first appeal along with an application dated 28.03.2011 under Order 41 Rule 27 CPC. Thus, this document was not available with the appellant during course of trial of suit and suit had been decided on 24.11.1981. The additional document is certified copy of the map and same has been issued from the judicial record. The document is undoubtedly relevant to issue No.3 in relation to the bukhari, hence the same is taken on record. Hon'ble the Supreme Court in case of Wadi Vs Amilal And Ors. [2015 (1) SCC 677] has held that if an additional document produced before the trial court under Order 41 Rule 27 CPC throw a light on the germane issue, then in the interest of justice, same can be taken on record and considered.
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(27 of 28) [CFA-36/1982] For the reasons mentioned hereinabove, the application filed under Order 41 Rule 27 CPC, is allowed.
10.3 Although, this additional document, i.e. certified copy of map appended with sale deed dated 6.8.1969 just corroborates and is supportive evidence and even on the basis of evidence adduced during course of trial, it is established that the bukhari has already been sold by defendant No.2 to plaintiff at the time of execution of the sale deed dated 6.8.1969 (Ex.1). Trial court summoned the original record of Sub-Registrar. In the original map (Ex.C), on the record of Sub-Registrar, the bukhari is included in the sold property and in the map bukhari is shown by yellow colour with the portion of haveli. There is no reason to doubt about such credential evidence, therefore, it is well clear that defendant No.2 has sold bukhari to the plaintiff, which executing the sale deed dated 6.8.1969 to sell the haveli. Thus, which further stands fortified by additional evidence. Respondents have not denied that the certified copy of map was not produced by them in Civil Suit No.2/2007. Defendant No.2 had no authority to sell the bukhari again to defendant No.1, while executing the sale deed dated 5.4.1980. Undisputedly, bukhari is in possession of plaintiff as admitted by DW.1.
10.4 In view of discussion made hereinabove, the sale of bukhari again by defendant No.2 in favour of defendant No.1, while executing the sale deed dated 5.4.1980, stands void and the trial court has not committed any error of fact and law in declaring the sale deed of defendant No.1 dated 5.4.1980 as null and void in relation to the bukhari, which has already been purchased by plaintiff and is already in possession of plaintiff. As a result, the (Downloaded on 24/08/2022 at 12:00:04 AM) (28 of 28) [CFA-36/1982] cross-objections submitted by defendant No.1 are devoid of merits and dismissed. The findings in relation to issue No.3 passed by the trial court, are affirmed.
11. The upshot of discussion is that, the first appeal preferred by plaintiffs and the cross-objection submitted by respondent- defendant No.1, are devoid of merits and liable to be dismissed and are hereby dismissed. The judgment and decree dated 24.11.1981 passed by the trial court is affirmed. The decree be framed accordingly.
12. There is no order as to costs.
13. All other pending application(s), if any, also stand(s) disposed of.
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