Delhi District Court
Reliance International Corporation vs Sh. Jaipal Singh on 27 April, 2010
1
IN THE COURT OF SHRI SURINDER S. RATHI:ADJ
CENTRAL/07:ROOM NO.32:TIS HAZARI COURTS :DELHI
02401C1265912008
CS NO:955/08
RELIANCE INTERNATIONAL CORPORATION
(P) Ltd., a Company duly incorporated
and registered under the Companies Act1956,
having its office at B4/4, Safdarjang Enclave,
New Delhi through its authorised representative
Smt. Anjali Sehgal. ...... Plaintiff
Vs.
1. Sh. Jaipal Singh
S/o late Smt. Chandra,
R/o Village Badshahpur,
Post Office : Badshahpur,
Distt. Gurgaon ( Haryana)
2. Har Gian Singh
S/o late Sh. Basti Ram
R/o village Kapashera
New Delhi
3. Parmal Singh
S/o late Sh. Gahar Singh
R/o Village Kapashera,
New Delhi.
4. Uday Singh
S/o late Sh. Gahar Singh
R/o Village Kapashera
New Delhi.
contd/.....
2
5. Chander Sain
S/o late Sh. Gahar Singh
R/o Village Kapashera,
New Delhi.
6. Jai Prakash
S/o late Sh. Gahar Singh
R/o Village Kapashera,
New Delhi. ....... Defendants
SUIT FOR SPECIF PERFORMANCE
DATE OF INSTITUTION : 25.06.1993
DATE OF FINAL ARGUMENT : 27.04.2010
DATE OF FINAL JUDGMENT : 27.04.2010
JUDGMENT
1. This suit for specific performance in alternative for damages was filed by plaintiff company against the defendant seller for seeking specific performance for an agreement of sale dated. 29.04.1993 qua 1/6th share in agriculture land admeasuring 44 Biga 9 Biswa out of revenue estate of village Kapashera, Delhi.
2. Case of the plaintiff company as per pleading is that, it is a duly incorporating company. In the month of April 1993 defendant Jai Pal, who was interested in selling his 1/6 share in land out of Kila no. as detailed in para no.2 of the plaint, approached the plaintiff company for selling the same. These talks contd/.....
3finally culminated into an agreement for sale Dated 29.04.1993. Total sale consideration was agreed at Rs.10,03,210/ out of which Rs.25,000/ was paid as earnest money. Cash receipt was duly executed qua this and the balance amount was agreed to be paid at the time of registration of the sale deed. It was agreed that after obtaining necessary permissions from the government authorities defendant would intimate the plaintiff by registered post which shall be followed by execution of sale deed. Plaintiff is said to have signed necessary documents qua obtaining requisite permission in May 1993. Thereafter, plaintiff company approached the defendant qua the progress in obtaining clearances, but nothing was heard from the defendant till first week of June 1993.
3. On 15.06.1993 defendant Sh.Jai Pal wrote a letter to the plaintiff asking for more money by stating that he is not interested in complying his part of the obligation under the agreement dated 29.04.1993 on account of rise in prices. Plaintiff has termed this to be an act of dishonesty aimed at breaching the agreement to which defendant is legally bound to comply. Having no other option left plaintiff approached this Court with the suit in hand seeking decree contd/.....
4of specific performance apart from seeking vacant possession of the suit property. In alternative a decree of damages for Rs. 10,03,210/ was sought.
4. This suit was initially filed at the original side of Hon'ble High Court but was subsequently transferred to District Court in the year 2003 upon change in pecuniary jurisdiction.
5. Upon filing of this petition, on the very first date of hearing i.e.25.6.93, plaintiff company was granted exparte adinterim stay restraining the defendant from th transferring , alienating or parting with the possession of his 1/6 share of the suit property. Thereafter upon service of summons , defendant had entered in appearance through his counsel. However, no written statement was filed by him despite repeated adjournments apart from imposition of cost. Finally, his right to file written statement was closed on 25.3.1997. A review application against this order was also dismissed on 1.10.1999.
6. During the course of trial vide order dated 21.11.2000, Hon'ble High Court , in the original side raised a query to the plaintiff that in case the relief sought in th the suit is granted and plaintiff company is accorded 1/6 undivided share in the piece of land admeasuring 44 bigha 9 biswa, then this would result in contd/.....
5violation of DLR Act in so far as holding of each cosharer would be less than 8 standard acres. Meanwhile plaintiff company lead its exparte evidence on 12.5.2000. Finally , upon transfer of this matter to District Court, vide a judgment dated 26.11.2005, Ld. Predecessor of this court dismissed the suit of the plaintiff company primarily on the ground that civil court has no jurisdiction to entertain this suit by virtue of 185 of the DLR Act and the fact that the suit land is an agricultural land.
7. This judgment was challenged by plaintiff company in appeal before Hon'ble High Court vide RFA 58/2006. The appeal was contested by the defendant Sh.Jai Pal Singh. While the appeal was pending before Hon'ble High Court , now newly added defendants no.2 to 6, participated in the same and opposed the appeal. The appeal of the plaintiff company was allowed by Hon'ble High Court vide judgment dated 12.8.2008. The judgment of Ld. Predecessor dated 26.11.2005 was set aside and matter was remanded back . During the pendency of the appeal , defendant no.2 to 6 were allowed to participate therein vide order dated 1.4.2008 . In the order passed in the Appeal Hon'ble High Court set aside the finding of Ld. Predecessor that a Civil Court has no contd/.....
6jurisdiction to try a suit for specific performance qua agricultural land . It was observed that 185 DLR Act works as bar on civil courts only on those subjects which are covered in schedule III of DLR Act. Since Revenue Courts have no power to pass a decree of specific performance, this jurisdiction rests in civil court. As far as the question of violation of Section 33 and Section 57 of DLR Act are concerned. Hon'ble High Court has observed that both these sections work in totally different spheres. Section 33 is supposed to avoid fragmentation of land holding in Delhi while 57 pertains to partition there of. If a party choose to buy a bhubidhar rights while fragmenting the land holding to less than 8 standard acres, then the Revenue Court has the authority to decline the actual physical partition and rather it can direct the sale of the holding the distribute the sale proceeds accordingly. It was also ruled that if a cobhumidhar can seek partition , then buyers of undivided cobhumidhari right can also seek legal partition. As such it was observed that there is no flaw in the maintainability of the suit as filed by the plaintiff company and finding of Ld. Predecessor qua its maintainability was set aside.
8. After the decision of the appeal the matter was received back by Ld. contd/.....
7Predecessor on 25.10.2008. The newly added defendants filed their written statements. Separate written statement was filed by defendant no.2 Sh.Har Gian Singh while defendant no.3 to 6 filed a common written statement.
9. In his written statement, defendant no.2 has pleaded that this suit deserves to be dismissed as it is based on an illegal and void document and it has been filed after concealment of true facts. It is pleaded that initially Shrui Bhim Singh was recorded sole bhumidar of entire chunk of agriculture land ad measuring 44 Bighas and 9 biswa in village Kapasera. He died in 1967 and was survived by his widow Smt. Ram Dei, three sons namely Sh. Basti Ram, Sh. Gahar Singh and Sh. Chunni Lal apart from two daughters namely Smt. Chandro and Smt. Tulsan. Upon death of Sh. Bhim Singh his land holding was mutated on 12.01.1968 in the name of all the above six persons as 1/6 th owner each. Defendant No.1 Jai Pal is son of Smt. Chandro. Upon death of Smt. Chandro her share was mutated in the name of Sh. Jai Pal defendant no. 1 on 20.06.1992.
10. It is case of the defendants that the initial mutation dated 12.01.1968 done contd/.....
8by Tahsildar Mehurali was in violation of Section 50 of DLR Act since as per this legal provision once there are male linear descendants no other person can inherit bhumidari rights. It is said that for this reason mutation dated 12.01.1968 was erroneous and illegal. It is case of the defendant that this illegality was further perpetuated in the mutation dated 20.06.1992 when mutation in the name of defendant no.1 Sh. Jai Pal was carried out on the basis of earlier mutation.
11.Aggrieved by both these mutations defendant no.2 apart from Shri Gahar Singh father of defendant no. 3 to 6 and Sh. Mam Chand brother of defendant no.2 Har Gian filed a civil suit for declaration and permanent injunction in the court of Ld. Civil Judge, Delhi against Smt. Tulsan, Sh. Jai Pal and Sh. Chunni Lal. Relief which was sought therein was, a declaration that both the above mutations i.e. mutation dated 12.01.68 and 20.06.92 are null and void in so far as they are in violation of section 50 of DLR Act. This suit was initially contested but was finally decreed exparte in favour of defendant no. 2 and his other co plaintiffs of that suit. Admittedly, no appeal against this judgment and decree was preferred by any person.
contd/.....
9
12. It is further case of defendant no.2 that the suit in hand is a collusive litigation between plaintiff company and defendant no.1 and same is hit by Section 23 of Indian Contract Act apart from Sections 12,14,17 & 20 of Specific Relief Act. Separate replication to this written statement was filed by the plaintiff company wherein it reiterated its pleaded case and denied the contentions of the defendant. It was pleaded that the decree obtained from the Court of Ld. Civil Judge was result of a collusive suit between defendant no.2 and his family members .
13. In the separate written statement filed on behalf of defendant no. 3 to 6 they have pleaded on the lines of written statement of defendant no. 2 . It is pleaded that plaint has not been filed by duly authorised person and that it deserves to be dismissed because of the objections taken on the lines of written statement of defendant no.2. Replication to this written statement was also filed wherein the plaintiff reiterated its case.
14.Following detailed issues were also framed on 9.2.2010.
contd/.....
10ISSUES
15.
1.Whether the agreement for sale dated 29.4.1993 entered between plaintiff company and defendant no.1 is a void document in so far as defendant no.1 Jaipal was never owner or bhumidar of the suit property. (OPD 2 to 6)
2.Whether this suit of the plaintiff is a collusive litigation between plaintiff and defendant no.1 aimed at usurping immovable property belonging to defendant no.2 to 6 (OPD 2 to 6).
3.Whether suit is hit by Section 23 of Indian Contract Act apart from Section 12,14,17 & 20 of the Specific Relief Act,1963. (OPD2)
4.Whether plaintiff is entitled to decree of specific performances against the defendant no.1 in pursuance of th agreement for sale dated 29.4.1993 qua undivided 1/6 share out of agricultural land admeasuring 44 Bighas and 9 Biswas out of Khasras detailed in para 2 of the plaint of Village Kapashera, Delhi. (OPP)
5.Relief
16.I have heard Ld. Counsel Sh. Deepak Dhingra advocate for plaintiff, Ld. Counsel Ms. Geeta Dhingra advocate for defendant No.1, Ld. Counsel Sh. B.S.Mann and Sh. R.S.Verma advocate for defendant no.2, Ld. Counsel Sh. Sunil Chauhan and Ms. Anita Ranjan advocate for defendant no.3 to
6. I have perused the case file carefully.
contd/.....
11
17.To prove its case, plaintiff company examined is Executive Director Mrs. Anjali Sehgal apart from examining Sh. PW2 Yogesh Kumar , Patwari, Vasant Vihar. On the other hand defendant No.2 Sh. Har Gian Singh examined himself as DW1.
18.In her deposition as PW1 Smt. Anjali Sehgal , Executive Director of the plaintiff company has deposed on the lines of plaint. She has exhibited Board Resolution dated 29.7.08 as Ex. PW1/A, Board Resolution dated 22.6.1993 passed in favaour of Sh. M.M.Sehgal as Ex. PW1/1, copy of Khatauni already Marked as Mark A, as Ex. PW1/2, agreement to sell as Ex. PW1/3, copy of receipt as Ex. PW1/4, copy of letter dated 15.6.1993 as Ex. PW1/5.
19.She was cross examined at length wherein she denied the suggestion of defendant no.1 that he was ready and willing to perform his part of the agreement or that it was the plaintiff company which was not willing to pay balance consideration amount. As per her defendant no.1 did not obtain requisite approval for execution of the sale deed. In her cross examination done on behalf of LD. Counsel for defendant no,2, she conceded that the suit contd/.....
12land is an agricultural land and it is governed by provision of DLR Act. As per her she came to know of the decree passed by LD. Civil Judge, canceling the mutations dated 12.1.1968 and 20.6.1992 only after the copy of the judgment was placed on the suit in hand. She expressed her unawareness about Khatuni Ex. PW1/D1 containing corrected revenue record entries as per decree dated 21.3.2005. She maintained that as per her the mutation of the suit land is still in the name of defendant no.1 Sh. Jai Pal. She denied the suggestion of the defence that , defendant no.2 to 6 and one Sh. Mam Chand are true legal owners of the suit land or that defendant no.1 Sh. Jai Pal has no concern with the same. Se conceded that she has not placed original minutes book qua resolution Ex.PW1/A. As per her Sh. Jai Pal had 1.5 acres of land under this share. She conceded that the plaintiff company had not challenged the judgment passed by LD. Civil Judge.
20.PW2 Yogesh Kumar Patwari produced Revenue Record of the suit land for the year 1993 to 2003. He stated that as per mutation dated 23.6.92 Ex.
th PW2/A Jai Pal was recorded 1/6 Bhoomidhar of the suit property. In his cross examination, he admitted that in the record brought by him, there is a contd/.....
13mention of decree passed by LD. Civil Judge on 21.3.2005. He accepted that as per order of SDM dated 12.6.06 the mutation entries were corrected in terms of judgment of Ld. Civil Judge. He accepted the document Ex. PW1/D1 and Ex. PW2/D1 as Khatuni issued by the Revenue Department and as per which previous mutation entries stand deleted and now the suit land stands mutated in the name of Sh. Mam Chand and Sh. Har Gian S/o Late Sh. Basti rd rd Ram as 1/3 share holder , Sh. Gahar Singh S/o Late Sh. Bhim Singh as 1/3 rd share holder . As per these documents , remaining 1/3 is mutated in the name of Late Sh. Chunni Lal . He accepted in clear terms that after order of SDM dated 12.6.06 , Sh. Jaipal S/o Late Smt. Chandro is no more Bhoomidhar of any part of suit land admeasuring 44 bigha 9 biswa.
21.DW1 Sh. Har Gian Singh, defendant no.2 in this suit has deposed in the lines of his written statement in affidavit Ex. DW1/A. In his cross examination , he deposed that when he came to know about the stay order passed in the suit from the office of Patwari, he approached Hon'ble High Court for impleadment as a party in the appeal. He accepted that when defendant Sh. Jai Pal entered into agreement for sale with plaintiff company, there was a contd/.....
14mutation entry in favour of Sh. Jaipal. He accepted that between 1968 and 1993 they did not inquire about the mutation entries. As per him since they were in cultivatory possession , they did not feel it necessary. As per him, defendant Sh. Jai Pal threatened them that he will sell the suit land and this necessitated filing of litigation of correction in mutation entry. As per him Sh.Jai Pal disclosed about pendency of this suit and the agreement of sale in his written statement filed before LD. Civil Judge in 1996 but they did not take step to implead the plaintiff company as a codefendant for the reason that according to them Sh. Jai Pal had no right in the suit property.
22.Now I shall dispose off individual issues framed in this case. ISSUE NO: 1
23.
1.Whether the agreement for sale dated 29.4.1993 entered between plaintiff company and defendant no.1 is a void document in so far as defendant no.1 Jaipal was never owner or bhumidar of the suit property. (OPD 2 to 6)
24.It is admitted case of all the parties to the suit that this suit land is of agriculture nature and was initially wholly owned by late Sh. Bhim Singh as sole Bhumidhar . Also admittedly after his death in 1967, it was mutated in contd/.....
15the name of his widow, three sons and two daughters in the revenue record vide mutation dated 21.8.1968. Also admittedly after death of Smt. Chandro , d/o late Sh. Bhim Singh, her share was mutated in the name of defendant no.1 Sh. Jai Pal, her son on 20.6.1992. Also admittedly this suit land is governed by provisions of DLR Act, 1954. Also admittedly a judgment and decree already stands passed by LD. Civil Judge on 21.3.2005 whereby the above mutation entries dated 12.1.1968 and 20.6.1992 stand declared null and void & ultravires to Section 50 of Delhi Land Reforms Act. Also admittedly in pursuance of decree vide a correction order dated 12.6.06 passed by Ld. SDM Vasant Vihar , now earlier mutations stand duly canceled and the entire suit land stand mutated in the name of defendant no.2 Sh. Har rd Gian and his brother Sh. Mam Chand as 1/3 share holder , Sh.Gahar Singh rd rd father of defendant no.3 to 6 as 1/3 share holder and remaining 1/3 in the name of Late Sh. Chunni Lal.
25.However, it is accepted that as on 29.4.1993 when the agreement of sale Ex. PW1/3 was executed between plaintiff and defendant no.1, defendant no.1 th had a mutation of 1/6 share of the entire land in his name in Revenue contd/.....
16Record. It is argued by LD. Counsel for plaintiff that his client executed the agreement for sale only upon verifying that defendant no.1 had a mutation entry in his favour. Although there can be no two opinions that plaintiff could not have per se visualised that mutation entry which exists in favour of defendant no,1 as on 29.4.1993, would be in due course of time canceled and would be declared null and void by judgment of the Civil Court. But under the Doctrine of Buyer Beware , it was incumbent upon plaintiff company to check the authenticity of mutation entry of defendant no.1. It is settled legal proposition that a mere mutation entry in Revenue Record is not a conclusive proof of title of the land .
26.In case titled N.I. DAVE vs. STATE OF GUJARAT AIR 1994 SC 1496 Hon'ble Supreme Court held :
"mutation of the names in the Revenue Record are not evidence of title though may be relevant for other purposes."
contd/.....
17In another case titled BALWANT SINGH vs DAULAT SINGH AIR 1997 SC 2719, Hon'ble Supreme Court held :
"Be that as it may , we have already noticed that mutation entries do not convey or extinguish any title and those entries are relevant boundary for the purpose of collection of land revenue."
27. In another case titled SAWARNI vs. INDERPAL AIR 1996 SC 2823 Hon'ble Supreme Court held that :
"mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title."
28.In another case titled State of HP Vs. Keshav Ram (1996 ) 11 SCC 257 Hon'ble Supreme Court held :
" the question, therefore, arises as to whether the entry in the settlement papers recording somebody's name could create or extinguish title in favour of the person concerned? .......... But at any rate such an entry in Revenue paper by no stretch of imagination can form the basis for declaration of titling favour of plaintiff. ...... In our considered opinion, the courts below committed serious error of law declaring plaintiff's title on the basis of aforesaid order of correction at the consequential entry in the Revenue papers."
contd/.....
18
29.Once it is admitted by the parties that the suit land is agricultural in nature , its succession is admittedly governed by Section 50 of DLR Act'1954.
runs as under:
30.Section 50 of DLR Act General order of succession from males - Subject to the provisions of Section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of succession given below:
a) male lineal descendants in the male line or descent;
Provided that no member of this class shall in herit if any male descendant between him and, the deceased is alive. Provided further that the son or sons of a predeceased on how lowsoever shall inherit the share which would have devolved upon the deceased if he had been then alive;
b) Widow;
c) father;
d) mother, being a widow;
e) step mother, being a widow;
f) father's father ;
g) father's mother, being a widow;
h) widow of a male lineal descendant in the male line of descent;
i) unmarried daughter;
j) brother's son, the brother having been a son of the same father as the deceased;
k) unmarried sister;
l) brother's son, the brother having been a son of the same father as the deceased;
m) father's father's son;
n) brother's son's son;
o) father's father's son's son;
p) daughter's son contd/.....
19
31.In case titled RAM MEHAR vs. DAKHAN 1973 DLT 44 , DB of Hon'ble Delhi High Court ruled :
" In view of the conclusion that the Delhi Land Reform Act provides for the prevention of the fragmentation of agricultural holdings and also at the material time fixed ceilings on agricultural holdings and also dealt with the devolution of tenancy rights on such holdings, it must be held that this law is saved by Section 4 (2) of the Hindu Succession Act and is not repealed by the provisions of the Hindu Succession Act. The would mean that the rule of succession governing Bhumidars is to be found in Section 50 of the Delhi Land Reforms Act and not in the Hindu Succession Act,1956."
32.In case titled CHOTI DEVI vs. FINANCIAL COMMISSIONER 104(2003) DLT 635 Hon'ble Delhi High Court while discussing inheritance of Bhoomidhari right ruled:
" ...... When mutation was ordered against the provision of Delhi Land Reforms Act as well as Delhi Land Revenue Act , it is void ab initio ....if there is no Will, general order of succession from males is stipulated in section 50 of the Act as per which the first right is given to male lineal descendants and in case there are no Will lineal descendants then the next person in order of succession would be widow."
contd/.....
20
33.A close look at this act and judgments show that after death of previous sole bhoomidhar late Sh. Bhim Singh, the suit land could not have been mutated in the name of his widow Smt. Ram Dei and daughters Smt. Chandro (mother of defendant no.1 Sh. Jai Pal) and Smt. Tulsan on 12.1.1968. This mutation entry was ultra vires to section 50 of DLR Act and as such was non est and void ab initio. The second mutation entry upon death of Smt. Chandro in favour of defendant no.3 Sh. Jai Pal dated 20.6.1992 was also consequentially a non est. Both the mutation entries were rightly declared null and void by Ld. Civil Judge in the judgment and decree Ex. DW1/1 dated 21.3.2005. Since admittedly no appeal to this judgment has been filed by any of the defendants or for that mater by the plaintiff co. as well , it has become absolute and binding.
34.An endeavour was made by LD. Counsel for plaintiff to term this judgment of Ld. Civil Judge as null and void by arguing that it was obtained by defendants of this suit by filing a collusive petition and by playing fraud upon the court. He also objected to the decree on a plea that plaintiff should have been impleaded as a party and that in the absence of impleadment of plaintiff the contd/.....
21decree is bad for non joinder of necessary party. Although legally and procedurally plaintiff herein could have moved an Order 1 rule 10 CPC application for its impleadment if they so desired. Even after passing of the judgment and decree, plaintiff company could have legally challenged it by filing a separate suit seeking its declaration as null and void. Admittedly neither of the two steps were taken by the plaintiff. As far as plea of collusion between defendant no.1 and other defendant is concerned, I see no strength in the same since defendant no.1 is himself at a loss after loosing a mutation th of 1/6 share in the suit land in the matter and there is no question of his collusion. Even otherwise the decree passed by Ld. Civil Judge is primarily nothing but reiteration of a codified statutory provision of Section 50 of DLR Act . The decree simply corrects an aberration and a wrong in the revenue records which initially crept in on 12.1.1968 and was further carried forward on 20.6.1992.
35.Further more , I also do not find any strength in the plea that plaintiff company should have been impleaded as a party in that case. Simply by entering into the agreement of sale Ex. PW1/3 , plaintiff company does not acquire any contd/.....
22right, title or interest in the estate of the suit property. An agreement for sale simply gives rise to right in personem to seek a decree of specific performance.
categorically provides ,
36.Section 54 of Transfer of Property Act 1882 " ......... Contract for sale
- A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not , of itself, create any interest in or charge on such property.
37.In case titled JEEWAN DASS RAWAL vs. NARAIN DASS AIR 1981 DELHI 291 Hon'ble Delhi High Court rules that:
" A contract for sale is a right created in personam and not in estate. No privity in estate can be deducted there form which case bind the estates, as is the position in cases of mortgage, charge or lease. Of course,such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement of sale. Till therefore, a decree for specific performance is obtained , the vendor of a purchaser from him is entitled to full enjoyment of the property. In fact, even if a decree for specific performance of contract is obtained, and no saledeed is actually executed, still no interest is created "
38.In another case titled INDIRA FRUITS AND GENERAL MARKET vs. contd/.....
23B.K.GUPTA AIR 1995 ALLAHBAD 316 , it was held that :
" The Court below has rightly pointed out that the alleged agreement did not create any interest in the land in suit. Section 54 of the Transfer of Property Act specifically provides that a contract of sale does not, of itself, create any interest in or charge on immovable property which is subject matter of contract of sale ........ For what has been said above, the court is clearly of the opinion that in declining to accept the prayer of the applicant for impleadment and rejecting its application therefore by the impugned order, the court below did not commit any such illegality or irregularity in exercise of its jurisdiction which may warrant interference by this Cort in its revisional jurisdiction under Section 115 of the Code."
39.In another case titled MAHINDER NATH vs. BAIKUNTHI DEVI AIR 1976 ALLAHABAD 150 , FULL BENCH OF HON'BLE HIGH COURT ruled that:
"A person who has got only a contract for sale or has got a decree for the specific performance of the contract has got no interest in the land. He can only enforce the contract by compelling the other side to execute a sale deed failing which the Court might execute a sale deed for the defendant, but the rights and liabilities under the contract do not attach to the land. The question of ceasing of the interests would arise only when the plaintiff had an interest in the land but till the sale deed was executed , the plaintiff could not get any right in the land.
40.As such in the light of aforesaid judgments since the plaintiff company had contd/.....
24no right of impleadment, its non impleadment in the suit before Ld. Civil Judge is of no adverse legal consequence to the defendants no.2 to 6. Hence, as observed supra, once a mutation entry is accepted to be of no legal value as far as title of land is concerned, the agreement of sale between plaintiff and defendant no.1 Ex. PW1/3, of which specific performance is being sought, is rendered a void document. Hence this issue is decided against the plaintiff and in favour of defendant no.2 to 6. ISSUE NO.2
41.
2.Whether this suit of the plaintiff is a collusive litigation between plaintiff and defendant no.1 aimed at usurping immovable property belonging to defendant no.2 to 6 (OPD 2 to 6).
42.As far as this plea of defendant no.2 to 6 is concerned, once they have got decree of declaring mutation entry in favour of defendant no.1 declared null and void and have also got necessary corrections made in the revenue records , their apprehension and anxiety stands put to rest . Had there been any collusion between plaintiff and defendant no.1, defendant no.1 would not have been proceeded exparte. Rather plaintiff company was constrained to contd/.....
25file the suit only after defendant no.1 failed to execute sale deed of his th claimed 1/6 undivided share in the suit land. As such this issue is decided in favour of plaintiff and against defendant No.2 to 6. ISSUE NO.3 .
43.
3.Whether suit is hit by Section 23 of Indian Contract Act apart from Section 12,14,17 & 20 of the Specific Relief Act,1963. (OPD2)
44. As concluded supra, in the decision of issue no.1, that defendant no.1 had no title qua which he could have legally and validly entered into an agreement for sale of the suit property with the plaintiff company, by virtue of section 23 of the Indian Contract Act r/w section 70 of Specific Relief Act , the agreement Ex. PW1/3, can not be specifically enforced .
runs as under:
45.Section 17 of Specific Relief Act Contract to sell or let property by one who has no title, not specifically enforceable - (1) A contract to sell or let any immovable property can not be specifically enforced in favour of a vendor or lessor
(a) who, knowing not to have any title to the property, has contracted to sell or let the property.
(b) who, though he entered into the contract believing that he had a good title to the property, can not at the contd/.....
26time fixed by the parties or by the court for the completion of the sale or letting give the purchaser or lessee a title free from reasonable doubt.
(2)The provision of subsection (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.
46.This statutory provision creates a clear bar on specific performance of such like contracts. As such this issue is decided against the plaintiff and in favour of defendant.
ISSUE NO 4
47.
4.Whether plaintiff is entitled to decree of specific performances against the defendant no.1 in pursuance of th agreement for sale dated 29.4.1993 qua undivided 1/6 share out of agricultural land admeasuring 44 Bighas and 9 Biswas out of Khasras detailed in para 2 of the plaint of Village Kapashera, Delhi. (OPP)
48.In view of decision of above issues, I have no hesitation in concluding that plaintiff company is not entitled to specific performance agreement for sale as prayed. As such their prayer in this regard stands dismissed for foregoing reasons. Although in the plaint an alternate relief of damages of Rs.10,03,210/ has been sought but admittedly in the agreement for sale Ex.
contd/.....
27PW1/3, there was no such indemnity or penalty clause. Further more, in the evidence led by the plaintiff company, through PW1 Smt. Anjali Sehgal , its Executive Director, there is not even a whisper of seeking any damage whatsoever, what to talk of a damage of Rs.10,03,210/. Ld. Counsel for plaintiff could not explain as to why the relief qua claim of damage was not included in the evidence lead by the plaintiff company .
49.Also he could not explain the logic behind including a prayer qua damage of Rs.10,00,000/ in this suit which is more than 40 times the earnest money. LD. Counsel for defendant no.1 Ms. Dhingra has rightly pointed out that since the prayer of damage in the suit is solely aimed against her client, in the absence of any averment in the examination in chief, she too has not cross examined PW1 Smt.Anjali Sehgal on this issue. As such once, the agreement for sale admittedly does not contain any penalty clause and there is no averment in this regard in the entire evidence lead by the plaintiff, in my considered view plaintiff company is not entitled to any relief of damages as contd/.....
28well. As such this issue is decided against the plaintiff and in favour of defendants.
50.In view of the decisions on above issues, the suit of plaintiff company is dismissed. Parties are however, left to bear their own costs. Decree sheet be prepared accordingly and file be consigned to record room. ANNOUNCED AND DICTATED IN OPEN COURT ON 27.4.2010 (SURINDER S. RATHI) ADDL.DISTRICT JUDGE CENTRAL 07/DELHI contd/.....
29CS NO:955/08 RELIANCE INTERNATIONAL CORPORATION Vs. Sh. Jaipal Singh Pr: Ld. Counsel Sh. Deepak Dhingra advocate for plaintiff, Ld. Counsel Ms. Geeta Dhingra advocate for defendant No.1 Ld. Counsel Sh. B.S.Mann and Sh. R.S.Verma advocate for defendant no.2, Ld. Counsel Sh. Sunil Chauhan and Ms. Anita Ranjan advocate for defendant no.3 to 6.
FA heard from both the sides and entire case file perused carefully. Vide a separate judgment of the day suit of the plaintiff stands dismissed. Parties are however, left to bear their own costs. Decree sheet be prepared accordingly and file be consigned to record room.
(SURINDER S. RATHI) ADJ07/CENTRAL DELHI: 27.4.2010 contd/.....
30DECREE IN SUIT FOR SPECIFIC PERFORMANCE (Order XX Rule 7 of the Code of Civil Procedure) IN THE COURT OF SHRI SURINDER S. RATHI, ADJ/CENTRAL-7 DELHI.
02401C1265912008 CS NO:955/08 RELIANCE INTERNATIONAL CORPORATION (P) Ltd., a Company duly incorporated and registered under the Companies Act1956, having its office at B-4/4, Safdarjang Enclave, New Delhi through its authorised representative Smt. Anjali Sehgal. ...... Plaintiff Vs.
1. Sh. Jaipal Singh S/o late Smt. Chandra, R/o Village Badshahpur, Post Office : Badshahpur, Distt. Gurgaon ( Haryana)
2. Har Gian Singh S/o late Sh. Basti Ram R/o village Kapashera New Delhi
3. Parmal Singh S/o late Sh. Gahar Singh R/o Village Kapashera, New Delhi.
4. Uday Singh S/o late Sh. Gahar Singh R/o Village Kapashera New Delhi.
5. Chander Sain S/o late Sh. Gahar Singh R/o Village Kapashera, New Delhi.
6. Jai Prakash S/o late Sh. Gahar Singh R/o Village Kapashera, New Delhi. ....... Defendants contd/.....
31
SUIT FOR SPECIF PERFORMANCE
DATE OF INSTITUTION : 25.06.1993
DATE OF FINAL ARGUMENT : 27.04.2010
DATE OF FINAL JUDGMENT : 27.04.2010
This suit coming for final disposal before me in the presence of Ld. Counsel Sh. Deepak Dhingra advocate for plaintiff, Ld. Counsel Ms. Geeta Dhingra advocate for defendant No.1 Ld. Counsel Sh. B.S.Mann and Sh. R.S.Verma advocate for defendant no.2, Ld. Counsel Sh. Sunil Chauhan and Ms. Anita Ranjan advocate for defendant no.3 to 6. It is ordered the Suit of the plaintiff stands dismissed on merits. Parties are however, left to bear their own costs.
Costs of the suits
Plaintiff Defendant
Stamp for plaint NIL Stamp for power NIL
Stamp for power NIL Stamp for exhibits NIL
Stamp for exhibits NIL Stamp for petition NIL
Pleader's fee NIL Pleader's fee NIL
Subsistence for witness NIL Subsistence for witness NIL
Commissioner's fee NIL Commissioner's fee NIL
Service of process NIL Miscellaneous NIL
Miscellaneous NIL
Total NIL Total NIL
Given under my hand and the seal of this court, Dated 27/04/2010.
SEAL ADDL. DISTRICT JUDGE
CENTRAL-07,DELHI
contd/.....