Himachal Pradesh High Court
Pushpa Devi & Others vs Girdhari Lal Sharma on 20 June, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 550 of 2009.
Reserved on: 27th May, 2015
.
Decided on : 20th June, 2015.
Pushpa Devi & Others ...appellants.
Versus
Girdhari Lal Sharma ...Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes.
For the appellants Mr. Rajnish K. Lall, Advocate.
r :
For the respondent : Mr. Rajnish Maniktala,
Advocate.
Dharam Chand Chaudhary, J.
Defendants are in second appeal before this Court. They are aggrieved by the judgment and decree dated 29.9.2009, passed by learned Additional District Judge (I), Kangra at Dharamshala in Civil Appeal No. 21- G/05, whereby the appeal preferred by respondent-
plaintiff has been allowed and the suit decreed whereas the cross-appeal they filed dismissed.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 22. It is seen that learned Civil Judge (Senior Division), Dehra, District Kangra has dismissed Civil Suit .
No.139/96, qua relief of specific performance of the agreements dated 22.6.1983 and 9.5.1986 Ex.PW-6/A and Ex.PW-4/A, respectively, however, decreed the same for the alternative relief i.e. recovery of `12,000/- against the appellants-defendants.
3. The bone of contention between the parties is land measuring 0-31-35 hectares bearing Khasra No.82 situate in Mohal Sudhangal, Mauza Chokath, Tehsil Dehra, District Kangra. Hukam Chand, the predecessor-
in-interest of the defendants, was owner-in-possession thereof. The respondent-plaintiff claims that said Shri Hukam Chand entered into an agreement dated 22.6.1983 Ex.PW-6/A with him qua sale of the suit land in a sum of `12,000/-. On payment of the sale consideration in lump sum he was put in possession of the suit land. The sale deed was agreed to be executed on and after the land is got redeemed from mortgage. So the time was ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 3 extended vide subsequent agreement Ex.PW-4/A, dated 9.5.1986. Said Shri Hukam Chand failed to execute the .
sale deed during his life time. On his death the suit land came to be inherited by the defendants being his legal heirs. When they started causing interference in the suit land, he filed, a civil suit bearing registration No.266/95 for seeking decree of permanent prohibitory injunction came to be filed against them. It is during the pendency of the said suit, the plaintiff came to know about the loan raised against the suit land stands paid by defendant No.2 on 15.3.1993 from reply to the notice dated 7.8.1995, he served upon the defendants. The previous suit i.e. Civil Suit No.266 of 1995 was dismissed as withdrawn vide order dated 9.3.1999 Ex.D-5. On coming to know that the loan raised against the suit land was paid by the defendants, the present suit has been filed for the decree of specific performance of the agreement dated 22.6.1983 read with agreement dated 9.5.1986 qua the sale of the land entered in Khewat No. 24 min, Khatauni No.42 min old ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 4 Khewat No.22, Khatauni No.41 new Khasra No.82 measuring 0-31-35 hectares (8 kenals 3 marlas) with a .
further direction to the defendants to execute the sale deed in favour of the plaintiff and on their failure to do so through the nominee of the Court. By way of the decree of Permanent Prohibitory Injunction, the defendants have been sought to be restrained from causing interference, in any manner, in the possession of the plaintiff over the suit land and also that in case they succeed in taking the possession thereof forcibly to decree the suit for the relief of possession also. In the alternative, the suit was sought to be decreed for the recovery of `12,000/- together with interest @ 12% per annum from the date of agreement Ex.PW-6/A i.e. 22.6.1983 till payment thereof.
4. The defendants have contested the suit. In the preliminary they have raised objections regarding the maintainability of the suit in the present form, estoppel and that the same is barred under Order 2 Rule 2 of the Code of Civil Procedure. On merits, while admitting that the ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 5 owner of the suit land was their predecessor-in-interest Shri Hukam Chand, it is submitted that on his death they .
inherited the same. It is denied that said Shri Hukam Chand had executed agreements dated 22.6.1983 and 9.5.1986 agreeing thereby to sell the suit land to the plaintiff in a sum of `12,000/- and deliver the possession thereof also to them. It is also denied that the suit land was mortgaged with Soil Conservation Department, however, it is admitted that their predecessor-in-interest Shri Hukam Chand had raised loan to the tune of `1,881.16/- from the said department to carry out improvements in the suit land. The land was neither attached nor ever mortgaged. The loan so raised was paid by them.
5. In replication, the plaintiff has denied the contents of the preliminary objections being wrong and on merits reiterated his case as set out in the plaint.
6. Such pleadings on record have led in framing the following issues on 28.9.1999:-
::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 61. Whether late Shri Hukam Chand predecessor in title of the defendants had entered into sale agreement dated .
22.6.1983 with the plaintiff as alleged? OPP
2. Whether the plaintiff was and is ready and willing to perform his part of sale agreement? OPP
3. Whether the plaintiff is entitled for the specific performance of sale agreement dated 22.6.1983? OPP
4. Whether in the alternative the plaintiff is entitled for the recovery of `12,000/- from the defendants? OPP
5. Whether the plaintiff is entitled for the relief of injunction? OPP
6. Whether this suit is not maintainable in the present form? OPD
7. Whether this suit is barred by limitation?
OPD
8. Whether this suit is barred under the provisions contained under Order 2 Rule 2 CPC? OPD
9. Whether this suit is not properly for the purposes of court fee and jurisdiction? OPD
10. Relief.::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 7
7. One additional issue i.e. issue No.9-A, which reads as follows, .
"9-A Whether the suit property in the name of Shri Hukam Chand qua coparcenery property and if so, its effect? OPD"
Came to be framed subsequently on 14.9.2001.
8. The parties, when put to trial, have produced evidence comprising oral as well as documentary. PW-1 Makhan Lal is the elder brother of the plaintiff. PW-2 is Veena Devi whereas PW-3 Saran Dass. They all have been examined by the plaintiff to prove his possession over the suit land. PW-4 Shri M.R. Bhatti Advocate is a marginal witness to the agreement dated 9.5.1986, Ex.PW-4/A whereas PW-5 Shri H.C. Dogra, Advocate is the scribe of this document. PW-6 Shri R.C. Dhiman is a marginal witness to another agreement dated 22.6.1983, PW-6/A whereas PW-7 Shri Jagdish Chand is scribe thereof. The plaintiff has himself stepped ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 8 into the witness box as PW-8 and tendered in evidence the documents Ex.P-1 to P-9.
.
9. On the other hand, defendant No.2 Ashwani Kumar has stepped into the witness-box as DW-1.
The defendants have also examined Shri Jagdish Chand as DW-2 and Mehar Chand as DW-3 to prove that deceased Hukam Chand had never sold the suit land to the plaintiff. Learned counsel representing the defendants has tendered in his own statement the documents Ex.D-1 to D-15, D-1A and D-2B.
10. Learned trial Court on appreciation of the evidence produced by the parties on both sides though held that agreement Ex.PW-4/A and Ex.PW-6/A were executed by Shri Hukam Chand, predecessor-in-interest of the defendants and also that the plaintiff was ready and willing to perform his part of the contract, however, he was not held entitled to the decree of specific performance of the agreement while answering issues No.1 and 2 in favour of the plaintiff and issue No.3 against ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 9 him. The plaintiff, however, was held entitled to recover `12,000/- from the defendant while deciding issue No.4.
.
He was also not held entitled to the decree for permanent prohibitory injunction in view of the reasons recorded while answering issue No.5. Remaining issues No.6 to 9 formal in nature were answered against the defendants. While answering issue No.9-A, learned trial Court has concluded that the suit property was not coparcenery in the hands of Hukam Chand, hence the issue was decided against the defendants.
11. As noticed, at the very outset, the plaintiff feeling aggrieved by the dismissal of the suit for the relief of specific performance of the agreement had preferred civil appeal No.21-G/05, in the lower appellate Court, whereas the defendants against the decree for recovery of `12,000/- passed against them had preferred cross-
appeal No. 11-G/06. Learned lower appellate Court has reversed the findings on issue No.3 and decreed the suit for the relief of specific performance of the contract ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 10 whereas the cross-appeal dismissed vide judgment and decree under challenge in this Court.
.
12. The complaint herein is that while reversing the findings recorded by learned trial Court on issue No.3 and decreeing the suit for specific performance of the agreement, learned lower appellate Court has mis-read and mis-construed the oral as well as the documentary evidence particularly agreements Ex.PW-4/A and Ex.PW-6/A. Placing reliance on the judgment of the apex Court in Dadarao and Another versus Ramarao and Others, 2000 (1) SLJ, 159, it is contended that the trial Court has rightly denied the relief of specific performance of agreements to the plaintiff. Learned lower appellate Court while interpreting such law and the facts of the case wrongly has erroneously decreed the suit. The factum that the agreements pertain to the year 1983 and 1986 whereas the suit having been filed at a belated stage i.e. on 11.3.1996, hence time barred; has not been appreciated. The factum of the value of the land gone ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 11 considerably high during the intervening period has also not been taken into consideration and to the contrary, .
the decree for specific performance was passed in an unjust and inequitable manner.
13. On proper construction of the agreements Ex.PW-4/A and Ex.PW-6/A, the defendants were not bound to sell the property and at the most liable to refund the money or damages to the parties. This aspect of the matter has not been appreciated by learned lower appellate Court and thereby the findings to the contrary recorded have vitiated. The suit land was never mortgaged and as such there was no question of redemption thereof. The suit therefore, was not only time barred but also hit by the provisions contained under Order 2 Rule 2 CPC as no leave was sought to file fresh suit at the time of withdrawal of the previous suit relating to the same subject matter of dispute. The suit land otherwise also being ancestral could have not been sold by their predecessor-in-interest Shri Hukam Chand.
::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 12Neither the execution of the agreements Ex.PW-4/A and Ex.PW-6/A nor readiness and willingness on the part of the .
plaintiff to perform his part of the contract is proved, however, irrespective of that learned lower appellate Court has erroneously decreed the suit for the relief of specific performance of the agreements.
14. The appeal has been admitted on the following substantial questions of law:
1. Whether the suit of the plaintiff for specific performance of agreement dated 22.6.1983 and 9.6.1985 filed on 11.3.1996 was barred by time and disentitled the plaintiff to specific performance of the agreement of sale more particularly when the plaintiff was not ready and willing to perform his part of the contract?
2. Whether the suit of the plaintiff was barred by limitation and not maintainable in view of the fact that Hukam Chand was owner of only half share and could not sell and deliver the possession of the specific portion of the undivided property?::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 13
3. Whether on the proper construction of the documents Ext.PW-4/A and Ext.PW-6/A, the decree for specific performance could be .
granted when the terms specifically provided for payment of damages, more particularly, in view of the changed equities and filing the suit after more than 12 years of the agreement of sale?
15. Shri Rajnish K. Lall, Advocate appearing on behalf of the appellants-defendants has vehemently argued that in view of the express conditions in the agreements Ex.PW-4/A and PW-6/A, on the failure of the execution of the sale deed by Shri Hukam Chand, aforesaid, he could have been held liable to refund double of `12,000/- he received towards sale consideration. The defendants cannot be compelled to execute the sale deed. According to Mr. Lall, learned trial Court while placing reliance on the judgment of the Hon'ble apex Court in Dadarao and Another versus Ramarao and Others, (1999) 8 SCC 416 has rightly dismissed the suit for the relief of specific performance of ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 14 the agreements, however, according to him learned lower appellate Court has mis-interpreted and mis-
.
construed the law laid down by the apex Court in the judgment supra. Reliance on behalf of the appellants-
defendants have also been placed on the judgment of the apex Court in P. D'Souza versus Shondrilo Naidu, (2004) 6 SCC, 649 and Bank of India & Another versus K. Mohandas & Others, (2009) 5 SCC 313. Impugned judgment and decree passed in Civil Appeal No.21-G/05 by the lower appellate Court has been sought to be quashed and set aside.
16. On the other hand, Shri Rajnish Maniktala.
Advocate while supporting the impugned judgment and decree has urged that the law laid down by the apex Court in Dadarao's case supra could have not been relied upon in view of the law laid down by the apex Court in P. D'Souza's case supra. According to Mr. Maniktala, a condition in the agreement to pay liquidated damages without conveying the property sold ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 15 cannot frustrate the agreement. In P. D'Souza's case similar condition was there in the agreement and the .
apex Court while granting the decree for specific performance of the agreement has held that such conditions should not be used to frustrate the terms and conditions of the agreement. It has, therefore been urged that learned lower appellate Court has rightly decreed the suit for the relief of specific performance of the agreements and the findings so recorded not call for any interference.
17. Now examining the substantial questions of law in the light of the rival submissions, I propose to take up for consideration substantial question No.3 first.
Whether on the face of the agreements Ex.PW-4/A and Ex.PW-6/A, the decree for specific performance thereof could have been passed or a direction to the defendant to pay `12,000/- sought to be recovered in the alternative could have been issued, reappraisal of the evidence available on record is required.
::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 1618. The first agreement Ex.PW-6/A is dated 22.6.1983. This document, no doubt, provides for sale of .
the suit land to the plaintiff in a sum of `12,000/- and the sale deed was agreed to be executed on getting the land redeemed from mortgage created at the time of raising loan for lift irrigation scheme. Further conditions of this document is that failure on the part of the executant to execute the sale deed would entail in refund of double of the sale consideration i.e. `12,000/- he already received.
19. The second agreement is dated 9.5.1986, Ex.PW-4/A. This agreement also reveals that the executant Shri Hukam Chand had agreed to execute the sale deed within one month from the date the suit land becomes free from all encumbrances. Also that on his refusal to execute the sale deed, he shall pay double of `12,000/- i.e. `24,000/-, he already received from the plaintiff. If he failed to pay the amount in question the plaintiff shall be at liberty to recover the same from him ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 17 together with interest. PW-7 is the scribe of agreement Ex.PW-6/A, whereas PW-6 is marginal witness thereto.
.
Similarly PW-5 is scribe of agreement Ex.PW-4/A whereas PW-4 is marginal witness thereto.
20. Both Courts below have held that both the agreements have been executed by Hukam Chand.
Though the execution thereof has been disputed by the appellants-defendants before this Court, however, merely for rejection as no arguments qua this aspect of the matter was addressed nor the appeal admitted on any such substantial question of law.
21. The moot question, which needs adjudication, therefore, would be that the decree qua specific performance of the contract passed by learned lower appellate Court is not based upon proper construction of the agreements in question. Learned trial Court on construction of these documents i.e. agreement Ex.PW-4/A and PW-6/A and applying the ratio of the law laid down by the apex Court in Dadarao's case supra ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 18 had non-suited the respondent-plaintiff, so far as the relief of specific performance of the agreements is concerned.
.
Learned lower appellate Court has, however, placed reliance on subsequent judgment of the apex Court in P. D'Souza's case, in which the judgment in Dadarao's case has been held to be per in curium on account of having not taken into consideration the law laid down by the apex Court in earlier precedent i.e. M.L. Devender Singh & others versus Syed Khaja, (1973) 2 SCC, 515 and has concluded that learned trial Court has wrongly placed reliance on Dadarao's case while declining the relief for specific performance of the agreement.
22. It is seen that learned lower appellate Court after having taken note of the law laid down by the apex Court in P. D'Souza's case supra has examined the evidence qua execution of the agreements in question by Hukam Chand and concluded that the execution thereof stand duly proved. Also that since Hukam Chand failed to redeem the suit land during his life time; the sale ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 19 deed could not be executed. The question of limitation has also been examined by learned lower appellate .
Court in the light of the evidence available on record and concluded that since the information qua redemption of the suit land was received by the respondent-plaintiff on 7.8.1995, therefore, he could have filed the suit only thereafter and the suit so filed has been held to be well within the period of limitation.
23. Surprisingly enough learned lower appellate Court has no where touched the stipulation in the agreements as to what will happen in case the sale deed is not executed. As a matter of fact, execution of the agreements by Hukam Chand stands proved and this Court has concluded so at the outset, however, in view of the stipulation in the agreements, "in case sale deed is not executed, as agreed upon, double of the sale consideration i.e. `12,000/- received shall be payable to the vendee i.e. respondent-plaintiff. Also that on the failure of the vender Hukam Chand (since dead) to make ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 20 the payment, the vendee shall be entitled to recover the same from him together with interest" the matter should .
have been examined to see that in view of such stipulation in the agreements, the same were still enforceable or not. This aspect of the matter has not at all been gone into by learned lower appellate Court. At this juncture, I would like to make reference to the law laid down by the apex Court in Rajasthan State Industrial Development and Investment Corporation and Another versus Diamond & GEM Development Corporation Ltd. & Another, (2013) 5 SCC 470, which reads as follows:
"23. A party cannot claim anything more than what is covered by the terms of contract, for the reason that contract is a transaction between the two parties and has been entered into with open eyes and understanding the nature of contract. Thus, contract being a creature of an agreement between two or more parties, has to be interpreted giving literal meanings unless, there is some ambiguity therein. The contract is to be interpreted giving the actual ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 21 meaning to the words contained in the contract and it is not permissible for the court to make a new contract, however is .
reasonable, if the parties have not made it themselves. It is to be interpreted in such a way that its terms may not be varied. The contract has to be interpreted without giving any outside aid. The terms of the contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of either of the parties adversely. (Vide: United India Insurance Co. Ltd. v.
Harchand Rai Chandan Lal, AIR 2004 SC 4794;
Polymat India P. Ltd. & Anr. v. National Insurance Co. Ltd. & Ors., AIR 2005 SC 286).
24. It is thus seen from the law laid down supra that the contract being a creature of an agreement between the parties has to be interpreted to give literal meaning unless there is some ambiguity therein. In the agreement Ex.PW-6/A, no doubt, deceased Hukam Chand agreed to sell the suit land for sale consideration and to execute the sale deed within one month from the date of payment of the loan amount and the same ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 22 becomes free from all encumbrances. Similar are the recitals in subsequent agreement Ex.PW-4/A. There is .
nothing on record to show that the suit land was under
mortgage with Soil Conservation Department, from where loan was raised by deceased Hukam Chand. The contents of para 3 of the written statement reveal that deceased Hukam Chand had raised loan in the sum of `1881.16 from the department for carrying out improvements in the land comprised as field Nos. 28, 29, 43, 58, 59,37, 31, 284, 308, 306, 309, 310, 311, 312 and 207.
The number of suit land is 82, the same does not figure in this para of the written statement. There is nothing in this regard in the replication. Anyhow no mortgage was ever created against the suit land; of course, loan was raised by deceased Hukam Chand. Respondent-plaintiff, if was a bonafide purchaser, should have satisfied himself about each and every detail of the suit land including the same having been mortgaged or encumbered in lieu of the loan so raised. The respondent-plaintiff, therefore, should ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 23 have not waited for redemption of the so called mortgage, which was never in existence till the year 1995, .
when the suit was filed. He rather should have been vigilant and taken steps for getting the sale deed executed, during the life time of deceased Hukam Chand.
25. Whether in these circumstances, he can plead equity is doubtful. There is another important aspect, which has escaped the notice of both Courts below. In the agreements there is no stipulation that on the death of the executant Shri Hukam Chand, the same will be binding on his legal heirs and successors also.
Therefore, whether the respondent-plaintiff can seek enforcement of the agreements against the defendants of course successors of deceased Hukam Chand is doubtful and on this score also, the agreements cannot be sought to be enforced against the defendants.
Learned lower appellate Court has omitted to take note of such vital factual aspects and decreed the suit for the ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 24 relief of specific performance of the agreements on being persuaded that the execution thereof stands .
proved and that the respondent-plaintiff could have sought the enforcement thereof only on redemption of the so called mortgage of the suit land. The findings so recorded are definitely the result of misreading, misappreciation and misconstruction of the given facts and circumstances and evidence available on record.
26. True it is that judgment rendered by the apex Court in Dadarao's case has been held to be per in curium in subsequent judgment rendered in P D'Souza's case. In P. D'Souza's case, the apex Court has distinguished the law laid down in Dadarao's case on the ground that the relevant terms stipulated in Dadarao's case were different from that in P. D'Souza's case. Also that judgment in Dadarao's case does not create a binding precedent having not noticed the statutory provisions contained under Section 23 of the Specific Relief Act and also an earlier binding precedent. I ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 25 reproduce the relevant part of P. D'Souza's case as under:-
.
34. In Dadarao whereupon Mr Bhat placed strong reliance, the binding decision of M.L. Devender Singh was not noticed. This Court furthermore failed to notice and consider the provisions of Section 23 of the Specific Relief Act, 1963. The said decision, thus, was rendered per incuriam.
"Tukaram
35. Furthermore, the relevant term stipulated in Dadarao was as under: (SCC p. 417, para 2) r Devsarkar, aged about 65, agriculturist, r/o Devsar, purchaser (GHENAR) - Balwantrao Ganpatrao Pande, aged 76 years, r/o Dijadi, Post Devsar, vendor (DENAR), who hereby give in writing that a paddy field situated at Dighadi Mouja, Survey No. 7/2 admeasuring acres belonging to me hereby agree to sell to you for Rs 2000 and agree to receive Rs 1000 from you in presence of V.D.N. Sane. A sale deed shall be made by me at my cost by 15-4-1972. In case the sale deed is not made to you or if you refuse to accept, in addition of earnest money an amount of Rs 500 shall be given or taken and no sale ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 26 deed will be executed. The possession of the property has been agreed to be delivered at the time of purchase. This .
agreement is binding on the legal heirs and successors and assigns." (emphasis supplied) Interpreting the said term, it was held: (SCC p.
418, paras 6-7) "6. The relationship between the parties has to be regulated by the terms of the agreement between them. Whereas the defendants in the suit had taken up the stand that the agreement dated 24-4-1969 r was really in the nature of a loan transaction, it is the plaintiff who contended that it was an agreement to sell. As we read the agreement, it contemplates that on or before 15-4-1972 the sale deed would be executed. But what is important is that the agreement itself provides as to what is to happen if either the seller refuses to sell or the purchaser refuses to buy. In that event the agreement provides that in addition to the earnest money of Rs 1000 a sum of Rs 500 was to be given back to Tukaram Devsarkar and that 'no sale deed will be executed'. The agreement is very, ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 27 categorical in envisaging that a sale deed is to be executed only if both the parties agree to do so and in the event of any one .
of them resiling from the same there was to be no question of the other party being compelled to go ahead with the execution of the sale deed. In the event of the sale deed not being executed, Rs 500 in addition to the return of Rs 1000, was the only sum payable. This sum of Rs 500 perhaps represented the amount of quantified damages or, as the defendants would have it, interest payable on Rs 1000.
7. If the agreement had not stipulated as to what is to happen in the event of the sale not going through, then perhaps the plaintiff could have 511 asked the Court for a decree of specific performance but here the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs 1000 plus pay Rs 500 in addition thereto. There was thus no obligation on Balwantrao to complete the sale transaction."::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 28
36. Apart from the fact that the agreement of sale did not contain a similar clause, Dadarad does not create a binding precedent having not .
noticed the statutory provisions as also an earlier binding precedent. [See Govt. of W.B. v. Tarun K. Roy1 (SCC para 26).]
27. If coming to the stipulation in agreement in P. D'Souza's case, the same reads as follows:-
27. The clause as regards payment of damages as contained in clause (7) of agreement of sale reads as under:
"(7) That if the vendor fails to discharge the mortgage and also commits any breach of the terms in this agreement and fails to sell the property, then in that event he shall return the advance of Rs 10,000 paid as aforesaid and shall also be liable to pay a further sum of Rs 2000 as liquidated damages for the breach of the agreement."
28. Such stipulation in Dadarao's case has already been reproduced in this judgment in para supra.
::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 2929. Now if coming to the stipulation in both agreements in the case in hand, the same reads as .
follows:-
"....rakwa uparlikhit bamay digar rakwa par maine Lift Irrigation se karza liya hua hai, jiske ebaz main bhumi rehan hai. Jabki rakwa free from all encumbrances ho jaye, uske bad ek mah ke ander-ander bainama baham kreta kra dunga. Yadi Bainama karane se mukkar ho jaun to ada shuda rakam ka dugna rupya wapus karane ka zimmewar hunga. Yadi ise ada na karun to kreta bajriya nalish bamay kharcha basul kar sakta hai..."
30. In terms of the provisions contained under Section 10 of the specific relief Act, the Court may direct the enforcement of the contract when there exists no standard for ascertaining the actual damage caused due to non-performance of the act agreed to be done or when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. The explanation to Section 10 ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 30 provides that unless and until the contrary is proved, the Court shall presume that the breach of a contract to .
transfer immovable property cannot be adequately relieved by compensation in money. Therefore, Section 10 of the Act raised a presumption that a contract to transfer immovable property should be ordered to be enforced and the payment of compensation in money is no excuse.
31. Anyhow presumption is always rebuttable.
The same in the case in hand stands rebutted or not can be decided with the help of the law applicable and the given facts and circumstances of this case. Learned Lower appellate Court has placed reliance on the law laid down in P D'Souza's case while decreeing the suit. In the opinion of this Court, with all humility and respect in command the law laid down by the apex Court in P D'Souza's case is not applicable to the facts of this case for the reasons that the stipulation in that case as referred to hereinabove was that if the vender fails to discharge ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 31 the mortgage and also commits any breach of the terms of the agreement as well as fails to sell the property, in .
that event he had to return the sale consideration received in advance and also to pay a further sum of `2,000/- as liquidated damages for the breach of the agreement. Similar, however, is not the stipulation in the agreement Ex.PW-6/A and Ex.PW-4/A because here the vender had bound himself to pay double of the sale consideration, he received, if failed to executed the sale deed. The respondent-plaintiff had agreed to such stipulation. There is no ambiguity in the agreement, therefore, giving liberal meaning to the agreement as has been held by the apex Court in Rajasthan State Industrial Development & Investment Corporation's case supra, the respondent-plaintiff, cannot seek enforcement of the agreement in question in view of the stipulation in the agreements referred to hereinabove and has to satisfy himself by receiving double of the sale consideration he paid, which he has not claimed and as such only ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 32 `12,000/- were sought to be recovered from the defendants.
.
32. In P D'Souza's case, the apex Court has held the judgment in Dadaroa's case per in curium on the ground that the same does not take notice of a binding precedent of the apex Court in M.L. Devender Singh's case supra.
33. If coming to the law laid down in M.L. Devender Singh's case supra, the apex Court while taking note of the provisions contained under Section 20 and 23 of the Specific Relief Act, has held as under :-
"20. The fact that the parties themselves have provided a sum to be paid by the party breaking the contract does not, by itself, remove the strong presumption contemplated by the use of the words "unless and until the contrary is proved." The sufficiency or insufficiency of any evidence to remove such a presumption is a matter of evidence. The fact that the parties themselves specified a sum of money to be paid in the event of its breach is, no doubt, a piece of evidence to be considered in deciding whether the ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 33 presumption has been repelled or not. But, in our opinion, it is nothing more than a piece of evidence. It is not conclusive or decisive."
.
34. Therefore, the apex Court has held that making the provisions in the contract to pay money in lieu of the breach of the contract by the parties mutually is a piece of evidence of course neither conclusive nor decisive. Looking to the present case, the provision in the agreements qua payment of double of the amount received towards sale consideration, on the failure of the vender to execute the sale deed is a piece of evidence duly proved on record. It may not be conclusive or decisive, however, if weighed in the light of the facts and circumstances that the respondent-plaintiff failed to verify the factual position qua status of the suit land in revenue record, which was never mortgaged or encumbered in any loan transaction and remained slept over the matter for years together, with the efflux of time, has lost the right to seek enforcement of the contract that too when the contract not binds the successors of deceased Hukam ::: Downloaded on - 15/04/2017 18:25:21 :::HCHP 34 Chand. Therefore, the provisions qua payment of double of the amount deceased Hukam Chand received .
towards sale consideration in the agreements coupled with the factual aspect as well as the evidence discussed supra, render the respondent-plaintiff disentitled to seek the decree for specific performance of the Contract.
35. As a matter of fact, looking to the stipulation qua payment of double of the sale consideration received; on account of failure to execute the sale deed brings the present case in the category of cases where the contract on payment of the amount in lieu of the conveyance to be made itself stands enforced. I draw support in this regard from the ratio of the judgment in M.L. Devender Singh's case reproduced hereinbelow:
"13. If the Legislative intent was that the mere proof that a sum is specified as liquidated damages or penalty for a breach should be enough to prove that a contract for the transfer of immovable property could be adequately compensated by the specified damages or penalty, Section 20 of the old Act will certainly become meaningless. It is true that Section 20 of ::: Downloaded on - 15/04/2017 18:25:22 :::HCHP 35 the old Act does not mention the case of an express contract giving an option to a promiser to either carry out the contract to convey, or in the .
alternative, to pay the sum specified, in which case the enforcement of the undertaking to make the payment would be an enforcement of the contract itself and no occasion for rebutting the presumption in the explanation to Section 21 would arise. In such cases the contract itself is specifically enforced when payment is directed in lieu of the conveyance to be made."
36. In view of the above, I find substance in the submissions that the lower appellate Court has misinterpreted and misappreciated the law laid down by the apex Court in P. D'Souza's case supra.
37. If coming to substantial question of law No.1, no doubt in the agreement recital was qua the loan having been raised and the suit land mortgaged. Such recitals on the face of it are, however, false. The suit land was never mortgaged and rather the loan was raised by deceased Hukam Chand from Soil and Conservation Department for carrying out improvements in his land, ::: Downloaded on - 15/04/2017 18:25:22 :::HCHP 36 field numbers whereof have been given in para 3 of the written statement. The suit land was also included therein .
or not remained un-explained. However, on 22.6.1983 or 9.5.1986, when the agreements Ex.PW-6/A and Ex.PW-4/A were executed, the suit land was neither mortgaged nor attached in connection with any loan transaction. The entries in remarks column of Jamabandi for the year 1990- 91 Ex.P-1/P-8/D-2 and 1995-96 Ex.P-9/D-11 reveal that the charge against the suit land was created in favour of Government of Himachal Pradesh in a loan transaction of `14,825/- and rapat No.29 in this regard was entered in Rapat Rojnamcha Vakyati on 21.9.1987. No evidence has been produced that before 21.9.1987 also, the suit land was either mortgaged or charge created on the same in connection with any land transaction. Meaning thereby that on 22.6.1983 and 9.5.1986, when the agreements were executed, the land was free from all encumbrances.
::: Downloaded on - 15/04/2017 18:25:22 :::HCHP 3738. It is not the case of the plaintiff that he had gone through the revenue record pertaining to the suit .
land and came to know about the same having been mortgaged. No doubt, in the agreement there is a reference of encumbrance of the suit land in some loan transaction, however, the respondent-plaintiff being a bonafide purchaser normally should have not believed such recital or representation made by Hukam Chand as gospel truth and rather satisfied himself on perusal of the revenue record that any such encumbrances have been made or not. The respondent-plaintiff rather should have been vigilant as is expected from a bonafide purchaser.
39. The suit for specific performance of the agreement is required to be filed within three years from the date of execution of the agreement. Taking into consideration the specification of the agreement dated 9.5.1986 Ex.PW-4/A, the suit should have been filed on or before 8.5.1989. The same having been filed on 11.3.1996 is, therefore, time barred. Both Courts below have not ::: Downloaded on - 15/04/2017 18:25:22 :::HCHP 38 looked into this aspect of the matter, in the light of given facts and circumstances and rather misconstrued and .
misread the evidence available on record in this regard.
He failed to take steps to get the sale deed executed during the life time of Hukam Chand. Agreements as stated hereinabove do not bind the successors of the executant, Hukam Chand. Reply Ex.P-3 from defendant No.2 received by the respondent-plaintiff on 7.8.1995, therefore, does not extend time for filing the suit. The suit having been filed on 11.3.1996 is, therefore, time barred.
The findings to the contrary recorded by both Courts below are the result of misappreciation and misconstruction of the evidence available on record.
Therefore, on this count also, the judgment and decree under challenge is perverse, hence legally unsustainable.
40. There is, however, no substance in 2nd substantial question of law for the reason that a co-sharer in possession of the joint property is competent to sell the same to the extent of his share and also put the vendee ::: Downloaded on - 15/04/2017 18:25:22 :::HCHP 39 in possession thereof. The entries in the revenue record produced in evidence make it crystal clear that the suit .
land was in the possession of deceased Hukam Chand in the capacity of co-owner. He, therefore, is competent to sell the same and also to put the vender in possession thereof.
41. In view of what has been said hereinabove, the decree for specific performance of the agreement could have not been granted in the present lis. Learned trial Court, therefore, has rightly dismissed the suit. The reversal of the judgment and decree passed by learned trial Court, by learned lower appellate Court is not at all legally sustainable. The judgment and decree under challenge in the present appeal is, therefore, quashed and set aside. The suit of the respondent-plaintiff for the relief of specific performance of the contract is hereby ordered to be dismissed.
42. In view of what has been said hereinabove, this appeal succeeds and the same is accordingly ::: Downloaded on - 15/04/2017 18:25:22 :::HCHP 40 allowed. The judgment and decree passed by learned Lower appellate Court is quashed and set aside. No .
order so as to costs.
June 20, 2015. (Dharam Chand Chaudhary), (ps) Judge.
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