Patna High Court
Phullan Mian And Ors. vs Jogendra Ram And Anr. on 8 August, 2006
Equivalent citations: AIR2006PAT183, AIR 2006 PATNA 183, 2007 (2) AIR JHAR R 34, 2007 A I H C 376, (2006) 3 PAT LJR 526
Author: Syed Md. Mahfooz Alam
Bench: Syed Md. Mahfooz Alam
JUDGMENT Syed Md. Mahfooz Alam, J.
1. This second appeal has been preferred by the appellant Phullan Mian and others (defendant - second set in the suit) against the judgment dated 31st August 1988 and decree dated 5.9.1988 passed by the 1st Additional District Judge, West Champaran, Bettiah in Title Appeal No. 22 of 1985/31 of 1988 where by he has been pleased to dismiss the appeal of the defendant-second set and confirmed the finding of the learned Munsiff, Bettiah passed in Title Suit No. 31 of 1984 decreeing the suit of the plaintiff-respondent far specific performance of contract.
2. The case of the plaintiff-respondent, in brief, is that on 28.1.1984 defendant No. 1 Rita Devi entered into a contract for sale, of land measuring an area of 5 kathas 6 dhurs situated in village Motihari fully described in Schedule I of the plaint with the plaintiff for which total consideration was fixed at Rs.3000/-. Towards part performance of the contract the plaintiff-respondent paid Rs. 1500/- as earnest money and accordingly, a Mahadanama was executed by the defendant-first party who agreed to execute the. sale deed latest by 15.3.1984 after receiving the rest consideration amount. After execution of Mahadanama the. plaintiff was put in possession of the land which was the subject matter of sale. Further case of the plaintiff is that the plaintiff has always been requesting the defendant No. 1 to receive rest consideration money and execute the sale deed but on one pretext or the other she remained avoiding to execute the sale deed. Thereafter the plaintiff sent a registered notice to defendant No. 1 on 5,3.1984 which was duly served upon the defendant No. 1, who sent: reply dated 13.3.84 of the notice. From the reading of the reply it was disclosed that defendant second party had fraudulently got a sale deed executed in their favour on 22.2.1984 from the defendant No. 1 for the land which was agreed to be sold to the plaintiff under the Mahadanama. The plaintiff also came to know that the sale deed was brought in existence without payment of consideration money. It is further stated that the defendant-second party had full knowledge, about the Mahadanama executed by defendant No. 1 in favour of the plaintiff and as such, the subsequent sale deed executed in - favour of the defendant-second party by defendant No. 1 was illegal, inoperative and not binding upon the plaintiff. It. is further said that the plaintiff was always ready and willing to perform his part of the contract and was ready to pay the balance consideration money but as the defendant-first party was avoiding to execute the sale deed hence, the? necessity of filing the suit for specific performance of contract arose.
3. Defendant first party as well as Defendant second party both filed separate written statements. From perusal of the written statement filed by defenant first party it appears that defendant No. 1 Rita Devi is not the contesting defendant rather she has fully supported the case of the plaintiff and has admitted that she had executed the agreement of sale prior to execution of the sale deed in favour of the defendants second party. She. has alleged that, the defendants second party on false pretext had fraudulently got the sale deed registered in their favour by putting undue pressure and without making payment of consideration money. However, she has stated at para-1 of written statement that the present suit is not maintainable, against her as she never refused to perform the part of her contract and she has further stated that she is ready to execute the sale deed in favour of the plaintiff.
4. The case of the contesting defendants i.e. defendant second party is that the suit as framed is not maintainable as the same has been filed for declaration of title and recovery of possession under the garb of the suit for specific performance of contact and hence, the same cannot proceed without paying proper court-fee. It is further alleged that the suit is barred under the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, It has been stated that the plaintiff and defendant No. 1 both in collusion have brought a collusive and antedated Mahadanama in existence for avoiding the sale deed executed in favour of the defendant second party by defendant first party. The story of execution of Mahadanama and payment of earnest money and also the story of putting the plaintiff over the suit land are all false, concocted and fabricated story, The real fact is that the defendant second set (appellants) are bonafide purchasers of the land after making payment of the entire consideration money and they are coming in possession over the suit land since the date of purchase, The defendant No. 1 has no right to execute the Mahadanama in question and therefore, the plaintiff is not entitled to claim any relief and his suit is liable to be dismissed.
5. From perusal of the judgment of the trial court, if appears that during the trial altogether seven issues were framed for consideration which are as follows:
(i) Is the suit as framed maintainable ?
(ii) Has the plaintiff got any cause of action or right to sue ?
(iii) Whether the Mahada in question is legal, valid and for consideration or it is collusive and antedated ?
(iv) Whether defendant 2nd party had knowledge of Mahada in question ?
(v) Whether sale deeds alleged to have been executed by Rita Devi in favour of defendant 2nd party are fraudulent ?
(vi) Is the plaintiff entitled to get the relief's as prayed for ?
(vii) To what other relief or relief's, if any, the plaintiff is entitled ?
6. It further transpires that the trial court discussed issue nos. 3, 4 and 5 simultaneously and after making full discussion the trial court arrived at the finding that the Mahadanama in question is legal, valid and Eor consideration and defendant second party had knowledge about the Mahadanama in question. However, the trial court held that the sale deeds of defendant second party were not proved to be fraudulent. It further transpires that on the basis of the above findings, the trial court decreed the suit of the plaintiff for specific performance of contract ex parte against defendant No. 1 and on contest against the defendants second party. Against the said judgment and decree, the defendants second party preferred appeal i.e. Title Appeal No. 22 of 1985 / 31 of 1983 which was heard by 1st Additional District Judge, West Champaran, Bettiah, who by his judgment dated 31st August, 1988 dismissed the appeal. Then the defendants second party, being aggrieved by the said judgment has preferred this second appeal.
7. From perusal of the record of this second appeal it appears that at the time of admission of this second appeal, two substantial questions of law were formulated which are as follows:
(i) Whether the courts below were right in decreeing the suit for specific performance of the contract without holding that the plaintiff was able to prove that he was prepared to perform his part of the contract; that necessary evidence in this regard was led, and the courts below accepted this contention of the counsel of the plaintiffs and gave a finding to that effect ?
(ii) Whether the findings of the learned trial court that the sale deeds ( Ext. A series) were valid and genuine can be reversed by the learned lower appellate court without filing the cross-appeal. ?
During the hearing of this second appeal, two more substantial questions of law were formulated which are as follows:
(iii) When defendant No. 1 did not deny to enforce the alleged agreement to sale the courts below erred in law in not holding that the plaintiff has got no cause of action ?
(iv) Whether the findings of the courts below are perverse due to collusive nature of the alleged agreement for sale and collusive nature of the "suit ?
SUBSTANTIAL QUESTIONS OF LAW NOS. (I) & (III)
8. Both the substantial questions of law are inter-related, as such they are being taken up together for discussion, It has been submitted by the learned Advocate of the appellants that for granting relief for specific performance of contract, it is necessary for the court to ascertain that the plaintiff has specifically pleaded in the plaint that he was always ready and willing to perform his part of the contract and that he has proved this fact by adducing necessary evidence in this regard, But the courts below without being satisfied that the plaintiff has been able to prove this fact that he was always ready and willing to perform his part of the contract, have passed decree of specific performance of contract and the judgments of both the courts below are perverse. He has further argued that as per the pleading of defendant No. 1, the defendant No. 1 had never denied to execute the sale deed rather she had always shown her readiness to abide by the terms of the agreement, as such, there was no occasion for the plaintiff to file a suit to enforce the alleged agreement and so, the cause of action as mentioned in the plaint, is imaginary. In order to appreciate the argument advanced on behalf of the plaintiff, I would like to quote certain paragraphs from the plaint as well as from the written statement filed on behalf of the defendant No. 1.
9. At para-1 of the plaint, the plaintiff has asserted that: the defendant No. 1 agreed and entered into a contract for sale of her lands measuring 5 kathas 6 dhurs fully detailed in Schedule No. 1 of the plaint in favour of the plaintiff for a total consideration of Rs.3000/- In pursuance of the. contract, the defendant No. 1 received Rs. 1500/- as earnest money from the plaintiff and executed a Mahadnama for sale on 22.1.1984 in favour of the plaintiff and put the plaintiff in possession over the land. At para-2 of the plaint, the plaintiff has asserted that the defendant first party promised to execute a registered sale deed in favour of the plaintiff latest by 15th March, 1984. At para-3 of the. plaint, the plaintiff has asserted that since, the date of the contract, the plaintiff was always ready and willing to pay the consideration money and to obtain the sale deed. At para-4 of the plaint, the plaintiff has asserted that. ,'he came on requesting the defendant No. 1 to receive the rest consideration money and to execute the sale deed but the defendant No. 1 came on avoiding the same on one or the other pretext. Ultimately, the plaintiff served the legal notice dated 5th March, 1984 upon the defendant No. 1 through his lawyer Sri Syed Aftab Hussain by a registered post. At para-7 of the plaint, the plaintiff has asserted that the cause of action for the suit arose on 28.1.1984, the date of Mahada, secondly on 10,3.1984 the date of the receipt of the legal notice and on 20.3.1984 the receipt of the reply dated 13.3.1984 sent on behalf of the defendant-first party.
10. The learned Advocate of the appellants by quoting the above paragraphs from the plaint submitted that that in the entire plaint, not a single date has been mentioned on which date the plaintiff had told the defendant No. 1 that he was ready and willing to fulfil his part of contract and asked her to execute the sale-deed but the defendant No. 1 refused to fulfil her part of the contract. He has further argued that in the suit the plaintiff has been examined as P.W. 5 but his deposition will show that even before the court he did not mention any date on which date he told the defendant No. 1 that he was ready to fulfil his part of contract and asked her to execute the sale deed but the defendant No. 1 refused to execute the sale deed. The learned Advocate submitted that the evidence of P.W.5 (plaintiff) further establishes that whenever the plaintiff asked the defendant No. 1 to execute the sale deed she always should her willingness and readiness to execute the sale deed (para-5 of the deposition of P.W. 5) but even thereafter the plaintiff did not ask the defendant No. 1 to go to the Registry Office for execution of the sale deed. The learned Advocate of the appellants submitted that these facts establish beyond doubt that the statement of the plaintiff at paragraphs 3 and 6 of the plaint that he was always ready and willing to perform his part of the contract, was false and does not stand proved from the evidence adduced on behalf of the plaintiff.
11. It is settled principle of law that for establishing the case of the specific performance of contract, it is essential to state and prove that the plaintiff was always ready and willing to perform his part of the contract. Mere insertion of the averments in the plaint that the plaintiff was always ready and willing to perform his part of the contract is not sufficient to decree the suit for the specific performance of contract but this statement must be proved by convincing evidence either oral or documentary.
12. Section 16 of the Specific Relief Act, 1963 (hereinafter to be called as "the Act") imposes bar in granting relief for specific performance of contract if certain facts are not proved. Sub-section (c) of Section 16 of the Act is relevant in this case which runs as follows:
Specific performance of a contract cannot be enforced in favour of a person - (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or -waived by the defendant.
13. Thus, Section 16 of the Act referred above, specifically says that in order to obtain decree for specific performance of contract, the plaintiff has to aver as well as to prove that he has performed or has always been ready and willing to perform the essential terms of the contract and if it is found that the plaintiff has failed to prove by cogent evidence that he has performed and/or has always been ready and willing to perform the essential terms of the contract, he will not be entitled for decree of specific performance of contract. In this regard, I place reliance upon the decision of the Apex Court in the case of Jugraj Singh and Anr. petitioners v. Labh Singh and Ors. respondents reported in AIR 1995 Supreme Court 945. Paragraph 3 of the said decision which is relevant in this case runs as follows ;-
Section 16 (c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff's part of the contract.
14. Let me see - whether the finding of the court below that the plaintiff is entitled for decree of specific performance, of contract is in accordance with law or whether the evidence on record with regard to the willingness and readiness of the plaintiff to perform his part of the contract was lacking as provided under Section 16 (c) of the Act.
15. It has been argued by the learned Advocate of respondent, that the plaintiff-respondent has succeeded in proving his case for specific performance of contract as inspite of service of Pleader's notice, the defendant No. 1 did not comply the notice and so the plaintiff's case stands on similar with the case of Pandurang Ganpat Tanawade, appellant v. Ganpat Bairu Kadam and Ors. respondents and he is entitled for decree of specific performance of contract.
16. From perusal of the record of the trial court it: appears that before the trial court altogether six witnesses were examined on behalf of the plaintiff, namely, Narsigh Ram (P.W. 1), Jagat Ram (P.W. 2), Birendra Prasad (P.W. 3), Satan Ram (P.W. 4), Yogendra Ram (P.W. 5) and Kari Raut (P.W. 6). I have gone through the depositions of the above-mentioned witnesses from perusal of which I find that none of the plaintiff's witnesses except the. plaintiff himself (P.W. 5), has deposed on oath that he (Sic) was always ready and willing to perform his part of the contract. I. would like to refer his evidence in this regard. At para 5 of his deposition, the plaintiff has deposed that after the execution of Mnhada he was ready to pay the rest consideration money and to get the sale deed registered and even today he is ready to get the sale deed registered. He has further deposed in the same para that he asked Rita Devi to get the sale deed registered and she also promised to execute, the sale deed. The above referred evidence of P.W.5 shows that on the one hand P.W. 5 has not given any date on which date he had asked the defendant No. 1 to execute the sale deed, on the other hand not. a single witness on behalf of the plaintiff including the husband of Rita Devi has supported this fact on oath that the plaintiff had ever asked Rita Devi (defendant No. 1) to go to the registry office and execute the sale deed. Moreover, his evidence further shows that Rita Devi (defendant No. 1) never refused to execute the sale deed rather she always showed her readiness to execute the sale deed (P.W.5 at para-5). This fact further finds support from the reply notice given by the defendant No. 1 of the. notice sent by the plaintiff. This reply notice of defendant No. 1 has been marked Ext.2 on behalf of the plaintiff. It is dated 13.3.1984. From perusal of the reply notice it appears that at para-3 of the reply notice, Sri Syed Aftab Hussain, Advocate of defendant no, 1 has stated like this "That my client is ready to execute, the sale deed in favour of your client if he likes." The sentence "if he likes" appearing in the notice is very important as para-7 of the plaint establishes that this reply notice was received by the plaintiff on 20.3.1983. There is nothing on record to show that after receipt of the reply notice the plaintiff told the defendant No. 1 that he was ready and willing to perform his part of the contract and asked her to perform her part of the contract by executing the sale deed. It appears that there is a gap of two days in between the receipt of the notice and filing of the suit and the plaintiff could have easily utilised these two days in getting the sale deed registered because the defendant No. 1 was also ready to execute the sale deed but neither in the plaint nor in the evidence of the plaintiff there is any assertion that even after receipt of the reply notice the plaintiff had asked the defendant No. 1 to execute the sale deed. This goes to prove that the plaintiff was not interested in getting the sale deed registered and his averment that he was always ready and willing to perform his part of the contract was false and imaginary. My view also finds support from the written statement filed on behalf of the defendant No. 1 . At para-7 of the written statement, the defendant No. 1 has stated like this, "That the defendant has already replied the notice dated 5.3.1984 served by the. plaintiff which will also indicate that this defendant has never acted or intended to act against the terms of the contract." It is the admitted position that the reply notice was received by the. plaintiff on 20.3.1984 i.e. two days prior to filing of the suit and therefore, when the plaintiff was in know of the fact that the defendant No. 1 is ready to execute the sale deed, why he did not approach defendant No. 1 to get the sale deed executed and what was the necessity of filing the suit, for specific, performance of contract so hurriedly remained unexplained. This circumstance establishes that the very purpose of filing of the suit was something different and the plaintiff's assertion regarding the readiness and willingness to perform his part of the contract was merely a device. to give color to the genuineness of alleged agreement for sale. Thus, from the. facts stated above it is clear that the facts and circumstances of the case discussed in the decision referred above (AIR 1997 Supreme Court. Page 463) are different from the facts of this case and as such, the said decision does not apply in this case, I therefore, hold that from the scrutiny of evidence available on record it is established that the necessary evidence to prove this fact that the plaintiff was always ready and willing to perform his part of the contract was lacking and the plaintiff has failed to prove the necessary requirements for obtaining decree of specific performance of contract. I, therefore, hold -that the courts below have committed grave error in decreeing the suit for specific performance of the contract.
17. It. has been argued by the learned Advocate of the appellants that as per the written statement of defendant No. 1 Rita Devi and the averments made in the reply notice (Ext.2), she has stated that she was always ready and willing to perform her part of the contract and that she had got no objection in executing the sale deed in favour of the plaintiff hence under such circumstance there was no occasion for the plaintiff to seek indulgence of the Court by filing suit for specific performance of contract which goes to show that "the cause of action for filing of the. suit was' imaginary and actually the plaintiff had no cause of action for filing the suit. As against this argument, the submission of the learned Advocate of the respondents was that as after receipt of reply notice sent, by defendant no, 1 , the plaintiff came to know that the defendants second party have obtained, fraudulent and illegal sale deeds in their favour on 22.2.1984 by putting undue pressure upon the defendant No. 1 with respect to the suit land without paying any consideration money and so to avoid those illegal sale deeds, the plaintiff has to file this suit for specific performance of contract. To counter this argument of the learned Advocate of the plaintiff-respondent it was argued by the learned Advocate of the appellants that in a suit for specific performance of contract, the plaintiff cannot challenge the validity of the sale deeds executed by defendant No. 1 in favour of defendants second party and, therefore, the contention of the plaintiff's Advocate that the plaintiff had to file the suit for specific performance of contract because of the existence of the sale deeds executed in favour of the defendant second party by the defendant No. 1 is not in accordance with law as the validity of other documents cannot be questioned in a suit for specific performance of contract, and the plaintiff was also aware of this legal position and that is why, the plaintiff did not seek any relief for declaration that the sale deeds executed by defendant No. 1 in favour of the defendant second party be declared illegal and void (SIC) The learned Advocate of the appellants submitted that in view of the above facts the contention of the learned Advocate of the respondents that the plaintiff filed this suit for specific performance of contract due to the fact that some illegal sale deeds in favour of the defendant second set were brought into existence seems to be not acceptable and this is also not acceptable because of the fact that the executant of the sale deeds, namely, Rita Devi (defendant No. 1) never filed any civil suit for declaration that the sale deeds executed by her in favour of the defendant second set were fraudulent, without consideration and were brought into existence by playing fraud upon her by defendants second party. The argument of the "learned Advocate of the appellant appears to be in accordance with law. I am of the view that the defendant No. 1 Rita Devi was the only competent person to challenge the validity of the sale deeds executed by. her in favour of the defendant second set but the record of the lower court shows that she neither filed any civil suit nor any criminal case against the defendant second set for fraudulently getting the sale deeds registered in their favour. Not only this but after filing of the written statement she did not come forward to support her case as made out in her written statement. This goes to show that she was not prepared to depose in court that the sale deeds executed by her in favour of the defendants second set were fraudulent, and without consideration. Thus, I am of the view that the argument of the learned Advocate of the appellants that this suit was filed only because of the fact that some illegal documents were brought into existence by defendants second set is not at all appealing. I am further of the view that defendant No. 1 was the only competent person to file, suit for declaration that the sale deeds executed by her in favour of the default Second set we're fraudulent and without consideration. Thus, I find and hold that when the defendant No. 1 did not deny to execute the sale deeds on the basis of the alleged agreement for sale, the plaintiff had no cause of action-to file the suit for specific performance of contract. Section 4 of the Specific Relief Act says that specific relief is to be granted only for enforcing individual civil right but when the pleading itself shows that cause of action, as alleged by the plaintiff, is imaginary, no question of granting decree for specific relief for enforcing any individual civil right arises. I, therefore, hold that both the courts below have committed grave error of law in decreeing the suit of the plaintiff for specific performance of contract when the plaintiff has failed to prove that he had got any cause of action for instituting the suit. Accordingly, these substantial questions of law are decided . Substantial Questions of Law Nos. (ii) & (iv)
18. It has been argued by the learned Advocate of the appellants that the findings of the courts below are perverse as the courts below have failed to consider this fact that the suit was of collusive nature and the plaintiff as well as defendant No. 1 were in collusion with each other,
19. Let me see - whether the suit filed by the plaintiff was of collusive nature. According to the case of the plaintiff-respondent, on 28.1.1984, the defendant No. 1 Rita Devi entered into a contract for sale of the land measuring an area of 5 kathas 6 dhurs situated in village Motihari fully described in Schedule 1 of the plaint with the plaintiff for which total consideration money was fixed at Rs.3000/-. Towards part performance of the contract, the plaintiff paid Rs.1500/- as earnest money and accordingly, a Mahadnama was executed by the defendant first party who agreed to execute the sale deeds latest by 15.3.1984 after receiving rest consideration money. Further case of the plaintiff is that in terms of Mahada, he was put in possession of the land in question. His further case is that he was always requesting the defendant No. 1 to receive rest consideration money and execute the sale deeds but on one pretext or the other, she remained avoiding to execute the sale deeds and then the plaintiff sent a notice to defendant No. 1 asking her to fulfil her part of contract who she sent reply of the notice through which the plaintiff came to know that the defendant second party had fraudulently got the sale deeds executed in their favour from the defendant No. 1 on 22.2.1984. According to the averments in the plaint, the sale deeds executed in favour of the defendant second set by the defendant No. 1 are illegal, inoperative and not binding upon the plaintiff and as the plaintiff was always ready and willing to perform his part of the contract and was to pay balance consideration money but as the defendant first party was avoiding to execute the sale deeds, hence necessity of filing of the suit arose. From perusal of the written statement filed by the defendant first party Rita Devi, it appears that the defendant first party Rita Devi has not controverter any averments of the plaintiff made in the plaint rather she had accepted the entire averments made by the plaintiff in the plaint. She has accepted that on 28,1,1984 she had executed an agreement for sale in favour of the plaintiff No. 1 and had received Rs.1500/- towards part consideration money. She has also accepted that according to the Mahadanama, the sale deed was to be executed latest by 15,3.1984 after-receiving rest consideration money. She has asserted that she was always ready to execute the sale deed and even on the day of filing of the written statement, she was ready to execute the sale deed in favour of the plaintiff with respect to the land mentioned in the agreement for sale. However, she has stated in her written statement that on 22. 2.1984 defendant second party had fraudulently got the sale deeds executed in their favour with respect to the land mentioned in the deed of agreement without payment of any consideration money to the defendant No. 1. Thus, the pleading of the defendant No. 1 shows that she has admitted the entire case of the plaintiff as made out in the plaint and, therefore, there was no controversy between the plaintiff and defendant No. 1 to be decided in this case which goes to prove that the suit was of collusive nature. Since there was no controversial point between the plaintiff and the defendant No. 1, as such there was nothing for the trial court to decide in the suit. I am of the view that the suit for specific performance of contract could have easily been decided by the. court on the basis of the admission of the defendant No. 1 as there was no controversial point between the plaintiff and the defendant No. 1. Whatever controversy was it was between the defendant No. 1 and defendant second set and the controversy was - whether the sale deeds executed by defendant No. 1 in favour of defendant second set were fraudulent, and without consideration, I am of the view that: this controversy cannot be decided in the suit for specific performance of contract which goes to prove that the suit for specific performance of contract was brought in collusion with the defendant No. 1 to avoid sale deeds of the defendant second party.
20. The collusive nature of the suit is also established from the fact that although written statement has been filed on behalf of the defendant No. 1 Rita Devi but she has not come forward to depose in the suit, however her husband, Satan Ram, has come forward to depose in the suit on behalf of the plaintiff. The record of the trial court shows that he has been examined as P.W. 4 on behalf of the plaintiff and his deposition shows that he has fully supported the case of the plaintiff. In his evidence he has admitted this fact that his wife Rita Devi had executed the deed of agreement for sale (Ext. 1) in favour of the plaintiff and he was a witness of the deed. He has also admitted this fact that after the execution of the agreement for sale, the defendant second party had got the sale deeds executed in their favour which are illegal. This witness has been cross-examined at length and para-7 of his cross-examination entirely demolishes his evidence that the sale deeds of the defendant second set were illegal. At para-7 of his cross-examination he has deposed that at the time of execution of the sale deeds by his wife in favour of the defendant second set, he was present at Narkatiyaganj where the sale deeds were scribed. He has further deposed that at that time Jagat Ram, Narsigh Ram and Yogendra Ram were also present besides him. He has further deposed that his wife had executed the sale deeds with her free will. He has further deposed that he had put his signature on the said sale deeds as witness besides Narsingh Ram. He has further deposed that his wife had put her L.T.I on the Chirkut and at that time he had not raised any objection regarding non-payment of consideration amount. Thus, the evidence of P.W. 4, who is none else than the husband of the defendant No. 1 shows that although he has fully supported the case of the plaintiff that his wife had executed the deed of agreement for sale in favour of the plaintiff and that the sale deeds executed by his wife in favour of the defendant second party are illegal documents but para-7 of his cross-examination establishes that the sale deeds which were executed by defendant No. 1 in favour of the defendant second sot were legal and valid documents and he was a witness on all the sale deeds. Besides that Chirkut were also handed over to the defendants second party by defendant No. 1 in his presence. Thus, the evidence of P.W. 4, who is the solitary witness on the point of execution of the sale deeds of the defendant second party fully demolishes the case of the plaintiff made out in the plaint that the sale deeds were brought into existence by playing fraud upon the defendant No. 1, It is true that this witness has deposed that consideration amount of the sale deeds was not paid to the defendant. No. 1 but I am of the view that he is not. competent to challenge this fact that consideration amount was not paid to the defendant No. 1 by defendants second set as defendant No. 1 has not come to depose on oath that she did not receive the consideration amount of the sale deeds and as the executant of the sale deeds has not come forward to say on oath that she did not receive the consideration money as such it cannot be held that the sale deeds executed by the defendant No. 1 in favour of the defendant second set were of without consideration. It appears that while deciding this question, the learned first appellate court did not apply his mind that the defendant No. 1, who was the only competent person to say . that she did not receive consideration money, did not come to say on oath that she did not receive the consideration amount from the defendant second party. Likewise, the learned first appellate court also did not consider this fact that the evidence of P.W. 4 has fully demolished the cast of the plaintiff that the defendant second set had fraudulently got the sale deeds executed in their favour by defendant No. 1. It goes to establish that the courts below have not correctly appreciated the evidence available on record and due to that, the court below came to wrong finding "that the sale deeds of the defendants second party were illegal and without consideration. It further transpires that while interpreting that the sale deeds of the defendants second party were fraudulent documents, he missed this fact that as per Section 53 of the T.P. Act, even fraudulent transfer does not impair the rights of transferee in good faith and for consideration. Section 53 of the Transfer of Property Act defines "Fraudulent: transfer" in the following manner :
Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. The section runs further that nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.
21. Since there is absolutely no evidence on record to establish that the defendants second party had any knowledge of existence of any agreement for sale executed by defendant No. 1 in favour of the plaintiff, as such the courts below should have held that the defendants second party are the transferees in good faith and their rights shall not be impaired by the so-called agreement for sale executed in favour of the plaintiff by the defendant No. 1 which is an unregistered document and can be created at any- time by antedating the date of its execution. The abovementioned circumstances brought on record coupled with the fact that the defendant No. 1 gave reply of the notice of the plaintiff by admitting all the averments of the plaintiff and also filing written statement by defendant No. 1 supporting the entire averments made in the plaint, the examination of the husband of defendant No. 1 as a witness of the plaintiff and nun-disclosure of any date either in the plaint or in the evidence adduced on behalf of the plaintiff on which date the defendants refused to accept the rest consideration amount or refused to execute the sale deed in favour of the plaintiff establishes beyond doubt that the suit filed by the plaintiff was of collusive nature and the agreement for sale which is an unregistered document is a doubtful and antedated document.
22. It has been argued on behalf of the respondents that this Court sitting in second appeal has no jurisdiction to interfere with the concurrent findings of the courts below and cannot re-appreciate the evidence adduced on behalf of the parties. I fully agree with the arguments of the learned Advocate of the respondents but I am of the view that if the findings of the courts below are based on misreading or improper appreciation of the evidence available on record as a result of which the courts below had arrived at erroneous finding, it will be deemed that the findings of the courts below are perverse and then in that situation, this Court has got power to serutinise and re-appreicate the evidence of the parties available on record. The circumstances and the evidence discussed above fully establish that the plaintiff's suit was of collusive nature and the alleged deed of agreement (Ext.1) was a highly doubtful document on the basis of which no court should have decreed the suit of the plaintiff for specific performance of contract and, therefore, the findings of the courts below are perverse.
23. It has been argued by the learned Advocate of the appellant that the trial court has found that the sale deeds of the defendants second party which were marked as Annexure-A series were valid and genuine documents and against the said finding of the trial court, the plaintiff has not preferred any cross-appeal, as such the first appellate court had no jurisdiction to interfere with the finding of the trial court but even then the first appellate court has held that the sale deeds (Ext. A series) of the defendants second party were not valid and genuine documents.... The learned Advocate of the appellant submitted that this finding of the learned first appellate court is illegal and without jurisdiction and apart from that in a suit for specific performance of contract where no relief was sought for declaration that the sale deeds executed in favour of the defendants second party by defendant No. 1 be declared illegal the finding of the first appellate court in this regard is illegal and without jurisdiction. He further submitted that for seeking relief that a particular sale deed be declared illegal and not valid, the plaintiff has to pa)' the court-fee but neither the plaintiff paid the court-fee nor lie sought the said relief but even then the trial court granted the said-relief which is illegal. I fully agree with the submission of the learned Advocate of the appellant.
24. It should be kept in mind that the sale deeds executed in favour of the defendants second party by defendant No. 1 (Ext. A series) are registered documents and the defendants second party have examined several witnesses to prove that the defendant No. 1 had voluntarily executed the sale deeds in favour of the defendants second party after receiving the consideration amount. The fact that the defendant No. 1 had voluntarily executed all these sale deeds (Ext. A series) in favour of the defendants second party finds full support from the evidence of P.W.4 who is none else but the husband of defendant No. 1, namely, Satan Ram. Paragraph 7 of his evidence is relevant in this case in which he has admitted that the sale deeds executed by defendant No. 1 in favour of the defendants second party were executed in his presence and he had put his signature on each and every sale deeds as a witness and that his wife Rita Devi had executed all these sale deeds with her free will and consent. He has also deposed that his wife had handed over Chirkut' of the deeds to defendants second party after putting L.T.I. on all the "Chirkut. The above evidence of P.W.4, who is the husband of defendant No. 1, establishes beyond doubt that all these sale deeds (Ext, A series) were valid and genuine documents. So far as evidence of P.W.4 that the consideration amount was not paid, is concerned, it is not believable in view of the fact that he himself admitted that he had raised no objection with regard to non-payment of consideration money and that the defendant No. 1 herself did not come to depose that she had not received consideration amount. Thus, all these facts and circumstances, stated above, establish beyond doubt that the sale deeds of the defendants second party (Ext. A series) were valid and genuine documents and the first appellate court has no jurisdiction to interfere with the findings of the trial court in this regard without filing any cross-appeal by the plaintiff. Accordingly, both the substantial questions of law are decided.
25. In the result, I find merit in this appeal and as such, the same is hereby allowed with cost. The judgment and decree of both the courts below whereby the courts below have decreed the suit of the plaintiff for specific performance of contact are hereby set aside. Accordingly, the suit of the plaintiff for specific performance of contract is dismissed, It is further ordered that if in execution of decree for specific performance of contract any sale deed would have been executed either by defendant No. 1 or by the court the same stands cancelled and not binding upon the defendants second party.