Gauhati High Court
Sanjoy Kr. Baruah vs Pradip Kr. Goswami on 23 December, 2015
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
R.S.A. No. 91/2009
Shri Sanjay Kumar Barua,
S/O Late Birendra Kumar Barua
Resident of Panbazar, S.C. Goswami Road,
Guwahati-781001, District Kamrup, Assam.
............Plaintiff/Appellant
-Versus-
Shri Pradip Kumar Goswami
S/O Late Jamini Kanta Goswami,
Resident of M.G. Road, near Baneswar Temple,
Panbazar, Guwahati-781001, District-Kamrup.
............. Respondent
BEFORE THE HON'BLE MR JUSTICE SUMAN SHYAM Advocate for the Plaintiff/Appellant : Mr. S. Ali, Advocate Advocate for the Respondent : Mr. B.D. Deka, Advocate Date of hearing : 07/11/2015 Date of Judgment : 23/12/2015 JUDGEMENT & ORDER (CAV) This second appeal has been preferred against the judgment and decree of reversal dated 30-01-1009 passed by the learned Additional District Judge (F.T.C) No. 2, Kamrup, Guwahati in Title Appeal No.13/2007 setting aside the judgment and decree dated 28-08-2007 passed by the learned Civil Judge (Senior Division) No. 2 Kamrup, Guwahati in Title Suit No.75/1996 whereby the suit of the plaintiff was decreed by the trial court.
R.S.A. No.91/2009 Page 1 of 172. The second appeal was admitted by this Court by order dated 19/6/2009 to be heard on the following substantial questions of law:-
1. Whether, the plaintiff/appellant having proved Exhibit-2, the registered agreement for sale being deed No.3833/95 dated o8/08/1995 (executed on 18/07/1995) of which the original is Exhibit- 6 and Exhibit-D with cogent and positive evidence and as per law, the First Appellate Court is legally justified to refuse specific performance of the contract holding that the plaintiff side has failed to prove the execution of the agreement for sale by the defendant and also payment of advanced money to the defendant.
2. Whether the First Appellate Court was justified is relying upon and considering the evidence of DW1(defendant) when he has denied the signatures on the written statement as well as the additional written statement, which is beyond pleadings.
3. Whether the First Appellate Court misinterpreted the provisions of Sections 59, 60 and 61 of the Registration Act, 1908 and thereby arrived at wrong and perverse decision in refusing to grant Specific performance of the contract."
3. The brief factual matrix of the case, as projected in the plaint, is that the defendant/respondent is the owner in possession in respect of plot of land of 11/2 katha with RCC building (ground floor) standing thereupon which plot of land is covered by Dag No.29 of K.P. Patta No.453 of Sahar-Guwahati, Block No.3 under Guwahati Mouza in the district of Kamrup. By executing an unregistered deed of lease dated 07/07/95 the defendant had leased out the said RCC building and a plot of land measuring 1 katha to the plaintiff by receiving an amount of Rs.5000/- pursuant whereto the plaintiff was put in possession in respect of the said land and building which is described as the suit land. Being in need of money, the defendant had thereafter entered into an agreement for sale of the said 1 katha land and the building standing thereupon, with the plaintiff on 18/7/1995 by receiving an amount of R.S.A. No.91/2009 Page 2 of 17 Rs.2,50,000/- (Rupees two lakhs fifty thousand) as advance payment as against the total sale consideration of Rs.3,00,000/- (Rupees Three lakhs ) . On 8/8/1995 the aforementioned agreement for sale was registered before the Kamrup Sub-Registrar at Guwahati bearing registered deed of agreement No.3833/1995. As per the said registered deed of agreement for sale, the defendant was required to execute and register a sale deed in respect of the suit land and building within a period of 6 months from the date of execution of the agreement for sale by obtaining necessary permission from the competent authority and also by accepting the balance amount of Rs.50,000/- being the remaining part of the stipulated sale price of Rs. 3 lakhs as consideration for sale of the land and building.
4. After execution of the registered deed of agreement for sale as aforesaid, the defendant had also executed a registered deed of General Power of Attorney dated 29/8/1995 bearing registration No.2669/1995 in favour of the plaintiff inter- alia authorizing him to carry out repairing of the RCC building and/ or to construct house or building upon the vacant portion of the land including the power to let out the rooms on rent to third parties. Acting on the basis of the agreement for sale as well as the General Power of Attorney, the plaintiff had made considerable improvement of the existing building by spending good sum of money with a bonafide belief that he would become the owner of the land and the building as per the agreement for sale. However, despite repeated reminders made by the plaintiff requesting the defendant to execute the sale deed by accepting the balance amount from the plaintiff, the defendant failed to take any steps for performance of his part of the contract. On the contrary, the defendant had cancelled the General Power of Attorney dated 29/8/1995 without informing the plaintiff or issuing any notice to him. Further, in the month of October 1995, the defendant had also illegally taken away certain valuable materials belonging to the plaintiff which were lying in the RCC building which had prompted the plaintiff to lodge an FIR with the Panbazar Police Station. Eventually, at the intervention of police an out of Court settlement had been arrived at by and R.S.A. No.91/2009 Page 3 of 17 between the plaintiff and the defendant culminating in the compromise agreement dated 27/10/95 whereby the defendant had agreed to pay an amount of Rs.15,000/-(Rupees fifteen thousand) to the plaintiff within a period of one month so as to compensate the damages suffered by the plaintiff due to the aforesaid illegal acts of the defendant.
5. It is the pleaded case of the plaintiff that despite the compromise deed dated 27/10/95, the defendant did not pay the amount of Rs.15,000/- and on the contrary lodged a false complaint before the Sub-Registrar, Guwahati denying the execution of the registered deed of agreement for sale as a result of which the Deputy Registrar, Guwahati had issued a notice dated 31/10/95 upon the plaintiff asking him to show cause in the matter. Being aggrieved by the said notice issued by the Deputy Sub-Registrar , the plaintiff had instituted Title Suit No.319/1995 in the Court of Munsiff at Guwahati for a declaration that the notice was void and inoperable in the eye of law. In the said suit, the plaintiff had, however, reserved his right to institute appropriate proceeding for execution and registration of a sale deed in terms of the agreement for sale executed by the defendant. The plaintiff has categorically pleaded that although he was all along ready and willing to perform his part of the contract by paying the balance amount of Rs.50,000/- and to that effect had also issued a legal notice dated 9/10/95 calling upon the defendant to execute the sale deed in terms of the registered deed of agreement for sale, the defendant did not take any action in the matter as a result of which the plaintiff had been compelled to institute the Title Suit No.75/1996 in the Court of Civil Judge No.2 at Guwahati inter alia, praying for decree of specific performance of contract for sale; a decree for confirmation of possession of the suit land if the plaintiff is found to be out of possession, a decree for recovery of possession in respect there on; and alternative prayer for issuance of decree of Rs,2,50,000/- along with interest calculated at the rate of 18% per annum thereon in case a decree for specific performance of contract is declined and for other consequential relief. It would be pertinent to mention here that during the pendency of the aforesaid suit, the plaintiff R.S.A. No.91/2009 Page 4 of 17 claims to have been illegally and forcibly disposed from the suit land and building as a result of which he had to seek amendment of the plaint for insertion of the said facts in the plaint along with the alternative prayer of refund of Rs.2,50,000/- with 18% interest.
6. Upon receipt of summons in the suit, the defendant had entered appearance and contested the plaintiff's suit by questioning the maintainability of the suit on several grounds including want of cause of action, the suit being barred by limitation as well as for non-joinder of necessary parties. The defendant's case has been one of total denial of the execution of the unregistered lease deed dated 7/7/95, the agreement for sale dated 18/7/95 as well as its registration on 8/8/95. The defendant has also denied having received the amount of Rs.2,50,000/- as advance amount against the total sale consideration of the land and the building. The case of the defendant is that since he has not executed any agreement for sale in favour of the plaintiff nor has he accepted any payment as claimed by the plaintiff, hence, there cannot be any question of granting a decree for specific performance of the contract for sale of the suit land and building. Pursuant to the amendment of the plaint, the defendant had filed an additional written statement opposing the prayer of the plaintiff seeking an alternative relief by way of refund of the amount of Rs.2,50,000/- together with interest at the rate of 18% per annum calculated there upon.
7. On the basis of pleadings of the parties, the learned trial Court had framed as many as 5 issues which are as follows:-
1. Whether the suit is barred by the law of limitation?
2. Whether the defendant made a contract with the plaintiff to transfer the suit property in his favour at a consideration of Rs.3,00,000/-(Rupees three lakhs) and if he had received the amount of Rs.2,50,000/- as part performance of the contract from the plaintiff?
3. Whether the defendant had put the plaintiff in possession as part of the performance of the said contract?R.S.A. No.91/2009 Page 5 of 17
4. Whether the plaintiff is entitled to get a decree for specific performance of contract?
5. To what other relief/reliefs, if any, the plaintiff is entitled under the law and equity?
8. In support of their respective claims the parties to the suit had adduce oral as well as documentary evidence. The plaintiff had examined 3 witnesses and produced documentary evidence in support of his claim whereas the defendant's side had examined 4 witnesses and executed some documentary evidence. After a threadbare evaluation of the evidence available on record and also having heard the arguments of the learned counsel for the parties, the trial Court had recorded the findings in respect of issue No. 2 and 3 in favour of the plaintiff by holding that the defendant had in fact executed the agreement for sale in favour of the plaintiff for transferring the suit property for a consideration of Rs.3,00,000/- out of which an amount of Rs.2,50,000/- had already been received as advance by the defendant in cash from the plaintiff. As regard the issue No.3, the learned trial Court had recorded a specific finding of fact that in part performance of the agreement for sale, the plaintiff was put in possession of the suit premises by the defendant. In the result issue no 4 and 5 were also answered in favour of the plaintiff leading to the plaintiff's suit being decreed with all the reliefs prayed for.
9. Being highly aggrieved and dissatisfied with the judgment and decree dated 28/8/2007 passed by the learned trial Court in Title Suit No.75/96, the defendant as appellant had preferred Title Appeal No.13/2007 before the Court of Additional District Judge (F.T.C) No.2, Kamrup, Guwahati. On a re- apprisal of the evidence available on record as well as after hearing the learned counsel for the parties, the learned lower Appellate Court had reversed the findings recorded by the trial Court in respect of issue Nos. 2 and 3, thereby holding that the plaintiff has failed to prove the execution of the agreement for sale as well as the factum of acceptance of money by the defendant as per the requirements of law. Having held as above, the suit filed by the plaintiff was dismissed by the learned lower Appellate Court.
R.S.A. No.91/2009 Page 6 of 1710. Being aggrieved and dissatisfied with the judgment and decree passed by the lower Appellate Court, the plaintiff as appellant has approached this Court by filing the instant second appeal.
11. I have heard Mr. S. Ali, learned counsel appearing for the appellant. I have also heard Mr. B.D. Deka, learned counsel representing the respondent.
12. Arguing in support of the first substantial question of law, Mr. Ali submits that the plaintiff has not only pleaded all the material facts in the plaint so as to entitle him to a decree of specific performance of contract but has also adduced cogent evidence on record in order to prove and establish the execution of registered deed of agreement for sale by the defendant in favour of the plaintiff. He submits that it is admitted position of fact that the original of deed of agreement for sale, which was registered by the Sub- Registrar Guwahati on 8/8/95 bearing No.3833/95, was still in the custody of the registering authority since the process of copying had to be completed. As such, the plaintiff was in possession of a certified copy of the said document which was produced by him as Exhibit-2 by way of secondary evidence with the leave of the Court. Since Exhibit-2 was a certified copy of the agreement for sale duly registered by the competent authority, hence, there cannot be any question of proving the execution of the agreement for sale as per the requirement of Section 67 of the Indian Evidence Act, 1872 inasmuch as the said provision would have no applicability in case of secondary evidence. Mr. Ali further submits that the plaintiff having examined PW-3, who is an official of the Guwahati Sub-Registry and having produced the volume Register as well as the original registered deed of agreement of sale bearing No.3833 as Exhibit-6, it is apparent that the plaintiff had adduced cogent evidence on record to prove the due execution of the registered deed of sale by the defendant. Since the defendant had denied the execution of the sale deed, hence, the onus to disprove the case of the plaintiff by adducing evidence had shifted upon the defendant which burden he has failed to discharge. In such view of the matter, submits Mr. Ali, R.S.A. No.91/2009 Page 7 of 17 learned lower Appellate Court had committed manifest illegality in reversing the finding in respect of issue Nos. 2 and 3 thereby dismissing the suit filed by the plaintiff.
13. Drawing the attention of this Court to the evidence of DW-1 i.e. the defendant himself, Mr. Ali submits that the defendant has denied his signature in the written statement as well as the additional written statement only to defeat the claim of the plaintiff. Once the defendant had denied his signature in his pleadings, the written statement and/ or the additional written statement filed on behalf of the defendant had become liable to be struck off from the records, the same being incompetent in the eye of law. In such view of the matter, there is no pleading of the defendant denying the case of the plaintiff and to such extent the evidence adduced by the defendant are also honest in the eye of law. Mr. Ali, further contended that the evidence adduced by the plaintiff through PW-3 had established beyond doubt that the deed of agreement for sale had been registered by the Sub- Registrar at Guwahati on 8/8/95 by following the due process of law. He submits that even a visual examination of the Exhibit-6 would go to show that the same was a registered document. In such view of the matter, the learned first Appellate Court fell into serious error of law in dismissing the suit filed by the plaintiff on an erroneous interpretation of Section 59, 60 and 61 of the Registration Act, 1990.
14. In support of his aforementioned arguments, Mr. Ali has relied upon the following judgment and decision:-
1. Murari Lal vs State of Madya Pradesh reported in (1980) 1 SCC 704.
2. Grasim Industries Limited and Another vs Agarwal Steel reported in (2010) 1 SCC 83.
3. Ahmedsaheb and Others vs Sayed Ismail reported in (2012) 8 SCC 516.R.S.A. No.91/2009 Page 8 of 17
4. Saradamani Kandappan vs S. Rajalakshmi and Others reported in (2011) 12 SCC 18.
5. Union of India vs Kushala Shetty and Others reported in (2011) 12 SCC 69
6. Hasim Mia vs Ashraf Haji (Md) and Others reported in 2011(1) GLT 259.
15. Resisting the submissions made by and on behalf of the appellant, Mr. B.D. Deka, learned counsel appearing for the respondent submits that it is settled law that the burden of proof under Section 101 of the Evidence Act is always upon the plaintiff and the same never shifts upon the defendant. Since the defendant has categorically denied the execution of the deed of agreement for sale, hence, the burden was squarely upon the plaintiff to prove and establish the execution of the agreement for sale by examining witnesses who can identify the signature of the defendant as per the requirement of Section 67 of the Indian Evidence Act, 1872. The materials on record, according to Mr. Deka, would go to show that the plaintiff has failed to prove the execution of the agreement for sale. In such view of the matter, there was no scope for the plaintiff's suit to be decreed for specific performance of contract and the same has been rightly dismissed by the lower Appellate Court. Referring to Section 60 of the Evidence Act, Mr. Deka submits that the oral evidence adduced by the plaintiff in support of execution of the registered agreement for sale is not direct on the issue and as such, not sufficient for proving the signature of the defendant.
16. By referring to the testimony of the defendant's witness as well as the presence of the letter 'P' in Exhibit-6, Mr. Deka submits that the letter 'P' stands for "pending" and signifies that the process of registration of the agreement for sale was not complete. Referring to Section 60 of the Registration Act, 1908, Mr. Deka submits that unless the process of registration is over and a certificate of registration is issued in accordance R.S.A. No.91/2009 Page 9 of 17 with Section 60 of the Act of 1908, the said document cannot be treated as a registered document and consequently, the same would not be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act. As such, submits Mr. Deka, the learned lower Appellate Court had rightly reversed the findings recorded by the trial Court with regard to issue Nos. 2 and 3 and as such, the substantial questions of law urged by the appellant does not arise for decision in the facts and circumstances of the present case.
17. In support of his aforementioned arguments, Mr. B.D. Deka has relied upon the following judgment and decisions:-
1. H. Venketachala Iyengar vs B.N.Thimmajamma and others reported in AIR 1959 SC 443(1).
2. Shri Baru Ram vs Smt.Prasanni and Others reported in AIR 1959 SC 93(1).
3. State (Delhi Administration) vs Pali Ram reported in AIR 1979 SC 14(1).
4. Jai Singh vs Shakuntala reported in AIR 2002 SC 1428.
5. Rangammal vs Kuppuswami and Another reported in (2011) 12 SCC 220.
6. V. Ramachandra Ayyar and Another vs Ramalingam Chettiar and another reported in AIR 1963 SC 302.
7. Gurdev Kaur and Ors vs Kaki and Ors reported in AIR 2006 SC 1975.
18. I have considered the rival submissions made by and on behalf of the learned counsel for the parties and have also perused the materials on record.
R.S.A. No.91/2009 Page 10 of 1719. A scrutiny of the evidence available on record goes to show that PW- 1 i.e. the plaintiff had categorically deposed to the effect that the defendant had executed the unregistered deed of lease dated 7/7/95 and that an agreement for sale dated 18/7/95 (Exhibit-2) was executed by the defendant upon receipt of an amount of Rs.2,50,000/- being the earnest money, from the plaintiff in presence of witnesses for transferring the plot of land and the building mentioned therein. PW-1 had also deposed that on 8/8/95 the said document was registered before the Sub-Registrar Guwahati under registered deed No.3833/1995 and that the original agreement was still in the office of the Sub-Registrar as the same was not ready for delivery. PW-1 has also deposed about the execution of the General Power of Attorney dated 29/8/95 (Exhibit-3) as well as the fact that he had made several requests for executing the sale deed by the defendant which was followed up by issuance of Legal Notice dated 9/10/95 (Exhibit-5). However, during cross-examination of PW 1 there is no specific challenge to the said oral testimony of the plaintiff. On the contrary, the testimony of PW-1 made to the effect that the registered deed of agreement for sale was registered on commission by deputing official from the office of the Sub-Registrar Guwahati has virtually remain unimpeached.
20. A perusal of the testimony of PW-3 Pobitra Kumar Das, who is an LDA assistant working in the office of Sub-Registrar Guwahati, goes to show that the deed of agreement for sale bearing No.3833/1995 which was registered on 8/8/95 was executed by the defendant in favour of the plaintiff and the said document was written by Maheshwar Das and that one Ajit Kumar Kalita as well as Maheshwar Das himself had signed therein as witnesses. What can be seen from the testimony of PW-3 is that the Exhibit-6 does not carry the thumb impression of the defendant. The aforesaid fact bears significance in view of the suggestion made by the defendant during the cross-examination of PW-1 that the plaintiff had obtained thumb impression of the defendant on a blank paper and got the agreement for fraudulently sale registered in the office of the Sub-Registrar.
R.S.A. No.91/2009 Page 11 of 1721. The defendant in his evidence (DW-1) has not denied the execution of the General Power of Attorney bearing registration No.2669/95 but has vaguely stated that the same was obtained by the plaintiff only to grab his property without substantiating the said statement in any manner. During his cross-examination DW-1 had in fact denied his signature in the written statement as well as the additional written statement which were obviously filed by him and relied upon by his counsel all throughout the proceedings before the trial Court as well as before the Appellate Court. A perusal of the testimony of DW-3 would go to show that the said witness, who was working as Deputy Registrar at the relevant point of time, has admitted that on 8/8/95, the aforesaid deed for agreement for sale had been presented for registration. The said witness had also gone on to say that the registration process could not be completed as a result of which the letter 'P' had been marked therein so as to signify that the registration was pending. He had also confirmed that the said agreement for sale had been executed by the defendant in favour of the plaintiff. The witness had also admitted that Exhibit-6 agreement for sale indicates that the same was registered by DW-3 himself. An examination of the oral testimony of DW-4 also goes to show that Exhibit-2 is the certified copy of the agreement for sale marked as Exhibit-D which is equivalent to Exhibit-6 and that certified copy of the said deed had been issued since the work of copying the original was yet to be completed.
22. From the evaluation of the evidence available on record, it clearly appears that the plaintiff has been able to prove and establish by leading cogent evidence that the defendant had in fact executed the agreement for sale after receiving an amount of Rs.2,50,000/- as advance amount from the plaintiff agreeing to sell the suit land and building for a total consideration of Rs. 3,00,000/-. It further appears from the records that the defendant had executed a registered deed of General Power of Attorney (Exhibit-3) so as to facilitate the transfer of the land and building in favour of the plaintiff. It is the categorical case of the plaintiff that the original deed of agreement for sale had not been delivered by the office of the Sub-Registrar and hence, he R.S.A. No.91/2009 Page 12 of 17 had to produce the certified copy of the said document besides examining the connected records from the office of the Sub-Registrar to prove that the said document was in fact presented for registration. From the above evidence on record it can be safely assume that the plaintiff had succeeded in prima facie establishing his case pleaded in the plaint by adducing cogent evidence. Once there is a registered document produced by the parties to the proceeding a presumption as regard to the genuinety of the said document would always arise in the eye of law unless the contesting party succeeds in displacing such presumption by adducing evidence.
23. In the present case, the plaintiff has been able to establish his case by leading evidence. However, not to speak of leading proper evidence, save and accept, denying the case of the plaintiff the defendant has not been able to come up with a consistence stand giving his version of the case. The aforesaid fact assumes greater significance in view of the fact that defendant had admitted the execution of the General Power of Attorney as well as the agreement of compromise deed dated 27/10/95.
24. Though the defendant had denied his signature in the written statement as well as the additional written statement, such denial appears to be complete contrary and inconsistence with the stand of the defendant in the matter particularly, considering the fact that his counsels have relied upon the said document all throughout the proceeding. From the aforesaid materials available on record, it leaves no manner of doubt that the defendant having entered into a agreement for sale for transfer of the suit land and house in favour of the plaintiff, had resiled from the same by cancelling the Power of Attorney without issuing any prior notice to the plaintiff and thereafter denied the entire transaction with the sole purpose of defeating the claim of the plaintiff. Such bald denial of the defendant, viewed in the conspectus of the facts and circumstances of the case, does not inspired the confidence of this Court.
R.S.A. No.91/2009 Page 13 of 1725. While rendering the impugned judgment and decree the learned Appellate Court had also recorded a categorical finding that the original agreement for sale (Exhibit-D) was in fact registered by DW-3 on 8/8/95 on commission and that the process of registration was complete. Having held as such, the learned lower Appellate Court had reversed the findings in respect on issue Nos. 2 and 3 on the sole ground that the plaintiff has failed to prove the execution of the deed of agreement for sale without discussing the entirety of evidence available on record.
26. In view of what have been discussed herein above, I am of the considered opinion that the plaintiff had succeeded in proving and establishing the execution of the registered deed of agreement for sale entitling him to the relief prayed for in the suit. The learned Appellate Court below was not correct in reversing the finding recorded by the Trial Court in respect of issue nos. 2 and 3. Accordingly, the substantial questions of law No. 1 and 2 stands answered in favour of the appellant/plaintiff and against the respondent/defendant.
27. As to the 3rd substantial question of law, the document Exhibit-D and Exhibit-6 clearly goes to show that the same bears seal and signature of the registering authority and also carries a registered deed number showing that the document was in fact a registered one. The evidence adduced by the defendant more particularly, DW-3 and 4 unequivocally goes to show that the said documents were presented for registration in accordance with the due process of law. Therefore, to say that the document Exhibit-D and Exhibit-6 would not stand the scrutiny of Section 60 of the Registration Act, 1908, in the opinion of this court ,would be wholly untenable in the facts and circumstances of the case. The mere presence of the letter 'P' cannot have any fatal bearing on the question of registration of the document in the absence of any evidence lead by the defendant to show that the registration process was vitiated in the eye of law. If the defendant's case was that the process of registration of the agreement for sale is invalid then the burden to R.S.A. No.91/2009 Page 14 of 17 prove the same would be upon the defendant which burden he has failed to discharge. In such view of the matter, the 3rd substantial question of law also stands answered in favour of the appellant/plaintiff and against the respondent/defendant. In any case since there is no requirement under the law to have compulsory registration of an agreement for sale, hence, as per the proviso of Section 49 of the Registration Act, 1908, an unregistered agreement for sale can be received as evidence of contract in a suit for specific performance of contract for sale of immovable property. As such, the 3rd substantial question of law would be inconsequential for the purpose of deciding the suit of the plaintiff on merit.
28. In view of what have been discussed herein before, I am of the considered opinion that the judgment and order passed by the learned lower Appellate Court is not sustainable in the eye of law and hence, the same is hereby set aside. The finding recorded by the learned Trial Court in respect of Issue Nos 1,2 and 3 are hereby affirmed.
29. Now coming to the question of relief that can be granted in the facts of the present case, It would be pertinent to mention herein that section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary. The relief of decree of specific performance of a contract is an equitable relief which is required to be considered by the court as per the equitable principles enshrined in section 20 of the Act of 1993. The discretionary power of the court is required to be exercised on the basis of sound judicial principles having regard to the facts and circumstances of the case. Section 20 of the Act of 1963 itself makes it clear that the court is not bound to grant a decree of specific performance of contract merely because it is lawful to do so.
30. In the instant case the defendant has consistently taken a stand that the suit land and building is the only piece of immovable property owned by the defendant wherein he is living with his family. It is also apparent from the record that during the pendency of the Civil Suit, the plaintiff has been R.S.A. No.91/2009 Page 15 of 17 dispossessed from the suit land as a result of which the plaintiff had to seek an amendment of the plaint which was allowed by the order dated 19/6/02. By way of amendment, the plaintiff has also sought for an alternative remedy of refund amount of the Rs.2,50,000/- together with interest at the rate of 18% per annum if a decree of specific performance of contract cannot be granted in his favour. Although such a prayer has been made by the plaintiff, same has not been considered by the court below while deciding the issue Nos. 4 and 5.
31. Since it is not in dispute that the suit land is the only plot of land owned by the defendant wherein he is residing with his family and considering the fact that the defendant has been dispossessed of the suit property since more than 12 years now hence, it is quite natural that the defendant might have developed the property during the intervening years. On the other hand, the price of the suit land is also likely to have gone up several times since the time of institution of the suit. Therefore, while exercising the discretionary jurisdiction under section 20 of the Act of 1963, the court is required to consider the overall facts and circumstances of the case before taking a decision on the question of granting a decree of specific performance of contract. Since the court below has not considered the aforesaid aspect of the matter and having regard to the fact that a decision on the above aspect may require appreciation of evidence hence, this court is of the considered opinion that present is a fit case where the matter requires to be remanded to the learned Lower Appellate Court for a fresh decision on the issues Nos. 4 and 5 keeping in mind the equitable principles incorporated in section 20 of the Act of 1963 as well as the alternate prayer made in the plaint. The learned Lower Appellate Court would now confine the decision of the appeal to the question as to whether the present is a fit case for issuing a decree of specific performance of contract or a case where monitory compensation as may be justified in the facts and circumstances of the case would constitute adequate relief for the plaintiff.
R.S.A. No.91/2009 Page 16 of 1732. In the result, the second appeal is allowed to the extent indicated above. The Title Appeal No 13 of 2007 would now stand revived in the file of the First Appellate Court. Parties are directed to appear before the Court below on 25-01-2016 for receiving further orders in the matter. An endeavor may be made to dispose of the Title Appeal within six months from the date of receipt of the records.
There would be no order as to cost.
Registry to send back the records expeditiously.
JUDGE chasie R.S.A. No.91/2009 Page 17 of 17