Madhya Pradesh High Court
Ramvilas Singh (Dead) vs Shriram on 27 May, 2019
1 F.A.No. 290/2010
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ANAND PATHAK
FIRST APPEAL NO. 290 OF 2010
Ramvilas Singh (dead) through LRs
Vs.
Shriram & Ors.
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Shri N.K.Gupta, learned senior counsel with Shri Ravi Gupta, learned
counsel for the appellants.
Shri B.D.Jain and Shri Rajveer Singh, learned counsel for respondent
No. 1.
None for respondents No. 2 to 7.
Shri Ashish Saraswat, learned GA for respondent No. 8/State.
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ORDER
(Passed ed on this 27th day of May,2019) The present appeal under Section 96 of CPC has been preferred by LRs of defendant No. 1 Ramvilas through his legal representatives against the judgment and decree dated 23 rd July, 2010 passed by Fourth Additional District Judge, Gwalior whereby, the suit preferred by respondent No. 1 Shriram S/o Nandram for specific performance of contract has been partially allowed and decreed in his favour.
2. Precisely stated facts of the case are that respondent No. 1/plaintiff preferred a suit for specific performance of contract against the present appellant Ramvilas and other respondents/defendants with the allegations that an agreement to sell has been executed on 15/10/2003 in respect of the land situate at Khasra Nos. 88 area 0.199 hectare, 89 area 0.098 hectare, 91 area 0.100 hectare, total 0.397 hectares (1 Bigha 18 2 F.A.No. 290/2010 Biswa), situate at village Gulgulpura, Pargana and District Gwalior owned by defendant No. 1 who agreed to sale the suit land for a consideration of Rs. 3,10,000/- out of which Rs. 2,30,000/- was received in cash in front of witnesses and he executed the agreement to sell. Rest of the amount i.e. Rs. 80,000/- was to be paid by the plaintiff within one year . Plaintiff was always ready and willing to pay the amount and at the time of filing of plaint also he was ready to pay. On 17/9/2004, plaintiff through his advocate sent a notice through registered post as well as UPC in which he informed the defendant No. 1 to remain present on 27/9/2004 in the office of Sub-Registrar Gwalior for execution of sale deed; where, he would paid the remaining amount before the execution of the sale deed. Said registered notice returned back with the remark "Intimated" from post office but notice through UPC was received by defendant No. 1 but he did not turn up for execution of sale deed nor intimated the plaintiff to appear on some other day. It was further alleged that defendant is trying to dispose of the property to some other persons, therefore, notice has been sent and suit has been filed for specific performance of the contract.
3. Defendant No. 1 rebutted the claim and allegations through written statement and submitted that defendant No. 1 is not the owner of the property at present because he disposed off the land to different persons through different registered sale deeds. He mentioned the different sale deeds executed in favour of different persons on different dates as referred in the written statement. It was also averred that defendant No. 1 purchased the land on 3/1/2003 and 13/1/2003 through 3 F.A.No. 290/2010 registered sale deeds from Lalaram S/o Lakhua, resident of Gulgulpura and after mutation of his name, land was disposed off while bifurcating in different pieces and disposed it off to different persons.
4. Defendant No. 1 took a specific defence that he never executed any agreement to sale dated 15/10/2003 in favour of plaintiff and plaintiff has forged the signatures over the documents and created a fabricated document. He never received Rs. 2,30,000/- as advance money nor received any notice dated 17/9/2004 either through registered post or through UPC. He specifically pleaded that plaintiff has forged the agreement.
5. Defendants No. 2 to 8 have also filed their separate written statements and all averred that they purchased the part of land in the month of October/November, 2004 on different dates from defendant No. 1 and they are owners of the suit property.
6. After pleadings of the parties, trial Court framed as many as 12 issues as reflected in the impugned judgment and evidence was led by the parties. Trial Court while framing one issue (issue No. 4 ) regarding authenticity of the document agreement to sale dated 15/10/2003 and after considering the rival submissions and evidence, came to the conclusion that the agreement was genuine and bona fide. It was concluded that defendant No. 1 executed the agreement to sale vide Ex. P/1 in favour of plaintiff and found the document to be genuine one. Similarly, on the basis of evidence and submissions /pleadings of all the parties, trial Court found the readiness and willingness of the plaintiff to honour his part of performance as proved as well as deliberate absence 4 F.A.No. 290/2010 of defendant No. 1 for execution of sale deed while appearing in office of Sub Registrar despite receiving registered notice as proved and partly decreed the suit in favour of plaintiff and directed the plaintiff to pay Rs. 80,000/- within two months to defendant No. 1 and after receiving the same, defendant No. 1 was directed to execute the sale deed in favour of plaintiff regarding Khasra No. 88 admeasuring 0.199 hectare, Khasra No. 89 admeasuring 0.098 hectare, land vide Khasra No. 91 admeasuring 0.1000 hectare, thus, totalling 0.397 hectare (1 Bigha 18 Biswa) situate at Gulgulpura, Pargana and District Gwalior excluding the land sold to Pramod Singh and Prem Singh Kushwah. In default to execute the sale deed by defendant No. 1, plaintiff was directed to submit the remaining amount of Rs. 80,000/- alongwith stamp papers for execution of sale deed in the Court for execution of sale deed. Against the judgment and decree passed by the trial, Court, defendant No. 1 through his Legal Representatives preferred this appeal under Section 96 of CPC taking exception to said judgment and decree.
7. Learned senior counsel appearing for appellants/legal representatives of defendant No. 1, vehemently submitted that impugned judgment and decree suffers from illegality and perversity. Learned Court below erred in considering the agreement to sale dated 15/10/2003 (Ex. P/1) to be genuine and valid; whereas, it was not admissible in evidence. Under the Indian Stamps Act, Ex. P/1 is covered under Section 5 (e) (ii), by virtue of which proper stamp duty upon the said document would be 1% of the total consideration of the property mentioned in the agreement or memorandum of agreement. But in absence of requisite 5 F.A.No. 290/2010 stamp duty, (Ex. P/1) is not admissible in evidence under Section 5 of the Indian Stamps Act. He relied upon the decision of Hon'ble Apex Court in the matter of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, (2009) 2 SCC 532. Learned Court below ought to have impounded the document and thereafter proceed with the case but in absence of same, the case warrant order of remand.
8. It is submitted by the learned counsel for the appellant/defendant No. 1 that service of notice dated 17/9/2004 (Ex. P/2) had material bearing over the controversy regarding readiness and willingness on the part of plaintiff which has been dealt with by the trial Court in casual and slipshod manner and therefore, caused illegality. Plaintiff could not prove his readiness and willingness as per the parameters of Section 16 of Specific Relief Act and trial Court erred in treating the said fact as proved; whereas, present appellant/LRs of defendants No. 1 successfully rebutted the presumption of service attached to the mode of UPC, therefore, conclusion drawn by the trial Court is erroneous regarding readiness and willingness on the part of different plaintiffs by holding the receipt of Ex. P/2 by defendant No. 1, in absence of any cogent evidence produced by the plaintiff to establish the service of UPC notice to defendant No. 1. It was the duty /obligation of the plaintiff to prove the service of Ex. P/2 by summoning the concerned postman to prove the said fact and in absence of same, adverse inference ought to have been drawn against the plaintiff regarding failure of service of notice. The said failure of service of notice, have vitiated the readiness and willingness on the part of plaintiff, therefore, this material aspect has 6 F.A.No. 290/2010 been ignored by the trial Court and thereby caused illegality. He relied upon the decisions of Hon'ble Apex Court in the matter of Thiruvengadam Pillai Vs. Navaneethammal and Anr., (2008) 4 SCC 530, Garre Mallikharjuna Rao (dead) by LRs and Ors. Vs. Nalabothu Punniah, (2013) 4 SCC 546 for readiness and willingness and upon Pushparani S. Sundaram and Ors. Vs. Pauline Manomani James (Deceased) and Ors., (2002) 9 SCC 582, Pukhraj D. Jain and Ors. Vs. G.Gopalakrishna, (2004) 7 SCC 251, J.P.Builders and Anr. Vs. A.Ramadas Rao andAnr., (2011) 1 SCC 429, Sirumal Vs. Smt. Annapurna Devi, (2001) 2 JLJ 261, (Smt. Kamalrani & Ors, Vs. Kumari Pinki & Anr.,2001 2 MPLJ 137 and Gyaneshwar Vs. Smt. Moongabai @ Muneshwaribai and Anr., 2006 (1) MPLJ 221 and submits that readiness and willingness should have been pleaded and proved by the plaintiff specifically as per Section 16 (1) (c) of the Specific Relied Act. Trial Court erred in holding the readiness and willingness in respect of balance consideration of Rs. 80,000, whereas, plaintiff was required to prove his constant readiness and willingness since date of agreement till filing of suit, particularly when notice dated 17/9/2004 was not sufficiently proved.
9. Trial Court further erred in exercising its authority under Section 73 of the Evidence Act while comparing the signatures upon Ex. P/1, specifically when there is difference of opinion of Expert Witnesses; wherein, Expert Witness Rajiv Vermaexamined the document on behalf of plaintiff and Rajkumar Shotriya, Handwriting expert produced on behalf of defendant No. 1 and both took contrary view and had 7 F.A.No. 290/2010 difference of opinion then trial Court compared the signatures and travelled beyond the powers vested in it, therefore, findings recorded by the trial Court stands vitiated against the settled principles of law.
10. It is the submission of learned senior counsel appearing for the appellant that conduct of plaintiff is doubtful because he sent the alleged notice dated 17/9/2004 at the fag end of agreement period which indicates the intention of the plaintiff. The application Ex. P/6, which is addressed to Registrar office, nowhere establishes that the plaintiff was present in Registrar office. The potentiality of the plaintiff is doubtful regarding financial condition. When his financial condition does not indicate that he is capable of purchasing the land, which is reflected from the evidence of Shriram (PW/1), therefore, trial Court ought to have considered the financial condition of the plaintiff before reaching to the conclusion. While referring para 10,11, 12 and 17 of Shriram (PW/1) which according to appellants are contradictory to each other. Brother of plaintiff also ought to have been appeared as witness but he did not turn up as witness. While referring para 27 of PW/1; wherein, he admits that plaintiff had knowledge of extent of ownership of land, whereas, defendant already sold the part of that land, which was not in the knowledge of plaintiff and therefore, plaintiff did not have proper knowledge about land and that fact ought to have been considered by the trial Court.
11. How defendant can execute the decree is a question when he is not owner of the property; whereas, trial Court has directed the defendant to execute the sale deed for area admeasuring 0.397 hectare. The principle 8 F.A.No. 290/2010 of lis pendence is not attracted because before agreement, some part of the property was already alienated and some part sold later on and suit is not for declaration, therefore, principle of lis pendence is not attracted and trial Court in para 30 caused illegality in considering the principle of lis pendence and directing the defendant to execute the sale deed.
12. It is also submitted that Ex. P/1,which is agreement to sale dated 15/10/2003 and Ex. D/1 are same documents but photo of seller is not present in another document and such omission ought to have been noted by the trial Court and findings ought to have been given by it, but omission of same renders the judgment and decree vitiated.
13. Per contra, learned counsel for the respondent No. 1/plaintiff matched the vehemence of the appellant. It is the submission of learned counsel for the respondent/plaintiff that once appellant refused the existence of agreement then appellant/defendant No. 1 cannot take ground of readiness and willingness as per Section 16(6) of the Specific Relief Act. While relying upon Section 67 and 68 of Indian Evidence Act, he submits that there are several ways of proving the document and witness PW/1 and PW/2 proved the execution and evidence surfaced in para 13 of DW/1 indicates that notice was sent on correct address. He relied upon the decision of Hon'ble Apex Court in the matter of Guruswamy Nadar Vs. P.Lakshmi Ammal (Dead) through LRs. And Ors., (2008) 5 SCC 796.
14. It is further submitted that as per Section 12(3) of Specific Relief Act, remaining part of the land can be purchased by the plaintiff and trial Court did not err in directing the defendant No. 1 to executed sale deed 9 F.A.No. 290/2010 in favour of plaintiff of remaining part of the land. He relied upon the decision of Hon'ble Apex Court in the matter of Kalyanpur Lime Works Vs. State of Bihar and Anr., AIR 1954 SC 165 and while relying upon Section 20 of Specific Relief Act,it is submitted that as equitable relief, direction was given by the trial Court. Equity of defendant should also be seen and equity of only plaintiff cannot be seen. It is the submission of learned counsel for respondent No. 1 that trial Court did not err in passing the impugned judgment and decree. Readiness and willingness of plaintiff was proved and once readiness and willingness has been proved and the execution of document was also proved by the trial Court then the direction for execution of sale deed was within the competence of trial Court. He prayed for dismissal of the appeal.
15. Heard learned counsel for the parties at length and perused the record.
16. This is a case; wherein, Appellants (LRs of defendant No. 1) are aggrieved by the judgment and decree passed by the trial Court; whereby, trial Court directed the appellant to execute the sale deed in favour of plaintiff in respect of land as referred in the impugned judgment.
17. The grievance of the appellants appears three fold. One, is the very existence of execution of sale agreement dated 15/10/2003, execution of which has been denied by the appellants. The issue in this regard was framed by the trial Court as issue No. 4 and trial Court found that the sale agreement (Ex. P/1 as well as D/1) is not a forged document but the 10 F.A.No. 290/2010 findings arrived at by the trial Court does not evoke confidence and clarity because the said issue has not been elaborately discussed. Trial Court based its findings on the basis of shortcomings of two witnesses; led by defendant i.e. D/2-Patiram and DW/3-Awadhesh Singh Sengar. Their cross-examination was discussed by the trial Court but the conclusion drawn about their evidence appears to be faltered because of inadequacy of discussion. In para 10 and 11, their evidence has been discussed but the findings given by the trial Court are not sufficient. If one witness DW/3-Awadhesh Singh Sengar does not recall date of birth of his children and if the other witness DW/2-Patiram does not recall the date of agreement then it does not vitiate the evidence altogether. It is apparent that those witnesses who earlier went with the defendant to Jaurakalan, were not present on the date of execution of sale agreement then it is possible that they might not have remembered the date with such precision. There are minor inconsistencies, but same cannot render their evidence as vitiated altogether. The conduct of plaintiff although noted by the trial Court; wherein, once plaintiff in his cross-examination when cornered, took adjournment on the pretext of high blood pressure but trial Court did not consider this aspect while deciding the controversy.
18. One more glaring fact exists in the case in hand is authenticity and opinion of Handwriting Experts. Both the sides led Handwriting Experts in evidence with their respective opinions but said opinions were also benefiting the side to which they belonged and trial Court resorting to Section 73 of Evidence Act took the mantle on itself to decide the issue. 11 F.A.No. 290/2010 Apex Court in the case of Thiruvengadam Pillai (supra) has cautioned the Courts while soliciting opinion of Handwriting Experts while relying upon the earlier judgments of Apex Court in the case of Murarri Lal Vs. State of M.P.,(1980) 1 SCC 704 and Lalit Popli Vs. Canara Bank, (2003) 3 SCC 583 and discussing the law in paras 16 and 17 which read as under:-
"16. While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/ signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the 12 F.A.No. 290/2010 admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of finger prints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.
17. The decision in Muralilal (supra) and Lalit Popli (supra) should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on 13 F.A.No. 290/2010 comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal."
19. While deciding any case for specific performance of contract under Specific Relief Act, 1963, impact of Section 20 of the Act of 1963 always to be borne in mind because grant of decree for specific performance is discretionary and Court is not bound to grant such relief merely because it is lawful to do so. It is although true that the discussion of the court ought not to be arbitrary but sound and reasonably guided by judicial principles and capable of corrections by a Court of appeal but since it is discretionary relief, therefore, trial Court ought to have considered the other variables existed in the controversy.
20. So far as mandate over Section 20 of the Specific Relief Act, 1963 is concerned, judgment passed by Apex Court in the case of Garre Mallikharjuna Rao (supra) is worth consideration.
21. A coordinate Bench of this Court in the case of Gyaneshwar (supra) has also dealt with the said aspect while referring the judgment of Apex Court in the matter of N.P.Thirugnanam (dead) by LRs vs. Dr. R.Jagan Mohan Rao and Ors., (1995) 5 SCC 115; wherein, it has been held by the Apex Court that remedy for specific performance is equitable remedy and is in the discretion of the Court.
22. So far as, other variables as referred above are concerned, trial Court discussed the issue in question (i.e. issue No. 4) ignoring the fact that mere reference of name of person who purchased the stamp papers 14 F.A.No. 290/2010 does not show the execution of sale agreement because it was the duty of the plaintiff to bring stamp Vendor in his support to contend that it was defendant who appeared before the Stamp Vendor and purchased the stamp. The onus shifted over the defendant appears to be misplaced. Burden was on the plaintiff to discharge that sale agreement was executed in which stamp papers were purchased by defendant himself by producing cogent evidence, including the evidence of Stamp Vendor.
23. The discussion as surfaced in issue No. 1 also suffers from perversity and inadequacy of discussion. Readiness and willingness of the parties are to be averred, pleaded and proved that the plaintiff was always ready and willing to perform the essential obligation under the contract till filing of the plaint. Merely filing of the suit for specific performance and taking the plea what he was ready and willing by itself are not sufficient to satisfy the requirement of Section 16-C. Although, plaintiff through his presence before the Registrar Office tried to establish his readiness and willingness but the readiness and willingness also include monetary potential to pay the consideration and mental preparedness to perform his part under contract. The readiness indicates the financial capacity of the person and willingness indicates the conduct and mental preparedness of the person. Generally, readiness is backed by willingness. Hon'ble Apex Court in the case of J.P.Builders (supra) and Pushparani S. Sundaram(supra) discussed the issue in detail regarding readiness and willingness. Precedential strength can be derived through this judgment in the present context.
24. Financial capability of plaintiff from his statement as PW/1 mainly 15 F.A.No. 290/2010 indicates contradictory statements at least insufficiently explained by the plaintiff to bring home the analogy of readiness and willingness at the instance of plaintiff. Ex. P/6, which is an application addressed to Office of Registrar, nowhere establishes the fact that plaintiff was present in Registrar Office with readiness and willingness.
25. Beside that one more aspect persuades this Court to reach to the conclusion for remanding the matter back is the discussion as surfaced while deciding issue No. 1 and 2 regarding service of notice to defendant No. 1. UPC cannot be treated as the trustworthy mode of service and RAD post returned back with the caption "Intimated". Thus, it was the duty of the plaintiff to bring concerned Postman to establish service of notice but omission thereof further relegates the case into realm of doubt.
26. Although, there may be certain more discrepancies or perversity apparent on record as well as relief as given in the para 32 appears to be the relief which may create more litigation then concluding it therefore, matter deserves to be relegated back before the trial Court.
27. Impugned judgment dated 23/7/2010 thus suffers from perversity and / or inadequate appreciation of evidence and therefore, deserves to be set aside and is hereby set aside. Matter is remanded back to the trial Court for retrial to the extent that both the parties shall be given a chance to lead additional evidence in support of their statements and either parties shall have the chance to rebut it and thereafter trial Court shall give specific findings about the execution of sale agreement dated 15/10/2003 as well as about the service of notice and about readiness and willingness of the plaintiff. Parties shall be at liberty to raise all the 16 F.A.No. 290/2010 legal grounds including the inadequacy of stamp over the agreement to sale, if sustainable in law. If required, additional issues be framed and thereafter, the evidence be called from the parties over the additional issues so farmed and thereafter judgment be ensured on the basis of available evidence as well as evidence so led by the parties after remand. Sincere endeavors be made to decide the controversy at the earliest without being influenced by the observations made hereinabove as these observations are made prima facie.
28. Parties to appear before the trial Court on 4/7/2019 and will take necessary guidance from the concerned trial Court.
29. With the aforesaid observations, appeal stands allowed in part and disposed of.
(Anand Pathak) Judge jps/-
JAI PRAKASH SOLANKI 2019.05.28 11:01:56 +05'30'