Punjab-Haryana High Court
Sheo Dayal And Anr. vs Om Parkash And Ors. on 12 November, 1991
Equivalent citations: (1992)101PLR102
JUDGMENT G.R. Majithia, J.
1. This judgment disposes of Regular Second Appeals No. 40 and 41 of 1979. These are directed against the judgment and decree of the first appellate Court which, on appeal, reversed those of the trial Judge and decreed the suit of Om Parkash alias Dhaulia, plaintiff/respondent No. 1, for specific performance of agreement to lease dated January 10, 1974.
2. Facts first :-
Om Parkash alias Dhaulia, plaintiff-respondent No. 1, sought specific performance of agreement to lease dated January 10, 1974 regarding the suit land against Umrao Singh and Mittar Sen, defendant-respondents No. 2 and 3 in R. S. A. No. 40 of 1979 and appellants in R. S. A. No. 41 of 1979 (hereinafter referred to as the lessors). Sheo Dayal and Chiranji were arrayed as defendants Nos. 4 and 5 by the plaintiff since they claimed that they were in possession of the disputed land under a prior lease deed dated June 1, 1972. They are appellants in R. S. A. No. 40 of 1979, but will be referred to as the second lessees in the body of this judgment. As alleged in the plaint the lessors were to lease out the disputed land to the plaintiff for 99 years on payment of yearly rent of Rs. 180/-. The lease deed was to be registered on or before July 31,1974. The plaintiff was put in possession of the disputed land by the lessors. The second set of lessees threatened to dispossess the plaintiff from the disputed land. They claimed that they were in possession under an earlier lease agreement.
3. The lessors and the second set of lessees contested the claim of the plaintiff. The lessors denied having executed agreement to lease in favour of the plaintiff ; that the agreement to lease was otherwise invalid being in respect of the property which was charitable in character and inalienable. The second set of lessees pleaded that the agreement to lease in favour of the plaintiff was a fake document and they claimed themselves to be in possession of the disputed property under an agreement to lease under the lessors prior to the execution of the agreement to lease dated January 10, 1974.
4. From the pleadings of the patties, the following issues were framed by the learned trial Judge :
1) Whether defendants No. 1 and 2 executed a valid agreement to execute a lease deed dated 10.1.1974 in favour of the plaintiff? OPP
2) Whether defendants No. 1 and 2 were not competent to execute the agreement dated 10-1-1974 ? OPP
3) Whether the plaintiff is in possession of the impugned land by virtue of the aforesaid agreement ? OPP
4) Whether the agreement is collusive and has been brought into existence illegally ? OPD
5) Whether the suit is bad for misjoinder of parties and causes of action ? OPD
6) Whether the suit is not within time ? OPD
7) Whether the plaintiff was and is willing to perform his part of the contract ? OPP
8) Whether the plaintiff is entitled to decree for specific performance ? OPP
9) Whether the suit has not been properly valued for purposes of court-fee and jurisdiction ? OPD
10) Relief.
Additional issues were framed by an order dated May 27, 1977 and May 5, 1977 and these read thus :-
1-A) Whether Umrao Singh on his own behalf and on behalf of Mittar Sain received a sum of Rs. 8,000/- as alleged from the plaintiff on 11.6.74 and executed a receipt. If so, its effect ? OPP 2-A) Whether valid agreement of lease dated 16-6-74 in favour of defendants 4 and 5 was executed by defendants No. 1 and 2 ? OPD 2-B) Whether defendants No. 4 and 5 have been in possession of the impugned land prior to this agreement and if so, its effect ? OPD
5. The trial Judge under issue No. 1 held that the agreement to lease dated January 10, 1974 was executed by the lessors in favour of the plaintiff. Under issue No. l-A, it was held that a sum of Rs. 8,000/- alleged to have been advanced by the plaintiff to the lessors on July 11, 1974 was not advanced and this issue was answered against the plaintiff. Issues No. 2-B and 3 were disposed of together and it was held that the second set of lessees were not put in possession of the disputed land after the execution of the lease deed dated June 1. 1972. The plaintiff was found to have been put in possession by the lessors after the execution of agreement to lease dated January 10, 1974. Both these issues were decided in favour of the plaintiff. The trial Judge held that the agreement to lease dated January 10, 1974 executed by the lessors in favour of the lessee was without consideration and the sum of Rs. 8,600/- allegedly paid by the plaintiff to the lessors as consideration of the agreement to lease was never paid.
6. The first appellate Court, on appeal, although endorsed the finding of the trial Judge that a sum of Rs. 8,000/- allegedly advanced by the plaintiff to the Lessors was not paid; but in the later part of the judgment hastened to hold that non-payment of the advance amount will not render the agreement to lease as without consideration. On these premises, the first appellate Court reversed the judgment and decree of the trial Judge and decreed the suit of the plaintiff for specific performance of the agreement to lease. Agreement to lease dated January 10. 1974 says that the land measuring 16 Kanals 13 Marias owned by the Dharamsala of village Chhapra Salimpur, Tehsil Narnaul was leased out by the Mohtmims-the Lessors-to the plaintiff far 99 years on payment of Rs. 180/- per annum as lease money. Necessity of lease was felt as the roofs of the Dharamsaia required repairs. On July 11, 1974, a sum of Rs. 8,000/- allegedly was paid as advance money to one of the lessors, namely, Umrao Singh. The first appellate Court, on appreciation of the evidence, came to the conclusion that a sum of Rs. 8,000/- was not paid as alleged by the plaintiff to the lessors. This finding has not been assailed in second appeal and, in fact no fault can be found with it, since it is essentially a finding of fact. The amount which is alleged to have been paid as advance money by the plaintiff to one of the lessors having been found not to have been paid, the transaction of lease is rendered void. This amount may not represent the total consideration of the lease but was a substantial portion of the lease money. An agreement to lease without consideration is void. Section 25 of the Contract Act embodies well recognised rule of law that agreements without consideration are void unless they fall within the exception stated therein and the agreement to lease does not fail in any of its exceptions. The totality of the circumstances indicates that the lessors, who are the Mohtmims of the Dharamsala did not act in the interests of the institution and created a lease for 99 years for a negligible annual lease money. Permanent lease of religious and charitable property is impermissible unless it is justified in law. No justification is forthcoming in the instant case.
7. The agreement to lease in favour of the second set of lessees has been found to be invalid. The first appellate Court found that the alleged lease purports to have been created on June 1, 1972. Possession was never transferred to the second set of lessees pursuant to this agreement of lease and the evidence created to establish transference of possession was unreliable. The finding recorded by the first appellate Court that the lease agreement dated June 1, 1972 in favour of the second set of lessees is invalid, is unexceptional. The finding has not been shown to be suffering from any infirmity calling for interference in second appeal.
8. For the reasons stated above, R.S.A. No. 41 of 1979 filed by the lessors is allowed, while R.S.A. No. 40 of 1979 filed by the second set of lessees is dismissed. The suit for specific performance (Civil Suit No. 310 of 1914) filed by the plaintiff giving rise to R.S.A. No. 41 of 1979 is dismissed. There will be no order as to costs.