Rajasthan High Court - Jaipur
M/S Gaurav Pvt Ltd vs Tarachand Sancheti Thr Lrs And Ors on 28 July, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil First Appeal No. 319 / 2017
M/s Gaurav Private Ltd, a Registered Private Limited Company,
having its Registered Office at Mittal Bhawan, Hari Marg, Civil
Lines, Jaipur, through its Director, Suresh Jain son of late Shri
Fateh Chand Jain, aged 61 years, resident of Mittal Bhawan, Hair
Marg, Jaipur
----Appellant
Versus
1. Tarachand Sancheti, son of Late Sagarmal Sancheti (since
deceased), represented by his sons:
1/1 Vijay Kumar
1/2 Rajendra Kumar
Both sons of Late Shri Tarachand Sancheti, resident of House
No.3946, Moti Singh Bhomiyon ka Rasta, Johri Bazar, Jaipur.
2. Smt. Sajjan Devi Banthia, widow of Shri Amarchand Ji Banthia
(since deceased) represented by:
2/1 Smt. Ratan Bai wife of Shri Laxminarain, through Nemichand
Bothra, Daily Market, Rourkela.
2/2 Smt. Paras Bai, wife of Shri Prem Chand Vinayaka, through
Mahavir Electric Corporation, 19 Govind Appa, Nayak Stret,
Madras.
2/3 Smt. Sharda Devi, widow of late Shri Prem Chand Banthia.
3. Smt. Sharda Devi, widow of Late Shri Prem Chand Banthia.
4. Sunil Kumar son of Late Shri Prem Chand Banthia.
5. Rajkumar son of late Shri Prem Chand Banthia.
6. Anil Kumar son of Late Shri Prem Chand Banthia.
7. Manoj Kumar son of late Shri Prem Chand Banthia.
8. Kumari Jyoti daughter of late shri Prem Chand Banthia.
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9. Tara Chand Banthia son of Late Shri Amarchand Ji Banthia.
10. Deep Chand Banthia son of Late Shri Amarchand ji Banthia.
(From 3 to 10 resident of Banthia Bhawan, Chaksu Ka Chowk,
Rasta Haldiyon, Jaipur)
----Respondent
_____________________________________________________
For Appellant(s) : Mr. M.M. Ranjan, Sr. Adv. with
Mr. Daulat Sharma Adv.,
Mr. Alok Sogani Adv.
For Respondent(s) : Mr. R.K. Daga Adv.
_____________________________________________________
HON'BLE MR. JUSTICE JAINENDRA KUMAR RANKA
Judgment
Judgment Reserved on : 21/07/2017
Judgment Pronounced on : 28/07/2017
1. This appeal is directed against the judgment and decree dt.
17.04.2017 passed by the Additional District Judge No.10, Jaipur
Metropolitan, Jaipur titled as Shri Tara Chand Sancheti Vs. Smt.
Sajjan Devi Banthia whereby suit for specific performance filed by
the original plaintiff Mr. Tara Chand Sancheti has been decreed.
2. On 31.05.2017, counsel for the respondent-plaintiff No.1/1
and 1/2 insisted that the original suit pertains to the year 1985
and the Trial Court's record is already available in this Court, the
original plaintiff Mr. Tara Chand Sancheti and the defendant Smt.
Sajjan Devi had already expired during the course of trial of the
suit, the appellant who was defendant No.10 in the suit and
plaintiff No.1/1 and 1/2 are the only contesting party and other
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respondents are proforma respondents, so in the interest of
justice, the appeal may be finally heard at the admission stage
itself. Counsel for the appellant had no objection on such course
being adopted, hence the appeal was posted for final disposal.
3. Inspite of service upon respondent Nos.2/1 to 8, who had
remained ex-parte in the suit, they have chosen not to appear
before this court also. However, respondent Nos.9 & 10 are duly
represented by Mr. Mukesh Saini Advocate. Accordingly with the
consent of the counsel for the parties, the appeal is heard finally.
4. The case of the original plaintiff as could be noticed from the
plaint' averments could be portrayed as under:-
"(A) One Prem Chand, mother of Prem Chand Smt.
Sajjan Devi and brothers of Prem Chand, Tara Chand
Sancheti & Deep Chand, who were arrayed as defendant
Nos. 1, 8 & 9 respectively claimed that they were the
owners of the suit property bearing No.2050 fully
described in paragraph 1 of the plaint. They entered into
agreement for sale on 18.02.1982 of the suit property
with the plaintiff. The total sale consideration was
settled for Rs. 4 Lac and an advance amount of
Rs.50,000/- was paid to them, with the balance to be
paid within a period of three months.
(B) The Suit property was in occupation of many
tenants and it was agreed that the said Prem Chand and
defendant Nos.1, 8 & 9 would get the tenants evicted
within a period of three months and an amount of Rs.1
Lac shall be paid by the plaintiff, over and above the
settled consideration of Rs.4,00,000/- for fulfilling such
obligations, but any amount required in excess of
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Rs.1,00,000/- shall be borne by such persons. It was
further agreed that if such persons were unable to get
evicted such tenants and handover the vacant
possession to the plaintiff, then the three kothas shown
in yellow color in the map, which were under occupancy
of the plaintiff as a tenant and which were merged with
the shop of the plaintiff, shall vest in the plaintiff as an
owner in lieu of the advance amount of Rs.50,000/-. It
was further agreed that out of Rs.1,00,000/- which was
agreed to be given by the plaintiff for getting the
tenants evicted, only Rs.20,000/- would be paid by the
plaintiff at the first instance to the above four persons
against which they will hand over the vacant possession
of four Kothas to the plaintiff.
(C) The plaintiff became the owner of three Kothas
which were in his tenancy as per the agreed terms and
the said Prem Chand and defendant Nos.1, 8 & 9 called
upon the plaintiff to give Rs.20,000/- within 24 hours
whereupon the plaintiff through his advocate Mr. Babu
Lal Ajmera served a notice dt.26.07.1982 on such
persons calling upon them to inform the plaintiff about
the steps initiated to get the tenants evicted and if the
property stands vacated, the plaintiff was ready to pay
the residual sale consideration.
(D) The said Prem Chand and defendant Nos.1, 8 & 9
received Rs.20,000/- from the plaintiff on 14.08.1982
and agreed that the vacant possession of four rooms
shall be handed over to the plaintiff within a period of
45 days and possession of remainder within 60 days but
such obligations also remained unfulfilled.
(E) The said Prem Chand and defendant Nos.1, 8 & 9
regularly assured the plaintiff that they were trying to
get the tenants evicted from the suit property and as
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and when they became successful in their endeavour,
they will execute the sale deed in favour of the plaintiff
and on the basis of such assurances, a period of two
years lapsed and Prem Chand died on 12.08.1984
whereupon the defendant Nos.1, 8 & 9 and defendant
Nos.2 to 7, who were the legal representatives of Prem
Chand expressed their inability to get the tenants
evicted. Constrained by the situation, the plaintiff
approached one Babu Lal Bairathi, who contacted the
tenants and was ultimately successful in getting them
evicted on 02.12.1984 by paying Rs.1,00,000/- .
(F) The said Prem Chand & defendant Nos.1, 8 & 9
entered into a nominal agreement dt.15.11.1982 with
defendant No.10 indicating that one Dhanna Lal was
owner of half share of the suit property. The said
Dhanna Lal had no right or title in the suit property but
such fact was indicated in order to frustrate the
plaintiffs' claim and such agreement was nonest against
the plaintiff.
(G) Prem Chand & defendant No.1, 8 & 9 executed
the said agreement in favour of the defendant No.10
but did not execute sale deed in favour of the defendant
No.10 and to give legal color to the arrangement made,
a suit was filed by defendant No.10 before the
Additional District Judge No.10, Jaipur Metropolitan,
Jaipur on 03.4.1984, wherein only Prem Chand
submitted a written statement and rest of the
defendants remained ex-parte and such suit was
decreed by the Additional District & Sessions Judge No.3
on 29.05.1984, in furtherance of which execution
petition was filed and sale deed dt.30.10.1984 was got
registered through the Court.
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(H) In the execution petition, the defendant No.10 got
issued warrant for symbolic possession whereupon on
06.12.1984 bailiff of the Court visited the suit property,
upon which plaintiff got to know the connivance
between Prem chand & defendant Nos.1, 8 & 9 and 10.
The defendant No.10 was fully aware of the plaintiffs'
agreement from the beginning and intentionally entered
into an agreement with Prem Chand & defendant Nos.1,
8 & 9, whereas such agreement was nominal and sham
as no consideration whatsoever was paid under it.
(I) The plaintiff was ready to comply with the terms
of the agreement dt. 18.02.1982, whereas Prem Chand
& defendant Nos. 1, 8 & 9 wrongfully sold the suit
property to defendant No.10 and broke the plaintiffs'
agreement.
(J) Cause of action for the suit property accrued to
the plaintiff on 10.11.1984, upon Prem Chand &
defendant Nos.1, 8 & 9 agreeing to sell the suit property
to defendant No.10 and the plaintiff was entitled to a
decree for specific performance with respect to the
agreement dt.18.02.1982 and get the sale deed
executed from defendant Nos.1 to 10 and obtain actual
physical/symbolical possession from the defendants.
(K) Defendant Nos.1 to 9 entered appearance in the
suit and submitted their joint written statement on
07.10.1985 and asserted that they are owners only to
the extent of one half share of the suit property and the
other half belonged to Dhanna Lal. It was claimed that
Prem Chand & defendant Nos.1, 8 & 9 entered into an
agreement with the plaintiff which was with respect to
half undivided share of the answering defendants with
the primary condition that within one month from the
date of execution of the agreement, the plaintiff will get
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an agreement executed from the said Dhanna Lal with
respect to his half share so that their remained no
dispute about the right of preemption. It was claimed
that it was further agreed that if the plaintiff was unable
to get an agreement executed from Dhanna Lal, the
agreement with the plaintiff would be deemed to be
cancelled.
5. It was further claimed that the defendants were owners only
to the extent of half share and hence agreement with respect to
the entire suit property could not be made and the plaintiff by
playing fraud upon the defendant Nos. 1, 8 & 9 & Prem Chand
obtained their signatures whereas they were unaware of the terms
and conditions mentioned therein. Receipt of Rs.50,000/- was
admitted and it was asserted that three Kothas in possession of
the plaintiffs were in the capacity of a tenant and that position
remained unchanged even after execution of the agreement. It
was denied that the plaintiff became the owner of three kothas in
his possession as a tenant. It was further asserted that the
defendant Nos.1, 8 & 9 & Prem Chand never agreed to get the
property evicted from the defendants and this was improbable and
beyond the control of them and such a term of getting the tenants
evicted, who were 25 in number, without following the due process
of law, was void and illegal. Receipt of notice of Shri Babu Lal
Ajmera Advocate, asserted by the plaintiff was denied and though
receipt of Rs.20,000/-was admitted but it was asserted that the
same was received bonafidely against making an effort to get the
tenants evicted but the tenant refused to vacate, which was
informed to the plaintiff. It was further asserted that the said
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Prem Chand died in a road accident on 12.08.1984 and the
agreement was cancelled by late Prem Chand in his life time itself.
It was denied that on 02.12.1984, Shri Babu Lal Bairathi got the
tenants evicted but it was asserted that possession was obtained
by defendant No.10. It was further asserted that defendant Nos.1,
8 & 9 and late Shri Prem Chand informed the plaintiff in writing
that the agreement stood cancelled and they were free to execute
an agreement with any third person. It was denied that the
agreement entered with defendant No.10 was nominal or sham. It
was further asserted that the plaintiff since inception, very well
knew that Dhanna Lal had half undivided share in the suit
property and the agreement entered into with defendant No.10
was not under any conspiracy but was bonafide and the suit filed
by defendant No.10, was not in connivance with the other
defendants and the sale deed dated 30.10.1984 executed in
favour of the defendant No.10 by the Court was in furtherance of
the execution petition. It was further asserted that Dhanna Lal
already executed the registered sale deed dt.21.12.1983 in favour
of the defendant No.10 and handed over possession of his half
share to defendant No.10 and the plaintiff was well aware about
this fact. It was further claimed that the defendants informed the
plaintiff through a letter sent under UPC that they were not in a
capacity to get the tenant evicted and the plaintiff after entering
into an agreement with Dhanna Lal of his half share was free to
make an effort in this regard himself and if within 15 days, the
plaintiff did not inform about making an agreement with Dhanna
Lal, the agreement stood cancelled. Thus, it was claimed that no
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cause of action accrued to the plaintiff against the defendants as
the agreement dt.18.02.1982 was already cancelled.
6. It was further claimed that three Kothas in possession of the
plaintiff from 01.07.1977 was in the capacity of a tenant @
Rs.500/- per month and the same were merged with the shop of
the plaintiff as per the tenancy agreement and when the plaintiff
started construction work in the said kothas to merge the same in
the plaintiffs' shop, Dhanna Lal objected to the same and filed a
suit for injunction against Prem Chand and others whereupon the
plaintiff contacted Prem Chand & defendant Nos.8 & 9 and offered
to purchase their half share in a suit property with the assurance
that he on his own accord will enter into an agreement with
Dhanna Lal with respect to his half share and absolve the
defendants from litigation by Dhanna Lal.
7. It was further claimed that Dhanna Lal refused to sell his half
share and published a notice dt.12.01.1982 in the newspaper
raising objections about the defendants' right and the plaintiff was
made aware about such publication, but the plaintiff assured that
he will take care of Dhanna Lal and will make him execute an
agreement in his favour and a hand written agreement was shown
to the plaintiff, who after making certain alterations, took the
agreement with him for getting it typed on stamp paper. It was
further asserted that on 18.02.1982, the plaintiff brought an
agreement typed on a stamp paper and in hurry, procured
defendant Nos.1, 8 & 9 & Prem Chand's signatures. The defendant
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Nos.1, 8 9 & Prem Chand requested the plaintiff to show the typed
agreement but the plaintiff assured that the same was as per the
earlier hand written agreement and the photo-stat copy shall be
handed over by the plaintiff to them later on. The defendant
Nos.1, 8 & 9 & Prem Chand placed reliance on the plaintiff's
assurance and thus signed the agreement and later on demanded
the copy of such agreement from the plaintiff, but the plaintiff
avoided the same on one pretext and another, and thus, the
agreement which was fraudulently obtained by the plaintiff, was
claimed to be void and illegal.
8. It was further claimed that the defendant tried to return
Rs.70,000/- to the plaintiff, but the plaintiff with a malafide intent
refused the same and the defendants were ready and willing to
return Rs.70,000/- to the plaintiff, and thus, it was urged to
dismiss the suit.
9. The defendant No.10 by submitting his written statement
vehemently denied the plaint allegations and asserted that the
defendant Nos.1 to 9 were not the exclusive owner of the entire
suit property but half of the property belonged to Dhanna Lal who
agreed to sell his share to them vide agreement dated
11.11.1982. It was asserted that Prem chand & defendant Nos.1,
8 & 9 also agreed to sell their share in the property to the
answering defendant on such date, but though Dhanna Lal
executed a registered sale deed 21.12.1983 in furtherance of his
agreement with respect to his half share in the suit property, but
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the said Prem Chand & defendant Nos.1, 8 & 9 did not fulfill their
commitment, constrained by which the answering defendant filed
a suit for specific performance against Prem Chand & defendant
Nos.1, 8 & 9 which was decreed by the learned Additional District
Judge No.3, Jaipur and in execution thereof, the answering
defendant obtained symbolic possession of the property as well as
the sale deed dated 30.10.1984, came to be executed through
court. It was denied that there was any conspiracy between the
answering defendant and other defendants and it was asserted
that the agreement in favour of the answering defendant was real
and genuine and the answering defendant was a bonafide
purchaser for value who was totally unaware of the alleged
agreement of the plaintiff and as reflected from the plaint
averments, the term of the alleged agreement, requiring the seller
to get the numerous tenant in occupation in various portions of
the suit property, vacate such portion within a limited time frame
was illegal and uncertain and was not enforceable. It was also
asserted that for the first time, the answering defendant came to
know about such agreement when the plaintiff filed a police report
in which the copy of the alleged agreement was annexed and till
that date the answering defendant only knew that the plaintiff was
in possession of three kothas in the capacity of a tenant.
10. It was further asserted that after getting the sale deed dated
21.12.1983 executed from Dhana Lal, the answering defendant
started making efforts to get the tenants vacate their respective
portions and in course of such endeavour also contacted the
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plaintiff and asked him to vacate the three Kothas which were in
his possession as a tenant but the plaintiff asserting that his lease
tenure was of 12 years, refused to oblige and demanded
Rs.1,20,000/- as compensation, if the answering defendant
wanted an earlier vacation. It was further alleged that as the
amount claimed by the plaintiff was excessive, the answering
defendant did not accept the offer made by the plaintiff and tried
to persuade him to reduce the amount and upon the plaintiff not
budging all talks were dropped. It was denied that the plaintiff got
the tenant vacated with the aid of Mr. Babu Lal Bairathi and it was
claimed that it was the answering defendant who got various
portions vacated. It was asserted that the plaintiff was well
conversant of the fact that half share of the suit property was
purchased by the answering defendant from Dhanna Lal vide
registered sale deed and the plaintiff was also informed that the
answering defendant had also agreed to purchase half share from
Prem Chand & defendant No.1, 8 & 9, but the plaintiff, inspite of
knowledge of such facts, did not disclose his alleged agreement
dated 18.02.1982 to the answering defendant.
11. It was further alleged that had the plaintiff disclosed his
alleged agreement at the relevant time, the answering defendant
had not made advancements in his endeavour to get the sale deed
executed from Prem Chand and defendant Nos.1, 8 & 9. It was
further asserted that owing to such non-disclosure and intentional
suppression by the plaintiff, the answering defendant altered his
position and had spent lacs of rupees in getting various portion
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vacated from the tenants and carrying out demolition of the suit
property and thus it was urged that in such fact situation, the
plaintiff was estopped from making claim with respect to the suit
property.
12. It was further asserted that the suit was misconceived and
filed with an intention of extracting illicit gains from the answering
defendant and if any amount of Rs.70,000/- was found to be due
against defendant Nos.1, 8 & 9 or Prem chand, the answering
defendant was ready and willing to return the same to the plaintiff
and the suit was urged to be dismissed with special cost.
Interestingly, defendant Nos.8 & 9 submitted their new written
statement to which the plaintiff had no objection. In such written
statement, these defendants retracting from their earlier
averments made in their joint written statement, admitted the
terms and conditions of the agreement dt. 18.02.1982 as asserted
by the plaintiff. While generally admitting the plaint averments,
they also admitted that the plaintiff with the aid of Mr. Babu Lal
Bairathi got the tenants of the suit property evicted by paying
Rs.1,00,000/-.
13. The Trail Court framed issues which read as under:-
1- vk;k izfroknhx.k ,d rk ukS okni= ds en la[;k ,d esa of.kZr lEiw.kZ lEifRr ds
Lokeh gS \
oknh
2- vk;k izfroknh la[;k ,d Lo0 lTtu nsoh o izfroknhx.k la[;k 2 rk 7 ds iwokZf/kdkjh
Lo0 izse pUn us mijksDr lEiw.kZ lEifRr dks pkj yk[k :i;s esa foØ; djus dk bdjkj
fd;k ;kfu fnuakd 18-02-82 dks fd;k \
oknh
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3-vk;k oknh us foØ; ds bdjkjukek ds isVs ipkl gtkj :i;s izfroknhx.k ,d rk ukS
dks fn;s \
oknh
4-vk;k oknh okni= ds en la[;k pkj esa of.kZr rhu dksBks ij fnuakd 18-05-82 dks
cgSfl;r ekfyd oknh dkfct gks x;k \
oknh
5- vk;k okni= ds en la[;k pkj ds vuqlkj oknh us izfroknhx.k dks [kkyh djokus
gsrq ,d yk[k :i;s nsus dk bdjkj fd;k vkSj izfroknhx.k us bl gsrq fnuakd 14-08-92
dks 20]000 :i;s izkIr fd;s \
oknh
6-vk;k oknh us ,d yk[k :i;s nsdj fdjk;snkjksa ls edku [kkyh djok;k \
oknh
7-vk;k oknh rFkkdfFkr bdjkjukek dh 'krksZa dh ikyuk djus ds fy, lnSo rRij o
bPNqd jgk \
oknh
8- vk;k oknh cjf[kykQ izfroknhx.k ds bdjkjukek ds vuqlkj mDr fooknxzLr lEifRr
dk okdbZ dCtk ,oa fdjk;snkjksa ls lkadsfrd dCtk ikus dk vf/kdkjh gS \
oknh
9- vk;k oknh izfroknhi= ds fo'ks"k fooj.k ds en la[;k 19 ds vuqlkj okn pyus ;ksX;
ugha gS \
izfroknh
10-vk;k fooknxzLr lEifRr esa /kUukjke ckfB;k dk 1@2 fgLlk ugha gS ;fn ,slk gS rks
nkos ij D;k vlj gksxk \
izfroknh
11-vk;k nhxj nknjlh D;k gksxh \
izfroknh
12-vk;k izfroknh la[;k 10 lEifRr ds cksukQkbZM ijpstj gS ;fn ,slk gS rks nkos ij D;k
vlj gS \
izfroknh
13- vk;k oknh uacj 1@1 o 1@2 ij e`rd oknh rkjkpan ds gd gdwd fMoksYo ugha gq;s
vkSj mUgsa okn pykus dk vf/kdkj ugha gS \
izfroknh
14. The issue No.1 and 10 was deleted by the Trial Court by
order dt.01.03.1996.
15. During the Course of trial, the original plaintiff Mr. Tara
Chand died and was substituted by his sons plaintiff No.1/1 & 1/2.
16. Defendant No.1 Smt. Sajjan Devi also died during the
pendency of the suit and was substituted by her legal
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representatives, defendant No.1/1 and 1/2. Defendant No.1/1
died during the pendency of the suit and she was ex-parte, an
exemption was granted by the Trial court from bringing her legal
representatives on record. All other defendants ultimately turned
ex-parte in the suit, except defendant No.10.
17. In support of their case, the plaintiff examined PW-1 Mr. Tara
Chand Sanchati, PW-2 Sardar Singh, PW-3 Madan Singh, PW-4
Babu Lal Bairathi & PW-5 Jagdish Bihari Lal Mathur and exhibited
the following documents:-
(i) Exhibit-1 Agreement dated 18.02.1982
(ii) Exhibit-2 Telegram
(iii) Exhibit-3 Letter sent by defendant
(iv) Exhibit-4 Reply of a letter
(v) Exhibit-5 Writing with respect to Rs.20,000/-
(vi) Exhibit-6 writing made by Prem Chand, Tara Chand and Smt.
Sajjan Devi for giving cheque of Rs.30,000/- to Deep Chand.
(vii) Exhibit-7 Letter given by the plaintiff to the seller with
respect to a general notice published in Rajasthan Patrika.
(viii) Exhibit-8 Agreement dt.14.12.1982 by defendant No.10 in
favour of seller.
18. Defendant No.10 examined DW-10/1 Suresh Jain, DW-10/2
Govind Agarwal, DW-10/3 Devraj Singh, DW-10/4 Banwari Lal &
DW-10/5 Gautam Jain and exhibited the following documents:
"(i) Exhibit A-1 Letter of Prem Chand,
(ii) Exhibit A-2 Receipt,
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(iii) Exhibit A-3 AD Receipt,
(iv) Exhibit A-4 Judgment of case Tara Chand Vs. Dharam Chand,
(v) Exhibit A-5 Sale deed in favour of defendant No.10,
(vi) Exhibit A-6 House Tax receipt in the name of Dhanna Lal,
(vii) Exhibit A-7 certified copy of the registered will in favour of
Dhanna Lal,
(viii) Exhibit A-8 Adoption deed executed by Phool Kanwar and its
Hindi version as Exhibit A-8/1,
(ix) Exhibit A-9 certified copy of order sheet of the suit Veerumal
& Others Versus Tara Chand & Others
(x) Exhibit A-10 Certified copy of suit Veerumal & Ors Vs. Tara
Chand and Others,
(Xi) Exhibit A-11 Certified copy of withdrawal application by
compromise,
(xii) Exhibit A-12 Application by Veerumal presented in the court,
(xiii) Exhibit A-13 construction permission dt.22.11.1988 granted
to the defendant No.10 by Nagar Parishad, Jaipur and Exhibit-A/4
:- PW-5 Jagdish Bihari Lal Notary submitted copies of his register
which were also exhibited.
19. No other defendants submitted any oral or documentary
evidence before the Trial Court. At the time of final arguments
only counsel for the plaintiff and defendant No.10 addressed the
Court and all other defendants choose to remain ex-parte before
the Trial Court. After hearing the contesting parties, the Trial Court
decreed the suit for specific performance and directed the
defendants to execute and register the sale deed with respect to
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the suit property within a period of two months at the expense of
the plaintiff. It was further directed that the defendant No.10
would take active part in execution and registration of such sale
deed and would put his signature, thumb impression as and where
required. It was further directed that the plaintiff would give
defendant Nos.1, 8 & 9, an amount equivalent to 87.5% of the
prevalent DLC rate of the suit property within a period of two
months and if such defendants did not accept such payment, the
plaintiff shall be entitled to deposit such amount in the Court.
Actual physical possession of the suit property was also directed to
be given to the plaintiff.
20. Being dissatisfied with the verdict, the defendant No.10
appellant is before this court in the instant first appeal.
21. Learned counsel for the appellant vehemently contended that
vide order dt.20.08.1999, the Trial court framed three issues
which were not decided by the impugned judgment and decree
and one of the issue recorded by such order was with respect to
ownership of Dhanna Lal and its effect on the suit and non
decision thereupon vitiates the impugned judgment, as it was
abundantly revealed and established from the record that Dhanna
Lal was undisputed owner of half share of the suit property. It was
also contended that this issue was made at the instance of the
plaintiff himself, as noted by the Trial Court in such order and the
plaintiff was not entitled to claim that the title of Dhanna Lal
could not be investigated in the suit proceedings as he himself
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raised it specifically in the pleadings as well as in the application
for amendment of issues.
22. Counsel further contended that the plaintiff took shelter of
false claim asserting in the plaint itself that it was he who got the
suit property vacated from the tenant by paying a sum of
Rs.1,00,000/- with the aid of one Babu Lal Bairathi whereas it was
established from the record that the tenants were got vacated by
the defendant-appellant. Apart from this Mr. Babu Lal Bairathi,
who appeared as PW-4 in witness box deposed otherwise and the
apparent contradiction in the plaintiff's case as setup in the plaint
was abundantly revealed and such a person whose case was
based on falsehood was not entitled to claim the equitable and
discretionary relief of specific performance.
23. Counsel further contended that the Trial Court failed to
notice the apparent connivance between the plaintiff and
defendant Nos.1 to 9 which could easily be traced from the facts
on record. The Trial Court failed to note that at a later stage,
defendant Nos.8 & 9 submitted a new written statement whereby
they supported the case of the plaintiff and riggled out from their
previous stand. Counsel further contended that the Trial Court
committed a grave error in deciding issue No.7 connected with
readiness and willingness of the plaintiff which is a sine-qua-non,
as per Section 16C of the Specific Relief Act for a plaintiff to be
successful in the case of specific performance of a contract.
Counsel further contended that the contract relied upon by the
(19 of 51)
[CFA-319/2017]
plaintiff was void and illegal because it casted an obligation on the
seller to get the property vacated from the tenants within a fixed
time frame which was per se illegal as tenants were protected
under the Rent Control Legislature and no commitment could be
made by the sellers to get them evicted without following the due
process of law.
24. Counsel further contended that the Trial Court erroneously
and illegally denied the defendant-appellant's right of bonafide
purchaser as enshrined in Section 19(b) of the Specific Relief Act
and misapplied the principles laid down by the Apex court in the
case of Ram Niwas (dead) v. Smt. Bano & Others AIR 2000
SC 2921 & R.K. Mohammed Ubaidullah v. Hajee C. Abdul
Wahab AIR 2000 SC 1658 and by this Court in Jagir Singh v.
Ranjeet Singh AIR 2006 Raj. 105, whereas the facts of the
instant case were clearly distinguishable.
25. Counsel further contended that the defendant-appellant had
spent lacs of rupees in getting the suit property vacated from the
tenants, demolishing major portion of the suit property, getting
the maps approved from Nagar Parishad and the plaintiff all
through such exercise waited and never disclosed his alleged
agreement and thus was not entitled to a decree of specific
performance as per Section 20(1)(2) of the Specific Relief Act.
Counsel also contended that the Trial Court failed to consider that
suit for specific performance was not maintainable in the absence
of declaration about the cancellation of the agreement.
(20 of 51)
[CFA-319/2017]
26. In support of his contentions, he relied upon the following
judgments: Padmakumari Vs. Dasayyan (2015) 8 SCC 695,
Azhar Sultana Vs. B. Rajamani & Ors. AIR 2009 SC 2157,
Lourdu Mari David and Others Vs. Louis Chinnaya
Arogiaswamy, Others AIR 1996 SC 2814 & Saradamani
Kandappan Vs. S. Rajalakshmi and Others (2011) 12 SCC
18, Ram Awadh (Dead) by Lrs. & Ors. Vs. Achhaibar Dubey
and Another AIR 2000 SC 860, Ram Gopal Gupta Vs. Smt.
Shanti Devi & Others decided on 15.07.2013 in SB Civil
Second Appeal No.109/2013, I.S. Sikandar (Dead) by Lrs.
Vs. K. Subramani and Others (2013) 15 SCC 27,
Kamrudding son of Shri Abdul Samad Vs. Shri Bihari Lal
decided on 04.10.2006 in SB Civil Second Appeal
No.335/1981 & Jayakantham & Ors. Vs. Abay Kumar
decided on 21.02.2017 in Civil Appeal No.3049/2017.
27. Per-contra, learned counsel for the respondent-plaintiff
supporting the impugned judgment and decree contended that
though it was right that the Trial Court did not decide the issues
framed by the order dt.28.08.1999, but the same had no impact
on the final outcome for the reason that one of the issue framed
was already covered under issue No.12, one issue framed was
with respect to special cost which was irrelevant and one issue
framed with respect to ownership of Dhanna Lal was meaningless
as a plea of defective title is not available to a defendant in a suit
for specific performance. Counsel further contended that the issue
of readiness and willingness was rightly decided and the
(21 of 51)
[CFA-319/2017]
defendant-appellant who was the subsequent purchaser had no
right to raise such objection in this behalf. He further contended
that the only defence available to the appellant was that of a
bonafide purchaser and as the defendant abstained from making a
reasonable enquiry regarding the possession of the plaintiff, he
could not be given benefit u/Sec.19(b) of the Specific Relief Act
and the case was covered squarely by the judgment relied upon
by the Trial Court. Counsel further stressed that the discretion
vested in Court by virtue of Section 20 of the Specific Relief Act
was rightly exercised by the Trial Court and the Trial Court
enhanced the sale consideration from Rs.4,00,000/- to 87.5% of
the present DLC rate of the suit property and thus, he urged that
no interference was called. Counsel also contended that the
plaintiff was not made aware of the earlier suit by which the Court
got the property registered in favour of the defendant-appellant
and such an order without any information to the plaintiff could
not be acted upon and was rightly not considered by the Trial
Court.
28. In support of his contention, he relied upon following
judgments: K. Prakash Vs. B.R. Sampath Kumar 2015 (2)
SRJ 158, State of Uttar Pradesh Vs. Narendra & Ors. 2015
(2) SRJ 165, Anand Vs. Advent Corporation Pvt. Ltd. & Ors.
2002 WLC 512 (SC), Lakhan Singh & Anr. Vs. Ram Kumar &
Anr. AIR 2013 Rajasthan 155, Dalpat Singh Vs. State
(Mines & Geology) & ors. AIR 2013 Rajasthan 160, Sir
Gangai Vinayagar Temple & Anr. Vs. Meenakshi Ammal &
(22 of 51)
[CFA-319/2017]
Ors. 2014 (8) Supreme 133 (SC), Tej Singh Vs. Prabhu
Narayan Sharma & Others 2004 (1) WLC 629, Deenanath
Vs. Chunnilal AIR 1975 Rajasthan 69, Balwant Singh Vs.
Rajaram AIR 1975 Rajasthan 73, Netyam Venkataramanna
& Others Vs. Mahankali Narasimhan (died) AIR 1994
Andhra Pradesh 244, Ram Niwas (dead) through Lrs. Vs.
Smt. Bano and Others AIR 2000 SC 2921, R.K. Mohammed
Ubaidullah and Ors. Vs. Hajee C. Abdul Wahab (D) by Lrs. &
Ors. AIR 2000 SC 1658, Ha Narain (Dead) by Lrs. Vs. Mam
Chand (dead) by lrs. & Ors. 2010 (4) CCC 649 (SC),
Mohideen Sahib Vs. A. Amena Bi & Ors. 2007 (2) CCC 329
(Madras), Bina Murlidhar Hemdev & Ors. Vs. Kanhaiyalal
Lokram Hemdev & Ors. 1999 (7) SRJ 243, Jagir Singh Vs.
Ranjeet Singh & Ors. AIR 2006 Rajasthan 105 & Municipal
Board Niwai Vs. Bhura & Ors. AIR 2006 Rajasthan 114.
29. Mr. Mukesh Saini, Advocate who appeared on behalf of
respondent Nos.9 & 10 did not chose to make any submission
before this Court.
30. I have heard learned counsel for the parties and perused the
entire record and have given my thoughtful consideration upon
the rival contentions raised at the bar including the judgments
cited by the counsel for the parties.
31. As far as framing of three additional issues by order dt.
20.08.1999 in the Trial Court is concerned, both the rival parties
(23 of 51)
[CFA-319/2017]
are in unison of such fact but the respondent-plaintiffs claim that
such non decision is inconsequential for one additional issue was
already covered by issue No.12, one issue regarding special cost
was irrelevant and one issue regarding ownership of Dhanna Lal
ought to be decided in respondent-plaintiff's favour as a plea of
defective title is not legally available to the defendant-appellant.
Whereas the defendant-appellant claims that such issues have a
material bearing on the fate of the case and it was proved by the
defendant-appellant beyond any pale of doubt that half share of
the property belonged to Dhanna Lal.
32. It is apparent from the plaint's averments that the plaintiff
himself raised the issue that Dhanna Lal did not hold any right,
title or interest in the suit property. It was specifically averred in
paragraph 8 of the plaint that Prem Chand, defendant No.1,8 & 9
wrongfully entered into an agreement with defendant No.10
making false endorsement that half of the property belonged to
Dhanna Lal. It was further averred that such nominal and sham
agreement was entered to frustrate the agreement in favour of
the plaintiff and thus, such agreement was nonest against the
plaintiff. Apart from the above, the plaintiff in the plaint had
specifically pleaded that the defendant Nos.1, 8 & 9 were the
owners of the suit property and in reply to such averments, in the
joint written statement submitted by defendant Nos.1 to 9, such
fact was vehemently denied and it was specifically asserted that
the defendant Nos.1 to 9 were owners to the extent of half share
in the suit property and the rest half belonged to Dhanna Lal. By
(24 of 51)
[CFA-319/2017]
application dated 31.01.1995, the plaintiff specifically suggested
for framing of the following issue:-
"Whether Dhanna Lal had half share in the suit
property described in paragraph-1 of the plaint and if
so what is the impact of such fact on the suit."
33. The Trial Court acting upon such suggestion of the plaintiff
framed the above issue by order dt. 20.08.1999. In my view, once
such a course is adopted by the plaintiff, he cannot preclude the
court from making an enquiry and reaching to a conclusion with
respect to such issue.
34. To prove such issue, defendant No.10 appellant has not only
produced certified copy of the registered Will of Shri Kistoor Chand
which is an old document executed on 09.01.1946 duly registered
on 26.01.1946. Besides certified copy of the old adoption deed
dt.22.09.1939 along with its Hindi version has been submitted as
Exhibit A-8 & Exhibit A-8/1 Exhibit A-6 the House Tax Receipt
which stands in the name of Dhanna Lal and which is with respect
to the suit property bearing No.2050, has also been produced by
the defendant-appellant. The defendant-appellant has also
produced the sale deed Exhibit A-5 dt. 30.10.1984 executed by
the Court with respect to half share of the suit property and such
sale deed contained specific recital as to how Dhanna Lal vested
with half share in the property. The entire pedigree of Dhanna Lal
has been stated in such sale deed. Dw-1 Suresh Jain too has
deposed complete facts in this regard in his examination in chief
but no cross-examination has been preferred by the plaintiff in
(25 of 51)
[CFA-319/2017]
this regard. No suggestion whatsoever was made by the plaintiff
to the effect that the registered Will Exhibit A-7 or the adoption
deed Exhibit A-8 in favour of Dhanna Lal with respect of the suit
property was fictitious documents by virtue of which no title
vested in Dhana Lal. The same position can be said with respect to
house tax receipt Exhibit A-6 bearing the name of Dhanna Lal and
which is clearly with respect to suit property bearing No.2050.
PW-1 Tara Chand Sancheti, the original plaintiff stated during his
cross-examination that Dhanna Lal entered into an agreement dt.
11.11.1982 with defendant No.10 Gaurav Private Limited but such
agreement was wrongly entered and rejected by the Court of Shri
Jagdish Lal Jat, but no such rejection order was submitted. It was
further stated that he was aware of the suit filed by Dhanna Lal.
He further admitted that the person present in the Court, who was
recognized by him as Dhanna Lal, was residing in Banthia building.
When asked about the deposit of House Tax of the suit property by
Dhanna Lal, he did not deny the same, but stated that he was
unaware of such deposit being made by Dhanna Lal. He also
admitted that Dhanna Lal went into adoption but stated that he
was unaware about the person to whom he went into adoption. He
also did not deny the Will by Kistoor Chand in favour of Dhanna
Lal but merely stated that he was unaware that by virtue of Will of
Kistoor Chand, Dhanna Lal received 1/4th share in the suit
property. No documentary evidence proving that defendant No.1
to 9 were exclusive owners of the suit property, have either been
produced by plaintiff or defendant Nos.1 to 9. In their first joint
written statement, defendant Nos.1 to 9 have categorically stated
(26 of 51)
[CFA-319/2017]
that Dhanna Lal was owner of half share of the property and they
held the other half share of the property. In defiance of this joint
written statement, defendant Nos.8 & 9 submitted a new written
statement riggling out from the previous averments and started
supporting the case of the plaintiff. The Trial Court noticing the
above conduct of defendant No.8 & 9 ordered defendant No.9
Deep Chand to be present in cross-examination under Order 10,
but he did not turn up for such examination. Upon such
circumstances, the Trial Court by order dt.12.05.1994 reserved
the right of decision for such non compliance of Court's order to be
taken at the time of final arguments. This vital aspect of the
matter escaped the notice of the Trial Court. Non appearance of
Deep Chand along with submissions of a new written statements
admitting the claim of the plaintiff, speak loud of the connivance
between the plaintiff and defendant Nos. 1 to 9 and a cumulative
assessment of the above stated facts amply display that Dhanna
Lal was owner of half share of the property and effect of such
conclusion drawn, impacted the suit agreement dt. 18.02.1982
upto the share of Dhanna Lal.
35. Learned counsel for the respondent-plaintiff raised a plea
that in a suit for specific performance by the buyer, the seller is
precluded from raising the issue of defective title. To appreciate
such plea Section 17 of the Specific Relief Act, 1963 needs to be
noted. The same is quoted here under:-
"Section-17:- Contract to sell or let property by
one who has no title, not specifically
enforceable.- (1) A contract to sell or let any
(27 of 51)
[CFA-319/2017]
immovable property cannot be specifically enforced in
favour of a vendor or lessor-
(a) who, knowing not to have any title to the
property, has contracted to sell or let the property;
(b) who, though he entered into the contract
believing that he had a good title to the property,
cannot at the time fixed by the parties or by the
court for the completion of the sale or letting, give
the purchaser or lessee a title free from reasonable
doubt.
(2) The provisions of sub-section (1) shall also apply,
as far as may be, to contracts for the sale or hire of
movable property."
36. From the meaningful perusal of the above provision, it is
clear that there is no restriction for a buyer seeking specific
performance to raise an issue of defective title of the seller. The
plaintiff himself in the instant case raised the issue of ownership of
Dhanna Lal and invited the attention of the Court to frame an
additional issue with respect to ownership of Dhanna Lal and now
he cannot raise the plea that the title of Dhanna Lal cannot be
enquired in the suit or the defective title of defendant Nos.1 to 9
cannot be a ground of refusal of the relief of specific performance
to the plaintiff. Looked from another angle, the contention raised
by the plaintiff-respondent is bound to be rejected. Although, a
seller cannot resist a suit for specific performance by pleading
defective title in himself as per the ratio of judgment in
Deenanath Vs. Chunnilal & Tej Singh Vs. Prabhu Narayan
Sharma & Others (supra), but defendant No.10 appellant was
(28 of 51)
[CFA-319/2017]
not only claiming through defendant No.1, 8 & 9 and Prem Chand
but also Dhanna Lal and was thus not precluded from raising the
issue of ownership of Dhanna Lal. The above quoted judgments
relied upon by the learned counsel for the respondent-plaintiff has
been distinguished by this Court in SB Civil Second Appeal
No.109/2013 titled as Ram Gopal Gupta Vs. Smt. Shanti Devi
& Others (supra) wherein the Co-ordinate Bench of this Court
placing reliance on the judgment of Shanmughasundaram &
Othres Vs. Diravia Nadar (D) by Lrs and Anr. 2005 (1) WLC
(SC) Civil 502, rejected the plea that defence of defective title
cannot be raised by a person who had an independent title in the
suit property. In the instant suit, from which the appeal emanates,
defendant No.10 appellant was claiming half share in the suit
property by registered sale deed executed by Dhanna Lal. If
instead of defendant appellant, Dhanna Lal was impleaded as a
party defendant in the suit, could Dhanna Lal, who did not step
into the shoes of defendant Nos.1 to 9 could have been precluded
from raising such defence? The answer appears to be an-obvious
"No". Dhanna Lal was claiming independent title not derived from
the seller. Such being a position, it is quite obvious that defendant
No.10 appellant who derived title from Dhanna Lal was not
precluded to raise the defence of ownership of Dhanna Lal to the
extent of his half share. Thus, the contention raised by the
plaintiff-respondent is repelled and the additional issue framed by
the Trial Court on 20.08.1999 with respect to ownership of
Dhanna Lal and its impact on the suit is decided in favour of the
defendant-appellant and it is held that Dhanna Lal had half share
(29 of 51)
[CFA-319/2017]
in the suit property and the agreement propounded by the plaintiff
respondent was un-enforceable to the extent of such half share.
There is no impediment in deciding such issue, for evidence in this
behalf is already on record and the parties are fully live to the
controversy. Counsel for the respondent-plaintiff himself relied
upon judgment of Shri Gangai Vinayagar Temple & Anr. Vs.
Meenakshi Ammal & Ors. (supra) which clarify such legal
proposition.
37. As far as additional issue with respect to the defence of
bonafide purchaser is concerned, this Court is of the firm opinion
that the same is covered by issue No.12 and thus will be dealt
while discussing issue No.12.
38. As far as the additional issue with respect to imposition of
special cost is concerned, this Court is of the opinion that no cost
is required to be imposed upon the plaintiff, looking to the overall
facts of the case and thus, the issue is decided accordingly.
39. In so far as issues Nos.2 to 3 are concerned, the same were
rightly decided by the Trial Court in favour of the plaintiff-
respondent. Defendant Nos.1 to 9 in their first written statement
admitted their signatures on the agreement dt. 18.02.1982. It
was also admitted by such defendants that they received 50,000/-
from the original plaintiff and was ready and willing to return such
amount to him. Defendant No.10 appellant who submitted a
separate written statement in the suit though asserted that
(30 of 51)
[CFA-319/2017]
initially he was unaware of the plaintiff's agreement but further
stated that after the lodging of police report by the plaintiff, the
agreement was revealed. PW-5 Jagdish Bihari Lal Mathur advocate
whose notary Register containing the endorsement with respect to
the agreement made, has not only deposed about the execution of
agreement but also produced his notary register, copy of which
has been exhibited in the Trial Court. PW-3 Madan Singh, who
witnessed the agreement and deposed about the execution of the
agreement was not shaken during his cross-examination, and
thus, execution of agreement dt. 18.02.1982 stands proved. It
was further proved that defendant Nos.1, 8 & 9 and Prem Chand
received Rs.50,000/- against such agreement and thus conclusion
drawn by the Trial Court with respect to issue Nos.2 & 3 cannot be
faulted.
40. In so far as issue No.7 is concerned which relates to
readiness and willingness of the plaintiff, the same was decided by
the Trial Court in favour of the plaintiff-respondents. The Trial
Court was of the view that as the defendant had not contended
that the plaintiff was not ready and willing to perform his part of
the contract and as there were no facts and circumstances placed
on record which demonstrate that the plaintiff was unwilling to
perform his part of the contract, the readiness and willingness of
the plaintiff was proved. This, approach of the Trial Court is not in
consonance with the mandatory provision of Section 16C of the
Specific Relief Act. Such provision casts a mandatory obligation on
the plaintiff to aver and prove that he has always been ready and
(31 of 51)
[CFA-319/2017]
willing to perform the essential terms of the contract required to
be performed by him. Only in paragraph 5 of the plaint the
plaintiff asserted that a notice dt.26.07.1982 by his advocate Mr
Babu Lal Ajmera was sent to defendant No.1, 8 & 9 and Prem
Chand seeking information about the steps having been initiated
by them for getting the tenants evicted. Apart from the same in
the plaint it was only asserted that the plaintiff was ready to
receive vacant possession and give the residual sale consideration.
41. This Court is of the opinion that such pleadings of the
plaintiffs were not in conformity with Order 6 Rule 3 of CPC and
clause 3 of Form 47 in appendix-A. Clause 3 of Form 47 in
Appendix-A reads as under:-
"the plaintiff has been and still is ready and willing
specifically to perform the agreement on his part of
which the defendant has had notice."
42. The plaint averments reproduced herein before fall short of
such mandatory requirement. The Hon'ble Apex Court in the
judgment of Padmakumari Vs. Dasayyan (supra) noting the
following paragraph 6 in the suit observed as under:-
"6 The plaintiff is ready and willing to perform his part of
the contract by paying the balance of sale consideration
of Rs.63,000/- and taken the sale deed in accordance
with the provisions of the agreement deed dated
19.04.1992"
Upon a careful reading of the above said paragraph we
have to hold that the plaintiff has not complied with the
legal requirement which is mandatory as provided under
Section 16(C) of the Specific Relief Act."
(32 of 51)
[CFA-319/2017]
Upon a careful reading of the above said paragraph it can be
held that the plaintiff has not complied with the legal requirement
which is mandatory as provided u/Sec.16(C) of the Specific Relief
Act.
43. The above observation of the Hon'ble Apex court squarely
applies to the plaint averments of the instant case. Apart from the
above as could be seen from the recital of the sale agreement dt.
18.02.1982, the plaintiff was required to pay balance sale
consideration of Rs.3,50,000/- within three months beginning
from the clearance of the cheque dt. 18.02.1982 and 01.03.1982.
It was further agreed that within this stipulated period of three
months the seller would get portions in occupation of the tenants
vacated, but that was subjected to payment of Rs.1,00,000/- by
the plaintiff over and above the settled sale price of Rs.3,50,000/-.
Although, there is a recital in the agreement to the effect that in
the first instance out of the above Rs.1,00,000/-, Rs.20,000/-
would be payable by the plaintiff, when the seller would hand over
possession of four Kothas to the plaintiff falling which the plaintiff
shall not be obliged to make further payment, but the fact remains
that the plaintiff was required to pay at least Rs.20,000/- during
this stipulated period of three months. What steps were initiated
by the plaintiff in this period of three months were neither averred
in the plaint nor disclosed by PW-1 the original plaintiff in his oral
testimony. The first notice which the plaintiff alleges to send to
defendant Nos.1, 8 & 9 and Prem Chand through his counsel Shri
Babu Lal Ajmera, was according to the plaint averments of
(33 of 51)
[CFA-319/2017]
26.07.1982, much after the expiry of the stipulated period of
three months. Such alleged notice too has not been exhibited by
the plaintiff. The plaintiff himself has produced telegram sent to
him by defendant Nos. 1, 8 & 9 and Prem Chand as Exhibit-2
calling upon the plaintiff to pay Rs.20,000/- to them within 24
hours otherwise the agreement stood cancelled. The plaintiff has
also produced Exhibit-3 notice served upon him by defendant
Deep Chand asserting that inspite of repeated requests, the
plaintiff had not given Rs.20,000/- to them. It was further
asserted in this notice, which was alleged to be received by the
plaintiff on 06.08.1982 that the seller after holding talks with a
tenant had agreed him to vacate four kothas on payment of
Rs.20,000/- but the plaintiff did not provide such amount to them.
At a later point of time, on 14.08.1982, the plaintiff gave the
seller Rs. 20,000/- as revealed from Exhibit-6, but the same is
insufficient to prove the readiness and willingness of the plaintiff.
As evidenced by Exhibit-6, time limit of 45 days to hand over the
vacant possession of four rooms and 60 days to hand over the
vacant possession of the suit property was agreed upon between
the parties but even after breach of these time limit, the plaintiff
initiated no steps against the sellers. The Plaintiff developed cold
feet and only filed a suit after lapse of almost three years on
16.01.1985 from the agreement dt. 18.02.1982. During this
period, one of the contracting party Prem Chand died on
12.08.1984 and at that juncture, as revealed from the plaint
averments, defendant Nos.1 to 8, expressed their inability to get
the property vacated from the tenant but even by such fact
(34 of 51)
[CFA-319/2017]
plaintiff was not prompted to initiate action against defendant
Nos.1 to 9, rather the plaintiff took shelter of the false plea that
with the aid of Babu Lal Bairathi, he was successful in getting the
tenants evicted on 02.12.1984 by payment of Rs.1,00,000/-.
44. The falsity of the story propounded by the plaintiff can be
easily gazed from the deposition made by PW-1, original plaintiff
Mr. Tara Chand PW-1 stated that the seller had sold the property
to Dharam Chand and the property did not come into his
possession and was in the possession of the company and Dharam
Chand. He further stated that the rooms were vacated through
Babu Lal Bairathi. He further elucidated that the talks were held
through Babu Lal Bairathi which took place on 12.02.1982. He
admitted that the property was in occupation of 14 tenants but he
was unable to disclose the names of the tenants, their specific
portions and rate of rent. Against his plaint averments where he
asserted that he got the tenants evicted on 02.12.1984, he
deposed that Dharm chand Jain broke upon the locks on
18.02.1982. He further stated that Prem chand, Tara Chand &
Deep Chand had handed over possession of 10-15 rooms to him
on 18.02.1982, but such fact was not pleaded in this plaint. He
also stated that the suit property was in actual physical possession
of Prem Chand, Deep Chand only, whereas the plaint averments
as well as agreement Exhibit-1 displayed that the same was under
occupation of the tenants. He further stated that the Haveli had
18-20 tenants whose names he did not remember.
(35 of 51)
[CFA-319/2017]
45. Mr. Babu Lal Bairathi, who appeared as PW-4 stated that he
had no talks with the tenants but rather it was the plaintiff Tara
Chand who held such talks but again stated that it was one Ram
Dudh Wala who held such talks. He further stated that except one
he was unaware about the names of the tenants in the suit
property. He stated that he was unaware about the amount
received by the tenants for vacating the suit property. He further
stated that he was unaware about the vacation by all the tenants
other than one. From the above depositions of PW-1 & PW-4 it is
apparent that the theory propounded by the plaintiff in the plaint,
that it was he who got the property vacated from the tenants on
02.12.1984, was nothing but farce merely designed to provide an
explanation for delay in filing the suit in January, 1985.
46. The Hon'ble Apex Court in the case of Azhar Sultana Vs. B.
Rajamani & Ors. (supra) has held as under:-
"Section 16(C) of the Specific Relief Act, 1963 postulates
continuous readiness and willingness on the part of the
plaintiff. It is a condition precedent for obtaining a relief
of grant of specific performance of contract. The court,
keeping in view the fact that it exercises a discretionary
jurisdiction, would be entitled to take into consideration
as to whether the suit had been filed within a reasonable
time. What would be a reasonable time would, however,
depend upon the facts and circumstances of each case.
No hard and fast law can be laid down therefor.
The conduct of the parties in this behalf would also
assume significance."
47. The Hon'ble Apex Court in the case of Saradamani
Kandappan Vs. S. Rajalakshmi and Others (supra) held as
under:-
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[CFA-319/2017]
"(i) Courts, while exercising discretion in suits for
specific performance, should bear in mind that when
the parties prescribe a time/period, for taking certain
steps or for completion of the transaction, that must
have some significance and therefore time/period
prescribed cannot be ignored.
(ii) Courts will apply greater scrutiny and strictness
when considering whether the purchaser was 'ready
and willing' to perform his part of the contract.
(iii) Every suit for specific performance need not be
decreed merely because it is filed within the period of
limitation by ignoring the time-limits stipulated in the
agreement. Courts will also 'frown' upon suits which
are not filed immediately after the breach/refusal. The
fact that limitation is three years does not mean a
purchaser can wait for 1 or 2 years to file a suit and
obtain specific performance. The three year period is
intended to assist purchasers in special cases, as for
example, where the major part of the consideration
has been paid to the vendor and possession has been
delivered in part performance, where equity shifts in
favour of the purchaser."
48. Applying the legal principles enshrined in the above
judgments, this Court is of the firm opinion that the plaintiff was
not ready and willing to perform his part of the contract and his
conduct was such that he was dis-entitled for grant of
discretionary and equitable relief of specific performance. Not only
he waited for a period of almost 3 years from the date of
agreement but also raised false claim. The Trial Court misdirected
itself in law and virtually decided issue No.7 as if negative burden
was casted upon the defendant to disprove that the plaintiff was
not ready and willing to perform his part of the contract. This
approach adopted by the Trial Court led to erroneous conclusion
which cannot be sustained and issue No.7 is decided against the
plaintiff.
(37 of 51)
[CFA-319/2017]
49. The contention of the plaintiff-respondent that the
defendant-appellant being subsequent purchaser, was not entitled
to raise objection with respect to readiness and willingness of the
plaintiff, being devoid of any merit, is rejected.
50. The legal proposition is no longer res-integra and the Hon'ble
Apex Court in the case of Ram Awadh (Dead) by Lrs. & Ors.
Vs. Achhaibar Dubey and Another (supra) has categorically
held that such defence is available both to vendor and subsequent
purchaser and even to the legal representatives of subsequent
purchaser. The same view has been reiterated by the Supreme
Court in the case of Adivekka & Ors. Vs. hanamavva Kom
Venkatesh (Deceased by Lrs.) & Anr. AIR 2007 SC 2025.
51. In the instant case, it was apparent that two of the sellers,
defendant Nos.8 & 9 subsequently changed their stand, retracted
from the previous written statement and started supporting the
plaintiff. Such an approach should have made the Trial Court more
cautious and vigilant and the Trial court was bound to minutely
scrutinize the case setup by the plaintiff in the plaint as well as
during the course of evidence but the Trial Court instead of
making an independent & critical analysis of the case setup by the
plaintiff, cryptically decided issue No.7 in favour of the plaintiff and
the conclusion drawn is perverse and illegal which is set aside.
(38 of 51)
[CFA-319/2017]
52. In so far as conclusion drawn by the Trial Court with respect
to issue No.4 is concerned, the same cannot be faulted. It is
settled legal preposition that mere agreement does not create any
right, title or interest in a property but merely gives the
agreement holder a right to sue for specific performance of the
agreement or protect his possession u/Sec. 53A of Transfer of
Property Act. Plaintiff was not claiming his possession on the three
Kothas under the agreement, but specifically stated that such
Kothas were merged into shops as per the rent agreement. The
defence of Section 53A of Transfer of Property Act was neither
pleaded nor raised in evidence and as such was not available to
the plaintiff. The plaintiff would not become the owner of three
Kothas by virtue of the agreement. The plaintiff has not filed a
case for specific performance or declaration viz-a-viz these three
Kothas and hence the Trial Court was right in observing that the
plaintiff did not become the owner of these three kothas.
53. In so far as the conclusion drawn on issue No.6 is concerned,
the Trial Court was of the opinion that such issue was irrelevant in
a suit for specific performance. The Trial Court also opined that
whether it was the plaintiff or defendant No.10 who got the
tenants evicted from the suit property, it hardly effected the
outcome of the suit. Such approach of the Trial Court led to an
erroneous conclusion. It was well reflected that the tenants were
got evicted by the defendant-appellant. A suit filed by various
tenants Exibhit-A10, the order sheets of such suit Exhibit A-9, the
petition of the tenants Exhibit A-11 and the application of a tenant
(39 of 51)
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Exhibit A-12 firmly established that the tenants were got evicted
by defendant-appellant.
54. The judgment delivered by the Court in the Criminal case
lodged by the plaintiff, Exhibit A-4, also fortifies such fact. When
such fact stands proved, the assertion of the plaintiff that it was
he who got the tenants evicted on 02.12.1984 turns out to be
absolutely false and this had a vital impact on the grant of specific
performance of the contract in favour of the plaintiff which is an
equitable and discretionary and dis-entitles a person with unclean
hand to obtain such relief. The fact that who got the tenants
evicted also carried weight while exercising discretion u/Sec. 20 of
the Specific Relied Act, but the Trial Court in a casual and cursory
manner overlooking these vital aspects did not express any
opinion on such issue and such order cannot be sustained. Thus
issue No.6 is decided in favour of the defendant-appellant and it is
held that it was the defendant-appellant who got the property
vacated from the tenants. The impact of such decision would be
discussed while expressing opinion on Section 20 of the Specific
Relief Act.
55. In so far as the issue of defendant appellant being bona fide
purchaser for value is concerned, the same is involved in issue
no.12 and the additional issue as framed by the court on
20.8.1989. Although once it is held that the plaintiff was not
ready and willing to perform his part of the contract, it is not
necessary to enquire whether defendant appellant was a bona fide
(40 of 51)
[CFA-319/2017]
purchaser or not. But not to leave anything to the realm of
ambiguity, the question is discussed here under:-
That learned trial court was of the opinion that defendant no.10
abstained from making enquiry with the plaintiff, who was a
tenant in the three Kothas, and hence was in constructive
knowledge of agreement of the plaintiff. This court is of the
opinion that the view expressed by the trial court is factually
incorrect. The defendant appellant in its written statement has
specifically pleaded that he was unaware about the agreement dt
18.2.1982 propounded by the plaintiff. It has further been
asserted that the said defendant was only aware of the fact that
the plaintiff was in possession of the three Kothas as a tenant and
after execution of sale-deed with Dhannalal on 21.12.1983,
contacted the plaintiff, as also the other tenants of the suit
property for vacation of portions in possession of the respective
tenants. It has further been asserted that when the plaintiff was
asked to vacate the three Kothas, he stated that the lease was for
12 years and he would not vacate the same and if the defendant
wanted an earlier vacation, he should give Rs.1,25,000/- to the
plaintiff. Defendant has also claimed that the demand made by
the plaintiff was excessive and hence the plaintiff persuaded him
to settle on a lower amount but as he did not budge, whereupon
all talks with the plaintiff were dropped. DW.1 Suresh Jain in his
evidence deposed to the same effect and was not shaken in cross
examination. Apart from such fact, the original plaintiff PW.1 was
confronted with such fact during cross examination.
(41 of 51)
[CFA-319/2017]
56. The learned counsel for plaintiff respondent placed reliance
on a Division Bench judgment of Gurmukh Singh v. Sohan
Singh AIR 1963 Punjab 470, wherein the court has held that
the onus is on the transferee to prove that he had no prior notice
of agreement and mere denial will not discharge the onus that
rests on him.
57. There is no quarrel regarding the preposition that the burden
lies on the transferee to prove that he had no knowledge of a
previous agreement. But the above judgment also lays the
preposition that each case has to be examined on its own facts to
find out whether the onus which rests on the transferee was
discharged or not.
58. The other judgment in the case of R.K. Mohammed
Ubaidullah v. Hajee C. Abdul Wahab (supra), relied upon by
the plaintiff respondent, as well as by the trial court, also lays
down the same preposition. It states that burden of proof of good
faith is in the nature of an exception to the general rule and is a
question of fact which must be considered and decided on facts of
each case. In this case the whole of the suit property was under
the tenancy of plaintiff, who had agreed to purchase the same
from the owner. It was not in dispute that defendant nos.2 to 4
and subsequent purchasers, carry on business in hardware in the
adjoining premises with the plaintiff. It was further not in dispute
that the plaintiff and such defendants were neighbours not only in
business premises but also in the residential locality of the same
(42 of 51)
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town. It was further established that the plaintiff was an old
tenant and certain telephonic conversations were also placed on
record which displayed that the subsequent purchaser was aware
of the prior agreement in plaintiff's favour. In such factual
backdrop, the court held defendant nos.2 to 5 not to be bona fide
purchasers, but the factual scenario in the instant case is entirely
different. The plaintiff and defendant no.10 were neither
neighbours in business premises nor in residential locality, and in
such fact situation the above judgment, relied upon by the trial
court for denying the benefit of bona fide purchaser to defendant
no.10 appellant, was wholly inapplicable to the facts of the instant
case.
59. The other judgment relied upon by the trial court is of Ram
Niwas (dead) v. Smt. Bano & Others (supra). In this
judgment, while discussing the expression "person is said to have
notice" in sec.3 of the Transfer of Property Act, the court held that
as the purchaser abstained from making enquiry into the real
nature of possession of the tenant, they cannot escape from the
consequences of the demand notice under Explanation II to sec.3
of the Transfer of Property Act. Observing such fact the Hon'ble
Supreme Court remanded the case back for decision on this issue
as well as the issue with respect to sec.20(2) of the Specific Relief
Act. Thus, this case is also inapplicable to the facts of the instant
case.
(43 of 51)
[CFA-319/2017]
60. Defendant no.10 had not abstained from making any enquiry
but had enquired from the plaintiff as mentioned hereinbefore.
Besides, the suit property was not only in occupation of the
plaintiff but there were numerous tenants other than the plaintiff.
The plaintiff was in occupation of only three Kothas and it was the
plaintiff who kept mum and did not disclose this agreement after
defendant no.10 purchased the property from Dhannalal by a
registered sale-deed.
61. In the case of Jagir Singh v. Ranjeet Singh (supra), the
subsequent purchaser was trying to retain the suit property on the
basis of a forged agreement. Such agreement was on a plain
paper for a payment of Re.1/- only. Further there was no mention
of such agreement in sale-deed, and in such a scenario, this court
observing such circumstances, which unmistakably pointed
towards the fraud and forgery, designed by the subsequent
purchaser, opined that the onus of proving prior notice of original
contract cannot be discharged by mere denial in pleadings.
62. Facts of the case in hand are clearly distinguishable. Dhanna
Lal executed the registered sale-deed much prior to the institution
of the suit in favour of the defendant appellant and such fact was
not denied by the plaintiff. Sale-deed with respect to share of
defendant nos.1, 8, 9 and Prem Chand, was executed through
court, and thus it could not be said that the same was sham and
bogus. One of the vital aspects of the case is that the plaintiff
during cross examination of DW.1 Suresh Jain, submitted a
(44 of 51)
[CFA-319/2017]
document Ex.-8 dt 14.12.1984. This document was not disclosed
by the plaintiff in his plaint or at earlier point of time. How this
document came into possession of the plaintiff, was also not
disclosed. This document is an agreement and is obliged to be
signed by Suresh Jain, Director of defendant no.10 appellant,
agreeing with defendant nos.1, 8, 9 and Prem Chand, that the
defendant would be liable to return Rs.70,000/- to the plaintiff. It
also contained the recital that the agreement with the plaintiff
already stood cancelled. Production of such document at the
instance of plaintiff and during cross examination of Suresh Jain
firmly established the secret arrangement between the plaintiff
and defendant nos.1 to 9 and revealed that they were acting in
concert to defeat the claim of defendant appellant. Though this
agreement was denied, by the defendant, but even if it is
considered on face value, it establishes that defendant appellant
was not in knowledge of the prior agreement. Had the defendant
been in such knowledge, recital to the same effect would have
come in such agreement but rather, the agreement mentions that
the arrangement propounded by the plaintiff stood cancelled.
63. In the case of Bina Murlidhar Hemdev v. Kanhaiyalal
Lokram Hemdev (supra), relied upon by the plaintiff
respondent, sec.3 of Transfer of Property Act, which relates with
"notice" had been discussed. The same is, however, inapplicable
to the facts of the instant case for the defendant appellant was
neither in actual nor constructive notice of the plaintiff's
agreement. The defendant appellant had not denied that he had
(45 of 51)
[CFA-319/2017]
no knowledge of the agreement of plaintiff, but it is said that at
the time of agreeing to purchase the suit property from DhannaLal
and defendant nos.1, 8, 9 and Prem Chand, it had no knowledge
about the plaintiff's agreement and it was only subsequently when
the plaintiff lodged police report such fact was revealed.
Reiteration of such facts in the written statement displays the
bona fides of the defendant appellant, and such subsequent
knowledge cannot be held to detrimental to the defence of bona
fide purchaser for value and the defendant was entitled to get the
benefit of sec.19(b) of the Specific Relief Act, and the trial court
committed grave mistake in not giving such benefit to the
defendant appellant. The trial court was swayed away by the
judgments cited and without appreciating their applicability on the
peculiar facts & circumstances of the case denied issue No.12
against the defendant-appellant. Thus, issue no.12 is decided in
favour of the defendant appellant and it is held that being bona
fide purchaser for value, the plaintiff was not entitled for specific
performance against them. Accordingly, the additional issue
framed is also decided.
64. Insofar as the contention of the defendant appellant
regarding the legal objection that the suit for specific performance
filed by the plaintiff was not maintainable without seeking
declaration that the cancellation of the agreement dt 18.2.1982
was void and ineffective, is concerned, this court is of the view
that the same also carries legal force. Hon'ble Apex Court in the
(46 of 51)
[CFA-319/2017]
case of I.S. Sikandar (Dead) v. K. Subramani (supra), has
held:
"Suit for specific performance - Maintainability -
Sustenance of contract essential precondition -
Plaintiff having failed to perform his part of the
agreement, agreement already terminated by
defendant vendor - In absence of plaintiff's prayer
seeking declaratory relief that termination of
agreement was bad in law, held, suit for specific
performance not maintainable."
65. In the instant case defendant nos.1, 8, 9 and Prem Chand
terminated the plaintiff's agreement by sending telegram Ex.-2
and notice Ex.-3. The plaintiff himself relied on Ex.-8, agreement,
which contained a recital that the agreement of the plaintiff stood
cancelled. In such factual backdrop, it was obligatory upon the
plaintiff as per the ratio propounded by the Hon'ble Apex Court in
the above judgment to seek declaration with respect to such
cancellation and in absence thereof the suit for specific
performance was not maintainable, and the plaintiff ought to be
non suited on this very count.
66. Next comes the question of applicability of sec.20(1)(2) of
the Specific Relief Act. This section invests the court with the
jurisdiction to refuse specific performance on certain grounds and
the court is not bound to grant the relief of specific performance
merely because it is lawful to do so. Sec.20(1) of the Specific
Relief Act indicates that the jurisdiction of a decree specific
performance is discretionary yet the discretion of the court is not
arbitrary but is sound and reasonable to be guided by judicial
(47 of 51)
[CFA-319/2017]
principles. The exercise of discretion is capable of being corrected
by a court of appeal in the hierarchy of appellate courts. Sub-sec.
(2) of sec.20 contains a stipulation of those cases where the court
may exercise its discretion not to grant specific performance. The
precedent on the subject is elucidated as under :
Parakunnan Veetill Joseph's Mathew Vs. Nedumbara
Kuruvila's Son and Ors. AIR 1987 SC 2328, Hon'ble Apex
Court held as under :-
"....14. Section 20 of the Specific Relief Act, 1963
preserves judicial discretion of Courts as to decreeing
specific performance. The Court should meticulously
consider all facts and circumstances of the case. The
Court is not bound to grant specific performance
merely because it is lawful to do so. The motive
behind the litigation should also enter into the judicial
verdict. The court should take care to see that it is not
used as an instrument of oppression to have an unfair
advantage to the plaintiff..."
67. A similar view was adopted by the Hon'ble Apex Court in
Sardar Singh Vs. Smt. Krishna Devi & Another (1994) 4 SCC
18, where the court held as under :-
"....14. Section 20(1) of the Specific Relief Act, 1963
provides that the jurisdiction to decree specific
performance is discretionary, and the court is not bound
to grant such relief, merely because it is lawful to do so;
but the discretion of the court is not arbitrary but sound
and reasonable, guided by judicial principles and capable
of correction by a Court of appeal. The grant of relief of
specific performance is discretionary. The circumstances
specified in Section 20 are only illustrative and not
exhaustive. The court would take into consideration the
circumstances in each case. The conduct of the parties
and the respective interest under the contract."
(48 of 51)
[CFA-319/2017]
68. Reiterating the position in K. Narendra Vs. Riviera
Apartments (P) Ltd. (1999) 5 SCC 77 Hon'ble Apex Court held
as under :-
"...29. Performance of the contract involving some
hardship on the defendant which he did not foresee while
non-performance involving no such hardship on the
plaintiff, is one of the circumstances in which the court
may properly exercise discretion not to decree specific
performance. The doctrine of comparative hardship has
been thus statutorily recognized in India. However, mere
inadequacy of consideration or the mere fact that the
contract is onerous to the defendant or improvident in its
nature, shall not constitute an unfair advantage to the
plaintiff over the defendant or unforeseeable hardship on
the defendant. The principle underlying Section 20 has
been summed up by this Court in Lourdu Mari David Vs.
Louis Chinnaya Arogiaswamy by stating that the decree
for specific performance is in the discretion of the Court
but the discretion should not be used arbitrarily; the
discretion should be exercised on sound principles of law
capable of correction by an appellate Court."
69. These were followed in A.C. Arulappan Vs. Smt. Ahilya
Naik (supra) with the following observations :-
"...7. The jurisdiction to decree specific relief is
discretionary and the court can consider various
circumstances to decide whether such relief is to
be granted. Merely because it is lawful to grant
specific relief, the court need not grant the order
for specific relief; but this discretion shall not be
exercised in an arbitrary or unreasonable manner,
Certain circumstances have been mentioned in
Section 20(2) of the Specific Relief Act, 1963 as to
under what circumstances the Court shall exercise
such discretion. If under the terms of the contract
the plaintiff gets an unfair advantage over the
defendant, the court may not exercise its
discretion in favour of the plaintiff. So also, specific
relief may not be granted if the defendant would
be put to undue hardship which he did not foresee
at the time of agreement. If it is inequitable to
grant specific relief, then also the court would
desist from granting a decree to the plaintiff."
........
(49 of 51) [CFA-319/2017] ...15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for Specific performance, these salutary guidelines shall be in the forefront of the mind of the court....."
70. The Apex Court considered the position in Nirmala Anand Vs. Advent Corporation (P) Ltd.(supra), and held thus :-
"...6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the Court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."
71. In the present case, although once it is held that the plaintiff was not ready and willing to perform his part of contract, and the defendant appellant was a bona fide purchaser for value, against (50 of 51) [CFA-319/2017] whom decree of specific performance could not be granted and the plaintiff was liable to be non suited for not seeking the relief of declaration, enquiry u/s 20(1)(2) of the Specific Relief Act is not even warranted, but as a matter of prudence the same is considered in view of the arguments advanced by the counsel.
72. This court is of the opinion that on this count also balance tilted in favour of the defendant appellant. Record contains several aspects which when weighed in correct perspective dis-entitles the plaintiff to get a decree for specific performance.
73. There is no dispute about the fact that out of the total sale consideration of Rs.4 lakh, only Rs.50,000/- were paid by the plaintiff and out of Rs.1 lakh agreed to be paid by the plaintiff for getting the tenant evicted from the suit property, only Rs.20,000/- were paid by the plaintiff. Thus, out of the total of Rs.5 lakh, only a paltry sum of Rs.70,000/- was paid by the plaintiff. All-through these 35 years the plaintiff is not in actual possession of the suit property, except the three Kothas which were in his tenancy and the suit property is in the possession of defendant appellant. It has come on record that the defendant had demolished most portions of the suit property and it has been established that it was the defendant appellant, who got the tenants evicted and it has further been established that the defendant appellant has got the map for re-construction approved from the Nagar Parishad (51 of 51) [CFA-319/2017] way back in the year 1988, and under such circumstances it would be unfair and inequitable to enforce specific performance.
74. The trial court also realised such position but instead of refusing specific performance, enhanced the sale consideration to 87.5% of the prevalent DLC rates, and in my view, such approach was wholly unwarranted, and hence the impugned judgment & decree cannot be sustained on this count also.
75. Resultantly, the appeal is allowed and the impugned judgment & decree is quashed and set aside, and the suit of plaintiff respondent for specific performance is hereby dismissed.
76. It is further directed that the defendant appellant should return the amount of Rs.70,000/- within a period of one month to the plaintiff respondent Nos. 1/1 & 1/2 with interest @ 12% from 18.2.1982 till payment or realisation.
77. The appellant shall be entitled to initiate proceedings for recovery of possession from the plaintiff respondent Nos. 1/1 & 1/2 from the three Kothas following the provisions of the Rent Act.
78. The appeal stands allowed in the above terms, with no order as to costs.
(JAINENDRA KUMAR RANKA)J. S.Kumawat, Jr. P.A.