Himachal Pradesh High Court
Tara Chand And Others vs Madan Lal on 17 April, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 155 of 2005
Reserved on: April 3, 2017
Decided on: April 17, 2017
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Tara Chand and others .........Appellants
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Versus
Madan Lal ....Respondent
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting?1 Yes.
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For the appellants Mr. Ajay Sharma, Advocate.
For the respondent:
Mr. Neeraj Gupta, Advocate.
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Sandeep Sharma, Judge:
Instant Regular Second Appeal under Section 100 of the Civil Procedure Code has been filed against judgment and decree dated 28.1.2005, passed by the learned Additional District Judge, Fast Track Court, Una in Civil Appeal No. 220/2K RBT No. 194/94/00, affirming judgment and decree dated 9.11.2000 passed in Civil Suit No. 224/1994 by Sub Judge(II), Una, whereby suit filed by respondent-plaintiff (hereafter, 'plaintiff') for possession by specific performance of agreement came to be decreed.
2. Briefly stated facts as emerge from record are that the plaintiff filed a suit for specific performance of agreements dated 31.5.1993 and 31.4.1994, seeking therein direction to the appellants-defendants (hereafter, 'defendants'), to execute 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 2and get the sale deed registered, of land measuring 0-00-73 hectares comprised in Khewat No. 169 min, Khatauni No. 246 min, bearing Khasra Nos. 881/2 (0-00-20), 882/2 (0-00-20) and 885/1 (0-00-33), as per Aks Tatima attached with the .
plaint, entered in Bandobast for the year 1987-88, situate in Village Jhalera, Tehsil and District Una, Himachal Pradesh on receipt of remaining sale consideration of Rs.14,000/-. Apart from aforesaid prayer, plaintiff, in the alternative, also prayed for recovery of Rs.44,000/-. Plaintiff averred in the plaint that on 31.5.1993, original defendant namely Atra entered into an agreement with him for the sale of land as detailed herein above (hereafter, 'suit land') for total consideration of Rs.44,000/-. As per the plaintiff, parties executed agreement to sell on 31.5.1993 and on the same day a sum of Rs.30,000/- was paid to the defendant by the plaintiff as part payment qua sale consideration. Plaintiff further claimed that steps for sale by way of Tatima and permission from Town and Country Planning, Una were to be taken by the defendant.
However, defendant expressed his inability to execute and get the sale deed registered on 30.4.1994, since he failed to get necessary permission from the Town and Country Planning Department, accordingly, on 30.4.1994, defendant extended date of performance of agreement till 31.8.1994 and the same was reduced into writing on the back of the agreement, whereby defendant agreed to execute ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 3 registered sale deed in favour of the plaintiff on or before 31.8.1994. Plaintiff further alleged that he was ready and willing to perform his part of agreement to execute sale deed for consideration of Rs.14,000/- and in this regard, he .
requested defendant time and again to perform his part of agreement and also got issued a legal notice dated 2.9.1994, requesting him to execute sale deed in his favour. But since defendant failed to do the needful, he was compelled to file the suit seeking direction to the defendant to get sale deed registered in terms of agreements dated 31.5.1993 and 30.4.1994.
3. Defendant, by way of written statement admitted execution of agreement dated 31.5.1993 as well as receipt of amount of Rs.30,000/- as part payment of sale consideration.
However, defendant stated that he had agreed to execute sale deed on 30.4.1994, after receipt of remaining amount of Rs.
14,000/-, however defendant alleged that though he was always ready and willing to execute the sale deed in terms of agreement but denied that he could not complete codal formalities as required under agreement and further denied that date of execution of sale deed was extended till 31.8.1994 at his instance, rather, he alleged that time was extended at the instance of plaintiff as he had no money to pay balance sale price. However, the written statement suggests that defendant admitted the writing as contained on the backside of ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 4 the agreement. Defendant further alleged that codal formality of obtaining permission from Department was to be completed by the plaintiff and since he failed to complete the codal formalities, sale deed could not be executed within stipulated .
time. Defendant also admitted factum of receipt of notice allegedly got issued by the plaintiff and claimed that he was ready and willing to get sale deed registered in his favour and as such both the parties approached court of Sub Registrar, Una, wherein plaintiff showed his reluctance for the execution of sale deed. Defendant further claimed that Sub Registrar refused to extend the date further. At the instance of plaintiff, Sub Registrar gave time till 17.9.1994 for making balance payment and to get the sale deed executed but on 17.9.1994, plaintiff never turned up in the office of Sub Registrar for the aforesaid purpose. In the aforesaid background, defendant prayed for dismissal of the suit of the plaintiff. Plaintiff, by way of replication, reasserted his claim as set up in the plaint and denied the contents of written statement, contrary to the plaint.
4. Learned trial Court, on the basis of pleadings of the parties, framed following issues:
"1. Whether the plaintiff is entitled for decree of specific performance , on the basis of alleged agreements? OPP
2. Whether the plaintiff is entitled for recovery of Rs.44,000/-, if issue No.1 is proved against the plaintiff? OPP
3. Relief."::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 5
5. Subsequently, learned trial Court, vide judgment and decree dated 9.11.2000, decreed the suit of the plaintiff for specific performance of contract with direction to the plaintiff to deposit balance amount of Rs.14,000/- within two months .
from the date of judgment, failing which suit of the plaintiff shall stand dismissed. Learned trial Court further held that in case plaintiff deposits aforesaid amount within two months, on or before 8.1.2000, defendant shall execute sale deed within two months i.e. on or before 8.3.2001, in terms of agreement Ext. P1, qua the suit land. Learned trial Court, further ordered that in case, defendant failed to execute sale deed on 8.3.2001, plaintiff shall be at liberty to approach the Court and Reader of the Court shall get sale deed registered and cost of registration and stamp papers, etc. shall be borne by the plaintiff.
6. Defendant, feeling aggrieved by the aforesaid judgment and decree, preferred an appeal under Section 96 CPC before the Additional District Judge, Fast Track Court, Una, which came to be registered as Civil Appeal No. 220/2K RBT No. 194/04/00. However, the fact remains that the aforesaid appeal was dismissed by the first appellate Court vide judgment and decree dated 28.1.2005. Hence, this Regular Second Appeal.
7. The Regular Second Appeal was admitted by this Court on 3.8.2004 on the following substantial question of law:
"Whether without there being permission from the Town & Country Planning Authorities, the decree ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 6 for specific performance of agreement could not have been passed by the two courts below?
8. Before adverting to the merits of the case, it may be noticed that during proceedings of the case, wherein learned .
counsel representing the defendant while inviting attention of this Court to the evidence be it ocular or documentary, adduced on record by the parties, more particularly, Ext. D1, DW-1/A, DW-1/B and DW-1/C, stated that the defendant was ready and willing to perform his part of agreement in terms of Ext. P1 and Ext. P3, whereby parties had agreed to get the sale deed executed in terms of Ext. P1, as such, findings contrary to the same returned by the learned Courts below are wrong, perverse and deserve to be set aside. Further, the perusal of Page-6 of the instant appeal, clearly suggests that defendants had specifically proposed, substantial question of law No.2, "whether courts below misread and misappreciated oral and documentary evidence of defendants more especially documents Ex.DW-1/A, DW-1/B and Ex. DW-1/C thereby vitiating the impugned judgments and decrees?" However, the fact remains that this Court admitted the present appeal on some other substantial question of law, reproduced herein above.
9. After hearing the submissions having been made by the learned counsel representing the plaintiff, which would be taken note of herein below, as well as evidence available on record, this Court is of the view that additional substantial ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 7 question of law, which otherwise was proposed by the defendant at the time of filing of the appeal, is required to be framed, for the proper adjudication of the matter at hand. It would be relevant to reproduce herein below provisions of .
Section 100 CPC:
"100. Second Appeal.-- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.] [100A. No further appeal in certain cases?
Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order or such single Judge in such appeal or from any decree passed in such appeal.]"
::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 810. Section 101 CPC specifically bars second appeal except on the ground mentioned in Section 100 CPC. Hence, this Court, after careful examination of submissions having been .
made by the learned counsel representing the plaintiff, deems it fit to frame following additional substantial question of law, with the consent of the parties:
"Whether courts below misread and misappreciated oral and documentary evidence of defendants more especially documents Ex.DW-1/A, DW-1/B and Ex. DW-1/C thereby vitiating the impugned judgments and decrees?"
11. Mr. Ajay Sharma, learned counsel representing the defendants vehemently argued that the impugned judgments passed by the learned Courts below are not sustainable, as the same are not based upon correct appreciation of evidence adduced on record by the respective parties and as such deserve to be set aside. Mr. Sharma, while referring to the impugned judgments passed by courts below strenuously argued that both the Courts below have erred in appreciating provisions of law applicable as well as pleadings of parties and especially evidence adduced by them on record in its right perspective, as a result of which erroneous findings have come on record to the detriment of the defendants/original defendant, who successfully proved on record that he was ready and willing to perform his part for execution of agreement Ext. P1. Mr. Sharma, further contended that both the courts below have fallen in grave error while passing ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 9 judgments and decrees because execution of sale deed, in law is prohibited without there being permission from Town and Country Planning authorities. He further stated that since permission from TCP was to be procured by the plaintiff .
himself, there was no occasion for the defendant to get the sale deed executed till the receipt of permission from TCP Department. Mr. Sharma, while specifically inviting attention of this Court to Exts. DW-1/A, DW-1/B and DW-1/C strenuously argued that defendant successfully proved on record that despite there being extension of time for execution of sale deed, plaintiff could not arrange for the balance sale consideration. In this regard, he specifically invited attention of this Court to the statement of DW-1 Sohan Lal, registration clerk of the Sub Registrar, Una, who stated that parties were present on 16.9.1994, but they were called upon to come on 17.9.1994, with the remaining sale consideration payable to the defendant, but since plaintiff failed to turn up, no sale deed could be registered. Mr. Sharma further contended that the courts below failed to appreciate the original record brought by Sohan Lal from the office of Sub Registrar, who successfully proved on record Exts. DW-1/A and DW-1/B. But, interestingly, courts below brushed aside aforesaid documents without giving any reason and wrongly came to the conclusion that documents as referred above could not be seen in evidence and as such judgment being totally contrary to the ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 10 documentary evidence available on record deserves to be set aside. While concluding his arguments, Mr. Sharma contended that it is well settled law that in a suit for specific performance, court is required to see the readiness and willingness of the .
party to execute his/her part qua the agreement, if any, entered into between the parties. Mr. Sharma, while referring to the document Ext. DW-1/A forcefully contended that the defendant successfully proved on record that he was ever ready and willing to perform his part, because he came present before the Sub Registrar, Una, pursuant to notice dated 2.9.1994, Ext. P4, whereby plaintiff had called upon defendant to execute sale deed on 16.9.1994 by presenting himself before Sub Registrar, Una at 10.00 AM.
12. Mr. Neeraj Gupta, learned counsel representing the plaintiff supported the judgments and decrees passed by the Courts below. While referring to the impugned judgments and decrees passed by the Courts below, Mr. Gupta strenuously argued that there is no illegality or infirmity in the same, rather they are based upon correct appreciation of evidence adduced on record by the respective parties and as such there is no occasion, whatsoever for this Court to interfere in the findings of fact and law recorded by the Courts below. While refuting aforesaid contentions having been made by the learned counsel for the defendant, Mr. Gupta, vehemently argued that the learned Courts below rightly concluded after ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 11 perusing Exts. DW-1/A, DW-1/B and DW-1/C, that nothing could be inferred from these documents that defendant was ready and willing to get the sale deed executed in terms of agreement to sell, Ext. P1 and as such there is no illegality or .
infirmity in the impugned judgments passed by the learned Courts below and same deserve to be upheld. Mr. Gupta, while specifically placing reliance upon judgment passed by this Court in Rahul Bhargava v. Vinod Kohli reported in 2008 (1) Shim. LC 385 and judgment passed by Coordinate Bench in Civil Suit No. 27 of 2001 titled Lt. Col. S.J. Chaudhri v. Mr. Raj Kumar Brijendra Singh (deceased) through his Legal Representatives decided on 26.9.2008, contended that condition, if any, with regard to obtaining permission from TCP before execution of sale deed pursuant to agreement to sell entered into between the parties, can not be held to be impediment, if any, in the execution of sale deed. Mr. Gupta further contended that for filing suit for specific performance, on the basis of agreement, no permission, if any, is/was required from TCP, rather, it is only after suit is decreed, such permission may be required at the time of registration of sale deed, on the basis of specific performance of decree. While concluding his arguments, Mr. Gupta forcefully contended that there is no misappreciation and misconstruction of documentary evidence adduced on record by the defendant, rather both the courts below have dealt with each and every ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 12 aspect of the matter meticulously and there is no scope of interference, especially in view of concurrent findings of fact recorded by the learned Courts below. Mr. Gupta further contended that this Court has a very limited jurisdiction to re-
.
appreciate evidence while exercising powers under Section 100 CPC when both the learned Courts below have returned concurrent findings of fact and law. He placed reliance upon judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264
13. I have heard the learned counsel representing the parties and gone through the record carefully.
14. While hearing arguments having been advanced by the learned counsel representing the parties, this Court had an occasion to peruse pleadings as well as evidence led on record by respective parties, perusal whereof certainly suggests that the learned Courts below failed to appreciate the evidence, be it ocular or documentary, led on record by the defendant in right perspective, as a result of which, great prejudice has been caused to the defendant, who, while placing reliance upon Ext. DW-1/A, successfully proved on record that pursuant to receipt of legal notice, Ext. P4, he had come present before Sub Registrar on 16.9.1994 for getting sale deed executed in terms of Ext. P1. Pleadings as well as evidence available on record clearly suggest that vide Ext. P1, parties had entered into agreement to sell the suit land for a ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 13 total consideration of Rs.44,000/-. It is also not disputed that an amount of Rs.30,000/- was received by the defendant at the time of execution of agreement, Ext. P1 dated 31.5.1993, whereas remaining amount of Rs.14,000/- was to be received .
by the defendant at the time of execution of sale deed.
Similarly, there is no dispute with regard to extension of time with the consent of parties till 31.8.1994 as emerges from perusal of document Ext. P1 as well as Ext. P3.
15. True, it is, that perusal of Ext. P3 i.e. endorsement made on the backside of agreement to sell i.e. Ext. P1, suggests that sale deed could not be executed strictly in terms of time as stipulated in agreement to sell dated 31.5.1993, for want of permission from TCP. Though there is mention with regard to permission to be taken prior to execution of sale deed but admittedly there is nothing to suggest that permission as referred above was required to be specifically obtained by the defendant and not by the plaintiff as claimed by the learned counsel representing the plaintiff. This Court carefully perused Ext. P1 i.e. agreement to sell entered into between the parties, which nowhere suggests that condition, if any, with regard to permission to be obtained by defendant before execution of sale deed was incorporated in the agreement, rather there was condition that defendant shall be liable and bound to get the sale deed executed on or before 30.4.1994, failing which, he shall be liable to refund Rs.60,000/- i.e. double the amount as ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 14 already received by him at the time of execution of agreement Ext. P1. Perusal of Ext. P3 i.e. so called supplementary agreement entered into between the parties after expiry of period as contained in original agreement dated 31.5.1993, .
though suggests that prior permission of TCP was condition precedent for execution of sale deed on or before 31.8.1994, in terms of agreement Ext. P1 but original agreement Ext. P1 did not contain such condition.
16. Record further reveals that the defendant while getting time extended admitted that he was bound to get the sale deed executed before 30.4.1994 but since there was no permission from TCP, he was unable to do the needful. However, while agreeing to get sale deed executed in terms of Ext. P1, on or before 31.8.1994, defendant nowhere agreed that he shall be responsible for getting prior permission of TCP prior to execution of sale deed as referred herein above. Plaintiff filed the suit for possession by specific performance of agreements dated 31.5.1993 and 30.4.1994 seeking direction to the defendant to get the sale deed executed of the suit land on receipt of remaining sale consideration or, in the alternative, for refund of Rs.44,000/-. Aforesaid suit was strictly based upon agreements dated 31.5.1993 and 30.4.1994, Ext. P1 and Ext. P3, perusal whereof nowhere suggests that prior permission of TCP was condition precedent for executing sale deed in terms of Ext. P1 dated 31.5.1993, as such, this Court ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 15 sees no force in the contentions raised by the learned counsel representing the defendant that no sale deed could be executed within stipulated period for want of prior permission from TCP department. Bare perusal of the contents/averments .
contained in agreement dated 31.5.1993 Ext. P1 and agreement dated 30.4.1994 Ext. P3, clearly suggest that defendant was under obligation to get the sale deed executed on or before 30.4.1994 and thereafter on or before 31.8.1994.
Otherwise also, question of obtaining permission, if any, would have arisen at the time of execution of sale deed on the basis of decree for specific performance because, admittedly, there is no bar to file suit for specific performance on the ground of prior permission, if any, to be obtained by either of the parties.
17. Hence, this Court is fully in agreement with the arguments having been advanced by learned counsel representing the plaintiff that plaintiff was entitled to file suit for execution of agreement Ext. P1 merely on the basis of agreement to sell and mandate of same could not be allowed to be defeated on the ground of non-availability of prior permission of TCP, which is/was nowhere condition precedent for execution of sale deed Ext. P1.
18. If a party seeking specific performance of agreement successfully proves on record that he is/was ready and willing to perform his part of agreement, he/she would be entitled to decree of specific performance and plea of not having the ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 16 required permission of TCP can not be termed to be a bar in a sale transaction, which admittedly flows from agreement to sell entered into between the parties. In this regard, reliance is placed on Rahul Bhargava v. Vinod Kohli reported in 2008 .
(1) Shim. LC 385, wherein it is held as under:
"14. There is another aspect of the case, for filing a suit for specific performance on the basis of agreement, no permission is required, under Section 118 of the Act. It is only if the suit is decreed such permission may be required at the time of registration of the sale deed on the basis of specific performance decree. In Manzoor Ahmed Magray vs. Ghulam Hassan Aram and others (1999) 7 SCC 703, the Hon'ble Apex Court has held as follows:-
"It is to be stated that the appellant has r neither raised the said contention in the written statement nor during the trial.
However, in the appeal, the appellant sought to raise the contention that the specific performance qua the suit land cannot be granted as the transfer or alienation of the suit property is prohibited under the provisions of the J&K Agrarian Reforms Act, 1972, the J&K Agrarian Reforms Act, 1976 and the J&K Prohibition on Conservation of Lands and Alienation of Orchards Act, 1975. The Court declined to entertain the plea on the ground that it was raised almost 24 years after the filing of the suit by the plaintiff and the same, if permitted to be raised, would prejudice the rights of the plaintiff. Even considering that the said plea is a pure question of law, in our view, it is without any substance. The definition under Section 2(4) of the J&K Agrarian Reforms Act, 1972 specifically excludes "land" which was an orchard on the first day of September 1971. Sub-section (5) of Section 2 defines "orchard"
to mean a compact area of land having fruit trees grown thereon or devoted to cultivation of fruit trees in such number that the main use to which the land is put is growing of fruits or fruit trees. In the present case, agreement to sell was executed on 14.7.1971 ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 17 in respect of an orchard land. Therefore, the said Act was not applicable to the land in dispute. Similar provisions are there in the Agrarian Reforms Act, 1976 which gives the definition of the word "land" under Section 2(9) and definition ofthe word "orchard" under Section 2(10). From the said definition, .
it is apparent that orchard is excluded from the operation of the Agrarian Reforms Act.
Learned counsel for the appellant, however, further referred to Section 3 of the J&K Prohibition on Conversion of Land and Alienation of Orchards Act, 1975 which is as under:-
'3. Prohibition on conversion of land and alienation of orchards.- (1) Notwithstanding anything contained in any other law for the time being in force----
(a) no person shall alienate an orchard r except with the previous permission of the Revenue Minister or such officer as may be authorized by him in this behalf;
Provided that alienation of orchards to the extent of four kanals only in favour of one or more persons for residential purposes shall not need any permission.
(b) .... .... ....
Considering the aforesaid section, it is apparent that prohibition on transfer of orchards is not absolute and the question of obtaining previous permission as contemplated under Section 3(1)(a) would arise at the time of execution of the sale deed on the basis of decree for specific performance. Section 3 does not bar the maintainability of the suit and permission can be obtained by filing proper application after the decree is passed. Therefore, it cannot be stated that decree for specific performance is not required to be passed. Further, under Section 3 of the J&K Prohibition on Conservation of Land and Alienation of Orchards Act, 1975, prohibition on transfer is limited. Firstly, the proviso makes it clear that alienation of orchards to ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 18 the extent of four kanals only in favour of one or more persons for residential purposes will not require any permission. Secondly, for more than four kanals of land, previous permission of the Revenue Minister or such officer as may be authorized by him in this behalf is required to be obtained.Dealing with .
similar contention, this Court in Bai Dosabai v. Mathurdas Govinddas [1980 (3) SCC 545 ] observed that even if the Act prohibits alienation of land, if the decree is passed in favour of the plaintiff, it is required to be moulded suitably."
15. On the point of alienation/ transfer of land after permission Section 3 of J&K Act noticed above and Section 118 of the Act in substance are similar. There is no absolute prohibition, under Section 118 of the Act on transfer of land to non-agriculturist and transfer can be made in favour of non-agriculturist with permission of Government under Section 118 of the Act. This question at the most will arise at the time of execution of sale deed on the basis of decree for specific performance. Section 118 of the Act does not bar the maintainability of the suit for specific performance and injunction on the basis of agreement. The respondent No.1 had earlier obtained permission from the State Government for purchasing the property vide permission Ex. PW 3/A.
19. Reliance is also placed upon judgment passed by Coordinate Bench in Civil Suit No. 27 of 2001 titled Lt. Col.
S.J. Chaudhri v. Mr. Raj Kumar Brijendra Singh (deceased) through his Legal Representatives decided on 26.9.2008, wherein it has been held as under:
"I cannot agree with this submission made by learned counsel for the defendant. Clause 3 of Ex. Ex.PW-1/A reads:
" The Buyer on receipt of the acknowledgment of the balance amount will be put in physical possession of the entire land under reference which has been defined in the Aks Tatima attached along with the Jamabandi. The Seller will simultaneously execute the sale deed and all other ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 19 documents in favour of the Buyer or unto his order and submit the sale deed for registration and transfer of the said property to the buyer's name by 30th October, 1993. The seller shall get all clearances and approvals required for the sale and transfer of the said property by that date from relevant authorities."
.
This clause specifically requires the seller to get all clearances and approvals qua the sale and transfer of the property from the relevant authorities. This submission, therefore, cannot be accepted. Even otherwise in law, passing of a decree for specific performance is not prohibited.
In Mrs. Chandnee Widya Vati Madden v.
Dr.C.L.Katial and others, AIR 1964 SC 978, the Supreme Court held:
" 4. The main ground of attack on this appeal is that the contract is not enforceable being of a contingent nature and the contingency r not having been fulfilled. In our opinion, there is no substance in this contention. So far as the parties to the contract are concerned, they had agreed to bind themselves by the terms of the document executed between them. Under that document it was for the defendant-vendor to make the necessary application for the permission to the Chief Commissioner. She had as a matter of fact made such an application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part of the contract, and that it was the defendant who willfully refused to perform her part of the contract, and that time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant-appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction."
In Ajit Prashad Jain v. N.K.Widhani and others , AIR 1990 Delhi 42, the High Court of Delhi dealing with the question as to whether in the absence of permission under Urban Land (Ceiling & ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 20 Regulation) Act, a decree for specific performance could be passed. The Court held:
" The permission from Land and Development Office is not a condition precedent for grant of decree for specific performance. In Mrs. Chandnee Widya Vati .
Madden v. Dr. C.L.Katial, (1964) 2 SCR 495:
(AIR 1965 SC 978) the Supreme Court confirmed the decision of the Punjab High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale the plaintiff may not be able to enforce the decree for specific performance of the contract but that was no bar to the court passing a decree for that relief. The same is the position in the present case. If after grant of the decree of specific performance of the contract the Land and Development Office refuses to grant permission for sale the decree holder may not be in a position to r enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract...."
In Anjali Das v. Bidyut Sarkar , AIR 1992 Calcutta 47, the High Court of Calcutta on a similar objection to the grant of relief ruled:
"40. On behalf of the respondent No.1 the decision of the Privy Council reported in AIR 1947 PC 182 : 52 Cal. WN 472 (Dalsukh Versus Guarantee Life Employment Insurance Company) has been referred to. In that case when the plaintiff entered into contract for sale with the defendant subject to approval of the Court and when the approval of the Court was not granted the Privy Council has held that it was a contingent contract and the approval not having been obtained the specific performance of the contract cannot be granted by the Court.
41. We are of the view that facts of that case are different. In this case the Cooperative Society has not yet refused the permission and the contract has not been unenforceable.::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 21
42. On the contrary the Supreme Court in Nathumal v. Phulchand, AIR 1970 SC 546, has relied upon the Privy Council decision of (Motilal v. Nanhelal) reported in AIR 1930 PC 287. In that case the contract for transfer of rip land was subject to approval of the Revenue Officer under .
the provision of Control Provinces Tenancy Act, 1920. The Privy Council has held that there was an implied covenant on the part of the vendor to do all things necessary to effect the transfer which would include an application to the Revenue Officer for such permission and when no such permission was obtained the Court can direct the defendant to obtain such permission and execute a conveyance on receipt of such sanction.
43. On behalf of the appellant the Delhi High Court decision in AIR 1990 Delhi 224 has been referred to in which on the approval being given by Co-operative Society the Court granted decree for specific performance of contract for sale of a number of Co-operative Society. This has been referred to in order to demonstrate that the contract for sale of a flat of a Co-operative Society can be transferred subject to Society's approval.
44. In view of the above legal position we are of the view that the contract in this case is enforceable and when the appellant has already applied for such approval and also filed an application for membership we can grant the decree and direct the respondent No.1 and respondent No.2 to execute sale deed in respect of the flat in suit on the respondent No.2 considering the application for membership of the appellant and the prayer for transfer of the flat in accordance with law and in terms of the bye-laws."
In K.Raheja Construction Ltd. v. Alliance Ministries and others , AIR 1995 SC 1768, holding that a decree for specific performance will be subject to grant of permission as contemplated by law, the Court held:
"4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 22 competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven .
years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent."
In Raghunath Rai and another v. Jageshwar Prashad Sharma and another , AIR 1999 Delhi 383, the Court held that merely because permission from the authorities is not obtained does not deprive the plaintiff of his right to pray for r a decree of specific performance. The precedent on the point need not be multiplied any further.
In these circumstances, the objection raised by learned counsel for the defendant needs to be rejected. This issue is therefore, decided in favour of the plaintiff and against the defendant."
20. In view of the discussion made herein above as well as law discussed, this Court has no hesitation to conclude that decree for specific performance of agreement could have been passed by the Courts below without there being any permission from TCP, especially when permission from TCP was not a condition precedent for getting sale deed executed in terms of Ext. P-1. The substantial question of law is answered accordingly.
21. This Court, solely with a view to explore answer to additional substantial question of law framed at the time of ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 23 hearing, carefully examined, Ext. P4, Ext. D1, Ext. DW-1/A and Ext. DW-1/C as well as Ext. P1. Perusal of Ext. P4 clearly suggests that the plaintiff by way of legal notice called upon the defendant to get the sale deed executed in terms of .
agreement to sell Ext. PA, on or before 16.9.1994 by presenting himself before the Sub Registrar, Una, failing which, he reserved liberty to himself to file suit for specific performance of agreement for execution of sale deed. Perusal of Ext. P1 also suggests that plaintiff namely Madan Lal presented himself before the Sub Registrar, Una, on 16.9.1994 and submitted written application stating therein that he got legal notice dated 2.9.1994 served upon the defendant advising him to come present before Sub Registrar on 16.9.1994 for execution of sale deed in terms of agreements dated 31.5.1993 and 30.4.1994. Similarly, perusal of Ext. DW-1/A, clearly suggests that on 16.9.1994, defendant had come present before the Sub Registrar and moved an application for marking his presence. Careful perusal of application Ext. DW-1/A, clearly suggests that defendant after having received legal notice dated 2.9.1994, from the counsel of the plaintiff, had come present in the court of Sub Registrar, Una for execution of sale deed in terms of agreement dated 31.5.1993 and 30.4.1994. Careful perusal of Ext. DW-1/C proves on record that the parties to the lis presented themselves before the Sub Registrar Una on 16.9.1994, on which date, they were ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 24 directed to remain present on 17.9.1994. Order dated 17.9.1994 passed by Sub Registrar suggests that while adjourning case to 17.9.1994, parties were directed to complete the transaction. However, it emerges from the .
perusal of order dated 17.9.1994 that the plaintiff failed to turn up on 17.9.1994, despite there being order from Sub Registrar, Una.
22. This Court carefully examined the findings returned by the court below juxtaposing the same with the documentary evidence as discussed herein above. DW-1 Sohan Lal, Registration Clerk, specifically stated before the learned trial Court that photocopies of applications dated 16.9.1994 and 17.9.1994 are correct as per record brought on that day and same are Exts. DW-1/A and DW-1/B, respectively. It has also come in his statement that on 16.9.1994, on the backside of the application, order was passed by Sub Registrar that, "..Both are directed to come tomorrow i.e. 17.9.94 for executing a General Power of Attorney." In his cross-examination, he also admitted that the plaintiff namely Madan Lal also moved an application dated 16.9.1994, Ext. PA. He also stated that copies of notice Ext. P4 as well as agreement Ext. P1 were also tagged with the application. He also stated that defendant was not present when application was moved by Madan Lal on 16.9.1994, however, he feigned ignorance about the fact whether Power of Attorney was executed by Attra or not. After ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 25 careful examination of the documents referred herein above, as well as statement of DW-1 Sohan Lal, this Court sees substantial force in the arguments having been advanced by Mr. Ajay Sharma, learned counsel representing the defendants .
that the courts below misappreciated and misconstrued the evidence led on record by the defendant suggestive of the fact that on 16.9.1994, he was ready and willing to perform his part in terms of agreements dated 31.5.1993 and 30.4.1994.
23. Perusal of Exts. DW-1/A and DW-1/C clearly proves on record that the defendant pursuant to legal notice dated 30.4.1994, Ext. P4, had come present before Sub Registrar to get the sale deed executed in terms of agreement to sell dated 31.5.1993 and 30.4.1994. It clearly emerges from Ext. DW-
1/C that both the parties had come present on 16.9.1994 but since the payment of balance sale consideration was to be made, parties were directed to come present on 17.9.1994.
Order recorded by the Sub Registrar on 17.9.1994 Ext. DW-
1/C clearly proves on record that plaintiff failed to appear on 17.9.1994 meaning thereby, he failed to perform his part pursuant to agreement Ext. P1, whereby he was under
obligation to pay remaining amount of Rs.14,000/- to the defendant as balance sale consideration.
24. Impugned judgment passed by the first appellate Court appears to be totally based upon misappreciation of evidence as discussed hereinabove. Defendant, while placing reliance ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 26 upon documentary evidence as analyzed hereinabove, successfully proved that he was ready and willing to get the sale deed executed but, admittedly, on 17.9.1994, plaintiff failed to turn up before the Sub Registrar.
.
25. It is not understood how first appellate Court could observe that Sub Registrar directed parties to get Power of Attorney executed by Attar Chand. Similarly, it is not understood, on what basis first appellate Court came to the conclusion that Ext. DW-1/C i.e. order passed by Sub Registrar is nonest and could not be relied upon because, this was not the certified copy of original. Once, learned trial Court below had an occasion to peruse the original record admittedly brought by DW-1 Sohan Lal, Registration Clerk, office of Deputy Commissioner, Una, findings returned by the Courts below can not be accepted that no reliance could be placed upon order dated 17.9.1994, Ext. DW-1/C. This Court, finds it really difficult to accept the findings returned by the Courts below that since there is no mention, if any, with regard to applications Ext. DW-1/A and Ext. PA, having been moved by the defendant and plaintiff in the order Ext. DW-
1/C, no reliance can be placed upon same because admittedly original record was produced before the Court below.
26. True it is, that there is no specific mention with regard to filing of aforesaid applications having been made by the parties before Sub Registrar but, order Ext. DW-1/C clearly suggests ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 27 that parties had come present before Sub Registrar on 16.9.1994 and they were directed to come present on 17.9.1994, for making balance payment. Order, admittedly made on the back side of the Ext. DW-1/A, i.e. application .
having been made by the defendant, was required to be construed/appreciated by the Court below in the context of averments made in the application, Ext. DW-1/A, especially prayer made in the same. As has been held above that there was no requirement, if any, of prior permission of TCP, as far as execution of sale deed in terms of Ext. P1 is concerned and as such finding returned by the trial Court that application Ext. DW-1/A moved by the defendant Attar Chand, before Tehsildar-Sub Registrar, Una on 16.9.1994 did not disclose whether he was equipped with permission of TCP is/was totally uncalled for and that aspect of the matter was not required to be looked into by the Court below, while examining prayer of the plaintiff for specific performance of agreements admittedly entered into between the parties on 31.5.1993 and 30.4.1994, respectively.
27. This Court, after carefully examining the documents as referred above, sees no reason to differ with the submissions having been made by the learned counsel representing the defendant that the defendant successfully proved on record that he was ready and willing to perform his part in terms of agreement entered inter se parties, Ext. P1. It clearly emerges ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 28 from the record that defendant, sequel to legal notice issued by plaintiff presented himself before the Sub Registrar, Una, for execution of sale deed in terms of Ext. P1 but plaintiff, who was also present before Sub Registrar on 16.9.1994 failed to .
turn up on 17.9.1994 with balance payment, meaning thereby that it was plaintiff, who failed to perform his part in terms of agreement as referred above.
28. Hence, this Court has no hesitation to conclude that the learned Courts below misconstrued and mis-appreciated the evidence led on record by the defendant and as such findings contrary to the documentary evidence as discussed above, are liable to be set aside.
29. Additional substantial question of law, framed above, is answered accordingly.
30. Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, has held as under:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 29 High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269) .
31. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse.
There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record, but as emerges from the case referred above, there is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appears to be perverse.
32. In this regard reliance is placed upon judgment passed by Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) through LRs and Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161 wherein the Court held:
"35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth v. Seshammal, (2006)5 SCC 545, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : (SCC pp.555-56) "24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 30
(i) An inference of fact from the recitals or contents of a document is a question of fact.
But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a .
document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal r issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
::: Downloaded on - 19/04/2017 23:58:11 :::HCHP 31We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same." (pp.174-175) .
33. In the case at hand, learned Courts below have ignored/ mis-appreciated the evidence led on record by the defendant and have also drawn wrong inferences from the proven facts, as has been discussed in the earlier part of this judgment.
Hence, this Court sees reason to interfere in the matter and set aside the judgments and decrees, which are apparently perverse.
34. Accordingly, the present appeal is allowed. Judgments and decrees passed by both the Courts below are set aside.
Suit of the plaintiff is dismissed. Pending applications, if any, are disposed of. Interim orders, if any, are vacated.
(Sandeep Sharma) Judge April 17, 2017 (Vikrant) ::: Downloaded on - 19/04/2017 23:58:11 :::HCHP