Karnataka High Court
K Ramesh Bhat vs Smt Meera on 13 July, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.2817 OF 2007(SP)
BETWEEN:
K. RAMESH BHAT
SINCE DEAD REP. BY LEGAL REPRESENTATIVES
1(a) SMT. NALINI
W/O LATE K. RAMESH BHAT
AGED ABOUT 75 YEARS.
1(b) MAMATHA
AGED ABOUT 51 YEARS.
1(c) SUREKHA
AGED ABOUT 49 YEARS.
1(d) SUDHINDRA
AGED ABOUT 45 YEARS.
1(e) SUDARSHAN
AGED ABOUT 42 YEARS.
1(f) SUJAYA R. BHAT
AGED ABOUT 39 YEARS
1(g) SUMANA N. RAO
AGED ABOUT 37 YEARS.
APPELLANT NO.1(a) IS THE WIFE AND
APPELLANTS 1(b) TO 1(g) ARE CHILDREN
OF LATE K. RAMESH BHAT,
ALL ARE R/AT: DEREBAIL, KONCHADY,
MANGALURU - 575 008.
... APPELLANTS
(BY SRI. M. SUDHAKAR PAI, ADVOCATE)
2
AND:
1. SMT. MEERA
W/O LATE EKANANDA
AGED ABOUT 66 YEARS.
2. NAVEEN
AGED ABOUT 52 YESRS.
3. PANDARINATH
AGED ABOUT 48 YEARS.
4. RAJESH KUMAR
AGED ABOUT 45 YEARS.
5. RAKESH KUMAR
AGED ABOUT 44 YEARS.
6. POORNIMA
AGED ABOUT 42 YEARS.
7. HITHESH
AGED ABOUT 41 YEARS.
8. ASHWATH
AGED ABOUT 40 YEARS.
9. ASHIWINI
AGED ABOUT 37 YEARS.
10. RAGHAVENDRA
AGED ABOUT 36 YEARS.
RESPONDENTS 2 TO 10 ARE CHILDREN OF
LATE EKANANDA (DEFENDANT)
ALL ARE R/AT NAGU SHETTY COMPOUND,
DEREBAIL, KONCHADI,
ASHOKNAGAR POST,
MANGALURU,
DAKSHINA KANNADA - 575 006.
... RESPONDENTS
(BY SRI. A. KESHAVA BHAT, ADVOCATE)
3
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE
AGAINST THE JUDGMENT AND DECREE DATED 22ND
AUGUST, 2007 PASSED IN REGULAR APPEAL NO.518 OF
2004 ON THE FILE OF THE FAST TRACK COURT,
MANGALURU, DAKSHINA KANNADA ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
04TH MARCH, 1998 PASSED IN ORIGINAL SUIT NO.175 OF
1997 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.
DN.), MANGALURU.
IN THIS REGULAR SECOND APPEAL ARGUMENTS
BEING HEARD, JUDGMENT RESERVED, COMING ON FOR
"PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT
DELIEVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff, challenging the judgment and decree dated 22nd August, 2007 passed in Regular Appeal No.518 of 2004 on the file of the Fast Track Court (for short, hereinafter referred to as 'First Appellate Court'), allowing the appeal filed by the defendant, by setting-aside the judgment and decree dated 04th March, 1998 passed in Original Suit No.175 of 1997 on the file of the Principal Civil Judge (Jr. Dn), Mangaluru (for short, hereinafter referred to as 'Trial Court'), wherein the suit filed by the plaintiff has been decreed. 4
2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court.
3. The plaint averments are that the plaintiff has entered into an Agreement for Sale dated 16th October, 1978 with the defendant, agreeing to purchase the suit schedule property for a consideration of Rs.1,000/-. It is the case of the plaintiff that the plaintiff had paid entire sale consideration to the defendant on the date of the execution of the Agreement for Sale and pursuant to the same, the defendant had delivered the vacant possession of the suit schedule property to the plaintiff along with title deeds. It is further averred that, due to financial crisis, the plaintiff was unable to get the Sale Deed registered in his favour on account of non-availability of funds to bear the registration expenses and accordingly, the aforementioned Agreement for Sale was extended from time to time by the mutual consent. It is the further case of the plaintiff that the defendant has made a demand for additional sale consideration and plaintiff has refused to pay the additional sum claimed by the defendant, resulting in issuing legal 5 notice dated 27th January, 1997 to the defendant and the said notice was returned as not served. Hence, the plaintiff has filed Original Suit No.175 of 1997 before the Trial Court against the defendant, seeking relief of specific performance of Agreement for Sale dated 16th October, 1978.
4. After service of summons, defendant entered appearance and has filed written statement denying the plaint averments and specifically contended that there is no Agreement for Sale dated 16th October, 1978 between the parties. Defendant has also denied the parting of possession of the suit schedule property in favour of the plaintiff, and accordingly, sought for dismissal of the suit.
5. On the basis of the rival pleadings, the Trial Court has formulated following issues for its consideration.
(1) Whether plaintiff proves that the defendant has entered into sale agreement dated 16.10.1978, agreeing to sell the suit property as contended ?
(2) Whether plaintiff proves that he has paid the sale consideration to the defendant on the date of execution of the sale agreement ? (3) Whether plaintiff proves that defendant has delivered vacant possession of suit property to him ?
6(4) Whether plaintiff prove that the defendant was postponing to execute the sale deed in his favour ?
(5) Whether the suit is barred by limitation ? (6) What Decree or order ?
6. In order to establish his case, the plaintiff was examined himself as PW1 and produced 14 documents, same were got marked as Exhibits P1 to P14. On the other hand, defendant was examined himself as DW1 and produced 12 documents, same were got marked as Exhibits D1 to D12.
7. The Trial Court, after considering the material on record, by its judgment and decree dated 04th March, 1998 decreed the suit of the plaintiff. Being aggrieved by the same, the defendant has preferred Regular Appeal No.518 of 2004 on the file of First Appellate Court. The said appeal was resisted by the plaintiff. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 22nd August, 2007, allowed the appeal and as such, the judgment and decree dated 04th March, 1998 passed by the Trial Court in Original Suit No.175 of 1997 was set-aside. Being aggrieved by the judgment and 7 decree passed by the First Appellate Court, the appellant/plaintiff has preferred this Regular Second Appeal under Section 100 of Code of Civil Procedure. This Court, by order dated 01st August, 2008, formulated the following Substantial questions of law:
"1) Whether in the facts and circumstances of the case the appellate court was justified in reversing the judgment and decree passed by the trial court on the ground mulgeni rights cannot be conveyed ?
2) Whether in the facts and circumstances of the case the appellate court was justified in holding that the suit is barred by limitation ?
8. Heard Sri. M. Sudhakar Pai, learned counsel appearing for the appellant/plaintiff and Sri. A. Keshava Bhat, learned counsel appearing for respondent/defendant.
9. Sri. M. Sudhakar Pai, learned counsel for the appellant argued that, originally, the suit schedule property was belonged to one Sri. Bhaskar Shenoy and the defendant has purchased the same as per the registered Sale Deed dated 11th November, 1968 for a sum of Rs.500/-. Thereafter, the defendant sold the very same property in favour of one Sri. Narayana Prabhu as per registered Sale Deed dated 14th May, 1969 for a 8 consideration of Rs.1,000/- . Subsequently, the defendant has purchased the said property from Sri. Narayana Prabhu as per registered Sale Deed dated 22nd September, 1973 for consideration of Rs.1,000/-. It is the further case of the plaintiff that the defendant was in need of funds and as such, entered into an Agreement for Sale on 16th October, 1978 and on the date of execution of Agreement for Sale, the plaintiff has paid entire sale consideration of Rs.1,000/- to the defendant. In turn, the defendant has handed over the possession of the suit schedule property to the plaintiff. It is the contention of Sri. M. Sudhakar Pai, learned counsel appearing for the appellant that, after the execution of the Agreement for Sale, the plaintiff has put-up fence and developed the property in question. He emphasized that the registered Sale Deed was not executed on account of financial constraints on the part of the plaintiff within a reasonable period and as such, the time was extended periodically and finally, the defendant refused to execute the registered Sale Deed. Hence, the plaintiff has issued legal notice to the defendant on 27th January, 1997. He further contended that the defendant, deliberately avoided 9 to receive the legal notice and same came to be returned to the plaintiff. Narrating the factual aspects on record, Sri. M. Sudhakar Pai, learned counsel argued that the Trial Court, after considering the material on record, has rightly decreed the suit with cogent reasons, however, same was interfered with by the First Appellate court on erroneous re- appreciation of evidence and accordingly, sought for interference of this Court.
10. Sri. M. Sudakar Pai, learned counsel appearing for the appellant argued that, in furtherance of the Agreement for Sale, the defendant delivered the possession of the suit schedule property along with original documents. He further contended that the finding recorded by the First Appellate Court that the plaintiff has failed to prove the execution of the Agreement for Sale is contrary to evidence. Referring to the evidence of DW1, Sri. M. Sudhakar Pai, learned counsel pleaded that there is no specific evidence regarding denial of execution of Agreement for Sale by the defendant. He further contended that, DW1 admits his signature on Exhibit P2(a) as well as on Exhibit P14(a), however, denied the signature 10 on Exhibit P1 and in that view of the matter, the defendant ought to have sought for handwriting expert on the signature found at Exhibit P1. Though the defendant has raised plea of forging the signature on Exhibit P1, the defendant has not resorted to prove his fact of not signing the Exhibit P1, is contrary to evidentiary value and in this regard, learned counsel appearing for the appellant places reliance on the judgment of this Court in the case of S.B. ITTIGI AND ANOTHER vs. S.V. SULOCHANA AND OTHERS reported on 2007(2) KCCR 1055 (DB).
11. Per contra, Sri. A. Keshava Bhat, learned counsel appearing for the respondent/defendant submitted that the appellant/plaintiff has not proved the Agreement for Sale in a manner known to law. He further contended that there was no impediment for the plaintiff to prove the signature of the witnesses in the Agreement for Sale, as the defendant has pleaded that the Agreement for Sale is fraud and a created document. It is further submitted that the plaintiff ought to have pleaded and prove the readiness and willingness on his part in a suit for specific performance and in absence of the same, the Trial Court has committed an 11 error in decreeing the suit. Sri. Keshava Bhat, learned counsel appearing for the respondent further submitted that, even if assume that the Agreement for Sale has been executed, however, the legal notice was apparently issued beyond the limitation period. He also, refers to the finding recorded by both the Courts below and argued that there is no pleadings in the plaint relating to readiness and willingness, and accordingly, sought for dismissal of the appeal. He also refers to the Exhibit P1 and argued that there are variance in signature on Agreement for Sale and signature on loose sheets attached to the Exhibit P1, referring to the extension of period would makes it clear that the Exhibit P1 is a Sham document and created for the purpose of knocking out of the suit schedule property from the defendant. Referring to the finding recorded by the First Appellate Court, Sri. Keshava Bhat, learned counsel submitted that the First Appellate Court in thread bear gone into the evidence and pleadings on record and as such, arrived at a conclusion that the plaintiff is not entitled for discretionary remedy for relief of specific performance on account of not proving the Agreement for Sale. 12 Accordingly, he sought for dismissal of the Appeal. To buttress, his arguments, Sri. Keshava Bhat, learned counsel refers to the judgment of Hon'ble Apex Court in the case of JUGRAJ SINGH AND ANOTHER vs. LABH SINGH AND OTHERS reported in (1995) 2 SCC 31 and in the case of MANJUNATH ANANDAPPA URF SHIVAPPA HANSI vs. TAMMANASA AND OTHERS reported in AIR 2003 SC 1391. Placing the reliance on the aforementioned judgments, Sri. Keshava Bhat, learned counsel argued that the appeal deserves to be dismissed on merits.
12. Heard the learned counsel appearing for the parties and perused the records. It is the case of the plaintiff that the plaintiff has entered into an Agreement for Sale dated 16th October, 1978 to purchase the property in question with the defendant and has paid total consideration of Rs.1,000/- to the defendant. It is further stated that the defendant has delivered the possession of the property in question in pursuance of the Agreement for Sale. Having taken note of the arguments advanced by learned counsel appearing for the parties, I have carefully examined the pleadings in the plaint with regard to 13 readiness and willingness on the part of the plaintiff to complete the sale proceedings. It is undisputable fact that, no averments have been made by the plaintiff with regard to readiness and willingness to complete the execution of the Sale Deed in furtherance of the Agreement for Sale. I have also examined the Agreement for Sale (Exhibit P1). Though the said agreement was executed on 16th October, 1978 as per the averments made in the plaint, endorsements dated 10th October, 1979, 16th October, 1981, 01st October, 1984, 10th September, 1987, 08th September, 1990 and 10th August, 1993 do not contain the similar signature made as first two sheets of the agreement for sale. I have also noticed that the stamp paper was purchased in the name of one Sri. K. Babu Salian Konaje for Vijaya Bank Limited, Konaje and further even assume for a sake of argument that the Agreement for Sale dated 16th October, 1978 (Exhibit P1) is executed, the plaintiff has approached the Trial Court after an inordinate delay of beyond 15 years, and therefore, the suit is liable to be dismissed on the ground of limitation. Taking into consideration the endorsements referred to above, I am of 14 the view that the finding recorded by the First Appellate Court is just and proper, which do not call for any inference in this appeal. That apart, the stamp paper is not purchased either in the name of the plaintiff or the defendant and further no independent witness was examined by plaintiff to prove the Exhibit P1. Therefore, I find force in the submission made by learned counsel appearing for the respondent/defendant that the alleged document cannot be given effect to for granting relief of specific performance.
13. Nextly, having taken note of the averments made in the plaint, as there is no pleading with regard to the readiness and willingness and further the plaintiff has not proved the readiness and willingness on his part through the cogent evidence before the Trial Court, the finding recorded by the First Appellate Court is just and proper. At this juncture, it is relevant to follow the law declared by the Hon'ble Apex Court in the case of C.S. VENKATESH vs. A.S.E. MURTHY (DEAD) BY LEGAL REPRESENTATIVES reported in (2020) 3 SCC 280. Paragraphs 14 to 19 reads as under:
15"14. It is settled that the real character of the transaction has to be ascertained from the provisions of the documents viewed in the light of surrounding circumstances. Since two documents were executed on the same day, the transaction cannot be a mortgage by way of conditional sale in view of the express provisions contained in Section 58(c) of the Transfer of Property Act, 1882. A perusal of the recitals contained in the sale deed at Exhibit P-8 shows that the property was agreed to be sold absolutely for a total consideration of Rs.35,000/-. The plaintiff has also stated that since possession has already been delivered earlier under a deed of mortgage, delivery of possession under this document does not arise. It was further stated that henceforth neither himself nor his heirs have any right, title or interest in the property and that the plaintiff is entitled to water, air, right of easement, etc. concerning the property together with all rights, title and interest and right of disposal of the property. The defendant, his son and grandson, etc. unto posterity are entitled to enjoy the property without any obstruction or trouble either by the plaintiff or from anyone claiming under him. He has delivered the possession certificate issued by the CITB and Khata certificate for transfer of Khata from Bangalore City Corporation. Thus, the language employed in this document is plain and unambiguous and the intention of the parties is also very clear from its recitals. Even the evidence led by the parties does not indicate to the contrary. Thus, a careful perusal of all the clauses of the sale deed and the evidence on record would clearly show that the intention of the 16 parties was to make the transaction a sale. We are also of the view that since the execution of the reconveyance deed has already been established, question of holding the sale deed to be nominal cannot be accepted.
15. The next question for consideration is in relation to compliance of Section 16(c) of the Act by the plaintiff. Though a question was raised before the trial court that there are no pleadings as regards the plaintiff's readiness and willingness to perform the contract, the trial court has rightly held that there is sufficient compliance of Section 16(c) of the Act to the extent of pleadings. Therefore, the question to be considered is whether the plaintiff was ready and willing to perform his part of the contract.
16. The words 'ready and willing' imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. 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 contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. 17 The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.
17. In N.P. Thirugnanam (Dead) by LRs. v. Dr. R. Jagan Mohan Rao and Others1, it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of the relief of specific performance. This circumstance is material and relevant and is required to 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 to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.
18. In Pushparani S. Sundaram and Others v. Pauline Manomani James (deceased) and Others2, this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus:
"5.....So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, 18 after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved." 1995 (5) SCC 115 2002 (9) SCC 582
19. Similar view has been taken by this Court in Manjunath Anandappa URF Shivappa Hanasi v. Tammanasa and Others3 and Pukhraj D. Jain and Others v. G. Gopalakrishna4."
14. In the case of MANJUNATH ANANDAPPA URF SHIVAPPA HANSI vs. TAMMANASA AND OTHERS reported in AIR 2003 SC 1391. Paragraphs 17 to 31 reads a under:
"17. The requirement to comply with the mandatory provisions of Section 16(c) of the Specific Relief Act came up for consideration of this Court in Ouseph Varghese vs. Joseph Aley & Ors. (1969) 2 SCC 539 wherein it was held:
"The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of 19 the suit the plaintiff has taken those pleas. As observed by this Court in Pt. Prem Raj vs. D.L.F. Housing and Construction (Private) (Ltd.) and Another, (Civil Appeal No. 37/66, decided on 4-4- 1968) [reported in 1968 (3) SCR 648] that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable."
18. Without noticing the said decision, however, another two Judges bench in R.C. Chandiok and Anr. vs. Chuni Lal Sabharwal and Ors. reported in (1970) 3 SCC 140 stated:
"6.Readiness and willingness cannot be treated as a straight jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In our judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract."
19. In Abdul Khader Rowther vs. P.K. Sara Bai and Ors. reported in AIR 1990 SC 682 this Court followed Ouseph Varghese (supra) holding:
"His plaint does not contain the requisite pleadings necessary to obtain a decree for specific performance. This equitable remedy recognized by the Specific Relief Act cannot be had on the basis of such pleadings and evidence."
20. The question again came up for consideration before a three Judge bench of this Court in Syed Dastagir vs. T.R. Gopalakrishna Setty reported in (1999) 6 SCC 337.
21. Therein also the earlier decisions of this Court in Abdul Khader Rowther (supra) and Ouseph Varghese 20 (supra) were not referred to. However, inter alia noticing R.C. Chandiok (supra), this Court observed:
"13. It was held in the case of R.C. Chandiok v. Chuni Lal Sabharwal (1970) 3 SCC 140 that readiness and willingness cannot be treated as a strait-jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. Finally, we have no hesitation to hold that the pleading as made by the plaintiff not only shows his readiness and willingness to perform his part of the obligation under the contract but by tendering the total amount shows he has performed his part of the obligation. We also construe such a plea to be a plea of "readiness and willingness" as required under Section 16(c). In view of the aforesaid findings we hold that the High Court committed an error by defeating the claim of the plaintiff on the basis of a wrong interpretation of his plea in terms of the said section."
22. In that case the requisite averments of the plaintiff in the Plaint was to the following effect:
"6.The defendant has entered into an agreement with the plaintiff on 1-8-1960 ... for a consideration of Rs. 9500.00 ... the plaintiff has agreed to that on adjustment of the mortgage amount of Rs. 5000.00 and Rs. 500.00 paid towards advance payment of the sale price, that on payment of the obtaining sum of Rs. 4000.00 and off, he would execute a proper sale deed conveying the suit schedule properties. ... the defendant has accordingly received a sum of Rs. 3680.00 ... from the plaintiff and has endorsed the same on the agreement on 21-12-1965. He has further received Rs. 100.00 on 21-3-1966 and Rs. 100.00 on 4-5- 1966 and in all Rs. 3880.00. These payments are also duly written up in the account-book of the defendant. The plaintiff approached the defendant to receive the balance amount of Rs. 120.00 towards the sale price and execute the proper sale and he agreed. He evaded and hence a legal notice was issued on 23-2-1967 calling upon him to perform his part of the contract. ... He (plaintiff) has today deposited in court Rs. 120.00 under RO No. being the balance due to the defendant."21
23. The said averments were held to be in spirit and substance although may not be in letter and form of "readiness and willingness" on the part of the Plaintiff stating:
"10. ..It is true that in the pleading the specific words "ready and willing to perform" in this nomenclature are not there but from the aforesaid plea, could it be read that the plaintiff was not ready and willing to perform his part of that obligation ? In other words, can it be said that he has not pleaded that he is "ready and willing" to perform his part ? Courts cannot draw any inference in the abstract or to give such hypertechnical interpretation to defeat a claim of specific performance which defeats the very objective for which the said Act was enacted. The section makes it obligatory to a plaintiff seeking enforcement of specific performance that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of the obligation. Unless this is there, Section 16(c) creates a bar to the grant of this discretionary relief. As we have said, for this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the plaintiff to perform his part of the obligation then it cannot be said there is non-compliance of the said section."
(Emphasis supplied)
24. This Court further noticed that despite Explanation appended to Section 16(c), the plaintiff can always tender the amount to the defendant to deposit in the court for performance towards the contract under the obligation of the contract with a view to exhibit to perform his part of obligation.
25. The aforementioned decision was referred to again by a two Judge bench of this Court in Motilal Jain vs. Ramdasi Devi and Ors. reported in (2000) 6 SCC
420. In that case also this Court took into consideration 22 the averments made by the plaintiff in Paragraphs 6 to 11 of the plaint and opined:
"9.It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale.
In the instant case a perusal of paras 6 to 11 of the plaint does clearly indicate the readiness and willingness of the plaintiff. The only obligation which he had to comply with was payment of balance of consideration. It was stated that he demanded the defendant to receive the balance of consideration of Rs. 8000 and execute the sale deed. The defendant was in Patna (Bihar) at the time of notices and when he came back to his place the plaintiff filed the suit against him. In support of his case, he adduced the evidence of PW 1 and PW 2. The plaintiff had parted with two-thirds of the consideration at the time of execution of Ext. 2. There is no reason why he would not pay the balance of one-third consideration of Rs. 8000 to have the property conveyed in his favour."
26. In Pushparani S. Sundaram and Ors. vs. Pauline Manomani James and Ors. reported in (2002) 9 SCC 582 it is stated:
"5. So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the 23 said Act makes it clear that mere plea is not sufficient, it has to be proved.
6. Next and the only other circumstance relied upon is about the tendering of Rs. 5000, which was made on 2.3.1982 which was even prior to the grant of the exemption. Such small feeder to the vendor is quite often made to keep a vendor in good spirit. In this case the only other payment made by the plaintiff was Rs.5000 at the time of execution of the agreement of sale. Thus, the total amount paid was insignificantly short of the balance amount for the execution of the sale deed. Thus in our considered opinion the said two circumstances taken together, is too weak a filament to stand even to build an image of readiness and willingness. Section 16(c) of the Specific Relief Act requires that not only there be a plea of readiness and willingness but it has to be proved so. It is not in dispute that except for a plea there is no other evidence on record to prove the same except the two circumstances. It is true that mere absence of a plaintiff coming in the witness box by itself may not be a factor to conclude that he was not ready and willing in a given case as erroneously concluded by the High Court."
(emphasis supplied)
27. The decisions of this Court, therefore, leave no manner of doubt that a Plaintiff in a suit for specific performance of contract not only must raise a plea that he had all along been and even on the date of filing of suit was ready and willing to perform his part of contract, but also prove the same. Only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading all the averments made in the Plaintiff as a whole coupled with the materials brought on record at the trial of the suit, to the said effect, the statutory requirement of Section 16(c) of the Specific Relief Act may be held to have been complied with.
24
28. Having regard to the facts and circumstances of the case and keeping in view the decisions of this Court, as referred to hereinbefore, we are of the opinion that the plaintiff cannot be said to have even substantially complied with the requirements of law.
29. Kidar Lall Seal & Anr. vs. Hari Lall Seal (1952) SCR 179, whereupon reliance has been placed by Mr. Amarendra Saran, has no application in the instant case. Therein, this Court was concerned with the 'inartistical wordings' of the relief claimed by the plaintiff, having regard to Order XXXIV of the Civil Procedure Code. It was held:
"But reading the two reliefs together, I am of opinion that though the claim is inartistically worded the plaintiff has in substance asked for a mortgage decree up to a limit of Rs. 40,253-11-10 with interest against each defendant. No other kind of decree could be given under Order XXXIV. Therefore, though he has not used the word 'subrogation' he has asked in substance for the relief to which a subrogee would be entitled under the Transfer of Property Act."
30. There is another aspect of the matter which cannot be lost sight of. The plaintiff filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on records to show that he had ever asked defendant No. 1, the owner of the property, to execute a deed of sale. He filed a suit only after he came to know that the suit land had already been sold by her in favour of the appellant herein. Furthermore, it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the 25 court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to a discretionary relief.
31. In Veerayee Ammal vs. Seeni Ammal reported in (2002) 1 SCC 134 the law is stated in the following terms:
"11. When, concededly, the time was not of the essence of the contract, the appellant-plaintiff was required to approach the court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani v. Kamal Rani (1993) 1 SCC 519 held that in case of sale of immovable property there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of contract, the court may infer that it is to be performed in a reasonable time if the conditions are
(i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.
12. In K. S. Vidyanadam v. Vairavan (1997) 3 SCC 1 this Court held : (SCC p. 11, para 14) "Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property."
13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. 26 In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar's The Law Lexicon it is defined to mean :
"A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea"."
15. In the case of JUGRAJ SINGH AND ANOTHER vs. LABH SINGH AND OTHERS reported in (1995) 2 SCC 31. Paragraph 3 reads as under:
"3. Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff's part of the contract."
16. In the case of J.P. BUILDERS AND ANOTHER vs. A. RAMADAS RAO AND ANOTHER reported in (2011) 1 SCC 429. Paragraphs 20 to 27 reads as under: 27
"20. Section 16 of the Specific Relief Act, 1963 provides for personal bars to relief. This provision states that:
"16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person:
a) who would not be entitled to recover compensation for its breach; or
b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation.- For the purposes of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
21. Among the three sub-sections, we are more concerned about sub-section(c). "Readiness and willingness" is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's report. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing 28 to perform the essential terms of the contract which are to be performed by him.
22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
23. In N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao & Ors., (1995) 5 SCC 115 at para 5, this Court held:
"5. 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 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 and 29 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 always ready and willing to perform his part of the contract."
24. In P.D'Souza vs. Shondrilo Naidu, (2004) 6 SCC 649 paras 19 and 21, this Court observed:
"19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstance of each case. No strait-jacket formula can be laid down in this behalf....
21. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."
25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C. Chandiok & Anr. vs. Chuni Lal Sabharwal & Ors., (1970) 3 SCC 140 that "readiness and willingness"
cannot be treated as a straight jacket formula. This has to be determined from the entirety of the facts and 30 circumstances relevant to the intention and conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
17. The Division Bench of this Court in the case of SMT. PADMINI RAGHAVAN vs. MR. H.A. SONNAPPA (SINCE DEADY BY HIS LEGAL REPRESENTATIVES) AND OTHERS reported in ILR 2014 KAR 233. Paragraphs 42 to 53 reads as under:
"42. This provision has been the subject matter of interpretation by the Apex Court on several occasions:
43. The law on the point is well settled. The Supreme Court in the case of N.P.THIRUGNANAM (DEAD) BY LRS vs DR R.JAGAN MOHAN RAO AND OTHERS [(1995) 5 SCC 115] 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 31 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 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 along with 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 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."
44. The Supreme Court in the case of HIS HOLINESS ACHARYA SWAMI GANESH DASSJI vs SITA RAM THAPAR [(1996) 4 SCC 526] has held as under: -
"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his 32 willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part 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 the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to abide for the time which disentitles him as time is the essence of the contract."
45. The Supreme Court in the case of RAM AWADH (DEAD) BY LRS AND OTHERS Vs ACHHAIBAR DUBEY AND ANOTHER [2000 (2) SCC 428] interpreting section 16 of the Specific Performance Act 1963 has held as under: :
"6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh's case is erroneous.33
46. The Apex Court in the case of P.D'Souza v. Shondrilo Naidu [ 2004 (6) SCC 649] has held as under :
"It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf."
47. The Supreme Court in the case of ANIGLASE YOHANNAN V. RAMLATHA (2005) 7 SCC 534 [SCC p 540, para 12) has held as under:
"12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."
This Court further held that the averments relating to readiness and willingness are not a mathematical formula which should be expressed in specific words and if the averments in the plaint as a whole, do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract, the fact that the wording was different, will not militate against the readiness and willingness of the plaintiff. The above observations cannot be construed as 34 requiring only a pleading in regard to readiness and willingness and not `proof' relating to readiness and willingness. In fact, in the very next para, this Court clarified that Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. Therefore, the decision merely reiterates the need for both pleadings and proof in regard to readiness and willingness of the plaintiff.
48. The Supreme Court in the case of M.M.S. INVESTMENTS, MADURAI AND OTHERS Vs V.VEERAPPAN AND OTHERS [2007 AIR SCW 4809] has held as under:-
"5. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the Specific Relief Act, 1963 (in short the 'Act') is not applicable. It is to be noted that the decision in Ram Awadh's case (supra) relates to a case where there was only an agreement. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide purchasers for value without notice. The question whether the appellants were ready and willing is really of no consequence. In Ram Awadh's case (supra) the question of the effect of a completed sale was not there. Therefore, that decision cannot have any application so far as the present case is concerned. Once there is a conveyance the concept would be different and the primary relief could be only cancellation."
49. The Supreme Court in the case of AZHAR SULTANA vs B. RAJAMANI AND OTHERS [AIR 2009 SC 2157] has held as under:-
35
"18. 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.
50. The Supreme Court in the case of MAN KAUR (DEAD) BY LRS vs HARTAR SINGH SANGHA [(2010) 10 SCC 512] has held as under:-
"12. Section 16(c) of the Specific Relief Act 1963 (`Act' for short) bars the specific performance of a contract in favour of a plaintiff "who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than terms of the performance of which has been prevented or waived by the defendant).
Explanation (ii) to section 16 provides that for purposes of clause (c) of section 16, "the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract.36
51. Thus, 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 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. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief.
52. Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. 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 considered by the court 37 while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. 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 along with 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 the 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 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.38
53. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. In so far as willingness is concerned, it reflects the mental attitude of the plaintiff to part with or pay the balance sale consideration agreed to be paid. If there are any reservations without any justification, or it is made conditional on the happening of any event which is not agreed upon, it shows his unwillingness to perform his part of the contract. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses
(a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with."
18. Following the declaration of law made by Hon'ble Apex Court and this Court in the aforementioned cases, as 39 there is no averment in the plaint or in the evidence by the plaintiff to satisfy the ingredient of continuous readiness and willingness to complete the transactions in terms of Section 16(c) of the Specific Relief Act, the judgment referred to by the learned counsel for the appellant is not applicable to facts of the case. Therefore, the First Appellate Court has rightly interfered with the judgment and decree passed by the Trial Court and further the Trial Court without following the law laid down by this Court and the Hon'ble Apex Court relating to the granting of Specific Relief, which is a discretionary in nature, has erroneously decreed the suit. It is to be noted that, Hon'ble Apex Court in the case of BALASUBRAMANIAN AND ANOTHER vs. M. AROCKIASAMY (DEAD) THROUGH LEGAL REPRESENTATIVES reported in (2021) 12 SCC 529 at paragraph 14 to 16 held as follows:
"14. In the background of the legal position and on reasserting the position that there is very limited scope for re-appreciating the evidence or interfering with the finding of fact rendered by the trial court and the first appellate court in a second appeal under Section 100 of the Civil Procedure Code, it is necessary for us to take note as to whether in the instant facts the High Court 40 has breached the said settled position. To that extent the factual aspects and the evidence tendered by the parties has already been noted above in brief. Further, what is distinct in the present facts of the case is that the finding rendered by the learned Munsif (Trial Court) and by the learned District Judge (First Appellate Court) are divergent. The trial court on taking note of the pleadings and the evidence available before it was of the opinion that the plaintiff has failed to prove exclusive possession and, in such light, held that the entitlement for permanent injunction has not been established. While arriving at such conclusion the trial court had taken note of the right as claimed by the plaintiff and in that background had arrived at the conclusion that except for the say of plaintiff as PW1 there was no other evidence. On the documentary evidence it was indicated that the kist receipts at Exhibit A5 series would not establish possession merely because the name has been subsequently substituted in the patta records and the kist had been paid.
15. As against such conclusion, the first appellate court in fact has placed heavy reliance solely on the kist receipts which in fact had led the first appellate court to arrive at the conclusion that the continuous payment of kist would indicate that the plaintiff was also in possession of the property. When such divergent findings on fact were available before the High Court in an appeal under Section 100 of the Civil Procedure Code though re-appreciation of the evidence was not permissible, except when it is perverse, but it was 41 certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved.
16. In view of the above, although the counsel for the appellant may be technically correct in his submission that the High Court erred in not clearly answering the question of law framed by it under Section 100, CPC, the High Court was still within its jurisdiction to determine whether the reading of the evidence on record by one of the Courts below was perverse. Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula. Therefore, merely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been re- appreciated. As already noted, the divergent view of the courts below on the same set of facts was available before the High Court."
19. Following the law declared with regard to jurisdiction of this Court under Section 100 of the Code of Civil Procedure, I have gone through the pleadings and evidence of the parties and arrived at a conclusion that the Trial Court has not appreciated the evidence on record in 42 the right perspective and on the other hand, the First Appellate Court has re-appreciated the material on record as per Order XLI Rule 31 of the Civil Procedure Code and has arrived at a just conclusion, which according to me is right conclusion to set-aside the judgment and decree passed by the Trial Court. Therefore, I do not find any illegality or perversity in the judgment and decree passed by the First Appellate Court, dismissing the suit of the plaintiff. The substantial question of law framed by this Court favours the defendant in view of the observation made above and accordingly, the Regular Second Appeal is dismissed.
SD/-
JUDGE ARK