Madhya Pradesh High Court
Smt. Sunder Bai And Ors. vs Nonit Ram on 4 July, 2002
Equivalent citations: AIR2003MP268, AIR 2003 MADHYA PRADESH 268, (2004) 1 CIVILCOURTC 173
JUDGMENT K.K. Lahoti, J.
1. Plaintiff aggrieved by judgment and decree passed by lower Appellate Court has filed present appeal, Trial Court decreed the suit of plaintiff but the lower Appellate Court while reversing the judgment and decree of the trial Court, directed the plaintiff to pay Rs. 4000/- towards the remaining consideration of sale.
2. This appeal was admitted on 15-1- 1990 on following substantial questions of law:
"(1) Whether the Court below was right in holding that under Section 53A of the Transfer of Property Act, the respondent-defendant would be entitled to protect his possession?
(2) Whether the omission of the defendant to lay Counter-claim, would negative the decree in favour of the defendant?
(3) Whether the finding of the Court below as to prior contract is based upon no material?
(4) Whether the claim of the plaintiff, under the facts and circumstances of the case, should have been decreed?"
3. In short, facts are that on 17-1-1981 present suit was filed on the ground that the plaintiff is the owner of Survey No. 3, area 8.51 acres at village Mandi Bomora, Tahsil Khurai, District Sagar, Defendant with the permission of plaintiff constructed a Kachcha Tapra on a piece of land measuring 20/10 ft. and assured that rent will be settled. Thereafter, some more land was encroached and ultimately defendant has encroached over 50 X 40' land. On 19-10-1975 defendant entered into an agreement to purchase the aforesaid land for a consideration of Rs. 6033/- and paid Rs. 714/- as earnest money and remaining Rs. 5319/-was to be paid on or before 13-5-1976 and sale-deed to be executed on the same day. It was further agreed between the parties that on failure to get executed the sale-deed after payment of remaining consideration, defendant will vacate the land and the advance given by the defendant will be forfeited in favour of plaintiff. A written contract was executed by the defendant in favour of plaintiff on which defendant put his signature. It is alleged that thereafter remaining amount was not paid and no sale-deed was got executed by the defendant. Plaintiff served a notice dated 5-6-76 which was replied by defendant on 16-6-76 alleging that the total price settled was Rs. 5000/- out of the which Rs. 1000/- was paid by way of advance, plaintiff has not get diverted the land. On this ground the defendant denied the agreement. Against plaintiff served a notice dated 13-9-1980 but the defendant neither replied the notice nor has handed over possession of the land. Thereafter suit was filed for possession and mesne profits from December, 1977 to November, 1980, at the rate of Rs. 50/- per month.
4. Defendant filed written statement in which he has contended that the Tapra was not constructed as stated by the plaintiff but there was an agreement to purchase the land 40 x 50' for a consideration of Rs. 5000/-and advance of Rs. 1000/- was paid. Plaintiff assured to the defendant that the land will be diverted and thereafter sale-deed will be executed. The agreement filed in the case is based on fraud. The signature of the defendant on the agreement has been obtained by playing fraud. There was no such agreement as alleged by the plaintiff. Defendant is illiterate and is able to make signature only. The agreement was not read over to him. Defendant was always ready and willing to get the sale-deed executed on payment of remaining consideration. Plaintiff has not complied with the conditions of the agreement and because of which sale-deed could not be executed. In additional plea, defendant has taken a plea that he has constructed the Tapra by investing Rs. 5000/-in which he has installed one saw mill operated by electricity and has further invested Rs. 2000/- in constructing the foundation and Rs. 1140/- in obtaining electricity connection. Defendant has invested total Rs. 8140/-. Plaintiff is entitled only for remaining consideration and is not entitled for possession. In any case, if plaintiff is found entitled to possession, defendant be compensated by way of payment of Rs. 8140/-.
5. Trial Court framed the issues and after recording evidence, decreed the suit of plaintiff for possession and it was directed that the plaintiff will refund Rs. 714/- which was received by plaintiff as earnest money. The plaintiff will also compensate the defendant the cost of the Tapra and will be entitled to take possession of land including the Tapra. In appeal by the defendant, suit of plaintiff was dismissed with a condition that defendant will pay remaining sale-consideration of Rs. 5000/- within one month to the plaintiff. Aggrieved by the aforesaid judgment, appellant has filed present appeal, which was admitted on aforesaid substantial questions of law. During the pendency of this appeal, plaintiff Dr. Chandra Kumar died whose legal representatives were brought on record.
6. Learned counsel for the plaintiff submits that agreement Ex. P.1 was admitted by the defendant in para 3 of his written statement. He has also admitted that no reply of the notice was given. Defendant has neither paid the remaining sale-consideration nor has taken any step for getting sale-deed executed. In the circumstances, the plaintiff is entitled for possession of the land under the agreement.
7. Learned counsel appearing for respondent submits that in fact there was another agreement, prior to agreement Ex. P.1, and that agreement was for a consideration of Rs. 5000/- and Rs. 1000/- was paid to the plaintiff as advance. This plea was found proved by the lower Appellate Court. As the respondent is in possession of the land under the agreement in part performance of the agreement, his possession is protected under Section 53A of the Transfer of Property Act, 1882. Defendant was always ready and willing to perform his part and still he is ready and willing to perform his part. This plea was taken in the written statement. In the circumstances, learned lower Appellate Court was right in directing payment of remaining consideration to the plaintiff.
8. From the perusal of the evidence and particularly, statement of PW. 2 Halkai, this fact reveals that there was a previous agreement between the parties. This fact is specifically admitted by PW. 2 Halkai who was witness of both the agreements. In previous agreement conditions were different but from perusal of statement of PW. 2 Halkai it also reveals that the parties entered into another agreement which is Ex. P.1. In the circumstances, though there was a previous agreement but subsequent agreement Ex. P. 1 came into existence superseding the previous agreement. In view of this, agreement Ex. P.1 was the agreement in force between the parties. Defendant has taken a plea in written statement that agreement Ex. P.1 was not executed by playing fraud or in ignorance his signature obtained. Burden to prove this was on the defendant but defendant has failed to prove this plea taken in the Written statement. He has denied agreement Ex. P.1 in his statement.
9. Plea of part performance is available under Section 53A of the Transfer of Property Act. To take the benefit of this plea, party raising this plea has to show certain conditions. If such conditions are not complied with by the party claiming benefit under this section, he is not entitled to such benefit. In the second agreement, sale-consideration agreed between the parties was Rs. 6033/- out of which Rs. 714/- were paid as advance and remaining Rs. 5319/- were to be paid and sale-deed was to be got executed by 13-5-76. This amount was not paid by the defendant and he has taken a plea that the plaintiff was under obligation to get the land diverted but he did not do so, so that, the defendant was not under obligation to get the sale-deed executed on payment of remaining consideration. From the perusal of Ex. P.1, it appears that there was no such condition in the agreement permitting the defendant to take this defence. Plaintiff has served a notice for the first time in the year 1976 which was replied by the defendant on 16-6-76, which is on record as Ex. P. 5. Since then defendant has done nothing. Neither he got executed sale-deed after payment of remaining consideration nor filed any suit for specific performance of contract, but has come forward to take this plea after lapse of a several years. By another notice dated 13-9-1980 (Ex. P. 2) the plaintiff again called upon the defendant to perform his part of the contract or to vacate the land. But this notice was also not replied. Thereafter, the present suit was filed. In the circumstances, merely taking a plea of part performance is not sufficient. Defendant has not been able to prove that he was honestly ready and willing to perform his part under the contract. He has not paid the remaining amount nor did any act showing that such amount was offered to the plaintiff. There is no explanation on part of defendant why he kept mum from 1976 to 13-9-1980. In the circumstances, the defendant was unable to prove that he was pressing his plea for part performance honestly and was ready and willing to perform his part of the contract. Party keeping mum for more than 3 years cannot be heard to say that he was willing honestly to perform his part of the contract.
10. Learned lower Appellate Court while reversing the judgment of the trial Court has directed payment of Rs. 4000/- to the plaintiff. Under which provision such a decree can be granted? Learned counsel appearing for the respondent is also unable to satisfy the Court. Even from the perusal of Specific Relief Act, defendant cannot be granted such relief unless and until defendant files a suit claiming such relief or makes a counter claim in the case. Without being any claim asking the relief under the Specific Relief Act, the lower Appellate Court erred in granting the relief to the defendant. Defendant in spite of lapse of a period of 27 years (uptill today) has not performed his part of the contract. He has not even offered the remaining amount of the agreement. Merely after the decree passed by the lower Appellate Court, he deposited the amount of Rs. 4000/- is not sufficient to dismiss the suit of appellant. In the circumstances, the learned lower Appellate Court erred in reversing the judgment of the trial Court. Consequently, the judgment and decree of the lower Appellate Court are set aside and suit of the appellant deserves to be decreed. But looking to the fact that defendant has made construction on the land and installed saw mill on the land, it is in the interest of justice, that plaintiff adequately compensates the defendant for taking back the land.
11. In the aforesaid circumstances, while setting aside the judgment and decree of the lower Appellate Court, it is directed that plaintiff will pay to the defendant by way of compensation an amount of Rs. 5000 + 5000 total Rs. 10,000/- respectively as a compensation to the construction, and saw mill which the defendant has installed on the land. The defendant will handover the entire construction over the land and saw mill which is in existence. If the defendant demolishes the construction and removes saw mill, in that condition, he will not be entitled to any compensation. The executing Court would verify that there is any usable construction on the land and saw mill then only defendant will be entitled to the aforesaid compensation.
12. With the aforesaid modification, this appeal is allowed. The Judgment and decree passed by lower Appellate Court is set aside and that of trial Court is restored, with above modification. Appellant will be entitled for cost throughout from respondent.