Allahabad High Court
Ranjeet Singh vs Narendra Singh And 9 Others on 7 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 429
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 21.11.2019 Delivered on 07.02.2020 Court No. - 53 Case :- SECOND APPEAL No. - 1086 of 2019 Appellant :- Ranjeet Singh Respondent :- Narendra Singh And 9 Others Counsel for Appellant :- Ramendra Asthana,Rahul Saxena Hon'ble Vivek Agarwal,J.
Heard Sri Ramendra Asthana, learned counsel for the appellant.
This second appeal has been filed by the plaintiff being aggrieved of judgment dated 02.08.2019 passed by the Court of 3rd Additional District and Sessions Judge, District Pilibhit allowing in part Appeal No. 13 of 2009 arising out of Original Suit No. 26 of 1990.
Brief facts in the present case are that plaintiff had filed a suit for specific performance of the agreement and in the alternative had sought payment of compensation in the form of refund of earnest money of Rs. 30,000/- with interest @ 2% p.m. As per the plaint averments, defendant no. 1- Jeet Singh was owner of land contained in survey no. 47 measuring 1.89, survey no. 48 measuring 0.58, plot no. 24-B measuring 0.42 and plot no. 37 measuring 0.22. Thus, total area of four plots measuring 3.11 acres situated at Village Khadepur, Tehsil Puranpur, District Piliphit and his name is recorded as transferable landlord. Said Jeet Singh had executed an agreement with the plaintiff on 15.12.1998 which was registered in the Office of Sub Registrar, Puranpur, District Pilibhit on the following conditions that rate of the land contracted shall be Rs. 15,000\- per acre. Rs. 30,000/- was paid by the plaintiff to Jeet Singh as advance and it was decided that up to 30.12.1989 remaining consideration shall be paid and agreement will be executed. Plaintiff was to bear the expenses for the execution of the sale deed and defendant- Jeet Singh had represented that properties which formed subject matter of the agreement are neither mortgaged nor sold and are having clear title. It was also agreed that in case Jeet Singh fails to get the agreement executed up to 30.12.1989, then plaintiff will have an option to get such agreement executed in his name through court of law.
Plaintiff was always ready and willing to get the sale deed executed and when plaintiff waited for defendant- Jeet Singh in the Office of Sub Registrar from 10 am to 5 pm on 30.12.1989 after informing him about such availability, but Jeet Singh did not reached the Office of Sub Registrar when plaintiff had moved an application to register his presence. During the pendency of the suit, Jeet Singh died on 01.04.1992 leaving legal heirs nos. 1/1 to 1/6.
Defendant nos. 1/1 to 1/6 in their written statement submitted that no agreement was executed on 15.12.1988 and Jeet Singh had not received any consideration. Such agreement was a forged agreement which is not binding on either Jeet Singh nor his legal heirs, no cause of action accrued in favour of plaintiff and further averred that Jeet Singh had obtained a loan of Rs. 8,000/- in December 1987 and as a measure of security agreement was executed on a condition, when money is returned, then agreement shall loose its sanctity and validity. Jeet Singh had refunded the loan amount and therefore, plaintiff had taken Jeet Singh to the Office of Sub Registrar for cancellation of the agreement and its registration, but through misrepresentation and breach of trust, agreement was registered. It further averred that Jeet Singh was an illiterate person suffering from heart and lung deceases as a result, he had sold one part of his holding contained in Gata No. 24-A and B, Gata No. 47 in favour of Narendra Singh on 06.07.1989 because he was sure that agreement which was executed in relation to Gata No. 47 in December 1987 was cancelled on 15.12.1988.
Learned Trial Court framed as many as 14 issues and decreed the suit with costs directing the defendants to execute the sale deed within a period of one month from the date of receipt of remaining sale consideration.
Being aggrieved by such judgment and decree, defendants preferred first appeal which was registered as Civil Appeal No. 13 of 2009 in which decree of specific performance is modified and direction to execute sale deed in relation to plot no. 47 measuring 1.89 acres and plot no. 24-B measuring 0.42 acres is set aside and directed that in the proportionate manner, defendant shall refund a sum of Rs. 21,000/- along with interest @ 12% from the date of filing of the suit till the date of payment which shall be within two months from the date of the order. It has further directed that remaining plot no. 48-A measuring 0.58 acres and plot no. 37 measuring 0.22 acres shall be subject matter of the execution of the sale deed in favour of the plaintiff as per the directions and judgments of the learned Trial Court.
While passing such judgment and decree, learned Appellate Court has taken into consideration a fact that sale deed was executed in favour of the appellant- Narendra Singh in the year 1989. Though, Narendra Singh was a party to the suit, but sale deed which was executed in his favour was not taken into consideration. Learned Trial Court also overlooked a fact that name of the appellant- Narendra Singh was recorded in the revenue records and he had taken a loan by mortgaging such property. It has also taken into consideration a fact that neither the sale deed which was executed in favour of Narendra Singh was challenged nor a relief was sought to get it declared as null and void.
Learned First Appellate Court has also taken into consideration impact of Section 154 of the Evidence Act on the subsequent sale deed which was allegedly executed by Jeet Singh in favour of Narendra Singh inasmuch as Narendra Singh had no knowledge of the previous transaction between Jeet Singh and the plaintiff- Ranjeet. Placing reliance on judgments of Hon'ble Supreme Court in case of A.K. Laxmipathy (Dead) and others vs. Raisaheb Pannalal H. Lahoti Charitable Trust and others as reported in AIR 2010 SC 577, wherein the responsibility of the seller has been defined and it has been held that if the seller fails to point out the defect in his title to the subsequent purchaser, then such subsequent purchaser will be deemed to be a bonafide purchaser and he shall be entitled to draw a presumption that the property in question is free from all encumbrances.
Placing reliance on the judgment of State of Bihar and others vs. Sm. Charusila Dasi as reported in AIR 1959 SC 1002, it has been held that if seller does not give information to the bonafide purchaser, then bonafide purchaser will be entitled to draw a presumption of property being free from all encumbrances.
Similarly, it has dealt with the issue of rights of the subsequent purchaser in the light of the law laid down by Hon'ble Supreme Court in case of Baljit Singh vs. Improvement Trust as reported in AIR 2009 SC 1254 and has held that in the light of the provisions contained in Hindustan Shipyard Limited vs. State of Andhra Pradesh 2000 (6) SCC 579, if an agreement has been executed by suppressing the material fact, then in terms of the provisions contained in Section 20(2) of the Specific Relief Act, Court shall use its own wisdom. Under such facts and circumstances that appellant- Narendra Singh is in possession of the suit property for now almost 30 years his name has been recorded in the revenue record and Narendra Singh has also obtained loan on such property, and plaintiff was never in possession of such property, assessing the comparative hardship between the plaintiff vis-a-vis defendant no. 2 and applying the principles of law in this regard as are laid down in case of V.Mutthusamy (deceased) vs. Angammal and others as reported in AIR 2002 SC 1279, impugned judgment has been passed by the learned First Appellate Court.
A perusal of the plaint averments, reveals that in the relief clause, plaintiff had prayed for an alternative relief of return of his earnest money with interest @ 2% pm. The Hon'ble Supreme Court in case of Jagdish Singh vs. Natthu Singh AIR 1992 SC 1604 has held that where an alternative prayer for refund of earnest money is sought, then under such facts and circumstances, the Courts will be justified in ordering refund of earnest money after evaluating the fact of comparative hardship. In the present case, after analysis of comparative hardship and taking into consideration the principle which has been laid down in Section 20 of the Specific Relief Act, learned First Appellate Court has directed to maintain the judgment and decree of the learned Trial Court to execute the sale deed in relation to those plots which have not been transferred by the legal heirs of defendant no. 1 or the defendant during his life time i.e., plot no. 48-A and plot no. 37 and has applied the principle of proportionality in directing return of proportional amount of earnest money along with interest @ 12% and therefore, in the light of judgment of the Hon'ble Supreme Court in case of Jagdish Singh (supra) such finding cannot be faulted with and therefore, appeal when tested on the touch stone of the principles laid down in Section 20 of the Specific Relief Act and the law laid down by Hon'ble Supreme Court in case of Jagdish Singh (supra), then impugned judgment partially modifying the judgment and decree cannot be said to be perverse or arbitrary giving rise to any substantial question of law.
Thus, appeal fails and is accordingly dismissed.
Order Date :- 07.02.2020 Vikram/-