Rajasthan High Court - Jaipur
Shiv Charan Lal Singhal vs M/S Barwara Land Development ... on 19 December, 2024
Author: Narendra Singh Dhaddha
Bench: Narendra Singh Dhaddha
[2024:RJ-JP:50918]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 104/1989
Shiv Charan Lal Singhal (deceased) through his legal heirs Ashok
Singhal son of Late Shri Shiv Charan Lal Singhal, R/o 38 Shri H K
Somani Marg, Hathroi Fort, Jaipur
----Appellant/Plaintiff
Versus
1. M/s Barwara Land Development Corporation, Barwada House,
Civil Lines, Jaipur through partner Laxman Singh son of Raja
Mansingh, Barwada House, Civil lines, Jaipur
2. Laxman Singh S/o Raja Mansingh Barwada House, Civil Lines,
Jaipur
2/1 Smt. Saroj Kanwar W/o Late Sh. Laxman Singh
2/2 Smt. Mini @ Ujjwala D/o Late Sh. Laxman Singh
2/3 Sapna D/o Late Sh. Laxman Singh
3. Shri Munshi Lal Sharma, S/o Unknown R/o Aroraji House,
Barfkhana Chauraha, Adarsh Nagar, Jaipur
4. Smt. Vimla Sharma W/o Shri Munshi Lal Sharma, R/o Aroraji
House, Barfkhana Chauraha, Adarsh Nagar, Jaipur B-135 Kirti
Nagar, Gopalpura Byepass, Jaipur
---Defendants/respondents
5. Shri Vinod Singhal S/o Late shri Shiv Charan Lal Singhal, R/o C-244 Vaishali Nagar, Jaipur
6. Shri Kishore Singhal S/o Late shri Shiv Charan Lal Singhal, R/o 38, Shri H K Somani Marg, Hathroi Fort Jaipur
7. Smt. Indira Mathur W/o Shri Mahesh B. Mathur R/o 63 Shanti Nagar, Opp. DCM Ajmer Road, Jaipur
8. Smt. Krishna Paliwal W/o Shri Ashok Paliwal 159 Mahatma Gandhi Nagar, Behind DCM, Ajmer Road, Jaipur
9. Smt. Veena Gupta W/o Dr. Suresh Chand Gupta R/o K.R. 187 Civil Lines, Kota
10. Smt. Anju Sharma W/o Shri Dharmendra Sharma, IAS, Collector, Amreli, Gujarat All sons and daughters of Late shri Shiv Charan Lal Singhal.
----Proforma Respondents
For Appellant(s) : Mr. R.K. Daga
For Respondent(s) : Mr. Reashm Bhargava
Mr. Ramesh Chandra Sharma
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HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment Date of Judgment :: 19/12/2024
1. This civil first appeal has been filed by the appellant-plaintiff (for short 'the plaintiff') being dissatisfied with the judgment and decree dated 21.08.1989 passed by the Additional District Judge No.4, Jaipur in civil suit No. 12/81 whereby the trial Court dismissed the suit filed by the plaintiff for specific performance and permanent injunction.
2. Brief facts of the case are that the plaintiff filed a suit wherein it was mentioned that respondent-defendant No.2- Laxman Singh as a partner and Director of M/s. Barwada Land Development Corporation executed an agreement to sell dated 30.12.1976 for purchase of plot No. 26 admeasuring 450 square yards at the rate of Rs. 30/- per square yard in a total sale consideration of Rs. 13,500/-. After receiving an advance of Rs. 1,000/- (through cheque No. 262462) from the plaintiff, defendant No.2 handed over the possession of the said plot to the plaintiff at that time. As per the agreement to sell, the registered sale deed was to be executed within one week from the date of receipt of NOC from the competent authority appointed under the Urban Land (Ceiling and Regulation) Act, 1976. Responsibility was casted upon the defendants to bring NOC, but defendants failed to obtain NOC/permission from the concerned authority nor executed the registered sale deed in favour of the plaintiff. In July, 1978, contesting defendants informed that the papers were being prepared for obtaining NOC but despite that for a long time no (Downloaded on 23/12/2024 at 10:43:37 PM) [2024:RJ-JP:50918] (3 of 13) [CFA-104/1989] information was given to the plaintiff. In June 1980, defendant No.2 informed that they had not prepared the documents and if the plaintiff wanted to take NOC himself, he might take steps in this regard. He handed over incomplete documents to the plaintiff. On account of incomplete documents, plaintiff could not get the required NOC/permission. In July, 1980, plaintiff came to know that defendant Nos. 3 and 4 were raising construction on the disputed land. So, the plaintiff filed the present suit for specific performance and permanent injunction.
3. Defendant Nos. 2 to 4 did not turn up despite service of notice. Defendant No.1 filed the written statement and stated that Laxman Singh had no authority to execute the agreement to sell nor could he sell the plot on behalf of the firm. He had executed the said agreement in his personal capacity without the consent of other partners of the firm.
4. Learned trial Court on the basis of pleadings of the parties framed following issues:-
(i) Whether defendant No.2 in the capacity of partner and Director of defendant No.1 executed an agreement to sell dated 30.12.1976 to sale the plot as mentioned in para No. 2 of the plaint to the plaintiff in a sale consideration of Rs. 13,500/- and handed over possession and received advance of Rs. 1,000/- from him on the same day?
(ii) Whether plaintiff was always ready and willing to purchase the plot in question and to get the sale deed registered in his favour and as of now also he is ready and willing for the same?
(iii) Whether defendant Nos. 1 and 2 deliberately did not sell the plot and execute the registered sale deed?
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(iv) Whether Shiv Narayan had right to sell the disputed plot and whether defendant No.2 had no such right on behalf of defendant No.1?
(v) Whether defendant No.1 had legally sold the disputed plot to defendant No.4 on 20.08.1974 and handed over the possession to him on the same day? If it is so, what is its effect on the suit?
(vi) Whether defendant No.4 is a trespasser and he had no right to raise construction on the aforesaid plot?
(vii) Whether plaintiff is entitled to get decree for specific performance of the contract and permanent injunction against the defendants?
(viii) Relief?
5. To prove his case, plaintiff adduced the evidence of himself as PW-1 and got examined PW-2 S.S. Darbari and to prove their case, defendants adduced the evidence of DW-1 Shivnarayan, DW-2 Laxman Singh and DW-3 Kallu Khan. Both the parties exhibited some documents also.
6. The trial Court after hearing both the parties dismissed the suit filed by the plaintiff.
7. Learned counsel for the plaintiff submits that the trial Court has committed an error in dismissing the suit filed by the plaintiff. Learned counsel further submits that the trial Court has not appreciated the evidence led by the parties in right perspective and decided the issues against the plaintiff.
8. Learned counsel further submits that Laxman Singh had not filed any written statement but he appeared as a witness and admitted the agreement to sell dated 30.12.1976. (Downloaded on 23/12/2024 at 10:43:37 PM) [2024:RJ-JP:50918] (5 of 13) [CFA-104/1989]
9. Learned counsel further submits that contention of the defendants that Laxman Singh was not authorized to execute the agreement to sell because he had no authority to act on behalf of the firm M/s. Barwada Land Development Corporation, Jaipur, was not correct because Laxman Singh while executing the agreement (Ex.2) clearly stated that he was the partner and Director of the firm M/s. Barwada Land Development Corporation.
10. Learned counsel for the plaintiff further submits that Laxman Singh in the similar capacity also executed the agreement to sell with S.S. Darbari, R.N. Gaur and Parmesh Chandra. Suit filed by S.S. Darbari was decreed by the trial Court, which was upheld by the Hon'ble Supreme Court. Learned counsel for the plaintiff further submits that the suit filed by the Parmesh Chandra was also decreed by the trial Court and the appeal filed by the defendants against Parmesh Chandra was dismissed in default by this Court and the matter is presently pending before the Hon'ble Apex Court in which status quo has been directed to be maintained. Learned counsel for the plaintiff further submits that he had filed copy of these orders by filing an application under Order 41 Rule 27 read with Section 151 CPC.
11. Learned counsel further submits that plaintiff had given Rs. 1,000/- that was credited in the bank account of firm M/s. Barwada Land Development Corporation, for which the plaintiff had filed the bank account statement.
12. Learned counsel further submits that defendant-firm as well as other partners of the firm had not initiated any criminal proceedings against Laxman Singh regarding execution of the so- called agreement.
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13. Learned counsel further submits that contention of the defendants that Laxman Singh was not authorized to act on behalf of defendant No.1 is not correct. As per the Partnership Act, every partner is agent of the firm. He has authority to do the business on behalf of the firm and act of the partner is binding upon the firm.
14. Learned counsel further submits that Laxman Singh has given notice (Ex.6) of ULCER Act to the plaintiff for obtaining NOC. Learned counsel further submits that Laxman Singh has given the draft sale deed (Ex.9 and 10) to the plaintiff in which he clearly stated that the disputed land belongs to firm M/s Barwada Land Development Corporation in which he and his brothers Shivnarayan Singh and Bhagwati Singh have their share.
15. Learned counsel further submits that the firm was constituted for sale and purchase of the land. Learned counsel also submits that the plaintiff was ready and willing to execute the agreement to sell and he had given the notice for execution of the registered sale deed but defendants had not taken any step for registration of the agreement to sell. So, the judgment and decree dated 21.08.1989 passed by the trial Court be set aside.
16. Learned counsel for the plaintiff has placed reliance on the following judgments passed by the Hon'ble Supreme Court as well of different High Courts:-
(1) 'Sanganer Dal and Flour Mill Vs. F.C.I. and Ors.', reported in (1992) 1 SCC 145 (2) 'Bina Murlidhar Hemdev and ors. Vs. Kanhaiyalal Lokram Hemdev and Ors.', reported in AIR 1999 SC 2171 (Downloaded on 23/12/2024 at 10:43:37 PM) [2024:RJ-JP:50918] (7 of 13) [CFA-104/1989] (3) 'Muddas Ani Venketa Narsaiah (Dead) Through Lrs Vs. Muddasani Sarojana', reported in (2016) 12 SCC 288 (4) 'Narinderjit Singh vs. North Star Estate Promoters Ltd.', reported in (2012) 5 SCC 712, (5) 'K.S. Nanji and Co. Vs. Jatashankar Dossa' reported in AIR 1961 SC 1474 (6) 'A. Abdul Rashid Khan (Dead) and Ors. Vs. P.A.K.A. Shahul Hamid and Ors.', reported in (2000) 10 SCC 636 (7) 'Smt. Chandrakantaben Vs. Vadilal Bapalal Modi and Ors.' reported in (1989) 2 SCC 630, (8) 'Morumal Vs. Gobindram Bikhchand', reported in AIR 1933 SINDH 176, (9) 'Periambala Chettiar Vs. Muhammad Ghouse Saheb', reported in AIR 1945 MADRAS 263, (10) 'The Hukumchand Insurance Co. Ltd. Vs. The Bank of Baroda and ors.', reported in AIR 1977 KARNATAKA 204, (11) 'Miss Mohinder Kaur Kochhar Vs. Punjab National Bank Ltd., New Delhi and Ors.' reported in AIR 1981 DELHI 106 (12) 'Futuristic Solutions Ltd. Vs. Nirmal Promoters (P) Ltd., reported in 2016 SCC Online Del 5094, (13) 'Surendra Singh Vs. Lrs. Of Bhanwar Lal and Ors.' in DB Civil Special Appeal No. 31/93 decided on 30.05.2005 (14) 'Kirpal Singh Vs. Mst. Kartaro and Ors.' reported in AIR 1980 Raj 212.
17. Learned counsel for the defendants have opposed the arguments advanced by counsel for the plaintiff and submitted that Laxman Singh had no right to sell the property of the firm M/s. Barwada Land Development Corporation. His signatures were (Downloaded on 23/12/2024 at 10:43:37 PM) [2024:RJ-JP:50918] (8 of 13) [CFA-104/1989] obtained by the plaintiff on the agreement to sell when he was intoxicated. Laxman Singh was impleaded as a partner of the firm after the death of Raja Maan Singh. Previously, he was not the partner of the firm M/s. Barwada Land Development Corporation.
18. Learned counsel for the defendants further submits that Laxman Singh executed the so-called agreement to sell (Ex.2) in his personal capacity and not on behalf of the firm M/s. Barwada Land Development Corporation. Draft sale deed (Ex.9 and 10) also reveal that Laxman Singh had executed the said documents in his personal capacity.
19. Learned counsel for the defendants also submits that there is a major contradiction in the evidence of the plaintiff as well as his witnesses. Plaintiff stated that the agreement was executed at the firm's office and his witness S.S. Darbari stated that the so-called agreement was executed at circuit house.
20. Learned counsel for the defendants submits that defendants had also filed an application under Order 41 Rule 27 read with Order 42 Rule 1 read with Section 151 CPC wherein the defendants filed the document, which clearly shows that the matter of Parmesh Chandra is pending consideration before the Hon'ble Apex Court. In the case of S.S. Darbari, matter was disposed of on account of compromise arrived at between the parties. Suit filed by the Rameshwarnath Gour was dismissed by the trial Court. So, it has not yet been finally decided that Laxman Singh was authorized to execute the agreement to sell or not. So, the appeal filed by the plaintiff be dismissed. (Downloaded on 23/12/2024 at 10:43:37 PM) [2024:RJ-JP:50918] (9 of 13) [CFA-104/1989]
21. Learned counsel for the defendants have placed reliance on the following judgments of the Hon'ble Supreme Court as well as of different High Courts:-
(1) 'Nand Ram Vs. Dhudi and Anr.', reported in 2010 WLC (UC) 353, (2) 'Madangopal Vs. Narsingdas and sons', reported in AIR 1951 Raj 64 (DB) (3) 'Sanjiv Kumar vs. Ram Pyari', reported in 2012(1) CCC 060 (P&H) (4) 'Hardev Singh Vs. Director Land Record, Punjab and Ors.', reported in 2012(1) CCC 064 (P&H) DB, (5) 'Krishnakumari Mehra Vs. State of Rajasthan and Ors.', reported in 2011 (2) WLC 789, (6) 'Ghisulal Vs. Hazi Mohammed', reported in 1980 RLW 134, (7) 'Manjegowda Vs. M.R. Manjegowda and Ors., reported in 2012 (4) AIR Kar R 802, (8) 'Sreelal Mangtulal Vs. Lister Antiseptic Dressing Co. Ltd.' reported in 1925 Calcutta 1062, (9) 'K.V.Srinivasayya Vs. K.M. Nagappa and Ors., reported in AIR 1936 Madras 984 (10) 'Thummala Rama Rao and Ors. Vs. Chodagam Venkateswra Rao and Ors., reported in AIR 1963 AP 154 (DB), (11) 'M/s. Kantamani Venkata Narayana and Sons. Vs. First Addl. ITO, reported in AIR 1967 SC 587, (12) 'Smt. Sukha Devi and ors. Vs. Mithilesh Kumar and Anr.', reported in 2010 (81) ALR 545, (13) 'Atla Sidda Reddy Vs. Busi Subba Reddy and Ors.', reported in (2010) 6 SCC 666, (Downloaded on 23/12/2024 at 10:43:37 PM) [2024:RJ-JP:50918] (10 of 13) [CFA-104/1989] (14) 'Babu Lal Vs. M/s. Hazari Lal Kishore', reported in AIR 1982 SC 818, (15) 'Dharmambiri Rana Vs. Pramod Kumar Sharma' , reported in AIR 2017 SC 5431, (16) 'B. Vijaya Bharti Vs. Savitri and Ors.' reported in AIR 2017 SC 3934, (17) 'Deccan Paper Mills Co. Ltd. Vs. Regency Mahavir Properties Ltd.', reported in 2021 (4) SCC 786, (18) 'M/s. Ramesh Chandra Jamnadas & Co. Vs. State of AP', reported in 1987 (Supp) SCC 166, (19) 'Thimmah Vs. Shabina And Ors.', reported in 2008 (4) SCC 182, (20) 'Kundanmal Vs. Thikana Siryari, reported in AIR 1959 Raj.
146, (21) 'Julian D.J. Harry Vs. P.K. Khanna' reported in 2002 (1) WLC 210 (22) 'Prem Chand Vs. State of Rajashtan', in DB Habeas Corpus Writ Petition No. 2200/2001, decided on 10.09.2001.
22. I have considered the arguments advanced by learned counsel for the plaintiff as well as learned counsel for the defendants.
23. Plaintiff had filed the suit against the defendants for specific performance in which it is an admitted position that Laxman Singh was a partner of firm M/s. Barwada Land Development Corporation.
24. Contention of defendant No.1 is not correct that Laxman Singh had no authority to act on behalf of the firm M/s. Barwada Land Development Corporation because initially he was not (Downloaded on 23/12/2024 at 10:43:37 PM) [2024:RJ-JP:50918] (11 of 13) [CFA-104/1989] partner of the firm but he was impleaded later on as a partner of the firm after the death of Raja Maan Singh. It is an admitted position that Laxman Singh was a partner of the firm M/s. Barwada Land Development Corporation at the time of execution of the agreement to sell. As per Partnership Act, every partner is agent of the firm and firm is bound by the partner's act. Laxman Singh had executed the agreement to sell (Ex.2) in the capacity of the partner and director of the firm M/s. Barwada Land Development Corporation. Advance money taken by him as a consideration in lieu of the so-called agreement to sell was credited in the bank account of the firm.
25. Defendant No.2- Laxman Singh had not filed any written statement but he appeared as a witness and falsely stated that his signatures were obtained on the agreement to sell (Ex.2) while he was intoxicated. Laxman Singh as well as other partners had not initiated any criminal proceedings against the plaintiff for obtaining his signatures on the agreement to sell (Ex.2) in the intoxicated state. Laxman Singh in his similar capacity executed the agreement to sell in favour of S.S. Darbari, Parmesh Chandra and R.N. Gaur. Judgment and decree passed in favour of S.S. Darbari attained finality upto the Hon'ble Apex Court in which order was passed to execute the sale deed. Suit filed by Parmesh Chandra was decreed by the trial Court. Defendant No.1 preferred appeal against the said order which was dismissed in default by this Court. Defendant No.1 challenged the said order by way of Special Leave Petition in which the Hon'ble Apex Court directed to maintain status quo over the disputed property. (Downloaded on 23/12/2024 at 10:43:37 PM) [2024:RJ-JP:50918] (12 of 13) [CFA-104/1989]
26. Laxman Singh had not obtained NOC from the competent authority. When plaintiff contacted him, Laxman Singh had given notice (Ex.6) of ULCER Act to the plaintiff for obtaining NOC. Laxman Singh had also given the draft sale deed (Ex.9 and 10) to the plaintiff in which he had clearly stated that disputed land belongs to firm M/s. Barwada Land Development Corporation in which he and his brothers - Shivnarayan Singh and Bhagwati Singh have their shares. Draft sale deed was also executed by him as a partner and director of the firm M/s. Barwada Land Development Corporation. Plaintiff had given the notice to defendant for non-execution of the so-called agreement to sell (Ex.3). Defendant had not given any reply to the said notice. So, in my considered opinion, the trial Court has committed an error in dismissing the suit filed by the plaintiff. So, the present appeal filed by the plaintiff deserves to be allowed.
27. Appeal filed by the plaintiff is allowed. The judgment and decree dated 21.08.1989 passed by the trial Court is set aside. Plaintiff is entitled to get executed the registered sale deed of disputed plot No. 26, Barwada House Scheme in his favour within two months from today after paying the balance amount of sale consideration i.e. Rs. 12,500/- to the contesting defendants. The, contesting defendants are directed to execute the above sale deed in favour of the plaintiff immediately after receiving the balance amount of sale consideration i.e. Rs. 12,500/- and if they fail to execute the same, plaintiff would be at liberty to deposit the aforesaid amount before the trial Court for registration of the sale deed.
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28. Pending application(s), if any, stand(s) disposed of.
(NARENDRA SINGH DHADDHA),J Ritu/1 (Downloaded on 23/12/2024 at 10:43:37 PM) Powered by TCPDF (www.tcpdf.org)