Patna High Court
Hardwar Singh & Ors vs Lal Munny Kuer & Ors on 26 July, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.417 of 1990
Against the judgment and decree dated 9.7.1990 passed by Sri Hari
Shankar Prasad, 4th Additional District Judge, Aurangabad in Title
Appeal No. 65 of 1983/ 10 of 1987 allowing the appeal and thereby
reversing the judgment and decree dated 29.8.1983 passed by Sri R.V.
Ram, 2nd Additional Subordinate Judge, Aurangabad in Title Suit No.
114 of 1978/ 38 of 1982.
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Hardwar Singh & Ors
.... .... Appellant/s
Versus
Lal Munny Kuer & Ors
.... .... Respondent/s
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Appearance :
For the Appellant s : Mr. Yogendra Mishra, Advocate.
Mr. Mrigendra Kumar, Advocate.
For the Respondent s : Mr. Kamal Nayan Chaubey, Sr. Advocate.
Mr. Avanish Kumar Singh, Advocate with him
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Dated : 26.07.2012 Mungeshwar 1. The plaintiffs have filed this second appeal against the Sahoo. J.
judgment and decree of the lower appellate court dated 9.7.1990 passed by the 4th Additional District Judge, Aurangabad in Title Appeal No. 65 of 1983/ 10 of 1987 reversing the judgment and decree of the trial court dated 29.8.1983 passed by Sri R.V. Ram, 2nd Additional Subordinate Judge, Aurangabad in Title Suit No. 114 of 1978/ 38 of 1982.
2. The plaintiffs appellants filed the aforesaid title suit for declaration that the plaintiffs have acquired valid right, title and Patna High Court SA No.417 of 1990 dt.26-07-2012 2 interest in the suit land on the basis of the registered sale deed dated 25.4.1977 executed by defendant No.1 in favour of the plaintiffs and also prayed for recovery of possession. The plaintiffs further prayed for a direction to the defendants to perform the ta khubzul badlain and in case the sale deed has been withdrawn by the defendants the same may be handed-over to the plaintiffs. The plaintiffs also claimed that they are ready to pay balance consideration money to the defendant No.1 if the court directs so and prayed for permanent injunction.
3. The plaintiffs claimed the aforesaid relief on the facts inter alia that defendant No.1 executed a sale deed on 25.4.1977 for a consideration of Rs.10000/- in favour of the plaintiffs. Rs.1000/- was paid as earnest money and it was agreed that the rest consideration amount would be paid at the time of exchange of equivalent i.e. ta khubzul badlain. Subsequently, further Rs.1000/- was paid to the defendant on 6.5.1977. The plaintiffs have been always willing and ready and still ready to pay the balance consideration amount but the defendant is avoiding to exchange the ta khubzul badlain. On 27.9.1977 the plaintiffs sent notice through his counsel and the defendants expressed his willingness to accept the balance of consideration money but deliberately he omitted to mention that he has received the Patna High Court SA No.417 of 1990 dt.26-07-2012 3 subsequent payment of Rs.1000/-. Reply to the notice was sent to the effect that the plaintiffs are ready to pay balance of Rs.8000/-. Subsequently, on 25.11.1977 again Rs.6000/- out of Rs.8000/- was paid.
4. The defendant No.1 filed written statement alleging that only Rs.1000/- was paid and the intention of the parties was that title would pass only after the payment of the full consideration amount which was to be performed by the plaintiffs and this fact is also mentioned in the sale deed. The plaintiffs never paid the balance consideration of Rs.9000/- and obtained the registered ticket within 15 days. The defendants were ever willing to receive the balance consideration amount but the plaintiffs defaulted in payment. The defendants also denied to have received subsequent payment of Rs.1000/- and then Rs.6000/-. The defendants cancelled the sale deed by registered cancellation deed.
5. After trial the trial court held that on the basis of sale deed title was created in favour of the plaintiffs therefore, the deed of cancellation is not in accordance with the law and also held that plaintiffs were ready and willing to perform their part of the contract and decreed the suit. However, the trial court categorically recorded a finding that balance consideration amount was not paid by the plaintiffs to the defendants i.e. Rs. 7000/-. The Patna High Court SA No.417 of 1990 dt.26-07-2012 4 defendant thereafter filed appeal. The lower appellate court set aside the trial court judgment recording a finding that the plaintiffs respondents were not willing to pay balance consideration amount and, therefore, the title did not pass to the plaintiffs.
6. At the time of admission following substantial question of law were formulated on 26.2.1993.
"i) As to whether the findings of the court of appeal below is beyond the scope of the pleadings ?
ii) As to whether the judgment of the court of appeal below is vitiated because there is no finding that whether the plaintiffs were entitled for the claim of the specific performance of the contract ?"
7. At the time of hearing of the second appeal the learned counsel for the appellants submitted that since the appeal was valued at Rs.10000/- the lower appellate court had no pecuniary jurisdiction to entertain the appeal and, therefore, the judgment and decree of the lower appellate court is vitiated and on the submissions of the learned counsel the another substantial question of law was formulated on 18.7.2012 as follows.
"Whether the judgment and decree passed by the lower appellate court is vitiated because of want of pecuniary jurisdiction to entertain the title appeal valued at Rs.10,000/- on the date of presentation of the appeal as the District Judge had the jurisdiction to entertain the appeal valued at Rs. less than 10,000/- ?"
8. In support of the substantial question of law the learned counsel submitted that the suit was for specific performance of Patna High Court SA No.417 of 1990 dt.26-07-2012 5 contract and the appellants have already deposited Rs.9000/- therefore, it cannot be said that the plaintiffs were not ready and willing to perform their part of the contract. The learned counsel next submitted that the lower appellate court had no pecuniary jurisdiction to entertain the appeal so the impugned judgment and decree is a nullity. Because the trail court judgment has been set aside therefore, the appellants were prejudiced. So far jurisdiction point is concerned, the learned counsel relied upon various decisions. On the contrary, the learned counsel for the respondent submitted that the decisions relied upon by the learned counsel for the appellants do not relate to the pecuniary jurisdiction. Therefore, none of the decisions are applicable. Further from the case of the appellants itself it is clear that they were never ready to pay balance of Rs.9000/- rather they approached the court with unclean hand with false case that they have already paid Rs.7000/-. Subsequently, this case was found to be false therefore, suit for specific performance of contract cannot be granted in their favour.
9. It is admitted fact that in the sale deed it is clearly recited that title will pass only after Chit Badlain and Chit Badlain will be done only after payment of full consideration amount. Both the courts below have recorded finding that the plaintiffs Patna High Court SA No.417 of 1990 dt.26-07-2012 6 failed to prove that the balance consideration amount was paid by him. It may be mentioned here that the plaintiffs alleged that Rs.1000/- was paid as earnest money and Rs.7000/- was paid subsequently therefore, according to the plaintiffs only balance consideration was Rs.2000/-. On the contrary, according to the defendants only Rs.1000/- was paid to the plaintiffs and balance was Rs.9000/-. Therefore, it becomes admitted fact that balance consideration amount of Rs.9000/- was never paid by the plaintiffs.
10. In the case of Janak Dulari Devi vs. Kapildeo Rai (2011) 6 SCC 555 the Apex Court considering the case of similar nature has held that as per practice of ta khubzul badlain prevalent in Bihar (that is, title to the property passing to the purchaser only when there is exchange of equivalents), where a sale deed recites that the entire sale consideration has been paid and possession has been delivered, but the registration receipt is retained by the vendor and possession of the property is also retained by the vendor, as the agreed consideration (either full or a part) is not received, irrespective of the recitals in the sale deed, the title would not pass to the purchaser, till payment of the entire consideration to the vendor and the registration receipt is obtained by the purchaser in exchange. In such cases, on the sale deed Patna High Court SA No.417 of 1990 dt.26-07-2012 7 being executed and registered, the registration receipt (Which is issued by the Sub-Registrar) authorizing the holder thereof to receive the registered sale deed on completion of the registration formalities, is received and retained by the vendor and is not given to the purchaser. The vendor who holds the registration receipt will either receive the registered document and keep the original sale deed in his custody or may keep the registration receipt without exchanging it for the registered document from the Sub- Registrar, till payment of consideration is made. When the purchaser pays the price (that is, the whole price or part that is due) on or before the agreed date, he receives in exchange, the registration receipt from the vendor entitling him to receive the original registered sale deed, as also the possession. If the payment is not made as agreed, the vendor could repudiate the sale and refuse to deliver the registration receipt/registered document, as the case may be, which is in his custody, and proceed to deal with the property as he deems fit, by ignoring the rescinded sale. The effect of such transactions in Bihar is that even though the duly executed and registered sale deed may recite that the sale consideration has been paid, title has been transferred and possession has been delivered to the purchaser, the actual transfer of title and delivery of possession is postponed from the time of Patna High Court SA No.417 of 1990 dt.26-07-2012 8 execution of the sale deed to the time of exchange of the registration receipt for the consideration, that is, ta khubzul badlain.
11. In view of the above proposition of law propounded by the Apex Court title did not pass to the appellants because admittedly in the present case neither there was ta khubzul badlain nor the sale deed has been produced by the plaintiffs nor they are in possession of the suit property. When title did not pass to the plaintiffs and it remained with the defendants whether there is subsequent cancellation deed or no cancellation deed it makes no differences. This question of law is not dependent upon the pleadings of the parties and, therefore, so far substantial question No.1 is concerned, in my opinion, it is not a substantial question of law in this case.
12. So far substantial question No. 2 is concerned as stated above the plaintiffs were not ready to pay balance consideration of Rs.9000/-. He only pleaded that he has been all along ready and willing to pay the balance consideration also and alleged that he has already paid total Rs.8000/-, now therefore, even if the plaintiffs' case is accepted then also it will mean the plaintiff was always ready to pay Rs.2000/- only and not Rs.9000/-. The learned counsel for the appellants submitted that as directed by the Patna High Court SA No.417 of 1990 dt.26-07-2012 9 trial court he has deposited Rs.9000/-, therefore, he is ready and willing.
13. In the case of Smt. Sundari Devi vs. Deo Narayan Prasad 2012 (3) PLJR 36 this Court has held that averment of readiness and willingness in the plaint should not be a mathematical formula which should not be in specific word only. The conduct of the plaintiff should be reflected from the circumstances and his subsequent conduct. Readiness and willingness could not be treated as a straight jacket formula and that has to be determined from the entirety and circumstances relevant to the intention and conduct of the party concerned. The averment must be proved by convincing and reliable evidence. In the present case, no doubt, there is pleading in the plaint in terms of Section 16(C) of the Specific Relief Act but according to the findings of the both the courts below the said pleading is not proved by the evidences.
14. In the case of N.P. Thirugnanam (dead) By LRs. vs. Dr. R. Jagan Mohan Rao and others (1995) 5 Supreme Court Cases 115 the Apex Court at paragraph 5 held that the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. The Court must take into consideration the conduct of the plaintiff prior and Patna High Court SA No.417 of 1990 dt.26-07-2012 10 subsequent to the filing of the suit along with the other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the executing till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract.
15. In the case of R.C. Chandiok and another vs. Chuni Lal Sabharwal and others 1970 (3) SCC 140 the Apex Court has held that readiness and willingness cannot be treated as a straight jacket formula and the issue has to be decided keeping in view the circumstances relevant to the intention and conduct of the party concerned. The same view has been taken by the Apex Court in the case of P. D'Souza vs. Shondrilo Naidu (2004) 6 SCC
649.
16. Recently, the Apex Court in the case of Narinderjit Singh vs. North Star Estate Promoters Limited (2012) 5 SCC 712 considering the aforesaid decisions of the Apex Court at paragraph 22 quoted paragraph 5 of the earlier decision in the case of N.P. Thirugnanam, which is being reproduced hereinbelow :
"22. In N.P. Thirugnanam v. R. Jagan Mohan Rao the Court found that the appellant was dabbling in real estate transaction without means to purchase the property and observed :(SCC pp. 117-18, para 8) Patna High Court SA No.417 of 1990 dt.26-07-2012 11 "5. ... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready Patna High Court SA No.417 of 1990 dt.26-07-2012 12 and was always ready and willing to perform his part of the contract."
17. In view of the above well settled principles of law in my opinion, this substantial question of law has already been answered by the Apex Court which is binding precedent and, therefore, is not a substantial question of law.
18. So far the substantial question of law formulated on 18 th July 2012 is concerned, it may be mentioned that the appellant did not raise any objection regarding pecuniary jurisdiction before, the lower appellate court. He participated in the proceeding before the lower appellate court and invited the decision. When the decision made against him he is now challenging the pecuniary jurisdiction of the lower appellate court. So far merit is concerned, we have seen above that the question of passing of title has already been settled by the Apex Court and, therefore, the findings recorded by the lower appellate court cannot be interfered with. In other words, the judgment and decree passed by the lower appellate court is inconformity with the settled principles of law. The point raised by the appellant is not relating to merit of the case but it relates to the jurisdiction of the court. In view of Section 11 of the suit valuation Act the appellant cannot be permitted to challenge the pecuniary jurisdiction of the appellate court. Patna High Court SA No.417 of 1990 dt.26-07-2012 13
19. So far this question is concerned, a division bench of this court in the case of Smt. Baba Dai vs. Muneshwar Jha and others AIR 1985 Patna 67 held that it is not a substantial question of law. It appears that before the division bench also same question was raised and same arguments were advanced. Fact is same. Before the lower appellate court the valuation of the title appeal was Rs.10,000/-. It was decided on merit and the second appeal was filed before the High Court. From paragraph 2 of the division bench judgment the question raised for decision by the appellant that the first appellate court had no jurisdiction to hear and dispose of the appeal because the admitted value of the property involved in suit was Rs.10,000/- and that was the value given in the grounds of appeal in the lower appellate court. The division bench relying upon the full bench of Patna High Court reported in AIR 1949 Patna 278 Ramdeo Singh vs. Raj Narayan Singh and also considering the provision as contained in Section 11 of the Suit Valuation Act, Section 21 of the Code of Civil Procedure and Section 99 of the Code of Civil Procedure held that the policy underline in Section 21 and 99 of the Code of Civil Procedure and section 11 of the Suit Valuation Act is the same and ultimately the division bench held that having failed to raise any objection to the District Judge hearing the appeal and Patna High Court SA No.417 of 1990 dt.26-07-2012 14 having venture to take risk of obtaining a successful results, it is not open to the appellant now to raise the lack of pecuniary jurisdiction of the appellate court as a point of law without being able to show that they suffered any prejudice. Here in the case at our hand also we have seen the merit of the judgment of the lower appellate court. When there is no infirmity in the judgment merely because the lower appellate court has set aside the trial court judgment it cannot be said that appellant has been prejudiced. In my opinion, therefore, this substantial question of law formulated has already been settled by binding precedent and, therefore, in my opinion, it is not a substantial question of law as it is well settled that a question of law for being a substantial question of law must not have been settled by any statutes or any binding precedent. Here so far merit is concerned, we have seen the binding precedent decided by the Apex Court as well as this Court and so far jurisdiction question is concerned, it is also settled by binding precedent i.e. by the decision of division bench referred to above.
20. It may be mentioned here that the appellant has relied upon the various decisions on this question but those decisions are not required to be quoted herein because the decisions referred to above are binding on this Court. Moreover, none of the decisions Patna High Court SA No.417 of 1990 dt.26-07-2012 15 relied upon by the appellants relates to objection regarding pecuniary jurisdiction in second appeal and are not contrary to Full Bench and Division bench of this Court.
21. In view of the above discussion, the substantial questions of law formulated require no fresh decision in the second appeal as the same have already been settled by the Apex Court and by this Court, therefore, are decided against the appellants.
22. In the result, this second appeal is dismissed.
S.S. (Mungeshwar Sahoo, J) A.F.R