Nirmal Singh vs Darshan Kumar @ Sudershan Kumar Through ... on 13 January, 2014

[Cites 26, Cited by 2]

Punjab-Haryana High Court

Nirmal Singh vs Darshan Kumar @ Sudershan Kumar Through ... on 13 January, 2014

RSA No.3359 of 1985 (O&M) Smt. Vidya Wati (deceased) through her LRs ...Appellants Versus Nirmal Singh and others ...Respondents (3) RSA No.2389 of 1996 (O&M) Sudesh Kumar and another ...Appellants Versus Nirmal Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

1. Whether Reporters of Local Newspapers may be allowed to see the judgment?

2. Whether to be referred to the Reporters or not?Yes

3. Whether the judgment should be reported in the Digest?

Present: Mr. Naresh Prabhakar, Advocate, for the appellants in RSA No.3359 of 1985.

Mr. Sunil Chadha, Advocate, for the appellant in RSA No.2389 of 1996 & for respondents No. 6 and 7 in RSA No.1365 of 1996. Mr. Kanwal Goel, Advocate, for the appellant in RSA No.1365 of 1996 & for respondent No.1 in RSA No.2389 of 1996 & RSA No.3359 of 1985.

Mr. R.C.Setia, Sr. Advocate with Mr. Vishal Ranjan, Advocate, for the respondents in three cases.

RAMESHWAR SINGH MALIK, J Three regular second appeals bearing RSA No.1365 of Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 2 1996 (Nirmal Singh Vs. Darshan Kumar @ Sudershan Kumar through his LRs and others), RSA No.3359 of 1985 (Smt. Vidya Wati deceased through her LRs Vs. Nirmal Singh and others) and RSA No.2389 of 1996 (Sudesh Kumar and another Vs. Nirmal Singh and others), which are between the same parties qua the same suit property, are proposed to be decided together. However, for the facility of a reference, facts are being culled out from RSA No.1365 of 1996.

To unravel the controversy between the parties, brief narration of essential facts would be required. Vide sale deed dated 16.06.1959, Smt. Vidya Wati wife of Sh. Dasondhi Ram and Darshan Kumar @ Sudesh Kumar son of Sh. Dasondhi Ram-defendant No.3, purchased the land measuring 174 Kanals 10 Marlas, in equal shares i.e. one half share each. Darshan Kumar @ Sudershan Kumar-defendant No.1, entered into an agreement to sell with Nirmal Singh plaintiff-appellant on 24.08.1981, which was signed by the parties on 26.08.1981. Sale consideration was arrived at between the parties at `1,75,000/-. Earnest money of `40,000/- was paid by plaintiff-Nirmal Singh to defendant No.1 Darshan Kumar @ Sudershan Kumar, out of which `1,000/- was paid in cash and remaining amount of `39,000/-was paid by way of bank draft. Nirmal Singh was to be put into possession as per the terms of above said agreement to sell. However, in order to clarify the terms further, another agreement was entered into between Darshan Kumar @ Sudershan Kumar and Nirmal Singh-plaintiff on 02.11.1981 signed by Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 3 the parties on 04.11.1981. Both these agreements to sell i.e. dated 24.08.1981 Exs.P-2 and P-3, were qua the land measuring 87 Kanals 5 Marlas i.e. one half share of Darshan Kumar @ Sudershan Kumar in the total land measuring 174 Kanals 10 Marlas. The last date for getting the sale deed registered was the same i.e. 15.06.1982 and the amount of earnest money was also same in both these agreements. However, Smt. Vidya Wati wife of Sh. Dasondhi Ram filed a suit for permanent injunction bearing Civil Suit No. 237 on 14.11.1981 against Nirmal Singh as defendant No.1, Sudershan Kumar-defendant No.2 and Darshan Kumar @ Sudesh Kumar- defendant No.3, seeking injunction against defendants No.1 and 2 from interfering in the cultivating possession of the plaintiff-Vidya Wati and defendant No.3 Darshan Kumar @ Sudesh Kumar.

When Darshan Kumar @ Sudershan Kumar failed to execute the sale deed in favour of Nirmal Singh pursuant to the above said agreements to sell, Nirmal Singh filed his Civil Suit No. 629 on 31.08.1982 against Darshan Kumar @ Sudershan Kumar son of Dasondhi Ram-defendant No.1, for possession by way of specific performance of above said two agreements to sell. Having been served in the suit filed by Nirmal Singh, defendant appeared before the Court on 11.01.1983 and put his signatures on the order sheet as Darshan Kumar @ Sudershan Kumar which is available on the backside of page 101 of the lower court record. When the written statement was not filed on four consecutive dates given by the learned trial court, cost was imposed on defendant-Darshan Kumar Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 4 @ Sudershan Kumar vide order dated 17.02.1983 and thereafter, he filed his written statement on 05.03.1983. On 19.05.1983, Smt. Vidya Wati and Sudesh Kumar moved an application under Order 1 Rule 10 seeking their impleadment as defendants No. 2 and 3. This application was not opposed by the counsel for the plaintiff. Accordingly, Sudesh Kumar son of Dasondhi Ram and Smt. Vidya Wati wife of Sh. Dasondhi Ram were impleaded as defendants, vide order dated 19.05.1983 passed by the learned trial court, available at the backside of page 103 of the lower court record. Amended plaint was filed and thereafter written statement was filed on behalf of defendants No.2 and 3 on 30.05.1983. Vide order dated 06.06.1983, the learned trial court directed the parties to maintain status quo regarding possession on the suit property, till the disposal of the case.

Pleaded case of plaintiff-Nirmal Singh was that vide agreement to sell dated 24.08.1981 signed by the parties on 26.08.1981 (Ex. P-2), Darshan Kumar @ Sudershan Kumar entered into an agreement for selling his 87 Kanals 5 Marlas land, along with all the rights appurtenant thereto for an amount of `1,75,000/-. Defendant Darshan Kumar @ Sudershan Kumar received an amount of earnest money of `40,000/-, out of which `1,000/- was paid in cash and `39,000/- vide draft No.302284 drawn on Punjab and Sindh Bank, Ludhiana. It was also agreed between the parties that the sale deed in favour of plaintiff shall be executed on or before 15.06.1982. It was his further pleaded case that Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 5 defendant Darshan Kumar @ Sudershan Kumar entered into another agreement dated 02.11.1981 signed by the parties on 04.11.1981 reiterating the terms of the earlier agreement for the same consideration amount. The earnest money had already been paid and the date for registration of sale deed also remained the same i.e. 15.06.1982. Defendant Darshan Kumar @ Sudershan Kumar also delivered the possession of poultry farm to the plaintiff, as well as possession of khasra numbers which were in his possession as per the details given in the plaint.

Nirmal Singh-plaintiff asserted that as advised by defendant No.1-Darshan Kumar @ Sudershan Kumar that he will get four sale deeds executed, so that the amount of each sale deed would be less than `50,000/-, plaintiff got prepared a bank draft No.011048/1/82 for `32,200/- dated 25.03.1982, for getting the first sale deed registered. Apprehending mala fide intention on the part of Darshan Kumar @ Sudershan Kumar, plaintiff got him served with a legal notice dated 07.06.1982 (Ex.P-4). Thereafter, second notice dated 11.06.1982 (Ex.P-8), was also issued as the last date for execution of sale deed was approaching which was 15.06.1982. He remained present in the office of Sub-Registrar on 15.06.1982 along with full amount of sale consideration and submitted his application dated 15.06.1982 (Ex. P-17) before the Sub Registrar who put his endorsement thereon.

He also got prepared the draft sale deed (Ex. P-18) and kept on waiting for Darshan Kumar @ Sudershan Kumar for getting Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 6 the sale deed executed, but he did not turn up. Even after that he again served Darshan Kumar @ Sudershan Kumar by way of legal notice dated 22.07.1982, requesting for getting the sale deed registered but to no avail. He throughout remained ready and willing to perform his part of the contract but since defendant turned greedy and dishonest, he did not come forward to execute the sale deed pursuant to above said two agreements to sell. Having been left with no other option, plaintiff filed the suit for possession by way of specific performance of both the above said agreements to sell.

Having been served in the suit, defendant Darshan Kumar @ Sudershan Kumar filed his written statement. Defendants No.2 and 3, namely, Sudesh Kumar and Vidya Wati, also filed their joint written statement controverting the allegations levelled by the plaintiff. It was pleaded that since earlier suit for injunction filed by Smt. Vidya Wati-defendant No.3 was already pending against plaintiff-Nirmal Singh and defendant No.1-Darshan Kumar @ Sudershan Kumar, the suit filed by Nirmal Singh was liable to be stayed. Defendant No.1-Darshan Kumar @ Sudershan Kumar denied even his ownership to the extent of half share, in the above said land measuring 174 Kanals 10 Marlas and averred that both the above said agreements to sell were entered into, as a result of misrepresentation at the instance of the plaintiff. In his preliminary objection No.4, he alleged that the agreements to sell were fabricated documents and falsely prepared by the plaintiff. All the three defendants tried to support each other. Defendant No.1 Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 7 Darshan Kumar @ Sudershan Kumar signed his written statement only as Sudershan Kumar Sood whereas he had signed both the above said agreements to sell as Darshan Kumar @ Sudershan Kumar. Plaintiff filed his replication.

On completion of the pleadings, the learned trial court framed the following issues:-

1. Whether the defendant agreed to sell the suit land in favour of the plaintiff for `1,75,000/-? OPP.

2. If issue No.1 is proved whether the agreement was without consideration? OPP.

3. Whether the plaintiff was ready and willing to perform his part of the contract? OPP.

4. Whether the defendant is owner of the land in dispute? OPP.

5. Whether the agreement in dispute is the result of mis- representation? OPP.

6. Whether the defendants No.2 &3 are joint owners in possession of the suit property? OPP. 2&3.

7. If issue No.6 is proved whether the agreements in dispute are illegal? OPP 2 &3.

7A. Whether the name of defendant No.1 is only Sudershan Kumar and not Darshan Kumar @ Sudershan Kumar as pleaded by the plaintiff. OPP. 7B. Whether the defendant No.2 is Darshan Kumar @ Sudershan Kumar and not Sudesh Kumar? OPP 7C. Whether the suit is bad for non joinder of necessary parties? Opp.

8. Relief.

With a view to substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 8 hearing the learned counsel for the parties and going through the evidence brought on record, the learned trial court vide its self- contained judgment and decree dated 27.01.1989 decreed the suit of the plaintiff. It is pertinent to note here that during the pendency of this suit for possession by way of specific performance filed by plaintiff-Nirmal Singh, the above said Civil Suit No.237 of 1981 filed by Smt. Vidya Wati wife of Sh. Dasondhi Ram for permanent injunction had been dismissed by the learned trial court vide its judgment and decree dated 13.01.1984. Her Civil Appeal No.58/200 of 1984 had also been dismissed by the learned Additional District Judge, Ludhiana vide his judgment and decree dated 04.09.1985, against which she filed the above said RSA No.3359 of 1985.

During the pendency of suit for possession by way of specific performance filed by plaintiff-appellant Nirmal Singh, Darshan Kumar @ Sudershan Kumar-defendant No.1 died and his 5 legal representatives were brought on record. Similarly, Smt. Vidya Wati also died during the pendency of the suit and her legal representatives were also impleaded as recorded by the learned trial court in para 24 of the judgment dated 27.01.1989. The operative paragraph of the judgment dated 27.01.1989 reads as under:-

Relief In view of my findings already given on above issues and in view of the relief claimed in the heading of the plaint and prayer clause of the plaint the suit of the plaintiff for possession by specific performance of the ½ share of land in dispute as fully stated in hading and prayer clause Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 9 of the plaint is hereby decreed in favour of the plaintiff and against the defendants with costs as per agreements in question and plaintiff shall be liable to pay consideration amount of `1,35,000/- to the LRs of deceased defendant No.1 Darshan Kumar @ Sudershan Kumar and also liable to pay the sale deed expenses.

Although the legal representatives of deceased defendant No.1-Darshan Kumar @ Sudershan Kumar would have been the real aggrieved persons against the above said judgment and decree dated 27.01.1989, yet they chose not to challenge this judgment and decree dated 27.01.1989 by filing their appeal. However, the appeal was filed only by defendants No.2 and 3, namely, Sudesh Kumar and Vidya Wati. The learned lower appellate court vide impugned judgment and decree dated 13.02.1996 partly accepted the appeal, denied the main relief of specific performance to the plaintiff-Nirmal Singh and granted only the relief of recovery of `40,000/- along with interest @ 12%.

Both the parties felt aggrieved against the judgment dated 13.02.1996. Plaintiff-Nirmal Singh filed RSA No. 1365 of 1996 whereas RSA No.2389 of 1996 was filed by Sudesh Kumar @ Darshan Kumar and Smt. Vijay Sood legal representative of Smt. Vidya Wati. The above said RSA No.3359 of 1985 filed by Smt. Vidya Wati came to be admitted for regular hearing by this Court vide order dated 29.01.1986, directing the parties to maintain status quo.

RSA No.1365 of 1996 filed by Nirmal Singh plaintiff-appellant was admitted and ordered to be heard with above said RSA No.3359 of Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 10 1985 by this court, vide order dated 17.01.1997. Similarly, RSA No.2389 of 1996 filed by Sudesh Kumar and another was admitted and ordered to be heard with RSA No.1365 of 1996, vide order dated 17.01.1997. That is how, this Court is seized of the matter.

Learned counsel for the plaintiff-appellant submits that learned trial court rightly decreed the suit appreciating the peculiar facts as well as documentary and oral evidence led by the parties, in the correct perspective. He submits that it was Darshan Kumar @ Sudershan Kumar who was true owner and was in exclusive possession over the suit land measuring 87 Kanals 5 Marlas including the poultry farm. Sudesh Kumar defendant-respondent was nowhere in picture. Vide sale deed dated 16.06.1959 mark P-X, the land was purchased jointly in the names of Smt. Vidya Wati and Darshan Kumar who was also known as Sudershan Kumar. In the revenue record including jamabandi Ex.DW-3/A and DW-3/B, the land was recorded in the names of Darshan Kumar and Vidya Wati. Since Darshan Kumar @ Sudershan Kumar was owner in exclusive possession on the suit land measuring 87 Kanals 5 Marlas, which was half share of total land measuring 174 Kanals 10 Marlas, vide sale deed dated 16.06.1959, he was very much competent to enter into an agreement to sell his absolute ownership with possession. He entered into an agreement dated 24.08.1981 signed by the parties on 26.08.1981 with Nirmal Singh-plaintiff for a sale consideration of `1,75,000/-. This document was exhibited P-2. The earnest money was duly received by defendant Darshan Kumar @ Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 11 Sudershan Kumar out of which `1,000/- was received by cash and remaining amount of `39,000/- was received by way of bank draft. Parties agreed to get the sale deed executed on or before 15.06.1982.

The parties to the agreement reiterated their intention, reconfirming the above said agreement to sell by way of another agreement dated 02.11.1981 signed by the parties on 04.11.1981 (Ex.P-3). The amount of sale consideration remained the same. Earnest money of `40,000/- had already been received at the time of first agreement (Ex.P-2) and the date for execution of sale deed also remained the same i.e. 15.06.1982. Plaintiff-Nirmal Singh was put in possession. Thereafter, Khasra girdawris to which the presumption of truth attaches also show him in continuous possession. Stand taken by defendant No.1-Darshan Kumar @ Sudershan Kumar in paras 3 and 4 of his preliminary objections and paras 2 and 3 on merits of his written statement was clearly self-contradictory. All the 3 defendants colluded with each other with a view to defeat the genuine claim of the plaintiff. Both the above said agreements were signed by defendant No.1 as Darshan Kumar @ Sudershan Kumar. Witnesses were also the same.

He also submits that plaintiff remained throughout ready and willing to perform his part of contract. He sent telegrams and legal notice to defendant No.1 vide Ex.P-4. The second notice was also sent vide Ex.P-8. Before filing the civil suit, another notice was served on defendant No.1 vide Ex. P-13. He remained present Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 12 before the Sub Registrar on 15.06.1982 along with the remaining sale consideration including the bank draft and submitted his application before the Sub Registrar vide Ex. P-17 which also appears the endorsement made by the Sub Registrar. Plaintiff also got prepared draft sale deed (Ex. P-18) wherein it is mentioned that demand draft No.011048/1/82 dated 25.03.1982 was with the plaintiff. He submits that all this overwhelming documentary evidence shows that plaintiff was very much ready and willing to get the sale deed registered but it was only defendant No.1 who did not turn up.

Learned counsel for the plaintiff-appellant would next contend that the conduct of the defendants-respondents would show that they colluded with each other to such an extent that defendant No.1 even denied his own ownership. However, the learned trial court recorded cogent findings and rightly decreed the suit of the plaintiff. About the impugned judgment, learned counsel for the plaintiff- appellant would contend that the learned lower appellate court proceeded on a misconceived approach while going contrary to the pleadings and evidence available on record. He submits that Smt. Vidya Wati and Sudesh Kumar had no locus standi to file the appeal before the learned lower appellate court. It was only defendant No.1 or his legal representatives who could have felt aggrieved against the judgment and decree passed by the learned trial court but they chosen not to file any appeal. In such a situation, the learned lower appellate court ought to have dismissed the appeal filed by Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 13 defendants No.2 and 3 who were not party to both the agreements to sell. To buttress his contentions, he relies upon the following judgments:-

1.Sri. V. Dhayalan Vs. Sri Muniswamy, 2010 (2) ICC 248

2. Nirmala Bala Ghose and another Vs. Balai Chand Ghose, 1965 AIR (SC) 1874

3. K.M.Madhavakrishnan Vs. S.R.Swami and another, 1995 AIR (Madras) 318

4. Rachhpal Singh and others Vs. Pushpa and others, 2010 (8) R.C.R. (Civil) 1988

5. Babu Ram @ Durga Prasad Vs. Indra Pal Singh, 1998 (4) R.C.R. (Civil) 1

6. M/S J.P.Builders and anothers Vs. A. Ramadas Rao and another, 2011 (1) R.C.R. (Civil) 604 Finally, learned counsel for the plaintiff-appellant prays for setting aside the impugned judgment by allowing the instant appeal.

Per contra, learned senior counsel for the legal representatives of Darshan Kumar @ Sudershan Kumar-defendant No.1 submits that the plaintiff filed the suit only qua share and no specific numbers as per Ex.P-2. He further submits that in view of second agreement Ex.P-3, the first agreement to sell Ex.P-2 was not enforceable. However, learned senior counsel fairly states that it was Darshan Kumar who was known as Sudershan Kumar also. Sudesh Kumar was not Sudershan Kumar. He next contended that although legal representatives of defendant No.1-Darshan Kumar @ Sudershan Kumar did not file any appeal against the judgment of the learned trial court decreeing the suit of plaintiff-Nirmal Singh, yet they Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 14 were entitled to defend the judgment passed by learned lower appellate court which was good in law. In support of his contentions, he relies upon the following judgments:-

V.Muthusami (dead) by LRs. Vs. Angammal, 2002 (2) RCR (civil) 329 The Indian Bank, Madras Vs.S.Krishnaswamy and others, AIR 1990 Madras 115 The Union of India Vs. Kishorilal Gupta and Bros. AIR 1959 Supreme Court 1362 (1) Pujari Narassappa and another Vs. Shaik Hazrat and others AIR 1960 Mysore 59 (V 47 C 14) Messrs Shiv Narain and Sons Vs. Commissioner of Income-tax, Punjab AIR 1935, Lahore 896 Concluding his arguments, learned senior counsel submits that keeping in view the hardship of legal representatives of defendant No.1-Darshan Kumar @ Sudershan Kumar, plaintiff-

appellant Nirmal Singh was not entitled for the relief of specific performance and it was rightly denied by the learned lower appellate court because of which impugned judgment deserves to be upheld.

He prays for dismissal of the appeal.

Similarly, supporting the arguments raised by learned senior counsel for the legal representatives of defendant No.1 Darshan Kumar @ Sudershan Kumar, learned counsel for defendants No.2 and 3, namely, Sudesh Kumar and Smt. Vidya Wati, vehemently contended that the plaintiff did not choose as to which agreement out of the two, he was seeking to be enforced by way of specific performance. He submits that there was material difference Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 15 between both the agreements. Plaintiff could not prove his possession. Relying upon the documents Ex. DW-14/39 (affidavit dated 22.03.1983), Ex. P-4 (legal notice), Ex. P-8 (legal notice), Ex.

P-17 (application before Sub Registrar), Ex. P-18 (draft sale deed) and Ex. DW-14/42 ( a copy of plaint), he submits that the plaintiff failed to prove his case and the relief of specific performance was rightly denied by the learned lower appellate court. He next contended that the suit land was never partitioned between the co-

sharers and defendant No.1 was not competent to enter into an agreement for the poultry farm which was not his ownership. He prays for dismissal of the appeal.

Learned counsel for plaintiff-appellant (Smt. Vidya Wati) in RSA No. 3359 of 1985 submits that both the learned courts below have fell into serious error of law while dismissing her suit for injunction. He submits that it was Sudesh Kumar who was also known as Darshan Kumar. He never entered into an agreement with Nirmal Singh. The person who entered into an agreement with Nirmal Singh was only Sudershan Kumar and he was never known by the name of Darshan Kumar. There was sufficient evidence on record to decree the suit but the learned courts below failed to appreciate the same in the right perspective. He prays for setting aside the impugned judgments and decrees, passed by both the learned courts below dismissing the suit for injunction filed by Smt. Vidya Wati, by allowing her appeal.

Having heard the learned counsel for the parties at Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 16 considerable length, after careful perusal of record of the cases and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the cases, evidence available on record and over all conduct of the parties, RSA No.1365 of 1996 filed by Nirmal Singh plaintiff-appellant against the judgment of reversal deserves to be allowed, whereas other two appeals bearing RSA No.3359 of 1985 (Smt. Vidya Wati deceased through her LRs Vs. Nirmal Singh and others) and RSA No.2389 of 1996 (Sudesh Kumar and another Vs. Nirmal Singh and others) are liable to be dismissed. To say so, reasons are more than one, which are being recorded hereinafter.

Following are the substantial questions of law which arise in RSA No.1365 of 1996:-

1. Whether the learned lower appellate court has misread, misconstrued and misinterpreted the pleadings as well as evidence available on record while passing the impugned judgment of reversal denying the relief of specific performance to the plaintiff-appellant Nirmal Singh?

2. Whether the agreements to sell Exs.P-2 and P-3 were duly executed by defendant No.1-Darshan Kumar @ Sudershan Kumar being competent to do so putting plaintiff Nirmal Singh in exclusive possession over the suit property already partitioned by mutual partition and the same have been duly proved entitling the plaintiff-

appellant Nirmal Singh for specific performance thereof as he throughout remained ready and willing to perform his part of the contract.

Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 17

3. Whether it was established on record by way of cogent evidence that all the three defendants proceeded on their common mala fide approach and colluded with each other, turning dishonest and greedy so as to defeat the genuine claim of plaintiff-Nirmal Singh, because it was not a case of novation of contract as envisaged under Section 62 of the Indian Contract Act, 1872.

Firstly, a close perusal of the pleadings of the parties would leave no room for doubt that plaintiff-appellant Nirmal Singh took very specific and categoric averments in his pleadings for seeking specific performance of both the agreements to sell dated 24.08.1981 signed on 26.08.1981 and 02.11.1981 signed on 04.11.1981 which are Exs.P-2 and P-3 respectively, qua land measuring 87 Kanals 5 Marlas. The arguments raised by the learned counsel for the respondent that the plaintiff did not specifically choose one agreement for specific performance because he was not seeking specific performance of both the agreements, has been found to be without any force and is liable to be rejected. It is not only the specific averments taken in the plaint but even in the prayer clause it was explicitly made clear by the plaintiff that he was seeking specific performance of both these agreements. Similarly, the argument raised by learned senior counsel that in view of second agreement to sell Ex.P-3, the first agreement to sell Ex.P-2 had become unenforceable because of novation of contract, has also been found to be without any merit.

Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 18

In fact, reading of both the agreements to sell Exs.P-2 and P-3 would make it crystal clear that the property intended to be sold was the same. Parties to both the agreements were the same. Attesting witnesses were the same. Terms and conditions of both the agreements were the same. There was no change in the amount of sale consideration, nor there was any change in the amount of earnest money or mode of payment thereof. Time and date for registration of sale deed also remained the same. Second agreement to sell Ex. P-3 was entered by a mutual consent of both the parties, only with a view to clarify that the vendor was intending to hand over the exclusive possession of the suit property to the vendee-plaintiff Nirmal Singh.

Above all, intention of the parties was clear. Defendant No.1-Darshan Kumar signed on both the agreements to sell Ex.P-2 as well as Ex.P-3 as Darshan Kumar @ Sudershan Kumar. Out of the total amount of earnest money of `40,000/-, he received `1,000/- in cash and `39,000/- by way of bank draft No.302284 drawn on Punjab and Sindh Bank, Ludhiana. Having said that, this Court feels no hesitation to held that learned lower appellate court misread, misconstrued and misunderstood the pleadings of the parties and also the overwhelming evidence available on record, duly proving the entire case in favour of the appellant-plaintiff Nirmal Singh for granting him the relief of specific performance. Thus, the impugned judgment dated 13.02.1996 rendered by the learned Additional District Judge, denying the relief of specific performance to plaintiff- Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 19 appellant, cannot be sustained. It has also come on record and was not even disputed by the learned senior counsel that vide sale deed dated 16.06.1959 (Mark P-X), land measuring 174 Kanals 10 Marlas was purchased jointly, in the names of Smt. Vidya Wati and Darshan Kumar to the extent of half share each.

It has been amply proved on record by numerous documents including both the agreements to sell Exs. P-2 and P-3 that Darshan Kumar-defendant No.1 was also known as Sudershan Kumar. It has been fairly stated by learned Senior counsel that it was Darshan Kumar who was known as Sudershan Kumar and Sudesh Kumar was not known as Darshan Kumar and rightly so because it has been so recorded by the learned Courts below. In the jamabandis Ex. DW-3/A and Ex. DW-3/B, it was Darshan Kumar and Smt. Vidya Wati who were recorded as owners and name of Sudesh Kumar was nowhere mentioned. Similarly, in Ex.P-1 jamabandi for the year 1978-79 the entire land measuring 174 Kanals 10 Marlas was recorded in the ownership of Smt. Vidya Wati and Darshan Kumar son of Dasondhi Ram.

Further, Sudesh Kumar has himself admitted in his statement that till matriculation he was known as Sudesh Kumar. He further stated that the entire land measuring 174 Kanals 10 Marlas was purchased by Dasondhi Ram-his father, in favour of his wife Vidya Wati and son Darshan Kumar. Sudesh Kumar-defendant was hardly 7-8 years old at that point of time, as per his own statement. From the evidence produced in the form of Ex.DW-4/3, DW4/10 and Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 20 numerous other documents, it is clear that Sudesh Kumar tried to impersonate his brother Darshan Kumar @ Sudershan Kumar claiming himself as Sudesh Kumar @ Darshan Kumar. He took the loan from the bank also mortgaging the land claiming himself to be Darshan Kumar. However, when defendant No.1-Darshan Kumar @ Sudershan Kumar came to know that his brother Sudesh Kumar has misused his name, he felt defrauded and made complaint against Sudesh Kumar vide Exs.P-28 and P-29, which were notices sent to the Registrar and Assistant Registrar on 10.05.1979 and 12.12.1979 respectively.

It was complaint by Darshan Kumar @ Sudershan Kumar that his brother Sudesh Kumar had used his name illegally and got the loan from the bank. He also wrote another letter Ex. P-27 dated 10.05.1979 to the same effect addressing it to the Divisional Soil Conservation Officer, Ludhiana. Having been caught at the wrong foot, Sudesh Kumar hurriedly returned the loan because of which no further inquiry was conducted against him. In this view of the matter, it is clear from the documentary as well as oral evidence brought on record and can be safely held that Sudesh Kumar was never known as Darshan Kumar.

There was sufficient and cogent evidence on record to show that it was Darshan Kumar who was known as Sudershan Kumar as well. As noticed above, he himself signed both the agreements to sell Exs.P-2 and P-3 as Darshan Kumar @ Sudershan Kumar. In the present suit also, he signed the order Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 21 sheet before the learned trial court on 11.01.1983 as Darshan Kumar @ Sudershan Kumar which is available on the backside of page 101 of the lower court record. Even earlier, Darshan Kumar along with his mother Smt. Vidya Wati executed a power of attorney on 08.06.1962 (Ex.P-20) in favour of his father Sh. Dasondhi Ram putting his signatures as Sudershan Kumar @ Darshan Kumar.

Again, he opened his bank account on 31.08.1981, vide Ex. P-25 as Darshan Kumar in Punjab and Sindh Bank, Nabha where he was employed as Darshan Kumar. He deposited the bank draft of `39,000/- in his bank account which was given to him by the plaintiff-Nirmal Singh as earnest money. Thereafter, he issued cheque Ex.P-23 from that very bank account in favour of his wife Smt. Jeevan Asha on 30.09.1981. As noticed above, he asserted his name as Darshan Kumar @ Sudershan Kumar, while complaining to the different authorities against his brother Sudesh Kumar. Thus, it is clear that up to 11.01.1983 when he put his signatures on the judicial file of the learned trial court as Darshan Kumar @ Sudershan Kumar, he had been consistently claiming himself to be Darshan Kumar @ Sudershan Kumar.

However, after turning dishonest and greedy, he abruptly changed his stand on 05.03.1983, when he filed his written statement in order to help his mother Vidya Wati and brother Sudesh Kumar. It was so done in furtherance of their common mala fide intention and inter-se collusion so as to defeat the genuine claim of plaintiff-Nirmal Singh. For the first time, he put his signatures on the written Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 22 statement as Sudershan Kumar Sood, so as to help his brother Sudesh Kumar to claim himself as Sudesh Kumar @ Darshan Kumar, thereby claiming ownership of the suit property. This was the reason that Darshan Kumar @ Sudershan Kumar denied his ownership qua the suit property. He had gone even up to this extent to say that both the agreements to sell were result of misrepresentation, fabricated documents and falsely prepared by the plaintiff, as it is clear from paras 3 and 4 of the preliminary objections taken in his written statement.

However, defendant No.1 Darshan Kumar @ Sudershan Kumar contradicted himself while taking the averments in para 2 of the written statement on merits. Thus, the stand taken by Darshan Kumar @ Sudershan Kumar in paras 2, 3 and 4 of preliminary objections of his written statement and paras 2 and 3 on merits was self-contradictory. This serious contradition clearly establish on record the overall conduct of the defendants who were proceeding on their common mala fide intention having no respect for law as well. They took everybody for granted including the Court while changing their stand diametrically, frequently and conveniently. Having gone through the record carefully, this Court has found that the overall conduct of the respondents-defendants was totally uncalled for, unwarranted and liable to be deprecated.

As discussed here-in-above, present one was not a case of novation of contract as envisaged under Section 62 of the Indian Contract Act, 1872. Parties to the first agreement to sell Ex. P-2 Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 23 never agreed to substitute the same by way of second agreement Ex.P-3. To avoid repetition and for the sake of brevity, it is held that a combined reading of both the agreements Exs.P-2 and P-3, pleadings of the parties and evidence brought on record, leaves no scope for doubt in this regard that it was not a case of novation of first agreement Ex. P-2 by second agreement Ex.P-3, by any stretch of imagination. The view taken by this Court finds support from the judgment of the Hon'ble Supreme Court in Babu Ram's case (supra) and para 11 thereof, which aptly applies to the facts of present case, reads as under:-

"Novation under Section 62 of the Contract Act requires a clear plea, issue and evidence. Such a question cannot be raised or accepted under Section 100 CPC for the first time in Second Appeal. There was no such issue in the courts below and the defendant's evidence was contrary to such a theory."

The Division Bench judgment of Madras High Court in S.R.Swami's case (supra) and judgment of this Court in Rachhpal Singh's case (supra) are also applicable herein. Para 31 of the Division Bench judgment in S.R.Swami's case (supra) reads as under:-

"Section 62 of the Contract Act has no application, in our view, to the facts of the case. For application of the said section, both parties should agree to substitute a new contract or to rescind or alter it. It is nobody's case that a new contract was substituted in the place of the original contract. On the other hand, the respondents Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 24 stick to the suit agreement Ex. A-4 and claim relief only in accordance with the terms of the suit agreement. In the circumstances, we are of the view, that there is no novation of the suit agreement at all. Further, neither the Ist defendant/Paramayammal nor the 3rd defendant/appellant/Madhavakrishnan, who filed an additional written statement after the commencement of the trial, has pleaded novation. No evidence also has been let in to prove novation of the suit agreement. However, the appellant all along has been taking the stand that the suit agreement is not enforceable. When no plea of novation is raised, we are of the view, that the appellant cannot be allowed to raise such a plea at the stage of appeal."

In the present case, neither the defendants have pleaded anything in this regard nor they led any evidence, whatsoever. Thus, the arguments by the learned counsel for the respondents in this regard for the first time before this Court are contrary to the pleadings as well as evidence of the parties and the same cannot be accepted.

Defendant No.1-Darshan Kumar @ Sudershan Kumar, although pleaded that the agreements to sell Exs.P-2 and P-3 were fabricated documents and were falsely prepared by the plaintiff, yet the defendants produced no evidence to prove this allegation. In view of the above, the answer to the third substantial question of law is and has to be in favour of the plaintiff-appellant Nirmal Singh and against the defendants-respondents.

Coming to the second substantial question of law, execution of both the agreements to sell Exs.P-2 and P-3 were not Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 25 denied by Darshan Kumar @ Sudershan Kumar. The plaintiff brought cogent and sufficient evidence on record to prove the execution of both these agreements. In fact, execution of the agreements was hardly in dispute. As noticed above, Darshan Kumar-defendant No.1 alleged that the documents were fabricated and were based on misrepresentation but neither the defendants produced in evidence in this regard nor Darshan Kumar @ Sudershan Kumar-defendant No.1 denied his signatures on both these material documents. Further, defendant No.1 being the true owner of the suit property, was very much competent to enter into agreements to sell Exs.P-2 and P-3. Thus, it is held that both the agreements to sell Exs.P-2 and P-3 were duly proved to have been executed by Darshan Kumar @ Sudershan Kumar who was competent to execute the same.

After execution of both the agreements to sell Exs.P-2 and P-3, plaintiff-Nirmal Singh was put in exclusive possession on specific khasra numbers. His possession on the suit property has been found established by both the learned courts below, in the suit for injunction filed by Smt. Vidya Wati, by recording following cogent findings:-

"It is further argued by the learned counsel for the appellants that only one half share of the said land in alleged to have agreed to sell by defendant No.2. So he could not gave the possession of the specific khasra Nos. First the agreement was written on 24.08.1981 as apparent from the document DW.4/E, according to that Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 26 one half share of the land measuring 174 Kanals 10 Marlas was agreed to be sell by defendant No.2 in favour of defendant No.1 Then another agreement was written on 02.11.1981 the copy of which is Ex. DW/4/F by which he has sold the specific khasra Nos. When defendant No.2 was in possession of specific Khasra Nos. So he can delivered the possession of the specific Khasra Nos. and can sell the same. Moreover there is version of defendant No.2 that partition had taken place between Vidya Wati and Darshan Kumar @ Sudershan Kumar and i.e. from the evidence of the plaintiff that plaintiff and defendant No.3 had hypothecated same portion of the disputed land with land mortgaged Bank, Ludhiana and evidence has been led that defendant No.3 has since redeemed the land hypothecated by him. It is further in evidence that plaintiff is still to get the land redeemed hypothecated by her. This fact being contention of the plaintiff and defendant No.3 that dispute land was never partitioned. It is obvious that defendant No.3 could not have hypothecated specific portion of the disputed land with the land mortgaged Bank, Ludhiana unless same has been partitioned so it is proved that defendant No.2 was in possession of the one half share of the disputed land measuring 87 Kanals and 3 Marlas on the doing of executing the agreement to sell dated 26.08.1981 and delivered actual possession of suit land to defendant No.1."

Regarding the mutual partition between Smt. Vidya Wati and defendant No.1-Darshan Kumar @ Sudershan Kumar, learned Additional District Judge, Ludhiana, while dismissing the first appeal of Smt. Vidya Wati, in her suit for permanent injunction, strongly Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 27 observed in para 7 of the judgment dated 04.09.1985, reproduced above.

Further, numerous revenue documents also go to show that after mutual partition, Darshan Kumar @ Sudershan Kumar- defendant No.1 was in exclusive possession. This was the reason that Smt. Vidya Wati and Darshan Kumar @ Sudershan Kumar had been mortgaging their specific numbers to the bank for securing loan. It was so proved by DW-9 Paramjit Singh, Agricultural Sub Inspector, as well.

Under these circumstances, the irresistible conclusion is that both the co-sharers, to the extent of one half share each, in the joint land measuring 174 Kanals 10 Marlas, have mutually partitioned their share and only thereafter, they mortgaged the specific khasra numbers under their exclusive ownership and possession to the banks for securing loans. Whereas defendant No.1 Darshan Kumar @ Sudershan Kumar had redeemed his land, Smt. Vidya Wati was yet to get the land redeemed hypothecated by her with the bank. Once the vendor Darshan Kumar @ Sudershan Kumar was already in exclusive possession pursuant to the mutual partition, he was very much competent to put his vendee Nirmal Singh-plaintiff in the exclusive possession of the suit property intended to be sold. That is what was done by the vendor Darshan Kumar and vendee-Nirmal Singh. Thus, it has been duly established on record that the suit land had already become the exclusive ownership of Darshan Kumar, after the mutual partition and he rightly delivered the exclusive Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 28 possession thereof to Nirmal Singh-plaintiff. The arguments raised by learned senior counsel to the contrary have been found without any merit and the same cannot be accepted.

Further, Madanjeet Singh Clerk, land mortgage primary bank, Ludhiana, appeared as DW-3 and Vikramjeet Singh, Land Valuation Officer, Land Mortgage Bank, Jagraon, appeared as DW-4. Paramjeet Singh Agricultural Sub Inspector, appeared as DW-9. DW3 and DW-4 produced before the Court, the relevant record of the bank, regarding forwarding the loan to Smt. Vidyawati and Darshan Kumar @ Sudershan Kumar. Pursuant to their mutual partition, it was acted upon by both.

Consequently, both of them mortgaged their separate and specific khasra numbers, which had come to their respective shares, with the bank for securing the loan for the purpose of laying down underground pipes. Numerous documents were proved by these abovesaid witnesses including the loan applications. Ex.DW4/1 to Ex.DW4/10 were the documents proved by DW-4-Vikramjeet Singh, Land Valuation Officer. Similarly, Paramjeet Singh-DW-9 corroborated the above said documentary evidence. In fact, there was overwhelming documentary evidence available on record. Defendant No.2 appeared as DW-14 and produced on record documents Ex.DW-14/1 to EX.DW14/50. A combined reading of Ex.P-1 to Ex.P-21 produced by the plaintiff-appellant as well as the above said documentary evidence produced by the defendants, would make it abundantly clear that the suit land after its mutual Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 29 partition had come to the share of defendant Darshan Kumar @ Sudarshan Kumar.

Mutual partition was acted upon by both the parties, thereby accepting the separation of their shares and exclusive possession on their respective shares. It is neither unknown to law or practice that family partition or a mutual partition is an accepted form and method of partition. Only because implementation of family partition is not recorded, as per Section 123 of the Punjab Land Revenue Act, 1887 (Act of 1887 for short), in the revenue record or affirmed by the competent revenue officer, such a family partition or private partition will not be rendered redundant. It is so said because function of the revenue officer under Section 123 of the 1887 Act is only that of an affirmation of partition. If the mutual partition or family partition is not formally affirmed by the competent revenue authority under Section 123 of the Act of 1887, the parties to the partition will not be relegated to their pre partition status. Such a family partition or private partition can also be proved by oral as well as documentary evidence.

In the present case, this material fact regarding private partition has, in fact, not been denied or disproved by the defendants. It has been found that after the mutual partition, parties had been enjoying their exclusive and separate possession. Consequently, defendants namely Smt. Vidyawati as well as Darshan Kumar @ Sudershan Kumar secured the agricultural loan from the banks by mortgaging their specific khasra numbers in their exclusive Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 30 possession. This fact was based on documentary evidence and clearly shows that parties have arrived at private partition, accepted it and acted upon the same.

It is also pertinent to note here that in the Act of 1887, there is no such provision which may entail any penal consequences if the private partition is not got recorded in the revenue record. Either of the party would be free to approach the competent revenue authority for seeking the affirmation of their private partition. However, even if none of the party approaches the competent revenue officer for affirmation of the private partition in the relevant revenue record, such non-affirmance of private partition in the revenue record will not render the private partition as nugatory, because the provision of Section 123 of the 1887 Act is only a directory provision. In view of what has been discussed hereinabove, it is held that, as a matter of fact, the private partition was already effected between the parties and the same had been acted upon also, because of which defendant Darshan Kumar @ Sudershan Kumar was competent to put the plaintiff-Nirmal Singh in exclusive possession on the specific khasra numbers. That is what he has actually done.

The above said view taken by this Court also finds support from the judgment of Hon'ble Supreme Court in case Baleshwar Tewari (dead) by LRs. and others Vs. Sheo Jatan Tiwary and others 1997 (5) SCC 112 and judgments of this Court in cases Mohan Singh Vs. Lachhman Singh 1993 (1) PLR 643, Bhagwan Ram Vs. Brij Lal 2000 (2) RCR (Civil) 349 and Ajmer Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 31 Singh Vs. Dharam Singh 2006 (2) RCR (civil) 541. The Hon'ble Supreme Court held that entry in the revenue record was not of much importance. It was further held so long as the possession of tiller of the soil is not disturbed by due process and course of law, he would be least concerned with entries.

The above said observations made by the Hon'ble Supreme Court were followed by this Court in para 17 and 18 of Ajmer Singh's case (supra) as under:-

"In Baleshwar Tewari (dead) by LRs and others Vs. Sheo jatan Tiwari and others, (1997) 5 SCC 112, Supreme Court observed to the following effect:-

"... Entries in Revenue records is the paradise of the patwari and the tiller of the soil is rarely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries. It is common knowledge in rural India that a raiyat always regards the land he ploughs as his dominion and generally obeys, with moral fibre the command of records is a camouflage to defeat just and legal right or claim and interest of the raiyat, the tiller of the soil on whom the Act confers title to the land he tills".

"In view of the above binding precedents, it is apparent that the revenue record by itself neither create or extinguish titled. Since co-owners by mutual consent have entered into separate portions of land and are in the enjoyment of their respect portions, merely the said private partition has not been formally affirmed will not relegate the parties to pre-partition status. The role of the revenue officer in Section 123 of the Act is that of "affirmation" of partition. The said affirmation is subject to verification of the factum of partition only. The inquiry in terms of sub-section (2) of Section 123 of the Act is Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 32 restricted to the effect to point out that, in fact, partition has been made. Therefore, non affirmation of partition by the revenue officer will not render a private partition redundant but such affirmation will only determine the rights of an owner in respect of their obligation to pay land revenue to the State in terms of the provisions of the Act."

The issue of possession was also a hotly contested issue between the parties. Defendants tried to show that actual possession was not handed over to plaintiff-Nirmal Singh and they continued in possession. Both the lower courts recorded their cogent and concurrent findings of facts in this regard, while dismissing the suit for injunction filed by Smt. Vidya Wati. In fact, this was another trick of the defendants to frustrate the rightful claim of plaintiff-Nirmal Singh but the defendants failed in this regard. Firstly, there was a clear recital in the agreement to sell itself that Darshan Kumar has put Nirmal Singh in possession over the suit property. Thereafter, this material fact came to be recorded in the relevant revenue record including the khasra girdawaris (Ex.P-45) and presumption of truth attaches thereto. This revenue record speaks volumes in favour of Nirmal Singh-plaintiff.

Further, Nirmal Singh-plaintiff prosecuted Sudesh Kumar defendant, his father Dasondhi Ram and one Bahadur under Sections 440/427/34 IPC for having interfered in his possession and causing damage to his standing crops. They were convicted by the learned court of competent jurisdiction vide judgment Ex.P-44. Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 33 However, their conviction was set aside by the appellate court. Sudesh Kumar-defendant and his father Dasondhi Ram also filed complaint against Nirmal Singh-plaintiff and one Malkiat Singh in this regard. They were tried under Sections 325/324/336/452 IPC but they were acquitted by the learned trial court vide judgment Ex.P-34. Criminal proceedings apart, sufficient and cogent findings was available on the record to establish that plaintiff-Nirmal Singh was put in possession at the time of execution to agreements to sell and thereafter, he remained in physical possession over the suit land.

So far as the issue of readiness and willingness of plaintiff-Nirmal Singh to perform his part of contract was concerned, it was his specifically pleaded and duly proved case that as mutually settled between him and Darshan Kumar-defendant No.1; the four sale deeds were to be executed each below `50,000/-. Accordingly, for getting the first sale deed executed he got prepared the bank draft bearing No.011048/1/82 dated 25.03.1982. Sent telegrams followed by detailed notice dated 07.06.1982 Ex.P-4, available at page 259 of the lower court record. Second notice was issued on 11.06.1982 Ex. P-28, as the last date for execution of sale deed was approaching on 15.06.1982.

Thereafter, on 15.06.1982 he moved an application before the Sub Registrar vide Ex.P-17. Endorsement on Ex.P-17 was made by the Sub Registrar and this document is available at page 277 of lower court record. He also got prepared the draft sale deed Ex.P-18 wherein the above said bank draft dated 25.03.1982 is Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 34 specifically mentioned. It was further pleaded and proved case of the plaintiff that he remained present in the office of Sub Registrar on 15.06.1982 along with the remaining amount of sale consideration, however, defendant No.1-Darshan Kumar did not turn up. Thereafter, before filing the present suit for specific performance on 31.08.1982, plaintiff again issued a legal notice dated 22.07.1982 Ex.P-13 calling upon Darshan Kumar-defendant No.1, for execution of the sale deed.

Relying upon and rightly appreciating the above said cogent and convincing evidence led by the plaintiff-Nirmal Singh, learned trial court recorded positive findings in his favour decreeing his suit holding:-

1. Darshan Kumar @ defendant No.1 was also known as Sudershan Kumar and was competent to execute the agreements to sell;

2. There was a collusion amongst all the three defendants;

3. Plaintiff-Nirmal Singh was in possession of the suit property on the basis of evidence brought on record including khasra girdawris;

4. Plaintiff was found ready and willing to perform his part of the contract; and

5. Agreements to sell were duly proved.

In view of the foregoing discussion, it was clearly established on record that plaintiff was throughout ready and willing to perform his part of the contract and he was rightly held entitled by the learned trial court for the relief of specific performance decreeing Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 35 his suit. Having said that, the second substantial question of law posed above is answered in favour of the plaintiff-appellant and against the defendants-respondents. It is held that the learned lower appellate court fell in serious error of law while denying the relief of specific performance because of which the impugned judgment cannot be sustained.

Now coming to the first substantial question of law, it was established on record beyond doubt that plaintiff specifically pleaded and duly proved his case leading well-convincing and overwhelming evidence. The learned trial court rightly appreciated the true facts of the case as well as evidence brought on record by the parties by recording well-reasoned findings. The suit of the plaintiff was rightly decreed granted the relief of specific performance. A bare perusal of the impugned judgment would show that the learned lower appellate court committed serious error of law while misreading the pleadings as well the evidence of the parties available on record of the case file, thereby denying the relief of specific performance to the plaintiff- Nirmal Singh. It is so said, because both the agreements to sell have been duly pleaded and proved followed by specifically pleaded and duly proved readiness and willingness of the plaintiff to perform his part of the contract, coupled with tacit connivance amongst the defendants.

The view taken by this Court on the issue of readiness and willingness also finds support from the judgment of the Hon'ble Supreme Court in M/s J.P. Builders' case (supra). Interpreting the Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 36 scope of Section 16 of the Specific Relief Act, the Hon'ble Supreme Court held that the words ready and willing imply that the person was prepared to carryout terms of the contract. It was further held that the distinction between the readiness and willingness is that the former refers to financial capacity and later to the conduct of the plaintiff wanting performance. It was concluded by saying that readiness is conducted by willingness. These observations made by the Hon'ble Supreme Court aptly apply in the present case. Thus, the irresistible conclusion on first substantial question of law is again an emphatic yes in favour of the plaintiff and against the defendants. Since the learned Additional District Judge failed to appreciate the true facts and circumstances of the case noted here-in-above in the correct perspective and misdirected himself denying the relief of specific performance to the plaintiff, the impugned judgment cannot be sustained for this reason also.

There is another equally important aspect of the matter. Defendant-Darshan Kumar @ Sudershan Kumar, who alone was party to both the agreements to sell Exs. P-2 and P-3, died during the pendency of the suit. His legal representatives were brought on record. However, none of the legal representatives of Darshan Kumar-defendant No.1 filed any appeal against the judgment of the learned trial court, vide which suit of the plaintiff was decreed in toto. Appeal was filed only by Smt. Vidya Wati and Sudesh Kumar who had no locus standi to file the appeal because neither they were party to the agreements to sell nor they were the owners of suit Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 37 property. Sudesh Kumar and Smt. Vidya Wati could not deny the validity of agreements to sell between Nirmal Singh and Darshan Kumar because they were not party thereto.

Nirmal Singh-plaintiff initially filed his suit only against defendant No.1-Darshan Kumar @ Sudershan Kumar, because he was not claiming any relief against any other person including Sudesh Kumar and Smt. Vidya Wati. However, Smt. Vidya Wati and Sudesh Kumar moved an application under Order 1 Rule 10 CPC which was allowed by the learned trial court and they were impleaded as defendants No.2 and 3. In such a situation, the learned lower appellate court ought not to have entertained the appeal filed by defendants No.2 and 3, namely, Sudesh Kumar and Smt. Vidya Wati qua the relief for specific performance, because neither they had any right or title in the suit property nor they had locus standi to file and maintain the appeal.

However, the learned lower appellate court committed a patent illegality while reversing the factually correct and legally justified judgment of the learned trial court at the instance of Sudesh Kumar and Smt. Vidya Wati and illegally denied the relief of specific performance to plaintiff-Nirmal Singh, in spite of fact that Sudesh Kumar and Smt. Vidya Wati were not parties to the agreements Exs.P-2 and P-3. Thus, the impugned judgment cannot be sustained for this reason also.

The above said view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in Nirmala Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 38 Bala Ghose's case (supra). The relevant observations made by the Hon'ble Supreme Court, in paras 22 and 23 of the judgment, which can be gainfully followed in the present case, read as under:-

"In this appeal the two deities are also impleaded as party-respondents, but the deities have not taken part in the proceeding before this Court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed Ext. 11 upon Nirmala are not affected by the decree of the Trial Court. She is not seeking in this appeal to claim a more exalted right under the deed for herself, which may require re-examination even incidentally of the correctness of the decision of the Trial Court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself the Court has power and is indeed bound under Order 41 rule 33 Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Under 41 B. 33, insofar as it is material, provides:

"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 39 parties, although such respondents or parties may not have filled any appeal or objection:".

The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41, Rule 33 may properly be invoked. The rule, however, does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from:

The two claims made against Nirmala and the deities in suit No.67 of 1955, though capable of being joined in a single action were distinct, against the deities it was claimed that the property was partially dedicated in their favour; against Nirmala it was claimed that she was merely a benamidar for the settlor Balai and that she was not a Shebait under the deed of settlement. The High Court has passed a decree declaring that dedication in favour of the deities is partial and has further held, while affirming her right to be a Shebait that Nirmala was merely a benamidar in respect of the properties settled by the deed. There was no inconsistency between the two parts of the decree, and neither in the High Court nor in this Court did Nirmala claim a right for herself which was larger than the right awarded to her by the decree of the Trial Court. In considering the personal rights claimed by Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 40 Nirmala under the deed Ext. 11, it is not necessary, even incidentally, to consider whether the deities were given an absolute interest. There were therefore two sets of defendants in the suits and in substance two decrees though related were passed. One of the decrees can stand apart from the other.

When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under O 41R. :33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41 R.33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders."

Similarly, in Muniswamy's case (supra), Karnataka High Court in paras 10, 13, 14, 16 and 22 of the judgment, held as under:-

"In the light of the rival contentions of the Learned Counsel for the parties, the points for consideration in this appeal are as under:

i) Whether it is permissible for the first defendant to challenge part of the decree on issue Nos.1 to 3 without filing an appeal/cross objections?

ii) Whether the part of the decree on issue Nos. 1 to 3 can be set-aside under Order 41 Rule 33 of C.P.C.

iii)Whether the Court below was justified in rejecting the prayer of the plaintiff for specific performance of the agreement Ex. P-3 on the ground that the transferee pendente lite has not been made a party to the suit?

Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 41

13. Right to take cross objection in an appeal is nothing but the exercise of the same right of appeal, which is given to an aggrieved party and is not a new right conferred by Rule 22. The filing of cross objection is necessary only if the respondent wants to take any cross objection same decree, which he could have taken by way of an appeal. However, in order to support the decree or in order to argue that the finding in respect of an issue should have been in his favour, the respondent is not required to file a cross-objection. Cross-objection is not necessary to assail a finding on which decree is not founded. The first part of the rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the Court below. The first part thus authorizes the respondent only to support the decree. It does not authorize him to challenge the decree. If he wants to challenge any part of the decree, he has to take recourse to the second part, that is, he has to file a cross objection if he has not already filed an appeal against the decree.

14. In Banarasi and others Vs. Kamphal, AIR 2003 SC 1989, the Apex Court was considering an almost similar case. In the said case, it has been held that a plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him because what has been Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 42 allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the above said statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance or contract or modification of the impugned decree except by filing an appeal of his own or by taking cross-objection.

Therefore, in the absence of cross appeal preferred or cross objection taken by the plaintiff/respondent the first appellate Court while dismissing the defendants appeal did not have jurisdiction to modify the decree by decreeing plaintiffs suit for specific relief.

16. In the instant case, the suit filed by the plaintiff was partly decreed. The plaintiff was denied specific remedy of specific performance of the contract. He was granted substitutional remedy of refund of earnest money with interest at 8% per annum from the date of the agreement till realisation. Against the denial of the relief of specific performance of the contract, the plaintiff has filed this appeal. The defendant has not challenged the part of the decree holding issue Nos. 1 to 3 against him. Therefore, he is not entitled to Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 43 challenge said decree without filing an appeal or cross objections. The decision relied on by the learned counsel for the respondent in Ravindra Kumar Sharma's case (supra) has no application to the facts of this case. Point No.(i) is answered accordingly.

22. In Banarsis case (supra), the Apex Court has held that usually the power of Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate Court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations, firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate Court exercising power under Rule 33 Order 41."

Reverting back to the facts of the present case and respectfully following the law laid down by the Hon'ble Supreme Court and Karnataka High Court in the judgments referred to above, Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 44 it is held that the learned lower appellate court committed jurisdictional error, while reversing the cogent findings recorded by the learned trial court, thereby denying the relief of specific performance to the plaintiff. Thus, the impugned judgment rendered by the learned Additional District Judge cannot be sustained and judgment of learned trial court deserves to be restored.

Coming to the arguments raised by learned counsel for the respondents in the instant appeal, it is held that none of the learned counsel for the respondents could raise any substantive argument, so as to convince this Court to take a different view than the one taken hereinabove. Firstly, Learned counsel for the respondents could not justify as to why the legal representatives of defendant No.1-Darshan Kumar @ Sudershan Kumar did not file any appeal, against the judgment of learned trial court, if they were feeling aggrieved. Once the legal representatives of Darshan Kumar-defendant No.1, who alone was party to the agreements to sell Exs. P-2 and P-3, have chosen not to file any appeal against the judgment of the learned trial court decreeing the suit of plaintiff- Nirmal Singh in toto, granting him the relief of specific performance, learned counsel for the respondents cannot be heard to say, that the relief for specific performance granted by the learned trial court, can be challenged by the legal representatives of Darshan Kumar- defendant No.1 before this Court for the first time in the present appeal. It is so said, because defendants Nos.2 and 3, namely, Sudesh Kumar and his mother Smt. Vidya Wati, would have no locus Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 45 standi in this regard, in view of law laid down by the Hon'ble Supreme Court and Karnataka High Court in the cases referred to here-in- above.

So far as the judgments cited by the learned counsel for the respondents are concerned, after careful perusal thereof it can be safely held that none of the cited judgments are applicable to the facts of the present case. It is the settled proposition of law that peculiar facts and circumstances of each case are to be examined, considered and appreciated first, before applying any codified or judgment law thereto. Sometimes, difference of even one additional fact or circumstance can make the world of difference, as held by the Hon'ble Supreme Court in Padmasundra Rao and another Vs. State of Tamil Nadu and others 2002 (3) SCC 533.

Coming to RSA No.3359 of 1985 filed by Smt. Vidya Wati in her suit for injunction, including her application bearing Civil Miscellaneous No.2500 of 1999, it has been found after due consideration of the matter that the appeal is devoid of merit and liable to be dismissed for the detailed reasons recorded here-in- above. Again, the judgments cited by the learned counsel for the appellant in this appeal are of no avail to him being clearly distinguishable on facts. Both the learned courts below have recorded concurrent findings of fact. The learned trial court was in advantageous position, before whom the witnesses deposed, to watch, examine and appreciate the demeanour of the witnesses, because of which the findings recorded by the learned trial court Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 46 deserve due weight. The view taken by this Court in this regard also finds support from the judgment of the Hon'ble Supreme Court in Jagdish Singh Vs. Madhuri Devi 2009 AIR SC 2296. Further, no question of law much less substantial question of law thereof has been found involved in this appeal.

Once the due execution of agreement to sell, sale consideration as well as readiness and willingness of the plaintiff are proved, ordinarily the relief of specific performance ought to follow. However, this Court would hasten to add that it will not be an absolute rule and no straightjacket formula can be and should be laid down in this regard, because every case would be decided as per own its peculiar facts and circumstances. In the present case, the contention raised by learned senior counsel that this Court should not exercise its discretion for granting the relief of specific performance in favour of the appellant, is to be noted to be rejected.

Firstly, legal representatives of defendant No.1-Darshan Kumar did not file any appeal against the judgment and decree of the learned trial court, whereby suit of plaintiff-Nirmal Singh, for specific performance, was decreed. Further, having regard to the conduct of the defendants, this Court has found no reason as to why this Court should not exercise its jurisdiction including the discretionary jurisdiction for granting the relief of specific performance. It is equally true that alternate plea of refund of earnest money and damages cannot, by itself to be a bar to claim a decree for specific performance of the contract. Many a times, grant of alternate relief, Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 47 as in the present case, is also not sufficient compensation to the plaintiff for the relief of specific performance of the agreement.

No doubt, the relief of specific performance is a discretionary relief, but the discretion has to be exercised judiciously. This court is of the opinion that once the agreement is proved; consideration is proved, the plaintiff was always ready and willing to perform his part of contract at very relevant point of time, then he was certainly entitled for the relief of specific performance, which has been illegally denied to him by the learned lower appellate court.

Denying the relief of specific performance, in a case like the present one, would defeat the very object of the Specific Relief Act, 1963 and the wrongdoers would get undue benefit of their own wrong. It is so said, because present one is a classic example, wherein it is established on record that a dishonest and unscrupulous litigant can go to any extent, as all the three defendants did in the present case, while colluding with each other to achieve their common ulterior motive, to defeat the genuine claim of Nirmal Singh plaintiff-appellant. The view taken by this Court also finds support from the following judgments rendered by the Hon'ble Supreme Court and this Court:-

P.C.Varghese Vs. Devaki Amma Balambika Devi 2006 AIR (SC)145, Balbir Singh Vs. Manjit Kaur 2013 (1) RCR (Civil) 740, Abhey Singh Vs. Ramesh Kumar 2009 (3) PLR 490, Swarn Singh Vs. Swarn Kaur 2004 (2) RCR (Civil) 505, Gurbachan Singh V. Gurmit Singh 2003 (4) RCR (Civil) 223, Mohan Singh Vs. Vandana 2014.03.04 17:38 I attest to the accuracy and integrity of this document RSA No.1365 of 1996 (O&M) 48 Kulwinder Singh 2001 (1) RCR (Civil) 399 and in Re: Kuttadan Velayudhan 2001 (2) CCC 279 Kerala High Court.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the appeal filed by plaintiff-Nirmal Singh deserves to be accepted, whereas the two other appeals are bereft of any merit and without any substance, both of which, thus, must fail.

Consequently, the impugned judgment and decree passed by the learned lower appellate court in RSA No.1365 of 1996 (Nirmal Singh Vs. Darshan Kumar @ Sudershan Kumar through his LRs and others), are hereby set aside. Judgment and decree dated 27.01.1989 passed by learned trial court are, hereby ordered to be restored.

Resultantly, RSA No.3359 of 1985 (Smt. Vidya Wati through her LRs Vs. Nirmal Singh and others) and RSA No.2389 of 1996 (Sudesh Kumar and another Vs. Nirmal Singh and others) stand dismissed, whereas RSA No.1365 of 1996 (Nirmal Singh Vs. Darshan Kumar @ Sudershan Kumar through his LRs and others) stands allowed. However, parties are left to bear their own costs.

           January 13, 2014                         (RAMESHWAR SINGH MALIK)
           Vandana                                         JUDGE




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