Punjab-Haryana High Court
(O&M;) Baldev Singh vs Harbhajan Singh And Others on 27 March, 2015
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
RSA No.561 of 1990 (O&M) 1
334
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.561 of 1990 (O&M)
Date of Decision: 27.03.2015
BALDEV SINGH (DECEASED) THROUGH LRs.......Appellant
Vs
HARBHAJAN SINGH AND OTHERS .....Respondents
CORAM:HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr. Amarjit Markan, Advocate with
Mr. S.S. Salar, Advocate
for the appellant.
Mr. Alok Jagga, Advocate
for respondents.
****
1. Whether Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
RAJ MOHAN SINGH, J.
[1]. Plaintiff is in second appeal against concurrent judgment and decree passed by the Courts below. Plaintiff filed suit for specific performance in respect of 32 Bigha 01 Biswa on the basis of agreement to sell dated 08.08.1983. Plaintiff pleaded that defendant No.1-Bachittar Singh and defendant No.6-Nirmal Singh were real brothers and they entered into agreement to sell in respect of 32 Bigha 01 Biswa of land vide agreement to sell dated 08.08.1983 @ `6,000/- per bigha. They received `26,500/- as earnest amount and target date for execution of sale deed was fixed upto 15.06.1984. The agreement in question was signed by Bachittar Singh and MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 2 Nirmal Singh was the consenting party. The plaintiff always remained ready and willing to perform his part of contract, but defendant No.1 in collusion with defendant No.6 sold the suit land in favour of defendants No.2 to 5 in an unlawful manner. In alternate, plaintiff claimed money decree of `53,000/- as refund of earnest amount and damages.
[2]. The suit was contested by the defendants. Defendants No.1 to 6 jointly contested the suit and took the stand that defendant No.1 was never the owner of 32 Bigha 01 Biswa and was not competent to execute agreement to sell. Defendant No.6 contested the suit by alleging that he never consented to the above agreement to sell. The factum of agreement to sell on behalf of defendant No.1 was denied and receipt of earnest amount was also denied and it was claimed that the agreement to sell was invalid, unenforceable and illegal. They took the stand that they had executed one agreement to sell dated 11.01.1983 in favour of Jit Singh @ `5500 per bigha and the defendants No.1 and 6 had executed sale deed dated 26.04.1984 in favour of defendants No.2 to 5 at the instance of aforesaid Jit Singh who got the same executed in favour of his assignees. Defendants No.2 to 5 also contested the suit by alleging that they had purchased 45 Bigha 08 Biswa of land from defendants No.1 and 6 on the basis of agreement to sell dated 11.01.1983 executed by defendant No.1 and 6 with Jeet Singh. They further claimed that they were bona fide purchasers for consideration and without notice of agreement to sell MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 3 dated 08.08.1983.
[3]. After filing of the replication, following issues were framed by the trial Court:-
"1. Whether defendant No.1 entered into an agreement of sale date 8.8.83 with the plaintiff regarding the suit land and received `26,500/- as earnest money? If so, its effect? OPP.
2. If issue No.1 proved whether the agreement dated 8.8.83 is also binding on defendant No.6 Nirmal Singh? OPP.
3. Whether the plaintiff was ready and willing to perform his part of the agreement dt. 8.8.83? OPP.
4. Whether the plaintiff is entitled to recover damages from defendant No.1 in case he is not entitled to specific performance of agreement dt. 8.8.83? If so of what amount? OPP.
5. Whether defendants Nos.2 to 5 are bonafide purchasers for consideration and without notice of the agreement dt. 8.8.83 from defendants Nos.1 and 6 with regard to the suit land? If so its effect? OPD.
6. Whether the suit is not maintainable in the present form? OPD.
7. Relief.
Following additional issues were framed on 16.5.1986.
6-(A) Whether defendants Nos.1 and 6 executed an agreement to sell d. 11.1.1983 in faovur of Jeet Singh? OPD.MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 4
6-(B) Whether defendants Nos.1 and 6 executed the sale deeds dt. 26.4.1984 in favour of defendants Nos.2 to 5 in pursuance of the agreement dt. 11.1.1983? If so, its effect? OPD."
[4]. Both the parties led their evidence and trial Court under issues No.1 and 2 held that the agreement was also signed by Nirmal Singh as a consenting party. Ex.P-1 i.e. agreement to sell dated 08.08.1983 showed that Nirmal Singh signed the same as a consenting party because he singed under the head "signature as consenting party." Perusal of revenue record viz. Jamabandi Ex.P-4 showed that defendant No.1, defendant No.6 and their brother Himat Singh were joint owners of the suit land which was part of joint Khata measuring 117 Bigha 10 Biswa. Trial Court further observed that Nirmal Singh-defendant No.6 was consenting party because defendant No.1 was not the exclusive owner of the suit land, rather he was joint owner to the extent of 1/3rd share along with his brothers out of total Khata of 117 Bigha 10 Biswa. Mentioning of specific Khasra number in the agreement to sell had no effect because even sale of specific Khasra numbers out of joint Khtata amounts to sale of share. In this way trial Court held that defendant No.1 executed agreement to sell dated 08.08.1983 (Ex.P-1) and also received `26,500/- as earnest amount. Defendant No.6 also signed the same as consenting party. Both the issues were decided in favour of plaintiff and against the defendants.
[5]. Trial Court held under issue No.3 that plaintiff always MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 5 remained ready and willing to perform his part of agreement dated 08.08.1983. Due to findings under issues No.4, 5, 6, 6-A and 6-B, suit was decreed only for alternative relief for recovery of `28,885/- with proportionate cost along with future interest @12% per annum from the date of filing of the suit till realisation of the decretal amount. Decree for specific performance was not granted despite the fact that suit of the plaintiff was held maintainable but for the recovery of earnest amount along with damages under issue No.6. [6]. The plaintiff assailed the judgment and decree in appeal before the District Judge, Sangrur, who vide judgment and decree dated 09.12.1989 dismissed the appeal and maintained decree of trial Court.
[7]. I have heard arguments of both sides and have also perused the record.
[8]. Both the Courts have upheld the execution of agreement dated 08.08.1983 in favour of plaintiff and agreement dated 11.01.1983 in favour of Jit Singh, who further got the same executed in favour of his assignees defendants No.2 to 5. The land involved in agreement to sell dated 08.08.1983 was 32 Bigha 01 Biswa, whereas in agreement to sell dated 11.01.1983, land involved was 45 Bigha 08 Biswa. After execution of agreement to sell dated 11.01.1983 three mortgage deeds were also executed by the vendors-defendants No.1 and 6 in favour of defendants No.2 to 5 vide Exs.D-7 to D-9. Ultimately four sale deed were executed vide MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 6 Exs.D-2 to D-6 in favour of defendants No.2 to 5.
[9]. Though execution of agreement to sell Ex.P-1 dated 08.08.1983 was proved before the Courts below and even the plaintiff was also found to be ready and willing to perform his part of contract under issue No.3, but Nirmal Singh was found to be only consenting party being a co-sharer and the trial Court dismissed the suit for specific purpose by observing that agreement to sell dated 11.01.1983 being prior in point of time, therefore, Jit Singh had superior right to get the sale deed executed in favour of his assignees. Findings of the trial Court were upheld by the lower appellate Court.
[10]. On consideration of facts and arguments raised at the bar, this Court thinks it appropriate to consider the stand of the parties on the following substantial questions of law:-
1. Whether the plaintiff was entitled to relief of specific performance once it was established that agreement to sell was duly executed and the plaintiff always ready and willing to perform his part of obligation?
2. whether the cause in favour of defendant No.1 falls under any of the exceptions arising out of Section 20 of the Specific Relief Act?MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 7
3. Whether sale of specific khasra number out of joint khata amounts to sale of sale?
[11]. Learned counsel for the appellant has vehemently argued that agreement to sell dated 11.01.1983 is ante dated, stamp papers were purchased from Tehsil Ahmedgarh, District Sangrur and execution of agreement to sell at Malerkotla was alleged to be an instance where the agreement to sell should be viewed as suspicious and mala fide. Learned counsel further argued that the register of Stamp Vendor showed the transaction to be the last entry and the register of the scribe also showed it as a last entry and register of the scribe at the time of extension showed adjustment made in order to recite the entry ante dated.
[12]. Learned counsel also highlighted that Jit Singh prospective vendee was attesting witness to the mortgage deed wherein there was no mention of agreement to sell dated 11.01.1983. There was recital in the mortgage deed regarding clog on redemption for five to seven years. Whereas in the agreement to sell dated 08.08.1983, factum of mortgage was duly shown. Learned counsel by relying upon the statement of Jit Singh further argued that in such a situation where the agreement to sell dated 08.08.1983 was duly found executed, decree for alternate relief should not have been passed, rather decree for specific performance should have been passed in respect of remaining share of the vendor out of their entitlement arising out of title of 117 Bigha 10 Biswa. MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 8 [13]. Learned counsel for the appellant relied upon N.P.Thirugnanam (Dead) by LRs. v. Dr.Ra.Jagan Mohan Rao 1995 (2) RCR (Rent) 647, wherein, the Court held as under:-
"It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under section 20 of the Specific Relief Act 1963 (for short, 'the Act'). Under section 20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 9 his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract."
[14]. In Atma Ram Mittal v. Ishwar Singh Punia, 1988 (2) RCR (Rent) 423, the Apex Court held that once execution of lawful agreement is proved and the judicial conscience of the Court is satisfied, then the equity demands that the agreement should be enforced rather than to grant alternate relief of damages to the plaintiff. It needs to be reiterated that equity must give relief where equity demands. 'equitas nuquam liti ancillatur ubi remedium protest clare".
[15]. An erring person who violates the terms and conditions of the agreement cannot be permitted to seek advantage over the other party in equity. In M.L. Devender Singh and others v. Syed Khaja, AIR 1973 SC 2447, the Apex Court held that the jurisdiction of the Court to decree specific relief is discretionary and must be exercised on sound and reasonable grounds. "Guided by judicial principles and capable of correction by a court of appeal". The jurisdiction cannot be curtailed or taken away by merely fixing a sum even as liquidated damage.
[16]. The provision in terms of Section 20 of the Act is an exception to the rule of grant of relief of specific performance but the MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 10 same in itself cannot be construed as a rule. The Courts are obligated to exercise this equitable jurisdiction in consonance with the settled principle of law and the discretion has to be exercised in judicious manner. Even the alternate prayer made by the plaintiff in a suit cannot be construed to be a waiver or abandonment of his main claim. The object of the provisions is to avoid resultant undue hardship to one party while avoiding undue gain to other. Mere lapse of time and inadequate consideration on that count are no grounds to exercise such discretion under Section 20 of the Specific Relief Act. Therefore, award of alternate relief according to this Court was wholly unjustified.
[17]. Once the execution of agreement is proved, equity demands its enforcement rather than to grant alternate relief of refund of earnest amount and payment of damages. Equity has to be balanced. Even if the signature of defendant No.6 is proved to be non-existent, defendant No.1 could have been obligated to execute sale deed in favour of plaintiff in respect of his remaining share in the title land measuring 117 Bigha 10 Biswa. The plaintiff already proved his readiness and willingness from the time of execution of agreement to sell till passing of decree. The approach on the part of defendant No.1 cannot come to his aid, thereby entitling him to any protection in equity.
[18]. In Ram Dass v. Ram Lubaya, 1998(2) RCR (Civil) 642 this Court considered the past precedents including Atma Ram Mittal's MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 11 case (supra) and M.L. Devender Singh's case (supra) and ultimately held that a lawful agreement if proved and satisfies the judicial conscience of the Court, then equity demands its enforcement rather than to grant alternate relief of damages to the plaintiff.
[19]. In a specific performance of a contract, the discretion of the Court is not to be exercised merely because it is lawful to do so. The Court is not obligated and bound to grant such relief but the discretion has to be exercised on sound and reasonable grounds guided by judicial principles which are capable of being corrected by court of appeal.
[20]. In Prakash Chandra v. Narayan, 2012 (3) RCR (Civil) 335, the Hon'ble Supreme Court has highlighted the plea of hardship when it is to be taken care of. Apparently, in the present case, after proving due execution of agreement, no fact has been pleaded whether grant of specific relief would cause any hardship to the defendant within the meaning of clause (b) of sub section (2) of Section 20 of the Act. Since the defence of hardship was not taken, therefore, grant of specific relief is the natural consequence of proof of due execution of agreement to sell.
[21]. The plea of the appellant in the context of grant of specific performance qua remaining part of land belonging to the defendant No.1 has been hotly rebutted by the defendants No.2 to 5. MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 12 [22]. Learned counsel for the defendants No.2 to 5 argued that the area measuring 32 Bigha 01 Biswa is overlapping in agreement to sell dated 11.01.1983 and the entire area forming subject matter of agreement to sell dated 08.08.1983 stands sold in favour of the defendants vide sale deed dated 26.04.1984, therefore, there is no area left with defendant No.1 to be sold in favour of the plaintiff. [23]. This Court has considered the submissions and rival submissions made by the parties.
[24]. Since the total land belonging to Bachittar Singh-defendant No.1 and Nirmal Singh-defendant No.2 and Himmat Singh was 117 Bigha 10 Biswa the share of defendant No.1 comes out to be 39 Bigha 03 Biswa. It is settled principle of law that even if specific Khasra numbers are made subject matter of sale out of joint land, still the area sold would be deemed to be sale of share. In this regard reference can be be made to Sant Ram v. Nagina Ram, 1961 Punjab 528 which was followed in 1981 PLJ Page 204 Bagtu Ram's case (Full Bench).
[25]. In view of aforesaid, it can easily be held that defendant No.1 could have only sold his share in the sale deed dated 26.04.1984. In the event of finding due execution of agreement of sell dated 08.08.1983 and this agreement being subsequent in point of time, defendant No.1 can be held bound to execution the sale deed qua this agreement to sell out of his remaining share in the MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 13 joint holding.
[26]. Four sale deeds were proved to have been executed. Sale deed (Ex.D-2) was in respect of 15 Bigha 2 Biswa out of Khewat No.43/43/1 Khewat Nos.80/84, 86/1 and Khasra No.8 (5-13). Bachittar Singh and Nirmal Singh were the vendors and Tarsem Singh, Harpeet Singh, Ranjeet Singh s/o Darshan Singh and qua half share of Bhajan Singh were the vendees. Similarly Ex.D-3 was the sale instance in respect of 9 Bigha of land Nirmal Singh was the exclusive vendor and Harbhajan Singh was the vendee. In sale deed (Ex. D-4) 6 Bigha was the land involved in which Nirmal Singh was the vendor and Harbhajan Singh was the vendee. Ex.D-5 was the sale instance in respect of 9 Bigha of land in which Bachittar Singh was the vendor and Tarsem Singh and Harpreet Singh were the vendees. Similarly in sale deed (Ex.D-6) 6 Bighas of land was involved in which Bachittar Singh was the vendor and Tarsem Singh etc. were the vendees.
[27]. Perusal of aforesaid sale deeds reveal that defendant No.1 Bachittar Singh sold out total area of about 22 Bigha 17 Biswa out of his share being 1/3rd of 117 Bigha 10 Biswa i.e. equal to 39 Bigha 3 Biswa. If calculations are made, an area of about 16 Bigha 06 Biswa is still available with defendant No.1, subject to calculations. [28]. In view of aforesaid, learned counsel for the appellant sought indulgence of this Court in the light of concept of co- MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 14 sharership and jointness of land till the same is partitioned by metes and bounds. Learned counsel stated at the bar that his client would be satisfied in case defendant No.1 is asked to honour agreement to sell on the basis of his left out share at present. I have considered the submission of the parties and found that the defendant No.1- Bachittar Singh never assailed the findings under issues No.1 to 3 in any manner. It was only on account of agreement to sell dated 11.01.1983 being prior in point of time, the entitlement of plaintiff was negated by the Courts below. The area to the tune of 45 Bigha 08 Biswa was subject matter of agreement to sell dated 11.01.1983 and sale deed dated 26.04.1984. Even though it covered total area measuring 32 Bigha 01 Biswa also the same cannot be considered to mean that it was a sale of specific Khasra numbers. Concept of co-sharership still provides remaining share to defendant No.1, qua which claim of the plaintiff can be satisfied. Since the agreement to sell was executed by the defendant No.1 only and Nirmal Singh was the consenting party, therefore, even if the scope of agreement to sell is restricted to the share of defendant No.1, still defendant No.1 is found to have share of 16 Bighas 6 Biswa qua which agreement to sell dated 08.08.1983 can be given effect.
[29]. If such a course is adopted defendant No.6 possibly cannot have any grouse and so the defendants No.2 to 5, whose land measuring 45 Bigha 8 Biswa would be protected. Since defendant No.1 is the erring party who should not be allowed to have premium MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 15 over his own fault because his cause does not fall under the exemption of Section 20 Specific Relief Act.
[30]. No exception can be made in the event of finding due execution of agreement to sell dated 08.08.1983 in view of precedents hereinabove. The grant of specific performance qua the remaining share of defendant No.1 would be just and equitable. [31]. The substantial questions of law as formulated are to be answered in favour of the appellant. Question No.1 has to be answered in favour of appellant in view of the fact that agreement to sell dated 08.08.1983 was duly proved on record. No cross-objection was filed by defendant No.1 and, therefore, plaintiff was found to be ready and willing to perform his part of obligation under issue No.3. [32]. Question No.2 is also required to be answered in favour of the plaintiff/appellant in view of fact that no pleadings of hardship have been made by the defendant No.1. Grant of relief of specific performance is the rule, whereas the Court has discretion in terms of Section 20 of the Specific Relief Act which is based upon principles of equity, good conscience and fairness. No such ingredients are forthcoming in favour of defendant No.1, therefore, this question also answered in favour of plaintiff/appellant.
[33]. Question No.3 has its answer in the interpretation of concept of co-sharership. This Court way back in 1961 formulated number of questions on preposition in Sant Ram 's case (supra). MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 16 The aforesaid Division Bench judgment was upheld in Full Bench judgment of Bhagtu Ram's case (supra).
[34]. In view of settled principle of law, it is established that even if specific khasra numbers are sold out of joint, the same amounts to sale of share. In view of aforesaid all the questions as formulated are answered in favour of plaintiff/appellant.
[35]. Resultantly, I am of the opinion that out of share of defendant No.1 i.e. 1/3rd share out of 117 Bigha 10 Biswa i.e. equal to 39 Bigha 3 Biswa, the sale deed dated 28.04.1984 should be honoured to the extent of 22 Bigha 17 Biswa share of defendant No.1. For remaining share of 16 Bigha 6 Biswa belonging to defendant No.1, he should be asked to meet the claim of specific performance of plaintiff/appellant.
[36]. Learned counsel for the appellant showed his readiness and willingness to accept the aforesaid channel. [37]. In view of aforesaid, judgment and decrees of the Courts below are set aside to the extent of dismissing suit and appeal in toto rather it is ordered that the judgment and decrees passed by the Courts below are modified, directing defendant No.1/respondent No.5 to execute sale deed in respect of agreement to sell dated 08.08.1983 out of his remaining share of 16 Bigha 6 Biswa. [38]. The defendant No.1 is directed to execute the sale deed in favour of plaintiff within a period of three months, on receipt of MOHMED ATIK 2015.04.04 17:08 I attest to the accuracy and authenticity of this document chandigarh RSA No.561 of 1990 (O&M) 17 balance sale consideration, failing which the plaintiff would be at liberty to take recourse to lawful remedy in law. [39]. To the extent aforesaid, appeal is partly allowed, leaving the parties to bear their own costs.
March 27, 2015 (RAJ MOHAN SINGH)
Atik JUDGE
MOHMED ATIK
2015.04.04 17:08
I attest to the accuracy and
authenticity of this document
chandigarh