Punjab-Haryana High Court
Prem Nath vs Sukhmander Singh on 2 January, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.2316 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2316 of 2011 (O&M)
Date of Decision : 02.01.2012
Prem Nath
....Appellant
Versus
Sukhmander Singh
.....Respondent
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr.J.R.Mittal, Senior Advocate alongwith
Mr.Kashmir Singh, Advocate for the appellant.
***
G.S.Sandhawalia, J.(Oral)
1. The present appeal has been filed by the plaintiff aggrieved against the judgment and decree of the lower Appellate Court whereby, the appeal of the defendant has been partly allowed and the plaintiff has been granted only the alternative relief for recovery of Rs.1,50,000/- alongwith interest at the rate of 6% interest per annum from the date of execution of the agreement i.e. 04.06.2002 to sell till its realization.
2. The facts in brief are that the suit for specific performance and possession for agreement dated 04.06.2002 (Ex.P-1) was filed alleging that the plaintiff had paid a sum of RS.1,50,000/- as earnest money and it had been settled that the consideration would be at the rate of Rs.1,35,000/- per killa for 11 kanals of land. The last date of the agreement to be executed was on 03.06.2003 and the said agreement was witnessed by Mahavir Parsad and Jarnail Singh and the deed writer Charan Dass Mittal. It is alleged in the plaint that the plaintiff approached the defendant on 03.06.2003 and informed that he should reach in the office of Sub RSA No.2316 of 2011 (O&M) 2 Registrar, Doda for the performance of his part of the contract but the defendant did not come present. Since on 04.06.2003 there was holiday and on 05.06.2003 plaintiff again went to the office of Sub Registrar but the defendant did not turn up. It is alleged that on the same evening, plaintiff went to the house of the defendant and apprised him what had happened and reprimanded him. The defendant felt sorry for that and requested that he will perform his part of the said agreement shortly. It is also averred in the plaint that the defendant was asked to come present on 15.04.2003. Accordingly, the present suit has been filed for specific performance.
3. The defendant-respondent has filed written statement by taking preliminary objections that the suit land was the Joint Hindu Family property of the defendant-respondent and his family and it had been purchased with the funds provided by the father of the defendant as he had sold his ancestral land at Village Sangha, Tehsil Mansa. It is further pleaded that the land having been acquired from the ancestral and Joint Hindu Family Nucleus, land cannot be alienated by the defendant and the plaintiff had no right to file the suit. It was specifically alleged that the agreement was forged and fabricated document since the plaintiff and his brother had made certain illegal purchases from the defendant and his brother vide separate sale deeds, and at that time, the plaintiff had obtained his signatures on various blank papers on the pretext that these might be required for purpose of mutation and turn of waters etc.
4. From the pleadings of the parties, the following issues were framed by the trial court on 27.01.2005:
1. Whether the plaintiff had always been ready and willing to perform his part of contract. OPP.
2. Whether the plaintiff is entitled to possession by way of specific performance of agreement to sale deed dated 4.6.2002? RSA No.2316 of 2011 (O&M) 3
OPD.
3. Whether in the alternative the plaintiff is entitled to recovery of Rs.1,85,625/- as prayed for? OPP.
4. Whether the suit land was joint Hindu Family Property of the defendant and his family, if so its effect? OPP.
5. Whether the suit is not maintainable in the present form? OPD.
6. Relief.
5. The trial court, on the basis of the statements of PW-2 Mahavir Parsad and PW-3 Jarnail Singh, the attesting witnesses of the agreement and PW-4 Charan Dass Mittal deed writer, came to the conclusion that the case of the plaintiff was duly proved beyond any doubt and there is sufficient evidence, oral and documentary, on the file to prove that the agreement of the suit land was duly executed by the defendant in favour of the plaintiff and the consideration has passed . It was held that the plaintiff had remained and is still ready and willing to perform his part of the contract and it was the defendant who failed to perform his part of the contract and the entire evidence of the defendant was only his bald statement accordingly, the suit for specific performance was decreed on 10.11.2009.
6. In appeal filed by the defendant, the Additional District Judge vide his detailed judgment, came to the conclusion that the plaintiff in cross-examination has admitted that the family of the defendant had sold property to him and his family members. The plaintiff had also obtained their signatures on various papers which had not been used by the plaintiff till today. It is also on record that the defendant had been selling the family crops at the commission agency of the plaintiff and his brother for the last 20 years but after they had sold the land to the plaintiff, a dispute had arisen and relations became strained and litigation started. The lower appellate court also noticed the fact that in the agreement, possession was RSA No.2316 of 2011 (O&M) 4 alleged to have been delivered to the plaintiff but in the suit filed, they have claimed possession by alleging that it was not delivered to the plaintiff at the time of execution of the agreement and that a huge amount of Rs.1,50,000/- had been given as earnest money and the remaining amount was only Rs.35,625/-. The fact that the agreement has been written on a single page and there is cramping up of the lines at the bottom was also noticed by the lower appellate court and which came to the conclusion that it was blank papers which were later on filled up by the plaintiff-appellant in connivance with the marginal witnesses. The statement of PW-2 Mahavir Prashad has also been taken into consideration as he admitted that he was not aware whether any specific date was written or not and same is the position of PW3 Jarnail Singh, the other witness, who did not even know whether the affidavit submitted in examination-in-chief was typed in English or Punjabi. Keeping in view this background, the lower appellate court has reversed the findings of the trial court and held that the agreement between the parties was a result of fraud. The appellate court has also noticed that the alleged legal notice dated 15.04.2003 was not proved as no advocate or clerk was examined and that an unregistered agreement would not give right to plaintiff to seek specific performance once there was a stipulation in the agreement itself that possession had been delivered in view of the amended written statement according to Section 17(1A) and 49 of Registration Act, 1908 read with Section 53-A of the Transfer of Property Act, 1882. Accordingly, the benefit of Section 20 of Specific Relief Act, 1963 was given and the findings of the trial court have partly been reversed to the extent of setting aside the decree of specific performance but granting the alternative relief of recovery.
7. Mr.J.R.Mittal, Senior counsel for the appellant has placed reliance upon Birham Pal & Ors Vs. Niranjan Singh & Anr. 2011(2) Law Herald (P&H) 1136 to stress that the agreement did not require RSA No.2316 of 2011 (O&M) 5 compulsory registration since the possession held was sought for and had actually not been delivered and thus, contended that the findings of the lower Appellate Court are not justified. It has further been contended that the plaintiff was always ready and willing to perform his part of the agreement and even got his presence marked and there is contradictions in the findings of the lower Appellate Court.
8. The contention advanced by the Senior counsel for the appellant though attractive, are not acceptable in view of the fact that the agreement specifically mentions that the possession was delivered to the plaintiff but the agreement was not got registered. This Court in Gurbachan Singh Vs. Raghubir Singh 2010(2) PLR 511 while deciding a substantial question of law has held that in a suit for specific performance on the basis of unregistered agreement wherein plaintiff claims himself in possession in part performance from an agreement, cannot be decreed in view of Section 17(1A) and 49 of Indian Registration Act, 1908 read with Section 53-A of the Transfer of Property Act, 1882 (4 of 1882) and not an unregistered agreement does not give a right to seek a decree for specific performance and held as a necessary corollary that the plaintiff is not entitled to retain possession under garb of such agreement. The relevant paragraphs are reproduced as under:-
"15. Thus, the substantial question of law involved in this appeal is as to "whether a suit for specific performance can be decreed on the basis of unregistered agreement to sell in view of Section 17(1A) of the Indian Registration Act, 1908 (for short the 'Act of 1908') if the plaintiff claims himself to be in possession in part performance of the agreement.
18. The facts are not much in dispute. The plaintiff is in possession of the property in dispute in part performance of the agreement to sell which has been made the basis of the suit for RSA No.2316 of 2011 (O&M) 6 specific performance and is unregistered. Section 53-A of the Act of 1882 empowers the transferee to resist any attempt on the part of the transferor to disturb transferee's lawful possession under the contract of sale in case of a suit having been filed for seeking decree for specific performance on the basis of an agreement to sell in which the plaintiff is already in possession in part performance of the contract but according to Section 17(1A) of the Act of 1908, the agreement shall have to be registered if it is executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered, on or after such commencement, then the agreement shall have no effect for the purposes of the said Section. In the present case, since the agreement to sell is unregistered, therefore, in view of Section 49 of the Act of 1908 such an agreement would not be received as an evidence of any transaction affecting the property in question. Thus, the substantial question that has been raised by the learned counsel for the appellant is answered in his favour in affirmative and it is held that the agreement to sell being unregistered does not confer any right or title upon the plaintiff as the same cannot be received in evidence in view of Section 17(1A) and 49 of the Act of 1908."
9. Leaving this issue apart as to whether the agreement was required to be registered or not, there are other relevant reasons for dismissing of the appeal, which are enumerated below:-
10. In the present case, the defendant in his written statement had specifically alleged that the agreement is a false and fabricated document on the basis of blank papers given to the plaintiff who had earlier purchased land from the defendant. The blank papers were given for the RSA No.2316 of 2011 (O&M) 7 purpose of mutation and for turn of water etc. The defendant has also in view of the provisions of Order 6 Rule 4 of the Code of Civil Procedure, 1908 given details of the fraud and specifically alleged that the suit had been filed after fabricating the evidence only to pressurise the defendant as there was litigation regarding the earlier sale of land.
11. The Hon'ble Supreme Court in Shanti Budhiya Vesta Patel & Ors. Vs. Nirmala Jayprakash Tiwari & Ors. 2010 Civil Court Cases 579 laid down the said proposition that in case of fraud and undue coercion the party pleadings must set forth full particulars and then only can the case be decided on particulars as laid down. The relevant paragraphs of the said judgment are reproduced as under:
32." It is a plain and basic rule of pleadings that in order to make out a case of fraud or there must be a) an express allegation of coercion or fraud and b) all the material facts in support of such allegations must be laid out in full and with a high degree of precision. In other words, if coercion or fraud is alleged, it must be set out with full particulars. In Bishundeo Narain v. Seogeni Rai reported in 1951 SCR 548 it was held thus:
"27. We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded.
28. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations RSA No.2316 of 2011 (O&M) 8 are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See order 6 Rule 4 of the Civil Procedure Code."
33. In the present case, the appellants have, however, failed to furnish the full and precise particulars regard to the alleged fraud. Since the particulars in support of the allegation of fraud or coercion have not been properly pleaded as required by law, the same must fail. Rather the Affidavits-cum-Declarations executed by the appellants indicate that no coercion or fraud was exercised upon the appellants by respondent No.8 or 9 at any point of time and thus the consent decree cannot be said to be anything but valid."
12. This fact has also been brought into evidence by the counsel for the plaintiff in his cross-examination of the defendant which has been noticed by the lower Appellate Court in paragraph 22 which is reproduced as under:
22. "During his cross-examination, he has deposed that he is the owner in possession of the suit land. Ex.P1 does not bear his signatures. He also denied his signatures on the power of attorney and affidavit dated 29.11.2004. Further he was grilled with the version of the respondent/plaintiff and he denied in toto.
Further, he was suggested by the learned counsel for the respondent/plaintiff, in which, he admitted to be correct that previously his family has sold landed property to Prem Nath and his family members. The plaintiff now respondent had to leave canal wayer of previously sold land and he had obtained their signatures on various blank papers, but the same was not used RSA No.2316 of 2011 (O&M) 9 by the respondent/plaintiff till today. He further admitted that he had been selling his crop at the commission Agency of the respondent/plaintiff and his brother for the last 20 years. During that period, no litigation was started between them. When he sold the land to the respondent/plaintiff, he & his brother at that time had also been selling their agricultural produce on the shop of the respondent/plaintiff because the appellant and his brother intended to sell the land, which they purchased from them. Thereafter, their relations became strained and litigation started."
13. Another ground which goes against the plaintiff is that admittedly he is a commission agent who was having dealings with the defendant and a bare perusal of the agreement Ex.P-1 reveals that last 5-6 lines have been cramped up and adjusted in such a manner so that the contents of the agreement could be finished above the thumb impression of the defendant-respondent on one page. Admittedly, perusal of the judgment of the trial court also goes to shows that the trial court had not even noticed all these facts and has given a non-speaking judgment whereby the suit was decreed. The lower Appellate Court noticed the cross-examination of both the witnesses and came to a categorical findings that fraud had been proved by circumstantial evidence and that was the specific case of the defendant.
14. Admittedly the target date in issue was set as 03.06.2003 and Rs.1,50,000/- have been paid to the defendant and only a balance amount of Rs.35,625/- was remaining though there are allegations in the agreement that possession was also handed over but the suit is also for possession and in the plaint the plaintiff had made up a new case of non- delivery of possession at the time of execution of the agreement to sell by the appellant-defendant though his witnesses in support of the agreement have deposed to the contrary to the extent that possession was handed RSA No.2316 of 2011 (O&M) 10 over to the plaintiff. These facts go to show that the circumstances in which the agreement has been prepared have not been properly explained and therefore, the Lower Appellate Court has rightly declined the relief of specific performance. One such a huge amount had been paid and the balance was only less than 1/4th of the amount then such a long target date would not have been set up.
15. The readiness and willingness of the plaintiff is also missing in view of the fact that the present suit was filed on 08.05.2004 though it is pleaded that legal notice was sent to come present on 15.04.2004. Once defendant had not come forth on 03.06.2003, the plaintiff if he was ready and willing would have served legal notice immediately instead of waiting for so long. Thus once there is no readiness and willingness on the part of the plaintiff himself also the Lower Appellate Court rightly granted alternative relief of refund instead of the enforcement of the contract.
16. Accordingly, keeping in view the above facts and circumstances, no substantial question of law arises for consideration before this Court and the appeal is hereby dismissed.
(G.S. SANDHAWALIA) January 02, 2012. JUDGE Seema-II