Madhya Pradesh High Court
Rajendra Kumar vs Ramgopal & Ors. on 2 August, 2017
Author: Vivek Rusia
Bench: Vivek Rusia
-: 1:- First Appeal No.317 of 1998.
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Vivek Rusia)
First Appeal No.317 of 1998
Rajendra Kumar s/o Banshidharji Garg
VERSUS
Shri Ramgopal s/o Laxmanji and 8 others
*****
Shri Anil Kumar Shrivastava, learned counsel for the
appellant.
Shri Rohit Mangal, learned counsel for the Respondent
Nos.3, 7 and 8.
None for the other Respondents despite service.
*****
JUDGMENT
( Delivered on this 2nd day of August, 2017 ) THE appellant [hereinafter referred to as "the plaintiff"] has filed the present appeal being aggrieved by judgment and decree dated 04.04.1998 passed in Civil Suit No.112-A/96 by which the decree of specific performance has been denied.
[2] Facts of the case, in short, for disposal of this appeal are as under :-
(i) As per the pleading in the plaint, Late Dhannalal was having two wives, namely, Late Smt. Tulsi bai and Late Smt. Kesar bai. Late Dhannalal has expired long back and Late Smt. Tulsi bai died on 19.12.1983 and the Late Smt. Kesar bai has died 15 years back. Smt. Chhotibai and Sarjubai are two daughters of Late Smt. Kesar
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bai. Shri Ramgopal and Shri Badri Prasad (here in after referred as Defendant No. 1&2) is nephew of Late Smt. Tulsi bai. Late Dhannalal owned land of various survey numbers in Village Ghatti Mukhtyarpur in which Late Smt. Tulsi bai and Chhotibai was having equal share. According to the plaintiff the suit land came in the share of Late Smt. Tulsi bai which is mentioned in Schedule"B"( in short suit land ) appended to the suit. That Defendant No.1 & 2 filed the Civil Suit No. 198/74 against the Late Smt. Tulsi bai and got the Judgment and decree dated 22.0.1974 in respect of Suit land . Thereafter Smt. Tulsi bai has included the name of Shri Ramgopal and Shri Badri Prasad as owner of the land and they jointly agreed to sell the land to the plaintiff by way of agreement to sell dated 29.05.1979 in the total consideration of Rs.50,000-00. As per the terms and conditions of the agreement dated 29.05.1979, Rs.25,000-00 was paid as an advance money and they agreed to execute the sale deed after decision in two pending civil suits details of which are mention below. The plaintiff has agreed to pay the balance amount at the time of registration of sale deed.
(ii) That Smt Tulsi bai had file the C.S.No. 98/1982 against the Shri Ramgopal and Shri Badri Prasad (Exb.P/4) seeking decree of title and declaration that the judgment & decree dated 22.10.74 passed in Civil Suit No.189/74 is not binding on her . In this suit Shri Ramgopal and Shri Badri Prasad filed the written statement admitting the agreement to sale with plaintiff .That due to death of Tuslsi bai on 9.12.1983 suit has been dismissed as abetted on 6.7.1984 (Ex.P/6)
(iii) That smt Sarju bai had filed the civil suit no.
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344/1975 against the Tulsi bai , Ramgopal , Badri Prasad and Chhotibai (Exb.P/7) claiming ½ share in suit property and declaration that the judgment & decree dated 22.10.74 passed in Civil Suit No.189/74 is void. In this suit smt Tulsi bai, Shri Ramgopal and Shri Badri Prasad filed the written statement admitting the agreement to sale with plaintiff. (Exb.P/8) Later his suit has also been dismissed due to non appearance of the plaintiff on 7.8.1982 (Exb.P/9)
(iv) That Smt.Chhotibai had filed the Civil Suit No. 204/1976 against Tulsi bai , Ramgopal , Badri Prasad and Sarjubai challenging the judgment & decree passed in Civil Suit No.189/74 claiming 1/3rd share in the suit property. and declaration that the judgment & decree dated 22.10.74 passed in Civil Suit No.189/74 is void. In this suit smt Tulsi bai, Shri Ramgopal and Shri Badri Prasad filed the written statement admitting the agreement to sale with plaintiff.(Exb.P/7). Final outcome of this suit is not in the record of this case.
(v) That during pendency of the aforesaid suits, the defendant Nos.1 and 2 were in need of money, therefore, they took an amount of Rs.10,000-00 from the plaintiff and executed an agreement dated 20.02.1984 (Exb.P/11) and agreed to execute the sale-deed after decision of both the pending suits filed by smt Sarju bai and smt Chhotibai. The plaintiff has claimed that at the time of execution of sale deed he has been handed over the possession of the suit property . The plaintiff had agreed to purchase the suit land along with Ranglal and thereafter the partition took place between the and both continued into half - half share of the suit property.
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(vi) According to the plaintiff, he was always ready and willing to get the sale-deed executed by making the balance payment of Rs.15,000-00 . The defendant Nos.1 and 2 has issued a notice dated 24.06.1987(Exb.P/19) to the plaintiff and Ranglal demanding the possession of the land as according to them land was mortgaged on 29.5.1979 . The plaintiff gave a reply dated 04.07.1987(Exb.P/12) and requested the defendant Nos.1 and 2 for execution of the sale-deed but the defendant Nos.1 and 2 has sold the suit land to smt Manglabai, smt Bhagwatibai and smt Phoolabai by registered sale-deed dated 21.07.1987 (defendant Nos.6, 7 and 8). The defendant Nos.6, 7 and 8 had knowledge about the agreement to sell with the plaintiff and despite that they purchased the suit property. Therefore, they were also impleaded as defendants in this suit. Since shri Ranglal was not interested to become a plaintiff, therefore, he was arrayed as defendant No.3. The plaintiff sought relief that the defendants be directed to execute the sale-deed or if the same is not possible, then advance amount be directed to be refunded.
(vii) The defendant Nos.1, 2, 3, 5, 6, 8 and 9remained ex-parte despite service of notice. The suit was contested by only defendant Nos.4 and 7 i.e.smt Chhotibai and smt Manglabai by filing written statement. By way of written statement, these defendants has specifically denied the execution of agreement to sell dated 29.05.1979 (Ex.P/1). It was further pleaded that there was no partition between Late Smt. Tulsi bai and Late Smt. Kesar bai. Because of the pendency of civil suit, Late Smt. Tulsi bai was in need of money, therefore, she demanded the money
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from defendant Nos.1 and 2. Therefore, the land was mortgaged for the period of six years with the plaintiff and Ranglal and some amount was borrowed. Late Smt. Tulsi bai and the defendant Nos.1 and 2 are Scheduled Tribe, therefore, the transaction is prohibited under Section 165 of the M. P. Land Revenue Code, no sale-deed can be executed. The decree dated 22.10.1974 in Civil Suit No.189-A/74 was executed by way of fraud as Late Smt. Tulsi bai was illiterate and defendant Nos.1 and 2 were her brothers. They have also denied the execution of agreement dated 20.02.1984 and the same is not binding on the defendants. The defendant Nos.6, 7 and 8 had no knowledge about the execution of the agreement.
(viii) On the basis of the pleadings, the Trial Court has framed 13 issues for adjudication.
(ix) In support his plaint, the plaintiff examined Ramlal as PW-1; Rajendra Kumar as PW-2; Girdhari as PW-3 and Surajmal as PW-4. The defendant Nos.4 and 7 examined Ranglal as DW-1; Bhagwansingh as DW-2; Kamalsingh as DW-3 and Manglabai as DW-4.
(x) The plaintiff got exhibited agreement to sell dated 29.05.1979 as Ex.P/1; agreement dated 20.02.1984 as Ex.P/11; reply dated 04.07.1987 as Ex.P/12; Lhasra Panch-Sala as Exs.P/13 to P/15 and Panchanama as Ex.P/21. The defendants got exhibited a receipt dated 28.06.1987 executed by Ranglal as Ex.D/1 and affidavit of Ranglal dated 28.06.1987 as Ex.D/2.
(xi) The learned Additional District Judge vide judgment and decree dated 04.04.1998 has dismissed the suit as the plaintiff has failed to prove that the suit
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property mentioned in the Schedule "B" came into the share of Late Smt. Tulsi bai by way of partition. However, the plaintiff has proved that Late Smt. Tulsi bai and defendant Nos.1 and 2 had executed an agreement to sell in total consideration of Rs.50,000-00. The defendants no. 4&7 have failed to prove that the said agreement was executed for the purpose of security and the suit property was mortgaged with plaintiff. The plaintiff has also proved that Shri Badri Prasad has received Rs.10,000-00 as a sale consideration on 20.02.1984. The defendant Nos.6, 7 and 8 had knowledge about the execution of agreement to sell and despite that they purchased the suit property. The Issue No.10 was framed in respect of readiness and willingness and the learned Trial Court has held that the plaintiff has failed to prove that he was ready and willing to perform his part as per the terms and conditions of the agreement. While deciding Issue No.11, learned Additional District Judge has held that the plaintiff has also failed to prove that he is entitled to get the advance money back from the defendants.
[3] Being aggrieved by the judgment and decree dated 04.04.1998, the plaintiff has filed the present appeal before this Court.
[4] Shri Anil Kumar Sharma, learned counsel appearing on behalf of the appellant/plaintiff submitted that the learned Trial Court has wrongly held that the plaintiff was not ready and willing to get the sale-deed executed. The plaintiff has successfully proved that there was a partition between Late Smt. Tulsi bai and Late Smt. Kesar bai. Even otherwise Late Smt. Tulsi bai being wife of Late Late Dhannalal is having 1/2 share in the suit property for which
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no declaration is necessary and there was a decree dated 22.10.1974 in favour of defendant Nos.1 and 2 in Civil Suit No.189-A/74. That Late Smt. Tulsi bai and Late Smt. Kesar bai owned 56 bighas land and out of which Late Smt. Tulsi bai has agreed to sell 28 bighas to the plaintiff and Ranglal. The sale-deed could not be executed because of litigation between Late Smt. Kesar bai and her daughter. When Shri Ramgopal and Shri Badri Prasad have accepted the amount of Rs.10,000-00 after succeeding in the civil suit and executed Ex.P/11 dated 20.02.1984. The plaintiff was always ready and willing to get the sale-deed executed and he issued notice dated 04.07.1987 (Ex.P/12). The defendant Nos.1 and 2 despite notice has wrongly sold the land to defendant Nos.6, 7 and 8. By way of partition with Ranglal, the plaintiff remained in possession over 14 bighas of the land. The learned Trial court has wrongly disbelieved the evidence of PW-2 Rajendra Kumar. That PW-3 - Girdharilal has categorically stated in his statement that since 18 years he is seeing the plaintiff cultivating the suit land. That PW-4 Surajmal has also proved the same. Since the plaintiff has proved the execution of agreement to sell, possession, therefore, he was entitled for the decree of specific performance. The defendants have failed to establish that the land was mortgaged for the purpose of security. Therefore, in alternate the learned Trial Court ought to have allowed the alternate relief by directing the defendants to return the advance amount. In support of his contention, Shri Shrivastava has placed reliance over the judgment of Apex Court in the case of Shri R. Prasad (d) by L.Rs. v/s Shri Basanti Lal [2008 (III) MPJR 1] on the point when the
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plaintiff has proved his conduct as unblemished, therefore, he is entitled for discretionary relief under Section 16 (c) of the Specific Relief Act, 1963. He has also placed reliance over the judgment of Apex Court in the case of Mukesh Kumar v/s Col.Harbans Waraiah [AIR 2000 SC 172] in which the Apex Court has held that the Karta of Joint Hindu Family can enter into an agreement to sell and the specific performance of contract can be enforced by any party to the contract and if some of the parties entitled to the benefit of the contract are not willing to be arrayed as a plaintiff, they should be impleaded as defendant. The party who is entitled for the benefit of agreement cannot be denied the relief. He has further placed reliance over the judgment of apex Court in the case of Rame Gowda (Dead) by LRs. v/s M. Varadappa Naidu (Dead) by LRs. [(2004) 1 SCC 769], in which the Apex Court has held that occupant who is in settled possession cannot be dispossessed without recourse of law. The relief of injunction is available purely on the basis of possession, even without determination of question of title. He has further placed reliance over the judgment of Apex Court in the case of Laxman Tatyaba Kankate v/s Taramati Harishchandra Dhatrak [2011 (1) MPLJ 317], in which it has been held that the finding of Trial Court cannot be challenged before the appellate Court without filing cross-objection. Therefore, the finding, which has been recorded in favour of the plaintiff/appellant, has attained finality.
[5] Per Contra Shri Rohit Mangal, learned counsel appearing on behalf of the Respondent Nos.3, 7 and 8 refuted the arguments of Shri Shrivastava and argued in
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support of the judgment and decree and prayed for dismissal of the appeal. He submitted that even if the plaintiff has proved the execution of the agreement, he can be denied the relief of specific performance in exercise of discretionary power under Section 20 of the Specific Relief Act, 1963 . The plaintiff must aver and proved readiness and willingness to perform his part mentioned in the agreement. The agreement to sell was executed on 29.05.1979 with a condition that the sale-deed would be executed after adjudication in Civil Suit No.204/76 and Civil Suit No.189- A/74. That DW-2 Ranglal, who was party to the agreement to sell, has admitted that the amount of Rs.20,000-00 which was taken by Late Smt. Tulsi bai as a loan has been returned to defendant Nos.1 and 2. There was no partition with the plaintiff. He has specifically denied the execution of the sale-deed. He has drawn attention to para 23 to 28 of the judgment of the Trial Court in which the learned Additional District Judge has held that the plaintiff has failed to prove that he was ever ready and willing to get the sale-deed executed. The trail court has rightly held that the civil suit was not filed within 3 years from the date of agreement dated 20.02.1984 hence time barred.
[6] In support of his contention, he has placed reliance over the judgment of Apex Court in the case of Ouseph Varghese v/s Joseph Aley [1969 (2) SCC 539] on the point that in a suit for specific performance it is incumbent on the plaintiff to plead that he applied to the defendant specifically to perform the agreement and the defendant has not done so. In the absence of such allegation, the suit is not maintainable. He has further placed reliance
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over the judgment of Apex Court in the case of J.P.Builders v/s A. Ramadas Rao [(2011) 1 SCC 429] on the point of ready and willing and drawn the distinction between readiness and willingness as required under Section 16 of the Specific Relief Act, 1963. He has further placed reliance over the latest judgment of Apex Court in the case of Jayakantham v/s Abaykumar [(2017) 5 SCC 178] in which the Apex Court has denied the relief of specific performance despite upholding findings of the Trial Court as well as the appellate Court on the ground that it would be unfair advantage to the plaintiff over the defendant to enforce the specific performance. He has also placed reliance over the judgment of Apex Court in the case of Ravinder Kumar Sharma v/s State of Assam [(1999) 7 SCC 435], Banarsi vs Ram Phal [ (2003) 9 SCC 606 ] and S.Nazeer Ahmed Vs State bank of Mysore [ AIR 2007 SC 989] in which it has been held that the respondent-defendant in an appeal , without filing cross-objections can attack an adverse finding upon which a decree has been passed against him, for the purpose of sustaining the decree to the extent the lower Court had dismissed the suit against the respondent- defendant. The filing of cross-objection, after the 1976 Amendment is purely optional and not mandatory.
O R D E R
[7] According to the plaintiff, the suit property
was initially owned by Late Late Dhannalal and after his death the property was equally divided between his two wives, namely, Late Smt. Tulsi bai and Late Smt. Kesar bai. The present suit property came in the share of Late Smt. Tulsi bai which she agreed to sell to the plaintiff and Ranglal
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by way of agreement to sell (Ex.P/1).That defendant no 1 and 2 became the joint owner with Tulsi bai has also agreed for the sale of said land as there was a decree in favour of the defendant Nos.1 and 2 who are also real brothers of Late Smt. Tulsi bai. In the said agreement it has specifically been mentioned that Late Smt. Kesar bai and Chhotibai had filed the suit challenging the decree dated 22.10.1974 and claimed 1/3rd share in the suit property. It was the condition in the agreement that the sale-deed would be executed after decision of Civil Suit No.204/76 and Civil Suit No.344/74. At the time of agreement, the amount of Rs.25,000-00 was paid and balance amount of Rs.25,000-00 was agreed to pay at the time of execution of the sale-deed after decision of both the civil suits. The plaintiff has filed the copies of plaint of both the suits and written statement filed by Late Smt. Tulsi bai ,Ramgopal and Badri Prasad in which they admitted the execution of sale agreement with the plaintiff . Vide order dated 07.08.1982 Civil Suit No.344-A/74 filed by smt Surajbai has been dismissed in default (Ex.P/9). The copy of civil suit filed by Chhotibai is filed as Ex.P/16 in which she claimed that the decree dated 22.10.1974 passed in Civil Suit No.189/74 be declared as void and not binding on her. The copy of written statement filed by Late Smt. Tulsi bai is exhibited as Ex.P/18 but the copy of the decision in the Civil Suit No.204/76 is not on the record.
[8] The plaintiff did not give any notice for execution of the sale-deed till he received the notice dated 24.06.1987 (Ex.P/19). In this notice the defendant Nos.1 and 2 has stated that the suit land was mortgaged for the period of 6 years and loan of Rs.25,000-00 was taken. Since the
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plaintiff is in possession and cultivating the land, therefore, the loan is treated to paid and directed for handing over the possession to them. The plaintiff gave a reply to the said notice dated 04.07.1987 (Ex.P/12) directing the defendant Nos.1 and 2 to accept the balance amount and execute the sale-deed. In the reply it has been stated that the marriage of daughter of Shri Ramgopal has been solemnized with the son of Ranglal, therefore, he has sold the suit property to Ranglal in the name of his wife.
[9] The Trial Court has found that the agree- ment to sell was executed between the plaintiff and the de- fendant Nos.1 and 2 and Late Smt. Tulsi bai. Thereafter an agreement dated 20.02.1984 was also executed by way of amount of Rs.10,000-00 was paid. There is no cross appeal by the defendants to challenge the said finding. Therefore, the said finding, which is based on the facts, has attained fi- nality. The Apex court in case of Laxman Tayaba Vs. Tara- mati reported in (2010)7 SCC 717 has held that It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections.
[10] So far as the question of readiness and will- ingness is concerned, in the agreement to sell (Ex.P/1) it was agreed by the defendant Nos.1 and 2 that the sale-deed would be executed after the decision of Civil Suit No.204/76 and Civil Suit No.344/74. The story of mortgage of land for the period of six years has been disbelieved by the trial Court. Therefore, the defendants were required to perform their part by executing the sale-deed after decision of both the civil suits. That Civil Suit No.344/74 has been dismissed
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in default on 07.08.1982. The civil suit filed by Chhotibai i.e. Civil Suit No.204/76 has not been decided in which the judgment and decree dated 22.10.1974 was under challenge. Since the defendant Nos.1 and 2 has agreed to execute the sale-deed to the plaintiff after decision of both the civil suits, therefore, the plaintiff was not required to file the suit or per- form his part before decision of two civil suits. On 20.02.1984 the defendants further received the amount of Rs.10,000-00 from the plaintiff which has also been decided in favour of the plaintiff by way of Issue No.7. That in case of K. Prakash v. B.R. Sampath Kumar, (2015) 1 SCC 597 on the point reediness and willingness has held as under
14. The King's Bench in Rooke's case said:
"Discretion is a science, not to act arbitrarily according to men's will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are not to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others, allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with."
15. The Court of Chancery in Attorney General v. Wheate followed Rooke's case and observed: (ER p. 666) "... the law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni viri, yet, when it is asked, vir bonus est quis? The answer is, qui consulta patrum, qui leges juraque servat. And as it is said in Rooke's case2, that discretion is a science not to act arbitrarily according to men's wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, in some cases follows the law implicitly; in others assists it, and advances the remedy; in others, again, it relieves against the abuse, or allays the rigour of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to
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this Court. That is a discretionary power, which neither this, nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with. This description is full and judicious, and what ought to be imprinted on the mind of every Judge."
16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing.
In case of Narinderjit Singh v. North Star Estate Promoters Ltd., reported in (2012) 5 SCC 712, has held as under
21. In R.C. Chandiok v. Chuni Lal Sabharw this Court observed that "readiness and willingness cannot be treated as a straitjacket formula and the issue has to be decided keeping in view the facts and circumstances relevant to the intention and conduct of the party concerned". The same view was reiterated in P. D'Souza v.
Shondrilo Naidu.
22. In N.P. Thirugnanam v. R. Jagan Mohan Rao the Court found that the appellant was dabbling in real estate transaction without means to purchase the property and observed: (SCC pp. 117-18, para 5) "5. ... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove
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that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
23. In J.P. Builders v. A. Ramadas Rao the Court has merely reiterated the principles already laid down and no new proposition has been laid down which may help the cause of the appellant.
24. It is significant to note that the appellant and his father had set up the case of total denial. They repeatedly pleaded that the agreement for sale was a fictitious document and the respondent had fabricated the same in connivance with Col. Harjit Singh and Vijay Bhardwaj. However, no evidence was adduced by the appellant to substantiate his assertion. That apart, he did not challenge the finding recorded by the trial court on the issue of readiness and willingness of the respondent to perform its part of the agreement. Therefore, we do not find any valid ground much less justification for exercise of power by this Court under Article 136 of the Constitution of India to interfere with the judgment of the lower appellate court which was approved by the High Court.
25. We are also inclined to agree with the lower appellate court that escalation in the price of the land cannot, by itself, be a ground for denying relief of specific performance. In K. Narendra v. Riviera Apartments (P) Ltd. this Court interpreted Section 20 of the Act and laid down the following propositions: (SCC p. 91, para 29) "29. Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage
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to the plaintiff over the defendant or unforeseeable hardship on the defendant."
(emphasis supplied)
26. In the present case, the appellant had neither pleaded hardship nor produced any evidence to show that it will be inequitable to order specific performance of the agreement. Rather, the important plea taken by the appellant was that the agreement was fictitious and fabricated and his father had neither executed the same nor received the earnest money and, as mentioned above, all the courts have found this plea to be wholly untenable.
[11] That in view of the above law the plaintiff has successfully established that there was nothing on his part to perform till both pending suits are decided. The sale deed cannot be executed during pendency of the suit, plaintiff was ready and willing to pay the balance amount to get the sale deed executed. The findings of the trial court on issue no 10 cannot be sustained. The trail court conclusions are clearly contrary to the materials on record. The trial court was wrong in holding that there was no indication about the readiness and willingness to get the sale deed executed on part of plaintiff.
[12] That in case of agreement of sale relating to immovable property in India, time is not of the essence of the contract unless specifically provided to that effect. The plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property. In the present case, the plaintiff was waiting for the decision of civil suits and filed the present suit when the defendants have issued a notice to him and sold the property to the defendant Nos.6, 7 and 8.
[13] The Apex Court in the case of K.S.
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Vidyanadam v/s Vairavan [(1997) 3 SCC 1] has held that under Article 54 of the Limitation Act, the period of 3 years is to be calculated from the date specified in the agreement for performance or in absence of such stipulation within 23 years from the date of performance was refused. In the present case the performance was refused by notice dated 24.06.1987 by the defendants and the suit was filed in the month of August, 1987, therefore, it is well within limitation.
[14] The plaintiff has specifically pleaded in para 7 of the plaint that he alone is ready to perform his part by making payment of Rs.15,000-00 and ready and willing to get the sale-deed executed. He filed the suit on 17.08.1987 when the defendants served a notice dated 24.06.1987 denying that there was no agreement to sell and the land was mortgaged to him. He has stated that the sale-deed be executed jointly with him and Ranglal and if it is not possible to get the sale-deed executed, then money be returned to the plaintiff and Ranglal as well. Plaintiff has prayed relief for Ranglal despite knowing that Ranglal has become relative of defendant Nos.1 and 2 and purchased the some part of the suit property in the name of his wife.
[15] The Trial Court has also held that defendant Nos.6, 7 and 8 had knowledge about the execution of agreement to sell and despite that they purchased the suit property. That Ranglal, who was a party to the agreement to sell along with the plaintiff, did not file the suit and became the witness of defendants. In his evidence he has admitted that the suit property has been purchased by him in the name of his wife Phoolabai. Therefore, he has turned antagonistic and deposed in favour of the defendant Nos.4 and 7 and
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executed Ex.D/1 dated 28.06.1987.
[16] The possession of the plaintiff has also been admitted by the defendants by issuing a notice dated 24.06.1987 (Ex.P/19). In support of his possession, he has also filed Exs.P/20 and P/21. The Apex court in case of Rama Gowda Vs M.Varadappa reported in (2004)1SCC769 has held peaceful and settled possession should be protected.
[17] That in a recent judgement in case of Jaykantham & Ors. V. Abaykumar, reported in (2017) 5 SCC 178 the Apex Court has upheld the finding recorded by the Trial Court and First appellate and said that we do find any error of fact recorded by the three Courts but denying the decree of specific performance by considering the alternate submissions of the defendant/appellant that it is fit and proper case where the specific performance ought not to have been ordered. The Apex Court has held that if suit is decreed it would be an unfair advantage to the plaintiff and finally has held that it is inequitable to enforce the specific performance.
Finding recorded in Para 9 is reproduced below:
"9. The precedent on the subject is elucidated below:
9.1 In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son and Ors.
MANU/SC/0173/1987 : AIR 1987 SC 2328, this Court held that: (SCC P.345, para 14) "14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the Plaintiff"
-: 19:- First Appeal No.317 of 1998.
9.2 A similar view was adopted by this Court in Sardar Singh v. Smt. Krishna Devi and Anr.: (1994) 4 SCC 18:
".14. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract.
9.3 Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd, this Court held thus:
(SCC P.91, PARA 29:
"29. Performance of the contract involving some hardship on the Defendant which he did not foresee while non-performance involving no such hardship on the Plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India.
However, mere inadequacy of consideration or the mere fact that the contract is onerous to the Defendant or improvident in its nature, shall not constitute an unfair advantage to the Plaintiff over the Defendant or unforeseeable hardship on the Defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court.
9.4 These principles were followed by this Court in A.C. Arulappan v. Smt. Ahalya Naik, with the following observations: (SCC pp. 604 & 606, paras 7 & 15) "7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the
-: 20:- First Appeal No.317 of 1998.
court shall exercise such discretion. If under the terms of the contract the Plaintiff gets an unfair advantage over the Defendant, the court may not exercise its discretion in favour of the Plaintiff. So also, specific relief may not be granted if the Defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the Plaintiff.
15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court 9.5 A Bench of three Judges of this Court considered the position in Nirmala Anand v. Advent Corporation (P) Ltd. and Ors. and held thus: (SCC p.150, para 6) "6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the Plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the Plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the Defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.
-: 21:- First Appeal No.317 of 1998.
[18] In view of the above law laid down by the
apex court question would whether plaintiff is entitled for the decree of specific performance and answer would be in favour of plaintiff because the Defendants no. 6 to 8 purchased the suit property despite knowing the agreement to sell with plaintiff. The defendant no. 8 smt Puhlabai is wife of Ranglal who was party to agreement to sell with plaintiff. The defendants 1&2 remained exparty and defendant no.6 to 8 did not pleaded hardship in their written statement. The possession plaintiff over suit has not been disputed by the defendants . After considering all circumstances in totality I do not find any valid reasons for not exercising discretion in favour of plaintiff to grant the decree of specific performances to the plaintiff .
[19] That Ranglal was party to the agreement to sell (Exb.P/1) with plaintiff but he did not file the suit hence no decree of specific performance can be granted in his favour . The plaintiff is alone entitled to the get the decree. Hence this appeal is allowed the judgment and decree dated 04.04.1998 passed in Civil Suit No.112-A/96 is hereby set aside. The defendents are directed to execute the sale deed for the 1/2 of the land mention in schedule 'B' in the plaint which is in possession of the plaintiff . Decree be prepared accordingly. The suit is decreed with cost payable by the defendants .
[ VIVEK RUSIA ] JUDGE Sharma AK/*