Himachal Pradesh High Court
Rakesh Sharma And Others vs Bhushan Lal And Others on 26 December, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA No.272 of 2003 a/w RFA No. 276of 2003.
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Date of decision: 26th December, 2017.
1. RFA No. 272 of 2003.
Rakesh Sharma and others .....Appellants/ Defendants No.2, 3 & 5.
Versus Bhushan Lal and others ....Respondent/Plaintiff.
For the Appellants r : Mr.Tara Singh Chauhan, Advocate.
For the Respondents : Mr.K.D.Sood, Senior Advocate with Mr.Dhananjay Sharma, Advocate, for respondent No.1.
Mr.R.K.Gautam, Senior Advocate with Mr.Gaurav Gautam, Advocate, for the LRs of deceased-respondent No.2.
2. RFA No. 276 of 2003.
Desh Raj (since deceased) through his LRs Smt. Uma Watti and others .....Appellants/ Respondent No.1.
Versus Bhushan Lal and others ....Respondent/Plaintiff.
For the Appellants : Mr.R.K.Gautam, Senior Advocate with Mr.Gaurav Gautam, Advocate.
For the Respondents : Mr.K.D.Sood, Senior Advocate with Mr.Dhananjay Sharma, Advocate, for respondent No.1.
Mr.Tara Singh Chauhan, Advocate, for respondents No.2, 3 and 5.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 29/12/2017 22:58:40 :::HCHP 2 Tarlok Singh Chauhan, Judge (Oral).
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Looking to the nature of order, I propose to pass, it is not at all necessary to delve into the facts in detail. Suffice it to state that the plaintiff/respondent No.1 filed a suit for possession by way of specific performance on the basis of agreement to sell dated 19.12.1997 whereby defendant No.1 (appellant in RFA No. 276 of 2003) agreed to sell his half share in the suit land in favour of the plaintiff for a consideration of `2,50,000/-. An amount of `10,000/- was paid as earnest money and rest of the amount was required to be paid at the time of execution of the sale deed. It was averred that the plaintiff was ready and willing and is still ready and willing to perform his part of obligation stipulated in the agreement as well as to cooperate for the execution and registration of the sale deed, but defendant No.1 is not inclined to fulfill his part of obligation and infact left Kangra for his village without executing the sale deed. Not only this, defendant No.1 in collusion with defendant No.2 to 5 (appellants in RFA No. 272 of 2003 and proforma respondent No. 3) with an intention to defraud the plaintiff had executed the sale deed dated 23.12.1997 in favour of minor defendants No.2 and 3. The plaintiff, thus, prayed for a decree for possession by way of specific performance on the basis of the agreement to sell dated 19.12.1997 and in the alternative a decree for `20,000/- i.e. double the amount of earnest money already paid to defendant No.1 and also for permanent and mandatory injunction restraining the defendants from changing the nature of the suit land or raising any construction thereupon.
::: Downloaded on - 29/12/2017 22:58:40 :::HCHP 32. The contents of the written statement and the other contentious issues on merits are not adverted to as it would be noticed .
that in the suit so filed by the plaintiff, he had not specifically challenged the sale deed dated 23.12.1997 that had been executed by defendant No.1 in favour of minor defendants No.2 and 3.
3. Now, the moot question is whether in absence of having specifically assailed the aforesaid sale deed, could the learned Court below have decreed the suit of the plaintiff as it is vehemently argued by Shri Tara Singh Chauhan, Advocate that the issue in question is no longer res integra in view of the authoritative pronouncement of the Hon'ble Supreme Court in its decision rendered in B.Vijaya Bharathi versus P. Savitri and Ors., AIR 2017 SC 3934.
4. On the other hand, learned Senior Counsel for respondent No.1 would argue that the sale deed need not be specifically challenged as held by a learned Single Judge of this Court in Rajinder Singh versus Sushil Kumar and others, 2006 (2) Shim. LC 326.
I have heard the learned counsel for the parties and have also gone through the records of the case.
5. Adverting to the facts in Rajinder Singh's case (supra), it would be noticed that he was aggrieved by the judgment and decree of the learned trial Court as affirmed by the learned first appellate Court whereby the suit for specific performance instituted by Sushil Kumar and Jagdish Ram Sharma initially against Nand Lal in which the appellant was impleaded later on, had been decreed. One of the questions raised therein was that in absence of there being any prayer for cancellation of the sale deed made by Nand Lal in favour of the appellant, could the suit ::: Downloaded on - 29/12/2017 22:58:40 :::HCHP 4 have been decreed. The learned Single Judge while placing reliance upon the provisions of Section 19(a) and (b) of the Specific Relief Act, .
1963, proceeded to hold the suit to be maintainable by according the following reasons:-
"4. I have heard the learned Counsel for the appellant. The main contention raised by the learned Counsel is that no prayer having been made by the plaintiffs for the cancellation of the sale deed made by Nand Lal in favour of the appellant, the suit could not have been decreed against the present appellant. The matter has been dealt with by the First Appellate Court. Section 19(a) (b) of the Specific Relief Act, 1963 says that the specific performance of a contract may be enforced against either party thereto or any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract.
The aforesaid provision is clear. The present appellant being a transferee subsequent to the making of the agreement by Nand Lal with the plaintiffs, decree for specific performance is executable against him even without seeking the cancellation of the sale made in his favour by Nand Lal."
6. Now, in case the facts of B.Vijaya Bharathi's case (supra) are adverted to, it would be noticed that on 21.02.1992 an agreement to sell was entered into between (Smt. P. Savitri respondent No.1 therein) and the appellant (B.Vijaya Bharathi) by which the scheduled property was agreed to be sold for a consideration of `1,80,000/- out of which `1,30,000/- had already been paid in advance whereas balance sale consideration was to be paid later on as and when the vendee would give notice that she is ready to get the property registered and on intimation from the vendor to pay the balance sale consideration.
However, before the sale deed could be executed in favour of the plaintiff ::: Downloaded on - 29/12/2017 22:58:40 :::HCHP 5 therein, defendant No.1 on 12.05.1992 sold the property to defendant No.2 for a sale consideration of `1,20,000/-. Not only this, defendant .
No.2, in turn, sold the property on 05.07.1993 to defendant No.3 for `1,95,000/-. Both the sales were by registered conveyance. The plaintiff issued necessary notice that she was ready and willing to pay the balance amount of `50,000/- on 18.02.1994. Since the reply to the said notice was that the agreement was no longer valid, the plaintiff filed a suit
7. to for specific performance on 13.04.1994.
It would be noticed that apart from other contentions that were raised in the appeal, one of the contentions put forth before the Hon'ble Supreme Court was that the suit in its present form was not maintainable for the added reason that despite the fact that it came to the knowledge of the plaintiff that there were two registered conveyances prior to the suit, the plaintiff did not amend the suit to ask for a decree of cancellation of the said sale deeds, as would be evidently clear from para-10 of the report which reads thus:-
"10. Mr.A.Subba Rao, on the other hand, supported the judgment of the High Court and argued that not only was there delay in the present case, but it was coupled with the fact that there was no readiness and willingness, as is correctly held by the High Court. Further, he also stated that the present suit in its present form would not be maintainable for the added reason that despite the fact that it came to the plaintiff's knowledge that there were two registered conveyances prior to the suit, the plaintiff did not amend the suit to ask for a decree of cancellation of the said sale deeds."
The aforesaid contention has been dealt with in para-17 of the report which reads thus:-
::: Downloaded on - 29/12/2017 22:58:40 :::HCHP 6"17. It must also be noted that though aware of two conveyances of the same property, the plaintiff did not ask for their cancellation. This again would stand in the way of a decree of specific .
performance for unless the sale made by Defendant No.1 to Defendant No.2 and thereafter by Defendant No.2 to Defendant No.3 are set aside, no decree for specific performance could possibly follow...."
8. It is unequivocally manifest that the ratio laid down in Rajinder Singh's case (supra) has been impliedly over-ruled or whittled down by the subsequent judgment of the Hon'ble Supreme Court in B.Vijaya Bharathi's case (supra) and, therefore, the judgment can no longer be said to be laying down the correct law. However, in order to maintain judicial propriety and decorum, it would not be proper for this Court to embark upon the said decision and the only course open would be to refer the matter to a larger Bench.
9. Accordingly, the Registry is directed to place the papers before Hon'ble the Acting Chief Justice for constituting a Larger Bench.
( Tarlok Singh Chauhan ) th 26 December, 2017. Judge.
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