Himachal Pradesh High Court
Hakam Singh vs Hem Raj (Deceased) & Others on 24 May, 2024
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA No.3 of 2008 & C.O. No.156 of 2008 Reserved on 16th March, 2024 Decided on: 24th May, 2024 .
RFA No.3 of 2008
Hakam Singh ......Appellant
Versus
Hem Raj (deceased) & Others .......Respondents
Cross Objections No.156 of 2008
Hem Raj (deceased) ......CrossObjector
Hakam Singh & Others
Coram
r to Versus
.......Nonobjectors
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes.
For the appellant : Mr. Sanjeev Kuthiala, Senior Advocate with Ms. Ankita, Advocate.
For the respondents : Appeal against respondent No.1/ cross objector stands abated.
Mr. Romesh Verma, Senior Advocate with Mr. Sumit Sharma, Advocate for respondents No.2 and 3.
Virender Singh, Judge.
Appellant Hakam Singh has preferred the present Regular First Appeal, under Section 96 of the Code of Civil Procedure (hereinafter referred to as 'the CPC'), against the judgment and decree dated 19.11.2007, passed by the Court of learned Additional District Judge (Fast Track Court), Solan, District Solan, H.P., (Camp at Nalagarh) (hereinafter referred 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 2to as the 'trial Court'), in Civil Suit No.11FTN/1 of 2005, titled as Hakam Singh Vs. Hem Raj & Others.
2. Vide judgment and decree dated 19.11.2007, the .
learned trial Court has partly decreed the suit, by granting the following relief to the plaintiff : "19. In view of my findings on the issues above, the suit of the plaintiff for seeking decree for specific performance of contract dated 29.7.2003 is dismissed. However, a decree for recovery of Rs.2 lacs with future interest @ 6% from the filing of the suit till its realization is hereby passed in favour of the plaintiff and against defendant No.1 with proportionate costs. Decree sheet be prepared accordingly. File be consigned to recordroom."
3. For the sake of convenience, the parties to the present lis are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.
4. Brief facts leading to the filing of the present appeal before this Court, may be summed up as under: 4.1. Plaintiff Hakam Singh has filed the suit for specific performance of contract dated 29.07.2003, against defendants on the ground that he is Himachali agriculturist and as such, he is competent to purchase the agriculture land within the territory of Himachal Pradesh.
4.2. The subjectmatter of the suit was land measuring 8 bighas one biswa, bearing Khasra Nos.706/2 (618) and 707/2 (110), comprised in Khata/Khatauni Nos.78min/97 ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 3 min, situated in Village Sallehwal, Pargana and Tehsil Nalagarh, District Solan, H.P., as per the Jamabandi for the year 199798 (hereinafter referred to as the 'suit land').
.
4.3. The suit land is stated to be fallen in the share of defendant No.1, in the partition and, as such, he, being the absolute ownerinpossession of the suit land, had entered into an agreement to sell the same with defendant No.4, at the rate of Rs.1,10,000/ per bigha, total amounting to Rs.9,24,000/ on 29.07.2003. The said agreement was reduced into writing and a sum of Rs.2,00,000/ was paid to defendant No.1 by defendant No.4. The remaining sale consideration was agreed to be paid to defendant No.1 on or before 30.04.2004, at the time of execution and registration of the sale deed of the suit land.
4.4. Thereafter, defendant No.4, being transferee, for consideration of suit land, further entered into agreement to sell the suit land to the plaintiff vide agreement dated 8.3.2004, for a sum of Rs.9,24,000/ and the plaintiff paid an amount of Rs.2,00,000/ to defendant No.4, as earnest money. The terms and conditions of the agreement to sell were reduced into writing on 8.3.2004, between the plaintiff and defendant No.4.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 44.5. Defendant No.4 had also handed over the original agreement to sell dated 29.07.2003 to the plaintiff, as part performance of contract. Remaining sale consideration was .
to be paid to defendant No.1 on or before 30.4.2004, at the time of execution and registration of sale deed of the suit land. Thereafter, plaintiff also approached defendant No.1 and intimated the fact that he has purchased the rights in the suit land from transferee i.e. defendant No.4.
4.6. It is the further case of the plaintiff that on 30.4.2004, he had gone to the office of SubRegistrar, Nalagarh, along with defendant No.4 and bank draft in the name of defendant No.1, amounting to Rs.7,24,000/ and other incidental registration charges, in order to perform his part of contract, but, defendant No.1, did not turn up.
Consequently, the plaintiff got marked his presence by way of affidavit attested by Notary Public at Nahagarh. Thereafter, he again approached defendant No.1 with the request to execute and register the sale deed of the suit land in his favour, after receiving the remaining sale consideration, but, defendant No.1 had not performed his part of the contract.
4.7. Thereafter, defendant No.1, in connivance with defendants No.2 and 3, entered into a fictitious and sham ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 5 transaction of sale of suit land, in order to defeat the legal rights of plaintiff in the suit land. The said sale deed was allegedly executed on 28.8.2004, by defendant No.1, in favour .
of defendants No.2 and 3, which is wrong, illegal, null and void, inoperative, ineffective, as defendants No.2 and 3 were also having knowledge and notice of the agreement to sell dated 29.7.2003, as well as, 8.3.2004.
4.8. According to the plaintiff, defendants No.1 to 3, are close friends, having family relations with each other and they have hatched a conspiracy against the plaintiff and defendant No.4, in order to cause wrongful loss to plaintiff and wrongful gains for themselves.
4.9. Apart from this, plaintiff has asserted the fact that he always remained ready and willing and is still ready and willing to perform his part of contract.
4.10. As per the plaintiff, he being assignee of rights of defendant No.4, as transferee, is entitled to seek the relief of possession by way of specific performance of contract. In the alternative, the plaintiff had sought the decree for recovery of damages to the tune of Rs.5,00,000/, along with interest.
5. On the basis of the above facts, a prayer has been made to decree the suit by claiming the following reliefs: ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 6 " It is, therefore, prayed that this Hon'ble Court may be pleased to decree the suit of plaintiff, with costs, against defendants, on the following manners, terms and extent: .
i) By granting decree for possession by way of specific performance of contract, directing the defendants to execute and register the sale deed in favour of plaintiff, of muit land measuring 8 bighas 1 biswa, bearing khasra no.706/2(618) and 707/2(110), comprised in kh/kht Nos.78min/97min, situated in the area of village Sallehwal, Pergana and Teh. Nalagarh, District Solan (HP), as entered in the copy of Jamabandi for the year 199798, after receiving the remaining sale consideration of suit land from plaintiff, in favour of plaintiff and against defendants, with costs, in the interest of justice.
ii) By granting decree for declaration to the effect that sale deed no.2170 dt. 28.8.2004, executed by defendant no.1 in favour of defendants 2 and 3 regarding suit land is sham, fictitious and as such the same is wrong, illegal, null and void.
inoperative and Ineffective qua right, title and interest of plaintiff over suit land, with consequential relief of decree for permanent prohibitory injunction, restraining the defendants 1 to 3 from claiming any right, title and interest and cresting anycharge over suit land, on the basis of wrong and illegal revenue record, in favour of plaintiff and against defendants, with costs.
iii) By granting in the alternative decree for recovery of damages to the tune of Rs.5,00,000/ (Rs.five lacs only), alongwith interest, till its realisation, in favour of plaintiff and against defendants, with costs, in the interest of justice.
6. When put to notice, defendant No.1 had filed written statement by taking the preliminary objections that there was and is no privity of contract between the plaintiff ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 7 and defendants; plaintiff has no locus standi or cause of action to file and maintain the present suit; suit is filed malafidely, by misrepresenting, suppressing and withholding .
the actual facts; the suit has been filed at the instance of defendant No.4; and plaintiff has not approached the Court with clean hands.
7. On merits, the ownership of the suit land by defendant No.1 has not been disputed. According to defendant No.1, defendant No.4 entered into an agreement to purchase the land, mentioned in para 1 of the plaint, with defendant No.1 on 29.07.2003 and the terms and conditions of the agreement were reduced into writing and on the same day, he also entered into and executed an agreement to purchase 13 bighas and 2 biswas of other land of defendant No.1 comprising in Khewat/Khatauni No.42/42, Khasra No.15/2 (815), 17/2, 16, kita 03, in village Sabbowal, Hadhbast No.131, Pargana and Tehsil Nalagarh, at the rate of Rs.70,000/ per bigha, for a total sum of Rs.9,17,000/.
8. As per the said agreement, defendant No.4, paid Rs.20,000/, in cash, and Rs.1,80,000/, by way of cheque No.980060, dated 29.7.2003, drawn at State Bank of Patiala, ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 8 Branch Nalagarh, issued out of the account of son of defendant Vivek Bhalla.
9. The cheque, by virtue of which, the earnest money .
was paid, when, presented, for encashment, was dishonoured by the bankers with the remarks 'Payment stopped by the drawer'. Thereafter, a legal notice was got issued against Vivek Bhalla. Thereafter, defendant No.1, filed a complaint, under Sections 138 & 142 of the Negotiable Instruments Act, against Vivek Bhalla, son of defendant No.4, in the Court of learned Additional Chief Judicial Magistrate, Nalagarh.
According to defendant No.1, as per the agreement to sell, sale deed was to be executed on 30.4.2004, on payment of balance sale consideration of Rs.7,17,000/. However, defendant No.4, neither paid the amount of Rs.1,80,000/, nor came present on 30.4.2004, for getting the sale deed executed and registered by paying Rs.7,17,000/. Defendant No.1, remained present in the Court premises at Nalagarh from 9.30 a.m. to 6.30 p.m. on 30.4.2004. He has got marked his presence before the SubRegistrar.
10. It is the further case that as per the stipulation in both the agreements, defendant No.4, having failed to be ready and willing to purchase the land, mentioned in both the ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 9 agreements, on the date fixed, the earnest money, so advanced by him, to defendant No.1, in both the agreements stood forfeited. After 30.4.2004, there remained no privity of .
contract qua the suit land between them.
11. The suit is also stated to be filed at the instance of defendant No.4. Defendant No.4 is stated to be not competent to purchase any land, in the State of Himachal Pradesh, as, he was not a 'Himachali' Agriculturist, as envisaged under Section 118 of the H.P. Tenancy and Land Reforms Act.
12. These facts have been highlighted to show that defendant No.4 was not competent to enter into any agreement to purchase land in the State of Himachal Pradesh. The competency of defendant No.4 to enter into an agreement to sell with the plaintiff is denied, by stating that he was not competent to do so.
13. On the basis of the above facts, a prayer has been made to dismiss the suit.
14. Defendants No.2 and 3, have filed their joint written statement, by taking the preliminary objections that the suit is not maintainable, as the plaintiff is neither owner, nor in possession of the suit land. Asserting the fact that ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 10 defendants No.2 and 3 are ownersinpossession of the suit land, as, they have purchased the same from defendant No.1, through sale deed No.2170, dated 28.8.2004, which was .
registered with SubRegistrar, Nalagarh, it is the case of defendants No.2 and 3 that they have paid the entire sale consideration to defendant No.1 and the possession of the land was handed over to them.
15. After execution of the sale deed, plaintiff, as well as, defendants No.1 and 4 have left with no right, title or interest in the suit land. In nut shell, they have taken the plea that they are the bona fide purchaser and have also pleaded all the relevant facts, in this regard.
16. Defendants No.2 and 3 have also filed counter claim on the ground that they are ownersinpossession of the suit land purchased by them on 28.8.2004. According to them, the plaintiff, in connivance with defendant No.4, is threatening to dispossess defendants No.2 and 3 from the suit land.
17. On the basis of the above facts, defendants No.2 and 3, have sought the declaration to the effect that they are bona fide purchaser of the subject matter of the counter claim (suit land). In the alternative, they have sought the relief of ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 11 recovery of the amount of sale consideration of Rs.9,90,000/ paid by defendants No.2 and 3 to defendant No.1, along with stamps and other registration expenses and interest @12% .
per annum.
18. Plaintiff has filed the replication to the written statement by denying the contents of the counter claim filed by defendants No.2 and 3, by reasserting that of the plaint. It has also been denied that the possession was ever delivered to them by defendant No.1. Plaintiff has reasserted the stand upon which, he has filed the suit. In addition to this, they have also taken the plea that defendant No.1 has executed the sale deed of the suit land, in favour of defendants No.2 and 3.
19. Defendant No.4 has filed separate written statement, in which, he has taken the plea that defendant No.1, being ownerinpossession of the suit land, has entered into an agreement to sell the suit land for a total sale consideration of Rs.9,24,000/, @ Rs.1,10,000/ per bigha and earnest money of Rs.2,00,000/, was paid. Thereafter, the agreement to sell was reduced into writing on 29.7.2003.
As per the terms and conditions, the remaining sale ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 12 consideration was agreed to be paid on or before 30.4.2004, at the time of execution and registration of the sale deed.
20. Admitting para 3 of the plaint, it has been pleaded .
that defendant No.4 was interested to establish an industrial Unit over the suit land and other adjoining land. Defendant No.1 approached him and desired to sell the suit land to defendant No.4 and assured him that the suit land and other adjoining land is fit to establish the industrial Unit. On such assurance of defendant No.1, defendant No.4 entered into an agreement to purchase the suit land from defendant No.1, but, later on, defendant No.4 was shocked, when, he came to know that the land adjoining to the suit land is in the shape of river and is not fit to establish an industrial unit over the same, as a result of which, the plan/scheme of defendant No.4 to establish industrial unit could not succeed, which compelled him to further enter into agreement to sell the suit land with the plaintiff, as, the suit land was not sufficient to establish the industrial unit.
21. Defendant No.4, has further admitted that another agreement to sell of the suit land was executed on 8.3.2004 with plaintiff for a total sale consideration of Rs.9,24,000/, pursuant to which, the plaintiff has paid an amount of ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 13 Rs.2,00,000/ to defendant No.4, as earnest money and agreement to sell was reduced into writing on 8.3.2004. Last date for execution of the sale deed was fixed for 30.4.2004.
.
22. According to Defendant No.4, thereafter, the plaintiff had also approached defendant No.1 and intimated that he has purchased the rights in the suit land from transferee i.e. defendant No.4 and that the plaintiff being assignee of the agreement has purchased the rights in the suit land from its purchaser/agreement holder i.e. defendant No.4, for consideration, as defendant No.4 was having a legal, valid and binding agreement with him. In nut shell, defendant No.4 has admitted the case of the plaintiff.
23. Plaintiff filed replication to the written statement denying the preliminary objections, as well as, contents of the written statement, by virtue of which, the plaint has been contested, by reasserting that of the plaint.
24. Similarly, replication, on behalf of defendants No.2 and 3, filed to the written statement to the counter claim has also been filed by taking the stand, as, taken in the counter claim.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 1425. From the pleadings of the parties, learned trial Court has framed the following issues, vide order dated 20.12.2005: .
1. Whether the plaintiff is entitled to a decree for possession by way of specific performance of contract? ...OPP.
2. Whether the plaintiff is entitled to a decree for damages in the alternative? If so to what amount?
...OPP
3. Whether the saledeed No.2170 dated 28.8.2004 executed by defendant No.1 in favour of defendants No.2 and 3 is sham, null and void, as alleged? ...OPP
4. Whether the plaintiff is ready and willing to perform his part of contract? ...OPP
5. Whether there is no privity of contract between the plaintiff and defendant No.1? ....OPD1.
6. Whether the plaintiff has no lucusstandi to sue?
...OPD1.
7. Whether the defendants No.2 and 3 are owners in possession of the suit land by virtue of saledeed No. 2170 dated 28.8.2004? ...OPD2.
8. Relief.
26. Thereafter, the parties to the lis were directed to adduce evidence.
27. After the closure of evidence and after hearing learned counsel for the parties, the learned trial Court has ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 15 partly decreed the suit, by granting the relief, as referred to above.
28. Feeling aggrieved from the said judgment and .
decree, plaintiff Hakam Singh has filed the present appeal under Section 96 CPC, before this Court, mainly on the ground that the learned trial Court has not rightly appreciated the pleadings, as well as, the evidence led by the parties, in its right perspective.
29. The findings have further been assailed on the ground that the learned trial Court has not considered the fact that in the contracts regarding agricultural land, time is not the essence of contract and the plaintiff, when remained present in the Court premises on 30.4.2024, he was having Bank draft of the balance sale consideration in the name of defendant No.1, which shows his readiness and willingness.
30. The findings have further been assailed on the ground that evidence of PW1, PW2, as well as, documents i.e., agreement to sell Ex.P3, copy of draft PW2/A, affidavits Ex.PW1/A and Ex.P2, have not been considered properly, as per these documents, plaintiff is assignee of agreement to sell dated 29.7.2003, which was executed between defendants No.1 and 4.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 1631. The findings have also been assailed on the ground that the learned trial Court has erred in holding that there was no evidence to show that the plaintiff had informed .
defendant No.1, regarding the transfer of rights of defendant No.4, in his favour and it has also not been proved that he had informed defendant No.1 to remain present in the office of Sub Registrar on 30.4.2004.
32. The other ground of attack is that in terms of the agreement to sell dated 29.7.2003, there was no restriction imposed upon the rights of the transferee to further assign or transfer his rights in the agreement to any other third person.
As such, according to the plaintiff, defendant No.4 was competent to assign and transfer his rights in the agreement, dated 29.7.2003, to third party. These facts have been pleaded in the grounds of appeal to demonstrate that the plaintiff being such transferee was having legal rights on the basis of the agreement dated 29.7.2003.
33. The findings have further been assailed on the ground that the learned trial Court has not construed the provisions of Section 15 of the Specific Relief Act, 1963. The findings on issues No.1, 3 and 4 are also stated to be contrary to the pleadings and evidence on record.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 1734. On the basis of the above grounds of appeal, Mr. Sanjeev Kuthiala, Senior Advocate assisted by Ms. Ankita, Advocate, appearing for the appellantplaintiff has prayed .
that the appeal may kindly be allowed, by allowing the suit, as prayed for.
35. Per contra, Mr. Romesh Verma, learned Senior Advocate assisted by Mr. Sumit Sharma, Advocate, appearing for defendants/respondents No.2 and 3, has supported the judgment passed by the learned trial Court on the ground that there was no privity of contract, between the plaintiff and defendant No.1.
36. In this case, learned trial Court has partly decreed the suit of the plaintiff by giving the relief of recovery of Rs.2,00,000/, with future interest @ 6% from the date of filing of the suit, till its realization, in favour of the plaintiff and against defendant No.1.
37. In order to decide the controversy, in the present case, it would be just and appropriate for this Court to discuss the oral, as well as, documentary evidence, adduced by the parties, before the learned trial Court.
38. After framing of the issues, plaintiff Hakam Singh stepped into the witnessbox as PW1 and filed his affidavit ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 18 Ex.PW1/A, which is based upon the assertions, as made in the plaint. He has also placed on record copy of Jamabandi Ex.P1, affidavit Ex.P2, agreement to sell dated 8.3.2004 .
Ex.P3, agreement to sell dated 29.7.2003, Ex.P4 and bank draft Ex.PW2/A.
39. In the crossexamination, this witness has admitted that agreement Ex.P4 was not executed in his presence, nor he is having any personal knowledge regarding this document. Since, he was not having the personal knowledge, as such, he is unable to say whether the same is genuine or forged. He has also admitted that in his presence, no transaction has taken place. He has feigned his ignorance to the fact as to whether Haridev Bhalla is Himachali agriculturist or not. He has further admitted that regarding Ex.P4, he has not made any inquiry.
40. This witness has admitted that he is agriculturist by profession and having 8 bighas 4 biswas of land in village Guriwala. He has given his annual income as Rs.25,000 Rs.30,000/. This witness is not income tax payee. His agricultural land is irrigated one. He has deposed that in the years 2002 and 2003, his bank balance is approximately Rs.1,50,000/ and in the year 2004, the same was ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 19 Rs.4,00,000/ Rs. 5,00,000/. Again stated that the said amount was not in the Bank, but, the same has been lent to the relatives. He has given the details of the relatives from .
whom, he has received back the amount. He has also deposed that defendant No.4, Haridev Raj Bhalla, was introduced to him on 8.3.2004.
41. This witness is having the dispute with regard to the purchase of land in different Courts, including the High Court. However, he could not disclose about the value of the subject matter, regarding which, the case is pending in the High Court. He has paid Rs.2,00,000/ in cash to Haridev Raj Bhalla on 30.4.2004. Again stated that the amount was paid on 8.3.2004.
42. According to this witness, prior to execution of agreement dated 8.3.2004, this witness has not brought the factum of agreement to the knowledge of Hem Raj.
Volunteered that after 23 days, after execution of agreement dated 8.3.2004, he met Hem Raj. He has further deposed that Hem Raj met him at flour mill, where, he has assured Hem Raj to pay the remaining amount of Rs.7,24,000/, on 30.4.2004, at the time of execution of sale deed and Rs.2,00,000/ earnest money had paid to Haridev Raj Bhalla.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 20According to him, Hem Raj has apprised him that he will come present on the date fixed, however, he did not turn up on 30.4.2004. This witness has deposed that he remained .
present from 10.00 a.m. to 5.00 p.m. and his brother was also with him, however, Haridev Bhalla was not with them.
43. This witness has further deposed that he had not moved any application to mark his presence in the Court. He has shown his inability to say that Ex.P2 was attested at 6.15 p.m., however, according to him, the same was got attested after 5.00 p.m. He has admitted that Haridev Raj Bhalla is not Himachali agriculturist, as such, he cannot purchase land in Himcahal. He has denied the suggestion that he never met Hem Raj nor discussed about the agreement with him. He has denied that on 30.4.2004, Hem Raj remained present in the office of SubRegistrar and waited for Haridev Raj Bhalla from 10.00 a.m. to 5.00 p.m. He has also denied that SubRegistrar had also called Haridev Raj Bhalla. He has feigned ignorance that on 30.4.2004, respondent No.1, was got marked his presence in the Court of SubRegistrar.
44. In response to the Court question, qua the fact that whether he is having capacity to purchase the suit land, ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 21 this witness had kept mum. When, another Court question was put to him that the litigation is being financed by Haridev Raj Bhalla and Vivek Bhalla, this witness has replied that .
expenses of this case have been borne by him. Regarding the question of expenses of other cases, this witness had kept mum.
45. In the crossexamination by learned counsel appearing for defendants No.2 and 3, this witness has deposed that when the agreement to sell was executed with Haridev Raj Bhalla, he has not perused the revenue record of the same, in which, Hem Raj, was shown to be the owner.
The said document was with Haridev Raj Bhalla. He has admitted that in favour of defendants No.2 and 3, sale deed was executed on 28.8.2004. The said sale deed was executed by defendant No.1 Hem Raj. When, the sale deed was executed before SubRegistrar, he has not raised any objection in writing. Defendants Balbir and Pawan Kumar, are stated to be in possession of the suit land by cultivating the same.
46. PW2 Jagdish Karaliya, deposed that the draft Ex.PW2/A was issued by their Bank. This witness has admitted that he cannot spell out as to who had come to ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 22 Bank for getting this draft prepared and who had deposited the amount. However, one Bhalla Sahab of Shivalik factory used to visit the Bank and he is having the account in the .
name of Shivalik Factory. However, he did not know, whether the same was Haridev Raj Bhalla or Vivek Bhalla. Without perusing the record, he is unable to say whether the amount for preparing the said draft was withdrawn from the account of Bhallas.
47. To rebut this evidence, defendant No.1 Hem Raj has appeared in the witnessbox as DW1, and filed his affidavit Ex.DW1/A, which is based upon the stand, as taken by him, in the written statement.
48. In the crossexamination by learned counsel appearing for defendants No.2 and 3, this witness has admitted that the suit land was sold by him to Balbir and his brother, for a sale consideration of Rs.9,90,000/. Mutation, on the basis of the sale deed has also been attested. He has proved copy of sale deed Ex.D3.
49. In the crossexamination by learned counsel appearing for the plaintiff, this witness has admitted that he wanted to install a minisheller. This witness has further admitted that the agreement Mark D1, does not pertain to ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 23 the suit land, however, admitted that regarding the suit land, another agreement was executed between this witness and defendant No.4. Both the agreements were executed on the .
same day, with the same person. When, this witness had sold the land to Balbir and Pawan Kumar, he had informed them about the preexisting agreement with defendant No.4.
He has further admitted that it was agreed that the sale deed in favour of defendant No.4 will be executed on or before 30.4.2004. He has proved the agreement as Ex.P4, which bears his signatures.
50. According to this witness, he has signed the agreement, after fully understanding its contents and accepting them as correct. He has admitted that no notice was issued to defendant No.4 informing him that the time was essence of the contract. Land in dispute is agricultural land, part of the same is under river action.
51. This witness has admitted that defendant No.4 had issued him notice stating that this witness has shown him the land mentioned in markD. He has admitted that the notice was issued on 5.8.2003 and the cheque of Rs.1,80,000/ was issued by defendant No.4 on account of part payment of the price of the land mentioned in Mark D1 ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 24 and the suit land is still in his possession. He has denied that on 8.3.2004, plaintiff had informed him that he had purchased the rights in the suit land from defendant No.4 .
and requested him to execute the sale deed, in his favour on 30.4.2004.
52. This witness has feigned his ignorance that plaintiff was present in the office of SubRegistrar on 30.4.2004, with a bank draft of Rs.7,24,000/. According to him, the plaintiff was not known to him. Similarly, he is unable to say that he prepared the affidavit about his presence and about his readiness with a draft for Rs.7,24,000/. This witness has not returned the money received from defendant No.4, as earnest money. No notice regarding the cancellation of agreement was issued by this witness.
53. DW2 Sunder Singh, deposed that he was working as Bill Clerk in the office of SubRegistrar, Nalagarh. On 30.4.2004, at about 4.00 p.m. Shri Hem Raj has produced two affidavits, for getting his presence marked, in respect of the agreement with Haridev Raj Bhalla, regarding purchase of 8 bighas 8 biswas, as well as, 13 bighas 2 biswas of land.
The date was fixed for registration of sale deed as 30.4.2004.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 25According to this witness, as per the application, till 5 p.m., Haridev Raj Bhalla was called thrice, but, he had not appeared. He has made the endorsement Ex.DW3/A. .
Copies of the affidavits are Ex.DW3/B and DW3/C.
54. He has further deposed that the Tehsildar/Sub Registrar was busy in SDM office, as a meeting concerning election was being held. Next day he presented the proceedings to the Tehsildar/Sub Registrar, but, he refused to approve and sign the same.
55. In the crossexamination by the learned counsel for the plaintiff, this witness has admitted about the addition/alteration made in the proceedings. According to him, the application, as moved by Hem Raj, was not required to be entered and if the SubRegistrar had accepted the note prepared by him, then, it would have been registered. Every application and the documents to be registered are stated to be presented by the parties to SubRegistrar, thereafter he would mark it to be registered.
56. DW3, Ravinder Singh Thakur, Advocate, Notary Public, deposed that two agreements with regard to the sale of the land measuring 8 bighas 8 biswas and 13 bighas and 2 biswas, were entered. The seller was Hem Raj, son of ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 26 Chandermani, executed agreement in favour of Shri Haridev Raj Bhalla. Those were produced before this witness on 2.8.2023. Both were signed by the parties in the presence of .
Vivek Bhalla and Kailash Chand. Consequently, both were registered vide registration No.724 and 725, on 2.8.2003, at about 6.15 p.m. and 6.25 p.m., and the original were handed over to Haridev Raj Bhalla. On 30.4.2004, at about 4.00 p.m., Hem Raj produced two affidavits regarding marking his presence before SubRegistrar, Nalagarh. Those affidavits were entered at Serial No.524 and 525 of the Register maintained by him and proved as Ex.D2 and D3. On 30.4.2004, this witness has attested two affidavits of Hem Raj, which is Ex.D1 and D2.
57. DW4, Balbir Singh, has filed his affidavits as Ex.DW4/A, which is based upon the stand, as taken by him, in his written statement.
58. In the crossexamination, this witness has deposed that he is running tea stall at Nalagarh, for the last 2530 years. Hem Raj is known to him for the last 1015 years. He used to reside near their house and for the last two years, he has shifted his residence to Village Radyali. Hem Raj came to them for selling the land. Hem Raj has not ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 27 disclosed to them that agreement of the same was executed in favour of defendant No.4, nor, he has disclosed about the dispute with them. Before purchasing the land, fresh record .
was seen, old record was not seen. Before executing the sale deed, no request was made to the lawyer, who had drafted the same, to inspect the record whether there is any dispute with regard to the ownership or not. No other record has been seen. This witness has deposed that the sale consideration was paid in cash, after drawing the same from the Bank.
Hem Raj has deposited the said amount in the account of his wife. He has denied the suggestion that despite knowing about the earlier agreement, he has entered into agreement to purchase the land.
59. DW5, Kishori Lai has signed the sale deed executed by defendant No.1, in favour of defendants No.2 and
3. Balbir and Pawan are the classfellows of Hem Raj and this witness. Contents of the sale deed were read over to him by petition writer. On the day when the sale deed was executed, no payment was made, however, it has been told to him that payment has already been made. Hem Raj was called for signing the sale deed. He has feigned his ignorance about the fact as to whether there was any agreement ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 28 between defendant No.1 and 4 or any dispute had arisen between them. The suit land is situated near the rivulet.
Hem Raj and his brother is having 64 bighas of land. He has .
feigned his ignorance, whether defendant No.1 had told defendants No.2 and 3 regarding the agreement with defendant No.4 and also apprised them about the dispute.
60. DW6, Mahesh Sharma, Advocate, has deposed that on 28.8.2004, he has drafted the sale deed at the instance of Hem Raj. For getting the same drafted, Hem Raj came to this witness. The subjectmatter of the sale deed was land measuring 8 bighas 8 biswas, which was sold by Hem Raj to Balbir Singh and Pawan Kumar, for a sum of Rs.9,90,000/. The sale deed was witnessed by Kishori Lal and Shankar Lal Numberdar. The contents of the sale deed were accepted to be correct by Hem Raj and thereafter, put the signature, in the present of witnesses. Thereafter, Pawan Kumar and Balbir Singh had also signed the same.
61. In the crossexamination, this witness has denied the suggestion that at the time of drafting the sale deed, defendant No.1, has disclosed to him about the agreement, which had already been executed, regarding the suit land, in favour of defendant No.4. He has also denied that it has been ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 29 disclosed to him that defendant No.4, had not appeared before the SubRegistrar, on the date fixed. He has admitted that defendant No.1 has disclosed that money is needed for .
establishing sheller and repayment of the bank loan.
However, it has not been disclosed to him that the person, with whom earlier agreement was executed, has not made the payment on time, as such, the same was sold to defendants No.2 and 3. No transaction had taken place in presence of this witness, however, the same had already taken place. He has feigned his ignorance as to whether any agreement was executed between defendant No.1 and defendants No.2 and 3.
62. DW7 Suraj Prakash, Patwari, Patwar Circle Rajpura, has produced his affidavit Ex.DW7/A and copy of Rapat No.795 as Ex.DW7/B. As per deposition of this witness, vide rapat No.795 dated 20.8.2004, Hem Raj has obtained the documents necessary for the execution of the sale deed.
63. In the crossexamination, this witness has deposed that from 20.8.2004 to 28.8.2004, regarding Khasra No.706/2 and 707/2, except Hem Raj, no one has come to him for obtaining the copy of Jamabandi.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 3064. Defendant No.4, has filed his affidavit Ex.DW8/A, while appearing in the witnessbox as DW8. His affidavit was based upon the stand, as taken by him, in the written .
statement. Along with affidavit, he has filed agreements Ex.P4 and P3, which were executed in favour of the plaintiff.
65. In the crossexamination, this witness has admitted that on 29.7.2003, he has executed an agreement to purchase in favour of defendant. On the same day, defendant No.1, had also executed agreement regarding sale of 13 bighas 2 biswas of land for a sale consideration of Rs.70,000/ per bigha. Rs.2,00,000/ were paid to defendant No.1 as earnest money.
66. As per further deposition of this witness, regarding the subject matter of the second agreement, Rs.20,000/ was paid in cash, whereas, cheque amount to Rs.1,80,000/ was given, on his behalf, from the account of his son. The said cheque was bounced by the bank. Volunteered that land measuring 13 bighas 2 biswas, which was agreed to be sold by defendant No.1, the said land was not suitable for establishing the industries. When, the suit land was visited, the same was found to be river action. Consequently, agreement was cancelled and payment of the cheque was ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 31 stopped. Agreement Ex.PW3/B was executed between the parties. The last date for execution of the sale deed, in both the agreements Ex.P4 and Ex.PW3/A, was fixed as .
30.4.2004. On 30.4.2004, he, along with Hakam Singh, remained present in Tehsil Office Nalagarh, at 10.00 a.m. to 5.00 p.m., as on that date, last date was fixed for execution of sale deed pertaining to the land, which was further agreed to be sold to Hakam Singh.
67. Further, this witness has not got marked his presence by swearing the affidavit before the competent officer. He has feigned his ignorance about the fact as to whether any written notice was given to Hakam Singh or not.
He has further deposed that both of them had gone to defendant No.1 and apprised him about agreement Ex.P3.
He has further deposed that this fact was disclosed to him after 23 days from the date of execution of agreement Ex.P3.
68. In the crossexamination by learned counsel for defendants No.2 and 3, this witness has admitted that Ex.P3 and P4, were not got entered with the Patwari. He has admitted that he came to know about the execution of the sale deed from defendants No.2 and 3. This witness and Hem ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 32 Raj had gone to flour mill of Balbir Singh and they had also apprised defendants No.2 and 3 with regard to the agreement executed by Hem Raj in his favour. He has admitted that he .
has not obtained any stay against defendants No.2 and 3 with regard to the execution of the sale deed.
69. In the crossexamination by the learned counsel for the plaintiff, he had admitted all the suggestions, which were put to him by the learned counsel for the plaintiff in order to prove his case.
70. So far as the documentary evidence is concerned, Ex.P1 is copy of Jamabandi, for the year 19992000, Ex.P2 is the affidavit executed by Hakam Singh, Ex.P3, is agreement to sell dated 8.3.2004, Ex.P4 is agreement to sell dated 29.07.2003, Ex.PW2/A is copy of bank draft, Ex.D1 is copy of affidavit, executed by Hem Raj on 30.4.2004, Ex.D2 is the affidavit of Hem Raj, Ex. D3 is sale deed executed in favour of defendants No.2 and 3, Ex.DW2/B is the copy of application moved by Hem Raj before SubRegistrar, Nalagarh, District Solan, Ex.DW2/C is copy of proceedings, EX.DW3/B is the copy of agreement to sell, Ex.P5, is Jamabandi for the year 199798, Ex.DW7/B, is copy of ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 33 Rapat Rojnamcha Vakyati, for the year 200304, dated 20.8.2004.
71. This is the entire evidence led by the parties.
.
72. Learned trial Court vide impugned judgment and decree, has partly decreed the suit by passing a decree for recovery of Rs.2 lacs with future interest @ 6% from the date of filing of the suit till its realization in favour of the plaintiff and against defendant No.1.
73. The subject matter of the lis is the agricultural land. The agreement Ex.D1 was executed between defendant No.1 and defendant No.4. As per the terms and conditions of agreement to sell, Ex.P4, last date for execution and registration of sale deed was 30.4.2004. Defendant No.1 has not disputed the fact that he had not entered into the agreement to sell with defendant No.4. He has taken a specific stand that there was no privity of contract between plaintiff and defendant No.1.
74. On the other hand, plaintiff has taken the plea that execution of the agreement to sell dated 29.7.2003, between defendants No.1 and 4, defendant No.1 has further further sold the rights in the agreement Ex.P3 to plaintiff vide agreement dated 8.3.2004 Ex.P3. It has also not been ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 34 disputed by defendant No.1 that when the agreement to sell Ex.P4 was executed, he had received a sum of Rs.2,00,000/ from defendant No.4. However, he has taken the stand that .
after execution of the agreement to sell between defendants No.1 and 4 on 29.7.2003, he and defendant No.4, had intimated this fact to defendant No.1. Last date for execution and registration of sale deed, as per the agreement to sell, dated 29.7.2003, Ex.P4, as well as, agreement to sell dated 8.3.2004, Ex.P3, was 30.4.2004.
75. As per the provisions of Section 15 of the Specific Relief Act,1963, the plaintiff has to plead and prove, by leading cogent evidence that the agreement Ex.P3 was executed with the consent of defendant No.1. Section 15 of the Specific Relief Act, is reproduced, as under:
15. Who may obtain specific performance.--
Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by--
(a) any party thereto;
(b) the representative in interest or the principal, of any party thereto: Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 35 the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party;
.
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder;
(d) where the contract has been entered into by a tenant for life in due exercise of a power, the remainderman;
(e) a reversioner in possession, where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant;
(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach;
(fa) when a limited liability partnership has entered into a contract and subsequently becomes amalgamated with another limited liability partnership, the new limited liability partnership which arises out of the amalgamation.
(g) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
(h) when the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 36Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.
.
76. Hon'ble Supreme Court in Kapilaben & Others Vs. Ashok Kumar Jayantilal Sheth & Others, (2020) 20 Supreme Court Cases 648, has held that the rights in the agreement to sell can be transferred with the consent of the original owner. Relevant paragraphs 23 to 40, of the judgment, are reproduced, as under:
23. Upon considering the facts and circumstances of the present case, it is evident that there is no privity of contract between the Appellants and Respondent Nos. 1. Respondent Nos. 1 were not party to the 1986 agreement. Vice versa, the Appellants were not party to the 1987 agreements, though whether or not they had knowledge of the same is disputed. Hence Respondent Nos. 1 cannot seek specific performance of the 1986 agreement, or for that matter, the 1987 agreements, against the Appellants, except by suing as 'representativesin interest' of the original vendees under Section 15(b) of the Specific Relief Act. Section 15(b) provides that:
"15. Who may obtain specific performance.-- Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by
--
...(b) the representative in interest or the principal, of any party thereto: Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 37 principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has .
been accepted by the other party..."
24. It is wellsettled that the term 'representativeininterest' includes the assignee of a contractual interest. Though the provisions of the Contract Act do not particularly deal with the assignability of contracts, this Court has opined time and again that a party to a contract cannot assign their obligations/liabilities without the consent of the other party. A Constitution Bench of this Court in Khardah Company Ltd v. Raymon & Co (India) Private Ltd., AIR 1962 SC 1810 has laid out this principle as follows:
"19....An assignment of a contract might result by transfer either of the rights or of the obligations thereunder. But there is a well recognised distinction between these two classes of assignments. As a rule obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is really a novation resulting in substitution of liabilities. On the other hand, rights under a contract are assignable unless the contract is personal in its nature or the rights are incapable of assignment either under the law or under an agreement between the parties.
25. In Khardah Company, the Appellant jute manufacturers were entitled to receive price for the jute from the buyer/dealer of jute only upon delivery of certain shipping documents. Question arose as to whether such an obligation coupled with a benefit was assignable. This Court held, based on the abovementioned principle, that the terms of the contract strongly implied that the rights thereunder are nontransferable.
26. Similarly, in Indu Kakkar v. Haryana State Industrial Development Corporation Ltd. and Another, (1999) 2 SCC 37, the Respondent ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 38 Corporation allotted certain land subject to the condition that the allottee shall complete construction of a building unit on the plot within a period of two years. Upon the allottee's failure to comply with the said condition, the Respondent .
resumed the land. The allottee filed a civil suit challenging the resumption order, during the pendency of which he assigned his rights in the plot to the Appellant. The issue was whether such an assignee could challenge the resumption order.
A twojudge Bench of this Court held, in reliance upon Khardah Company (supra), that:
"19....Answer of the said question depends upon the terms of allotment. Assignment by act of parties may cause assignment of rights or of liabilities under a contract. As a rule a party to a contract cannot transfer his liabilities under the contract without consent of the other party. This rule applies both at the Common Law and in Equity (vide para 337 of Halsbury's Laws of England, Fourth Edition, Part 9). Where a contract involves mutual rights and obligations an assignee of a right cannot enforce that right without fulfilling the co relative obligations."
27. Even in a case of assignment of rights simplicitor, such assignment would necessarily require the consent of the other party to the contract if it is of a 'personal nature'. This is elucidated by learned authors Pollock and Mulla in their commentary on The Indian Contract and Specific Relief Acts (R. Yashod Vardhan, and Chitra Narayan eds., 15 th edn., Vol. I) at page 730:
"A contract which is such that the promisor must perform it in person, viz. involving personal considerations or personal skill or qualifications (such as his credit), are by their nature not assignable. The benefit of contract is assignable in 'cases where it can make no difference to the person on whom the obligation lies to which of two persons he is to discharge it.' The contractual rights for the payment of money or to building work, ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 39 for e.g., do not involve personal considerations."
28. It is true that Section 15(b) of the Specific Relief Act does not specifically state that .
'obligations' may not be assigned except with the consent of the other party. However a reading of Section 15(b) shows that it is nothing but a statutory formulation of the ratio laid down in the abovementioned precedents. The rule stated in Section 15(b) is that any interest in a contract can be specifically enforced by the assignee thereof, except where the 'personal quality' of the party is a material ingredient in the contract; or where the contract, expressly or by necessary implication, prohibits the beneficiary from transferring their contractual interest to third parties. Hence Section 15(b) does not contradict the general law on assignability of contracts as laid down by this Court, but rather clarifies that the same conditions will have to be satisfied if an assignee seeks to secure specific performance of the assigned contract.
29. Therefore, for example, a contract for a singing performance or a painting may not be assignable as it involves a personal skill and even if it is assigned, the assignee cannot seek specific performance in respect of such a contract. Whereas it may be said that general contracts for payment of money or building work do not involve any personal considerations, as it makes no difference as to who discharges the obligation to pay or perform a certain act under the contract. Hence the assignees of parties to such contracts may seek specific performance.
30. It is important to note that in the modern context where parties frequently enter into complex commercial transactions, it is perhaps not so convenient to pigeonhole contracts as being either 'general' or of 'personal nature' or as involving the assignment of purely 'rights' or 'obligations'. It is possible that a contract may involve a bundle of mutual rights and obligations which are intertwined with each other. However, as this Court has held in Indu Kakkar (supra), the same ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 40 rule as laid down in Khardah Company (supra) and as stated in Section 15(b) of the Specific Relief Act, may be applied to such contracts as well. Where the conferment of a right or benefit is contingent upon, or coupled with, the discharge of a .
burden or liability, such right or benefit cannot be transferred without the consent of the person to whom the coextensive burden or liability is owed.
31. It further has to be seen whether conferment of benefits under a contract is based upon the specific assurance that the co extensive obligations will be performed only by the parties to the contract and no other persons. It would be inequitable for a promisor to contract out his responsibility to a stranger if it is apparent that the promisee would not have accepted performance of the contract had it been offered by a third party. This is especially important in business relationships where the pre existing goodwill between parties is often a significant factor influencing their decision to contract with each other. This principle is already enshrined in Section 40 of the Contract Act:
"40. Person by whom promise is to be performed. --If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representative may employ a competent person to perform it."
It is clear from the above that the promisor 'may employ a competent person', or assign the contract to a third party as the case may be, to perform the promise only if the parties did not intend that the promisor himself must perform it. Hence in a case where the contract is of personal nature, the promisor must necessarily show that the promisee was agreeable to performance of the contract by a third person/assignee, so as to claim exemption from the condition specified in Section 40 of the Contract Act. If the promisee's consent is not obtained, the assignee cannot seek specific performance of the contract.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 41B. Application of the above principles to the present case
32. Hence, in light of the above discussion, .
whether or not an assignee can seek specific performance would depend upon the construction of the contract in each case. The Court would have to determine the nature of interest sought to be transferred, whether such interest was meant to be enforceable only between the parties to the contract and whether the contract expressly or by necessary implication bars assignment of such interest.
33. In the present case, the 1986 agreement provided that the Appellants shall execute sale deed in favour of the original vendees or 'name proposed by the vendee' subject to the assurance that the latter would pay the remaining consideration and betterment tax within the stipulated time, and that the former would obtain the necessary permissions for construction on the suit property.
34. We are of the opinion that the term 'name proposed by the vendee' in the 1986 agreement refers to a nominee to be proposed at the time of execution of the sale deed and not a subsequent assignee. At the same time, it is true the 1986 agreement does not contain any express bar against assignability. The question which arises then is whether the purported assignment in favour of Respondent Nos. 1 under the 1987 agreements is legally valid.
35. The decisions in Shyam Singh (supra) and Ram Baran Prasad (supra) relied upon by Respondent Nos.1 will not help their case as this Court found on the particular facts of those cases that the terms of the contracts in those cases did not implicitly bar assignment. These decisions cannot be taken to lay down a blanket rule that in every case where there is no express bar against assignability stipulated in the contract, assignment of the interest therein should be upheld without looking at the context in which the parties ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 42 contracted with each other. It has to be seen whether the terms of the contract, and the circumstances in which the contract was entered into, lead to an inference that the parties did not intend to make their interest therein assignable.
.
This is the principle of law as authoritatively stated by the Constitution Bench in Khardah Company (supra):
"30....We agree that when a contract has been reduced to writing we must look only to that writing for ascertaining the terms of the agreement between the parties but it does not follow from this that it is only what is set out expressly and in so many words in the document that can constitute a term of the contract between the parties. If on a reading of the document as a whole, it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term, there is nothing in law which prevents them from setting up that term. The terms of a contract can be expressed or implied from what has been expressed. It is in the ultimate analysis a question of construction of the contract. And again it is well established that in construing a contract it would be legitimate to take into account surrounding circumstances. Therefore on the question whether there was an agreement between the parties that the contract was to be non transferable, the absence of a specific clause forbidding transfer is not conclusive. What has to be seen is whether it could be held on a reasonable interpretation of the contract, aided by such considerations as can legitimately be taken into account that the agreement of the parties was that it was not to be transferred. When once a conclusion is reached that such was the understanding of the parties, there is nothing in law which prevents effect from being given to it."
36. Section 40 of the Transfer of Property Act states that a contract for sale of immovable ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 43 property is a contract that "a sale shall take place on terms settled between the parties ". It is a settled position that such a contract does not by itself create any interest in or charge on the property. The buyer only obtains a right to get the .
sale deed executed, upon fulfilment of the applicable terms and conditions as consented to by all the parties. Hence the 1986 agreement, being an agreement to sell the suit property, is a clear case of a contract combining mutual rights and obligations. The original vendees were to obtain the right to get the sale deed executed in respect of the suit property upon fulfilment of the conditions specified in the 1986 agreement.
37. The 1987 agreements purport to assign the aforesaid rights and obligations of the original vendees in favour of Respondent Nos. 1/ Plaintiffs.
38. Upon comparison of the 1986 agreement and the 1987 agreements, we find that the 1987 agreements amount to nothing but a substitution of liabilities wherein Respondent Nos. 1 have assumed the same obligations which the original vendees were supposed to have performed under the 1986 agreements. This includes not only the obligation to pay betterment tax but also the obligation to reimburse the cost of acquiring planning permissions and to get the suit property levelled for the purpose of construction.
39. Additionally, the 1987 agreements also provide that the plaintiffs can prepare the scheme for construction of housing society on the suit property, get the members of the society registered and execute agreements with them, and publish advertisement boards regarding the scheme. Hence this is not a case of assignment of agreement for sale simplicitor, but assignment of what is akin to a development agreement for a housing scheme on the suit property. A contract of this nature is ordinarily based upon certain personal understanding between the parties regarding the course of business to be undertaken on the suit property.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 4440. It is not disputed that the original vendees had not fulfilled their obligations under the 1986 agreement prior to the purported 'assignment' under the 1987 agreements. Hence they had not 'performed their part of the contract' as required .
under Section 15(b) of the Specific Relief Act.
Applying the law as stated above, the assignment of such a contract cannot be enforced without proving that it was with the knowledge and consent of the original owners/Appellants.
77. If the facts and circumstances of the present case are seen, in the light of the law as referred to above, the plea, as, taken in the pleadings, qua the alleged intimation, does not qualify the term 'consent'. When, the plaintiff himself has taken the plea regarding the intimation, then, the said stand cannot be interpreted as 'consent' of defendant No.1.
78. So far as the case law reported in Katta Sujatha Reddy & Another vs. Siddamsetty Infra Projects Private Limited and Others, (2023) 1 Supreme Court Case 355, relied upon by learned counsel for the plaintiffappellant, is concerned, the same is not applicable to the facts and circumstances of the present case, as, the dispute, in the case before the Hon'ble Supreme Court, was with regard to applicability of Sections 10 and 14(i)(a) (as amended by 2018 amendment Act) of the Specific Relief Act.
::: Downloaded on - 24/05/2024 20:36:30 :::CIS 4579. Similarly, the decision of Hon'ble Supreme Court in Indira Devi versus Veena Gupta & Others, (2023) 8 Supreme Court Cases 124, in no way, helps the case of the .
plaintiffappellant, as, the Hon'ble Supreme Court, in the said decision, has followed the earlier decision, as, rendered in Kapilaben's case (supra).
80. The oral statement, with regard to the alleged
81. to intimation, does not amount to consent of defendant No.1.
In such situation, this Court is of the view that the learned trial Court has rightly considered the legal, as well as, factual position, as, involved in the present case. As such, the judgment and decree passed by the learned trial Court is not required to be interfered with, by this Court.
82. Consequently, the appeal is dismissed and the judgment and decree, passed by the learned trial Court, in Civil Suit No.11FTN/1 of 2005, titled as Hakam Singh Vs. Hem Raj & Others, is upheld.
83. Decree sheet be prepared accordingly. However, there shall be no order as to costs.
Cross Objections No.156 of 2008
84. Since, the appeal against respondent No.1/cross objector has been ordered to be abated/dismissed for want of ::: Downloaded on - 24/05/2024 20:36:30 :::CIS 46 prosecution, vide order dated 5.1.2017, the crossobjections are not sustainable, as such, the same are disposed of accordingly.
.
85. Record be sent back.
( Virender Singh )
Judge
May 24, 2024(ps)
r to
::: Downloaded on - 24/05/2024 20:36:30 :::CIS