Punjab-Haryana High Court
Bhag Ram And Ors. vs Pala Singh And Ors. on 13 September, 1995
Equivalent citations: (1995)111PLR708
JUDGMENT N.K. Kapoor, J.
1. This is unsuccessful plaintiffs regular second appeal against the judgment and decree of the Additional District Judge affirming in appeal the judgment and decree of the trial Court.
2. Plaintiff filed a suit for specific performance of the agreement dated 9.11.1978 on the ground that defendants agreed to sell the suit land for a sum of Rs. 91,250/- and received a sum of Rs. 10,000/- at the time of execution of agreement. As part performance of the agreement defendant No. 1 sold 1/3rd share of the land as detailed in the agreement to the plaintiff vide registered sale deed dated 25.1.1979. It is with regard to the remaining 2/3rd of the land for which the plaintiff was ever ready and wiling to perform his part of the obligation and the defendants reluctance to admit the plaintiffs claim, which has led to the filing of the present suit. In the plaint, it has been further averred that the plaintiff earlier filed a suit for permanent injunction restraining the defendant from alienating the land to defendant No. 2 or to any other person and also obtained ex-parte ad interim injunction on 23.5.1979. Since defendant No. 1 sold the suit land to defendants 2 and 3 so the suit for injunction was got dismissed as withdrawn and the present suit was filed challenging the sales executed by defendant No. 1 in favour of defendant No. 2 and 3.
3. Notice of the suit was served upon the defendants. Defendant No. 1 did not contest the suit. Defendants 2 and 3 filed written statement and controverted all the material averments made by the plaintiff in the plaint. They denied the execution of the agreement of sale. They further maintained that they are bona fide purchaser of the suit land for valuable consideration without any knowledge of the agreement of the sale in favour of the plaintiff. They further claimed to be in possession of the suit land.
4. On the pleadings of the parties, the following issues were framed :-
1) Whether Pala Singh defendant No. 1 entered into an agreement of sale dated 9.11.1978 in respect of the suit in favour of the plaintiff on receipt of consideration of Rs. 10,000/-? OPP.
2) Whether defendants 2 and 3 are bona fide purchasers of the suit land from Pala Singh defendant for value and consideration and without any notice of the prior agreement of sale? OPD 2 and 3.
3) Whether the plaintiff has been ready and willing to perform his part of the contract? OPP.
4) Whether the plaintiff is entitled to specific. performance of the agreement to sell dated 9.11.1978? If so on what terms and conditions? OPP.
5) What is the effect of purchase of 1/5th share of land by the plaintiff from Pala Singh defendant? OPP.
6) Whether the plaintiff is estopped from instituting the present suit on account of his own act and conduct? OPD.
7) Whether this court has got no jurisdiction to try the suit? OPD 2 and 3.
8) Relief.
5. Issue No. 1 was decided in favour of the plaintiff. Under issue No. 2 the Court held defendants 2 and 3 to be bonafide purchaser for a valuable consideration. Under issue No. 3 it was held that it is not proved that the plaintiff was ready and willing to perform his part of the agreement. Issues 4 and 5 were decided against the plaintiff. Issues 6 and 7 were decided against the defendants. Resultantly, suit of the plaintiff was ordered to be dismissed.
6. The unsuccessful plaintiff challenged the order of dismissal before the lower appellate Court. Findings on issues 2, 3 and 4 were challenged by the appellant. The learned counsel for the appellant with a view to seek reversal of the findings in respect of aforesaid three issues once again highlighted the agreement dated 9.11.1978 vide which defendant No. 1 agreed to sell 73 kanals of land for a consideration and in part performance of this agreement even sold 1/3rd share of 73 kanals of land for a valuable consideration of Rs. 30,000/-. Court noticed that a sum of Rs. 10,000/- paid as earnest amount at the time of execution of agreement was not adjusted in the sale deed. As regards the readiness and willingness of the plaintiff to get the sale deed executed, the lower appellate Court made reference to his appearance before the Sub Registrar as well as filing of the suit restraining the defendant No. 1 from dispossessing him of the land or to Kirpal Singh/Mohinder Singh from purchasing the same in view of the earlier agreement in his favour. Not only this the court made reference to two sale deeds, exhibits D-1 and D-2, wherein Pala Singh clearly made mention that if for any reason the land goes out of the ownership of the purchaser the buyer will be responsible for all the losses and expenses incurred by the vendee. Besides it the Court observed that the very fact that the plaintiff as well as the defendants were residents of the same village the later had the knowledge of the earlier sale deed executed in favour of the plaintiff whereby 1/3rd of the suit land has already been sold by Pala Singh in his favour. This way su(sic) sequent vendees acted in post haste and so can be said to have the knowledge of the existence of a prior agreement of sale in favour of the appellant. Accordingly, the Court held that it cannot be said that the defendants are bona fide purchaser for consideration having no knowledge of the agreement of sale in favour of the appellant. Thus, finding on issue No. 2 was reversed . However, the lower appellate Court while examining the finding of the trial Court under issue No. 3 came to the conclusion that since the plaintiff the appellant failed to tender the amount to the defendant on a particular date and demanded transfer of the property by an instrument which is essential as per decision of this Court in Dhanna Singh & Anr. v. Malkiat singh and Anr., (1983) 85 PLR 275 there is neither a pleading nor proof that the plaintiff tendered the amount to the defendant or demanded the transfer of property and so affirmed the finding of the trial Court in respect of issue No. 3. Resultantly, the appeal was dismissed.
7. Challenging the findings of the courts below in respect of material issues the counsel urged that the same are un-sustainable in law. Elaborating the counsel argued that the precise issue-whether the plaintiff has been ready and willing to perform his part of the contract-infact could not be pressed by the vendees defendants. Otherwise too, the approach of the Additional District Judge is contrary to the statutory provisions contained in Section 16 Sub-clause (c) explanation (i) of the Specific Relief Act, 1963. According to the counsel, it was not incumbent upon the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court. By oversight the learned judge has skipped over the explanation (i) to Sub-clause (c) of Section 16 of the Specific Relief Act. The lower appellate Court also erred in law in ignoring the fact that the vendees had knowledge of the earlier agreement in favour of the plaintiff as 1/3rd of the land subject matter of the agreement had already been purchased by the plaintiff the appellant. Not only this, pursuance to the agreement as well as the sale deed executed in his favour to the extent of 1/3rd of land now subject matter of the suit the plaintiff had been put in actual possession of the land at the spot. In this view of the matter the judgments of the courts below are un-sustainable in law and so deserve to be set aside thereby decreeing the suit of the plaintiff as prayed for.
8. Learned counsel for the respondents on the other hand has argued that both the Courts on appraisal of evidence have come to the conclusion that the defendants-vendees had no knowledge of the earlier agreement in favour of the plaintiff and hence are bonafide purchaser for value without notice of the prior agreement. Such a finding is not vitiated in any manner. Consequently, the judgments of the Courts below need to be affirmed. It was further argued by the learned counsel for the respondents that the suit was liable to be dismissed under Order 2 Rule 2 C.P.C. as admittedly the plaintiff got dismissed his earlier suit for injunction against the defendants without seeking permission of the Court for filing another suit on the same cause of action. In the context of the present case, relief of specific performance of the agreement of sale could also be claimed by the plaintiff in the earlier suit. This way, the plaintiff voluntarily gave up his claim of specific performance of the agreement and so is precluded from claiming it now. To support such a plea respondent filed on application for amendment of the written statement as well as placed on record the certified copy of the order passed by the Court it civil suit No. 103 of 1979 dismissed as withdrawn on 1.6.1979. It was thus urged that the application for amendment though filed belatedly deserves to be allowed as the document now sought to be placed on record - a certified copy of the order of the court dated 1.6.1979 has infact a material bearing upon the point in controversy.
9. Notice of this application was issued by the Court vide order dated 6.3.1992 and it was further ordered that the same will be heard with the main case. Needless to emphasise that the application for amendment has been strenuously opposed by the appellant-the plaintiff on the ground of inordinate delay, malafide and being wholly devoid of merit.
10. Both the counsel have cited various judicial, pronouncements in support of their respective contentions which will be duly noticed in the later part of the judgment.
11. Precisely put, plaintiff filed suit for possession by way of specific performance of agreement dated 9.11.1978 stated to have been executed by Pala Singh, it is the case of the plaintiff that out of the total land measuring 73 kanals-subject matter of the agreement-1/3rd of the same had already been purchased by the plaintiff vide sale deed dated 25.1.1979 and so the present dispute is with regard to the remaining 2/3rd of the land only. Filing of suit for permanent injunction and its dismissal as withdrawn is not in dispute. All the same, the date of filing of the suit vis-avis the present suit has some material bearing i.e. whether on the date when a suit for permanent injunction has been filed the plaintiff could also claim relief of specific performance of the agreement. The factum of having filed suit for permanent injunction has been mentioned by the plaintiff in his plaint. It is only when he failed to effect service upon the defendants who in the meantime had already got executed sale deed/sale deeds in their favour that the suit for permanent injunction was withdrawn on 1.6.1979. According to the plaintiff, the defendants-vendees had knowledge of the earlier agreement and so they cannot be deemed to be bona fide purchaser of the suit land, whereas according to the case of the defendants they had no inkling of any agreement whatsoever, if any executed by Pala Singh in favour of the plaintiff else they would not have purchased the suit land. For this the support has been sought from the earlier sale deed in favour of the plaintiff which nowhere makes mention of the earlier agreement. Thus, though the parties are residents of the same village the vendees had no knowledge of any such agreement in favour of the plaintiff. Trial Court on the basis of evidence came to the conclusion that defendants are bona fide purchaser for valuable consideration and without any prior notice. The lower appellate Court, however, has chosen to reverse this finding. It has been argued by the learned counsel for the appellant that since the vendees have not filed any cross objections to the appeal they are debarred from challenging the finding of the lower appellate Court in respect of issue No. 2. To meet this objection, counsel for the defendants made reference to an application filed by them with a view to assail the correctness of this issue by the lower appellate Court. Civil Miscellaneous No. 245-C of 1984 has been filed under Section 151 C.P.C. stating therein that the finding under issue No. 2 is erroneous.
12. Notice of this application was given by the Court and it was directed that the same shall be disposed of alongwith regular second appell at the time of final hearing. According to the respondents, the lower appellate Court did not meet with the reasoning and the conclusion arrived at by the trial Court while reversing the finding under this issue. The Court also ignored the proved fact that the respondents are bona fide purchaser for valuable consideration and without any notice of the prior agreement of sale. Even without filing of cross objections, Order 41 Rule 22 C.P.C. permits a party to state that finding against him in respect of an issue ought to have been in his favour. Order 41 Rule 22 C.P.C. read as under :-
"Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation:- A respondent aggrieved by a finding of the Court in the Judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is wholly or in part, in favour of that respondent."
13. This order permits a respondent to file any cross-objection in a pending appeal and that filing of any cross-objection entitles him to state that the finding against him in the Court below in respect of any issue ought to have been in his favour. Vide amendment Act of 1976 a party is permitted to file cross objections as well as has a right to state that finding against him in the Court below in respect of any issue ought to have been in his favour. It is on the basis of this amendment in Order 41 Rule 22 C.P.C. that respondent has filed this application under Section 151 C.P.C. making a prayer that even the decision of the lower appellate Court in respect of issue No. 2 needs to be modified.
14. Somewhat similar point came up for consideration in Prithi v. Yatinder Kumar and Ors., A.I.R. 1985 P & H 238, wherein the plea that the suit property was a co-parcenary property was upheld but the suit was dismissed in toto. In appeal defendant-vendee challenged the finding of the trial Court that property was a coparcenary. This objected to by the counsel for the other party. This matter was considered by the Court in the light of Order 41 Rule 22 C.P.C. and it was held that since the plaintiffs suit was dismissed in toto so the defendants were entitled to support the decree by showing that the finding against them in the Court below in respect of any issue ought to have been in their favour and this could be urged without filing cross-objection in the pending appeal.
15. Similarly, the Allahabad High Court in Balkrishna Das Agarwal v. Smt. Radha Devi and Ors., A.I.R. 1989 Allahabad 133, held as under :-
"Keeping these principles in mind, we find that the plaintiffs here had not suffered in any way on account of the judgment since their suit had been decreed, finding on the point of due execution of the will notwithstanding. If the plaintiffs were not aggrieved by the judgment, they could hardly have a cause to file an appeal and for that matter even to file a cross-objection. That being so, the plaintiff are entitled to support the decree even on those points that have been decided by the judgment under appeal against them. In our view, therefore, the respondent is entitled to challenge the finding on the question of due execution of the will even though a cross-objection in that regard has not been filed. We, therefore, overrule the preliminary objection by the appellant."
16. Trial Court on carefully considering the evidence led by the parties especially of the contesting defendants came to the conclusion that they are bona fide purchaser for value and without any notice of the prior agreement. The lower appellate Court while reversing this finding has not adverted to the various essential features noticed by the trial Court. To that extent the lower appellate court appears to have bye-passed the various facts noticed by the trial Court. Even the inference drawn by the lower appellate Court that the defendant-vendees had prior knowledge of the agreement is somewhat conjectural, as earlier sale deed does not make mention of agreement between plaintiff and defendant No. 1. Similarly, the finding of the lower appellate Court in respect of issue No. 3 is also un-sustainable on the short ground that same is contrary to the statutory provision contained in Section 16 Sub-clause (c) explanation (i), which reads as under :-
"Section 16. Specific performance of a contract cannot be enforced in favour of a person-
(a) x x x x x x x x x x
(b) x x x x x x x x x x
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation:- For the purpose of Clause (c),-
(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court;
(ii) xxxxxxxxx"
17. Thus, as the aforesaid provisions it is not essential for the plaintiff to tender to the defendant or to deposit in court any money except when so directed by the Court. Decision in Basheshar Nath v. Radha Kishan, (1993-2) 104 P.L.R. 56 squarely applies to the facts of the present case. Otherwise too, the precise objection i.e. whether plaintiff is ready and willing to perform his part of the agreement is only available to the vendor or his legal representatives. The apex Court in Jugraj Singh and Anr. v. Labh Singh and Ors., (1995-3) 111 P.L.R. (S.C.) has held as under:-
"That plea is specifically available to the vendor/defendant. It is personal to him. The subsequent purchaser have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers. The High Court, therefore, was right in rejecting the petitioners' contention and rightly did not accept the plea. We do not find any ground warranting interference."
18. Thus, a peculiar situation has arisen in the present case as the findings in respect of material issues 2 and 3 recorded by the lower appellate Court, one in favour of the appellant and other against him infact deserve to be reversed. Similarly, the respondents application seeking amendment of the written statement though belated is meritorious as the injunction and its dismissal as withdrawn finds duly mention in para No. 7 of the plaint. This application, if allowed, is likely to result in reopening of whole matter as the other party will also claim right to lead evidence in rebuttal, which will unnecessarily prolong agony of a protracted trial. Thus, in view of the peculiar circumstances of the present case, while declining the respondents application for amendment of the written statement with a view to take up objection with regard to the maintainability of the present application in terms of Order 2 Rule 2 C.P.C. I take this document on record for complete and effectual decision of the controversy (as factum of having filed earlier suit has been admitted by the plaintiff). This precise objection with regard to the maintainability of the suit on account of bar of Order 2 Rule 2 C.P.C. as of course not been raised by the defendants and so the Court is deprived of the considered views of the Courts below. In any case, it is well settled that a party is to include the whole of the claim which he is entitled to lay in respect of a cause of action and in case he relinquishes any portion of the claim he cannot make grievance of the same later on. Thus, taking an overall view of the matter and especially the conclusion that respondents are bona fide purchaser for value without notice, I am of the considered opinion that the judgment of the Court below is liable to be upheld but with slight modification. It has come on record that the plaintiff advanced a sum of Rs. 10,000/- to Shri Pala Singh at the time of execution of agreement dated 9.11.1978. Pala Singh has not come forward to contest the suit. As per the case of the plaintiff even in the earlier sale deed executed by Pala Singh in favour of the plaintiff this amount of Rs. 10,000/- has not been adjusted. This being so, the plaintiff is entitled to recover this amount alongwith interest from the defendant-vendor and to that extent the decree needs to be modified. Resultantly, while upholding the conclusion of the Courts below that the plaintiff is not entitled for specific performance of the agreement, all the same the plaintiff is entitled to recover a sum of Rs. 10,000/- alongwith interest of the rate of 12% from the date of suit till recovery from Pala Singh-Defendant.
19. No order as to costs.