Himachal Pradesh High Court
Kanshi Ram vs Radhi Devi (Deleted) Sh.Jiwnu And ... on 17 December, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
R.S.A. No. 317 of 2005 Reserved on: 06.12.2018 Decided on : 17.12,2018.
Kanshi Ram ...Appellant/Plaintiff
Versus
Radhi Devi (deleted) Sh.Jiwnu and others. ..Respondents/Defendants.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. Neeraj Gupta, Advocate.
For the Respondents : Respondent No.1 deleted.
Respondents No.2 and 3 exparte.
Mr.K.D.Sood, Senior Advocate, with Mr. Rajnish K. Lal, Advocate, for respondent No.4.
Tarlok Singh Chauhan, Judge The appellant is the plaintiff, who after having lost before both the learned Courts below, has filed the instant appeal.
The parties shall be referred to as the 'plaintiff' and the 'defendants'.
2. The plaintiff filed a suit for specific performance of contract 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 2 and in alternative for damages of Rs.36,000/- against the defendants .
on the allegation that the disputed land measuring 5-1 bighas comprising of Khata Khatauni No. 39/47, Khasra No. 353/324/192 situated in Chak Sarog, Paragna Parali, Tehsil Theog, District Shimla was owned by one Sehju, who was huaband of St. Radhi Devi defendant No.1. On 11.6.1987, Sehju agreed to sell the disputed land to the plaintiff for a consideration of Rs.8000/-, out of which Rs.6500/-
were paid by the plaintiff to Sehju at the time of execution of the agreement to sell. It was further averred that the disputed land was allotted to Sehju by the Government of Himachal Pradesh by way of Nautor in the year 1975 and as per the terms of Nautor, Sehju was not authorised to transfer this land before the expiry of 15 years from the date of grant. For this reason, the sale deed in favour of the plaintiff was not executed on 11.6.1987 and it was agreed between the parties that Sehju shall receive the balance amount of Rs.1500/- at the time of the execution of the sale deed which was to be executed within a period of six months after the completion of the period of 15 years from the date of grant or at the time when Sehju was to notify the date of executing the sale deed to the plaintiff. However, Sehju died before executing the sale deed and the disputed land then devolved upon defendant No.1. As per the case of the plaintiff, defendant No.1 also agreed to execute the sale deed in favour of the plaintiff. However, ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 3 this was not done and in fact defendant No.1 illegally and .
unauthorisedly executed a gift deed in favou of Shanti Devi, defendant No.3 on 3.5.1997 whereby a part of the disputed land was gifted by defendant No.1 in favour of Shanti Devi. The plaintiff came to know about this fact after he obtained a copy of jamabandi from the Pawari.
It was lastly averred that the plaintiff was always ready and willing and is still ready and willing to pay the balance sale price, but it was defendant No.1 who failed to execute the sale deed. Hence the suit for specific performance in respect of agreement dated 11.6.1987 against the defendants. In the alternative, the defendants be made to pay a sum of Rs.36,000/- to him as damages on account of failure of defendant No.1 to execute the sale deed in his favour.
3. The suit was contested by the defendants by filing written statement wherein it was admitted that the disputed land was allotted to Sehju under special Nautor Scheme to landless persons in the year 1975. However, it was denied that Sehju had entered into any agreement with the plaintiff or that he had agreed to sell the disputed land in favour of the plaintiff for a consideration of Rs.8000/-. It was also claimed that Sehju was not competent to sell the land because the same was granted to him by way of Nautor. It was further averred that the agreement dated 11.6.1987 even if executed was void, illegal and inoperative and, therefore, the plaintiff was not entitled to the ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 4 relief of specific performance. It was further averred that the gift deed .
in respect of a part of the disputed land executed by defendant No.1 in favour of defendant No.3 was lawful and valid and it was further claimed that the possession of this land had already been given to defendant No.3. Thus, the defendants prayed for dismissal of the suit.
4. On the pleadings of the parties, the learned trial Court framed the following issues:
1. Whether the plaintiff is entitled for the specific r performance of the contract as alleged? OPP
2. Whether the plaintiff is entitled for damages? OPP
3. Whether the suit is within limitation? OPP
4. Whether the gift-deed of the part of the suit land in favour of the defendant No.2 is wrong and illegal? OPP
5. Whether the suit is not maintainable? OPD
6. Relief.
5. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit and the appeal filed against the same was also dismissed by the learned first Appellate Court vide its judgment and decree dated 28.3.2005.
6. Aggrieved by the judgments and decrees so passed by the learned Courts below, the plaintiff has filed the instant appeal which came to be admitted on 4.7.2005 on the following substantial questions of law:
::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 51. Whether the judgment and decrees of both the Courts below are a result of complete misleading and .
misconstruing of the pleadings and the documentary evidence, especially Ext.P-1 and Ext.P-2?
2. When the document Ext.P-1 was held to be illegal, void and against public policy were both the courts below not under an obligation to grant appropriate relief to the plaintiff-appellant for the damages sustained by him under the said agreement to sell and the benefit derived by the predecessor-in-interest of respondent No.1, in view of the applicability of Section 65 of the Indian Contract Act. Are not the findings of both the Courts below vitiated when the entire suit of the plaintiff-appellant has been dismissed?
3. When the plaintiff-appellant had specifically assailed the execution of the Gift Deed in favour of defendant No.3 by defendant No.1 and issue No.4 was framed by the learned trial Court, was it not mandatory to return specific findings by both the Courts below as to whether the Gift Deed was valid or not, especially when the defendants had themselves pleaded that the said Gift Deed had themselves pleaded that the said Gift Deed had themselves pleaded that the said Gift Deed was executed without the delivery of possession?
4. When the plaintiff-appellant was put in possession of suit land, on the basis of agreement to sell, Ext.P-1, could the relief of injunction still be declined when only Ext.P-1 has been held to be illegal, void etc. by the two ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 6 Courts without returning a specific finding regarding possession?
.
7. However, before answering the substantial questions of law, it needs to be noticed that during the pendency of the appeal, defendant No.1 transferred the suit land in favour of one Om Parkash on 20.10.2010 vide registration No. 462 of 2010, Book No. 1 reference No. 831/2010 vide sale deed registered in the office of Sub Registrar, Theog, District Shimla, H.P. Accordingly, said Om Parkash was ordered to be arrayeed as respondent No.4 in this appeal.
I have heard learned counsel for the parties and gone through the material placed on record.
SUBSTANTIAL QUESTIONS OF LAW NO.1, 2 & 4:
8. At the outset, it needs to be noticed that certain issues were conclusively decided against the defendants and they have not filed any appeal or cross-objections against the same. Even though, the defendants have denied the execution of the agreement dated 11.6.1987 by late Sh. Sehju, however, the same was held to have been duly established and proved on record as is evident from paras 11 to 13 of the judgment passed by learned first appellate Court.
Therefore, in such circumstances, only the question that remains to be answered is qua the agreement of sale Ex.P-1 whether the same is a lawful agreement capable of specific performance or that the agreement is illegal and void being against the public policy.
::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 79. Noticeably, both the learned Courts below held the agreement to .
be illegal, void and against public policy after placing reliance upon the Division Bench judgment of this Court in Chet Ram and others vs. Sawanu Ram and others AIR 1985 Himachal Pradesh 97. The facts therein were that the plaintiff had filed a suit for permanent prohibitory and mandatory injunction qua the land in dispute on the allegation that the same had been granted to defendant No.1 as Nautor, which was objected to by the plaintiff. A compromise in writing was effected between the parties on 15.12.1954, according to which the parties came in possession of the disputed land in equal shares, each party having 1/9th share. Defendant No.1 therein agreed to get a mutation sanctioned in plaintiff's favour. The plaintiffs were put in possession of the land and they did not doubt the bonafides of defendant No.1. The plaintiffs alleged that after 12.7.1964, defendant No.1 started interfering with the plaintiffs' possession, compelling them to file the suit. The defendants did not admit the plaintiffs' claim and contested the suit. They denied the execution of the agreement/compromise and further alleged that the same was void and unenforceable. Learned trial Court decreed the suit, against which the defendants filed the appeal, which was accepted by the first Appellate Court and held that the agreement dated 15.12.1954 was simply a paper transaction and was never acted upon. It was further held that the agreement was ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 8 against the spirit of the nautor patta. Aggrieved, the plaintiffs filed an .
appeal being RSA No. 24 of 1968 before this Court. Learned Single Judge of this Court vide judgment and decree dated 16.4.1971 dismissed the appeal with costs and held that the disputed land was leased out to defendant No.1 by the Government and, therefore, defendant No.1 could not confer any rights upon the plaintiffs by any compromise. This judgment and decree was assailed before learned Division Bench of this Court in LPA No. 22 of 1971 wherein it was argued by the plaintiffs that the agreement dated 15.12.1954 was valid and binding and defendant No.1 had handed over the possession of the land to the plaintiffs. He had also contended that defendant No.1 was competent to do so and therefore, the findings rendered by the first Appellate Court and learned Single Judge of this Court were not based upon proper appreciation of law and facts. Even though he conceded that the Himachal Pradesh Nautor Rules, 1954 had the force of law in view of the decision of this Court in Som Krishan vs. State, AIR 1979 Himachal Pradesh 35.
10. It was in this factual background that learned Division Bench of this Court while dismissing the appeal held that the object of granting Nautor was to implement a policy of the Government to help certain persons who are either landless or have very little holdings and who need land for cultivation for the purposes of their ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 9 'subsistence'. Since defendant No.1 got the land as Nautor for himself .
for his subsistence, therefore, he was bound by the conditions of the Patta and the Nautor Rules. The purpose of granting Nautor to various persons under the Nautor Rules was a matter of policy of the Government, whereby it wanted to help certain poor and landless persons by giving them land for their subsistence. This grant was personal to the allottee and, therefore, could not be transferred in favour of the other eight persons therein as this would amount to circumventing the policy of the Government. Therefore, this action of defendant No.1 by entering into an agreement was against the public policy.
11. Here it shall be apposite to refer to the relevant observations as contained in paragraphs 12 to 17 of the judgment which read thus:
"12. Thus according to the Nautor Rules and the conditions of the patta (Ex. D-l) the disputed land was granted to defendant 1 for 'subsistence' and he was to make it fit for cultivation within two years. In case defendant 1 failed to break up and terrace the land within two years, the grant was liable to resumption and defendant I could not claim compensation even if certain improvements had been effected by him. A combined reading of the various Nautor Rules and the conditions of the patta (Ex. D-l) clearly indicate that the object to such grant is to implement a policy of the Government to help ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 10 certain persons who are either landless or have very little holdings and who need land for cultivation for the .
purposes of their 'subsistence'.
13. Defendant 1 got the land subject to the conditions incorporated in the patta (Ex.D-1) and under the Nautor Rules.
The Government while granting, the nautor to defendant 1 must have kept in view the fact that defendant 1 required the land for his subsistence and it could be granted in his favour under the Nautor Rules. Now, even if the agreement dt. 15-12- 1954 (Ex. PW 4/A) is admitted to be proved, still such an agreement is 'forbidden by law' and is not enforceable under Section 23, Contract Act. By this agreement defendant 1 had agreed to divide the disputed land in 9 equal shares thus keeping only one share for himself. For the remaining 8/9th share he agreed to relinquish his rights and accept the other 8 persons as owners. Defendant 1 after having got the land as 'nautor' for himself for subsistence purposes was bound by the conditions of the patta (Ex. D-l) as well as the Nautor Rules.
He had no authority or right to transfer his ownership rights to third person on payment of any amount. Further, the land was given to defendant 1 for cultivation purposes only. By the agreement (Ex. PW 4/A) defendant 1 agreed that the 8/9th portion of the land would remain in the ownership of the other persons as it was their grazing ground. 1 n other words, this land could not be utilized for cultivation purposes and was to remain a grazing ground, that is, uncultivated land. Such an agreement is clearly forbidden by law and will defeat the very object of the grant of land in favour of defendant 1. Hence the plaintiffs cannot seek the enforcement of this agreement (Ex.PW 4/A). The purpose of granting nautor to various persons under the Nautor Rules is a matter of policy of the ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 11 Government. The Government wanted to help certain poor and landless persons by giving them land for their subsistence.
.
14. In AIR 1934 Mad 811 (Ganesh Naicken v. Arumugha Naicken) it was held that where a grant was in the nature of a gift by the Government with a specific provision that the property shall not be alienated without the consent of the Tehsildar, it was intended to be personal to the grantee. Any contract which has the effect of circumventing this policy of the Government would be opposed to public policy.
15. In the present case too, the Government granted nautor to defendant 1 with certain specific conditions. Under the conditions of the patta (Ex. EM) and the Nautor Rules, defendant 1 was supposed to break up the land and make it fit for cultivation so that he could utilise the same for his subsistence. Defendant 1 was under an obligation to allow the Government to resume this grant without any compensation even if he had made certain improvements on the same, if he failed to break up and terrace this land within two years from the date of the grant. Thus it was also a persona! grant to defendant 1. By transferring his rights of grant in favour of other 8 persons defendant 1 has in fact circumvented the policy of the Government and this action of defendant 1 is, therefore, against the public policy.
16. In view of the above discussion, the agreement dt. 15- 12-1954 (Ex.PW 4/A) is unenforceable and the plaintiffs cannot be granted any relief on the basis of this agreement. We also do not find any reasons to disagree with the various reasonings given by the learned single Judge in his judgment D/-16-4-1971.
::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 1217. As a result of the above discussion, the present appeal is dismissed."
.
12. It is, more than settled that the Division Bench decision is binding on Single Judge and judicial comity demands that binding decision to which the attention has been drawn should neither be ignored nor overlooked. The decision of the Division Bench in Chet Ram's case (supra) is binding on this Court and, therefore, on the basis of the aforesaid exposition of law, it can conveniently be held that sale made by the grantee in violation of the conditions with regard to the utilisation of the land granted as Nautor before the expiry of the period I.e.15 years is against the public policy and, therefore, the agreement executed by grantee with the plaintiff transferring his rights were void and unenforceable. The facts of the present case are akin to those in Som Krishan's case and, therefore, fully applicable to the facts of the present case.
13. That being the factual position, obviously, therefore, the agreement executed between Sehju and the plaintiff which even though proved on record being void is unenforceable as the same is against the public policy.
14. Section 23 of the Indian Contract Act, reads as under:
"23. - The consideration or object of an agreement is lawful, unless - it is forbidden by law; or is of such a ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 13 nature that, if permitted, it would defeat the provisions of .
any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
15. It is more than settled that where a contract is illegal being contrary to positive law or against public policy, an action cannot be maintained to enforce it directly or to recover the value of services rendered under it or money paid on it. Therefore, the Court cannot direct the refund of money paid as part consideration. Thus, where a contract is entered into for making purchases prohibited by statute, no party can invoke the aid of a court to have such a contract carried into effect, as law will not tolerate any party to violate any moral or legal duties.
16. If money is advanced for a purchase which is either opposed to morals or law, in furtherance of an illegal transaction, such advance is not recoverable. No relief can be given when a case is based on illegality. Therefore, once the document Ex.P-1 was held to be illegal, void and against the public policy, the Courts below were not ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 14 under obligation to grant appropriate relief or rather any relief to the .
plaintiff/appellant.
17. Thus, on the basis of the aforesaid discussion, it can conveniently be held that the judgments and decrees passed by learned Courts below are based on correct reading and construction of pleadings and the documentary evidence available on record.
Accordingly, substantial questions of law No.1, 2 and 4 are answered against the appellant/plaintiff.
SUBSTANTIAL QUESTION OF LAW NO.3:
18. As this Court has already held that transaction entered into between Sehju and plaintiff to be void and against the public policy, therefore, the plaintiff had no locus standi to assail the gift deed made by defendant No.1 in favour of defendant No.3. Accordingly, substantial question of law No. 3 is decided against the appellant/plaintiff.
19. Once the agreement is against the public policy and void, therefore, the Court were not come in the aid of the plaintiff to protect his so called possession under void and unenforceable agreement.
20. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any.
CMP NO. 449 OF 2011:
::: Downloaded on - 19/12/2018 22:55:43 :::HCHP 1521. The appellant/plaintiff has filed this application for initiating contempt proceedings against respondent No.1 Radhi Devi on the ground .
that the appellant alongwith the appeal had filed application under Order 39 Rule 1 & 2 CPC which was registered as CMP No. 556 of 2005. This court while admitting the appeal on 4.7.2005 had passed an interim order in this application thereby restraining the respondents from selling, transferring, alienating or encumbering the suit land in any manner till further orders.
22. The respondents were put to notice of the appeal as well as the application. Only respondent No.1 contested the application by filing reply. However, this Court vide its order dated 10.1.2006 made the interim order dated 4.7.2005 absolute during the pendency of the appeal.
23. The respondent No.1 in utter disregard to the aforesaid orders transferred the suit land during the pendency of the appeal in favour of one Om Parkash S/o Sh. Mouji Ram.
24. Since respondent No.1 Radhi Devi against whom alone this application is directed has already died issueless on 22.5.2014 and her name has already been ordered to be deleted from the array of the respondents, therefore, this application seeking initiation of contempt proceedings against respondent No.1 has been rendered infructuous with efflux of time and is ordered to be dismissed as such.
17th December, 2018. ( Tarlok Singh Chauhan ) (GR) Judge ::: Downloaded on - 19/12/2018 22:55:43 :::HCHP