Madhya Pradesh High Court
Madan Mohan vs Gauri Shankar And Anr. on 30 January, 1987
Equivalent citations: AIR1988MP152, AIR 1988 MADHYA PRADESH 152
JUDGMENT T.N. Singh, J.
1. It is a very unfortunate case that two courts below have not even read and properly construed Ex. P/1 on which the suit was based, even though the suit was dismissed by the learned appellate Court, reversing the decree passed by the trial Court.
2. On reading the pleadings, I have little doubt that plaintiff's main plea was founded on the doctrine of part-performance which is mentioned in categorical terms in para 3 of the plaint. On the basis of this plea, the plaintiff was merely entitled to a decree of permanent injunction to protect his possession although he laid a tall claim for specific performance of contract on the footing that Ex. P/1 was an agreement to sell the suit land. I have myself read the document with counsel for the parties but I am unable to satisfy myself that it is any thing else than a sale-deed. However, Ex. P/1 being an unregistered document, the sale must fail.
3. There is a very clear averment in the description itself that it was a "BIKRINAMA" and further fact is that the full consideration of Rs. 600/- was duly paid for the suit land which is 5 bighas and odd in area. No doubt at all is left about its character in that parties meant it to be understood as a sale deed by using the expression "BECH DIYA" which would not mean anything, but passing of the title along with passing of consideration; Shri R.D. Jain has laid great emphasis on the clause in the document -- "ISKA BAY MAIN AP KO KARA DUNGA". I do not read in this expression anything by which the document can be construed not as a sale deed, but a mere agreement to sell the land. I say so far the further reason that by the said document itself, it was stated that the possession of the suit land was also delivered to the vendee. No date is fixed for anything else to be done to complete the sale. The parties meant that the sale was complete with the execution of that document itself. Indeed, the very averment of passing of consideration and passing of title, two essential incidents to constitute a sale deed, being constituents of the document, there can be no escape from the conclusion that the document was nothing, but a sale deed and even if there was any promise to do any further act, that was not enforceable because the promise was as vague as anything.
4. Having taken the view that the plaintiff was not entitled to any relief on the basis of Ex. P/1, I have looked into the finding of the trial Court as to whether the plaintiff could be non-suited by denying him the relief of parmanent injunction to protect his title. I have read the discussion of evidence in paras 9 and 10 of the impugned judgment which is severely criticised by Shri Jain and indeed rightly. It is true the Court below has made a clear and categorical finding in defendant's favour that possession was not delivered to the plaintiff, but that finding was reached only on a discussion of evidence of the witnesses of the defendant. There is no discussion at all of the evidence of the plaintiffs side though it is equally true that there is an observation that the witnesses of the plaintiff were liars and not reliable. How this view could be taken does not appear clear in the judgment and I do not find it safe to accept such a finding to be a conclusive finding to bind me in second appeal.
5. This appeal must, therefore, succeed and is allowed partly in that, on a limited point, the appeal is remanded for re-hearing to the Court below. The lower appellate Court shall, after proper discussion of evidence on record adduced by both sides, record afresh a finding on the question as to whether the plaintiff was delivered possession of the suit land simultaneously with the execution of the sale deed Ex. P/1 and whether he was continuously in possession of the suit land so as to entitle him to decree for permanent injunction. That is all for the day and for disposal of this appeal.
6. The appeal is accordingly allowed, but there shall be no order as to costs. The judgment and decree passed by the Court below are set aside. Counsel agree to appear in the Court below on 9th Mar. 1987 for rehearing of the appeal. Within a month thereafter, final judgment in the appeal shall be rendered afresh in the light of observations and directions herein made.
7. Respondent's counsel Shri H.D. Gupta has, however, made a submission of which notice must be taken. Counsel's content ion is that the order passed in this appeal on 14-7-1975 directing the appellant to deposit in the trial court mesne profits for the land has not been religiously complied with and for that default, the appellant must be penalised. Yes, some penalty, the appellant must suffer. But, that he can suffer at the lower appellate Court and order in that regard may be passed by the lower appellate Court. The Court below shall ensure that before the appeal is heard, the appellant herein, namely, the plaintiff, satisfies that court that the deposits which he was required to make pursuant to this Court's order have been duly made.