Madhya Pradesh High Court
Durg Singh vs Mahesh Singh And Ors. on 14 January, 2004
Equivalent citations: AIR2004MP146, AIR 2004 MADHYA PRADESH 146
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. This appeal has been preferred by appellant who is a subsequent purchaser (defendant No. 2) against the judgment and decree dated 27-8-1993 passed by IIIrd Additional District Judge, Sagar in civil suit No. 42-A/89 (old No. 3-A/88) decreeing the suit of plaintiff for specific performance of the contract.
2. In short the suit of plaintiff is that defendant No. 1 Devi Singh was the bhumiswami of the suit land which is agricultural land, the said Devi Singh on 11-5-1988 entered into an agreement with the plaintiff for a consideration of Rs. 30,000/-to sell the land in question to him. A sum of Rs. 5000/- was paid as an earnest money and the balance amount was agreed between the parties to be paid on 20-5-1988. In the document the condition was embodied that in the case Devi Singh would avoid to get the sale-deed executed the plaintiff may file a suit for the execution of the sale-deed. The plaintiff, though insisted Devi Singh to get the sale deed executed and when the same will be found, the sale deed shall be executed. It has further been pleaded by the plaintiff that Devi Singh assured that he will obtain a new Bhoo Adhikar Avam Rin Pustika, thereafter he shall execute the sale deed.
3. Devi Singh again after receiving Rs. 6000/- towards earnest money on 24-5-1988 executed another document of agreement acknowledging the receipt of Rs. 11,000/- as earnest money and agreed to get the sale deed executed till 30th October, 1988 and in case he fails to get the sale deed executed, the plaintiff shall have right to get the document of sale executed in his favour.
4. It has further been pleaded by the plaintiff that after the execution of the second document of agreement dated 24-5-1988, the possession on the land in question was delivered to him, however, during the pendency of the suit he was dispossessed.
5. The plaintiff in para 5 of his plaint specifically pleaded that he is ready and willing to pay the balance sale price and he is further ready and willing to get the sale deed executed by incurring the necessary expenses and for that several times, he requested Devi Singh but for one reason or the other he avoided under the pretext that the new Bhoo Adhikar Rin Pustika has not been delivered to him. The plaintiff came to know that on 25-6-1988 the suit land has been sold to appellant defendant No. 2 Durg Singh. According to the plaintiff, the subsequent purchaser was having knowledge of the said two agreements executed between Devi Singh and plaintiff, despite it, got the land in question sold in his favour. According to the plaintiff in presence of the two agreements in his favour, the sale deed is ineffective. On these premised pleadings, it has been prayed by the plaintiff that his suit be decreed and the defendant No. 1 Devi Singh be directed to execute the sale deed.
6. The defendants by filing their separate written statements denied the plaint averments, though execution of above said two agreements were not denied by defendant- Devi Singh. The defence which has been taken by Devi Singh in his written statement is that he obtained loan to the tune of Rs. 11,000/- from the plaintiff and the above said two documents of agreement were executed to secure the loan. It has also been pleaded that Devi Singh entered into an agreement with defendant No. 2 Durg Singh earlier to the execution of these two agreements i.e. on 29-12-1987 and this fact was disclosed by Devi Singh to the plaintiff while executing the above said two agreements. According to the defendant -- Devi Singh the plaintiff assured that as soon as the loan amounts is repaid to him, he would destroy the above said two agreements.
7. The appellant Durg Singh in his written statement pleaded that he is a bona fide purchaser with consideration without prior knowledge of above said two agreements which were executed between the plaintiff and defendant No. 1. This defendant also pleaded that after obtaining Rs. 11,000/-from Devi Singh, the plaintiff destroyed the original two agreements, however, later on he came to know that indeed photocopies thereof were torn.
8. On the basis of the above said pleadings, the trial Court framed issues and after recording the evidence of the parties found the case of the plaintiff to be proved and hence decreed it. Hence this appeal has been preferred by the subsequent purchaser defendant No. 2 Durg Singh.
9. In this appeal Shri K.N. Agrawal, learned senior counsel assisted by Smt. Hansa Agrawal has contended that the appellant who was defendant No. 2 before the trial Court, being a bona fide purchaser with consideration and having no prior knowledge of the said two agreements cannot be thrown out of the Court in view of Section 19(b) of the Specific Relief Act and his sale deed cannot said to be ineffective and cannot be thrown in dustbin like a waste paper. His further contention is that if the entire case of the plaintiff is considered in toto one can safely say that the plaintiff was not ready and willing to get the sale deed executed as such, the Trial Court erred in law in decreeing the plaintiff's suit for specific performance of the contract. An alternative submission has also been putforth by learned senior counsel that even if it is held that the documents of agreement were executed between Devi Singh and the plaintiff, in the peculiar facts and circumstances of the case, no decree of specific performance can be passed and at the most a decree of return of money of Rs. 11,000/- with interest may be passed.
10. Resisting the aforesaid submissions of learned counsel for the appellant, it has been contended by Shri A.S. Raizada, learned counsel appearing for the plaintiff/ respondent that the plaintiff always remained ready and willing to perform his part of the contract, even today he is ready and willing to keep the sale deed executed in his favour. According to him, if the pleadings, documents and oral evidence of the parties are x-rayed, it would become clear like a noon day that the appellant had prior knowledge of the above said agreements and, therefore, he cannot take the advantage of Section 19(b) of the Specific Relief Act. According to the learned counsel, the learned Trial Court assigned cogent reasons for decreeing the suit of plaintiff and no interference is called for and the appeal deserves to be dismissed.
11. In a suit of specific performance of the contract where the property in dispute has been sold to the subsequent purchaser, two things are necessary for the adjudication, they are; (i) that whether the plaintiff remained always ready and willing to perform his part of the contract to purchase the suit property and the readiness and willingness should exist till the date of the passing of the decree; and (ii) whether the subsequent transferee was having prior knowledge of the earlier agreement executed in favour of plaintiff. In other words, we may say that if plaintiff fails to plead and prove by his conduct the readiness and willingness to purchase the suit property and if the subsequent purchaser was a bona fide purchaser without prior notice of the original contract who had paid the value of the suit property to the vendor, the suit of specific performance cannot be decreed. Both these essential ingredients are having nexus with the facts of each case as well as the conduct of the parties of that case. No straight-jacket formula can be framed in this regard and each case should be tested on the touchstone of its own facts and circumstances coupled with the evidence. Thus, I shall now examine the present case in that regard.
12. The execution of agreements Ex. P-1 and P-2 has not been denied by the defendant Devi Singh. His contention is that just to secure the loan these two documents were executed. The plaintiff came with a specific case that defendant Devi Singh executed the agreement in his favour and he paid the earnest money to him but he did not execute the sale deed in his favour. According to the testimony of plaintiff Mahesh he is still ready and willing to get the sale deed executed in his favour and he also sent notice Ex. P-3 not only to Devi Singh but also to Thakur Singh who is the father of defendant Durg Singh that he came to know that the land in question is being sold to him. In the pleadings as well as in the evidence, it has been categorically stated by the plaintiff that because on account of non-availability of the Bhoo Adhikar Rin Pustika, the defendant- Devi Singh avoided to get the sale deed executed and assured him that as soon as the new book is delivered to him, he would execute the sale deed. The learned trial Judge after marshalling the evidence came to hold that the story of loan transaction has not been proved and accordingly disbelieved it. The trial Court also found the documents Ex. P-1 and P-2 to be proved. On the question of readiness and willingness on the part of the plaintiff to get the sale deed executed, there is overwhelming evidence. In the case of syed Dastagir v. T.R. Gopalkrishna Setty (1999) 6 SCC 337 : (AIR 1999 SC 3029) their Lordships of the Supreme Court laid down the law of land that the language used in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and continues to be willing to perform his part of the contract. The Apex Court further held that wherever there are two possible interpretations, the one that subserves ends of justice should be accepted and the one which defeats justice should be rejected. Similar view has been taken by the Apex Court in later decision in the case of Motilal Jain v. Ramdasi Devi (Smt.) (2000) 6 SCC 420 : (AIR 2000 SC 2408) wherein it has been categorically held that on bare reading of the plaint, it should transpire that the plaintiff is ready and willing to perform his part of contract and such averment cannot be equated with a mathematical formula or in specific words or terms are required. Though in the present case, not only in the plaint as well as in the evidence, it has been categorically stated by the plaintiff that he is ready and willing to perform his part of contract.
13. In para 8 of his testimony, the plaintiff proved his pleadings in respect to readiness and willingness as he categorically stated that to purchase the suit land, he is having sufficient funds even today and still he is ready to purchase the land in question. In the cross-examination, he said that after the execution of first agreement (Ex. P-1), he was ready and willing to purchase the disputed land but Devi Singh did not execute it. PW-3, Phool Singh, is the attesting witness to the documents (Ex. P-1) and (Ex. P-2). According to the witness, after the execution of Ex. P-2, plaintiff approached defendant Devi Singh and requested him to execute the sale deed but he declined to execute it and said that Bhoo Adhikar Rin Pustika has been misplaced as such on that day the sale deed could not be executed. Devi Singh was examined and in para 2 of his examination-in-chief, he admitted the execution of the agreement (Ex. P-l and P-2), though in the earlier para, he said that an amount of Rs. 11,000/- was obtained by him towards loan. In para 2, this witness has said that because the sister-in-law of defendant No. 2 /appellant is ill and for her treatment, he required the money. It appears that the ground of taking the loan was concocted because nowhere in the pleading, it has been pleaded by the defendant that to treat medically sister-in-law of defendant No. 2, he required the money. The story which has been putforth by Devi Singh in his evidence appears to be concocted for the simple reason that if the sister-in-law of defendant No. 2/appellant was ill, why he would sell the land to defendant No. 2/appellant who himself required the money for the treatment of his sister-in-law and why he would purchase the land in question after the payment of Rs. 29,200/- to defendant No. 1. In cross-examination (Para 8) Devi Singh has categorically admitted the fact that when the land in question was being sold to the defendant No. 2, at that juncture the plaintiff came in the office of Sub-Registrar and objected that he had already purchased the land and the disputed land may not be sold to Durg Singh. This is a very important piece of evidence which goes to show that the plaintiff was ready and willing to purchase the land in question and for that purpose, he approached the office of Sub-Registrar and did all so that the land in question may not be sold to defendant No. 2/appellant. In this view of the matter, it would become luminously clear that the plaintiff was ready and willing to purchase the land in question.
14. It has been contended by Shri K.N. Agrawal, learned senior counsel that on the question of readiness and willingness, no specific issue has been framed. The argument though appears to be attractive but on deeper scrutiny found to be devoid of any substance. True, no specific issue in that regard has been framed by the Trial Court but issue No.4 has been framed that whether plaintiff is entitled for decree of specific performance which would also include the readiness and willingness. Even otherwise, if the parties are aware that what they have to face in the trial and they led their evidence accordingly, merely non-framing of a particular issue would not be fatal.
15. I have considered the reasonings assigned by the trial Court in respect to the readiness and willingness and I find them to be cogent. These findings are based on evidence on record as well as on the documents placed on record. The plaintiff specifically stated that he approached defendant Devi Singh again and again but under the false pretext of non-availability of the Bhoo Adhikar Rin Pustika, he avoided to get the sale deed executed.
16. So far as the story of loan transaction is concerned, I have also given my anxious consideration to the reasonings assigned by the Trial Court and I find them to be cogent. Even otherwise, looking to the amount of consideration of Rs. 30,000/-which was agreed between the plaintiff and defendant Devi Singh, it cannot be said that consideration was inadequate and just to secure the loan a sham document of two agreements (Ex. P-1 and P-2) were executed because Devi Singh himself sold the land for Rs. 29,200/- to defendant/appellant. The defendant Devi Singh in his testimony has categorically stated that he disclosed the fact of execution of the agreements in favour of plaintiff to Durg Singh but he remain silent. Thus, looking to the amount of sale price, it cannot be said that it was inadequate rather it was more and was Rs. 30,000/- while the sale deed (Ex. P-8) has been executed for a consideration of Rs. 29,200/-.
17. The other contention of learned counsel for the appellant is that the appellant was a bona fide purchaser and he bought the land in question after paying the sale consideration and he was also not having any prior knowledge of the above said two agreements, shall now be considered. This argument, if tested on the anvil of the pleadings of the plaintiff coupled with the evidence and the evidence of defendant Devi Singh himself, the only inference which could be gathered is that the appellant was having prior knowledge about the agreement in favour of plaintiff and despite it he got the sale-deed executed in his favour. In para 6 of the plaint, it has been specifically stated that the defendant No. 2/appellant was having the knowledge of the agreement. In the written statement though it has been pleaded by appellant/defendant No. 2 that he is a bona fide purchaser, but very cleverly he avoided to plead the fact that he was not having prior knowledge of the agreement and on that point the written statement is silent. Devi Singh in his testimony has specifically stated that he disclosed the existence of agreement executed between him and the plaintiff to the appellant Durg Singh but he did not react and remain silent as such it cannot be said that the appellant was not having prior knowledge of these documents. Even the appellant in his testimony has said that his father asked Devi Singh to deliver the agreement executed by Devi Singh in favour of plaintiff but at that time it was torned by one aunt of the plaintiff, namely, Kasturi Bai. The plaintiff did not examine his father to corroborate this evidence. One important document Ex. P-9 which has been filed by the plaintiff also goes to show that the defendant-appellant was having prior knowledge of the agreement. This document (Ex. P/9) is a letter addressed to Station Officer Incharge of Police Station Nariyawali in which it has been categorically stated by Durg Singh that two agreements were executed in favour of plaintiff by Devi Singh and plaintiff on the basis of these two documents is trying to restrain him to obtain possession and it was prayed that possession be delivered to him. If all these overwhelming evidence is considered in proper perspective, it can very well be said that the appellant was having prior knowledge of the agreement which took place between Devi Singh and plaintiff.
18. In the aforesaid paragraph I have discussed that the plaintiff on the date of the execution of the sale-deed approached Sub-Registrar objected that the land in dispute may not be sold to Durg Singh defendant No. 2/appellant which has been admitted by Devi Singh himself in cross-examination in Para 8 and thus it becomes luminously clear like a noon day that the appellant was having prior knowledge of the agreement executed between Devi Singh and Plaintiff.
19. On going through the evidence, it is perceivable that Ex. D-3 which is an agreement dated 27-12-1987 is said to have been executed by Devi Singh (Defendant No. 1) in favour of Durg Singh (Defendant No. 2) is nothing but appears to be concocted and cooked document just to give the colour that prior to the execution of agreements Ex. P-1 and P-2 in favour of plaintiff, it was executed and, therefore, the plaintiff is not having right in his favour. It appears that just to escape from the arms of plaintiff who is asserting his right under Section 14 & 16 of the Specific Relief Act, both the defendants cooked the said document (Ex. D-3) mentioning the date 29-12-1987 on it i.e. prior to the execution of the documents (Ex. P-1 & P/2). On going through this evidence, it appears that Devi Singh obtained as an earnest money Rs. 2350/- under this document (Ex. D-3) and it was agreed between him and Durg Singh that the suit land would be sold for a consideration of Rs. 29,200/-but Devi Singh in Para 8 of his cross-examination has specifically admitted that on the date of the execution of the sale deed, he did not receive any money from Durg Singh (defendant No. 2) and earlier to the date of execution of the sale deed, he received only Rs. 2350/-. If this piece of evidence of Devi Singh is read together with the sale-deed (Ex. P/8), it is gathered that Devi Singh is not saying the truth and is concealing the actual position because in the sale-deed, it has been mentioned that on the date of the execution of this deed i.e. 25-6-88 the balance consideration Rs. 26850/- has been obtained which would mean that either the evidence of Devi Singh is false or the factum of receiving the money in the sale deed by Devi Singh on the date of execution of the sale deed is false. In both the position, a heavy doubt is being created and it would give a strong probability that Ex. D-3 is concocted document and has been cooked just to give the colour that prior to the execution of agreement in favour of plaintiff, there was a commitment in the shape of agreement (Ex.D-3) by Devi Singh in favour of Durg Singh. The other ground which creates a heavy doubt in respect to the execution of this document is that nowhere in the document any period to execute the sale deed has been mentioned. On going through the document, it is noticeable that a perpetual right has been given to Durg Singh that whenever he will pay the balance sale price Rs. 26850/- he may get the sale deed executed. The learned Trial Court while deciding issue No. 3 gave elaborate reasons for holding that the document (Ex. D-3) is a cooked document and I find those reasonings to be cogent and based on evidence.
20. The Trial Court after considering each and every aspect of the matter exercised the discretion in favour of the plaintiff and granted the decree of specific performance and I do not think to deviate myself from those reasonings, as they are based on evidence placed on record.
21. In the result, the appeal is found to be devoid of any substance and the same is hereby dismissed with cost. Counsel's fee as per schedule, if certified.