Patna High Court
Most.Siya Devi & Ors vs Anandi Singh on 4 October, 2016
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.152 of 1988
Against the Judgment and Decree dated 21.03.1988 passed by
Subordinate Judge, Khagaria in Title Suit No.36 of 1983.
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Pratap Singh & Ors........................................Defendants appellants
Versus
Anandi Singh & and Ors. .................................Plaintiff respondents.
.
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Appearance :
For the Petitioner. - Mr. Arun Kumar Prasad, Advocate
Mr. Kapildeo Singh, Advocate
Mr. Manoj Kumar, Advocate
For the Respondent. -
Mr. Suresh Prasad Baranwal, Advocate
Mr. Sushil Kumar, Advocate
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Dated : 4thday of October, 2016
PRESENT
CORAM : HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
1. The defendants have filed this First Appeal against the
Judgment and Decree dated 21.03.1988 passed by the learned
Subordinate Judge, Khagaria in Title Suit No.36 of 1983 whereby the
Court below decreed the plaintiff respondent's suit for specific
Patna High Court FA No.152 of 1988 dt.04-10-2016
2/13
performance of contract.
2. The plaintiff respondents filed Title Suit No.36 of 1983
praying for declaration that zerbeyanaa dated 08.01.1983 executed by
Ramrakshi Singh is genuine and binding on the defendants and the
plaintiffs are entitled for the specific performance of alleged
zerbeyana after paying Rs.5000/- the balance consideration amount.
3. The foresaid relief was claimed alleging that Ramrakshi
Singh had entered into agreement to sell the suit properties for
Rs.15,000/- and on 08.01.1983, plaintiff paid Rs.10,000/- as earnest
money and zerbeyana deed was executed. The balance amount of
Rs.5000/- was agreed to be paid at the time of registration latest by
30.06.1983. Possession of the land was delivered to the plaintiffs. On 01.02.1983, the plaintiff arranged Rs.5000/- and send registered notice to the defendants informing his readiness and willingness to pay the balance amount and requested for fixing a date for registration. The defendants replied denying the execution of zerbeyana and also acceptance of Rs.10000/- and also denied to execute the sale deed after accepting Rs.5000/- .
4. The defendants filed contesting written statement. The main defence is that he never negotiated nor agreed to sell the property in suit nor he received Rs.10,000/-. The plaintiff asked him Patna High Court FA No.152 of 1988 dt.04-10-2016 3/13 to go to Civil Court where a case is pending against him and the defendants went there with the plaintiff. The plaintiff then obtained L.T.I. on some blank stamp papers. The defendants got the said plain stamp paper converted to a zerbeyana deed.
5. On the basis of the aforesaid pleadings of the parties, the learned Court below framed the following issues :-
(i) Is the suit framed maintainable?
(ii) Has plaintiff got valid cause of action?
(iii) Is the suit barred by law of limitation?
(iv) Is the zerbeyana deed dated 08.01.88 forged and fabricated
as contended by the defendant?
(v) Is the plaintiff entitled to get the relief as claimed?
(vi) To what other relief or reliefs, if any, is the plaintiff entitled.
6. The learned Court below on the basis of the evidences recorded a finding that the plaintiff has shown his willing to perform his part of the contract and also has deposited Rs.5000/-. The Court below also came to the conclusion that the zerbeyana deed dated 08.01.1983 is not a forged and fabricated document and accordingly, the plaintiff's suit was decreed.
7. The defendants have filed this Appeal against the Judgment and Decree. The learned counsel, Mr. Arun Kumar Prasad, submitted that no issue was framed regarding the readiness and willingness to Patna High Court FA No.152 of 1988 dt.04-10-2016 4/13 perform his part of the contract. The Court below recorded finding without there being any issues that the plaintiff was ready as he has deposited the amount of Rs.Rs.5000/- and he was also willing to perform his part of the contract. According to the learned counsel, this finding is erroneous and without framing issues, therefore, it prejudiced the appellant. The plaintiff got the L.T.I. on the zerbeyana deed fraudulently on false pretext that a case is pending against the defendant and by playing fraud he converted the plain stamp paper to a zerbeyana deed. Therefore, the zerbeyana deed is a forged document. The defendants never agreed to sell the properties in suit. The Court below also mis-appreciated the evidences and wrongly held that the zerbeyana deed is not a forged document.
8. According to the learned counsel for the appellant, unless issues is framed regarding Section 16(c) of the Specific Relief Act and finding is recorded, the suit for specific performance could not have been decreed but here the Court below had decreed the suit. The plaintiffs also did not produce satisfactory evidence in support of his case of readiness and willingness. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside.
9. On the other hand, the learned counsel for the appellant, Patna High Court FA No.152 of 1988 dt.04-10-2016 5/13 submitted that the L.T.I. on the zerbeyana deed is admitted by the defendant. The defendant alleged that plaintiff fraudulently got L.T.I. on plain stamp paper, therefore, it is for the plaintiff to prove the fraudulent action of the plaintiff and unless it is proved, it cannot be said in any way that the zerbeyana deed has been in fact converted to zerbeyana deed from plain stamp paper whereon the L.T.I. of defendant was obtained. To prove this fact alleged by the defendant, nothing has been brought on record except some statement of the witnesses in support of the pleading to that effect.
10. The learned counsel further submitted that there is specific averment made in the plaint regarding readiness and willingness. Moreover, the balance consideration amount was to be paid by 30.06.1983. On 30.06.1983 itself, it was deposited as the plaintiff denied the execution and receipt of Rs.10,000/- in reply to the notice of the plaintiff. This notice was issued by the plaintiff in Feb., 1983. Therefore, when the particular facts are there in the pleading and evidence had been adduced in support of the same, it cannot be said that there was no pleading and moreover, it is not the case of the defendant that for non-framing of any issue, they were prejudiced in any way. Both the parties entered into trial knowing the case of each other so non-framing of issue is not material nor it vitiate the Judgment as no prejudice is caused to the appellant. The Court below Patna High Court FA No.152 of 1988 dt.04-10-2016 6/13 has considered the evidences and materials and then had decreed the suit after recording necessary findings. Therefore, the First Appeal be dismissed.
11. It may be mentioned here that an application for amendment has been filed by the plaintiff being I.A No.3870 of 2014. By this amendment application, the plaintiff respondents prayed that the Khata No.558 has been wrongly typed in the agreement and the plaint in the schedule. In fact the khata number is 518, therefore, the Khata number be corrected to Khata No.518.
12. The learned counsel for the plaintiff submitted that there is no dispute about the identity of the suit land. The boundary is same and correct. Plot Number is correct. Only Khata number has been wrongly typed as 558 in place of 518. The plaintiff was not knowing this fact and he could detect this mistake only when a sale deed was executed by the defendant in 2013 during the pendnecy of the Appeal. Accordingly, the amendment application has been filed. No reply or rejoinder to this amendment application has been filed by the appellant. The learned counsel for the appellant submitted that at the appellate stage, the amendment cannot be allowed as now the subject matter will entirely be changed.
13. In view of the above submissions of the learned counsels Patna High Court FA No.152 of 1988 dt.04-10-2016 7/13 for the parties, the following points arises for consideration in this present Appeal :-
(a) Whether the plaintiff is entitled to decree for specific performance of the contract dated 08.01.1983.
(b) Whether because of non-framing of issue, the Judgment of the trial Court is vitiated and whether the impugned Judgment and Decree are sustainable in the eye of law.
14. Since both these points are inter-related, both are decided together.
15. It is admitted fact that zerbeyana deed is dated 08.01.1983 which bears L.T.I. of the original defendants, Ramrakshi Singh. The only defence with respect to this zerbeyana dated 08.01.1983 is that the plaintiff fraudulently got the L.T.I. on plain stamp paper. This zerbeyana deed is exhibit '4'. By this zerbeyana, 12 biggha 6 katha 4 dhurs lands were agreed to be sold by Ramrakshi Singh in favour of the plaintiff for Rs.15,000/-. The earnest money paid was Rs.10,000/- and the last date for payment of balance was 30.06.1983. Except the allegation of fraudulent L.T.I. obtained by the plaintiff, no other defence had been taken. The defendants have examined many witnesses.
16. D.W.1 and 2 have stated that the plaintiff and Ramrakshi Patna High Court FA No.152 of 1988 dt.04-10-2016 8/13 Singh came to them with plain stamp paper and L.T.I. of Ramrakshi Singh was obtained by the Advocate of Ramrakshi Singh. D.W.3 has stated that Ramrakshi Singh told him that he was going to Khagaria for making a pairvi in a case. D.W.7 and D.W.4 are on the point of execution of sale deed by the plaintiff in favor of brother of D.W.4. Therefore, their evidence are not relevant for deciding as to whether the plaintiff obtained L.T.I. on plain stamp paper fraudulently. D.W.8 has stated that on 03.01.1983, Anandi Singh came and had told Ramrakshi Singh that one case has been filed by Jaya Devi so Ramrakshi Singh should make pairvi. D.W.10 is one of the defendant who is daughter of Ramrakshi Singh. Her evidence is according to the written statement. These are the evidences produced by the appellants to show that the plaintiffs obtained the L.T.I. of Ramrakshi Singh fraudulently on plain stamp paper. There is no any other documentary evidences in support of this case of fraud. It may be mentioned here that allegation of fraud is in the nature of criminal act and, therefore, the person alleging fraud has to prove it beyond doubt. Mere statement by the witnesses and pleading in the written statement is not sufficient to discharge the duty. Moreover, when the trial Court after perusal of the evidences of the defendants recorded finding that the defendants failed to prove fraud. This Court being the First Appellate Court should not lightly interfere with the finding of fact. Patna High Court FA No.152 of 1988 dt.04-10-2016 9/13 The question whether the plaintiff got L.T.I. on plain stamp paper or not is a pure question of fact.
17. The Hon'ble Supreme Court in the case of Sarju Pershad Ramdeo Sahu Vs Raja Jwaleshwari Pratap Narain AIR 1951 SC 120 has held that when the trial Court recorded a finding of fact on the basis of oral evidences only, the same should not be interfered with lightly unless the Court below to consider any such vital statements made by the witnesses in their depositions and had the Court consider this vital statement, the finding would have been otherwise. This view has been reiterated by the Hon'ble Supreme Court again in AIR 1983 SC 114 Madhusudan Das Vs Smt. Narayani Bai.
18. In view of the above settled proposition of law and the evidences produced by the defendant, I find that the Court below has rightly held that the defendants failed to prove fraud and that the defendant failed to prove that the plaintiff got L.T.I. of Ramrakshi Singh on plain stamp paper. The finding on the trial Court on this point is, therefore, confirmed.
19. So far the question as to whether the plaintiff is entitled for a decree for specific performance of contract or not, it may be mentioned here that plaintiff has to aver and prove that he was ready and willing to perform his part of the contract and is still ready and Patna High Court FA No.152 of 1988 dt.04-10-2016 10/13 willing according to Section 16 (C) of the Specific Relief Act.
20. From perusal of the plaint, I find that there is specific pleading at paragraph 12 of the plaint and in support of this pleading, P.W.9 who is plaintiff has been examined who has fully supported his case of readiness and willingness. It may be mentioned here that the agreement is dated 08.01.1983. According to the agreement, it was agreed that by 30.06.1983, the balance consideration amount was to be paid. The notice was sent by the plaintiff on 06.03.1983 for receiving the balance amount and for executing the sale deed. Therefore, within two months, the notice was sent showing the readiness and willingness. Another notice was against sent on 26.03.1983. This notice is also prior to 30.6.1983. On the contrary, the defendant is denying the execution of the agreement and receiving of Rs.10,000/-. It further appears that the amount of Rs.5000/- has already been deposited by the plaintiff in the Court in the year 1984. Therefore, the pleadings at paragraph 12 of the plaint coupled with evidence of P.W.1 and the two notices within three months from the date of execution of the agreement clearly shows that the plaintiff was always ready and willing and still ready and willing to perform his part of the contract and he has already deposited the amount prior to the Judgment and Decree. I accordingly find that the plaintiff was and is always ready and wiling to perform his part of the contract and the Patna High Court FA No.152 of 1988 dt.04-10-2016 11/13 finding of the Court below is thus, hereby confirmed.
21. The submission of the appellant is that no issue has been framed on this question, i.e, readiness and willingness. The Hon'ble Supreme Court of in the case of Nedunuri Kameswaramma Vs Sampati Subba Rao AIR 1963 SC 884 has held that 'if the parties entered into trial knowing the case of each other then the Judgment will not be vitiated for non-framing of issues.' This view is reiterated again in AIR 1987 1242 SC and again in the case of Union of India Vs. Ibrahimuddin (2012) 8 SCC 148. In the present case, there is clear pleading of the plaintiff regarding readiness and willingness. The defendants did not deny this fact and his defence is only that there was no agreement and Rs.10,000/- was not received. The parties entered into trial knowing the case of each other and evidence has been adduced in support of respective cases. In such circumstance, in my opinion, non-framing of issue will not vitiate the Judgment.
22. So far the amendment application is concerned, it may be mentioned here that there is no dispute about the identity of the land. According to the plaintiff, it is a typing mistake regarding khata number. In place of 518, it has been typed as 558. So far plot number are concerned and the area of the lands in suit are concerned, those are Patna High Court FA No.152 of 1988 dt.04-10-2016 12/13 all correct. The boundaries are also correct. It is not the case of the defendant that they had got lands of the same plot and same area in khata No.558 also which is subject matter of the zerbeyana. Now, therefore, when there is no dispute about the identity of land it is only a mistake in the khata number. Therefore, in view of the decision of Hon'ble Supreme Court reported in AIR 1963 SC 1879, I find that the khata number is incorrect as such the amendment sought for by the plaintiff is hereby allowed and khata No.558 is correct to Khata No.518.
23. An injunction application has been filed being I.A., No.507 of 2016 on 19.01.2016 on behalf of the plaintiff respondent praying for restraining the appellants from selling / alienating the suit land during the pendency of the Appeal. I heard the parties on this injunction application also. Since, I am disposing of the Appeal itself, no separate order is passed in this injunction application. This injunction application is thus disposed of and the result of this First. Appeal shall govern the same.
24. Since I have already recorded finding that the plaintiff was always ready and wiling and is still ready and willing to perform his part of the contract and the defendants failed to prove that L.T.I. of Ramrachi Singh was obtained by fraud, both the points are answered Patna High Court FA No.152 of 1988 dt.04-10-2016 13/13 against the appellant and in favour of the plaintiff respondent.
25. In the result, this First Appeal is dismissed with cost of Rs.10,000/- to be paid by the appellants to the respondents within two months failing which the plaintiff respondent shall realize the same though the process of Court.
(Mungeshwar Sahoo, J) Sanjeev/-
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