Himachal Pradesh High Court
Dildar Singh vs Jagdev Singh & Others on 28 September, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 519 of 2006 .
Reserved on : 20th September, 2018.
Decided on : 28th September, 2018.
Dildar Singh .....Appellant/defendant.
Versus Jagdev Singh & others Coram:
r to .....Respondents/plaintiffs The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Rajesh Kumar, Advocate.
For Respondent No.1 & 2: Mr. Shanti Swaroop, Advocate.
For other respondents: Nemo.
Sureshwar Thakur, Judge.
The instant appeal, is, directed against the concurrently recorded verdicts by both the learned courts below, whereunder, the plaintiff's suit for rendition, of, a 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 03/10/2018 22:57:30 :::HCHP...2...
.
decree for specific performance of agreement to sell, stood hence decreed, in the affirmative.
2. Briefly stated the facts of the case are that the on 1.12.1997, defendant No.1 has agreed to sell land comprising khata No.90/171 and 134/208, Khasra Nos.
25R19/2 being ½ share, 25R/19/4, and, 22/1 being ¼ share, situated in village Bathu, Sub Tehsil Haroli, District Una, H.P., for total consideration of Rs.30,000/-, and, a sum of Rs.15,000/- was paid as earnest money and an agreement was reduced into writing. Defendant No.1 agreed to execute the sale deed on or before 31.3.1998 and it was also agreed that in case of default the defendant would be liable to pay double of the amount having been received by the defendant as earnest money. The plaintiffs are ready and willing to perform their part of contract after paying the balance amount of Rs.15,000/- as per agreement. The plaintiffs have come to know that defendant No.1 is going to sell the suit land ::: Downloaded on - 03/10/2018 22:57:30 :::HCHP ...3...
.
to defendant No.2 Sh. Rasil Singh in order to defraud and frustrate the agreement dated 1.12.1997. The plaintiffs served the notice through registered post upon the defendants to get sale deed executed and registered in favour of the plaintiffs after receiving the balance amount by 5.12.1997 and not entering into an agreement with defendant No.2, but defendants refused to receive the notice. Thus, the plaintiff prayed for the decree of specific performance of contract dated 1.12.1997 and also for consequential relief of permanent injunction restraining defendant No.1 from alienating the suit land to defendant No.2 or some other persons and in the alternative the decree for recovery of Rs.30,000/- along with interest.
3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objection qua maintainability and the suit being premature. On merits, the defendants have alleged that ::: Downloaded on - 03/10/2018 22:57:30 :::HCHP ...4...
.
the agreement of 1.12.1997 is not valid and does not require any performance. Defendant No.1 was not competent to execute the said agreement and to dispose of the property thereafter as the same is joint Hindu Family coparcenary property acquire from common ancestor.
Defendant No.1 is "Karta" of the joint Hindu Family coparcenary property and is custodian on behalf of his two minor coparceners Mohit Kumar and Sandeep Kumar, which cannot be sold without legal necessity. The defendant is ready to return the earnest money received by him.
4. The plaintiffs filed replication to the written statement of the defendant(s), wherein, they denied the contents of the written statement and re-affirmed and re-
asserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
::: Downloaded on - 03/10/2018 22:57:30 :::HCHP...5...
.
1. Whether the plaintiffs are entitled for relief of specific performance of contract on the basis of agreement to sell dated 1.12.1997, as alleged?
OPP.
2. Whether the suit of the plaintiffs is not maintainable being premature, as alleged?OPD.
6. 3. r Relief.
On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents herein. In an appeal, preferred therefrom, by, the defendant/appellant herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the judgment and decree recorded by the learned trial Court.
7. Now the defendant/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for ::: Downloaded on - 03/10/2018 22:57:30 :::HCHP ...6...
.
admission, this Court, on 29.11.2006, admitted the appeal instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:-
1. Whether the lower courts committed a mistake of law in passing the decree for specific performance, though no cause of action had arisen to the respondents?
2. Whether the decrees passed are against the provisions of Section 14 of the Specific Relief Act?
Substantial questions of Law No.1 and 2:
8. The litigating parties do not rear any contest, vis-a-vis, the valid execution, of, the apposite agreement to sell, borne in Ex.PW1/A. The learned counsel appearing for the aggrieved defendant has contended with much vigour before this Court (i) that with, a, prescription occurring therein, vis-a-vis, the defendant agreeing to, upto 31st March, 1998, hence execute a registered deed of conveyance, vis-a-vis, the property ::: Downloaded on - 03/10/2018 22:57:30 :::HCHP ...7...
.
disclosed therein, (ii) whereas, the apt suit being instituted much earlier therefrom hence, no enlivened cause of action accrued, vis-a-vis, the plaintiff nor the apt cause of action has hence ripened, (iii) hence, he contends that the suit is premature, and, warrants rather reared ground r would to its being dismissed, than, its being decreed.
carry immense
The afore
weight, and,
formidability, (iv) upon, evidence making clear evincings qua the aggrieved defendant's conduct, not, rearing any genuine apprehension, in the mind of the plaintiffs, that, unless a insistence, is, made by the latter, for, preponing, the, execution of the registered deed of conveyance in purusuance, of, Ex.PW1/A, (v) thereupon, there being every likelihood qua the defendant, alienating it, to some other persons, (vi) and, also hence, the, preponing, of, the institution of the suit, rather would not attract the casualty, of it, containing an un-enlivened, and, an unripened cause of action. However, a perusal of ::: Downloaded on - 03/10/2018 22:57:30 :::HCHP ...8...
.
Ex.PW1/B, issued on 3.12.1997, hence, much earlier, than, the period prescribed in the apt agreement, to sell, though stood sent through a registered AD, yet, with an endorsement occurring, on face thereof, revealing, qua the addressee thereof, rather refusing to accept it, does, rear inferences of (a) the refusal on the part of defendant Rasil Singh to receive it, given its addressee being a counsel, rather ex facie emanating from it containing a notice, from, the plaintiff, for, an insistence upon him, to execute a registered deed of conveyance, vis-a-vis, the property in respect whereof Ex.PW1/A, hence stood drawn. Issuance of notice, borne in Ex.PW1/B, appears to be genuinely issued or well founded, upon, an unillusory apprehension, given, the defendants' hence executing prior thereto, on, 9.12.1997, a registered deed of conveyance, vis-a-vis, the other half share of the suit property, vis-a-vis, the vendee named therein, (b) and, reiteratedly hence the plaintiffs being prodded to insist, ::: Downloaded on - 03/10/2018 22:57:30 :::HCHP ...9...
.
for, preponment, of, execution, of, the registered deed of conveyance qua the property, in respect whereof, Ex.PW1/A was drawn, and, when reiteratedly the apt notice was dispatched, under, a registered cover to the defendants, and, when on the face, of, the registered letter, an endorsement, is, made by the postman concerned, qua the addressee defendant Rasil Singh, rather refusing to receive it, (c) thereupon, the plaintiffs' apprehension being squarely firmed up, and, with theirs instituting, the suit in sequel thereof, though, prior to the deadline set forth in the agreement to sell, borne in Ex.PW1/A, (d) rather begets, an inference qua the plaintiffs' suit being not construable to be premature, and, nor it can be construed, that, hence no ripened or enlivened cause of action, in contemporaneity thereto hence accruing, vis-a-vis, the plaintiff. Contrarily, an inference, is, engendered therefrom qua the defendant, ::: Downloaded on - 03/10/2018 22:57:30 :::HCHP ...10...
.
rather being unwilling to perform his part of contract or his obligation, as, encumbered upon him under Ex.PW1/A.
9. The learned counsel appearing for the aggrieved defendant/appellant, has, with much vigour while laying much emphasis, upon, the statutory provisions, as, borne in Section 14 of the Specific Relief Act, (i) hence contended that with the plaintiff claiming, apart from, the primary relief of rendition of, a, decree, of, specific performance, vis-a-vis, the contract of sale, embodied in Ex.PW1/A, (ii) rather an alternative thereto relief, of rendition, of, a decree of recovery of a sum of Rs.30,000/- alongwith interest, (iii) thereupon, hence, it constitutes the apt abandonment(s) by the plaintiff, vis-a-
vis, the rendition, of, the primary decree of specific performance, (iv) rather, hence it was enjoined, upon, both the learned Courts below, to, hence adjudge a reasonable compensation amount, in, substitution of ::: Downloaded on - 03/10/2018 22:57:30 :::HCHP ...11...
.
rendition, of, the primary decree of specific performance of contract, vis-a-vis, the plaintiff.
10. The learned counsel appearing for the appellant/defendant has further contended, with much vehemence, that (a) the learned Courts below in granting the primary relief of specific performance, of ,the apt contract, and, rather theirs not proceeding to grant the alternative relief qua the plaintiff, have hence visibly committed a gross legal fallacy, (b) fallacy whereof, ingraining the judgment and decree, is, espoused to stand, comprised in the learned courts below, while rendering the aforesaid decree, theirs not adhering to the mandate encapsulated, in, a verdict rendered by the Hon'ble Apex Court, in a case titled as Dadarao and another versus Rarao and others, reported in 2001(1) Cur. L. J. (C.C.R) SC, 18, relevant portion whereof stand extracted hereinafter:-
::: Downloaded on - 03/10/2018 22:57:30 :::HCHP...12...
"Specific Relief Act, 1963, Sections 14 and 16- .
Specific Performance- If the agreement had not stipulated as to what is to happen in the event of the sale not going through, the plaintiff could have asked the court for a decree of specific performance- Here the parties to the engagement had agreed to even if the seller did not want to execute the sale deed, he would only be required to refund the amount to complete the sale transaction."
The afore contention is misfounded, (c) given the hereinbefore extracted paragraph only appertaining, vis-
a-vis, the recitals, borne in the contract, of sale wherewith the Hon'ble Apex Court thereat, hence, stood seized, (d) and, wherein stood embodied a specific clause qua, upon, in the event of apt breaches, (e) thereupon, only damages being defrayable by the errant contracting party to the opposite party, (f) and, also a specific recital being borne therein qua hence no primary relief for specific performance, of, contract being claimable nor ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...13...
.
validly renderable; (g) besides AND also for reasons ascribed hereinafter, he miscontends, that, the aforesaid apt pointed distinguishing fact, as, borne, in, Dadarao's case (supra), hence visibly, is, per incuriam, vis-a-vis, the decision rendered by the Hon'ble Apex Court in a case titled as M.L. Devender Singh and others vs. Syed Khaja, reported in 1973(2) SCC 515., wherein, rather a trite mandate is borne, for, rendition, of, a primary decee, of specific performance of contract.
11. Be that as it may, hereinafter it is, the, predominant duty of this Court, to, analyse the verdict rendered by the Hon'ble Apex Court, in, M.L. Devender Singh's case (supra), (a) wherein, the Hon'ble Apex Court had after analysing, the, provisions of Section 10, of, the Specific Relief Act, and, the provisions of Section 23 of the Specific Relief Act, hence squared, the, trite conclusion (b) qua with the errant defendant therein being placed, in, a position, to, rather exploit the need of ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...14...
.
the plaintiff, whereas, the plaintiff acting fairly and bonafidely, with, the errant defendant, (c) thereupon, hence recorded a conclusion, qua, the plaintiff being entitled, to, the primary decree of specific performance of contract, and, the according of the alternative relief of damages or refunds, by the learned trial Court, in consonance with the apt recitals borne therein, in the contract of sale, (d) rather emanating from the learned trial Court, not, exercising its discretion, in accordance with law. Even if, the Hon'ble Appex Court in M.L. Devender's Case (supra), has in paragraph No.19 thereof, para whereof stands extracted hereinafter:-
"19. A reference to Section 22 of the old Act, (the corresponding provision is Section 20 of the Act of 1963) would show that the jurisdiction of the Court to decree specific relief is discretionary and must be exercised on sound and reasonable grounds "guided by judicial principles and capable of correction by the Court of appeal". This jurisdiction cannot be curtailed or taken away by merely fixing a sum even as liquidated damages. This is made perfectly clear by the provisions of Section 20 of the old Act (corresponding to Section ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...15...
23 of the Act of 1963) so that the Court has to .
determine, on the facts and circumstances of each case before it, whether specific performance of a contract to convey a property ought to be granted."
(I) mandated qua the jurisdiction, of, Civil Courts, to render a primary decree, of, specific performance of contract, though, being discretionary, (ii) yet its exercise being founded, upon, sound and reasonable principles,
(iii) and, also expostulations, stand borne therein, qua the afore apt jurisdiction of the Civil Courts, being not amenable for curtailment, merely by fixing pecuniary, sums, as, liquidated damages, yet obviously reading thereof does not foist any rigid principle of law qua (iv ) it being always incumbent, upon, the civil courts to render, a, primary decree, of specific performance of contract of sale, (v) and, the alternative thereto contemplated relief, of, refund of money, hence, by the errant contracting party, to, the opposite party, being throughout rather grossly impermissible; (vi) thereupon, for want of fixity of, a, rigid principle, and, further when the plaintiff herein, ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...16...
.
in, consonance with the apt recitals borne, in Ex.PW1/A, and, with a clear contemplation borne therein, vis-a-vis, upon the defendant hence breaching the obligations cast therein, upon him, his, being enjoined to refund the moneys contemplated therein, (vii) hence espousing, in, substitution of the primary relief of rendition, of, a decree of specific performance of contract of sale, rather qua the apt contemplated refunds, is rather a valid espousable, and, decreeable relief, being made qua him, (ix) paramountly, when a reading, of, the verdict of the Hon'ble Apex Court, rendered, in M.L. Devender's case (supra), does not reflect (x) that the plaintiff in the afore case hence making an alike espousal, (xi) thereupon, when hereat the apt alternative relief, is, espoused by the plaintiff, thereupon, prima facie, he is estopped, given his hence purportedly waiving and abandoning, the primary relief to hence claim qua a compliant decree, in consonance therewith, being rendered.
::: Downloaded on - 03/10/2018 22:57:31 :::HCHP...17...
.
12. Be that as it may, even though the afore conclusion, for the reasons ascribed hereinafter, make upsurgings, vis-a-vis, the plaintiff's afore purported willful abandonments, and, waivers, whereupon, his espousal for claiming rendition, of, the primary decree of specific performance, of contract of sale, being pronounced qua him, is, may be per se oustable, (a) also reiteratedly given the plaintiff, in, M.L. Devender Singh's case (supra), contra-distinctively, vis-a-vis the plaintiff hereat, not rearing espousals in alternative, to the according, of, the apt primary decree, (b) yet the vigour of the aforesaid inference does get prima facie scuttled, by the Andhra Pradesh High Court, in a verdict, rendered in a case titled as Asia Begum (died per L.Rs vs. Mahmuda Begum, reported in 2010(2) Civil Court Cases 391 (A.P.) (c) rendering a clear mandate, qua, even with, the plaintiff pleading a relief alternative, to his, espousing for rendition, of, a primary decree for specific performance of ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...18...
.
contract of sale, (d) thereupon, unless evidence makes emergences, vis-a-vis, the defendant being not ready or willing to perform his part of obligation, (e) thereupon, it being incumbent, upon, the civil courts to rather proceed to render the primary decree, of specific performance of contract, of, sale. However, for the reasons to be assigned hereinafter, even the aforesaid verdict, is, grossly inapplicable hereat. Nonetheless, before proceeding to assign apt reasons, it is worthwhile, to extract hereinafter, the, provisions of Sections 10, 16, 14 and 23 of the Specific Relief Act, provisions whereof read as under:-
"10. Cases in which specific performance of contract enforceable.--Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced--
(a) when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance would not ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...19...
afford adequate relief. Explanation.--Unless and until the .
contrary is proved, the court shall presume--
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:
--
(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.
14. Contracts not specifically enforceable.--
(1) The following contracts cannot be specifically enforced, namely:--
(a) a contract for the non-performance of which compensation in money is an adequate relief;
(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;
(c) a contract which is in its nature determinable;
(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.::: Downloaded on - 03/10/2018 22:57:31 :::HCHP
...20...
(2) Save as provided by the Arbitration Act, 1940 (10 of .
1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.
(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases:--
(a) where the suit is for the enforcement of a contract,--
(i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once: Provided that where only a part of the loan has been advanced the lendor is willing to advance the remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a company;
(b) where the suit is for,--
(i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or
(ii) the purchase of a share of a partner in a firm;
(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land: Provided that the following conditions are fulfilled, namely:--::: Downloaded on - 03/10/2018 22:57:31 :::HCHP
...21...
(i) the building or other work is described in the contract .
in terms sufficiently precise to enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and
(iii) the defendant has, in persuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.
16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person--
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.--For the purposes of clause (c),--
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...22...
defendant or to deposit in court any money except when so .
directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
23. Liquidation of damages not a bar to specific performance.--
(1) A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance.
(2) When enforcing specific performance under this section, the court shall not also decree payment of the sum so named in the contract.
The opening underlined apt portion of Section 10, of, the Specific Relief Act, make clear statutory expostulations, qua excepting, the, provisions to the contrary, standing, borne in the Act, thereupon, the civil court concerned, being enjoined to render a decree for specific performance of contract of sale, (a) upon, want of ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...23...
.
standard evidence for ascertaining, the, actual apt damages as may ensue, upon, the plaintiff, and, as arises, from, the apt contractual breaches, by the errant vendor; (b) or upon evidence making upsurging, qua the mandated compensation, for, apt breaches, rather hence not adequately and satisfactorily, hence recompensing, the, non derelicting contracting party. Furthermore, the provisions of Section 14 of the Specific Relief Act, make trite underlinings (i) qua, upon, the plaintiff demonstrably acting in fraud of the contract, and, with the coinage "except as otherwise" occurring in Section 10 of the Act, rather excluding, the, mandate, of, the thereunderneath borne, the afore referred statutory expostulation(s), comprised, in the coinage, "when the act agreed to be done is such that compensation in money for its non-
performance would not afford adequate relief", (ii) upon , contra therewith provisions, hence, standing borne in a chapter similar, vis-a-vis, wherein Section 23 stands ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...24...
.
borne, (iii) thereupon with Section 23, of, the Act, being borne in a chapter similar, wherewithin, Section 10 is borne, (iv) and, with hence the provisions, of, Section 23 of the Act, rather acquiring, the, excepting therewith, rather apt overwhelming clout, and, operation, vis-a-vis, with theirs to the provisions borne in Section 10 of the Act, (v) and, making a candid statutory expostulation, against, any decree, vis-a-vis, liquidation of damages or decreeable recitals in consonance therewith, as, borne in the apt agreement, per se, not operating as a bar, upon, the civil court concerned, to render the primary relief, of, specific performance, of, contract of sale, (vi) unless, apt satisfaction, stands drawn, by the Civil Court, that, the contemplated sums of money aptly refundable to the non derelicting contracting party, being recited therein only for the purpose, of securing the performance, of, the contract, and, not for the purpose, giving the defaulting party an option of, paying money, in, lieu of specific ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...25...
.
performance of contract. However, in, the drawing, of, the aforesaid satisfaction, by, the Civil Court concerned, it is, enjoined to mete deference to the requisite terms, of, the contract, and, also to other attending therewith circumstances. Consequently, while proceeding to draw a conclusion qua the sums of money contemplated in the purported contract of sale, borne in Ex.PW1/A, and, sums of money whereof, were purportedly contracted, to be refunded by the errant/derelicting contracting party, to the non derelicting contracting party, upon, the former breaching the obligations cast upon him, (vii) rather being contemplated, only, for the purpose of securing the performance of contract, and, not for the purpose of giving an option to the party, in default, to, pay money in lieu, of, specific performance of contract, (viii) and, when for making the aforesaid fathomings therefrom, this Court, is, also enjoined to mete apposite deference, to, the terms of the contract, and, other attending ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...26...
.
circumstances, (ix) thereupon, this Court is enjoined, to, not only comprehend ad nauseam, all the apt recitals, borne in the purported agreement to sell, borne in Ex.PW1/A, (x) AND in consonance wherewith, the, relief alternative, to the relief of primary decree of specific performance of contract, stood, espoused, (xi) for, hence thereafter determining whether the decree in respect of the specific performance, of, contract, as, rendered, by the learned first Appellate Court, being well founded or otherwise.
13. A perusal of Ex.PW1/A makes, a, disclosure qua it not carrying any recital with respect to refund of money, rather it carries specific recitals qua the defendant handing over the possession of the suit land, borne in Ex.PW1/A to the plaintiffs. It is also carries recitals of the defendant relinquishing all his rights over suit property, vis-a-vis, the plaintiffs, (i) thereupon, the defendants, are, rather estopped, to, contend that both ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...27...
.
the learned courts, were, enjoined to accord, the, alternative relief, as prayed for, by the plaintiff than to, the, render primary decree of specific performance of contract, (ii) dehors any purported waivers or abandonments made by the plaintiff, (iii) more so when no evidence stands adduced for ascertaining, the actual apt damages as may ensue, upon, the plaintiff, and as arise from the apt contractual breaches, by the errant vendor, (iv) nor qua the mandated compensation, for, apt breaches, rather hence or not adequately and satisfactorily hence recompensing, the non derelicting contracting party. Consequently, the aforesaid recitals borne in Ex.PW1/A, does constrain this Court, to unflinchingly galvanise, a candid conclusion qua the plaintiff being entitled to the primary relief of rendition, of, a decree for specific performance of contract.
14. The above discussion, unfolds, that the conclusions as arrived by both the learned Courts below ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP ...28...
.
being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, both the learned courts below have not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the appellant/defendant.
r to
respondents/plaintiffs, and, against the
15. In view of the above discussion, there is no merit in the present Regular Second Appeal and it is dismissed accordingly. In sequel, the concurrent judgements and decrees rendered by both the learned courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.
(Sureshwar Thakur) 28 th September, 2018. Judge.
(jai) ::: Downloaded on - 03/10/2018 22:57:31 :::HCHP