Madhya Pradesh High Court
Akaram Khan & Ors. vs Ku. Firoz Khan & Anr. on 26 June, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
FA NO.513/1997
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
FIRST APPEAL No. 513 OF 1997
BETWEEN:-
AKRAM KHAN S/O AFZAL KHAN, R/O
ROYAL CHOWK DIWANCHI PURA,
CHHINDWARA, DISTRICT
CHHINDWARA (MADHYA PRADESH)
2. SMT. JHADIA W/O AKRAM KHAN, R/O
ROYAL CHOWK DIWANCHI PURA,
CHHINDWARA, DISTRICT
CHHINDWARA (MADHYA PRADESH)
3. ASLAM KHAN S/O AFZAL KHAN, R/O
ROYAL CHOWK DIWANCHI PURA,
CHHINDWARA, DISTRICT
CHHINDWARA (MADHYA PRADESH)
4. ANWAR KHAN S/O AFZAL KHAN, R/O
ROYAL CHOWK DIWANCHI PURA,
CHHINDWARA, DISTRICT
CHHINDWARA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI G.S. BAGHEL-ADVOCATE)
AND
1
FA NO.513/1997
1. KU. FIROZ KHAN D/O MATEEN ALI, R/O
CHOTII BAZAR, CHHINDWARA
(MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THR. THE
COLLECTOR DISTT-CHHINDWARA
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAKESH PANDEY-ADVOCATE WITH MS. SANA KHAN-
ADVOCATE FOR RESPONDENT 1)
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Reserved on : 14.06.2023
Pronounced on : 26.06.2023
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This petition having been heard and reserved for judgment,
coming on for pronouncement this day, the Court passed the following:
JUDGMENT
This first appeal has been preferred by the defendants 1-4 challenging the judgment and decree dated 13.08.1997 passed by II Additional Judge to the Court of District Judge, Chhindwara in civil suit No.9-A/1994 whereby respondent 1/plaintiff's suit for specific performance of an agreement of sale dated 03.09.1993 and for permanent injunction filed in respect of agriculture land bearing khasra no.3056/4 area 0.576 hectare, well and house situated in Patwari Halka No.42, Chhindwara has been decreed.
2 FA NO.513/1997
2. In short the facts are that the respondent 1/plaintiff instituted the suit with the allegations that the defendants 1-4 being in need of money came to the plaintiff in the second week of August, 1993 and proposed to sell the land in question and after 2-3 days the defendant 3 also sent a letter seeking financial help and thereafter again defendants 1-4 came to the plaintiff's house and agreed to sell the land for consideration of Rs.2,55,000/- after receiving an amount of Rs.20,000/- in advance and agreed to execute the sale deed in the month of April, 1994 upon receiving entire consideration. It is alleged that defendant 1 handed over possession of the land to the plaintiff in presence of defendants 3 & 4 along with the standing crops. It is further alleged that in the last week of August, 1993 the defendants 1-4 again came to the plaintiff and requested for further advance amount and agreed to execute agreement on 2-3 September, 1993, which was executed on 03.09.1993 after payment of an amount of Rs.65,000/-. Accordingly, total amount of Rs.85,000/- was paid to defendant 1 and the agreement was executed in presence of defendants 3 & 4 as well as in presence of the witnesses. Again after Diwali the defendants 1-4 came to the house of plaintiff and demanded an amount of Rs.40,000/- but upon showing inability, the defendants 1-4 threatened to make interference in possession of the land 3 FA NO.513/1997 and thereafter got published a notice in the newspaper showing the defendant 1 to have sold the land to defendant 4, which is not binding on the plaintiff. It is alleged that the plaintiff issued notice on 31.12.1993 through advocate showing intention to make payment of balance amount of Rs.1,70,000/- and to get executed the sale deed but the defendants refused to receive the notice. It is alleged that the plaintiff has always been ready and willing to get executed the sale deed after payment of the balance amount of consideration. With the aforesaid allegations the plaintiff prayed for decree of specific performance in respect of the land including house and well situated thereon and also prayed for decree of permanent injunction, restraining the defendants from making interference in possession of the plaintiff. In alternative the plaintiff also claimed relief of refund of advance consideration of Rs.85,000/- along with interest @ 18% p.a. by stating in relief clause 3 of plaint to the effect that fodYi esa izfroknh Ø-1 ls 4 ds fo:) 85]000@& ¼fiP;klh gtkj½ :i;k dh vkKfIr vkSj ml ij okn lafLFkr fnukad ls 18 izfr'kr okf"kZd C;kt dh vkKfIr iznku djsaA
3. The defendants 1&3 and 2&4 appeared and filed two sets of written statement denying the plaint allegations and contended that in fact no agreement of sale was executed and no advance amount of Rs. 85,000/- was 4 FA NO.513/1997 paid and no actual possession over land was handed over. In additional pleas it is stated that the defendant 1 being in need of the money for the marriage of his daughter, got an amount of Rs.40,000/- in two instalments of Rs.20,000/- and the plaintiff fraudulently got executed the agreement in question for security of the said amount showing it to be Rs.85,000/- and the plaintiff herself was not in a position to purchase the land being govt. teacher, although she assured that upon payment of said amount, the agreement shall be torn off. In paragraph 4 of additional pleas it is stated that the agreement which recites delivery of possession, is not admissible in evidence. The suit has been filed in respect of house and well also, but there is no mention of it, in the agreement. Reiterating the aforesaid contentions, the defendants 2&4 contended that they have unnecessarily been made parties to the suit and have no nexus with the transaction of sale. Taking several other objections/pleas, the suit was prayed to be dismissed.
4. On the basis of pleadings of the parties learned trial court framed issues and recorded evidence of the parties. In support of her case the plaintiff examined Bhagwat Prasad (PW1), Prakash Chand Jain (PW2), Plaintiff-Firoj Khan (PW3) and Sheikh Fazal (PW4) and produced documentary evidence (Ex.P/1 to P/22). The defendants in support of their case examined Akram 5 FA NO.513/1997 Khan (DW1), Anwar (DW2) and Kewal Ram Verma (DW3) and produced documentary evidence (Ex.D/1 & D/2).
5. On the basis of pleadings and evidence available on record learned trial court decreed the suit for specific performance and permanent injunction in respect of the land, house and well vide judgment and decree dated 13.08.1997, against which instant first appeal has been filed by defendants.
6. Learned counsel for the appellants submits that the agreement dated 03.09.1993 (Ex.P/1) is infact a document executed for security of the loan amount and no transaction of sale had taken place amongst the parties. He further submits that the agreement having recital of delivery of possession is not admissible in evidence which was not even signed by defendants 2-4. He further submits that the plaint shows that an amount of Rs.20,000/- was paid prior to the agreement and an amount of Rs.65,000/- was paid on the date of agreement but the same is not mentioned in the agreement. Accordingly he submits that infact the alleged amount of Rs.85,000/- mentioned in the agreement was not paid. He submits that the agreement is a suspicious document because it was got executed at the plaintiff's house showing her to be a Pardanasheen lady whereas she is a Teacher in a school and did not say anything in her statement. He further submits that a constructed house and 6 FA NO.513/1997 well is also situated on the land, but the same has not been mentioned in the agreement and despite this fact the plaintiff has prayed for decree in respect of the house and well, which has also been granted by learned trial Court wrongly. He further submits that learned court below has not properly appreciated the evidence adduced by the defendants in respect of their contention of loan transaction. By placing reliance on the decisions in the case of Ramesh Chand (dead) through LRs. vs. Asruddin (dead) through LRs. and another 2016(3) MPLJ 77 (SC) (Paragraph 8 & 9); Kanshi Ram vs. Om Prakash Jawal and Ors. (1996) 4 SCC 593; S. Rangaraju Naidu vs. S. Thiruvarakkarasu AIR 1995 SC 1769; and Gyan Singh Yadav vs. Smt. Kunwardevi and Ors. 1999 RN 118, he submits that in the aforesaid circumstances discretion of granting decree of specific performance should not have been exercised in favour of the plaintiff and in any case the decree of refund of alleged consideration amount of Rs.85,000/- could have been granted.
7. Learned counsel appearing for the respondent 1/plaintiff supports the impugned judgment and decree and submits that the agreement in question being an admitted document, learned court below has not committed any illegality in passing decree of specific performance. He submits that no 7 FA NO.513/1997 objection in respect of admissibility of agreement was raised before the court below at the time of marking exhibit, therefore, at the appellate stage such objection of admissibility cannot be taken. He also submits that claiming alternative relief of refund of advance consideration does not destroy the case of plaintiff for specific performance. He further submits that the defendants 2-3 being family members were made parties to the suit and because the agreement was executed by defendant 1, therefore, learned court below has rightly granted decree against the defendant 1 only. With the aforesaid submissions he prays for dismissal of the first appeal. In support of his submissions, learned Counsel placed reliance on the decisions in the case of Nathulal Vs. Phoolchand AIR 1970 SC 546 and Madan Mohan Vs. Gauri Shankar and anr. AIR 1988 MP 152.
8. Heard learned counsel for the parties and perused the record.
9. Following points for determination are arising in this first appeal :
(i) Whether in the existing facts and circumstances of the case learned trial court was justified in exercising discretion of granting decree of specific performance in favour of the plaintiff ?8 FA NO.513/1997
(ii) Whether on the facts and in the circumstances of the case the plaintiff is entitled for decree of refund of advance consideration amount instead of decree of specific performance ?
(iii) Whether the finding of possession being based on no evidence, the decree of permanent injunction is sustainable ?
10. It is apparent from the agreement dated 03.09.1993 (Ex. P/1) that it was executed by defendant 1-Akram Khan only, which recites delivery of possession of the land (Khet) and does not say anything about house and well situated on the land. It is also clear that the defendant 1 Akram Khan has not signed the agreement but he has affixed his thumb impression. The stamp does not bear any endorsement about the purpose of its purchase, which is done necessarily by the stamp vendor. The agreement states to have paid entire amount of consideration of Rs.85,000/- in instalments but it does not say that any amount was paid on the date of agreement. For proving the agreement and its contents the plaintiff has examined one of the witnesses to the agreement namely Bhagwat Prasad Shrivastava (PW1), who in paragraph 2 of his statement says that at the time of execution of agreement an amount of Rs.65,000/- was paid by the plaintiff to the defendant 1-Akram and prior to which an amount of Rs.20,000/- was paid and possession was also handed 9 FA NO.513/1997 over upon payment of Rs.20,000/-, whereas agreement shows that possession was handed over upon execution of agreement. If the entire statement of Bhagwat Prasad is considered then it appears that he is stating contrary to the contents of the agreement.
11. Scribe of the agreement Shri Prakash Chand Jain, Advocate (PW 2) has also been examined, who in paragraph 2 states that upon asking him to prepare the agreement, he told to call the party in his office, but upon intimation that Ku. Firoz Khan is Pardanasheen, he went to her house along with typewriter. Just reverse to the aforesaid, the plaintiff-Firoz Khan claims herself to be a Teacher and does not say anything about her status of Pardanasheeni. In her testimony, Firoz Khan (PW-3) states that after execution of agreement, an amount of Rs.65,000/- was given by her in presence of all the four defendants and on the same date possession of the field was handed over to her. However, in paragraph 10 she states that eSa ;g pkgrh gwa fd izfroknhx.k eq>ls cdk;k iSlk izkIr dj eq>s tehu dk foØ;i= fy[kdj ns ns vkSj vxj fdlh dkj.ko'k ;g vuqrks"k eq>s ugha fn;k tkrk rks eq>s 85]000@& :i;s okil fnyk;k tkos] bl jkf'k ij 18 % okf"kZd C;kt nj ls C;kt fnyk;k tkos] bl tehu dk vkt Hkh dCtk esjs ikl gSA tehu ij esjk dCtk gS] vfHk;qDrx.k gaxkek djus okys O;fDr gSa] vr% eq>s dCts ds laca/k esa Hkh fu.kZ; fn;k 10 FA NO.513/1997 tkosA In last two lines of paragraph 12 of her statement, she also states that the land in question is in the name of four persons, namely Anwar, Akhtar, Akram and her mother, which she has seen in the revenue record.
12. The defendant Akram Khan in paragraph 1 of his statement clearly states that he was in need of money for marriage of her daughter Nazma, hence he borrowed money from the plaintiff. The same thing has been reiterated by other witnesses, which has not been appreciated by learned trial court placing entire burden of proof on the shoulders of defendant no.1, who undisputedly an illiterate person and has affixed thumb impression. The learned trial Court in its judgment, time and again has observed that after admitting his signature by the defendant 1, entire burden is on him to prove that the agreement was executed for security of loan and the defendant 1 has not clarified as to how much amount of loan was taken by him, whereas while deciding issue no.1 framed in this regard, the learned trial Court itself in paragraph 25(1) of the impugned judgement held that it is not proved that the defendant 1 had taken Rs.40,000/- as a loan. Further, the agreement's wording in respect of payment of advance consideration, depicts that the amount of Rs.85,000/- towards consideration was paid in instalments, then it was bounden duty of the plaintiff to prove specifically the payment of such 11 FA NO.513/1997 instalments, but there is no evidence on record in this regard. In my considered opinion, payment of consideration in instalments, itself depicts that there was some other money transaction between the parties, and upon payment of another instalment of Rs.20,000/-, the agreement in question in the shape of sale agreement was got executed by the plaintiff for security of such money/loan transaction.
13. After consideration of the testimony of the defendants' witnesses coupled with the several major contradictions in the evidence of the plaintiff and her witnesses, it is clear that infact the defendant 1, being in need of the money for marriage of his daughter-Nazma, asked for the loan from the plaintiff, which was given by the plaintiff and in security thereof, agreement of sale was got executed by the plaintiff. As has been stated by plaintiff that there is some relation of sister and brother in between plaintiff and defendant 1, therefore, it is very much surprising that only upon payment of Rs.20,000/-, the defendant 1 in spite of handing over original bhu-adhikar and rin-pustika, had also handed over possession of the entire land along with standing crops, which itself creates suspicion on the case of plaintiff and is not acceptable.
12 FA NO.513/1997
14. So far as question of delivery of physical possession of the disputed land by the defendant 1 to the plaintiff, is concerned, learned trial Court has framed issue no.4(a) in that regard. Apparently, from paragraph 9 to 24, learned trial Court has discussed the pleadings and evidence of the parties in respect of the issue no. 1 to 3 but in the entire judgment, has nowhere considered the issue no. 4(a) and in conclusive paragraph no. 25(8), held that the plaintiff received possession of the land with standing crops. It appears that the learned trial Court has given much weightage to the recital of delivery of possession made in the agreement, however in last 7 lines of paragraph 13 of the impugned judgment, learned Court has found that the statement of plaintiff has stood rebutted from the evidence of Patwari- Kewal Prasad (Kewalram). After appreciation of testimony of the plaintiff and her witnesses as well as the testimony of the defendant 1 and his witnesses, there is no cogent evidence available on record to prove that the plaintiff was given possession of the land under the agreement of sale. At the same time, in the relevant year, the defendant 1's name is recorded in the khasra (Ex.D/1) and no document of showing possession of the plaintiff, is on record. As such, in my considered opinion learned trial Court erred in holding the plaintiff to be in possession on the basis of recital of delivery of possession in the disputed 13 FA NO.513/1997 agreement of sale, which states to have been handed over possession on the date of agreement but the witness to the agreement says that possession was already given at the time of giving advance of Rs. 20,000/- i.e. prior to agreement. As such the finding of possession in the shape of conclusion, recorded by learned trial Court is not sustainable and is hereby set aside, by holding that the plaintiff is not in possession of the land but the defendant 1 himself is in physical and cultivating possession.
15. Although in view of decision of a coordinate Bench of this Court in the case of Gyan Singh Yadav vs. Smt. Kunwardevi and Ors. 1999 RN 118, the agreement in question is not admissible in evidence but after marking of exhibit, the objection of admissibility on the ground of insufficiency of stamp duty, raised by learned Counsel for the appellants, is not being considered for the purpose of dismissing the suit, in which the following law has been laid down :-
"17. The provisions contained in Article 23 of Schedule-I A of the In- dian Stamp Act, as applicable to the State of Madhya Pradesh was amended by the M.P. Amendment Act No.22 of 1990 with effect from 15.10.1990. The explanation added clarified that for the purpose of Art- icle 23, where in the case of agreement to sell immovable property, the possession of any immovable property is transferred to the purchaser be- fore execution or after execution of such agreement without executing the conveyance in respect thereof then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable ac- cordingly. It was further provided that, the provisions of section 47-A 14 FA NO.513/1997 shall apply mutatis mutandis to such agreement which is deemed to be a conveyance as aforesaid, as they apply to a conveyance under that sec- tion.
18. In the aforesaid view of the matter, taking into consideration the re- cital as contained in the agreement in question which is sought to be re- lied upon, it was clearly deficiently stamped and was not admissible in evidence. The recital contained in the aforesaid agreement of sale in re- gard to the delivery of possession to the defendant No.4 as provided un- der clause 2 thereof, however, clearly indicated that the possession which had been delivered to the defendant No.4 was to enable him to carry out the development work reserving the right to execute the sale deed or any other agreement or to effect a transfer of the interest by the plaintiffs. The possession of the defendant No.4 was obviously, therefore, for and on be- half of the plaintiffs in order to carry out the development work which could facilitate the transfer of the plots which were to be carved out."
16. The Supreme Court in the case of Kanshi Ram vs. Om Prakash Jawal and Ors. (1996) 4 SCC 593 has held as under :-
"5. Having regards to the facts of this case and the arguments addressed by the learned counsel, the question that arises for consideration is :
whether it would be just, fair and equitable to grant the decree for specific performance ? It is true that the rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to de- cree the suit for specific performance. But it is equally settled law that granting decree for specific performance of a contract of immovable property is not automatic. It is one of discretion to be exercised on sound principles. When the Court gets into equity jurisdiction, it would be guided by justice, equity good conscience and fairness to both the parties. Considered from this perspective, in view of the fact that the respondent himself had claimed alternative relief for damages, we think that the Courts would have been well justified in granting alternative decree for damages, instead of ordering specific performance which would be un- realistic and unfair. Under these circumstances, we hold that the decree for specific performance is inequitable and unjust to the appellant."
17. The Supreme Court in the case of S. Rangaraju Naidu vs. S. Thiruvarakkarasu AIR 1995 SC 1769 has also held as under :- 15 FA NO.513/1997
"3. Rightly, the respondent had claimed in his suit alternative relief for the recovery of Rs. 21,000/- with interest thereon @ 12% per annum. Rupees 21,000/- is inclusive of interest accrued on Rs. 15,500/- @ 12% per annum. Therefore, in view of the facts of this case, we think that justice would be met by granting the alternative relief sought for in the suit, namely, the decree for refund of the money due to him with simple interest @ 12% per annum, as claimed by him. The decree of the Courts below is accordingly modified and there shall be a money decree for Rs. 21,000/- with interest @ 12% from the date of the suit till the date of recovery. The decree of the Courts below is accordingly modified."
18. In view of the aforesaid discussion, even if the agreement in question has been found proved by learned trial Court, but upon such finding the Court is not bound to grant specific performance and it depends on facts and circumstances in each case. As such in my considered opinion the plaintiff is not entitled for decree of specific performance of sale or for permanent injunction, but as she has prayed in the plaint as well as in paragraph 10 of her statement, she is entitled for refund of the consideration amount of Rs.85,000/- as mentioned in the agreement along with simple interest @ 6% p.a. from the date of suit till the date of recovery. It is made clear that if the plaintiff has taken possession of the land after the decree passed by learned trial Court, then the plaintiff shall be entitled for amount of Rs.85,000/- only without any interest and in turn the defendant 1 shall be entitled for restoration of possession over the land.
16 FA NO.513/1997
19. Resultantly, the first appeal succeeds and is allowed and by setting aside/modifying the judgment and decree passed by learned trial court, the suit stands decreed partly only in respect of an amount of Rs.85,000/- as stated above in paragraph 18. Registry is directed to draw decree accordingly.
20. With the aforesaid observations this first appeal is allowed and disposed off. Parties to bear their own costs.
21. Interim application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL) JUDGE ss Digitally signed by SWETA SAHU Date: 2023.06.28 12:53:14 +05'30' 17