Allahabad High Court
Ram Yagga vs Ram Niwaz on 3 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 1078
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 21 Case :- SECOND APPEAL No. - 110 of 1988 Appellant :- Ram Yagga Respondent :- Ram Niwaz Counsel for Appellant :- R.S.Pandey,Ankit Pande,Mohd. Arif Khan,P.C. Agarwal,Ramesh Chandra Pandey Counsel for Respondent :- C.S.C.,D.C. Mukharjee,D.K.Srivastava,Rajeiu Kumar Tripathi,S.B.Pandey,S.C.Srivastava,S.P.Pandey,S.P.Srivastava Hon'ble Jaspreet Singh, J.
The instant second appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 04.01.1988 passed by 3rd Additional District Judge, Faizabad in Civil Appeal No.81 of 1983 (Ram Newaz Vs. Ram Yaggya and others) by means of which the appeal of the defendant was allowed and the judgment and decree dated 25.01.1983 passed by Munsif Hawali, Faizabad in Regular Suit No.140 of 1981 (Ram Yaggya Vs. Bachchu Lal) was set aside, as a result the suit of the plaintiff-appellant for specific performance of contact which was decreed by the trial court was set aside and dismissed by the lower appellate court.
Against this judgment of reversal, while admitting this second appeal, this Court by means of order dated 11.04.1988 noticed the following substantial questions of law involved in the instant appeal, which reads as under:-
(i) Whether without recording specific finding on question of possession of plaintiff-appellant, the lower appellate court could dismiss the suit on the ground that defendant-respondent nos.1 and 2 are bonafide purchaser for value without notice? (The trial court recorded specific finding about possession of plaintiff-appellant and thereby held that defendant-respondent nos.1 and 2 were not bonafide purchaser without notice).
(ii) Whether the defendant-respondents could challenge proof of agreement to sell when the same was exhibited without any objection on their behalf?
Heard Dr. R. S. Pandey learned Senior Counsel assisted by Sri Ankit Pandey for the appellant and Shri Rajeiu Kumar Tripathi, learned counsel appearing for the respondent.
Before answering the aforesaid substantial questions of law involved in the instant second appeal, certain brief facts giving rise to this appeal are being noticed first.
Ram Yaggya (as plaintiff) instituted a suit for specific performance of contract registered as Regular Suit No.140 of 1981 before the court of Munsif Hawali, Faizabad. The suit was instituted against Bachchu Lal who is the son of the original vendor Surya Pal, whereas Ram Newaz and Ram Sanehi are the purchaser of the property in question. While defendant no.4 Ram Pratap claimed ownership of the property on the basis of an alleged Will said to be executed by Surya Pal.
While instituting the suit the plaintiff pleaded that the property in question belonged to Surya Pal who executed an agreement to sell in favour of the plaintiff on 20.04.1972. Balwant Lal and Surya Pal each had half share in property in question i.e. land bearing no.44 measuring 2 biswa 5 dhur, land no.81 measuring 5 biswa 6 dhur situate in Gram Kodra, Pargana Pashit Rath, Tehsil Bikarpur, District Faizabad.
It was also pleaded that Surya Pal had received some property in District Bahraich from his in-laws and for the said reason he was primarily residing there. He had given the said property in suit to the plaintiff for tilling. As Surya Pal was residing in Bahraich he had expressed his desire to alienate the same. The plaintiff agreed to purchase the said agricultural land and the house for a total consideration of Rs.6000/=. The plaintiff paid a sum of Rs.3500/= as earnest money and an agreement was executed by Surya Pal in favour of the plaintiff on 20.04.1972 with the stipulation that the remaining consideration will be paid at the time of execution of the sale deed.
It was further pleaded that the plaintiff was ready and willing to get the sale deed executed. However, for one reason or the other Surya Pal deferred the execution of the sale deed. Surya Pal expired in 1978. He was succeeded by his son Bachchu Lal. The plaintiff requested Bachchu Lal to execute the sale deed who also delayed and deferred the matter and it is only in May 1979 when the plaintiff became aware that Bachchu Lal had executed a sale deed in favour of the defendants no.2 and 3, namely, Ram Newaz and Ram Sanehi, that the instant suit was preferred. It was also pleaded that the plaintiff was always ready and willing to perform his part of the contract including the payment of the balance sale consideration and the plaintiff is still willing and ready.
The suit was contested by defendants no.2 and 3 who had purchased the property. It was specifically pleaded that the defendants no.2 and 3 deny the alleged agreement in favour of the plaintiff. They also raised the defence that it is the defendants who are in possession of the property. They are the bonafide purchaser for valuable consideration without notice of the alleged agreement dated 20.04.1972 as well as that the alleged agreement itself was fictitious and had been fabricated, apart from the fact, that the said agreement was not registered and the suit of the plaintiff was liable to fail.
The defendant no.4, namely, Ram Pratap filed his separate written statement. It was pleaded that Bachchu Lal was not the son of Surya Pal. It was stated that Surya Pal had only one son, namely, Raghunath Prasad alias Bachcha Lal who had expired in the life time of Surya Pal. Thus, at the time of death of Surya Pal, he had no legal heir and that the defendants no.2 and 3 had connived by getting a person allegedly called Bachchu Lal and with a view to usurp the property of Surya Pal, the alleged deed has been got executed. He also set up a Will in his favour and submitted that Surya Pal had executed a Will in his favour and he is its owner in possession.
The trial court on the basis of the pleading of the party framed eight issues. Issue no.1 related to whether Surya Pal had executed agreement to sell dated 20.04.1072 in favour of the plaintiff. Issue no.2 was whether the defendants no.2 and 3 were bonafide purchaser for valuation consideration without notice. Issue no.3 was whether the suit was premature. Issue no.4 was whether the suit was beyond limitation. Issue no.5 was whether the plaint was liable to be rejected under Order 7 Rule 11 CPC. Issue no.6 was whether the plaintiff was entitled to any relief. Issue no.7 was whether the plaintiff had required the defendant no.1 to comply with the agreement and if so its effect and issue no.8 was whether Surya Pal had executed any Will in favour of Ram Pratap i.e. defendant no.4 and if so its effect.
The trial court upon considering the evidence and the submission of the parties while dealing with the issue nos.3 and 4 held that the suit of the plaintiff was within the limitation and was not premature. It also held that the plaint was not liable to be rejected under Order 7 Rule 11 CPC as it was not barred by any provision of law and more so in light of the finding recorded while dealing with the issue nos.3 and 4.
Issue no.8 was also decided in the negative. Issue nos.1, 2 and 7 were taken up together and it was found that Surya Pal had executed an agreement in favour of the plaintiff dated 20.04.1972. The plaintiff was in possession of the property as well as the defendants were not the bonafide purchaser for valuable consideration without notice and that the plaintiff was ready and willing to perform his part of the contract.
By means of judgment and decree dated 25.01.1983 the trial court decreed the suit directing the defendants no.2 and 3 to execute a sale deed in favour of the plaintiff after receiving the balance sale consideration in furtherance of the agreement dated 20.04.1972.
The defendants no.2 and 3 preferred a regular civil appeal under Section 96 CPC which was registered as Civil Appeal No.81 of 1983. The lower appellate court after hearing the parties reversed the finding of the lower court and found that the plaintiff was not in possession of the property in question and that the defendants no.2 and 3 were bonafide purchaser for valuable consideration without notice and for the said reason the decree was set aside by means of judgment and decree dated 04.01.1988.
Dr. R. S. Pandey learned Senior Counsel for the appellant while assailing the judgment and decree dated 04.01.1988 has vehemently urged that the ground upon which the lower appellate court has reversed the finding is untenable in law. The lower appellate court has discarded the testimony of a witness of the agreement merely on the ground that in some other case the testimony of that witness was not found reliable. It is submitted that this cannot be a ground for discarding the evidence. At best the court could have scrutinized the evidence more carefully but the lower appellate court erred by discarding the evidence in an omnibus fashion, as a whole, which could not have been done nor the witness could have been discredited, this has led to the substantial injustice and upon this ground the finding depends regarding the defendant being bonafide purchaser for valuable consideration without notice.
It has further been urged that the finding of the lower appellate court on the question of possession is also perverse; inasmuch as merely because the sale deed was executed in favour of the defendants no.2 and 3 would not mean that they have possession in their favour.
It is urged that what the lower court ought to have considered was the fact whether the defendants no.2 and 3 were the bonafide purchasers for valuable consideration without notice. The lower appellate court has completely misread the statement of P.W.2 Ram Yagga. Isolated sentences have been culled out from the evidence to arrive at a finding that the agreement to sell could not be proved and this is a case of misreading and misconstruing of evidence.
It has also been urged that no adverse inference could have been drawn merely because the consideration for which the agreement was executed was low, thus the finding of the lower appellate court are perverse and against the material on record, accordingly the judgment deserves to be set aside.
It has also been urged that the agreement to sell was exhibited in evidence without any objection from the side of the respondent. The plaintiff had examined himself and another attesting witness to prove the said agreement and also the possession of the plaintiff.
Without actually raising any objection thereto the respondent had only assailed the agreement being unregistered, fictitious and ante dated. It was also challenged on the ground that Surya Pal was not competent to execute the said agreement.
However, once the evidence was led without demur the respondent could not assail the mode of proof of the agreement and for the wrong reasons the lower appellate court has discarded the testimony of the attesting witness and held the agreement to sell dated 20.04.1972 to be not proved.
In support of his submissions, the learned Senior Counsel has relied upon the case of (i) R. K. Mohammad Ubaidullah Vs. Hajee Abdul Wahab and others reported in 2000 (6) SCC page 402, (ii) Ram Newaj Vs. Bano and others reported in 2000 (6) SCC page 685, (iii) Vasantha Vishwakarma and others Vs. V. K. Elayalwar and others reported in 2001 (8) SCC page 133, (iv) R.V.E. Venkatachala Grounder Vs. Arulmigu Viswesaraswami and V.P. Temple and another report in 2003 (8) SCC page 752, (v) Abdul Azeez Vs. District Judge Gorakhpur reported in 1999 (17) LCD page 1356 and (vi) Fateh Singh Vs. Hari Chand and others reported in 2017 (5) SCC page 175.
Per contra Shri Rajeiu Kumar Tripathi learned counsel for the defendant-respondent submits that the agreement dated 20.04.1972 was fraudulent. It was most unnatural that the property belonging to Surya Pal, of which the plaintiff alleged to be in possession, could be sold especially when Surya Pal did not have the right to transfer the said property as he was a 'sirdar' at the relevant time. It is urged that a 'sirdar' did not have the right to transfer a holding. It is only after 1976 that the sirdari rights converted in to bhumidhari rights alongwith rights to transfer.
In order to usurp the property of Suraj Pal after 1976 the alleged agreement was procured and fabricated. Since the Registration Act stood amended in the year 1977 as a result the agreement was fabricated of a prior date to get over the bar of registration. It is also most unnatural that the agreement was executed in the year 1972 and there was no effort to get a sale deed executed. It is only when Surya Pal died that it is alleged that he had executed an agreement in the year 1972 after having received a consideration of Rs.3500/=. There has been no effort to indicate as to what transpired after 1972 till the sale deed was executed in favour of defendants no.2 and 3 by Bachchu Lal, son of Surya Pal. All the aforesaid facts and circumstances would indicate that the plaintiff was neither ready and willing and moreover as the agreement itself being fraudulent, no decree of specific performance could have been passed in his favour and this aspect of the matter was rightly considered by the lower appellate court, hence the finding which is based on proper appreciation of evidence and recorded by the lower appellate court is not liable to be interfered with in exercise of power under Section 100 CPC.
It is also urged that the plaintiff could not prove the due execution of the agreement to sell apart from the fact that when the defendants had moved an application for getting their names mutated before the Tehsildar on the basis of sale deed executed in their favour, the plaintiff filed his objection but in the said objection he did not take the plea that he had an agreement to sell in his favour dated 20.04.1972. This is also a material fact to be noticed, had the plaintiff by then had an agreement, he would have definitely taken a plea in the mutation case.
Moreover, the P.W.1 who was examined to prove the agreement was found to be unreliable rather he was a habitual witness and in number of cases his evidence was found to be unreliable, thus this aspect of the matter was also noted by the lower appellate court which is the final court of facts and having considered the same, it recorded a finding that the agreement could not be proved, accordingly the judgment of reversal passed by the lower appellate court, does not require any interference.
In support of his submissions Shri Rajeiu Kumar Tripathi has relied upon the decisions of the Apex Court in the case of (i) Ram Awadh & others Vs. Achhaaibar Dubey & others reported in 2000 (2) SCC page 428, (ii) Sita Ram & others Vs. Radhey Shyam reported in 2007 (14) SCC page 415, (iii) A. Nawab John & others Vs. V. N. Subramaniyam reported in 2012 (7) SCC page 738,
(iv) Chand Rani Vs. Kamla Rani reported in 1993 (1) SCC page 519 and (v) Gurnam Singh & others Vs. Lehna Singh reported in 2019 (7) SCC page 641.
The Court has heard the learned counsel for the parties at length and also perused the record.
The first substantial question of law as framed and noted hereinabove first, indicates that it relates to the fact whether the respondents no.1 and 2 are the bonafide purchaser for valuable consideration without notice.
In this regard, the trial court in its judgment held that the appellant had proved the agreement to sell and that the appellant was in possession of the property in question and had also filed various receipts indicating payment of irrigation charges, this was considered as notice to the respondents but since the respondents could not prove their aforesaid plea, accordingly the respondents were not found to be bonafide purchaser for valuation consideration without notice.
This finding has been reversed by the lower appellate court on the premise that the irrigation receipts which were filed by the plaintiff related to the period of the currency of the suit and not prior thereto and further that since the agreement itself was not found to be proved, also the agreement being unregistered, could not be treated as notice, hence the lower appellate court after reversing the said finding held the respondents no.1 and 2 to be bonafide purchaser for valuable consideration without notice and dismissed the suit.
At this stage, it will be relevant to notice the law regarding the status of bonafide purchaser for valuable consideration without notice in a suit for specific performance of contract.
Section 19 of the Specific Relief Act 1963, the relevant extract reads as under:-
"19. Relief against parties and persons claiming under them by subsequent life-Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against:-
(a) either party thereto;
(b) any other persons claiming under him by a titled 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;
(c)-(e) * * *"
From the perusal of the aforesaid section and as extracted above, it is clear that a decree of specific performance can be enforced against either party thereto or against any other person claiming from the vendor or under his title arising subsequently to the contract. The exception has been carved out only in respect of such transferee who has paid his money in good faith and without notice of the original contract.
Thus, Section 19(b) protects the bonafide purchaser for valuable consideration without notice of the original contract. At the same time, it will also be relevant to notice that since the law protects such a bonafide purchaser, hence the onus of proof is on the purchaser who takes the aforesaid plea. Whether the purchaser is a bonafide purchaser having purchased the property in good faith and without notice is to be decided on case to case basis depending on facts and circumstances.
As far as the aspect of notice is concerned, it will be worthwhile to borrow the definition of the word 'Notice' as defined in Section 3 of the Transfer of the Property Act. It may also be noted that the notice can be actual or constructive. A notice to a person can be actual when it is actually known as a matter of fact but where for willful abstention or a genuine inquiry or search which a person ought to have made, or for gross negligence, he would have known it. Explanation-II, clearly amplifies that any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
In this context, the question of possession assumes significance in the instant case, since admittedly the agreement to sell was unregistered. The record indicates that the plaintiff-appellant had filed various receipts of payment of irrigation charges which indicates the name of the plaintiff and also that they relate to the period prior to the institution of the suit. The said receipts are bearing Paper No.54-C/4 and Paper No.57-C/9. The other receipts are of course relating to the period of the currency of the suit.
It is the specific case of the plaintiff that the property in question had been given to the plaintiff by Surya Pal. It was the plaintiff who had been in possession and looking after the property in question. Since Surya Pal was residing in Bahraich where he had received some property from his in-laws and it is also for the said reason that Surya Pal was desirous of selling the property which the plaintiff-appellant had agreed to purchase for which he had advanced a sum of Rs.3,500/- and the remaining was to be paid at the time of execution of the sale deed. The finding recorded by the trial court is based on evidence and being a finding of fact, the same ought to have been considered by the lower appellate court unless any perversity was found which justified the reversing of a such finding.
From the record, this Court finds that the reason given by the lower appellate court for reversing the finding and noting in its judgment that the irrigation receipts were only relating to the period of currency of the suit is not quite correct; inasmuch as certain receipts as mentioned above were not noted by the lower appellate court which indicated that the irrigation receipts were also prior to the institution of the suit. Apart from the aforesaid, there has been a specific statement and evidence which indicated that the plaintiff was in possession and this aspect of the matter has also not been noticed by the lower appellate court. The lower appellate court has further gone on a tangent that since the agreement to sell in favour of the plaintiff was not proved, so the possession looses the significance and it cannot be said that the respondents had notice of the same.
At this juncture, it will be relevant to notice the observation of the Apex Court in the case of R. K. Mohammad Ubaidullah (supra) wherein considering the provisions of Section 19 of the Specific Relief Act as well as Section 3 of the Transfer of the Property Act including the explanation, also noticing an earlier decision of the Apex Court in the case of Govinddas (Dr) Vs. Shantibai reported in 1973 (3) SCC page 418. It has been explained as under:-
"15. ......................................It states that actual possession is notice of the title of the person in possession. Prior to the amendment there had been some uncertainty because of divergent views expressed by various High Courts in relation to the actual possession as notice of title. A person may enter the property in one capacity and having a kind of interest. But subsequently while continuing in possession of the property his capacity or interest may change. A person entering the property as tenant later may become usufructuary mortgagee or may be agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. Hence with reference to subsequent purchaser it is essential that he should make an inquiry as to the title or interest of the person in actual possession as on the date when the sale transaction was made in his favour. The actual possession of a person itself is deemed or constructive notice of the title if any, of a person who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. In the case on hand Defendants 2 to 4 contended that they were already aware of the nature of possession of the plaintiff over the suit property as a tenant and as such there was no need to make any inquiry. At one stage they also contended that they purchased the property after contacting the plaintiff, of course, which contention was negatived by the learned trial court as well as the High Court. Even otherwise the said contention is self-contradictory. In view of Section 19(b) of the Specific Relief Act and definition of "notice" given in Section 3 of the Transfer of Property Act read along with Explanation II, it is rightly held by the trial court as well as by the High Court that Defendants 2 to 5 were not bona fide purchasers in good faith for value without notice of the original contract.
16. The High Court of Andhra Pradesh in Mummidi Reddi Papannagari Yella Reddy v. Salla Subbi Reddy [AIR 1954 AP 20] referring to various decisions in para 8 has stated thus:
"It may be mentioned here that an Explanation was introduced into the Transfer of Property Act by the Amending Act 21 of 1929. Even prior to this amendment, the law, as declared in decided cases, was that, when a person purchased property from the owner knowing that it is in the possession of another, he is under a duty to inquire into the nature of that possession, and, in the absence of such inquiry, knowledge of title under which possession is held, should be attributed to the purchaser. The leading case on the subject, relied on in a number of Indian decisions is -- ''Daniels v. Davison' [(1809) 16 Ves Jun 249 : 33 ER 978] . The Lord Chancellor held that:
''where there is a tenant in possession under a lease, or an agreement, a person purchasing part of the estate must be bound to inquire on what terms that person is in possession ... that a tenant being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity repelling the claim of a subsequent purchaser who made no inquiry as to the nature of his possession.' "
(emphasis supplied)
17. Relying on the decision of this Court a Division Bench of the High Court of Madras in Veeramalai Vanniar v. Thadikara Vanniar [AIR 1968 Mad 383 : (1968) 1 MLJ 437] has held that it is also the duty of the subsequent purchaser to inquire from the persons in possession as to the precise character in which they were in possession at the time when subsequent sale transaction was entered into. If there be a tenant in possession of land a purchaser is bound by all the equities which the tenant could enforce against the vendor and such equity extends not only to the interest connected with the tenancy but also to interests under the actual agreement.
18. In Govinddas (Dr) v. Shantibai [(1973) 3 SCC 418] this Court in para 14 has held: (SCC p. 423) "14. It will be noticed that the evidence is contradictory and we have to decide whose version is more acceptable. The learned counsel for the appellants contended that the onus of proof was very light on the appellants and they had discharged it by entering the witness box and stating that they had no knowledge. We are unable to agree with him that in the circumstances of this case the onus was light on the appellants. The circumstances that tell heavily against the version of the appellants are these. First, all the parties are residents or have shops in the same vicinity and in places like this it is not probable that the appellants would not come to know of the execution of the agreement (Souda-Chitthi) of the plaintiff. Secondly, the haste with which the sale deed in favour of the appellants was executed was unusual. It is more usual for an agreement to be executed in such cases rather than arrive at an oral agreement on one day and have the sale deed executed the next day and registered the following day. For some reason the appellants were in a hurry to get the deed registered. What was the reason? In view of all the circumstances we are inclined to accept the evidence of Hem Raj Chouhan, and corroborated by Hayat, that Goverdhandas knew of the execution of the agreement with the plaintiff on March 1, 1960."
Similarly the Apex Court in the case of Ram Newaj (supra) having considered the aforesaid provisions has held as under:, the relevant paragraphs 3, 5, 7 and 8 of the report are being reproduced for ease of reference.
"3. Section 19 provides the categories of persons against whom specific performance of a contract may be enforced. Among them is included, under clause (b), any transferee claiming under the vendor by a title arising subsequently to the contract of which specific performance is sought. However, a transferee for value, who has paid his money in good faith and without notice of the original contract, is excluded class from the purview of the said clause. To fall within the excluded class, a transferee must show that :
(a) he has purchased for value the property (which is the subject-matter of the suit for specific performance of the contract);
(b) he has paid his money to the vendor in good faith; and
(c) he had no notice of the earlier contract for sale (specific performance of which is sought to be enforced against him)."
x------x-----------x--------------x--------------x----------x-------x-----
"5. It may be noted here that "notice" may be (i) actual, (ii) constructive, or (iii) imputed."
x------------------x--------------------x--------------------x------------
"7. Thus, it is seen that a statutory presumption of "notice" arises against any person who acquires any immovable property or any share or interest therein of the title, if any, of the person who is for the time being in actual possession thereof.
8. The principle of constructive notice of any title which a tenant in actual possession may have, was laid down by Lord Eldon in Daniels Vs. Davison (Ves at p. 254). The learned law Lord observed:
"Upon one point in this cause there is considerable authority for the opinion I hold; that, where there is a tenant in possession under a lease, or an agreement, a person, purchasing part of the estate, must be bound to inquire, on what terms that person is in possession."
Applying the aforesaid principles, it would be seen that the respondents though had got the sale deed executed from the son of Surya Pal but could not indicate any relevant material as to what efforts were made by them to find out that the said property was not encumbered or no other person had any right, title or interest in respect thereto.
Once the plaintiff had specifically stated that he was in possession of the property even prior to the execution of the said agreement to sell, even assuming if the defendants were getting the sale deed from the son of Surya Pal then belonging to the same village it was but obvious for them to have noticed the possession of the plaintiff. Even though the agreement to sell was unregistered yet the respondents no.1 and 2 ought to have made reasonable inquiry to ascertain the nature of possession of the plaintiff over the property in question.
No evidence or statement has been made by the respondents no.1 and 2 in respect thereto. As the onus was on them to establish their good faith that they had purchased the property as bonafide purchaser but having failed to discharge their initial onus and the trial court noticing the same recorded a finding and held that they were not bonafide purchaser for valuable consideration without notice. There is nothing on record to indicate that the respondents made any inquiry whatsoever regarding the property in question. In the given facts and circumstances, the reasons upon which the lower appellate court reversed the finding was not justified as it suffers from the vice of non-consideration of the relevant law as well as the material on record.
In this view of the matter, this Court is of the considered opinion that the findings of the lower appellate court holding the respondents no.1 and 2 to be a bonafide purchaser for valuable consideration without notice, cannot be sustained as the same has not been duly borne out from the record nor there has been adequate evidence led by the respondents to discharge their initial onus. Even the reason recorded by the lower appellate court from the point of possession is not supported by the material on record, hence this Court is of the view that the respondents no.1 and 2 cannot be treated to be a bonafide purchaser for valuable consideration without notice. Accordingly, the first substantial question of law stands answered.
The second question as formulated is whether the defendants-respondent could challenge the proof of agreement to sell when the same was exhibited without any objection on their behalf.
In this regard, before considering the facts of the instant case, it will be relevant to notice the law as laid down by the Apex Court in the case of R.V.E. Venkatachala Gounder (supra) and the relevant paras 19 to 23 of the said report is being reproduced for ease of reference....
"19. Order 13 Rule 4 CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the court, which endorsement signed or initialled by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the court to the person from whose custody it was produced.
20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.
21. The Privy Council in Padman v. Hanwanta [AIR 1915 PC 111 : 19 CWN 929] did not permit the appellant to take objection to the admissibility of a registered copy of a Will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed: (AIR p. 112) "The defendants have now appealed to His Majesty-in-Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the Will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention."
22. Similar is the view expressed by this Court in P.C. Purushothama Reddiar v. S. Perumal [(1972) 1 SCC 9 : (1972) 2 SCR 646] . In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed: (SCC p. 15, para 19) "19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility -- see Bhagat Ram v. Khetu Ram [AIR 1929 PC 110] ."
23. Since documents Exts. A-30 and A-34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photocopies, the originals of which were not produced."
In this view of the matter if the instant case is considered, it will be found that the question raised by the respondents no.1 and 2 did not relate to be admissibility or the proof of the agreement to sell. They had raised the plea that the agreement was fictitious. It was also the case set up by the respondents no.1 and 2 that the aforesaid agreement was prepared ante dated in order to get over the bar or the Registration Act which came to be amended in the year 1977. Various other plea were raised by the respondents no.1 and 2 to cast a doubt on the authenticity of the aforesaid agreement. It was also asserted by the respondents no.1 and 2 that since the original vendor, namely, Surya Pal was only the 'sirdar' and at the relevant time he did not have the right to alienate the property, hence the said agreement was bad.
This plea did not find favour with the lower appellate court; inasmuch as in its judgment the lower appellate court has considered the aforesaid aspect while dealing with the point nos.1 and 2 and more specifically it has considered this aspect while dealing with the competency of Surya Pal to have executed the said agreement and the lower appellate court rejected the aforesaid contention.
Once the aforesaid contention was rejected but ultimately the appeal of the defendant/respondents was allowed on the ground that the respondents were entitled to the benefit of Section 19 (b) of the Specific Relief Act and that they were bonafide purchaser for valuable consideration without notice. The plaintiff-appellant preferred the instant second appeal but this finding was not assailed by the respondents no.1 and 2 by filing any cross appeal or cross objection before this Court, hence this Court will not permit the respondents no.1 and 2 to raise the aforesaid plea at this stage.
Thus, only issue that now remains is to ascertain whether the agreement was duly proved or not. In this regard, the finding of the lower appellate court is based on the premise that once of the witnesses who had entered into the witness-box to prove the said agreement, namely, Mohd. Moin, his testimony is unreliable as in another case bearing no.54 of 1980 (Smt. Dharma Vs. Ram Sanwari) wherein the same witness Mohd. Moin has deposed and his testimony was found to be unreliable in the said case. Thus, for the said reason, the lower appellate court found the testimony of Mohd. Moin not reliable in the instant case as well.
At this juncture, it will be apposite to notice that testimony of a witness cannot be regarded or discarded merely because his testimony in another case was found to be unreliable. What is required of the court is to scrutinize and test the veracity of the witness in context of the matter before it. The court is required to adopt a careful approach. It has now been well settled that evidence of witness cannot be disregarded merely on the ground that he is either partisan or interested or closely related. If it is found that the testimony is not trustworthy or credible, it only requires scrutiny with more care and caution. The observation of the Apex Court in this regard as held in the case of Ramesh Harijan Vs. State of U.P. reported in 2012 (5) SCC page 777 are relevant and paragraphs 24 to 29 are being reproduced for ease of reference.
"24. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360 : 1996 SCC (Cri) 1278 : AIR 1996 SC 2766] (SCC p. 363, para 7) this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra [(2002) 7 SCC 543 : 2003 SCC (Cri) 112] , Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516 : (2008) 1 SCC (Cri) 109] ; Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661 : AIR 2006 SC 951] , Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188 : AIR 2008 SC 320] and Subbu Singh v. State [(2009) 6 SCC 462 : (2009) 2 SCC (Cri) 1106] .
"83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence."
[See also C. Muniappan v. State of T.N. [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402 : AIR 2010 SC 3718] (SCC p. 596, para 83) and Himanshu v. State (NCT of Delhi) [(2011) 2 SCC 36 : (2011) 1 SCC (Cri) 593] .]
25. Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses, particularly that of Kunwar Dhruv Narain Singh (PW 1), Jata Shankar Singh (PW 7) and Shitla Prasad Verma (PW 8). However, it is the duty of the court to unravel the truth under all circumstances.
26. In Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] , this Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of M.P. [AIR 1954 SC 15 : 1954 Cri LJ 230] and held as under: (Balaka Singh case [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] , SCC p. 517, para 8) "8. ... the court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."
27. In Sukhdev Yadav v. State of Bihar [(2001) 8 SCC 86 : 2001 SCC (Cri) 1416 : AIR 2001 SC 3678] this Court held as under: (SCC p. 90, para 3) "3. It is indeed necessary, however, to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment--sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account."
28. A similar view has been reiterated in Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696] (SCC pp. 246-47, para 13) wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
29. In Sucha Singh v. State of Punjab [(2003) 7 SCC 643 : 2003 SCC (Cri) 1697 : AIR 2003 SC 3617] (SCC pp. 113-14, para 51) this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well."
Thus, in view of the aforesaid proposition as extracted above, the reason for which the lower appellate court discarded the evidence of the attesting witness Mohd. Moin only on the ground that his testimony in another case was found unreliable such an approach of the lower appellate court is not justified. Moreover, an attempt has been made to cull out the sentences from the statement of the witness to give it a different complexion whereas the evidence and statement of the witness must be read as a whole to ascertain its credibility in context of the issue before the court. Unfortunately, this aspect of the matter has not been considered by the lower appellate court in the correct prespective.
From the record, it would indicate that apparently there was no real challenge to the proof of the agreement when the same was exhibited without any objection on behalf of the respondents no.1 and 2. Even before this Court the learned counsel for the respondents no.1 and 2 could not dispute this fact that they had not raised any objection regarding the agreement before the trial court. All what has been submitted by the learned counsel for the respondents no.1 and 2 is that the witness who had been examined on behalf of the plaintiff was not worthy of reliance and for the same reason it was urged that the lower appellate court had rightly rejected his testimony.
In the instant case, this Court finds that in so far as the question of law which has been formulated, it is squarely covered and answered by the decisions of the Apex Court in the case of R.V.E. Venkatachala Gounder (supra). This aspect of the matter has not been considered by the lower appellate court rather the record indicates that the agreement had been found to be not proved as the attesting witness who was examined, his testimony did not inspire confidence. The Court on the perusal of the material finds that the reason and the approach of the lower appellate court does not follow the settled legal principles in respect of appreciation of the evidence and is contrary to be law settled by the Apex Court as noted above. For the said reason the submission of the learned counsel for the respondents does not have merits.
The decision cited by the learned counsel for the respondent are on different issues which do not actually crop up in the instant case.
The case of Ram Awadh (supra) is on the issue that a subsequent purchaser can also raise the plea that the plaintiff is not ready and willing to perform his part of the contract. This issue is not involved in the instant case hence the said decision does not benefit the respondent.
So also the case of Sita Ram (supra) is on authority on the point that the conduct of the plaintiff in a suit for specific performance must be unblemished. As noted above the said issue is not before this Court as the two substantial questions of law required to be answered does not warrant to enter into a fresh controversy not before this Court.
The decision of A. Nawab John (supra) is on an altogether different proposition. It lays down that an application for impleadment of a subsequent purchaser be considered more liberally and as the respondents who are the subsequent purchaser and have been impleaded in the suit right from its inception hence the said case has no applicability.
The decision of Chand Rani (supra) considered whether time was essence of the contract and whether the plaintiff was ready and willing to perform his part of the contract. Even this decision does not help the respondents as they really did not challenge the readiness and willingness of the plaintiff and moreover the challenge to the agreement to sell was on a different premise, as noted in the body of this judgment. Hence though the learned counsel for the respondents argued the appeal on a broad spectrum but in light of the substantial question of law before the Court, this Court finds that the decisions cited by the respondents do not come to their rescue.
This Court is of the view that in light of the discussions as well as the principles of law noticed hereinabove, the judgment and decree passed by the lower appellate court dated 04.01.1988 passed by the Additional District Judge, Court No.3, Faizabad in Civil Appeal No.81 of 1983 cannot be sustained and is set aside. The judgment and decree dated 25.01.1983 passed by the Munsif Hawali, Faizabad in Regular Suit No.140 of 1981 is restored. Accordingly the second appeal stands allowed. In the facts and circumstances, there shall be no order as to cost.
Office is directed to remit the lower court record to the trial court within a period of two weeks from today.
June 3, 2021 ank/-