Rajasthan High Court - Jaipur
Safdar Ali Khan S/O Shri Chote Khan vs Lallu Basant Singh S/O Shri Lallu Ratan ... on 26 August, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No.125/1989
Safdar Ali Khan S/o Shri Chote Khan, R/o-Mohalla Patpara, Old
City, Dholpur (Raj.) since deceased through:
1/1. Smt Mumtaz Pathan W/o Iqbal Hussain D/o Late Shri
Safdar Ali, R/o Naseerabad Colony, Agra, U.p.
1/2. Smt. Shahnaz W/o Islam Khan D/o Late Shri Safdar Ali
R/o Gadarpura Mohalla, Dholpur, Rajasthan.
1/3. Shri Irshad Ali S/o Late Shri Safdar Ali, R/o Bada
Darwaja, Mohalla Pat Para, Dholpur.
1/4. Smt Shabham Beg, W/o Faim Beg, R/o Rahiya Marg,
Sangam Vihar, New Delhi.
1/5. Shri Ifraj Ali S/o Late Shri Safdar Ali, R/o Bada Darwaja,
Mohalla Pat Para, Dholpur.
1/6. Smt Shagufta W/o Ikrar D/o Late Shri Safdar Ali, R/o
Bada Darwaja, Mohalla Pat Para, Dholpur.
----Appellants-defendant No.2
Versus
1. Lallu Basant Singh S/o Shri Lallu Ratan Singh, R/o
Mohalla Mansafdaran, Tyagi Bhawan, Dholpur (Raj.) since
deceased through :
1/1. Ajmer Singh
1/2. Jaiprakash
1/3. Santosh Kumar
1/4. Shanti
1/5. Manorama
1/6. Sharda
1/7. Rambati
All sons and daughters of Late Shri Lallu Bsant Singh, R/o
Mohalla Mansafdaran, Tyagi Bhawan, Dholpur (Raj.)
----Respondents-plaintiff
For Appellant(s) : Mr. B.L. Agarwal with
Mr. Abhishek Bidasra
For Respondent(s) : Mr. Anirudh Tyagi
Mr. Buddhi Prakash Meena
(Downloaded on 27/08/2022 at 11:15:13 PM)
(2 of 29) [CFA-125/1989]
HON'BLE MR. JUSTICE SUDESH BANSAL
JUDGMENT RESERVED ON: 18th August, 2022
JUDGMENT PRONOUNCED ON: 26th August, 2022
REPORTABLE:
1. This civil first appeal under Section 96 of Civil Procedure Code has been filed by appellant-defendant No.2 assailing the judgment and decree dated 19.09.1989 passed by the Court of Additional District Judge, Dholpur in Civil Suit No.36/1983 titled Lallu Basant Singh vs. Naseer Ahamd and another whereby and whereunder civil suit for specific performance of an agreement to sell dated 09.06.1978 has been decreed and defendant Nos.1 and 2 have been directed to execute the sale deed and hand over possession of the house in question to respondent-plaintiff, after receiving balance sale consideration of Rs.4,000/-.
2. Parties to the present appeal would be referred hereinafter with the same nomenclature as were called before the trial court i.e. appellant as defendant No.2, plaintiff as respondent No.1 and respondent No.2 as defendant No.1.
2.1 It may be noticed that during pedency of this first appeal, plaintiff and defendant No.2 have passed away and their legal heirs have come on record. As far as defendant No.1-Naseer Ahmad is concerned, initially he was party in the present first appeal as respondent No.2 but he died on 20.04.1995 and thereafter his name was sought to be deleted. Accordingly vide order dated 21.02.2011, the name of respondent No.2-Naseer Ahmad has been allowed to be deleted from the array of title page of the present appeal. Hence, at the time of deciding this first appeal, defendant No.1-Naseer Ahmad has died and is not party (Downloaded on 27/08/2022 at 11:15:13 PM) (3 of 29) [CFA-125/1989] to the present first appeal nor his legal representatives have come on record.
3. Facts of the case, in brief, are that;
3.1 The original plaintiff-Lallu Basant Singh instituted present civil suit for specific performance on 18.10.1979 stating inter alia that defendant No.1-Naseer Ahmad (died during pendency of appeal and name has been deleted vide order dated 21.02.2011) executed an agreement to sell dated 09.06.1978 to sell his house at Dholpur to plaintiff against sale consideration of Rs.12,000/- and, after receiving Rs.8,000/- as an advance, agreed to execute the sale deed within a period of one year after receiving balance sale consideration of Rs.4,000/- and also assured to hand over the possession of the house in question to plaintiff. 3.2 The plaintiff has admitted in the plaint that at the time of execution of sale agreement, portion of house was mortgaged with defendant No.2-Safdar Ali (presently appellant and now represented through legal heirs) and the possession of suit property was with defendant No.2 as mortgagee and there was one more another tenant in the suit property but the defendant No.1 had given an assurance to plaintiff that he would get redeem the property from mortgage and would hand over the vacant possession of the suit property to plaintiff. 3.3 Plaintiff further stated in the plaint that when defendant No.1 did not execute the sale deed within a period of one year, despite making demands from the side of plaintiff, he went to Firozabad to met with defendant No.1 and then defendant No.1 told that he has already executed sale deed dated 19.10.1978 in favour of defendant No.2, who was in possession as mortgagee in portion of suit property, and the defendant No.1 clearly denied to execute (Downloaded on 27/08/2022 at 11:15:13 PM) (4 of 29) [CFA-125/1989] the sale deed in favour of plaintiff pursuant to agreement dated 09.06.1978.
3.4 Then plaintiff alleges to serve a notice dated 21.09.1979 upon defendant No.1 as well as defendant No.2 and instituted the present suit on 18.10.1979.
3.5 Here it may be noticed that in para No.6 of plaint, the plaintiff has specifically pleaded that the sale deed dated 19.10.1978 executed by defendant No.1 in favour of defendant No.2 for the portion of suit property is a collusive sale deed and the same has been executed just to confiscate Rs.8,000/- of plaintiff, paid to defendant No.1 as an advance and therefore, the subsequent sale deed dated 19.10.1978 is null and void qua the plaintiff. But in the prayer clause of plaint, the plaintiff has not made a prayer for seeking declaration of the subsequent sale deed dated 19.10.1978 of defendant No.2 as null and void rather has prayed for issuing directions against defendant Nos.1 and 2, to execute the sale deed and hand over possession of the suit property to plaintiff, in performance of the agreement dated 09.06.1978.
3.6 The defendant No.1-Naseer Ahmad submitted his written statement on 24.05.1980 and categorically denied the execution of agreement dated 09.06.1978 as also denied to receive any amount of Rs.8,000/- from the plaintiff.
3.7 Defendant No.1 admitted in his written statement that the portion of the suit property was mortgaged to defendant No.2 against mortgage money of Rs.1500/- on 08.05.1970 and since then defendant No.2 has been remained in continuous actual possession of suit property, thereafter, he has entered into an agreement to sell dated 05.01.1977 with defendant No.2, (Downloaded on 27/08/2022 at 11:15:13 PM) (5 of 29) [CFA-125/1989] agreeing to sell the mortgaged portion to defendant No.2, excluding one eastern side room and southern side chowk, against a total sale consideration of Rs.14,000/-. The defendant No.1 contended that he has received Rs.10,000/- (Rs.8500/- cash + Rs.1500/- amount of mortgaged money adjusted), from defendant No.2 on 05.01.1977 against the agreement and later on has received remaining sale amount of Rs.4,000/- and thereafter, has executed a registered sale deed dated 19.10.1978 in favour of defendant No.2. He contended that according to inter se agreement between them, one room and chowk has been redeemed from mortgage and possession of defendant No.2 over the rest portion is continuous but after sale deed in his favour, the possession of defendant No.2 has converted into the capacity of real owner.
3.8 Defendant No.1 also contended in his written statement that he was residing in Firozabad but fell sick, therefore, his brother Ahamd Khan took him to Dholpur and during his ailment period, he obtained signatures of defendant No.1 on some blank papers, in order to get execute a power of attorney in his favour. At that time, plaintiff was present with his brother Ahamd Khan and some previous money transaction was pending between them, so it appears that plaintiff has prepared the agreement dated 09.06.1978 in his favour having collusion with Ahmad Khan (brother of defendant No.1). Thus, defendant No.1 denied the agreement to sell in question in favour of plaintiff and prayed for dismissal of the suit for specific performance. 3.9. Defendant No.2-Safdar Ali (present appellant, now deceased and represented through his legal heirs) submitted his original and separate written statement on 02.08.1980 and, thereafter (Downloaded on 27/08/2022 at 11:15:13 PM) (6 of 29) [CFA-125/1989] submitted an amended written statement on 22.04.1985. It was categorically contended by defendant No.2 that plaintiff had animosity with him and criminal cases remained pending between them for many years. Ahmad Khan (brother of defendant No.1) also had enmity with him, therefore, it appears that plaintiff and Ahmad Khan have entered into collusion and prepared this forged agreement dated 09.06.1978, just to drag the defendant No.2 in litigation and to grab his property. Defendant No.2 contended that in fact, it was well within the knowledge of plaintiff that the portion of suit property is in actual possession and already mortgaged with him. Nevertheless, he entered into an agreement with defendant No.1 to purchase the mortgaged portion. Hence, his agreement is not bona fide and fair.
3.10 The defendant No.2 further contended that as a matter of fact, since the major portion of suit property was already mortgaged with him, therefore, defendant Nos.1 and 2 had entered into an inter se agreement on 05.01.1977, to sell the mortgaged property, excluding one room and chowk against sale consideration of Rs.14,000/- inclusive of mortgaged money of Rs.1500/-. He contended that on 05.01.1977, he paid an amount of Rs.8500/- cash to defendant No.1 and also adjusted his mortgaged money of Rs.1500/- against sale consideration thus, the defendant No.1 had received Rs.10,000/- as advance out of agreed total sale consideration of Rs.14,000/- and, thereafter, he paid balance sale amount of Rs.4,000/- to defendant No.1 and got executed the registered sale deed dated 19.10.1978. 3.11 Defendant No.2 contended in his written statement that the defendant No.1 has assured him that he has not executed any sale agreement in relation to suit property in favour of any other (Downloaded on 27/08/2022 at 11:15:13 PM) (7 of 29) [CFA-125/1989] person, before the execution of the sale deed dated 19.10.1978 in his favour and thus, the defendant No.2 is bona fide purchaser of the property in question in good faith for value without notice to the alleged agreement of plaintiff. He also contended that the present suit filed by plaintiff is contrary to the provisions of the Contract Act and the Specific Relief Act and therefore, deserves to be dismissed with costs.
4. Learned trial court, as per rival pleadings of parties framed following issues:-
"(1). Whether defendant No.1 executed agreement dated 09.06.1978 to sell the property described in para No.1 of the plaint and received Rs.8,000/- as advance from the plaintiff against sale consideration of Rs.12,000/- and agreed to register the sale deed within a period of one year in favour of plaintiff?
(2). Whether the plaintiff has been ready and willing to pay the remaining sale consideration as per the agreement dated 09.06.1978 and for specific performance of agreement?
(3). Whether the plaintiff is entitled for execution of the sale deed by seeking specific performance of the agreement dated 09.06.1978, after making payment of remaining consideration of Rs.4,000/- to defendant? (4). Whether the agreement to sell is not admissible in evidence?
(4-A). Whether defendant No.2 is bona fide purchaser of suit properties in good faith and without notice, if yes what is its effect on the present suit?
(5). What would be the relief?"
5. Plaintiff produced himself as PW-1 and produced his witnesses Nathhi Lal and Mahendra Singh as PW-2 and PW-3 respectively and exhibited documents, sale agreement dated (Downloaded on 27/08/2022 at 11:15:13 PM) (8 of 29) [CFA-125/1989] 09.06.1978 as Exhibit-1, notices issued prior to institution of suit, postal receipts, certified copy of subsequent sale deed dated 19.10.1978 and copy of judgment dated 06.02.1981 passed in criminal case of Safdar Ali vs. Basant Singh.
5.1 In rebuttal, defendant No.1 examined himself as DW-1. Defendant No.2 examined himself as DW 2-1 and produced one witness Abid Ali as DW 2-2 and also exhibited agreement dated 05.01.1977 (Exhibit-A2), original mortgage deed dated 08.05.1970, judgment dated 29.06.1976 in case of Safdar Ali Versus Gaffur and another judgment in case of Safdar Ali vs. Basant Singh etc.
6. Learned trial court, after hearing learned counsel for both parties, decided issue Nos.1 and 2 in favour of plaintiff and decided issue No.4 and 4-A against defendant and consequently, while deciding issue No.3, granted decree for specific performance in favour of plaintiff and finally the suit has been decreed against defendant Nos.1 and 2 vide judgment dated 19.09.1989. 6.1 The instant first appeal has been preferred by defendant No.2 who is the subsequent purchaser and in possession of suit property, impugning the judgment and decree dated 19.09.1989.
7. Heard counsel for both parties, perused the impugned judgment and scanned the record as a whole.
8. Before dealing with the issues involved in the present appeal and before discussing the evidence on record, it is noteworthy that the learned trial court before passing the decree for specific performance in favour of plaintiff, has nowhere discussed the provision of Section 20 of the Specific Relief Act, 1963 and has not adhered to the judicial precedent, expounding a proposition of law that the jurisdiction to pass a decree for specific performance is (Downloaded on 27/08/2022 at 11:15:13 PM) (9 of 29) [CFA-125/1989] discretionary and the court is not bound to grant such relief merely because it is lawful to do so. It has also been expounded that the discretion by the court should not be exercised arbitrarily but should be guided by the sound and reasonable judicial principles and further such exercise of discretion is capable of correction by the Court of appeal.
9. It is no more res integra that in the suit for specific performance, there are several other factors required to be considered apart from proving the execution of agreement and readiness and willingness to perform the respective part of performance by the parties. It is settled that while exercising discretion by the court for passing a decree of specific performance, the court should take into consideration the entire conspectus of circumstances of the case, the conduct of parties, their respective interest under the contract, how to maintain balance of equities and hardship between the parties, nature of agreement whether it is equal and fair etc. None of these factors have been taken into consideration by the trial court, before passing the decree for specific performance in favour of plaintiff. There is not a whisper in the impugned judgment about taking into consideration on the above stated factors and applying its judicial mind, therefore, the impugned judgment of trial court, on the face value, stands erroneous and fallible on this Count.
10. In this context, few of the judgments of Hon'ble Supreme Court where ratio decidendi has been expounded with regard to the discretionary and equitable nature of the relief of specific performance and it has been held that the court is not bound to grant decree for specific performance merely because it is lawful to do so and the direction be exercised judiciously and reasonably, (Downloaded on 27/08/2022 at 11:15:13 PM) (10 of 29) [CFA-125/1989] after considering all relevant factors are required to be referred hereunder:-
10.1 In case of N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao and others reported in [(1995) 5 SCC 115] the Hon'ble Supreme Court has held as under:-
"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short, 'the Act'). Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness (Downloaded on 27/08/2022 at 11:15:13 PM) (11 of 29) [CFA-125/1989] and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract."
(emphasis supplied) 10.2 In case of K.N. Narendra vs. Riviera Apartments (P) Ltd. Reported in [(1999) 5 SCC 77] the Hon'ble Supreme Court has held as under:-
"29. Section 20 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; 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. 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 unforseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David and others vs. Louis Chinnaya Arogiaswamy and other [AIR 1996 SC 2814] 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."(Downloaded on 27/08/2022 at 11:15:13 PM)
(12 of 29) [CFA-125/1989]
(emphasis supplied)
10.3 In case of Inderchand Jain vs. Motilal reported in
[(2009) 14 SCC 663], the Hon'ble Supreme Court has held as under:-
"25. For the purpose of obtaining a decree for specific performance of contract, the court must arrive at a conclusion that the plaintiff not only pleaded but also established his readiness and willingness to perform his part of contract throughout. Exercising the discretionary jurisdiction one way or the other having regard to Section 20(2)(b) would depend thereupon arriving at a finding of such fact. Balancing of interest would be necessary provided a suit is to be decreed and not when the suit is to be dismissed."
(emphasis supplied) 10.4 In case of Laxman Tatyaba Kankate vs. Taramati Harishchandra Dhatrak reported in [(2010) 7 SCC 717] the Hon'ble Supreme Court has held as under:-
"19. It will also be useful to refer to the provisions of Section 20 of the Act which vests the Court with a wide discretion either to decree the suit for specific performance or to decline the same. Reference in this regard can also be made to the case of Bal Krishna v. Bhagwan Das [(2008) 12 SCC 145], where this Court held as under:
"13. ........The compliance with the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiff's readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the (Downloaded on 27/08/2022 at 11:15:13 PM) (13 of 29) [CFA-125/1989] contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court.
14. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void."
(emphasis supplied) 10.5. The Hon'ble Supreme Court in case of Nanjappan vs. Ramasamy and another reported in [(2015) 14 SCC 341] has held as under:-
"11. Under Section 20 of the Specific Relief Act, grant of specific performance of contract is discretionary. Though the decree for specific performance is discretionary, yet the court is not bound to grant such a 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 of law and capable of correction by a court of appeal and should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of (Downloaded on 27/08/2022 at 11:15:13 PM) (14 of 29) [CFA-125/1989] the Act. The jurisdiction of decreeing specific performance is a discretion of the court and it depends upon facts and circumstances of each case. The court would take into consideration circumstances of each case, conduct of the parties, recitals in the sale agreement and the circumstances outside the contract have to be seen.
12. In Sardar Singh vs. Smt. Krishna Devi & Anr. [(1994) 4 SCC 118], this Court observed that as the court has to see the totality of the circumstances, conduct of the parties and respective interests under the contract while granting/refusing such relief."
(emphasis supplied)
11. Keeping in mind the aforementioned principles of law, this Court is dealing with each and every issue, involved in the suit after taking into consideration the findings of the trial court, on those issues.
Issue No.1 12 This issue pertains to prove of the execution of agreement to sell dated 09.06.1978, as also regarding making payment of amount of Rs.8,000/- to defendant No.1 by the plaintiff. 12.1 To prove the execution of agreement to sell dated 09.06.1978 (Exhibit-1), the plaintiff has examined himself and has also produced one of the witnesses of agreement as PW-2 and one Mahendra Singh as PW-3 who is scriber of the agreement. PW-1 has deposed that agreement to sale dated 09.06.1978 is Exhibit-1 which was written by Mahendra Singh Tyagi. He deposed that Naseer Ahmad (defendant No.1) signed this agreement under his presence on A to B, C to D, E to F. Tej Singh and Nathhi Lal made (Downloaded on 27/08/2022 at 11:15:13 PM) (15 of 29) [CFA-125/1989] their signatures as witnesses on this agreement. Signatures of witness Tej singh are G to H, J to K and L to M. Signatures of witness Nathhi Lal on this agreement are O to P, R to S and T to U. In cross-examination, the evidence of PW-1 in relation to execution of agreement to sell has not impeached. PW-2 Nathhi Lal has also proved the execution of agreement and PW-3 Mahendra Singh has corroborated the factum of execution of agreement.
12.2 The defendant No.1 (DW-1) admits his signature on the agreement in question at place A to B, C to D and E to F but he stated that signatures were obtained on blank papers. The defendant No.1 contended in his written statement that the signatures were obtained by his brother Ahamd Khan on blank plain papers whereas in his evidence, he stated that signatures were obtained on the blank stamp papers.
12.3 On perusal of the agreement (Exhibit-1) it nowhere reveals that signatures of defendant No.1 were taken on blank stamp papers. The trial court has noticed that on first two pages of agreement written on stamp papers, the signatures of defendant No.1 find place at bottom whereas on third page of agreement, his signatures are in middle of page where the agreement has come to an end. Thus, apparently agreement appears to genuinely executed in normal course. There is no evidence from the side of defendant to prove that this agreement Exhibit-1 is a forged and prepared document by using the signatures of defendant No.1 on blank stamp papers. Defendant No.1 admits in his cross- examination that he was in Dholpur at the time of execution of this agreement. Defendant No.1 has not given any clarification that if his signatures were obtained on blank papers to prepare (Downloaded on 27/08/2022 at 11:15:13 PM) (16 of 29) [CFA-125/1989] the power of attorney, why he had not inquired about that power of attorney later on. The trial court has noticed that the statements of plaintiff and his witnesses are in corroboration to each other and there are no contradictions. The trial court also observed that it seems unnatural and unrealistic that defendant No.1 would made signatures on the blank stamp papers. 12.4 The probability of circumstances go to show that agreement to sell in question was executed by defendant No.1. 12.5 As far as payment of Rs.8,000/- is concerned, the defendant No.1 clearly denies to receive any amount of Rs.8,000/-, whereas plaintiff and his witness stated to make payment of amount of Rs.8,000/- on 09.06.1978 itself in cash at the time of agreement. There is no other corroborative evidence from the side of plaintiff that how and from where he arranged the cash money of Rs.8,000/-, nor any details of his bank account or other books of account have been produced on record to show that he had an amount of Rs.8,000/- cash in hand at that point of time in the year 1978. There is no separate receipt for proving payment of this amount, therefore, actual transaction of money of Rs.8,000/- in cash between plaintiff and defendant is not proved. Nevertheless the execution of agreement stands proved. Thus, the issue No.1 is decided accordingly, partly in favour of plaintiff. Issue No.2 13 Issue No.2 is related to readiness and willingness of plaintiff for specific performance of the agreement dated 09.06.1978. 13.1 In issue No.1, Court has come to a conclusion that actual payment of Rs.8,000/- cash by the plaintiff to defendant No.1 is not proved however, as per terms of agreement, the balance sale amount of Rs.4,000/- was to be paid by the plaintiff and (Downloaded on 27/08/2022 at 11:15:13 PM) (17 of 29) [CFA-125/1989] thereafter, sale deed was to be executed by defendant No.1 within a period of one year. Plaintiff has not produced any document on record to show that he paid balance sale amount of Rs.4,000/- to the defendant No.1 within a period of one year. His oral statements that he offered the balance sale amount of Rs.4,000/- to defendant No.1 have been clearly denied by the defendant No.1. The plaintiff (PW-1), in his cross-examination, stated that one Rameshwar Sharma son of Shekhpur Gajraj accompanied him when plaintiff went to Firozabad to offer balance sale amount of Rs.4,000/- to defendant No.1 but defendant No.1 refused to accept the same. The plaintiff has not produced this person (Rameshwar Sharma) in support of his evidence, who is said to be his friend. The defendant No.1 (DW-1), in his evidence, has categorically denied that plaintiff ever offered the amount of Rs.4,000/- or ever visited to Firozabad for making payment of balance sale amount and asking for the execution of the sale deed. In that situation, if the defendant No.1 refused to accept the amount of Rs.4,000/-, plaintiff could have sent the amount either by way of money order or by adopting other ways to complete his part of performance at least, within a period of one year, as stipulated in the agreement. Further the plaintiff has not shown even that he was having Rs.4,000/- cash during that period with him or was in capacity to make the payment.
13.2 The legal notice dated 21.09.1979 has been issued by the plaintiff after expiry of the stipulated period of one year and with notice also no amount has been sent. The plaintiff himself admits and it is also indicated in the agreement, that the suit property was in possession of the defendant No.2 as mortgagee and with other tenants and sale deed was agreed to be executed after (Downloaded on 27/08/2022 at 11:15:13 PM) (18 of 29) [CFA-125/1989] vacation of the suit property by the mortgagee and tenant. There is no evidence from the side of plaintiff that he persuade the defendant No.1 in this regard or ask to the mortgagee-defendant No.2 to vacate the suit premises. The contention of plaintiff that he was agreed to get the sale deed registered, without vacation of suit premise, travels beyond the terms of agreement. 13.3 The requirement aver and prove the readiness and willingness as stipulated under Section 16 (c) of the Specific Relief Act, 1963 is essential and mandatory. Though no strait jacket formula is prescribed in law as how this requirement is to be proved yet it is to be examined in the facts and circumstances of each case. The conduct of parties, pre and post to the agreement, is a relevant consideration, which is to be taken into account while deciding the issue of readiness and willingness. In support of proof of this issue, plaintiff has not produced any other supportive evidence, except deposing his own statement that he offered cash amount of Rs.4,000/- twice or more times to defendant No.1 which is clearly denied by the defendant No.1 in his evidence. So this part of evidence is oath against oath and sole statement of plaintiff are not suffice. The plaintiff has no where shown that he was having sufficient means to pay Rs.8,000/- earlier alleged to be paid by him and then Rs.4,000/-. It seems sucpicious that plaintiff paid Rs.8,000/- and was ready to pay Rs.4,000/- cash to defendant No.1, without getting any possession of any part of suit property. The plaintiff has not produced the best evidence available with him and his animosity with defendant No.2 is well proved and admitted fact. So bona fides are lacking on the part of plaintiff and probability goes against him. Later on, the overall conduct of plaintiff and circumstances of the present case, does (Downloaded on 27/08/2022 at 11:15:13 PM) (19 of 29) [CFA-125/1989] not warrant to decide the issue No.2 in favour of plaintiff. The trial court fell in error of fact and law in deciding the issue No.2 in favour of plaintiff, solely on the basis of his oral evidence and without considering the other relevant aspect of the matter, as referred and discussed hereinabove. The evidence of plaintiff lacks to prove this issue and findings of trial court are based on surmises and conjectures. Therefore, the findings of issue No.2 are liable to be reversed and the issue No.2 is decided against plaintiff.
Issue No.3 14 This issue is in relation to entitlement of plaintiff to seek decree of specific performance of agreement dated 09.06.1978. This issue would be discussed and decided after deciding the issue No.4-A. Issue No.4 15 The issue No.4 arises out of the objection by defendant about admissibility of the agreement in question (Exhibit-1). The trial court, vide its order dated 03.01.1985, rejected the objection of defendant regarding inadmissibility of the agreement in question due to insufficient stamp and received the agreement in evidence and maked exhibit on it. The order dated 03.01.1985 has not been assailed by the defendant further and has attained finality. During the course of hearing of this appeal, counsel for appellant-defendant No.2 has not pressed this issue, which has already been decided by the trial court against defendant. Hence, the decision of trial court on issue No.4 requires no interference. Issue No.4-A 16 This issue was framed on the plea of defendant No.2 that he is bona fide purchaser for value without notice. This is an (Downloaded on 27/08/2022 at 11:15:13 PM) (20 of 29) [CFA-125/1989] undisputed fact that prior to institution of the present suit for specific performance on 18.10.1979, the defendant No.1 had executed registered sale deed dated 19.10.1978 in favour of defendant No.2, to sell the portion of suit property which was admittedly mortgaged with defendant No.2, excluding one eastern side room and southern side chowk. The plaintiff, in para No.6 of the plaint, admits execution of sale deed dated 19.10.1978, however, has pleaded that the sale deed dated 19.10.1978 was executed, subsequent to his agreement to sale deed dated 09.06.1978 and is a collusive document, therefore, be declared as null and void qua the rights of plaintiff. Neither any such prayer has been made in the plaint nor any evidence has been adduced by plaintiff to prove such pleadings. Be that as it may, as per plaintiff, the sale deed dated 19.10.1978 is subsequent to his sale agreement dated 09.06.1978, therefore, his right for specific performance of agreement dated 09.06.1978 does not adversely affect by execution of subsequent sale deed dated 19.10.1978. But in this regard, Section 19 (b) of Specific Relief Act, 1963 provides a protection to the subsequent transferee, who is transferee for value in good faith and without notice to the original contract. The trial court has decided this issue in a very slipshod manner, without discussing the evidence as a whole available on record, just by placed reliance on the judgment of Vadu versus UK Chand reported in [(1982) RLW 256]. There is no quarrel about the proposition of law as given out in this judgment that the burden of proof always lies upon the subsequent transferee that subsequent transfer is bona fide and for consideration, without notice. The trial court has decided this issue against defendant (Downloaded on 27/08/2022 at 11:15:13 PM) (21 of 29) [CFA-125/1989] No.2 by drawing an adverse inference, without noticing the evidence on record.
16.1 Learned counsel for appellant-defendant No.2 has drawn attention of this Court to the statements of defendant No.2 (DW 2-1). In evidence of defendant No.2, he has deposed that defendant No.1 mortgaged the portion of suit property and mortgage deed dated 08.05.1970 has been exhibited as Exhibit- A3. He deposed that later on defendant No.1 executed an agreement to sell in his favour dated 05.01.1977 to sell the mortgaged property against sale consideration of Rs.14,000/- inclusive amount of Rs.1500/- of mortgaged money. The agreement to sell dated 05.01.1977 was exhibited as Exhibit-A2. He deposed that Rs.8500/- was paid and Rs.1500/- of mortgage money was adjusted at the time of agreement, thus Rs.10,000/- was paid as advance to defendant No.1 against sale consideration of Rs.14,000/-. Thereafter, at the time of execution of sale deed dated 19.10.1978 (Exhibit-A3) Rs.4000/- were paid to defendant No.1 and sale deed was got executed. Defendant No.1 (DW-1) in his evidence admits to receive Rs.14,000/- from defendant No.2 after adjustment of mortgaged money of Rs.1500/-. Thus, the payment of Rs.14,000/- by defendant No.2 to defendant No.1 against execution of sale deed in his favour, is proved and not in dispute at all. It has come on record that out of suit property, a portion marked अ, ब, स, द was excluded in the sale deed. Defendant No.2 has clearly deposed that the agreement dated 05.01.1977 was in the knowledge of plaintiff-Basant Singh. Yet plaintiff-Basant Singh got prepared the agreement for the entire suit property in his favour. He deposed that before execution of his sale deed Exhibit-A3, Basant Singh never gave any notice to him. The (Downloaded on 27/08/2022 at 11:15:13 PM) (22 of 29) [CFA-125/1989] defendant No.2 has clearly denied the plaintiff's agreement dated 09.06.1978 in his written statement itself. In that scenario, there is no reason to lead the evidence by him that he had no notice of sale agreement in favour of plaintiff. The trial is wholly perverse in drawing an adverse inference against defendant No.2, due to non- deposing his evidence to this effect that defendant No.2 had no knowledge about sale agreement of plaintiff dated 09.06.1978 before purchasing the suit property through sale deed dated 19.10.1978. When the defendant No.2 has clearly deposed and denied the execution of agreement to sell dated 09.06.1978 itslef, the trial court is wholly wrong in drawing such an adverse inference against defendant No.2. The trial court has not adverted to the fact that the plaintiff himself has admitted animosity with defendant No.2 and documentary evidence is also available on record that criminal litigation between them remained pending for many years. The judgment dated 06.02.1981 (Exhibit-A4) is available on record to show that one criminal case was pending between parties at that point of time. It is wrong on the part of the trial court to observe that plaintiff (PW-1) was not cross- examined by defendant No.2 on this point. From cross- examination of PW-1, it reveals that PW-1 was cross-examined with a suggestive question that defendant No.2-Safdar Ali had already told him about having an agreement dated 05.01.1977 in his favour. Only oral statements of PW-1 that the defendant No.2 had knowledge about his sale agreement dated 09.06.1978, before getting execution of sale deed dated 19.10.1978, is not suffice.
16.2 In the present case, defendant No.2 who is subsequent transferee, has discharged his burden. Considering the overall (Downloaded on 27/08/2022 at 11:15:13 PM) (23 of 29) [CFA-125/1989] conspectus of circumstances, there is no reason to infer that defendant No.2 should have hold any inquiry from plaintiff about his sale agreement. Rather, the circumstances itself speak that defendant No.2 was in actual and physical possession over the suit property, when the plaintiff entered into the agreement in question to purchase the suit property from defendant No.1. 16.3 In such peculiar facts, the concept of bona fide and good faith on the part of defendant No.2, should be examined comparatively. The trial court fell in error in drawing an adverse inference against defendant No.2. The probability of circumstance go to show that defendant No.2 acted in good faith, in purchasing the suit property for value through registered sale deed, which was already in his possession as mortgagee. The payment of Rs.14,000/- by defendant No.2 to defendant No.1 against sale deed in his favour is not in dispute and also an admitted fact, hence requires no further proof. On the contrary, the plaintiff despite of having knowledge about the possession of defendant No.2 over the portion of suit property and despite having pending criminal litigation with defendant No.2, if entered into agreement to purchase the suit property from defendant No.1 bona fides lacks on part of plaintiff. The plaintiff could not prove making payment of Rs.8,000/- to defendant No.1 in cash at the time of his agreement. The plaintiff also remained fail to prove making payment of remaining sale amount of Rs.4,000/- within stipulated period of one year. The agreement to sell in question is an unregistered document. The trial court has not adverted its attention to all these aspects of the matter.
16.4 The Supreme Court in case of Padmakumari and others vs. Dasayyan and others reported in [(2015) 8 SCC 695] (Downloaded on 27/08/2022 at 11:15:13 PM) (24 of 29) [CFA-125/1989] dealt with the provisions of Section 19 (b) of the Specific Relief Act. In the facts of that case, where the plaintiff entered into an unregistered agreement to sell with defendant but failed to make the balance sale amount within stipulated period prescribed in the agreement and the defendant sold the property to another purchaser, in that situation, protection of Section 19 (b) of the Specific Relief Act was extended to the subsequent purchaser. The ratio decidendi squarely applicable to the facts of present case also.
16.5 In the present case at hand, plaintiff's sale agreement is an unregistered document and plaintiff undisputedly did not make due payment out of agreed sale consideration to the defendant No.2 within a stipulated period of one year, rather even could not prove to make payment of Rs.8,000/- cash money to defendant No.1. In view of undisputed fact that the agreement of plaintiff is unregistered, by no stretch of imagination, it can be assumed that defendant No.2 could have knowledge about such unregistered agreement more particularly, when the vendor also admits that he never entered into an agreement to sell with plaintiff. The defendant No.1 has deposed his evidence favouring to defendant No.2, to prove the bona fides on the part of defendant No.2. There is not evidence of collusion between defendant No.1 and defendant No.2 on record. Defendant No.2 (DW 2-1) has clearly deposed that vendor-defendant No.1 clearly denied to have any previous agreement to sell with regard to the suit property with any person and defendant No.1 also denied the sale agreement in favour of plaintiff. Thus, it stands established that defendant No.2 purchased the portion of suit property through registered sale (Downloaded on 27/08/2022 at 11:15:13 PM) (25 of 29) [CFA-125/1989] deed dated 19.10.1978 for value in good faith and with all bona fides.
16.6 In view of discussion made hereinabove, the findings of the trial court passed in relation to issue No.4A against defendant No.2 are not sustainable and moreover the manner in which the trial court has decided this important issue, without taking into consideration the entire facts and circumstances and the material on record, cannot be countenanced. The findings of trial court are cryptic and perverse. Thus, the findings of issue No.4A are set aside. Issue No.4-A is decided in favour of defendant No.2.
17. Now coming back to issue No.3 as to entitlement of plaintiff for the decree of specific performance. In issue No.1, plaintiff has proved the execution of agreement to sell in his favour, but issue No.2 relating to readiness and willingness has been decided against the plaintiff. The trial court has not considered the other relevant factors which are required to be taken into account before passing of a decree for specific performance.
18. In the opinion of this Court, it has come on record and when it is undisputed that plaintiff and defendant No.2 were having animosity and a criminal litigation was going on between them, it cannot be held that plaintiff entered into agreement to sell with defendant No.1 fairly and with bona fides when admittedly to the suit property, was already in physical possession of defendant No.2. The plaintiff stated to pay Rs.8,000/- only out of total sale consideration of Rs.12,000/- but the same has also not held prove. Yet even assuming for a moment that merely making payment of such amount to defendant No.1, even if paid, this fact only does not create any equity in favour of plaintiff. It is not that case where the plaintiff has got possession of any part of suit (Downloaded on 27/08/2022 at 11:15:13 PM) (26 of 29) [CFA-125/1989] property from defendant No.1 or otherwise did any act or investment in any manner, so that he would suffer any hardship, in case the specific performance of the agreement to sell is not granted. On the contrary, the defendant No.2 who is already in possession over the suit property and has purchased the suit property for value in good faith through registered sale deed, would face a greater hardship by passing the decree for specific performance in favour of plaintiff.
19. As has already been discussed in the foregoing paragraphs that the decree of specific performance is a discretionary and equitable relief and the same should not be passed merely because it is lawful to do so. The trial court committed jurisdictional error in exercising its discretion in favour of plaintiff by passing a decree for specific performance, that too without considering the balance of interest, equities and hardship between parties to the present suit. Since this Court, while deciding the issue No.2, has reversed the findings of trial court and issue No.2 has been decided against plaintiff, therefore, there is no reason to sustain the decree for specific performance passed by the trial court in favour of plaintiff. The issue No.3 is decided against the plaintiff.
20. It is no more res integra that the first appellate court has power to reverse the fact findings of the trial court, if the appraisal of evidence by the trial court suffers from material irregularity or is based on surmises and conjectures. The High Court, while exercising its jurisdiction under Section 96 CPC in deciding first appeal, has powers to appreciate the evidence and to come on its own conclusion independent to that of the trial court's decision. The first appellate court has jurisdiction to reverse or affirm the (Downloaded on 27/08/2022 at 11:15:13 PM) (27 of 29) [CFA-125/1989] findings of the trial court. The first appellate court being the last court of facts, can re-consider the matter as a whole afresh but while reversing the findings of fact passed by the trial court, the appellate court must assign the reasons to reverse the findings of trial court and to record the findings of its own. Thus, in the first appeal, the entire case on facts and law is open to be examined by the first appellate court, obviously, taking into account the findings of the trial court. The jurisdiction and scope of interference with the findings of the trial court and either to affirm or reverse such findings, have been discussed in catena of judgments. Reference of Santosh Hazari Vs. Purushottam Tiwari [(2001)3 SCC 179] and Rathnavathi and another vs. Kavita Ganashamdas reported in [(2015) 5 SCC 223], and recent judgment of Supreme Court passed in case of Manjula and others vs. Shyamsundar and others reported in [(2022) 3 SCC 90] may be given in support of aforesaid proposition.
21. Before parting with the judgment, this Court also deems it just and proper to consider the argument raised by counsel for appellant in relation to illegality in granting decree for specific performance where the plaintiff has not sought cancellation of the sale deed made in favour of subsequent transferee, though the same looses its significance after the discussion made hereinabove.
22. Learned counsel for appellant-defendant No.2 has raised an argument that the plaintiff had an agreement to sell with defendant No.1 and it is admitted case that before filing of the suit for specific performance, defendant No.1 had sold the suit property to defendant No.2 by executing the registered sale deed but plaintiff has not prayed for cancellation/declaration of the sale (Downloaded on 27/08/2022 at 11:15:13 PM) (28 of 29) [CFA-125/1989] deed of defendant No.2 as null and void, therefore, he is not entitled for decree of specific performance. Firstly, now when this Court has observed that defendant No.2 is a bona fide purchaser for value without notice and he deserves protection under Section 19 (b) of the Specific Relief Act, the issue of asking for any cancellation/declaration of his sale deed as null and void does not arise. However, the proposition of law is well clear that in a suit for specific performance, it is not always necessary for the agreement holder to seek cancellation of the sale deed executed in favour of a subsequent purchaser. It is sufficient to implead the subsequent purchaser in the suit and seek relief of specific performance against original owner and also seek direction against the subsequent purchaser to join in the execution of the sale deed in order to completely convey title to the agreement holder. Such proposition of law has been expounded by Hon'ble Supreme Court in case of Lala Durga Prasad and another vs. Deep Chand and other reported in [AIR 1954 SC 75]. This judgment is recently followed by Supreme Court in case of P. Ramasubbamma v. V. Vijayalakshmi and others reported in [(2022) 7 SCC 384] and in case of Rathnavathi and another vs. Kavita Ganashamdas reported in [(2015) 5 SCC 223]. The Supreme Court in Lala Durga Prasad (supra) held as under:-
"42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by (Downloaded on 27/08/2022 at 11:15:13 PM) (29 of 29) [CFA-125/1989] the Calcutta High Court in Kafiladdin v. Samiraddin [1930 SCC OnLine Cal 46] and appears to be the English practice. See Fry on Specific Performance, 6 th edn., p. 90, Para 207; also Potter v. Sanders [(1846) 6 Hare 1]. We direct accordingly."
23. Thus, the argument in this regard, raised by counsel for appellant has no force of law.
24. This Court deems it just and proper to observe that an amendment has been introduced in the Specific Relief Act, 1963 by way of the Specific Relief (Amendment) Act, 2018 w.e.f. 01.08.2018. Learned counsel for both parties are in agreement that since the present civil suit has been instituted on 18.10.1979 much prior to the amendment came in force w.e.f. 01.08.2018, therefore, the present first appeal would govern by unamended provisions of the Specific Relief Act.
25. As a result, the first appeal is allowed. The impugned judgment and decree is quashed and the suit filed by respondent No.1-plaintiff is dismissed. No costs.
26. Record be sent back.
27. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J SAURABH/ (Downloaded on 27/08/2022 at 11:15:13 PM) Powered by TCPDF (www.tcpdf.org)