Smt.Phool Kaur & Ors. vs Sardar Singh & Ors. on 24 December, 2010

[Cites 40, Cited by 2]

Delhi High Court

Smt.Phool Kaur & Ors. vs Sardar Singh & Ors. on 24 December, 2010

CM No.3698/2010 (under Order XXII Rule 4 read with Section 151 CPC) This is an application filed by the appellants for impleadment of the legal representatives of Sardar Singh, who died during the pendency of the appeal.

An attempt was made by the learned counsel for the respondents No.1 and 2 to contend that the appeal has abated on account of the legal representatives of Sardar Singh not having been brought on record.

In view of the fact, however, that one of the legal representatives of Sardar Singh, namely, Ishwar Singh is on the record, the appeal cannot be said to have abated. It has been so held by the Supreme Court in Mahabir Prasad vs. Jage Ram and Ors. AIR 1971 SC 742 and by a Division Bench of this Court in Kedar Nath & Anr. vs. Smt. Mohani Devi & Ors. 1972 ILR (2) 936.

In view of the aforesaid, the prayer for impleadment of the legal representatives of the deceased Sardar Singh is allowed. RFA No.44/1986 Page 2 of 72

The application stands disposed of. The amended memo of parties is taken on record.

RFA 44/1986

1. This appeal arises from a decree of specific performance of the Agreement to Sell dated 25th June, 1973 (Exhibit PW-3/1) passed in favour of the respondents No.1 and 2 and against Shri Chandan Singh and the other legal representatives of Smt. Khazani, the respondents No.3 to 6 herein, on payment of Rs.59,000/- with the direction to the respondents No.1 and 2 to purchase the stamp paper and deposit the same in Court for the execution of the sale deed, costs of the sale deed and its registration charges within one month.

2. The facts as asserted in the plaint filed by the respondents No.1 and 2 are that Smt. Khazani (now deceased) represented by Chandan Singh and others was inter alia in possession of the land comprised in Khasra Nos.485/1 (4 big. 8 bis.), 553 (8-18), 728 (0-17), 827 (0-11), 830 (2-3), 1332 (3-19), 1336 (1-1), 1572 (1-9), 1825 (1-6), 1919/2 (0-

12), 2011 (3-3), 2936/1920 (1-6), 3285/2614 (0-11), total 30 bighas 4 biswas situated in village Bijwasan and Khasra No.18/13 (4-9), 18/1 RFA No.44/1986 Page 3 of 72 (2-12) measuring 7 bighas 1 biswa situated in village Salhapur, total 37 bighas and 5 biswas and a residential house and a Ghaiwer (enclosure) situated in the abadi of village Bijwasan, Delhi. By an agreement dated 25.06.1973, Smt. Khazani agreed to sell and the respondents No.1 and 2 agreed to purchase the said land for a consideration of ` 60,000/- on the terms and conditions mentioned therein. The respondents No.1 and 2 paid a sum of ` 1,000/- as earnest money to Smt. Khazani at the time of the execution of the agreement dated 25.06.1973. A receipt in the sum of ` 1,000/- dated 25.06.1973 was also executed by Smt. Khazani in favour of the respondents No.1 and 2 by affixing her thumb impression on the same (Exhibit PW-3/2). The balance sale price was agreed to be paid to the vendor on the execution and registration of the sale deed before the Sub-Registrar. The Sale Deed was to be executed within one month after Smt. Khazani had obtained a 'No Objection Certificate' from the Competent Authority. It was further agreed that in case the sale deed was not executed within one month after getting the 'No Objection Certificate', the respondents No.1 and 2 could get the sale deed RFA No.44/1986 Page 4 of 72 executed through a court of law at the expense of the vendor, Smt. Khazani. However, if the respondents No.1 and 2 did not purchase the land, the earnest money would stand forfeited.

3. On 26.06.1973, Smt. Khazani represented to the respondents No.1 and 2 that she was badly in need of ` 55,000/- and she requested that the respondents No.1 and 2 pay the aforesaid amount to her. On the same day, i.e., on 26.06.1973, Smt. Khazani executed an Agreement to surrender the cultivation and possession of the land in question, being Exhibit PW-3/3, wherein she stated that she had received ` 1,000/- as earnest money from the purchasers, who had paid ` 55,000/- as part payment, the receipt of which had been issued and the possession of the vacant land had ben handed over to the purchasers, namely, Sardar Singh and Ishwar Singh (the respondents No.1 and 2 herein) and in future the purchasers will be entitled to cultivate the land. A receipt was also executed by her dated 26.06.1973, which was thumb marked by her and is placed on record as Exhibit PW-3/4.

RFA No.44/1986 Page 5 of 72

4. It is further alleged in the plaint that a 'No Objection Certificate' was obtained by Smt. Khazani from the department concerned on 11.09.1973. On the same day, the respondents No.1 and 2 requested Smt. Khazani to execute the Sale Deed and to get it registered before the Registrar after receiving the balance of ` 4,000/-, out of the sale consideration of ` 60,000/-, since ` 56,000/- had already been paid by the respondents no.1 and 2. A registered legal notice was also sent to Smt. Khazani on 14.09.1973, Exhibit PW-9/1, calling upon her to execute the sale agreement within a period of seven days from the date of the receipt of the notice. However, subsequently, the respondents No.1 and 2 came to know that on 13.09.1973 itself, Smt. Khazani had executed a sale deed in respect of the suit land and got it registered in favour of the appellants for the sale consideration of ` 40,000/-.

5. The respondents No.1 and 2 accordingly filed a Civil Suit, being Suit No.439/1973 against Smt. Khazani, who was arrayed as defendant No.1 therein, with the appellants arrayed as defendants No.2 to 4. It was alleged in the said suit that the sale deed dated 13th RFA No.44/1986 Page 6 of 72 September, 1973 executed by Smt. Khazani in favour of the appellants was a sham document and was null and void, as the respondents No.1 and 2 had been in cultivatory possession of the land ever since 26.06.1973, and had paid a sum of ` 56,000/- to Smt. Khazani as part payment towards the price of the land, out of the total sale consideration of ` 60,000/-, as agreed between the parties. It was also alleged that the agreement dated 25.06.1973 was executed by Smt. Khazani in favour of the respondents No.1 and 2 after consulting the appellants, who had shown their unwillingness to purchase the suit property. It was asserted that the respondents No.1 and 2 had suffered damages on account of the breach of contract on the part of Smt. Khazani, but were still ready and willing to purchase the land in question and to pay the balance amount of the sale price of the said land. The respondents No.1 and 2 were, therefore, entitled to specifically enforce the agreement dated 25.06.1973 and compel Smt. Khazani to transfer the land and complete the sale by execution of a sale agreement in favour of the respondents No.1 and 2. In the alternative, it was prayed that a decree for compensation/damages and RFA No.44/1986 Page 7 of 72 for the return of the said amount of ` 56,000/- or any other relief which the Court deemed fit and proper be granted.

6. Smt. Khazani having died during the pendency of the suit, the respondents No.3 to 6, as stated above, were impleaded as the legal representatives of Smt. Khazani. The said respondents filed a written statement denying that any agreement for sale of land was executed by Smt. Khazani in favour of the respondents No.1 and 2. It was asserted by the said respondents that Smt. Khazani had already entered into an Agreement to Sell the suit land with the appellants on 04.05.1973 (Exhibit D1W1/1) for a sum of ` 40,000/-, and had received a sum of ` 10,000/- as part payment of the sale price, and transferred the possession to the appellants. So, the question of entering into an Agreement to Sell the suit land to the respondents No.1 and 2 did not arise.

7. It was submitted further in the written statement of the respondents No.3 to 6 that the respondent No.1, Shri Sardar Singh was the owner of land measuring 71 kanals 8 marlas, bearing Kila Nos.17(7.8), Kila No.18 (8 Kanal), Kila No.19 (8 Kanal), Kila No.20 RFA No.44/1986 Page 8 of 72 (7.8 Kanal), Kila No.23 (8 Kanal), Kila No.24 (8 Kanal), Kila No.25 (8 Kanal) of rectangle No.69 and Kila No.12 (8 Kanal) of Rectangle No.71 and Rectangle No.76 (5 Kanal), situate in the revenue estate of Village Bamnaula, Tehsil Jhajjar, District Rohtak, Haryana State. Smt. Khazani wanted to sell the suit land to the appellant No.2, Hazari and in return wanted to buy the aforesaid land of the respondent No.1, Shri Sardar Singh. She approached Sardar Singh, the respondent No.1 along with her husband Chandan Singh for the purchase of the land and the bargain was struck at ` 20,000/-. Smt. Khazani asked the respondent No.1 to get the Agreement to Sell executed at Jhajjar, but the respondent No.1 told Smt. Khazani that an agreement to that effect could be executed at Delhi. Smt. Khazani also wanted to sell her land, measuring about 8 bighas 1 biswas at Bijwasan, to one Shri Ramanand of Kapashera District, Delhi and settled with the said Ramanand that as she was going to Delhi, the agreement with him could also be executed at the same time at Delhi.

8. On 25-6-1973, a number of papers were purchased by the respondent No.1, Sardar Singh at Delhi and got written by the same RFA No.44/1986 Page 9 of 72 deed writer, which were got thumb marked by Smt. Khazani by being told that as the land was situated in different States, several documents were required to be executed. Sardar Singh executed an agreement to sell on 25.06.1973 of his land for ` 20,000/- and received a sum of ` 1,000/- as earnest money from Smt. Khazani. Smt. Khazani and her husband Chandan Singh, being illiterate persons, were not aware of the contents of the documents, which were neither read out to them nor explained to them. Smt. Khazani neither agred to sell her land in suit to the respondents No.1 and 2 nor received any amount whatsoever from them. Rather, she paid a sum of ` 1,000/- to the respondent No.1, as stated above. Thus, Smt. Khazani and Chandan Singh had come to Delhi only once, i.e., on 25.06.1973 and the object was to execute an Agreement to Sell her land measuring about 8 bighas to the aforesaid Ramanand of Kapashera and to enter into an agreement to purchase the land of the respondent No.1 at village Bijwasan (District Rohtak), for which Smt. Khazani had to pay the balance sum of ` 19,000/- to the respondent No.1, as balance of the sale price in terms of the agreement entered RFA No.44/1986 Page 10 of 72 into between them. No agreement as alleged was executed on 26.06.1973 and no amount whatsoever was received by Smt. Khazani, for which the receipt of ` 55,000/- is alleged to have been executed. The possession of the suit land was with the appellants on 26.06.1973. A sale deed was also executed in favour of the appellants on 16-08-1973 by the Attorney of Smt. Khazani, in terms of the agreement dated 04.05.1973.

9. The appellants who were arrayed as the defendants No.2 to 4 in the Suit also filed written statement, and after the respondents No.1 and 2 amended the plaint, filed an amended written statement. It was denied by the appellants that Smt. Khazani had entered into an agreement to sell the suit land to the respondents No.1 and 2. It was asserted that Smt. Khazani had already entered into an agreement to sell the suit land with the appellants on 04.05.1973 for a sum of ` 40,000/- and had received a sum of ` 10,000/- as part payment of the sale price. It was submitted that the alleged agreement produced by the respondents No.1 and 2 was a fabricated document. The appellants had come to know on 25.06.1973 that the respondent No.1 RFA No.44/1986 Page 11 of 72 Shri Sardar Singh had agreed to sell to Smt. Khazani some land in village Bamnaula for ` 20,000/- and had received a sum of ` 1,000/- from Smt. Khazani as advance, and some documents were executed. Apparently, the above occasion afforded an opportunity and the respondents No.1 and 2 had fabricated the documents in suit at that time. The allegations as to the delivery of possession of the suit land, to the respondents No.1 and 2 were specifically denied. It was asserted that on the day in question, Smt. Khazani was not in possession of the suit property. The appellants were reversioners of Smt. Khazani, who was living in village Kharkhari, and the suit land was in the cultivatory possession of the appellants even prior to 04.05.1973. The sale in favour of the appellants was legal and binding and the appellants were the full owners of the suit land.

10. On the pleadings of the parties, the following issues were framed for consideration on 12.02.1975:-

"1. Whether there was any agreement dated 25th June, 1973, whereby the late Smt. Khazani agreed to sell the land in suit to the plaintiffs and whether she received a sum of Rs.1,000/- at that time?

RFA No.44/1986 Page 12 of 72

2. Whether there was any subsequent agreement dated 26th June 1973, whereby the said Smt. Khazani received Rs.55,000/- and delivered possession to the plaintiffs?

3. If issue Nos.1 and 2 are decided in the affirmative, whether the said agreements were invalid and in-operative because of fraud, misrepresentation on account of the fact that Smt. Khazani had not willingly given her consent to the same.

4. Whether the said Smt. Khazani had executed a previous agreement to sell in favour of defendants 2 to 4 on 4th May 1973, and if so, what effect has that agreement on the agreements relied upon by the plaintiffs.

5. In case defendants 2 to 4 are found to have an earlier agreement to sell in their favour, which has resulted in a sale deed in their favour, are the plaintiffs entitled to a decree for specific performance based on subsequent agreements?

6. Whether the plaintiffs were ready and willing to perform their part of the contract, if any and whether Smt. Khazani failed to perform her part of the contract?

7. Are the plaintiffs entitled to the alternative relief of return of Rs.56,000/- or any lesser sum against the estate of Smt. Khazani or against her legal representatives?

8. Relief."

11. Additional issues were also framed on 23.09.1983:-

"1. Whether after the execution of the sale deed dated 16.8.1973 deceased defendant No.1 RFA No.44/1986 Page 13 of 72 was left with less than the 8 standard acres of land with her as alleged? If so to what effect.

2. Whether deceased defendant No.1 after the execution of the agreement to sell dated 25.6.1973 was left with less than 8 standard acres of land. If so to what effect?

3. Whether the agreement to sell dated 25.6.1973 is hit by Section 5 of Delhi Land (Restriction of Transfer) Act 1972 as alleged? OPD"

12. It is proposed to deal with the appeal in issue-wise for the sake of clarity and with a view to avoid prolixity in view of the voluminous records.

ISSUE NO.1 "Whether there was any agreement dated 25th June, 1973, whereby the late Smt. Khazani agreed to sell the land in suit to the plaintiffs and whether she received a sum of Rs.1,000/- at that time?"

13. As regards Issue No.1, the learned trial court came to the conclusion that the agreement dated 25.06.1973 was executed by Khazani Devi voluntarily for the sale of the property and she had received ` 1,000/- as earnest money and agreed to sell the property to the respondents No.1 and 2 on execution of sale deed after obtaining „No Objection Certificate‟. In arriving at the aforesaid conclusion, RFA No.44/1986 Page 14 of 72 the learned trial court took into account the testimony of PW-3 Dalel Singh, who deposed that Khazani had agreed to sell the land to Sardara plaintiff and the agreement to sell dated 25th June, 1973 Exhibit PW-3/1 was executed in his presence and in the presence of Chandan Singh, husband of Khazani. He deposed that both he and Chandan Singh had put their signatures on the Agreement to Sell as witnesses. He stated that on the execution of the document, Sardara paid ` 1,000/- to Khazani and a receipt was duly executed, which is Exhibit PW-3/2. The said receipt was thumb marked by Khazani and signed by him as well as by Chandan Singh. As per this witness, on 26.06.1973, another document was also executed in the same manner, which was Exhibit PW-3/3. It is Exhibit PW-3/3 by which Khazani had received ` 55,000/- more. Dalel Singh proved the receipt for the aforesaid sum of ` 55,000/- as Exhibit PW-3/4, which, he stated, was thumb marked by Khazani and signed by Chandan Singh and him. According to this witness, Khazani delivered possession to Sardara and the defendants No.2 to 4 (the appellants herein) were never in possession of the land.

RFA No.44/1986 Page 15 of 72

14. In the course of his cross-examination, PW-3 Dalel Singh admitted that Sardar Singh owned land in village Bamnaula, Tehsil Jhajjar, which Sardar Singh had agreed to sell to Khazani and an Agreement to Sell was executed in respect of this land on 26.06.1973, which is Exhibit D-1 and bears his signatures. Receipt Exhibit D-2, he admitted, also bears his signatures, which Sardar Singh had signed. Subsequently however, he stated that the first agreement, i.e., PW-3/1 and Exhibit D-1 were arrived at and executed on the same day. PW-3 Dalel Singh also admitted that 2 Kilas of land were agreed to be sold to one Ramanand of Village Kapashera by Khazani, which agreement was also executed in his presence. All the aforesaid documents, he stated, were executed by a scribe. Significantly, though Dalel Singh stated that Khazani had told Sardar Singh to take possession of the suit land, he admitted:

"It is correct that Settlement Officer recognized defendants 2 to 4 in possession of the land at the time of preparation of Consolidation record. ........................... I do not know that the Girdawari from the very beginning is entered in the names of defendants 2 to 4."

RFA No.44/1986 Page 16 of 72

15. Mr. Gupta, the learned counsel for the appellants contended that Smt. Khazani had never agreed to sell the land to the plaintiffs as alleged. In fact, Sardar Singh had land in village Bamnaula, Tehsil Jhajjar and Sardara had approached Khazani (deceased) for sale of the said property for which an Agreement to Sell was to be executed. Khazani came to Delhi for the execution of the said Agreement to Sell and also because she had already planned to come to Delhi for the execution of an Agreement to Sell with Ramanand, who was purchasing a part of her land. She had not agreed to sell the suit land as in fact she had already agreed to sell the said land to the appellants on 04.05.1973 for a sum of ` 40,000/- by Agreement to Sell Exhibit D1W1/1 and had received a sum of ` 10,000/- from them as earnest money. Several documents were executed, which were thumb marked by Khazani. Both Khazani and her husband Chandan Singh were illiterate and Sardara, who had accompanied Khazani, might have got her thumb impression and the signatures of Chandan Singh by fraud on some papers. Moreover, the appellants were collaterals of the father of Khazani. They were already in possession of the RFA No.44/1986 Page 17 of 72 property as Khazani was a resident of Kharkhari. On 16th August, 1973, Khazani had received the balance sale price in the sum of ` 30,000/- from them and executed a sale deed Exhibit D2W1/1, which was duly registered with the Sub-Registrar on 13th September, 1973. She had also executed an irrevocable Power of Attorney in favour of Jagdish, who completed the formalities for the execution of the sale deed and for obtaining the „No Objection Certificate‟. Thus, not only the Agreement to Sell dated 04.05.1973 was entered into prior to the alleged Agreement to Sell dated 25.06.1973, but a registered receipt for a sum of ` 30,000/, Ex.D2W1/2 and a registered irrevocable Power of Attorney for the execution of the sale deed, both dated 16th August, 1973 and a registered Sale Deed dated 13th September, 1973 were on record by virtue of which the appellants were full owners of the suit land.

16. Mr. Rajesh Yadav, the learned counsel for the plaintiffs No.1 and 2 late Sardar Singh and his son Ishwar Singh, on the other hand, contended that the Agreement to Sell dated 25.06.1973 had been proved to the hilt by PW-3 Dalel Singh, whose testimony was RFA No.44/1986 Page 18 of 72 corroborated by PW-9 Tara Chand and PW-10 (wrongly numbered as PW9) Sardar Singh, the respondent No.1 herein. It was further contended that all the aforesaid documents stood proved by the testimony of PW-4, Shri G.C. Kumar, Advocate. It was the case of the respondents No.1 and 2 that all the documents had been scribed by scribe Fateh Chand, who having died, his son G.C. Kumar, Advocate was examined by the respondents as PW-4. PW-4 identified the signatures of his father on documents PW-3/1 to PW- 3/4 and stated that the same were in the handwriting of his father and were also entered in the register maintained by his father. He placed on record copies of the relevant extracts of the relevant register as Exhibit D-3. This witness was not at all cross-examined.

17. Reference was also made by Mr. Yadav to the testimony of PW-8 Ramanand, who stated in the witness box that Khazani, who was the daughter of Raja Ram of Village Bijwasan and whose husband was Chandan, had entered into an Agreement to Sell with Sardar Singh on payment of ` 1,000/- by Sardar Singh as earnest money. Mr. Yadav contended that not even a suggestion was put to RFA No.44/1986 Page 19 of 72 this witness that no Agreement to Sell was arrived at between Sardar Singh and Khazani, apart from a vague suggestion that Sardar Singh did not pay anything to Khazani. Mr. Yadav further contended that the Agreement to Sell dated 25.06.1973, Exhibit PW-3/1 was on a stamp paper. Khazani had admitted that she had gone to Delhi along with her husband Chandan Singh and had signed some papers for the purchase of property from Sardara and for the sale of a small portion of land to Ramanand. On the other hand, the alleged agreement in favour of the appellants was on an unstamped paper and no explanation has come forward as to why it was not executed on stamp paper. The learned trial court had, therefore, rightly come to the conclusion that the document dated 04.05.1973 was a fabricated document and that Khazani, being a relative of the appellants, had come under their pressure to execute the aforesaid document.

18. Mr. Rajesh Yadav, the learned counsel for the respondents, further submitted that insofar as the Agreement to Sell dated 4th May, 1973 (Exhibit D1W1/1) is concerned, the same has not been proved in evidence by the appellants nor any of the witnesses to the said RFA No.44/1986 Page 20 of 72 agreement have appeared in the witness box to depose about the execution of the agreement. Further, a reading of the said agreement shows that the said agreement does not contain any description of the land and the place where the land is situated is not set out in the agreement, which merely states:

"whereas the executant has agreed to sell 37 bighas 5 biswas of land comprising in Khasra No. 485/1(4-8) 533, (8 bighas 8 bis.) 888 (17 bis.) 887 (11 bis.) 830 (2 big. 3 bis) 1332 (3 bighas 19 bis.) 1336 (1 big. 1 bis.) 1572 (1 big. 9 bis.) 1825 (1 big. 6 bis.) 1919/2 (12 bis.) 1936/1920 (1 big. 6 bis.) 2011 (3 big. 3 bis.) 3285/2164 (11 bis.) 18/13 (4 big. 9 bis.) 18/1 (2 big. 12 bis.)."

19. Rejoining to the arguments raised by Mr. Yadav, Mr. Gupta on behalf of the appellants contended that no objection having been raised to the Agreement to Sell dated 4th May, 1973 Exhibit D1W1/1, being unstamped, either in the pleadings or at the time of exhibiting of the said document, the respondents had lost the right to raise such an objection. In this context, he relied upon the decisions rendered in Delhi Box Factory and Anr. vs. Munshi Lal Abhinandan Kumar 28 (1985) DLT 272; S.K. Gupta (Through LRs) vs. Avtar Singh Bedi & RFA No.44/1986 Page 21 of 72 Ors. 122 (2005) DLT 437 and Shyamal Kumar Roy vs. Sushil Kumar Agarwal AIR 2007 SC 637.

20. Mr. Gupta contended that the learned trial court though rightly disbelieved the agreement dated 26.06.1973 Exhibit DW-3/3 and the receipt for the sum of ` 55,000/-, Exhibit DW-3/4, and to this extent discarded the testimony of PW-3 Dalel Singh, as a matter of fact the entire testimony of PW-3 Dalel Singh was unworthy of credence as was evident from the cross-examination of PW-3 Dalel Singh. In his said cross-examination, PW3 admitted that the agreement between Khazani and Sardara for the purchase of land by Khazani from Sardara, Exhibit D-1 was executed in his presence as also the receipt Exhibit D-2, upon which he (Dalel Singh) identified the signatures of Sardara. In the course of his cross-examination also, PW-3 Dalel Singh admitted that 2 Kilas of land was agreed to be sold by Khazani to Ramanand of Village Kapashera, and that this agreement was also executed along with the document Exhibit D-1, at the same time. In subsequent cross-examination, Dalel Singh falsified the earlier statement made by him that possession was handed over to the RFA No.44/1986 Page 22 of 72 respondents No.1 and 2 by admitting that at the time of consolidation proceedings, the Settlement Officer had recognised the appellants to be in possession of the land at the time of the preparation of the Consolidation Record. Dalel Singh also admitted that he did not know that in the Girdawari from the very beginning, the names of the appellants were entered and also as to whether Sardara had applied for correction of the Girdawari in his favour.

21. As regards the testimony of PW-9 Tara Chand, Mr. Gupta the learned counsel for the appellants pointed out, and I think rightly so, that the testimony of PW-9 Tara Chand is entirely hearsay and that no part of his deposition is from his own knowledge, except possibly the assertion that he knew Khazani, daughter of Raja Ram, Village Bijwasan, Delhi and her husband Chandan Singh as also the plaintiff. As regards PW-10 Sardar Singh, who appeared as his own witness, the learned counsel for the appellants pointed out that this witness has falsified the entire case of the respondents as set out in the plaint. According to this witness, on 25th June, 1973, a sum of ` 1,000/- was paid as earnest money to Khazani and agreement Exhibit RFA No.44/1986 Page 23 of 72 PW-3/1 as well as receipt Exhibit PW-3/2 were executed. After the agreement, when they went to their village and were sitting at the tea stall of Tara Chand, Khazani stated that she was required to give „bhaat‟ on the occasion of the marriage of some child of the sister of Chandan and as such needed money badly and that they wanted the whole sale consideration at once, and thereupon on the next day, i.e., on the 26th, he (Sardara) paid ` 55,000/-. On that day, there was an agreement executed about possession, which was Exhibit PW-3/3. Receipt Exhibit PW-3/4 was also obtained from Khazani. Thereafter, on 27th, he took possession of the land in the presence of Chandan and one other relation of theirs, whose name he did not recollect.

22. Mr. Gupta rightly pointed out that the „bhaat‟ story narrated by PW-10 Sardar Singh, in his examination-in-chief, was entirely beyond pleadings. His further statement made in chief that he took possession of the land on 27th was also not in consonance with the averments set out in the plaint. The witness stated that he had taken possession of the land in the presence of D1W1 Chandan Singh, but the said witness categorically stated that the possession was in fact RFA No.44/1986 Page 24 of 72 given to the appellants in whose favour the Agreement to Sell dated 04.05.1973 had been executed. Then again, in cross-examination, PW-10 Sardar Singh stated that stamp was purchased from the treasury for the agreement dated 26th June, 1973, but the said agreement was in fact executed on a stamp paper dated 25th June, 1973.

23. Having heard the learned counsel for the parties, I am of the view that the trial court was not correct in discarding the Agreement to Sell dated 04.05.1973 executed by Khazani in favour of the appellants herein, who were her collaterals. The legal position is not in dispute that the mere production and marking of a document as an exhibit by the Court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. But it is equally well settled that once an instrument has been admitted in evidence, such admission should not be questioned subsequently on the ground that the instrument was not duly stamped. Section 36 of the Indian Stamp Act mandates so and reads as under:

"Admission of instrument where not to be questioned - Where an instrument has been RFA No.44/1986 Page 25 of 72 admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."

24. In Javer Chand and Others vs. Pukhraj Surana, AIR 1961 SC 1655, it was observed as under:

"That section (section 36 of the Indian Stamp Act) is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question, at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by section 61 which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped it has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far- reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon RFA No.44/1986 Page 26 of 72 as the document is. tendered in evidence and before it is marked as an exhibit in the case."

25. In Devachand and Anr. vs. Harichand Kama Raj, ILR (1889) 13 Bombay 449 (FB) unstamped promissory notes were admitted in evidence. It was held that the promissory notes having been once admitted in evidence could not afterwards be rejected on the ground of their not being duly stamped.

26. This Court in the case of Delhi Box Factory and Anr. (supra), following the decision of the Supreme Court in Javer Chand (supra), held that under Section 36 of the Indian Stamp Act, even an unstamped receipt requiring stamp duty once admitted into evidence cannot be rejected later on. A similar view was expressed by the Delhi High Court in S.K. Gupta's case (supra) wherein it was reiterated that once a document has been marked as an exhibit in a case and has been used by the parties in examination and cross- examination of their witnesses, Section 36 of the Stamp Act, 1899 comes into operation. The reasons are obvious. If a party challenges admissibility of a document being unstamped or inadequately stamped, the opposite party can make up the deficiency with penalty RFA No.44/1986 Page 27 of 72 and overcome the legal bar. The party challenging the admissibility of a document is, therefore, required to be alert to see that the document is not admitted in evidence by the Court, but once admitted in evidence the document cannot be discarded for insufficiency of stamp.

27. In a recent judgment, the Supreme Court in Shyamal Kumar Roy (supra) referring to its earlier judgment in Javer Chand (supra) held as under:

"16. The said decision, therefore, is an authority for the proposition that Section 36 would operate even if a document has been improperly admitted in evidence. It is of little or no consequence as to whether a document has been admitted in evidence on determination of a question as regards admissibility thereof or upon dispensation of formal proof therefore. If a party to the lis intends that an instrument produced by the other party being insufficiently stamped should not be admitted in evidence, he must raise an objection thereto at the appropriate stage. He may not do so only at his peril.

x x x x

20. If no objection had been made by Appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend RFA No.44/1986 Page 28 of 72 that the said document is inadmissible in evidence.

21. Appellant having consented to the document being marked as an exhibit has lost his right to reopen the question.

22. What was necessary was that the document should be marked in presence of the parties and they had an opportunity to object to the marking of the document. The question of judicial determination of the matter would arise provided an objection is taken what document is tendered in evidence and before it is marked as an exhibit in the case. Before the learned Trial Judge, reliance was placed on a decision of a learned Single Judge of the Andhra Pradesh High Court in Vemi Reddy Kota Reddy v. Vemi Reddy Prabhakar Reddy [(2004) 3 ICC 832]. In that case there was nothing on record to show that the document was marked as an exhibit after an objection has been raised. The said case, therefore, has also no application to the facts of the present case."

28. There was, therefore, in my view, no justification for the trial court to have discarded the Agreement to Sell dated 04.05.1973 Exhibit D1W1/1 on the ground that it was not executed on a stamp paper, more so, when there was not a whisper in the pleadings to this effect nor any objection was raised in the course of evidence to its admissibility on this score. This document though was proved in evidence by D1W1 Chandan Singh, its execution was corroborated RFA No.44/1986 Page 29 of 72 by the appellant Hazari, who appeared in the witness box as D2W1. Hazari also stated that they (the appellants) were in occupation of the land in suit at the time of execution of Exhibit D1W1/1, and that symbolic possession of the land in suit was also delivered to them after the execution of the sale deed Exhibit D2W1/1. He further stated that at the time of payment of ` 30,000/- balance consideration on 16-08-73, a receipt was executed and the same was got registered before the Sub-Registrar, which was Exhibit D1W1/2 as also a registered Power of Attorney by Khazani appointing Jagdish as her attorney to execute the sale deed in favour of the appellants Exhibit D1W1/3.

29. The testimony of the appellant Hazari is borne out by the testimony of D1W1 Chandan Singh, husband of Khazani who categorically stated in the witness box that his wife had executed an Agreement to Sell in regard to the suit land in favour of the appellants in his presence, Exhibit D1W1/1, which bears the thumb mark of his wife and his own thumb mark as a witness. He also stated that he had seen the receipt dated 16.08.1973 Exhibit D1W1/2 which bears the RFA No.44/1986 Page 30 of 72 thumb mark of his wife, which was also got registered with the Sub- Registrar and at the time of registration he was present. He further stated that his wife nominated the son of Hazari, as her attorney to execute the sale deed, by a Power of Attorney dated 16th August, 1973, which bears the thumb mark of Khazani and his own thumb mark as a witness. In his cross-examination, he stated that Jagdish had executed a sale deed ` 40,000/- in favour of the appellants in his presence on behalf of his wife, on a stamp paper, which was also got registered and so from their side the possession of the land in suit had been given to the appellants. In the course of his cross-examination, he categorically denied the suggestion that his wife had agreed to sell 37.5 bighas of land along with the house to Sardara and further denied the suggestion that Khazani had received by her, ` 1,000/- on 25th June, 1973 and that on 26.06.1973 a sum of ` 55,000/- was received and thereafter documents Exhibit PW-3/3 and Exhibit PW-3/4 were executed. He, however, admitted his signatures on Exhibit PW-3/3, but stated that he did not know if Exhibit PW-3/3 and Exhibit PW-3/4 bear the thumb mark of his wife.

RFA No.44/1986 Page 31 of 72

30. In view of the aforesaid, in my view, the Agreement to Sell dated 04.05.1973 executed by Khazani in favour of the appellants ought not to have been disbelieved by the learned trial court. Even assuming for the sake of argument that Khazani thereafter executed another Agreement to Sell dated 25th June, 1973, the said Agreement to Sell can be of no significance in view of the prior Agreement to Sell, more so, as the prior Agreement to Sell ultimately culminated in the execution of a duly registered sale deed in favour of the appellants.

31. Issue No.1 was, therefore, wrongly decided by the trial court and the findings of the trial court on this issue are held to be unsustainable in view of the evidence on record.

ISSUE NO.2 "Whether there was any subsequent agreement dated 26th June 1973, whereby the said Smt. Khazani received Rs.55,000/- and delivered possession to the plaintiffs?"

32. The findings of the learned trial court on this issue succinctly stated are that from the examination of the document Exhibit PW-3/3 dated 26th June, 1973 and more particularly from the vendor‟s note RFA No.44/1986 Page 32 of 72 thereon that the stamp paper was sold on 25.06.1973, it is clear that the document is a fabricated document. The trial court also noted that PW-3 Dalel Singh also does not support about the talk when money was demanded, and that there are discrepancies in the statements of PWs Sardara and Tara Chand to prove this fact. PW10 Sardar Singh in his testimony stated that when the agreement dated 25.06.1973 was executed they went to the village and sat at the tea stall of PW9 Tara Chand, where Khazani stated that she wanted to give „bhaat‟ on the occasion of the marriage of child of sister of Chandan and as such needed money badly, and thereupon on the next day, i.e., on 26th June, 1973, a sum of ` 55,000/- was paid to her. This version is not corroborated by PW-9 Tara Chand and the testimony of this witness shows that there was no talk of demand of ` 55,000/- on 25.06.1973 at his tea stall, and the execution of the receipt and agreement on 26.06.1973 on the next day. All that the witness stated was that on 26.06.1973, he was told in the evening that ` 55,000/- had been paid to Khazani on that day and Khazani told him that she had received ` 56,000/- and had delivered possession to the plaintiffs. The trial court RFA No.44/1986 Page 33 of 72 further held that there was no explanation as to why the stamp paper was purchased on 25.06.1973 for the execution of this agreement, which, it is claimed was executed on 26.06.1973. Moreover, there was no proof as to how this amount had been arranged by the respondents. The explanation of PW-9 Sardar Singh that he had received some money from the bank and some money from his sons does not prove that he was in possession of the sum of ` 55,000/-.

33. So, a doubt was cast upon the execution of the agreement dated 26.06.1973 by Smt. Khazani and regarding the receipt for the aforesaid amount Exhibit PW-3/4. By a necessary corollary, if no agreement to surrender possession of the land dated 26th June, 1973 was executed, there can be no question of handing over the possession to the respondents. Accordingly, this issue was rightly decided by the trial court in favour of the appellants and against the respondents.

ISSUE NO.3 "If issue Nos.1 and 2 are decided in the affirmative, whether the said agreements were invalid and in-operative because of fraud, misrepresentation on account of the fact that RFA No.44/1986 Page 34 of 72 Smt. Khazani had not willingly given her consent to the same.?"

34. In view of the fact that Issue No.1 was decided by the trial court in favour of the respondents and Issue No.2 in favour of the appellants, the trial court decided this issue regarding agreement dated 25th June, 1973 in favour of the respondents. However, in view of my findings recorded on Issue No.1, this issue must necessarily be decided in favour of the appellants. It is not in dispute that a number of papers were thumb marked by Smt. Khazani on 25-6-73, on which day she was simultaneously entering into an Agreement to sell a part of her land to PW8 Ramanand and at the same time entering into an Agreement to Purchase land from the deceased respondent no.1, Sardar Singh. In such a situation, the statement of D1W1 Chandan Singh, husband of Khazani, must be believed that he and his wife being illiterate had affixed their thumb-marks on various documents, assuming that the same related to one of the aforesaid two transactions, and that no agreement had been entered into between Sardar Singh and Smt. Khazani for the sale of Khazani‟s land, in view RFA No.44/1986 Page 35 of 72 of the Agreement to Sell dated 4-5-1973 already entered into in respect of the suit land between Smt. Khazani and the appellants.

ISSUE NO.4 "Whether the said Smt. Khazani had executed a previous agreement to sell in favour of defendants 2 to 4 on 4th May 1973, and if so, what effect has that agreement on the agreements relied upon by the plaintiffs?"

35. In view of my findings contained in Issue No.1, this issue must be decided in favour of the appellants who have duly proved on record the execution of the agreement dated 4th May, 1973 apart from receipt for the balance sum of ` 30,000/- executed on 16th August, 1973, Power of Attorney dated 16th August, 1973, and affidavit dated 16th August, 1973 of Smt. Khazani that she had sold her land to the appellants and had delivered possession to them and Sale Deed dated 16th August, 1973. The receipt, the Power of Attorney and the Sale Deed, all dated 16th August, 1973, are registered documents and in all the said documents there is a specific reference to the agreement dated 4th May, 1973. There does not, therefore, appear to be any plausible reason to disbelieve the Agreement to Sell executed on 4th May, 1973. RFA No.44/1986 Page 36 of 72 The contention of the contesting respondents that the Agreement to Sell must be on a stamp paper has been dealt with hereinbefore. As for the finding of the learned trial court that there was no necessity for the registration of the receipt dated 16th August, 1973 and the registration thereof shows the malafides of the appellants, the same is meaningless and far-fetched. Accordingly, this issue is also decided by this Court in favour of the appellants and against the respondents No.1 and 2.

ISSUE NO.5 "In case defendants 2 to 4 are found to have an earlier agreement to sell in their favour, which has resulted in a sale deed in their favour, are the plaintiffs entitled to a decree for specific performance based on subsequent agreements?"

36. On this issue, the learned trial court held the respondents entitled to a decree for specific performance on payment of the balance sale consideration of ` 59,000/- to the legal representatives of Smt. Khazani. However, in view of my findings rendered hereinbefore, that the appellants had an earlier Agreement to Sell in their favour, which had culminated in the execution of a sale deed in RFA No.44/1986 Page 37 of 72 their favour, the learned counsel for the parties were heard on this issue.

37. Mr. Gupta, the learned counsel for the appellants submitted that para 11 of the plaint shows that the respondents No.1 and 2 had specific knowledge of the sale deed registered on 13th September, 1973 at the time of the filing of the suit by them. In para 11, it is set out by the respondents that they had come to know that on 13th September, 1973, Khazani Devi had executed a sale deed and got it registered in favour of the appellants for a consideration of ` 40,000/-, in respect of the land mentioned in para No.1 of the plaint, and which was the subject matter of the agreement dated 25.06.1973. This being so, Mr. Gupta contended that it was indeed surprising that the legal notice dated 14th September, 1973 (Exhibit PW-9/1) sent to Khazani Devi by the respondents No.1 and 2 was conspicuously silent about the sale consideration for the alleged agreement dated 25th June, 1973, about the alleged agreement dated 26.06.1973 and about the readiness and willingness of the respondents No.1 and 2 to execute the sale deed. All that the notice dated 14th September, 1973, which was sent RFA No.44/1986 Page 38 of 72 a day after the respondents No.1 and 2 came to know about the execution of the sale deed in favour of the appellants, states that a „No Objection‟ had been issued by the revenue department on 11.09.1973 and, therefore, the noticee was requested to have the land mentioned in the agreement dated 25.06.1973 registered in the name of Sardar Singh and Ishwar Singh, failing which a suit would be filed by the latter. This notice, Mr. Gupta contended, and I think rightly so, shows that the agreement dated 26.06.1973 was a fabricated document, fabricated after the respondents No.1 and 2 came to know about the execution of the sale deed in favour of the appellants. Mr. Gupta contended that in spite of this, no prayer was made by them for a declaration that the sale deed dated 16th August, 1973 be declared null and void or even that the appellants should be asked to join in the Deed of Conveyance in their favour. The learned trial court also did not deem it expedient to frame any issue as to whether the appellants were bonafide purchasers for consideration, despite the fact that a specific plea had been raised in the written statement filed to the RFA No.44/1986 Page 39 of 72 amended plaint, that the appellants were bonafide purchasers for consideration, as under:

"Para 9 of the plaint is wrong and denied. Shrimati Khajani could not sell the suit land to the plaintiffs or to any one else. The answering defendants are full owners of the suit land. They are bonafide purchasers for consideration and knew nothing about the alleged deal between the plaintiffs and Shrimati Khajani. ........................."

38. The contention of Mr. Gupta was that if the appellants were bonafide purchasers for consideration and fell within the scope and ambit of the exception carved out by Section 19(b) of the Specific Relief Act, it was incumbent upon the respondents to have sought cancellation of the sale deed of the appellants or to have asked them to be joined in the execution of the sale deed in their favour. Reference was made in this regard by Mr. Gupta to the judgment of the Hon‟ble Supreme Court in Durga Prasad and Anr. vs. Deep Chand and Ors., AIR 1954 SC 75, wherein the Supreme Court has dealt with the question as to what should be the proper form of a decree in such cases. In paragraph 37 of its aforesaid decision, the Supreme Court observed that "according to one point of view, the proper form of RFA No.44/1986 Page 40 of 72 decree is to declare the subsequent purchase void as against the plaintiff and direct conveyance by the vendor alone. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchaser alone". After weighing the pros and cons of all three points of view, the Supreme Court in paragraphs 40 to 42 of its decision discussed the issue as follows:

"40. First, we reach the position that the title to the property has validly passed from the vendor and the resides in the subsequent transferee. The sale to him is not void but only voidable at the option of the earlier "contractor". As the title no longer rests in the vendor it would be illogical from a conveyancing point of view to compel him to convey to the plaintiff unless steps are taken to re-vest the title in him either by cancellation of the subsequent sale or by reconveyance from the subsequent purchaser to him. We do not know of any case in which a reconveyance to the vendor was ordered but Sulaiman C.J. adopted the other course in - „Kali Charan v. Janak Deo', A.I.R. 1932 All 694 (B). He directed cancellation of the subsequent sale and conveyance to the plaintiff by the vendor in accordance with the contract of sale of which the plaintiff sought specific performance. But though this sounds logical the objection to it is that it might bring in its train complications RFA No.44/1986 Page 41 of 72 between the vendor and the subsequent purchaser. There may be covenants in the deed between them which it would be inequitable to disturb by cancellation of their deed. Accordingly, we do not think that is a desirable solution.

41. We are not enamoured of the next alternative either, namely, conveyance by the subsequent purchaser alone to the plaintiff. It is true that would have the effect of vesting the title to the property in the plaintiff but it might be inequitable to couple the subsequent transferee to enter into terms and covenants in the vendor's agreement with the plaintiff to which he would never have agreed had he been a free agent; and if the original contract is varied by altering or omitting such terms the court will be remaking the contract, a thing it has no power to do; and in any case it will no longer be specifically enforcing the original contract but another and different one.

42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in - 'Kafiladdin v. Samiraddin', A.I.R. 1931 Cal 67 (C) and appears to be the English practice. See Fry on Specific Performance, 6th Edn., page 90, paragraph 207; also - 'Potter v. Sanders', RFA No.44/1986 Page 42 of 72 (1846) 67 ER 1057 (D). We direct accordingly."

39. It may be noted at this juncture that the aforesaid decision of the Supreme Court was followed recently in atleast two subsequent decisions viz., Shri Vishwa Nath Sharma v. Shyam Shankar Goela and Anr. (2007) 10 SCC 595 and Seenivasan vs. Peter Jebaraj and Anr. (2008) 12 SCC 316.

40. Section 19(a) and (b) of the Specific Relief Act, 1963, provides as under:

"19. Relief against parties and persons claiming under them by subsequent title.- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-

(a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;"

41. It is well settled that ordinarily, specific performance of a contract can be enforced only against a party thereto. However, Section 19(b), as is apparent from a reading thereof, allows specific RFA No.44/1986 Page 43 of 72 performance to be enforced against persons acquiring title subsequent to the date of the agreement between the parties except he falls within the exception carved out by the legislature. In equity, it was felt that after entering into an Agreement to Sell the vendor was in a position of trust qua the purchaser and if the vendor thereafter conveys title to a third party, the title of such third party is subject to the agreement of its vendor. Thus viewed, I find that in the present case the respondents No.1 and 2 could not have been allowed the relief of specific performance qua the appellants, the Agreement to Sell in whose favour is of a date prior to that in favour of the respondents No.1 and 2. Section 19(b) of the Specific Relief Act, 1963 has thus to be read to mean that if a party relies upon an Agreement to Sell of a date prior to the date of the Agreement to Sell of which specific performance is claimed, the relief of specific performance cannot be granted to the party whose Agreement to Sell is of a subsequent date. Reference in this regard may be made to a recent decision of this Court in Rekha Nankani vs. Kulwant Singh RFA No.44/1986 Page 44 of 72 Sachdeva and Anr., 2009 (107) DRJ 282, wherein it was held as under:

"9. Ordinarily, specific performance can be ordered only against parties to the contract. However, Section 19 (b) (Supra) allows specific performance to be enforced against persons acquiring title subsequent to the date of the agreement on the principle of equity. It was felt that after entering into an agreement to sell the vendor was in a position of trust qua the purchaser and if conveys title to a 3rd party, such third party takes such title subject to the agreement of its vendor. The principle was that a vendor could not convey more than what he himself has. If property was bound by the agreement of the owner/vendor, then merely because the vendor had transferred the property, the transferee will not acquire rights better than that of the vendor and will be subject to the liability of the vendor. The division bench in Sampat Ram v. Baboo Lal AIR (1955 ) All. 24 held that the plaintiff can claim no equities against a subsequent title holder whose agreement was of a date prior to that of the plaintiff. I respectfully concur with the views of Lord Buckmaster and of the division bench of the Allahabad High Court and find the plaintiff in the present case not entitled to the relief of specific performance, against defendant No.2, agreement to sell in whose favour is of a date prior to that in favour of plaintiff. Section 19 (b) of the Specific Relief Act, 1963 has thus to be read to mean that even if title in favour of defendant is of a date RFA No.44/1986 Page 45 of 72 subsequent to the date of agreement to sell of which specific performance is claimed, but if such title is relatable to an agreement to sell of a date prior to the date of the agreement of which specific performance is claimed, the relief will not be granted."

42. Dealing next with the contention raised by the counsel for the appellants that the appellants were bonafide purchasers for consideration and accordingly it was incumbent upon the respondents no.1 and 2 to have sought cancellation of the appellants‟ Sale Deed or in the alternative to have made a prayer that the appellants be asked to join in the execution of the decree, Mr. Yadav referred to three Supreme Court decisions dealing with the scope of suits for specific performance and the legal position of the real and the subsequent purchaser therein. First, reference was made to the decision of the Supreme Court in the case of Ramesh Chandra Pattnaik vs. Pushpendra Kumari and Ors. (2008) 10 Supreme Court Cases 708 wherein the Supreme Court held, while dismissing the application for impleadment filed by the subsequent purchaser that the subsequent purchaser, was not at all a necessary party for the determination of the question arising in the suit for specific performance as to the RFA No.44/1986 Page 46 of 72 genuineness of the agreement for sale. Paragraphs 5 and 6 of the said judgment which are apposite read as under: -

"5. It is not in dispute that the petitioner filed suit in the year 1979 for specific performance of the alleged agreement of sale dated 10-4-1977. In that suit, the only scope of enquiry would be as to whether the said agreement was, in fact, executed between the petitioner and Respondent 1.

6. Respondent 10 is alleged to have entered into an agreement with Respondent 1 on 15-11- 1984 for sale of the property, which is the subject- matter of the suit filed by the petitioner. In respect of such an agreement, Respondent 10, could have filed a suit for specific performance but, as stated by the learned counsel appearing for the parties, no such suit has been filed. In our opinion Respondent 10 was not at all a necessary party for determination of the genuineness or otherwise of the agreement of sale which is said to have been entered into between the petitioner and Respondent 1."

43. Next reference was made to the case of Bharat Karsondas Thakkar vs. Kiran Construction Company and Ors. (2008) 13 Supreme Court Cases 658. In the said case the question arose as to whether in a suit for specific performance of an agreement of sale of immovable property instituted by the beneficiary of the agreement against the vendor, a stranger or a third party to the agreement who RFA No.44/1986 Page 47 of 72 had acquired an interest in the same property is either a necessary or a proper party to the suit. Answering the question in the negative, the Supreme Court observed:

"28. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of "parties to the agreement". The appellant also does not come within the ambit of Section 19 of thesaid Act, which provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi‟s case (supra). While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession, Their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character."

44. In the aforesaid decision reliance was placed by the Supreme Court on an earlier decision by it in the case of Kasturi vs. RFA No.44/1986 Page 48 of 72 Iyyamperummal (2005) 6 SCC 733 which was a three-Judge Bench decision. Paragraphs 11,12,15,17 and 19 of the said decision were relied upon, which read as follows:

"11. As noted herein earlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all. Lord Chancellor Cottenham in Tasker v. Small 1834 (40) Eng R 848 made the following observations:

"It is not disputed that, generally, to a bill for a specific performance of a contract for sale, the parties to the contract only are the proper parties; and, when the ground of the RFA No.44/1986 Page 49 of 72 jurisdiction of Courts of Equity in suits of that kind is considered it could not properly be otherwise. The Court assumes jurisdiction in such cases, because a Court of law, giving damages only for the non-

performance of the contract, in many cases does not afford an adequate remedy. But, in equity, as well as in law, the contract constitutes the right and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly as possible in the same situation as the defendant had agreed that he should be placed in. It is obvious that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it." [Emphasis supplied]

12. The aforesaid decision in Tasker (1834) 40 E.R. 848 was noted with approval in (1886 ) 2 Ch. 164 (De Hogton v. Money ) at page 170 Turner, L.J. observed:

"Here again his case is met by (1834) 40 E.R. 848 in which case it was distinctly laid down that a purchaser cannot, before his contract is carried into effect, enforce against strangers to the contract equities attaching to the property, a rule which, as it seems to me, is well founded in principle, for if it were otherwise, this Court might be called upon to adjudicate upon questions RFA No.44/1986 Page 50 of 72 which might never arise, as it might appear that the contract either ought not to be, or could not be performed."

x x x x

15. As discussed herein earlier, whether respondent Nos. 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of respondent Nos. 1 and 4 to 11 before the Court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted herein earlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and the respondent Nos. 2 and 3 and whether contract was executed by the appellant and the respondent Nos. 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against the respondent Nos. 2 and

3. It is an admitted position that the respondent Nos. 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted herein earlier that in the event, the respondent Nos. 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific RFA No.44/1986 Page 51 of 72 performance to a suit for title and possession which is not permissible in law. ...............

17. It is difficult to conceive that while deciding the question as to who is in possession of the contracted property, it would be open to the Court to decide the question of possession of a third party/ or a stranger as first the lis to be decided is the enforceability of the contract entered into between the appellant and the respondent No. 3 and whether contract was executed by the appellant and the respondent Nos. 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against the respondent Nos. 2 and 3. .......

19. ......It is well settled that in a suit for specific performance of a contract for sale the lis between the appellant and the respondent Nos. 2 and 3 shall only be gone into and it is also not open to the Court to decide whether the respondent Nos. 1 and 4 to 11 have acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of the contract for sale, that is to say in a suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against respondent Nos. 2 and 3 can only be adjudicated upon, and in such a lis the Court cannot decide the question of title and possession of the respondent Nos. 1 and 4 to 11 relating to the contracted property."

RFA No.44/1986 Page 52 of 72

45. Mr. Yadav, the learned counsel for the respondents no.1 and 2 submitted that in view of the fact that no appeal had been filed by the legal representatives of Khazani nor any cross-objections had been filed, the respondents no.1 and 2 were entitled to the confirmation of the decree for specific performance in their favour. He pointed out that in the prayer clause, the plaintiff had claimed a decree for specific performance of the agreement dated 25th June, 1973 in their favour and against Smt. Khazani, directing her to execute the Sale Deed and to get it registered "or any other subsidiary relief to the claim for specific performance." The appellants had been arrayed in the suit as defendants no.2 to 4 and hence there was no impediment to the grant of a decree for specific performance in favour of the plaintiffs with a direction to the defendants no.2 to 4 (the appellants herein) to execute the said decree and to get the same registered.

46. Reference was made in this regard by Mr. Yadav to the decision of the Supreme Court in the case of Durga Prasad (supra) and in particular to paragraph 42 of the said judgment wherein it is held that:

RFA No.44/1986 Page 53 of 72

"42. The proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff."

47. Reliance was placed by Mr. Yadav on the decision rendered by the Bombay High Court in Dilip Bastimal Jain vs. Baban Bhanudas Kamble and others AIR 2002 Bombay 279, wherein the plaintiff who had filed a suit against the vendor and also arrayed the subsequent transferees as co-defendants, had claimed specific performance of the contract of the agreement of sale dated 28th May, 1982 and prayed for cancellation of the sale deeds obtained by the subsequent transferees as also the original defendants. In paragraphs 12 and 13, the law was enunciated thus by the High Court:

"12. Having heard the parties at length, it is necessary to note that in order to decide the question relating to the pecuniary jurisdiction of the court, what is required to be seen is the allegations made, and relief claimed in the plaint. The allegations made in the plaint, if perused, it will be clear that the suit in question is nothing but a suit seeking substantive relief of specific performance of contract. The declaration of the invalidity of the sale deed in RFA No.44/1986 Page 54 of 72 favour of the subsequent transferees. i.e., the relief against defendant Nos. 6, 13 and 14 is nothing but an ancillary relief. If the plaintiff is able to establish his case of the specific performance against the defendant No. 1 (respondent No. 1) then it would be enough, if the defendant Nos. 6, 13 and 14 are joined as parties, to the suit because the only decree to be passed in the suit for specific performance against the subsequent transferees would be to ask them to join in conveyance with the defendant No. 1 owner. In that sense, it was not necessary at all for the plaintiff to ask for any such declaration as he did. It would have been enough for the plaintiff to have joined them as co-defendants so as to contend that the subsequent sale deeds were not binding on him. The argument of the learned Counsel appearing for the petitioner that the relief of declaration prayed for against the defendant Nos. 6, 13 and 14 was required to be valued in terms of money has, therefore, to be rejected.

13. The above legal position is no more res integra and is laid down in Vimala Ammal v. C. Suseela AIR 1991 Mad 209. Dwarka Prasad Singh v. Harikant Prasad Singh [1973] 2 SCR 1064 and Durga Prasad v. Deep Chand [1954] 1 SCR 360 . In all these cases, it has been held that when an action is brought for specific performance, the subsequent transferee would be a necessary party to the suit as the only decree that is required to be passed in such a suit (for specific performance) is against the original vendor. The subsequent transferees are required to be directed to join in the sale which is directed by a decree for specific performance RFA No.44/1986 Page 55 of 72 of contract. It has been held that the proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him, to the prior transferee. He does not join in any special convenants made between the prior transferee and his vendor, all that he does is to pass on his title to the prior transferee. This law was laid down by the Supreme Court firstly, in Durga Prasad's case (cited supra), would dispense with the necessity of obtaining any specific declaration against the subsequent transferee. It would not, therefore, be necessary at all to claim a declaration as such. This law was again reiterated in Dwarka Prasad Singh's case [1973] 2 SCR 1064 and subsequently followed in Vimala Ammal's case AIR 1991 Mad 209 .

Thus it was not at all necessary for plaintiff to claim declaration of invalidity of transfer of property made in favour of the subsequent transferees."

48. Having considered the matter from all angles, I am of the view that the Agreement to Sell in favour of the appellants in this case being a prior agreement qua the Agreement to Sell dated 25th June, 1973, on the basis of which specific performance is sought by the respondents No.1 and 2, the decisions of the Supreme Court relied upon by Mr. Yadav are clearly distinguishable on facts. In Ramesh RFA No.44/1986 Page 56 of 72 Chandra Pattnaik's case (supra), the Supreme Court was dealing with the case where specific performance was sought of an Agreement to Sell entered into prior to the Agreement to Sell relied upon by the contesting respondent. The Supreme Court rightly held that no suit for specific performance having been filed on the basis of the subsequent Agreement to Sell, the earlier Agreement to Sell must prevail and there was, therefore, no necessity for impleading the alleged subsequent vendee as a necessary party. Significantly also, there was no sale deed in the said case. In Bharat Karsondas Thakkar (supra), the Supreme Court was dealing with the issue as to whether a third party or a stranger to a contract can be added as a party in a suit for specific performance of the agreement and rightly observed that it would not be proper to convert the nature of the suit into a suit for title and possession by adding a third party thereto. In Kasturi's case (supra), which was relied upon in Bharat Karsondas Thakkar (supra) also, the admitted position was that certain parties who sought their addition did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific RFA No.44/1986 Page 57 of 72 performance of the contract for sale had been filed. Admittedly, they based their claim on independent title and possession of the contracted property. In the circumstances, the Supreme Court held that the scope of the suit for specific performance of the contract for sale could not be enlarged to a suit for title and possession, the same being impermissible in law. The aforesaid decisions, therefore, are of no assistance to the respondents No.1 and 2 as the facts in the said cases are of a different nature altogether.

49. In Dilip Bastimal Jain's case (supra), however, the Bombay High Court only reiterated the law as laid down by the Supreme Court in the case of Durga Prasad (supra) and in the case of Vimala Ammal vs. C. Suseela and Ors., AIR 1991 Mad. 209. In both these cases, it was held that when an action is brought for specific performance, the subsequent transferee would be a necessary party to the suit as the subsequent transferees are required to be directed to join in the sale. It was held that the proper form of decree is to direct the specific performance of a contract between the vendor and the prior transferee and direct the subsequent transferee to join in the RFA No.44/1986 Page 58 of 72 conveyance so as to pass on the title which resides in him, to the prior transferee. Thus, it was not at all necessary for the plaintiff to claim declaration and invalidity of transfer of property made in favour of the subsequent transferees. This is undoubtedly the correct law and the judgment in Durga Prasad (supra), as noted above, is also relied upon by the appellants‟ counsel to contend that even if the appellants had been subsequent transferees (which they are not), no decree for specific performance could have been passed by the learned trial court without joining them in the conveyance deed.

50. It is proposed next to deal with the contention of the learned counsel for the appellants that the findings on the Issue No.2 having gone against the respondents No.1 and 2 and the said findings not having been challenged by the respondents No.1 and 2 by filing an appeal or even cross-objections, the decree passed by the trial court cannot be modified so far as Issue No.2 is concerned. Reliance was placed in this regard by Mr. Gupta on the judgments rendered in the cases of Jadunath Basak vs. Mritunjoy Sett and Ors. AIR 1986 Calcutta 416 (DB), Superintending Engineer and Ors. vs. B. Subba RFA No.44/1986 Page 59 of 72 Reddy 1999 (4) SCC 423 and Banarsi & Ors. vs. Ram Phal 2003 (9) SCC 606, to contend that the respondents even though they have not appealed may support the decree on any other ground, but if they want modification of the same, they have to file cross-objections to the appeal, which objections they could have taken earlier by filing an appeal. It was so held by the Supreme Court in the case of Superintending Engineer and Ors. (supra) and the aforesaid decision was followed in Banarsi's case (supra), where it was held that a respondent may defend himself without filing any cross objection to the extent to which the decree is in his favour. However, if he proposes to attack any part of the decree, he must take cross objections. The provisions of Order XLI Rule 22 pre and post- amendment were discussed at length and it was amplified that where the decree is entirely in favour of the respondent though an issue has been decided against the respondent, pre-amendment CPC did not entitle or permit the respondent to take any cross objection as he was not the person aggrieved by the decree but under the amended CPC, read in the light of the explanation, though it may still not be RFA No.44/1986 Page 60 of 72 necessary for the respondent to take any cross objection to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection, it would be advantageous for him to prefer such cross objections if he proposes to attack any part of the decree.

51. It is not in dispute that no cross appeal or cross objections have been preferred in the instant case by the respondents No.1 and 2 qua the findings rendered against them by the learned trial court while deciding Issue No.2. This being so, it must be presumed that the respondents No.1 and 2 were not seriously aggrieved by the aforesaid findings and the said findings, therefore, cannot now be challenged by the respondents No.1 and 2 for the purpose of seeking modification of the decree. If this be the correct legal position, in view of the fact that the decree requires the respondents No.1 and 2 to pay a sum of ` 59,000/- to the legal representatives of Smt. Khazani, the question which arises for the consideration of this Court is as to whether the respondents No.1 and 2 having paid only a sum of ` 1,000/- as earnest money to Smt. Khazani on 25th June, 1973 are RFA No.44/1986 Page 61 of 72 entitled to specific performance of the agreement, more as in view of the phenomenal increase in the price of land since the year 1973.

52. In Nirmala Anand vs. Advent Corporation (P) Ltd. and Ors. (2002) 8 SCC 146, a three Judge Bench of the Supreme Court, while dealing with the issue of price escalation, stressed that Court must keep in view the totality of facts and circumstance; that though ordinarily the plaintiff is not be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation, that may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. It further held "while balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."

RFA No.44/1986 Page 62 of 72

53. In Sahadeva Gramani (Dead) by Lrs. Vs. Peruman Gramani and Ors. (2005) 11 SCC 454, the Supreme Court, while dealing with a case where no material was placed on record to show that the vendee was aware of the earlier agreement executed between the appellant and the vendor, after holding that the vendee was a bonafide purchaser with valuable consideration without notice of the previous agreement of sale executed between the appellant and the vendor, held that Section 20 of the Specific Relief Act provides that the jurisdiction of the Court to decree specific performance of the agreement is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so.

54. In Lourdu Mari David and Ors. vs. Louis Chinnaya Arogiaswamy and Ors. (1996) 5 SCC 589, it was emphasized that the plaintiff seeking the equitable relief of specific performance should come to the Court with clean hands. A party who makes false allegations does not come with clean hands and is not entitled to equitable relief. Thus, a person who comes to Court with a false plea disentitles himself to the relief of specific performance, being RFA No.44/1986 Page 63 of 72 equitable relief as in the instant case where a fabricated agreement dated 26th June, 1973 has been set up by the respondents No.1 and 2, which, as already stated, has been rightly discarded by the learned trial court.

55. In Lalit Kumar Jain and Anr. vs. Jaipur Traders Corporation Pvt. Ltd. (2002) 5 SCC 383, it was again emphasized that the conduct of the plaintiff who seeks equitable relief should be kept upper most in the mind of the Court and where such conduct is blameworthy or the plaintiff has approached the Court with unclean hands, the plaintiff must be held disentitled to the equitable relief of specific performance.

56. In view of the aforesaid and in view of my findings rendered on Issues No.1 to 4, I am unable to agree with the findings on this issue rendered by the learned trial court, that the respondents No.1 and 2 who have paid only a sum of ` 1,000/- and have not even cared to challenge the findings rendered against them by the trial court while dealing with Issue No.2 are entitled to a decree for specific performance on payment of ` 59,000/-. Accordingly, this issue is RFA No.44/1986 Page 64 of 72 decided in favour of the appellants and against the respondents No.1 and 2.

ISSUE NO.6 "Whether the plaintiffs were ready and willing to perform their part of the contract, if any and whether Smt. Khazani failed to perform her part of the contract?"

57. On this issue, the learned trial court, as noted above, has held that the plaintiffs were ready and willing to perform their part of the contract, but they could not do so as Smt. Khazani Devi intentionally failed to perform her part of the contract in collusion with defendants No.2 to 6.

58. The law is well settled that Section 16(c) of the Specific Relief Act, 1963 makes it mandatory for the person seeking specific performance of the contract to allege and prove that he has performed or has been ready and willing to perform the contract according to its true construction, and in the absence of proof that the plaintiff has been ready and willing to perform his part of the contract, a suit for specific performance cannot succeed. It is also well settled by various decisions of the Courts that by virtue of Section 20 of the RFA No.44/1986 Page 65 of 72 said Act, the relief for specific performance lies in the discretion of the Court and the exercise of such discretion would require the Court to satisfy itself that circumstances exist that make it equitable to grant the decree for specific performance of the agreement. It was so held in N.P. Thirugnanam (D) by LRs vs. Dr. R. Jagan Mohan Rao & Ors. JT 1995 (5) SC 533, Bal Krishna & Anr. vs. Bhagwan Das (D) through LRs & Ors. 2008 (12) SCC 145 and Deewan Arora vs. Tara Devi Sen & Ors. (2009) 163 DLT 520. In the case of N.P. Thirugnanam, the Supreme Court emphasized that the factum of readiness and willingness of the plaintiff to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The conduct of the plaintiff prior and subsequent to the filing of the suit must, therefore, be scrutinized by the Court and from the said conduct the Court may infer whether the plaintiff is ready and was always ready and willing to perform his part of the contract.

59. In the instant case, it is noteworthy even the notice dated 14th September, 1973 issued by the respondents No.1 and 2 to Smt. RFA No.44/1986 Page 66 of 72 Khazani, Exhibit PW-9/1, makes no mention of the readiness and willingness of the respondents No.1 and 2 to perform their part of the contract. The bald averment contained in the plaint that the plaintiffs are ready and willing to perform their part of the contract has not been proved and substantiated. The conduct of the respondents No.1 and 2 has been far from blemishless. The entire story of the agreement dated 26.06.1973 disbelieved by the trial court and by this Court, in my view, by itself disentitles the respondents No.1 and 2 to the equitable relief of specific performance. With an agreement of ` 1,000/-, the respondents No.1 and 2 seek specific performance in a case where land prices have shot up phenomenally, by pleading that they are ready to pay the balance price of ` 4,000/-. The averment that they are in possession has also been falsified by the witnesses whose evidence has been discussed hereinabove. On balancing the equities, there is, therefore, no justification in my view for the exercise of the discretionary powers of this Court to grant the equitable relief of specific performance to the said respondents. This is all the more so, as the trial court has not undertaken the exercise of RFA No.44/1986 Page 67 of 72 scrutinizing the three registered documents placed on record by the appellants, including the sale deed in their favour, to contend that they are bonafide purchasers of the land of Khazani without notice of the Agreement to Sell dated 25th June, 1973. The trial court no doubt dealt with the agreement dated 4th August, 1973 and discarded the same on the ground that it was not stamped, but no finding was rendered by the trial court on the remaining three documents, all of which were registered documents, nor the trial court has held that the appellants had notice of the agreement of 25th June, 1973. In this scenario, the trial court wrongly exercised the jurisdiction of granting the discretionary relief of specific performance to the respondents No.1 and 2.

60. Issue No.6 must accordingly be decided in favour of the appellants and against the respondents No.1 and 2. ISSUE NO.7 "Are the plaintiffs entitled to the alternative relief of return of Rs.56,000/- or any lesser sum against the estate of Smt. Khazani or against her legal representatives?"

RFA No.44/1986 Page 68 of 72

61. The entire case of the respondents No.1 and 2 with regard to the payment of ` 56,000/- having been disbelieved by the trial court and by this Court, the question of the said respondents being entitled to the alternative relief of refund of ` 56,000/- does not arise. ISSUE NO.8 "Relief."

62. In view of my aforesaid findings, the decree in favour of the respondents for specific performance on payment of ` 59,000/- with costs passed by the learned trial court is set aside.

63. Before concluding, however, two aspects of the matter deserve to be noticed. The first is that an attempt was made by Mr. R.N. Vats, the learned counsel for the legal representatives of Smt. Khazani to contend that the additional issues have not been decided by the learned trial court and the case should, therefore, be remanded to the learned trial court for decided the aforesaid issues. The second is that Mr. R.N. Vats, the learned counsel for the legal representatives of Smt. Khazani addressed arguments in support of the respondents No.1 and 2 and contended that the appeal was not at all maintainable. RFA No.44/1986 Page 69 of 72

64. As regards the contention of Mr. R.N. Vats that the additional issues have not been decided by the learned trial court, this contention may be dealt with by noting that the trial court in its judgment has held as under:

"No party has advanced any arguments. These issues affect both the parties. So, that is why they have avoided to advance any arguments. So, I decide all the three issues accordingly as they have no effect on the Agreement to Sell the property and the rights of the parties for specific performance."

65. It is abundantly clear from the above that the parties not having addressed any arguments on the additional issues and by necessary implication having given up the aforesaid issues, it does not now lie with any of the parties to contend that the matter should be remanded back to the learned trial court for deciding the additional issues. This position is not controverted either by the appellants or by the respondents No.1 and 2, who are the contesting respondents.

66. Adverting to the contention of Mr. Vats on behalf of the legal representatives of Smt. Khazani that the appeal is not at all maintainable, it only needs to be noted that all the submissions of Mr. RFA No.44/1986 Page 70 of 72 Vats were in direct contradiction of the pleadings of the parties and in particular the written statement filed by Smt. Khazani herself as well as the evidence adduced by the parties, including the evidence of D1W1 Chandan Singh, the husband of Khazani. Further, no appeal having been filed by the legal representatives of Smt. Khazani, to my mind, there exists no cogent reason for this Court to entertain the contentions raised at the bar by her legal representatives 25 years after the passing of the decree. The pleadings of these respondents and the evidence adduced by them clearly show that these respondents have all along opposed the grant of the decree for specific performance. For them to change their stance and do a somersault to now strengthen the case for the respondents No.1 and 2, is neither understandable nor can be countenanced.

67. To conclude, the appeal succeeds. The impugned judgment and decree of the trial court is set aside with costs. CM No.10058/2008

In view of the findings recorded hereinabove, the present application which has been filed by a third party for being impleaded RFA No.44/1986 Page 71 of 72 in the suit for specific performance cannot be entertained. The same is accordingly dismissed leaving the applicants to pursue the remedy available to them in law, if any.

REVA KHETRAPAL (JUDGE) December 24, 2010 km RFA No.44/1986 Page 72 of 72

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