Allahabad High Court
S.D.Singh vs Gajraj Singh on 7 January, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 Case :- SECOND APPEAL No. - 7 of 1991 Appellant :- S.D.Singh Respondent :- Gajraj Singh Counsel for Appellant :- C.P.Srivastava,Anil Bhushan,Nikhil Chaturvedi,S.K. Pandey Counsel for Respondent :- S.K.Yadav,Sangam Singh Hon'ble Vivek Agarwal,J.
C.M. Application No.04 of 2018 Heard Sri P.K. Jain, learned Senior Advocate assisted by Sri Nikhil Chaturvedi, counsel for the appellant and Sri Sangam Singh, learned counsel for the respondent.
This application has been filed under Order 41 Rule 27 of Code of Civil Procedure to bring on record photo state copy of the publication of Notification under Section 3G(3) of National Highway Authorities Act, 1956, copy of the award dated 17.03.2015, true copy of the orders passed by the High Court on 06.08.2015, 09.02.2016 and the order dated 30.12.2016 passed by the Additional Collector (Land Acquisition), Agra.
Admittedly, these documents are pertaining to the transaction after decision in the suit on 13.03.1987 and in the first appeal on 16.07.1990, therefore, they being inconformity with the provisions contained in Order 41 Rule 27 C.P.C. are allowed to be taken on record.
Order Date :- 07.01.2020 Ashutosh Court No. - 53 Case :- SECOND APPEAL No. - 7 of 1991 Appellant :- S.D.Singh Respondent :- Gajraj Singh Counsel for Appellant :- C.P.Srivastava,Anil Bhushan,Nikhil Chaturvedi,S.K. Pandey Counsel for Respondent :- S.K.Yadav,Sangam Singh Hon'ble Vivek Agarwal,J.
Heard Sri P.K. Jain, learned Senior Advocate assisted by Sri Nikhil Chaturvedi, counsel for the appellant and Sri Sangam Singh, learned counsel for the respondent.
This appeal has been filed by the defendant being aggrieved of the judgment and decree dated 16.07.1990 passed by the Court of first Additional District Judge, Mainpuri dismissing the Appeal No.139 of 1987 and decreeing the suit of the plaintiff-respondent arising out of Suit No.126 of 1984 filed by Gajraj Singh and another plaintiff respondents for specific performance of contract against the appellant by judgment and decree dated 13.03.1987 passed by the learned Civil Judge, Mainpuri thereby decreeing the suit of the plaintiff with costs.
Brief facts of the present case leading to this second appeal under Section 100 C.P.C. are that plaintiff Gajraj Singh had filed a suit for specific performance to get the registry of 2/3 of land contained in Survey No.370/2 measuring 13 dismal in favour of plaintiff and defendant nos.2 and 3 and if defendant no.1 refuses to do so then Court may accept the remaining sale consideration and execute a sale deed in favour of the plaintiff and defendant nos.2 and 3.
It was the case of the plaintiff before the Trial Court that an agreement to sale was executed between the plaintiff, defendant nos.2 and 3 on one hand and defendant no.1 on another hand for a sale consideration of Rs.15,000/- out of which Rs.14,000/- were paid to the defendant no.1 and thereafter when the agreement was written down a further sum of Rs.6,000/- was paid to the defendant no.1 and it was decided that within one year of the agreement defendant no.1 shall carry out sale deed in favour of the plaintiff and the defendant nos.2 and 3. It was also agreed that defendant no.1 shall not carry out sale deed in favour of any other person. It was further contended that plaintiff and defendant nos.2 and 3 were always ready and willing to get the sale deed executed and, therefore, plaintiff had given a notice to the defendant no.1 which was served on the defendant no.1 but, when sale deed was not executed within the prescribed time limit, suit was filed before the Court.
Defendant-appellant-Tej Singh took a defence that the plaintiff and defendant nos.2 and 3 were never ready and willing to pay the balance amount of Rs.5,000/- and get the sale deed executed. Suit of the plaintiff is barred by the provisions contained in Section 16 of the Specific Relief Act. In 1981, Tej Singh had taken a loan of Rs.6,000/- from the plaintiff and defendant nos.2 and 3. It was also averred that plaintiff and defendant nos.2 and 3 are real brothers and said loan was given on interest @ Rs.2% per month. But since defendant nos.2 and 3 are not having money lenders licence therefore, instead of impleading them as a plaintiff, they have been impleaded as defendant. It was also averred that defendant no.1 never received a sum of Rs.4,000/- and he had only received Rs.6,000/- whereas the cost of the disputed land is about 50,000/-. Defendant also averred that he had already paid back a sum of Rs.3,000/- to the plaintiffs and, therefore, suit is not maintainable.
Trial Court on the basis of the rival contentions framed as many as 10 issues, out of which; (i) issue was whether an agreement was executed on 04.09.1981 after paying a sum of Rs.10,000/- with a total sale consideration of Rs.15,000/-; (ii) issue was framed as to whether suit was barred in accordance with the provisions contained in Section 16 of the Specific Relief Act and (iii) issue was whether plaintiff had given a loan to the defendant no.1 for a sum of Rs.6,000/- in lieu of which such agreement was executed between the plaintiff and defendant nos.2 and 3 on one hand and the defendant no.1 on the other side. All these issues have been dealt with on the basis of the evidence available on record. Issue no.1 was decided in favour of the plaintiff that defendant no.1 had entered into an agreement to sale to sell 2/3 part of his 10.5 bigha of land contained in Survey no.370. Rs.4,000/- were paid prior to the execution of the agreement and Rs.6,000/- were paid when the agreement was registered and it was decided that remaining 5,000/- will be paid at the time of execution of the sale deed. Witness-Kripal Singh who is nephew of defendant no.1-Tej Singh has admitted that in front of him Tej Singh and Gajraj Singh had agreed in regard to sale and purchase of about seven bigha of land contained in survey no.370. He was witness to the agreement when it was registered and this witness accepted his signatures. He also admitted that Rs.4,000/- were paid in the house of Gajraj Singh whereas Rs.6,000/- were paid at the time of the agreement.
Similarly, Kripal Singh also admitted that Gajraj Singh had asked Tej Singh one month prior to the completion of the time limit to execute the sale deed and this demand was made during the month of 'Bhadao' in front of him and on the basis of the fact that Kripal Singh being nephew of defendant no.1 Tej Singh has given evidence in favour of the plaintiff accepted the contention of the plaintiff that plaintiff was always ready and willing to execute his part of the agreement and, therefore, held that suit is not barred by the provisions contained in Section 16 of the Specific Relief Act. It inferred the factum of readiness and willingness as is mandated under the provisions contained in Section 16(c) of the Specific Relief Act and, thereafter, deciding other issues in favour of the plaintiff, decreed the suit.
First appellate court affirmed the judgment and decree passed by the learned trial court on an appeal filed by the defendant no.1-Tej Singh, hence, this second appeal has been filed mainly raising a ground that Tej Singh was very old weak and infirm man of about 80 years of age and was blind so also hard of hearing and as such did not appear in the witness box but courts below have wrongly drawn inferences against him on the basis of his non-appearance in the witness box. It is also submitted that the registered notice alleged to have been served on Tej Singh was not on behalf of the defendant nos.2 and 3 but was only issued on behalf of the plaintiff and, therefore, readiness and willingness of defendant nos.2 and 3 could not have been inferred from such agreement.
By way of supplementary affidavit it is submitted by learned counsel for the appellant that appellant has filed a supplementary affidavit vide document No.286819/2017 to bring on record a fact that out of 0.8620 hectares of land contained in Gata No.370, vide order dated 17.03.2015, 0.6400 hectares of land has been acquired by National High Way Authority of India for widening of N.H.-2. Therefore, it is submitted that the contract could not have been enforced as it has been frustrated with the passage of time.
Advancing such submissions, learned counsel for the appellant has placed reliance on the judgment of Supreme Court in case of Jagdish Singh Vs. Natthu Singh as reported in 1992 (1) SCC 647 wherein, the ratio of law is that if court below have recorded finding vitiated by non-consideration of relevant evidence or by adopting essentially a wrong approach, High Court is not precluded from recording proper finding even in second appeal and reverse the concurrent findings of the fact.
Reliance is also placed on the judgment of Supreme Court in case of Gian Chand Vs. Gopala as reported in 1995 (2) SCC 528 wherein, the ratio is that readiness and willingness of any party to execute the contract after acquisition becomes meaningless and State is not bound by any contract between the parties.
Learned counsel has also placed reliance on the Supreme Court judgment in case of Rozan Mian Vs. Tahera Begum as reported in 2007 (12) SCC 175 wherein, the ratio is that if amendment is made in law by Government, prohibiting transfer of tenancy right then decree of specific performance cannot be passed inasmuch as an agreement, to do an act, impossible is itself, is void, in the light of the provisions, contained in Section 56 of the Contract Act.
Reliance is also placed on the judgment of Division Bench of Allahabad High Court in case of Munshi Lal and another Vs. Vishnu Das and others as reported in AIR 1954 Alld. 450.
In para-10 dealing with Section 55 of Contract Act, it is held that when an agreement is discovered to be void or when a contract becomes void any person who have received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom, he received it. In this case, by reason of U.P. Zamindari Abolition and Land Reforms Act, it had become impossible to direct the sale of the property by the defendants to the plaintiffs and in this context judgment has been delivered in case of Munshi Lal (supra).
Reliance is also placed on the judgment of Supreme Court in case of P. Meenakshisundaram Vs. P. Vijaya Kumar and another as reported in 2018 (1) ARC 785 wherein, it has been held that plaintiff must plead and prove his readiness and willingness to perform his part of contract although i.e. right from the contract till the date of the hearing of the suit.
Placing reliance on above judgments, it is submitted that appeal should be allowed for two reasons; (1) there was no readiness and willingness on the part of the plaintiff and secondly because with the passage of time and acquisition of major portion of the land by the State Authorities for National Highways, the agreement could not have been enforced, inasmuch as, it has become impossible to give effect to the agreement and, therefore, it is void in itself.
Learned counsel for the plaintiff, on the other hand, submits that the facts of the case are different. Suit for specific performance is still maintainable and since there was no going back on the part of the plaintiff from the agreement and he was always willing to perform his part of contract as has been admitted by the nephew and defendant no.1, no adverse inference to the readiness and willingness can be drawn.
It is also submitted that even one of the joint promissee may maintain the suit for specific performance as has been held in case of Monghibai Vs. Cooverji Umersey as reported in AIR 1939 PC 170.
It is also submitted that in case of Jagdish Singh Vs. Natthu Singh (supra), it has been held that as per the provisions contained in Section 21 of the Specific Relief Act, it enables the plaintiff in suit for specific performance to claim compensation for its breach either in addition to or in substitution of performance.
Similarly, reliance has been placed on the judgment of Supreme Court in case of Urmila Devi and others Vs. Deity, Mandir Shree Chamunda Devi through Temple Commissioner and others as reported in 2018 (2) SCC 284 wherein, it has been held that vendee under agreement to sale is entitled to the compensation paid by the State for acquisition.
Placing these judgments for consideration, it is submitted that on the basis of the twin reading of the law laid down in case of Jagdish Singh Vs. Natthu Singh and Urmila Devi and others (supra), plaintiff is entitled for getting remaining 0.2220 hectare of land registered in his name and claim compensation for remaining 0.4245 hectares of land as has been received by the appellant after deducting the cost, if any, incurred by him in claiming such compensation.
After hearing arguments of learned counsel for the parties and going through the case laws filed by them, I am of the opinion that the findings recorded by the Trial Court and the first appellate court in regard to execution of the agreement and it being not barred by Section 16(c) of the Specific Relief Act and plaintiff being entitled to the specific performance of the agreement or neither based on non-consideration of relevant evidence or suffer from the vice of a wrong approach and, therefore, judgment cited by learned counsel for the appellant in case of Jagdish Singh (supra) is of no assistance to them.
They have not been able to establish any perversity in appreciation of material available on record.
As far as law laid down in case of Gian Chand Vs. Gopala (supra) is concerned, facts of that case are different. There complete parcel of the land was acquired and in that context, it has been held that being ready and willing to execute the contract on behalf of the vendee is of no consequence because State is not bound by any contract between the parties creating encumbrance on the priority after notification under Section 4(1) of the Land Acquisition Act, 1894. In that case, agreement was executed after Section 4(1) Notification whereas in the present case, land acquisition has taken place during the pendency of the second appeal, therefore, ratio of the judgment in case of Gian Chand (supra) is not available to the appellants being based on a different factual matrix.
Similarly, ratio of judgment in case of Rozan Mian (supra) is not available inasmuch as prerogative of a vendor to transfer the tenancy rights was prohibited by law and, therefore, under Section 56 of the Contract Act, had become impossible to give effect to the agreement and, therefore, it had become void. Section 56 of the Indian Contract Act, 1872 provides that when a contract to do an act which, after the contract is made, becomes impossible or, by reason of some event which the promiser could not prevent unlawful, becomes void when the act becomes impossible or unlawful. Therefore, facts of Rozan Mian (supra) are also different and distinguishable.
As far as ratio of judgment passed by Allahabad High Court in case of Munshi Lal (supra) is concerned, it deals with the provisions contained in Section 56 of the Contract Act and held that since by virtue of the provisions contained in Zamindari Abolition and Land Reforms Act, it had become impossible to direct the sale of the property by the defendants to the plaintiff, as rights in the property having come to an end and having vested in the State, the contract of which specific performance is now being sought must be deemed to have become void.
This case is also distinguishable on its own facts inasmuch as in that case also before a decree could be passed by virtue of Zamindari Abolition and Land Reforms Act, land in question had come to be vested in the State.
Similarly, law laid down in P. Meenakshisundaram Vs. P. Vijaya Kumar and another (supra) is not applicable to the facts of the present case for two reasons namely (i) defendant no.1 never entered into the witness box and secondly his own nephew Kripal Singh examined as a witness admitted all the pleadings of the plaintiff and such admission could not be denied by the defendant no.1. There is no material on record to substantiate other arguments like advance age or failing health or other visual or hearing capacity of the defendant no.1 and, therefore, such argument deserves to be discarded and is discarded.
However on a context when judgments rendered in cases of Jagdish Singh Vs. Natthu Singh, Gian Chand Vs. Gopala, Rozan Mian Vs. Tahera Begum, Munshi Lal Vs. Vishnu Das and others and Monghibai Vs. Cooverji Umersey (supra), are taken consideration then, it is apparent that defendant nos. 2 and 3 not joining the plaintiff in the suit could not have been construed to be a matter against the respondents-plaintiff and it being permissible, no disability could have been attached to question the locus of the plaintiff to file a suit for specific performance.
Similarly, in the light of the judgment rendered in case of Jagdish Singh Vs. Natthu Singh as reported in AIR 1992 SC 1604, since the ratio is that Section 21 enables the plaintiff in a suit for specific performance to claim compensation for breach either in addition to or in substitution of performance, compensation award may be made subject to deduction of money value of services, time and energy expanded in pursuing claims of compensation and expenditure incurred by him culminating in award.
In the present case, since the part of the contract cannot be enforced by virtue of portion of the land being acquired by the State, it will be in accordance with law laid down by Supreme Court in case of Jagdish Singh (supra) to direct the defendant no.1, appellant to execute sale deed of remaining 0.2220. hectares of land in favour of the plaintiff and pay compensation as has been received by him in the proportionate manner for remaining 0.4245 hectares of land after deducting the cost, if any, incurred by him.
It has come on record that a sum of Rs.6,63,61,380/- has been awarded for acquiring 7.8617 hectares of land which comes out to Rs.84,41,097.98/- per hectare and in that proportion, appellant shall pay the compensation to the plaintiff for remaining 0.4245 hectare of land from which defendant will be entitled to deduct a sum of Rs.05 lakhs which as per a rough estimate can be computed to be the amount to be paid to the appellant in respect of time and money spent in pursuing the legal claim for compensation.
With the aforesaid directions, Appeal stands disposed off.
Order Date :- 07.01.2020 Ashutosh