Punjab-Haryana High Court
Gurdial Singh And Ors. vs Darshan Singh And Anr. on 20 July, 1995
Equivalent citations: (1996)112PLR102
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT S.P. Kurdukar, C.J.
1. This letters patent appeal is filed by the original defendants No. 2 to 5 challenging the legality and correctness of the judgment and decree dated November 22, 1983, passed by the learned Single Judge in Regular First Appeal No. 359 of 1975.
2. This appeal arises out of a suit filed by respondents No. 1 and 2, the plaintiffs, for specific performance of the agreement to sell dated April 5, 1971, executed by the third respondent (defendant No.1), who was admittedly, the owner of the suit property. The appellants who were defendants No. 2 to 5 in the suit are the subsequent purchasers of the same land. The plaintiffs (hereinafter referred to as the plaintiffs) on April 6, 1973, filed civil suit No. 170 of April 20, 1973, against the third respondent (defendant No.1) who was the owner of the suit land (hereinafter called the owner), and the appellants) defendants No.2 to 5, who are (hereinafter referred to as the appellants) subsequent purchasers. The two plaintiffs were minors on April 5, 1971. They were under the guardianship of their father Mehar Singh. The owner on April 5, 1971, entered into an agreement to sell suit property in favour of the plaintiffs, they had paid the earnest money of Rs. 12,000/- out of the total sale consideration of Rs. 30,000/-. The last date for the execution of the sale deed was December 15, 1971. It is averred by the plaintiffs that despite several requests made to the owner, he failed and neglected to execute the sale deed. The owner (defendant No.1), has committed breach of the agreement which has given rise to the filing of the suit for specific performance of the agreement and possession thereof. As stated earlier, the subsequent purchasers, the appellants (referred to as the appellants), purchased the very same land under three different sale deeds. The first registered sale deed is dated July 27, 1971, regarding one-half share in the suit land for Rs. 20,000/-, executed by the owner (defendant No.1). On February 2, 1973, the remaining one-half portion of the land was also purchased by the appellants under two registered sale deeds, Exhibits D-2 and D-3. This is how the appellants claim to be the owners in respect of the suit land under the registered sale deeds, dated July 27, 1971, Exhibit D-1, and dated February 2, 1973, Exhibits D-2 and D-3. It is pleaded by the plaintiffs that they were and are always ready and willing to perform their part of the contract and it is defendant No.1, the owner, who has committed the breach of the agreement. The plaintiffs have also pleaded that in terms of the agreement they had gone to the office of the Registrar to get the sale deed executed, but defendant No.1, the owner, did not turn up. It is in these circumstances that the plaintiffs have filed the suit against the defendants. Defendant No. 1, the owner, filed the written statement and denied the plaintiffs' claim. According to him, there was no agreement to sell at all. The alleged agreement to sell is a fabricated document. He denied having received any amount towards earnest money. Defendant No. 1 (the owner), further pleaded that he has sold the suit land to the appellants under the registered sale deed for valuable consideration and they were put in possession thereof. The claim of the plaintiffs is false. He also pleaded that assuming there was any agreement to sell in favour of the plaintiffs, they were never ready and willing to perform their part of the agreement and after such a long time, they are not entitled for a decree for specific performance and possession. In the end, defendant No.1 (the owner), pleaded that the suit of the plaintiffs is untenable and the same be dismissed.
3. The appellants (defendants No. 2 to 5) filed a joint written statement and they pleaded that the plaintiffs' suit is not maintainable in the present form and the same be dismissed. They pleaded that the plaintiffs had filed earlier suit on the same cause of action in the civil Court which was withdrawn on January 23, 1973, and the plaintiffs were ordered to pay (burdened) with costs of Rs. 15/-. The plaintiffs have filed the present suit on the same cause of action without paying the costs and, therefore, the present suit is not maintainable. It is then pleaded by appellants No. 2 to 5 that they have purchased one half share of the suit land on July 27, 1971, under registered sale deed, Exhibit D-1, for valuable consideration of Rs. 20,000/-. They also purchased the remaining one-half share under two registered sale deeds, dated February 2, 1973, Exhibits D-2 and D-3. The appellants have been in possession of the suit property since the date of the sale deeds. The plaintiffs never obstructed their possession. According to the defendants, they were not aware of the agreement to sell as pleaded by the plaintiffs; hence they are the bona fide purchasers for valuable consideration without notice of the plaintiffs' rights. The plaintiffs' suit is bad and no decree for specific performance be passed in their favour. The appellants, therefore, prayed that the suit be dismissed.
4. The learned Sub-Judge framed the issued arising out of the pleadings. Both the parties adduced evidence in support of their respective claims. The learned Sub-Judge vide judgment and order dated January 31, 1975, held that the plaintiffs had proved the agreement to sell and they were ready and willing to perform their part of the agreement. It was also held that defendant No.1 (the owner) did not deliver possession of any part of the land in part performance of the agreement to sell to the plaintiffs. The learned Sub-Judge, however, did not grant decree for specific performance of the agreement, but directed defendant No.1 (the owner) to pay compensation. The learned Sub Judge passed a decree in favour of the plaintiffs for the recovery of Rs. 12,000/- as earnest money in addition to Rs. 5,000/- by way of compensation.
5. The judgment and decree of the learned Sub-Judge was challenged in Regular First Appeal No. 359 of 1975, by the plaintiffs praying for decree of specific performance of the agreement and possession of the suit land. The learned Single Judge after hearing the parties by his detailed judgment dated November 22, 1983, allowed the appeal and granted a decree for specific performance on payment of the balance sale price of Rs. 18,000/-, within a period of two months. The learned Single Judge directed defendants No. 2 to 5, to join in conveyance so as to pass on the title which vested in them in favour of the plaintiffs. It is this judgment and decree passed by the learned Single Judge which is the subject-matter of challenge in this letters patent appeal.
6. Mr. Majithia, the learned counsel appearing in support of this appeal urged that the learned Single Judge ought not to have interfered with the decree of the learned Sub-Judge. The contention is that the decree for specific performance is a discretionary relief which was denied by the learned Sub-Judge for good reasons and there was no reason to set aside the said decree. According to Mr. Majithia, the plaintiffs were adequately compensated by awarding the refund of the earnest money of Rs. 12,000/- as well as Rs. 5,000/- as compensation. He, therefore, urged that the finding recorded by the learned Single Judge in this behalf be quashed and set aside.
7. We are not impressed by this argument. The learned Single Judge in his detailed and well reasoned judgment which is supported by several authorities, has held that the plaintiffs, in the facts and circumstances of the case, are entitled to the specific performance of the agreement dated April 5, 1971. The learned Single Judge while referring to Section 10 of the Specific Relief Act, rightly held that the plaintiffs are entitled to the specific performance of the agreement and the case of the appellants does not fall in the Explanation. As indicated earlier, the learned Sub-Judge held that the plaintiffs had proved the agreement to sell dated April 5, 1971, and on the basis of the finding, awarded a decree for the refund of the earnest money of Rs. 12,000/- and compensation of Rs. 5,000/-. This decree was challenged only by the plaintiffs and not by the defendants. It must, therefore, follow that no amount of argument can be entertained in the letters patent appeal about the correctness and validity of the agreement to sell dated April 5, 1971. Once the agreement to sell is proved, ordinarily it is followed by a decree for specific performance unless it is shown that the case falls within the Explanation provided Under Section 10 of the Specific Relief Act.
8. Mr. Majithia, then urged that the appellants are the bona fide purchasers for valuable consideration without notice of the plaintiffs' rights. This submission was rejected by the learned Single Judge and in our opinion rightly because the initial burden is upon the appellants to prove that they had no notice of the earlier agreement. The appellants although pleaded that they had no notice, but no evidence whatsoever worth the name was produced. Mr. Majithia could not draw our attention to any evidence on the record to upset the said finding of the learned Single Judge. Some stray sentences from the testimony of defendant No.5, were sought to be relied upon in this behalf by Mr. Majithia, during the course of arguments. In our opinion, the learned Single Judge has also considered that evidence and we see no reason to take a different view from the one taken by the learned Single Judge.
9. It was then contended by Mr. Majithia that the plaintiffs have failed to prove that they were ready and willing to perform their part of the agreement dated April 5, 1971. In support of his submission, he relied upon the conduct of the plaintiffs who kept quiet until they filed the suit some time in the year 1973. He also urged that it is the plaintiffs case that they were put in possession of one-half of the suit land and if it was so, surely they ought to have realised when the appellants were put in possession in respect of the one-half of the land pursuant to the registered sale deed dated July 27, 1971. If the plaintiffs had agreed to purchase under the agreement to sell dated April 5, 1971, they would have immediately objected to the possession of the appellants and would have filed the suit immediately. Having not done so, it clearly shows that the plaintiffs were not ready and willing to perform their part of the agreement. This submission again does not appeal to us because the plaintiffs have pleaded that they were ready and willing to perform their part of the agreement until the suit was filed and this finding was returned not only by the learned Sub-Judge, but also affirmed by the learned Single Judge. There is hardly any evidence worth the name to take a different view.
10. Mr. Majithia then urged that there is intrinsic evidence to show that the plaintiffs were not ready and willing to perform their part of the agreement. In support of this submission, he urged that it is the plaintiffs' case that they had gone to the Registrar's office on December 15, 1971 and allegedly sworn an affidavit as regards their presence and readiness and willingness to perform their part of the agreement. He urged that if the plaintiffs were so conscious of their agreement, they would have certainly produced themselves before the Registrar and would have got their presence entered in some register to indicate that the plaintiffs did attend the office of the Registrar on December 15, 1971. Having not done so the claim of the plaintiffs that they are ready and willing to perform their part of the agreement be rejected. We find no substance in this contention also because the plaintiffs and their witnesses have stated on oath that they had gone to the office of the Registrar on December 15, 1971, and also produced the evidence in support thereof. The learned Sub Judge and the learned Single Judge accepted the evidence of the plaintiffs and their witnesses in this behalf and we see no reason to take a different view. This submission is again, devoid of any merit.
11. Mr. Majithia, also urged that the plaintiffs had filed an earlier suit which they withdrew and filed the present second suit. This second suit, according to the learned counsel, is not tenable.
12. In order to appreciate this contention, it was necessary for the appellants to produce the relevant pleadings and the order passed in the said suit. The appellants who were entitled to non-suit the plaintiffs on this score, ought to have raised an issue before the trial Court. The learned Single Judge has held that as the evidence stands, it appears that the earlier suit was withdrawn by the plaintiffs with liberty to file a fresh suit on the same cause of action. It may be stated that the learned Single Judge also held that the earlier suit was for injunction simpliciter on the footing that they were put in possession in respect of the one-half portion of the suit land. The suit was allowed to be withdrawn with liberty to file a fresh suit on the footing that the plaintiffs were dispossessed during the pendency of the suit. There is no evidence to show that the finding of the learned Single Judge in that behalf is in any way illegal or incorrect.
13. It was also urged by Mr. Majithia that the plaintiffs had not pleaded that they are ready and willing to perform their part of the agreement in terms of forms No. 47 and 48 of Appendix A of the Code of Civil Procedure. In memorandum of appeal, the appellants have produced the relevant averments in the plaint which are reproduced hereunder:-
"The plaintiffs are ready and willing to perform their part of the agreement and are ready to pay the stipulated amount and are ready to get the sale deed executed and registered."
The above averments of the plaintiffs are consistent with paragraph 3 of form No. 47 of Appendix A of the Code of Civil Procedure. The plaintiffs have pleaded that they were and are still ready and willing to perform their part of agreement. We have also perused the entire plaint and we find that the averments contained in the plaint fully satisfy the requirement of form 47 of Appendix A of the Code of Civil Procedure.
14. It was then urged by Mr. Majithia that if the plaintiffs were so keen to perform their part of the agreement, then they ought to have issued a notice to defendant No.1 (the owner), calling upon him to execute the sale deed. Having not done so, it is a relevant factor which goes against the plaintiffs. This submission is also unsustainable because the plaintiffs have stated on oath that they have been always ready and willing to perform their part of the agreement and their evidence is accepted by the Sub-Judge as also by the learned Single Judge.
15. After having considered the above submissions, in our opinion, the letters patent appeal has no substance and the same observes to be dismissed with costs. We accordingly do so. The letters patent appeal is dismissed with costs.