Bangalore District Court
Sri.K.Mohan @ Manmohan vs Sri.N.S.Suresh Babu on 10 September, 2015
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this 10th day of September, 2015.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.No.2794/2008
PLAINTIFFS 1. Sri.K.Mohan @ Manmohan,
: s/o Sri K.R.Kuppuswamy,
aged about 54 years,
r/at Old No.47, New No.176,
5th Main Road, Chamarajpet,
Bangalore-560 018.
2. Smt.Mallika,
w/o Sri. K.Mohan @ Manmohan,
aged about 48 years,
r/at Old No.47, New No.176,
5th Main Road, Chamarajpet,
Bangalore-560 018.
(By Sri D.S.Jayaraj,Advocate)
-VS-
DEFENDANT : Sri.N.S.Suresh Babu,
s/o late N.L.Satyanarayana Shetty,
aged about 45 years,
r/at No.9,
West Circle Road,
V.V.Puram, Bangalore-04.
( By Sri.VSR, Advocate)
2 O.S.No.2794/2008
Date of Institution of the suit : 15/4/2008
Nature of the Suit : Specific Performance
Date of commencement of recording
of evidence : 27/1/2011
Date on which the Judgment was
pronounced : 10/9/2015
Year/s Month/s Day/s
Total Duration : 07 04 25
JUDGMENT
The plaintiffs have filed this suit for the relief of specific performance relating to the oral agreement directing defendant to execute sale deed in favour of plaintiffs in respect of suit schedule property with court costs and such other reliefs.
2. The case of plaintiffs in nutshell is that the plaintiffs are in possession and enjoyment of suit schedule properties bearing No.1, a portion of the property Sy.No.50/10, situated at Nayandanahalli Village, Kengeri Hobli, Bangalore 3 O.S.No.2794/2008 South Taluk measuring East to West 49'.3 ft on Northern side, Southern side 42.7 ft. and North to South Eastern side 54 + 5.6 ft totally 59.6 and Western side 53+5.6 totally 58.6 ft. herein after called as 'A' schedule property. East to West northern side 42.7 ft, Southern side 49.3 ft. and North to South Eastern side 53 ft, Western side 53 ft. along with ACC shed herein after called as 'B' schedule property. The Site No.1 formed in Sy.No.50/10 of Nayandanahalli Village, Kengeri Hobli, Bangalore South Taluk measuring East to West Southern side 20.7 ft, Northern side 20.7 ft, North Eastern side 5.6 ft, Southern side 5.6 ft. herein after called as 'C' schedule property. Plaintiffs are in possession of suit schedule properties as absolute owners by virtue of GPAs executed by Smt. Saraswathi and their children. They are paying taxes to the concerned authorities. Further father of defendant filed O.S.No.5240/1987 against one Ramachandra for declaration that he is the absolute owner of Sy.No.50/10 measuring 1 acre 35 guntas situated at Nayandanahalli 4 O.S.No.2794/2008 village, Kengeri Hobli, Bangalore South Taluk and this court passed judgment and decree on 30/7/1993 declaring that father of defendant is absolute owner of said property. Based on said judgment and decree, defendant's father had filed Ex.No.203/1994 which is still pending for consideration. Plaintiffs are not party to said suit. In order to avoid litigation in respect of title of the property, plaintiffs agreed to purchase suit schedule property from father of defendant and father of defendant also agreed to sell the suit schedule property by obtaining sale consideration at the rate of Rs.95/- per sq.ft totally amounting to Rs.5,00,175/-. Plaintiffs have also paid Rs.25,000/- as advance amount in favour of father of defendant on 9/12/1996 through cheque bearing No.065372 drawn on Vijaya Bank, Akkipet Branch, Bangalroe. After the death of defendant's father, plaintiffs contacted defendants and appraised the transaction that took pace between plaintiffs and defendant's father and also about payment of advance amount to defendant's father. 5 O.S.No.2794/2008 Defendant has also acknowledged the receipt of Rs.25,000/- by his father and agreed to execute the sale deed and in pursuance of it, plaintiffs have paid Rs.1,00,000/- on 27/11/2003 through cheque bearing No.576357 and cheque bearing No.120052 dated: 16/12/2004 drawn on ICICI Bank, Dispensary Road Branch, Bangalore. Defendant encashed the first of the same. But second cheque for Rs.50,000/-, but it was returned unpaid. Immediately, plaintiffs have paid a sum of Rs.50,000/- by way of cash on 18/12/2004, but defendant failed to give acknowledgement. After accepting the above said amount from plaintiffs, defendant has not come forward to execute the sale deed even after repeated requests and demands. Plaintiffs are ready to perform their part of contract and willing to pay the remaining balance amount and ready to get sale deed in their favour. Time is not the essence of the agreement. When plaintiffs are in possession of suit schedule property, it is settled principle that time is not essence of contract. Plaintiffs have filed 6 O.S.No.2794/2008 application under Order XXI R.97 CPC in Ex.No.203/1994 as objectors to adjudicate the claims. It is still pending for consideration. In order to put off litigation, it is agreed between parties to purchase the property by paying the above said sale consideration i.e., to buy piece of land. Negotiations took place between plaintiffs and defendant and matter was being adjourned from time to time in Ex.Petition to report settlement. Looking into the rival contentions of plaintiffs and defendant, learned Judge has also referred the matter to Mediation to work out remedies and possibility of settlement between plaintiffs and defendant in said execution petition. Ultimately, the matter was remanded back, because defendant demanded prevailing market rate with a sole intention to extract money from plaintiffs and thus, conciliation was failed. Defendant has been taking adjournment on one pretext or other in the execution petition. Absolutely, there are no reasons on the part of defendant in non-compliance of terms in executing the sale 7 O.S.No.2794/2008 deed. The delay tactics adopted by defendant is in view of escalation of price. Once defendant accepted part of sale consideration, only course open for him is to execute the sale deed by receiving balance sale consideration. However, defendant is not ready to comply with the undertakings. Plaintiffs had paid the entire sale consideration agreed between plaintiffs and defendant and even afterwards, defendant failed to come forward to execute the sale deed. Hence, there was no option for plaintiffs and they issued notice to defendant on 3/1/2008 to appear before Sub- Registrar on 10/1/2008 with relevant documents to register the property. Inspite of notice, defendant failed to comply with the same. Defendant is aware of notice, but made all necessary arrangements to get schedule property registered endorsement on the notice. Defendant has not appeared before Sub-Registrar only to deprive the claim of plaintiffs. Hence, the suit for appropriate reliefs.
8 O.S.No.2794/2008
3. After service of suit summons, defendant appeared through his counsel and filed his written statement wherein he contended that the suit is barred by limitation and also barred under provisions of CPC. Plaintiffs have filed the suit only to abuse the process of law by unscrupulous litigants. The suit is filed with malafide intention. Plaintiffs are attempting to drag defendant from one court to another to defeat the very purpose of decree already granted by court in O.S.No.5240/1987. Defendant's father has filed suit against Ramachandra in O.S.No.5240/1987 on 25/11/1987 in respect of 1 acre 35 guntas in Sy.No.50/10 of Nayandanahalli, Kengeri Hobli, Bangalore South Taluk for declaration and mandatory injunction directing removal of constructions. Said Ramachandra filed written statement and contested the suit. It was decreed on 30/7/1993. Only with a view to defeat the rights of father of defendant and to frustrate the decree that may be passed in the suit, even during pendency of the said suit and even after passing 9 O.S.No.2794/2008 judgment and decree, Ramachandra sold portions of suit schedule land in said suit to several persons. All these persons including present plaintiffs are lis pendens transferees from said Ramachandra. Father of defendant filed Ex.No.203/1994 seeking enforcement of the order of mandatory injunction passed in O.S.No.5240/1987 for demolition of construction put up on the property. During pendency of said Ex.Case, father of defendant died and defendant being his LR comes on record. During pendency of execution petition, several persons who were all lis pendens transferees filed petitions under Order XXI R.97 CPC in Execution Petition seeking obstruction of decree. The plaintiffs traces their title through one G.Ahamd Ghouse who is alleged to have purchased property from Ramachandra on 1/6/1988 i.e., during pendency of the suit. Defendant filed objections to said application. With a view to drag on the proceedings and to complicate the matter, plaintiffs with other objectors filed I.A. under S.151 CPC alleging that a 10 O.S.No.2794/2008 settlement had been entered into between themselves and defendant and prayed for dismissal of execution petition. Present defendant filed objections to said application also. Thereafter, the matter was set down for hearing on the applications filed by the plaintiffs and other obstructers and also on maintainability of those applications. Only after submitting arguments on behalf of these obstructers in said execution petition, they came to know that they had no case. In this regard, the obstructers sought to withdraw the applications filed by them under S.151 CPC. Instead they filed separate suits purporting to seek specific performance of alleged agreements for compromise of the suit. On the basis of it, they sought stay of execution proceedings. They have further filed miscellaneous petitions seeking to club these several proceedings with the execution case. These facts reveal the sole intention of obstructers including present plaintiffs are to drag on the proceedings with a view to confuse the issue, complicate the matter and thereby 11 O.S.No.2794/2008 denying the rights of defendant to enjoy the fruits of decree passed in his favour.
Defendant further contended that the suit is not maintainable on 5 grounds.
1) Firstly, suit is barred under S.47 CPC since all questions arising between the decree holder and judgment debtor or his representatives including questions pertaining to the alleged discharge or satisfaction of the decree is to be decided by the executing court.
2) Secondly, suit is barred by virtue of provisions of Order XXI R.101 CPC. Plaintiffs are not entitled to prosecute the parallel proceedings in relation to the same issue when plaintiffs have chosen to file an application under Order XXI Rule 97 CPC question arising between the parties to that proceeding is required to be tried by the executing court itself and a separate suit is barred.
3) Thirdly, absolutely no agreement between parties.
Even assuming without conceding, for the sake of argument that an agreement exists, the said agreement admittedly not even certified by the 12 O.S.No.2794/2008 executing court in terms of Order XXI Rule 2(3) of CPC and as such, is void.
4) Fourthly, even otherwise, present suit is hopelessly barred by limitation. Plaint averments are entirely vague as to the alleged agreement, the date of alleged contract and its terms. It appears that plaintiff's claim is that the alleged agreement was entered into somewhere in 2003 or before that and the suit is filed in the year 2008. Admittedly, defendant was actively prosecuting the execution case and had in course of proceedings filed statements denying the very existence of agreement and hence, suit filed about 5 years after the date of such alleged agreement is barred by limitation.
5) Fifthly, plaintiffs themselves are not ready and willing to perform their obligations as per their own pleadings.
Defendant further denied that plaintiffs are in possession and enjoyment of any part of the property in Sy.No.50/10 of Nayandanahalli, Kengeri Hobli, Bangalore South Taluk. The identity and location of suit schedule property is not made out from description given in the plaint 13 O.S.No.2794/2008 or in the suit schedule. He denied that Smt.Saraswathi was in possession of suit schedule property at any point of time or plaintiffs get their possession through Smt.Saraswathi. He denied all other averments made in the plaint regarding agreement between plaintiffs and defendant about suit schedule property or price fixed at Rs.95/- per sq.ft. He denied all other averments made in the plaint regarding agreement between him and his father with plaintiffs. But admitted about the proceedings in Execution No.203/1994. He contended that when defendant sought to execute the decree, some of the obstructers in Ex.No.203/1994 requested him to give some time to vacate the property and at that point of time, in order to compensate the decree holder for damages for illegal use and occupation of the properties, some payments are made to him and thereafter, instead of vacating the property, the said objectors turned around and sought to press the objections in the execution proceedings. The payments referred in the plaint at para No.4 of the plaint 14 O.S.No.2794/2008 is towards damages and not as advance payments for any agreement. The conduct of plaintiffs discloses that there was no readiness or willingness on their part and thus, not entitled for equitable relief of specific performance of agreement. He further contended that plaintiffs are not definite about their case, at one stretch they plead the part payment and at another stretch, they plead the entire payment of sale consideration amount. He contended that the plaintiffs are trespassers and are illegally in use and occupation of the property. He further contended that the attempts made for settlement in Ex.No.203/1994 indicates absolutely no agreement between plaintiffs and defendant and matter was referred to mediation to work out remedies and possibilities of settlement between parties is only an attempt to put an end to the litigation on account of the fact that already one generation of defendant's family has passed away during the course of litigation in execution proceedings without enjoying the benefits of decree in their favour. 15 O.S.No.2794/2008 However, plaintiffs were thereafter entirely unreasonable in their stance and no settlement could be effected before mediation centre. The notice dtd:3/1/2008 is not within his knowledge and it is not received by him. He has filed objections to application under Section 151 CPC in execution proceedings denying the existence of suit agreement. Hence, there is no need or necessity to issue notice. Hence, prayed for dismissal of the suit with exemplary costs.
4. From the above facts, the following issues were framed:-
ISSUES
1. Whether the plaintiffs prove that the father of the defendant agreed to sell the suit schedule property at the rate of Rs.95/- per sq.ft and received an advance sale consideration of Rs.55,000/- on 9.12.1996 through cheque bearing No.0657372 drawn on Vijaya bank, Akkipete branch and entered into an oral agreement of sale accordingly?16 O.S.No.2794/2008
2. Whether the plaintiffs prove that they have paid a sum of Rs.1,00,000/- as further advance by way of cheque bearing No.576357 dt.27.11.2003 and cheque bearing No.120052 dt.16.12.2004 drawn on ICICI bank, Dispensary road branch?
3. Whether the plaintiffs further prove that they have also paid a sum of Rs.50,000/- by way of cash to the defendant on 18.12.2004?
4. Whether the plaintiffs prove that they have always been ready and willing to perform their part of contract?
5. Whether the Plaintiffs prove that the defendant is liable to execute a regular sale deed as claimed?
6. Whether the defendant proves that the suit is barred under the provisions of Sec.47 and Order XXI Rule 101 CPC?
7. Whether the defendant proves that the suit is not maintainable as contended in his written statement?17 O.S.No.2794/2008
8. Whether the plaintiffs are entitled for the relief of specific performance of contract as sought for?
9. To what Order or Decree?
5. On behalf of plaintiffs, plaintiff No.1 is examined as PW-1, got marked Ex.P.1 to Ex.P.19 and closed their side. On behalf of defendant, defendant is examined as D.W.1, got marked Ex.D.1 to Ex.D.13 and closed his side.
6. Heard arguments of both sides. Plaintiff's counsel has also filed synopsis of his arguments.
7. Findings of this court on the above issues are:-
Issue No.1:- In Negative;
Issue No.2:- Partly in Affirmative; Issue No.3:- In Negative;
Issue No.4:- In Negative;
Issue No.5:- In Negative;
Issue No.6:- In Affirmative;
Issue No.7:- In Affirmative;
Issue No.8:- In Negative;
Issue No.9:- As per the final order for the following:-18 O.S.No.2794/2008
REASONS ISSUE Nos.1 & 2
8. These issues are considered together as they require common discussion.
9. Before considering the facts of the case, it is pertinent to note the admitted proceedings that have taken place between parties and others.
10. It is an admitted fact that father of defendant has filed O.S.No.5240/1987 against one Ramachandra in respect of Sy.No.50/10 initially for declaration and permanent injunction and then added the relief of mandatory injunction and in which case, said Ramachandra has filed his written statement denying the contentions of defendant's father, but did not come forward to cross-examine plaintiffs or to lead any evidence. Said suit was decreed on 30/7/1993 declaring the plaintiffs of said suit as owner of the property bearing Sy.No.50/10 measuring 1 acre 35 guntas and further Ramachandra was permanently restrained from trespassing 19 O.S.No.2794/2008 over suit schedule property and obstructing the peaceful possession of plaintiffs over said suit schedule property; it is further ordered to direct the said defendant-Ramachandra to demolish the construction of building which has come up in the suit and make it fit for agricultural purpose. Defendant has produced the certified copies of judgment and decree passed in said suit as per Ex.D.1 and Ex.D.2.
11. It is an admitted fact that based on said judgment and decree, father of defendant has filed Ex.No.203/1994 against said Ramachandra and during pendency of said suit, plaintiffs of present suit and several other persons have filed applications under Order XXI R.97 to come on record as obstructers in respect of suit schedule property. During pendency of consideration of said application, present plaintiffs and others have filed I.A. under S.151 CPC to dismiss the execution petition, as there was compromise between parties and then got it withdrawn the said I.A. and afterwards, filed the present suit.
20 O.S.No.2794/2008
12. Defendant has not seriously disputed about the suit filed by Ramachandra in O.S.No.4128/1984 against Rukminibai and decree passed in said suit for specific performance of the agreement.
13. It is the contention of plaintiffs that said Ramachandra got decree for specific performance of the agreement in respect of Sy.No.50/10 measuring 1 acre 5 guntas from Rukminibai and based on said decree and GPA executed by Rukminibai in his favour, he has sold bits of properties to several persons. One of them is the vendor's vendor of the plaintiff. Plaintiffs have produced the GPA dated 10/10/1996 as per Ex.P.1, affidavit dtd:27/5/97 as per Ex.P.2 General Power of Attorney dtd:5/5/96 as per Ex.P.3 and affidavit dtd:27/5/97 as per Ex.P.4 executed by Smt.Saraswathi and her children to show that Smt.Saraswathi w/o J.Hari Ram and their children have executed these documents in favour of the plaintiffs pertaining to suit schedule property i.e., a portion of Sy.No.50/10 situated at Nayandahalli Village, 21 O.S.No.2794/2008 Kengeri Hobli, Bangalore South Taluk. In these GPAs and affidavits, it is not stated that how Smt.Saraswathi and their children got this property.
14. As discussed above, plaintiffs have filed I.A. under Order XXI R.97 r/w S.151 CPC in Ex.No.203/1994. Plaintiffs have produced certified copy of said I.A. and affidavit annexed to it as per Ex.P.5. Defendant has produced same certified copy of I.A. and affidavit as per Ex.D.3 and Ex.D.4. As this document is admitted one and it is filed before the court in another proceedings, this can be looked into to know the title of plaintiff's vendor Smt.Saraswathi. In the affidavit annexed to this I.A., the present 1st plaintiff has stated that one G.Ahmed Khan s/o Ghouse Khan has purchased this suit schedule property from Ramachandra under registered sale deed dated 1/6/1988 registered in No.2769/87-88. Said Ramachandra had acquired the shed i.e., suit schedule property as per the judgment and decree passed in O.S.No.4128/1984 dtd:1/12/1984. Defendant has also 22 O.S.No.2794/2008 produced another I.A. and its affidavit filed by present plaintiffs pertaining to suit 'A' schedule property as per Ex.D.5 and Ex.D.6. Said Rukminibai had executed an agreement to sell in favour of Ramachandra.M. In said suit, Rukminibai undertook that she will not alienate the property and executed irrevocable GPA in favour of Ramachandra. It is further averred in para 4 of the affidavit that Rukminibai sold the same in favour of Ahmed Khan under the deed dtd:27/6/1989 and in turn Ahmed Khan sold it to J.Hariram and Saraswathi; in turn, they sold it to plaintiff.
15. The above said pleadings in the affidavit annexed to I.A. as per Ex.P.5 is confusing. At one stretch, this plaintiffs states that Ahmed Khan purchased the property under registered sale deed from Ramachandra and at another stretch, they states that Ahmed Khan purchased from Rukminibai under deed of 1989. However, it is not much relevant to decide the present suit. Furthermore, plaintiffs have not made any efforts to produce certified copy of 23 O.S.No.2794/2008 Judgment and Decree passed in O.S.No.4128/1984 to know the rival contentions of both parties or to know the result of said suit. Any way from Ex.P.1 to Ex.P.5, it can be gathered that plaintiffs claim that they are in possession of suit schedule property based on GPAs and affidavits executed by Smt.Saraswathi and their children who in turn claims the property through Ahmed Khan who in turn claim property through Ramachandra.
16. The above said facts made it very clear that plaintiffs claim the suit schedule property only through Ramachandra who has suffered decree in O.S.No.5240/1987 pertaining to the present suit schedule property which is a portion of Sy.No.50/10 i.e., suit schedule property in said suit. The learned counsel for defendant vehemently submitted arguments that when plaintiffs claim their title to suit schedule property through Ramachandra, they have no independent right to agitate their claim and hence, their claim is to be decided in Ex.No.203/1994, because, they is 24 O.S.No.2794/2008 lis-pendens transferee. According to plaintiffs, they got the property through General Power of Attorneys and affidavits executed by one Saraswathi dtd:10/10/1996. Thus, the claim of plaintiffs through Smt. Saraswathi is only after passing judgment and decree in O.S.No.5240/1987. In this regard, defendant's counsel relied on the citation reported in AIR 2008 SC 2560 in "Smt.Ram Peary and others v/s Gauri and others" wherein, their Lordships held as under:-
"Contract - subsequent transferee - Section 52 of Transfer of Property Act, 1882 - subsequent transferee entirely ignorant of any right on the part of contractor - suit filed by contractor against the vendor is also not known to him - subsequent transferee cannot setup against the contractor any right from which the vendor is excluded by the decree."
In the above said citation, their lordships further held as under:
"In our opinion, therefore, when the doctrine of lis pendens renders a transfer made during the pendency of the suit subservient to the rights of the plaintiffs seeking specific performance of a prior contract entered into by the vendor in his favour and when 'on account of the operation 25 O.S.No.2794/2008 of the doctrine of lis pendens such conveyance is treated as if it had never any existence, the subsequent transferee, even though he had obtained the transfer without notice of the original contract, cannot set up against plaintiffs -contactor any right; for it would defeat the rule of lis pendens which is founded upon public policy. And considered in that manner, Section 52 of the T.P.Act is not subject to S, 19(b) of the Specific Relief Act.
8. We may yet arrive to a similar conclusion in a different manner. "A judgment inter-parties raises an estoppel only against the parties to the proceeding in which it is given, and their privies, for example, those claiming or deriving title under them."
(Halsbury's Laws of Engand, Third Edition, Volume 15, para 372). The transferee pendente lite would be treated as a representative in interest of the parties to the suit and the judgment which has been pronounced, in the absence of fraud and collusion, would have the effect of finally determining the rights of the parties and the cause of action which would sustain the suit in which the doctrine of lis pendens applied would be merged in the judgment duly pronounced in what may be described as the previously decided suit. The decision being respondent-judicata would bind not only the parties thereto but also the transferees pendente lite from them."
26 O.S.No.2794/2008
17. Learned counsel for defendant further relied on the citation reported in (2008) 7 SCC 144 in "Usha Sinha v/s Dina Ram and others" wherein, their Lordships held as under:-
"The doctrine of lis pendens is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
The doctrine of lis pendens would apply to the transaction in question, and the High Court was wholly right in holding that the case was covered by Rule 102 of Order 21 CPC. The appellant could not seek protection of pendency of suit instituted by their. The executing court was not justified in granting stay of execution proceedings."
18. In both the above said citations, their Lordships clearly held that if a person purchases the property in dispute in any suit during pendency of said suit, then, his rights are 27 O.S.No.2794/2008 subservient to the rights of party to said suit. In the instant case, admittedly, plaintiff's vendor claims right only through the defendant in O.S.No.5240/1987. Hence, their right is subservient to the right of defendant in said suit.
19. It is to be noted here that in the instant case, plaintiffs are claiming independent agreement with defendant and not claiming right through Smt.Saraswathi or through defendant of O.S.No.5240/1987. The rights of present plaintiffs as per General Power of Attorneys and affidavits are to be decided in Ex.No.203/1994 and not in this suit.
20. Learned counsel for defendant submitted that plaintiff is not permitted to take inconsistent pleas. And present plaintiffs are taking inconsistent pleas. In this regard, defendant's counsel relied upon the unreported decision reported in RSA.No.103/2008 at Dharwad Bench in "Albarsab & others v/s Smt.Tippawwa" wherein, their Lordships held as under:-
28 O.S.No.2794/2008
"9. Learned Counsel for the appellants has vehemently argued that the defendant has taken up an inconsistent stand of having acquired the title by way of adverse possession in respect of this area measuring 4' x 29'. Therefore, it is argued that, defendant cannot blow hot and cold together. It is well established that a plaintiffs cannot take inconsistent stand in the plaint and cannot seek inconsistent prayers. A defendant can take inconsistent stand and hence the alternate defence of adverse possession will not come in the way of the defendant, more particularly when the plaintiffs have thoroughly failed to prove the important aspect of title in respect of their area."
21. The above ruling made it very clear that defendant is permitted to take inconsistent pleas and not plaintiff. The above discussion reveals that there is inconsistent plea in the plaint regarding payment whether it is fully paid or in part.
22. In the instant case, plaintiffs at one stretch pleads part payment; at another stretch, pleads payment of entire consideration, which is definitely, an inconsistent plea in the plaint.
29 O.S.No.2794/2008
23. In the plaint, plaintiffs plead agreement with defendant/his father; in the cross-examination, P.W.1 has deposed that he knows Sathyanarayana Shetty since 1996. He asserts that said Sathyanrayana Shetty was not the owner in 1996 and he does not know who was the owner of schedule property in 1996. In further cross-examination, he has deposed that, Smt.Saraswathi was the owner of that property at that time and she purchased schedule property from Ramachandra.
24. The above evidence of P.W.1 in the cross-examination reveals that he has not admitted the ownership of defendant or his father on suit schedule property.
25. Again, in the cross-examination, he further deposed that Sathyanrayana Shetty agreed to sell schedule property at Rs.95/- per sq.ft. measuring 5,000 sq.ft. At another stretch, deposes that he has not entered into any agreement with Sathyanrayana Shetty. This evidence of P.W.1 in his 30 O.S.No.2794/2008 cross-examination is also confusing and it reveals that P.W.1 is not definite that with whom he entered into agreement.
26. In the further cross-examination, P.W.1 deposed that he has not paid anything to Sathyanrayana Shetty, but paid Rs.25,000/- in 1996, Rs.50,000/- in 2003 and Rs.1,00,000/- in 2004 to defendant though cash and cheque. He has not obtained any receipt from defendant for said payment. One of the cheques issued by plaintiff was bounced. Later, he paid the cheque amount by cash.
27. In the further cross-examination held on 17/7/2015, P.W.1 has deposed that on the next day of the oral agreement with father of defendant, he paid Rs.25,000/- to him through cheque
28. The above evidence of P.W.1 reveals that in the plaint, he pleads payment of Rs.25,000/- through cheque to father of defendant during 1996. But again, in the cross- examination held on 11.07.15, he deposed that he has not 31 O.S.No.2794/2008 made any payment to Sathyanrayana Shetty i.e., to the father of defendant; again in the further cross-examination held on 17/7/2015, he has deposed that on the next day of the oral agreement with father of defendant, he paid Rs.25,000/- to him through cheque. Thus, P.W.1 is not definite about to whom he first paid the advance amount and with whom, he had agreement of sale. Though he asserts payment of Rs.50,000/- through cash to defendant, he is not having any document to prove the same. Hence, payment of said Rs.50,000/- is also doubtful. The payment through cheque is only admitted by defendant.
29. The above evidence of P.W.1 reveals that P.W.1 is not definite about his case i.e., to whom he paid the amount and what was the quantum of amount paid by him and thus, he cannot say the date or month or year of the agreement with defendant or with his father. Hence, it is very difficult to accept the say of P.W.1 that he and his wife have orally 32 O.S.No.2794/2008 agreed with defendant's father to purchase the suit schedule property.
30. In the further cross-examination held on 17/7/2015, P.W.1 has further deposed that when father of defendant filed the case, he came to know that Smt.Saraswathamma was the owner of suit schedule property and father of defendant came near the suit schedule property for demolition during 1994 and at that time, he came to know about it. Even at this juncture, he asserts the ownership of Saraswathi and not admits the ownership of defendant or his father.
31. The above evidence of P.W.1 establishes that he is not definite about who is the owner of suit schedule property i.e., whether defendant or his father or Smt.Sarasawathi. Though in the plaint and also in the affidavit evidence, plaintiff pleads that he has filed an application under Order XXI R.97 as obstructer in Ex.No.203/94 field by father of defendant, in the cross-examination held on 17/7/2015, he has deposed 33 O.S.No.2794/2008 that he has not made any efforts to become party in the petition filed by father of defendant wherein he came near the suit schedule property for demolition. These things establish that plaintiff is not definite about his case and not at all admitted the ownership of defendant in his cross- examination. Hence, his say that he entered into oral agreement with father of defendant is very difficult to accept.
32. Learned counsel for defendant submitted arguments that it is very difficult to prove oral agreement and high standard proof is required to prove the same. In this regard, he relied on the citation reported in 2009(4) Mh.L.J. in Chandrahas v/s Misribai" wherein, their Lordships held as under;_ "10. It is the positive case of the appellant that an oral agreement was entered into in regard to the suit transaction. In such a situation, it is required to be noted that in the normal course, grant of specific performance based on oral agreement is always considered with reservations. Assuming that in a peculiar case, the Court would like to grant the relief of specific performance it will be the duty of 34 O.S.No.2794/2008 the Court to ascertain the terms on the basis of which the parties wanted to complete the transaction. In such a case, the terms of oral agreement are required to be paced before the Court in the form of evidence so as to crystallize the terms on the basis of which specific performance was agreed to be granted. In the present case, the evidence on record nowhere shows as to on what terms the specific performance was required to be granted. The quality of evidence placed before the Court in the matter of grant of specific performance is absolutely weak. In any case, in the absence of agreement that the owners who could convey the property i.e., in the absence of direct agreement with respondent Nos.1 and 2, the appellant could not get specific performance. Whatever the transaction which he had with respondent No.3 was not binding upon respondent Nos.1 and 2. For the reasons mentioned aforesaid, the learned trial judge was right in appreciating the evidence against the appellant and that the learned trial Judge rightly declined to grant specific performance."
33. In this regard, learned counsel for plaintiffs relied on the citation reported in ILR 2014 KAR 4185 in "S.V.Narayanaswamy v/s Smt.Savithramma, since 35 O.S.No.2794/2008 deceased by their Lrs. and others" wherein, their Lordships held as under:-
"A) Specific Relief Act, 1963 - Sections 16 & 20- Oral agreement of sale - Suit for specific performance of oral agreement of sale - Payment of full sale consideration amount in cheque and cash - Delivery of possession in part performance of agreement
- Documents were handed over pursuant to the sale agreement - Plaintiff/Appellant obtained licence and sanctioned plan for the construction- Plaintiff/Appellant was authorized under the irrevocable General Power of Attorney to put up construction, to obtain licence, to pay taxes, to obtain necessary permissions from the authorities concerned - General Power of Attorney executed coupled with interest - Pleadings are in conformity with Section 16(c) of the Specific Relief Act - No specific denial of the plaint averments as required under Order 8 Rules 3 and 5 of CPC - Evidence on record to show the readiness and willingness of the plaintiffs to perform his part of contract through the process of transaction. -
Dismissal of suit by the Trial Court without exercising judicious discretion under Section 20 of the Act - Grant of decree of permanent injunction in favour of defendant - Appealed against - Re-appreciation of evidence on record - HELD, Trial Court erred in dismissing the suit - Plaintiffs /Appellant is entitled for specific performance of oral agreement of sale - Appellant has pleaded all the 36 O.S.No.2794/2008 ingredients of oral sale agreement - The pleadings are in conformity with Section 16
(c) of the Specific Relief Act and Form Nos.47 and 48 of 1st Schedule to CPC -The pleadings and evidence of the respondents themselves show that the appellant was demanding, insisting and pressurizing the respondents to execute the sale deed after the death of 'X' and the respondent/LRs of late 'X' have declined to execute the sale deed. "
Further Held:
"(a) From the evidence on record, it is proved that the sale agreement was dated 17.12.1979. The sale consideration agreed was Rs.16,000/-. It was paid through cheques and cash. The documents were handed over. Possession was delivered. Thereafter, the GPA was executed. The appellant has put up construction at his own cost. He has collected the sale deed from the BDA. The appellant was always and even now ready and willing to take the sale deed bearing expenses of stamp and registration charges.
Therefore, it is clear, the appellant has pleaded all the ingredients of oral sale agreement. The appellant has proved the oral sale agreement dated 17.12.1979 -
Therefore, in the circumstances, the appellant cannot be denied specific performance and he is entitled for specific performance."
"(c) Mere price escalation during the pendency of the litigation is not a ground to deny specific performance. The Court can 37 O.S.No.2794/2008 impose reasonable condition to pay additional amount which is reasonable. In the present case, the litigation has gone on for years. The respondents have approached the Court in O.S.No.5065/1987 and obtained injunction. They have denied the sale agreement and contested the matter in O.S.No.1920/1989. In the circumstances of case, and keeping in view the price escalation, it is proper to direct the appellant to pay additional amount of Rs.20,00,000/- in addition to the amount already paid. The appellant is entitled for specific performance, but subject to the condition that the appellant shall pay additional amount of Rs.20,00,000/- to the respondents."
34. In the above said citation, their Lordships held that based on oral agreement, the suit can be decreed. In the above said case, the plaintiffs were in possession of suit schedule property in pursuance of sale agreement with defendant's husband. However, in present case, plaintiffs are in possession of suit schedule property not in pursuance of agreement with defendant's father, but, they are in possession of suit schedule property in pursuance of General Power of Attorneys and affidavits of one 38 O.S.No.2794/2008 Smt.Saraswathamma. Furthermore, there was evidence in said case that plaintiff had constructed the building by investing huge amount, which was in the knowledge of defendant's husband. Considering all those facts in total, their Lordships held that though there was oral agreement, it was established by plaintiffs and suit was decreed. However, that is not the situation in present case.
35. In the instant case, as discussed above, plaintiffs claim to be in oral agreement with defendant's father at one stretch and with defendant at another stretch. However, they have not mentioned either in the plaint or in the affidavit evidence, the date, month or year of such agreement. Further, in the cross-examination plaintiffs assert that Smt.Saraswathamma was the owner of suit schedule property and plaintiffs are its absolute owners. Even in the obstructer application filed by the plaintiffs in Ex.203/94 during 2005, plaintiffs specifically stated that defendant is nothing to do with suit schedule property. Said 39 O.S.No.2794/2008 application was filed only after the payment during 2003 and 2004. Hence, they have not accepted the defendant as the owner of suit schedule property even in this suit and also in said execution petition. Hence, there is no question of agreement with defendant to purchase suit schedule property from him. When plaintiffs assert that defendant is not the owner of suit schedule property, the above said ruling relied by plaintiff's counsel is not helpful to plaintiffs.
36. Defendant has produced certified copy of judgment and decree passed in O.S.No.5240/1987 as per Ex.D.1 & Ex.D.2, order sheet in Ex.203/1994 from 16/12/2003 till 29/1/2008 as per Ex.D.13. He has also produced his objection statement to the objector application filed by plaintiffs in said execution petition as per Ex.D.7 and Ex.D.8 and his objections to I.A. under S.151 CPC as per Ex.D.9 in said suit. He further produced certified copy of application filed by plaintiffs in said case under Order XXI R.26 and 29 40 O.S.No.2794/2008 CPC, affidavit annexed to it, and its objections as per Ex.D.10 to Ex.D.12.
37. Defendant in his affidavit evidence at para No.15 has stated that he has received totally Rs.1,00,000/- through cheques and said amounts was paid towards his claim for damages in view of the illegal occupation of his property by plaintiffs and they were not paid in pursuance of any agreement of sale.
38. In the cross-examination, D.W.1 denied the suggestion that said amount was paid towards agreement of sale. He admitted that plaintiffs are in possession of suit schedule property. In the further cross-examination held on 20/2/2014, defendant has deposed that plaintiffs had asked to pay some damages and to give time and agreed to vacate from the suit schedule property. Plaintiffs and plaintiffs in other connected cases were present at the time of said discussions regarding vacating of suit schedule property. 41 O.S.No.2794/2008 But said talk was not reduced into writing. He demanded damages of Rs.1,00,000/- from plaintiffs and they agreed to pay Rs.50,000/- in 2003 and another Rs.50,000/- in 2004, but he does not remember how said amount was paid to him.
39. The above evidence of plaintiffs and defendant made it very clear that there is no dispute about payment of Rs.1,00,000/- by plaintiffs on one occasion. But defendant disputes receipt of remaining Rs.50,000/- from plaintiffs and Rs.25,000/- by his father. Any way, according to plaintiffs, it was towards agreement of sale, whereas according to defendant, it was towards damages. In the further cross- examination on 17/3/2014 at page No.16, defendant has deposed that no rate of damage was fixed and at that time he has deposed that plaintiffs have agreed to vacate their respective premises at the earliest and no time limit was fixed.
42 O.S.No.2794/2008
40. At one stretch, defendant has deposed that one year time was fixed and plaintiffs agreed to vacate the suit schedule property within one year, but at another stretch, he deposed that no time limit was fixed for vacating the property. Even according to him, rate of damage was not fixed. But as per his own evidence, plaintiffs of this suit and other connected suits have agreed to pay damages differently.
41. In the cross-examination, defendant has deposed that the talk between plaintiff and other plaintiffs pertaining to damages was not reduced in to writing. In the further cross- examination, he has deposed that he believed plaintiffs and hence it was not reduced into writing. At another stretch, i.e., in page No.9, he has deposed that all the plaintiffs had agreed to vacate from the suit schedule property by taking some amount and requested some time to vacate from the suit schedule property.
43 O.S.No.2794/2008
42. Defendant himself has produced the obstructer's application filed by plaintiffs and his objections to it. He admitted in the cross-examination that in the said objections, he has not stated that these plaintiffs had agreed to vacate the suit schedule property after one year or after some reasonable time. He has also further deposed that he has not issued any notice to plaintiffs for vacating the suit schedule property. He has not mentioned that plaintiffs agreed to pay damages in said objection statement, though it was filed subsequent to receiving the amount from plaintiff.
43. This defendant is an income-tax assessee. He has stated in his cross-examination at page No.14 that he is getting audited his account through his auditor and submitted his account along with IT returns from 2003-05 and showed the amount received from plaintiffs in Income- tax returns, but he does not remember under what head he had shown that amount and he can produce the IT Returns for 2003-2005. Even though he has deposed so on 44 O.S.No.2794/2008 20/2/2014, he has not produced his IT returns. In the subsequent cross-examination on 17/3/2014, he has deposed that he has not made any efforts to meet his auditor to know whether his entire statement of accounts are available with the auditor for the relevant period or not and he could not produce the same since they are misplaced. Afterwards, plaintiffs have filed an application to summon IT returns of defendant, but said application was rejected by this court by passing considered order. If really, defendant has produced his IT returns, that would throw some light on the proceedings to know whether defendant has received the amount towards damages or towards agreement of sale. But, in the absence of same, with the available materials, the defendant has to prove for what purpose, he received said amount from plaintiff.
44. The above discussion reveals that defendant failed to prove that the amount received by him from plaintiffs are towards damages.
45 O.S.No.2794/2008
45. It is the initial burden of plaintiffs to establish that there is oral agreement between plaintiffs and defendant regarding sale of suit schedule property. In this regard, in the above said ruling cited supra by defendant's counsel, unreported judgment in RSA.No.103/2008 at Dharwad Bench in "Albarsab & others v/s Smt.Tippawwa" wherein, their Lordships held as under:-
"Section 101 of the Evidence Act mandates that, whoever approaches the Court for a particular relief or reliefs, must necessarily discharge the initial burden cast upon him or their. Unless the initial burden is effectively discharged, the onus does not shift on the other side and inconsistencies, if any, in the case of adversary, cannot be taken advantage by the plaintiff. Therefore, unless the initial burden is effectively discharged, plaintiffs cannot succeed on the weakness of the defendant, if any. "
46. It is true that always initial burden is on plaintiffs to establish their case. However, when once, it is established, then the burden shifts upon defendant to disprove it. Furthermore, the admitted facts need not be proved. When 46 O.S.No.2794/2008 defendant categorically admits the receipt of Rs.1,00,000/- in all from plaintiffs, plaintiffs need not prove the same. The above discussion further reveals that defendant failed to prove that he received the same as damages from plaintiff.
47. Plaintiff's counsel submitted that in the connected 7 suits filed by different plaintiffs against same defendant pertaining to similar set of facts in respect of survey number property, those suits were decreed.
48. In this regard, plaintiff has also produced certified copies of written statement filed in O.S.No.7361, 7362 and 7363/2007 as per Ex.P.10 to Ex.P.12 to show similar pea in those suits also.
49. Certified copy of judgment in O.S.No.7364/2007 is produced by plaintiff in O.S.No.2792/2008. Though the said suit is not clubbed with this suit, as both suits are connected matters and thus, arguments in both suits were heard 47 O.S.No.2794/2008 together, judgment and decree passed in O.S.No.7364/2007 could be looked in to for a limited purpose even in this suit.
50. The facts and circumstances of present suit and those other suits are little bit different. There was written agreement between plaintiff and defendant in those suits, as submitted by both counsels. Said agreement was disputed by defendant in the written statement of said suit.
51. Though defendant disputes written agreement of sale with plaintiff in his written statement in said suit, he admitted about the agreement, his signature, conditions mentioned in the agreement in toto in his cross-examination in said suit. Based on said evidence, this court has decreed said suit. Appeal against said judgment and decree is pending in Hon'ble High Court of Karnataka and said judgment has not become final. It is an admitted fact that not only in said suit, 6 other suits were also decreed at the time of passing judgment in O.S.No.7364/2007. As there was clear admission about written agreement between parties in those suits, those 48 O.S.No.2794/2008 suits were decreed. However, that is not the situation in present suit, because defendant clearly disputes oral agreement with plaintiff in his written statement and also in his evidence and he reiterates the same in his cross- examination also. Except the admission regarding receipt of money through cheques from plaintiff, defendant has not admitted anything in this suit.
52. As already discussed above, mere payment by plaintiffs does not give raise to the presumption that the plaintiffs have paid the said amount only towards agreement of sale. In the citation relied by both plaintiffs and defendant as discussed above, it is clearly held that to rely upon oral agreement, plaintiffs have to produce substantial evidence. In the instant case, as discussed above, though at one stretch, plaintiffs deposed the agreement with defendant, at another stretch, plaintiffs dispute the ownership of defendant itself over suit schedule property. When plaintiffs dispute the ownership of defendant, plaintiffs cannot prove oral agreement with 49 O.S.No.2794/2008 defendant. Under these circumstances, it cannot be said that there is oral agreement between plaintiffs and defendant and plaintiffs have proved it. Hence, the judgment and decree passed in O.S.No.7364/2007 is not helpful for plaintiffs to prove it.
53. Plaintiffs have produced Ex.P.12 to Ex.P.15-electricity bills and receipts and Ex.P.16 to Ex.P.18 photographs. All these documents produced by plaintiffs only establish the possession of plaintiffs over suit schedule property. Plaintiffs contended that they are in possession of suit schedule property based on GPAs and affidavits executed by Smt.Saraswathi and not in pursuance of sale agreement with defendant. Defendant also in his cross-examination admits possession of plaintiffs over suit schedule property. Hence, these documents are not helpful for plaintiffs to prove oral agreement with defendant.
54. The above discussion reveals that plaintiffs have only able to prove the payment to defendant, but failed to prove 50 O.S.No.2794/2008 that it was paid towards advance amount pertaining to agreement of sale and defendant also failed to prove that said amount is received by him by way of damages. Plaintiffs also failed to prove that the agreement between parties to sell suit schedule property for a sum of Rs.95/- per Sq.feet. Accordingly, Issue No.1 & 3 are answered in NEGATIVE and Issue No.2 is answered PARTLY in AFFIRMATIVE.
ISSUE No.4
55. Plaintiffs claim that they were and are ready to perform their part of contract. However, there is no specific plea on this point. However, while discussing Issue No.1 to 3, this court already held that plaintiffs failed to prove the oral agreement with defendant. Hence, question of proving their readiness and willingness does not arise for consideration. Accordingly, Issue No.4 is answered in NEGATIVE. 51 O.S.No.2794/2008
ISSUE NOs.6 & 7
56. Learned counsel for defendant vehemently submitted argument that suit is not maintainable and in this regard, she relied on the citation reported in (1998) 4 SCC 543 in "Shreenath and another v/s Rajesh and others"
wherein, their Lordships held as under:-
"10. Under sub-clause(1) Order 21 Rule 35, the executing court delivers actual physical possession of the disputed property to the decree holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by bat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree holder gets the symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through the judgment debtor or claiming 52 O.S.No.2794/2008 independent right of his own including a tenant not party to the suit or even a stranger. A decree holder, in such a case, may make an application to the executing court complaining such resistance for delivery of possession of the property. Sub-clause(2) after 1976 substitution empowers the executing courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with the provisions contained thereinafter. This refers to Order 21 Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined by the court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstruction by a stranger is adjudicated and finally given even in the executing proceedings. We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger."
57. Learned counsel for defendant further relied on the citation reported in (1968) 3 SCR 158 in "Moti Lal 53 O.S.No.2794/2008 Banker(dead) by his LR v/s Maharaj Kumar Mahmood Hasan Khan" wherein, their Lordships held as under:-
"2. It is open to the parties to enter into a compromise with reference to their rights and obligations under a decree. There is nothing in the Code of Civil Procedure which prevents the parties from entering into such a compromise. If the compromise amounts to an adjustment of the decree, it must be recorded under Order 21, Rule 2 and if not so recorded, it cannot be recognized by any court executing the decree. The compromise of May 29, 1954 was so recorded within the prescribed period of limitation. The compromise was a fair bargain to postpone the execution of the decree on payment of reasonable interest. The terms of the compromise related to the execution of the decree. The executing Court has power to determine all questions arising between the parties to the suit relating to the execution of the decree and to give appropriate relief on such determination. Exclusive power to determine such questions is given to the executing Court by Section 47 of the Code of Civil Procedure. The executing Court can determine all questions relating to the agreement postponing the execution of the decree and the incidental term as to the payment of the higher rate of interest. The agreement to pay the higher interest is enforceable in execution of the decree, See Oudh Commercial Bank Ltd., v. Thakurain Bind Basni Kuer. On the question whether 54 O.S.No.2794/2008 the agreement to pay interest at a rate higher than the rate provided in the decree can be enforced in execution proceedings there was a conflict of judicial opinion. The Privy Council decision settled the law on this point. There was also earlier decisions which held that execution could have issue both for the sum decreed and for the interest promised, see Sreeshteedhur Shaha v. Woomeshnath Roy and Lakshmana v. Sukiya Bai.
58. The learned counsel for the defendant relied on the decision reported in AIR 1997 SC 1006 in Sultana Begum Vs. Prem Chand Jain in para 16 of the judgment, the Hon'ble Supreme Court has held as under;
"Order 21 Rule 2 applies to a specific set of circumstances. If any money is payable under a decree, irrespective of the nature of decree, a such money is paid out of court, the decree holder has to certify such payment to the court whose duty it is to execute the decree ad that court has to record the same accordingly. Similarly if a decree, irrespective of its nature, is adjusted in whole or in part to the satisfaction of the decree holder, the decree holder has to certify such adjustment to that court which has to record the adjustment accordingly. If the payment or adjustment is not reported by the decree holder, the judgment debtor has been given the right to inform the court of 55 O.S.No.2794/2008 such payment or adjustment and to apply to that court for certifying that payment or adjustment after notice to the decree holder. Then comes Sub-rule (3) which provides that a payment or adjustment which has not been certified or recorded under Sub-rule (1) or (2), shall not be recognised by the court executing the decree."
59. The learned counsel for the defendant also relied on the decision reported in 2000 SC 2757 in Lakshmi Narayanan Vs. S.S.Pandian which reads as;
"Tenancy - eviction - section 47 and Order 21 Rule 2 of CPC, 1908 - whether compromise entered into between parties executing new lease deed extinguishes previously grated decree for eviction - effect of compromise on executability of decree depends upon intention of parties - intention being mixed question of fact ad law is to be determined by executing court under section 47 on interpretation of decree and compromise in light of fact and circumstances
- previously granted decree does not extinguish automatically in wake of compromise for fresh lease deed unless same is established from it."56 O.S.No.2794/2008
60. The learned counsel for the defendant also relied upon the decision reported in AIR 1959 KAR 155 in K.C.Pillappa Vs. M.Munireddy, wherein it reads as;
"Secondly once it is conceded, as it has to be, that the question raised by the application is one relating to satisfaction of a decree, section 47(1) expressly requires that it shall be determined by the executing court and not by a separate suit. When, therefore, an executing court finds that it is prevented from recognizing an uncertified satisfaction of the decree by reason of Order 21 Rule 2(3), all that it can do is to refuse to recognize the satisfaction and dismiss the application."
61. The learned counsel for the defendant also relied on the decision reported in AIR 1991 Calcutta 402 in Nebubala Sardar Vs. Abdul Aziz Baidya and para 6 of the judgment reads as follows:
"This second appeal has been preferred by the defendant, being aggrieved by the judgment and decree of the lower court. The concurrent findings of fact cannot be challenged in this court of appeal. As a matter of fact, Mr.Bagchi, appearing for the 57 O.S.No.2794/2008 appellant, does not assail any of the findings of the two courts below. He takes a very short and interesting point in this second appeal. His contention is that the suit for specific performance of contract is barred under section 47 of the C.P.code and therefore, any decree that may be passed in this suit by the court is void. In other words, he means to say that execution ought to have been levied to reap the benefit under the decree in title suit No.313 of 1971, and an independent suit would not lie. In support of his contention reliance is placed upon two decisions, namely, (1) Rabindra Nath Vs.Dhirendra Nath, reported in MANU/WB/0026/1939: AIR 1940 Cal82 and (2) Sadananda V. Union of India, reported in MANU/WB/0106/1956: AIR 1956 Cal 317. I have gone through those decisions. Those decisions squarely uphold the views expressed by Mr.Bagchi. The decree in the instant suit is void. The plaintiffs could not institute the suit to enforce the terms of compromise which was incorporated in a 58 O.S.No.2794/2008 decree. In other words, a suit for specific performance of contract would not lie to enforce the terms of the compromise decree.
The result under the compromise decree could be achieved only by way of execution.
Mr.Chakraborty, appearing for the respondent, relied upon another division bench decision in Charu Ch. V. Birendra Nath, reported in MANU/WB/0005/1970: AIR 1970 Cal 34. What is spelt out in this decision is that in case of a decree of dismissal in terms of compromise a separate suit for specific performance of contract would lie. Mr.Bagchi submits that there is no real conflict between the decisions cited by him and the decision relied upon by Mr.Chakraborty. The most distinguishable feature of the two sets of decisions is that while a decree in terms of compromise can only be satisfied by means of execution of a decree, a decree of dismissal in terms of compromise cannot be so satisfied. In order to enforce a term of a decree of compromise which ended in dismissal it can only be satisfied by means of 59 O.S.No.2794/2008 an independent suit unless, of course, in the said terms of compromise it is stated that the term so stipulated in the compromise petition is enforceable by means of an execution despite a decree of dismissal. In the instant case, therefore, the suit filed by Mr.Chakraborty's client can, by no means, succeed since the earlier suit being Title Suit No.313 of 1971 had ended in a decree by compromise. Therefore, the plaintiffs ought to have levied execution in order to satisfy the terms of decree instead of maintaining an independent suit for specific performance of contract. I quite agree with Mr.Bagchi in this behalf."
62. The learned counsel for the defendant also relied on the decision reported in AIR 1955 Bom 64 in Ganpatrao Sitaram Borlikar Vs. Shridhar Mukund Polekar, and para 4 of the judgment which reads as follows:
"But there is another difficulty in the way the plaintiffs which is equally serious, difficult it is difficult to understand, again with 60 O.S.No.2794/2008 respect to the learned judge, how he could have investigated to the issue as to the agreement relied - upon by plaintiff. That issue was the subject - matter the proceedings pending in the small cause court, and it is unnecessary to state that proceeding for the adjustment or compromise a decree can only be initiated under see-in 47 of the Civil P.C. and not by abstansive suit. The learned Judge attempt-to decide an issue which could only have been decided by the executing court and which infact as pending before the executing court.
The reason that the learned judge gives why he went into this matter and why according to him section 47, Civil P.C. was not made applicable was that the relief as to declaration that the plaintiffs was a tenant could not have been given by the small cause court. Obviously, with respect, the learned judge has fallen into an error. It is the sole right of the executing court to try an issue as to whether a decree has been adjusted or 61 O.S.No.2794/2008 not. It is for the executing court to decide what the adjustment is and to record that adjustment of the decree. To that extent that the executing court can give relief to that adjustment, the executing court will give it. To the extent it cannot, it may be that the judgment debtor might become entitled to file a suit or take other proceedings for enforcing the part of the adjustment in respect of which the executing court could not give any relief."
63. The learned counsel for the defendant also relied on the decision reported in CS(OS)No.1358/2005 of Hon'ble High Court of Delhi in CE Construction Ltd. and another Vs. Durga Builders Pvt. Ltd. and others, and para 11 of the judgment reads as follows:
"In the execution petition apart from seeking the execution, registration of the documents, custody of the original title documents, warrants of possession in respect of the entire first floor were also prayed for.62 O.S.No.2794/2008
A bailiff was sought for the said purpose with police aid. It was at that stage seeking execution that judgment debtors being defendants 1 to 3 therein filed objections under Order 21 Rule 58 CPC alleging that they have not violated the terms of the compromise decree and that the original title documents had been misplaced for which police report had been lodged. In respect of the first floor, it was stated that the same was in possession of occupants under them who were now refusing to vacate. It was in these circumstances that a Local Commissioner was appointed vide order dated 17/1/2004 to make a report about the identity of the occupants on the first floor who submitted the report. The objections were thereafter filed by M/s. CE Construction Limited, plaintiffs No.1."
64. In all the above said rulings, it is categorically held that if a person claims right through judgment debtor of any decree, then such rights should be decided only in execution 63 O.S.No.2794/2008 case and not otherwise. It is further held in those rulings that if part of the decree is satisfied, then it is to be reported to the executing court and decree holder has to certify such adjustment in said executing court. In the instant case, plaintiffs claim that to have peace and to end litigation, plaintiffs agreed to purchase suit schedule property from defendant or from his father at the rate of Rs.95/-per sq.f.t. The word "litigation" used in these pleadings is referred to Ex.No.203/94 and not to any other litigation. Because, that is the only pending case pertaining to suit schedule property. Hence, plaintiffs ought to have reported settlement between parties in Ex.No.203/94 and they are not supposed to file separate suit. Even plaintiffs made efforts to make such report in Ex.Petition by filing I.A. under S.151 CPC praying for dismissal of execution petition as parties have arrived at settlement. However, plaintiffs themselves got dismissed said application for the best reasons known to their. As discussed above, defendant has filed objections to said I.A. as per 64 O.S.No.2794/2008 Ex.D.6. Even in said objections also, defendant disputes agreement with plaintiff. Even if any compromise entered between parties, it should be reported to executing court and filing of separate suit is barred as per the principles laid down in all the above said citations. Under these circumstances, filing separate suit by plaintiffs is not maintainable. Accordingly, issue Nos.6 & 7 are answered in affirmative.
ISSUE No.5
65. When plaintiffs failed to prove the oral agreement with defendant, there is no question of consideration of the fact that whether defendant failed to execute the regular sale deed or not. Accordingly, this issue is answered in negative.
ISSUE No.8
66. Learned counsel for plaintiffs relied on the citation reported in AIR 2006 SC 40 in "S.Brahmanand and others v/s K.R.Muthugopal(D) and others" wherein, their Lordships held as under:-
"Limitation Act (36 of 1963), Art.54 - Specific Relief Act (47 of 1963), S.16 -65 O.S.No.2794/2008
Contract Act (9 of 1872), S.63 - Suit for specific performance of contract - Limitation
- Expression 'date' occurring in Art.54, from which time begins to run - Not suggestive of specific calendar date - Original agreement had 'fixed date' for performance - But, by subsequent letter defendant requested for postponing performance to future date without fixing any further date for performance - Plaintiffs by their act of forbearance and not insisting on performance forthwith accepted postponing performance - Time for performance stands extended - Case covered by second part of Art.54 - Plaintiffs realized that there was refusal to perform, when they were forcibly evicted from the godown- Counted from this date of refusal suit filed within 15 days was perfectly within period of limitation."
67. Learned counsel for plaintiffs further relied on the citation reported in (2009) 5 SCC 462 in "Ahmadsahab Abdul Mulla (2)(Dead) by proposed LRs v/s Bibijan and others" wherein, their Lordships held as under:-
"B. Limitation Act, 1963 - Art.54 - Limitation period for suit for specific performance - Plaintiffs whether had notice of refusal of performance, and date of refusal
- Determination of - Materials to be considered - Held, to be established with 66 O.S.No.2794/2008 reference to materials and evidence to be brought on record."
68. Learned counsel for plaintiffs further relied on the citation reported in ILR 1989 KAR 2408 in "Ameer v/schandrasekharappa" wherein, their Lordships held as under:-
"Specific Relief Act, 1963 (Central Act No.47 of 1963) - Section 10 - Parties not precluded from reducing agreement on plain paper and later get it validated - If time not essence of contract, failure to stipulate does not render contract void - Vendor not sole owner of property, does not absolve him from liability under agreement."
69. Learned counsel for plaintiffs further relied on the citation reported in ILR 2010 KAR 765 in "Syed Zaheer and others v/s C.V.Siddaveerappa"
"(A) Limitation Act, 1961 - Article 54
- Suit for specific performance of contract -
Period of Limitation - Time from which period begins to run - HELD, Article 54 of the Limitation Act specifies two points of time from which time begins to run for the purpose of computing the period of three years limitation with regard to filing suits for specific 67 O.S.No.2794/2008 performance of contract. One, is the date fixed for the performance of the contract and two, if no such date is fixed then when the plaintiffs have notice of the performance being refused."
70. Learned counsel for plaintiffs further relied on the citation reported in 2010(3) KLJ 80 in "K.S.Srinivasiah and another v/s Munivenkatamma" wherein, their Lordships held as under:-
"Specific Relief Act, 1963, Section 20 -
Agreement of sale - Prohibition of registration by Government - Parties agreed to complete sale upon such ban being lifted - Notwithstanding lifting ban entire sale consideration was to be paid within the agreed date - Entire sale consideration was not paid but position of consideration was paid after the expiry period of agreed date - Then plaintiffs filed suit for specific performance - Court below held plaintiffs entitled to decree - Aggrieved party questioned the relief in second appeal - Held
- Entire sale consideration was unpaid - Did not indicate readiness and willingness in the performance of contract by defendants - Court below were not justified in exercising discretion under Section 20 - Receipt of money by defendants was in violation of condition imposed by them - Indicate waiver of condition of performance of agreement 68 O.S.No.2794/2008 within time fixed - defendants not taken steps to terminate contract or claim that there was breach of contact - Hence Court below were not required to treat time as being essence of contract - Appeal rejected."
71. The above said citations produced by plaintiff's counsel to show that suit filed by plaintiffs for specific performance of the agreement is not barred by limitation. However, when plaintiffs failed to prove the oral agreement with defendant, consideration of the principles narrated in these citations is not required.
72. Learned counsel for defendant relied on the citation reported in 1969(2) SCC 539 in "Ouseph Varguese v/s Joseph Aley and others" wherein, their Lordships held as under:-
"9. ............A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiffs not only to set out agreement on the basis of which he sues in all its details, he must go further and plead 69 O.S.No.2794/2008 that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement."
73. Learned counsel for defendant further relied on the citation reported in (1995) 5 SCC 115 in "N.P.Thirugnanam(dead) by LRs v/s Dr.R.Jagan Mohan Rao and others" wherein their Lordships held as under:-
"The continuous readiness and willingness on the part of the plaintiffs are a condition precedent to grant the relief of specific performance. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the fails to either aver or prove the same, he must fail. To adjudge whether the plaintiffs are ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiffs prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to 70 O.S.No.2794/2008 pay to the defendant must of necessity be proved to be available. The court may infer from the facts and circumstances whether the plaintiffs was ready and was always ready and willing to perform his part of the contract."
74. Learned counsel for defendant further relied on the citation reported in (2003) 10 SCC 390 in "Manjunatha Anandappa URF Shivappa v/s Tammanasa and others"
wherein, their Lordships held as under:-
"30. There is another aspect of the matter which cannot be lost sight of. The plaintiffs filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on record to show that he had ever asked defendant 1, the owner of the property, to execute a deed of sale. He filed a suit only after he came to know that the suit land had already been sold by their in favour of the appellant therein. Furthermore, it was obligatory on the part of the plaintiffs for obtaining a discretionary relief having regard to Section 20 of the Act to approach the court within a reasonable time. Having regard to his conduct, the plaintiffs was not entitled to a discretionary relief."71 O.S.No.2794/2008
"32. In Lourdu Mari David v/s Louis Chinnaya Arogiaswamy this Court observed:
(SCC p.590 para 2) "2. It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."
75. Learned counsel for defendant relied on above citations only to say that plaintiffs have no readiness and willingness to get sale deed from defendant and there is delay on part of plaintiffs to file the suit. However, while discussing issue No.1, to 3, 6 and 7, this court already held that plaintiffs have not proved the agreement with defendant as per law. Hence, consideration of the fact whether there was readiness and willingness on the part of plaintiffs or not and whether there is delay on the part of plaintiffs are not required. Hence, consideration of the principles narrated in these citations is not required.
72 O.S.No.2794/2008
76. In view of findings on issue Nos.1 to 7, and for the above reasons, this court holds that plaintiffs are not entitled for the relief of specific performance as prayed for. Accordingly, this issue is answered in negative.
ISSUE No.9
77. In view of findings on issue Nos.1 to 8, this court proceeds to pass the following:-
ORDER Suit is dismissed.
Under facts and circumstances of the case, parties are directed to bear their own costs.
(Dictated to the Judgment Writer, transcribed and computerized by their, corrected and then pronounced by me in the open Court on this the 10th day of September, 2015).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.73 O.S.No.2794/2008
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - K.Mohan @ Manmohan
b) Defendant's side :
D.W.1 - N.S.Suresh Babu II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 GPA dtd: 10/10/1996
Ex.P.2 Affidavit of H.Saraswathi, Gopinath,
Sursh Babu and Radhika
Ex.P.3 GPA dt: 5/5/1996
Ex.P.4 Affidavit of Saraswathi
Ex.P.5 Certified copy of application U/O 21
R.97 CPC in Ex.No.203/1994
Ex.P.6 Copy of legal notice dtd: 3/1/2008
Ex.P.7 Postal receipt
Ex.P.8 Certificate of posting
Ex.P.9 to Certified copy of written statement
Ex.P.11 in O.S.No.7361/07,
O.S.No.7362/07 and
O.S.No.7363/2007
Ex.P.12 to 2 electricity bills and 1 receipt
Ex.P.15
Ex.P.16 to 18 Photographs
Ex.P.19 CD
(b) Defendant's side : -
Ex.D.1 Certified copy of judgment in
O.S.No.5240/1987
74 O.S.No.2794/2008
Ex.D.2 Certified copy of decree in
O.S.No.5240/1987
Ex.D.3 Certified copy of I.A. No.37 filed by
plaintiff in Ex.No.203/1994
Ex.D.4 Certified copy of the affidavit filed
in support of I.A.No.37
Ex.D.5 Certified copy of I.A.No.38 filed
by plaintiff in Ex.No.203/1994.
Ex.D.6 Certified copy of the affidavit filed
in support of I.A.No.38 in
Ex.No.203/1994
Ex.D.7 Certified copy of the objections
filed to I.A.No.35 in
Ex.No.203/1994
Ex.D.8 Certified copy of the objections
filed to I.A.No.36 in
Ex.No.203/1994
Ex.D.9 Certified copy of the objections
filed to I.A.No.49 in
Ex.No.203/1994
Ex.D.10 Certified copy of the I.A.No.80 in
Ex.No.203/1994
Ex.D.11 Certified copy of the affidavit filed
in support of I.A.No.80 in
Ex.No.203/1994
Ex.D.12 Certified copy of the objections to
I.A.No.80 in Ex.No.203/1994
Ex.D.13 Certified copy of the order sheet
for the period from 2004 to 2008 in
Ex.No.1203/1994
(K.B.GEETHA)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
GVU/-