Andhra HC (Pre-Telangana)
Abdul Rasheed And Others vs Abdul Hakeem on 12 October, 1998
Equivalent citations: 1998(6)ALD682, 1998(6)ALT399
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT
1. These two appeals arise out of two suits which were disposed of by a common judgment by the lower Court. For the sake of convenience the parties will be referred to as per their array in OS No.69 of 1989.
2. The subject matter of both the suits is a vacant site measuring 91 sq. yards. OS No.69 of 1989 is a suit for specific performance of the oral agreement of sale alleged to have been entered into by defendants 1, 2 and 4 to 6 with the plaintiff on 14-1-1989 agreeing to sell the suit site to the plaintiff and for a permanent injunction restraining the defendants from interfering with the plaintiffs possession and enjoyment of the suit property. The 7th defendant is the subsequent purchaser of the suit site along with the shed existing therein under two registered sale-deeds dated 1-2-1989 and 1-6-1989 marked as Exs.B1 and B2 respectively. Ex.B1 was executed by defendants 4 and 5 covering half share in the suit site whereas Ex.B2 executed by defendants 1 to 3, 6 and 8 to 10 covering the other half and the shed. The suit OS No.69 of 1989 was initially filed against the defendants 1 to 7 only on 7-6-1989. Subsequently defendants 8 to 10 were impleaded as parties as per the order dated 30-9-1991 passed in IA No.1097 of 1991. OS No.87 of 91 is filed by the 7th defendant against the plaintiff for recovery of possession of the suit property and for damages for use and occupation. Both the suits were tried jointly. The lower Court decreed OS No.69 of 89 with costs as prayed for and dismissed OS No.87 of 1991 without costs. Hence these two appeals. AS No.2764 of 92 is against OS No.69 of 1989 whereas Trans Appeal AS No.277 of 95 is against OS No.87 of 1991.
3. The undisputed facts of the case arc that the suit property originally belonged to one Abdul Jaleel who leased it out to the plaintiff under a lease agreement dated 29-5-1984 (Ex.A 60) fora period of five years on a monthly rent of Rs.100/-. The plaintiff was thus in occupation of the suit property as a tenant. Abdul Jaleel died on 26-8-1988. Even during his life time, Abdul Jaleel conveyed the suit property to his four sons i.e., defendants 4 to 6 and the father of defendants 1 to 3 under a registered sale deed dated 17-8-1987 (Ex.A63). It, is however, stated by the plaintiff that he had no knowledge of the same and that Abdul Jaleel continued to collect the rents till his death.
4. It is the specific case of the plaintiff, as pleaded in the plaint, that there was no oral agreement between him and defendants 1, 2 and 4 to 6 on 14-1-1989 whereby defendants 1, 2 and 4 to 6 agreed to sell the suit site to him at the rate of Rs.800/- per sq yard, that a sum of Rs. 10,000/- was paid by the plaintiff as advance to the 5th defendant at the time of the agreement, that the balance of sale consideration as per actual measurements was agreed to be paid within six months i.e., by July 14, that defendants 1 to 6 should execute the sale deed and register the same at the expense of the plaintiff and that till the execution of the sale deed the plaintiff should continue as a tenant at the agreed rent. According to the plaintiff, the said agreement took place in the presence of PWs.2 and 3 and PW4 the father of the plaintiff. The 7th defendant was also stated to be present at the time. Contrary to the said agreement, defendants 4 and 5 executed a sale deed dated 1-2-1989 (Ex.B1) in favour of the 7th defendant covering the eastern half share in the suit site. Thereupon the plaintiff got issued a registered notice to defendants 1 to 7 on 10-4-1989 (Ex.A1) to which a reply (Ex.A7) was sent on 17-4-1989 denying the alleged oral agreement of sale in favour of the plaintiff and stating that after the death of Abdul Jaleel, there was a partition between his sons in which the eastern portion of the suit property fell to the share of defendants 4 and 5 and that the sale deed executed by them in favour of the 7th defendant is perfectly valid. Subsequently defendants 1 to 3, 6 and 8 to 10 sold the other half of the suit property to the 7th defendant under the registered sale deed Ex.B2 dated 1-6-1989. The plaintiff thereupon filed OS No.69 of 1989 on 7-6-1989 for specific performance of the alleged agreement of sale in his favour and also for perpetual injunction. The suit was initially filed against defendants 1 to 7 only. But subsequently defendants 8 to 10 were added as parties by amending the plaint pleading that the contract of sale with the plaintiff must be deemed to have been entered into on belialf of defendants 8 to 10 also and, therefore, they are also liable to execute the sale deed along with defendants 1 to 7. The 7th defendant, in his turn, filed OS No.87 of 1991 against the plaintiff in OS 69 of 1989 for recovery of possession of the suit site along with the temporary structures therein and for damages for use and occupation at the rate of Rs.300/- per month.
5. In OS No.69 of 1989 defendants 5 and 7 filed a written statement and also an additional written statement after the amendment of the plaint. The same were adopted by the other defendants. The defence is one of total denial of the alleged oral agreement of sale set up by the plaintiff. The defendants also disputed the financial capacity of the plaintiff to purchase the suit property. According to them, the plaintiff was heavily indebted and he was not in a position to pay the sum of Rs.10,000/- by way of advance on 14-1-1989 as alleged. It is also pleaded that the 7th defendant is a bona fide purchaser for value without notice of the alleged oral agreement in favour of the plaintiff.
6. After framing appropriate issues and after a joint trial of both the suits, the trial Court decreed OS 69 of 1989 and dismissed OS 87 of 1991 holding that the oral agreement of sale put forward by the plaintiff is true and valid and that the plaintiff is entitled for specific performance of contract and also for injunction restraining the defendants from taking illegal possession of the suit property by force. The lower Court has also doubted the bora fides of the 7th defendant in obtaining the sale-deeds Exs.B1 and B2.
7. So the main question for consideration in these two appeals is whether the agreement of sale put forward by the plaintiff is true and valid and the plaintiff is entitled for specific performance.
8. The burden of proof naturally lies heavily on the plaintiff to prove the alleged agreement by reliable, cogent and convincing evidence. The law, no doubt, recognises an oral agreement of sale and there is no requirement of law that an agreement or contract of sale of immoveable property should only be in writing. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement alone, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immoveable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case see Brijmohan and others v. Sugra Begum and others, 1990 (2) LS (SC) 9.
9. It is therefore, necessary to examine the evidence adduced by the plaintiff in proof of the said agreement.
The plaintiff sought to prove the alleged agreement through the oral evidence of PWs.2 and 3 besides his own evidence as PW1 and that of his father PW4. He also relied on the entries made on 14-1-1989 in his daybook and ledger, Exs.A 51 and 52 respectively to prove the alleged payment of Rs. 10,0007-by way of advance at the time of the agreement. PWs.1 and 4 are naturally interested witnesses.
According to the defendants, even PWs.2 and 3 are close associates of the plaintiff and his father. It is suggested that PW2 is the main person behind this litigation and that he schemed and planned the suit and assisting the plaintiff in conducting the same. PW4 in his evidence stated that at the time of drafting the plaint, PW2 was also present along with him (PW4) and the plaintiff. PW2 in his evidence admitted that the grand-father of his wife and the grand-father of the mother of the plaintiff arc brothers. PW3 is a mason and the" evidence of PW2 shows that the plaintiffs father (PW4) was also a mason. It cannot, therefore, be said that PWs.2 and 3 are totally disinterested and independent witnesses.
10. According to the plaintiff the agreement was concluded on 14-1-1989 at his shop at about 5.30 or 6.00 p.m. PW1 stated that there is no specific reason as to why he did not take a regular agreement of sale in writing or even a receipt for payment of advance of Rs.10,000/-. Admittedly PW1 was in the habit of obtaining the signatures of his land-lord in the note book maintained by him (Ex.A44) whenever rents were paid to the landlord. If so, there is no reason why an agreement in writing or, at least, a receipt acknowledging payment of Rs. 10,000/- was not obtained. Not even the signature of D5 was obtained in the day-book in token of acknowledgment of the alleged payment of Rs.10,000/-. The mere fact that the parties were known to each other for a long time and they had good relations, cannot be a valid explanation for not reducing the alleged agreement into writing. There is thus an inherent improbability surrounding the alleged agreement. Similarly, the source from which the sum of Rs.10,000/- was obtained was not properly explained or established. According to the plaintiff, he got a sum of Rs.7,000/- as lorry hire charges one day prior to the date of the agreement and the balance of Rs.3,000/- was drawn from his business account. But the plaintiff himself admitted in his evidence that he has no accounts for his lorry business and there is no record to show that he got Rs.7,000/- from the lorry. He further stated that he cannot say and docs not remember whether his business accounts show a cash balance so as to enable him to pay Rs.3,000/- from his business account. Though the plaintiff seeks to rely upon the entries dated 14-1-1989 made in the day-book and ledger, Exs.A 51 and A 52, showing payment of Rs. 10,000/- to D5 on behalf of the children of Jaleel, in my view, they are not entitled to much weight. In the first place the entries are unsigned. The entries as such are not marked. Only the day-book and ledger are marked as Exs.A51 and A 52. They were not filed along with the plaint. In his chief-examination PW1 merely stated that Exs.A51 and A52 are his business account books to show the turnover of his business. He did not mention that the payment of Rs.10,000/- as advance was entered in the accounts. In cross-examination, PW1 admitted that the entry relating to the payment of Rs.10,000/- to D5 was not made in the account-book contemporaneously at the time of the alleged payment. He stated that the said entry was made by the accountant on the same day after the accountant came and account was closed. The accountant, who made the entry, was not examined. It is also doubtful whether the said accounts are maintained in the ordinary course of business as PW1 admitted that his accounts do not show the alleged purchase of slabs by PW3 on 14-1-1989. I therefore, find some force in the submission of the learned Counsel for the defendant-appellants that the said entries dated 14-1-1989 are self-serving entries subsequently brought into existence to bolster the case of the plaintiff. In Mathilda Sice v. Fritz Gaebele, AIR 1926 Mad. 955, it has been laid down that a mere account book without more does not prove anything and that it is for the party, who puts forward the accounts, to explain them and support them in such a way as to convince the Judge that there is such a probability of their occupancy as to make it reasonable for a prudent man to accept them. The law requires proof not only of account books generally but of each item that is in the interest of the person producing the books, but with regard to admissions i.e., entries against the producer's own pecuniary interest, the law dispenses with all proof, save, that the book has been kept by or under the authority of the producer.
11. For the aforesaid reasons, I am of the view that the said entries cannot be relied on by the plaintiff to prove the alleged payment of Rs. 10,000/- by way of advance. The lower Court, however, came to the conclusion that the plaintiff has sufficient financial capacity to purchase the property as he is carrying on business on an extensive scale, that he owns a lorry, that his wife owns about Acs.0.93 cents of land and that his father (PW4) also owns a buiding worth rupees three lakhs. Even granting that the plaintiff has sufficient financial capacity and resources generally, the question for consideration is whether on that particular date he had Rs. 10,000/- in cash on hand. When the specific case put forward by the plaintiff on the said question is disbelieved, the question of his financial capacity otherwise does not assume much importance.
12. Apart from the above improbabilities, there are several inconsistencies between the pleading and the evidence and also some material contradictions in the oral evidence of PWs.1 to 4 with regard to the alleged agreement or payment of Rs.10,000/-. As per the pleading the 7th defendant was also present and the bargain was settled in his presence. But PW1 did not mention the presence of 7th defendant at all in his evidence. In the registered notice Ex A1, got issued by the plaintiff before suit, it was stated that initial negotiations were held by defendants 1, 2 and 4. However, it is stated in the plaint that mention of D4 in the notice was a mistake for D5. According to the original pleading in the plaint, the contract was entered into with defendants, 1,2 and 4 to 6 and that it was agreed that the third defendant also should join in execution of the sale deed. But subsequently the case was developed to the effect that it was agreed that defendants 8 to 10 also should join. There is a contradiction between the evidence of PW1 and that of PW2 with regard to the denomination of the currency notes in which payment of Rs. 10,000/-was made. Whereas according to PW1 he paid Rs.10,000/- in the form of hundred rupee currency notes, according to PW2 it was paid in the form of currency notes of rupees fiftys and hundreds- Similarly with regard to the presence of 5th defendant at the time of raising dispute in April, 1989 also, there is a variation between PWs.1 and 2. Further the presence of PW3 at the time of the transaction is highly doubtful as he is a chance witness. According to PW3, he went to the shop of PW 1 to purchase sonic slabs. The alleged purchase of slabs by him is not borne out by the account books of PW1. PW3, however, stated that a bill was given to hint for the slabs purchased by him. But according to PW1, there was no bill. The evidence of PW2 also renders the presence of PW3 doubtful. At one place in his evidence PW2 stated that he does not know why PW3 came there or who sent for him. PW2 again stated that he and PW3 were called to witness the transaction. If they were called specifically to witness the transaction, one would expect a written agreement and attestation by them. PW3 stated that D5 and his brothers were present at the time of the settlement of the bargain. He did not mention the presence of defendants 1 to 3. As regards the subsequent mediation also, the evidence of PW 3 varies from that of PW2. The evidence of PWs.2 and 3 does not show that the agreement was entered into on behalf of all the brothers as pleaded in the plaint. The lower Court failed to properly appraise the oral evidence of PWs. 1 to 4 in the light of the aforementioned improbabilities and inconsistencies. It has accepted their ipsi dixit with a sweeping observation that there are no contradictions and infirmities or improbabilities in the evidence of PWs.1 to 4. The lower Court appears to have been swayed by some of the suspicious features surrounding the sale deeds Exs.B1 and B2 obtained by the 7th defendant like the feet that Ex.B2 sale deed was obtained after the exchange of registered notices, that the consideration mentioned in Ex.B1 was a penalty amount of Rs.13,200/-whereas an equal extent of property was sold under Ex.B2 for Rs.30,000 within six months and that false recitals were made in the two documents with regard to delivery of possession to the vendees whereas the property was admittedly in occupation of the plaintiff as tenant. But it must be remembered that in a suit for specific performance, the burden of proof is very much on the plaintiff and the plaintiff has to succeed on the strength of his own case rather than the weaknesses or defieicnces in the case of the defendants. It is, no doubt, true that in the matter of appreciation of oral evidence, the trial Court has the advantage of observing the demeanour of witnesses which is not available to the appellate Court and as such the appellate Court should give due weight to the reasons given by the trial Court and should be slow to interfere with the findings of the trial Court on issues which mainly turn on appreciation of oral evidence. However, when the trial Court has misdirected itself and failed to draw the proper inference from the proved facts, the appellate Court is entitled to reappreciate the evidence and come to its own independent conclusion and it ought not to shrink from that task. (See Rajbir Kaur v. M/s Chakosri & Co., .
13. The case of the plaintiff suffers from yet another serious infirmity. As already noticed, the contract originally pleaded in the plaint was with defendants 1 to 6 only and there was no mention of defendants 8 to 10 at all who were subsequently impleaded as parties by amending the plaint. The learned Counsel for the appellants has contended that the agreement pleaded in the plaint before amendment is different from the modified agreement which is set up after amendment of the plaint and the whole basis of the suit is changed by virtue of the amendment and on this ground alone, the suit is liable to be dismissed. On the other hand, the learned Counsel for the plaintiff-respondent has submitted that the probabilities of the case are in favour of the oral agreement set up by the plaintiff as the plaintiff was already in occupation of the property as a tenant, that the parties had close contact and cordial relationship and had mutual trust and confidence which is evidenced by Exs.A64 and A65 and ttat the absence of written agreement is immaterial having regard to the facts and circumstances of the case. He further contended that the plaintiff was probably unware about the existence of defendants 8 to 10 and, at any rate, as the male members of the defendants' family were looking after the affairs, there was no need or occasion for the plaintiff to approach D8 to D10 or talk with them or enter into any contract with them and probably the plaintiff was not even aware about them. He therefore, contended that the agreement must be deemed to have been entered by defendants 1 to 6 on behalf of all the family members and as such defendants 8 to 10 are liable to execute the sale-deed along with defendants 1 to 7. The plaintiff, however, in his evidence as PW 1 deposed as follows:
"Dawood had three sons and two daughters.
I enquired it while paying the advance.
His wife also was available. In our community all the sons, all the daughters and widow are legal heirs."
This clearly shows that the plaintiff had knowledge about the existence of defendants 8 to 10 and about their rights in the property. Yet he failed to enter into any agreement with them. Thus defendants 8 to 10 are not parties to the agreement pleaded by the plaintiff. As such they are not bound by the same.
14. In Mayawanti v. Kaushalya Devi, , the Supreme Court held as follows:
".....In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract.... Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if, the contract itself suffers from some defect which makes the contract invalid or unenforceable......It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it....."
In that case it was found that there was no consensus ad idem and in that connection the Supreme Court observed:
"The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the Courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem there can be no specific performance, for there was no contract at all....."
15. In the present case, as already held above, the plaintiff failed to establish convincingly either the agreement or the consensus ad idem between the parties. It must, therefore, follow that the plaintiff is not entitled for the relief of specific performance.
16. In this view of the matter, I think it is not necessary to go into other aspects touching the bona fides of the 7th defendant in obtaining the sale-deeds Exs.Bl and B2 or the inadequate consideration for, and the false recitals made in Exs.B1 and B2. It may, however, be observed that there is no evidence on record with regard to the proper market value of the suit property at that time. One fails to understand why, if really the plaintiff offered to purchase the property for more than Rs.70,000/-, the defendants would sell the property to the 7th defendant for Rs.43,200/-only. This circumstance itself renders the alleged agreement set up by the plaintiff improbable.
17. In the result, both the appeals are allowed and the judgment and the decrees of the lower Court are set aside. OS No.69 of 1989 is dismissed. The plaintiff in the said suit will be at liberty to withdraw the amount, if any, deposited by him pursuant to the decree of the lower Court. So far as OS No.87 of 1991 is concerned, there will be a decree in favour of the plaintiff in the said suit for possession of the vacant site only, and for profits, past and future, which shall be determined on a separate application. The defendant in the said suit will be at liberty to remove the superstructures raised by him in the suit site.
18. There will be no order as to costs in the above appeals.