Madhya Pradesh High Court
Virendra Singh vs Govind Prasad & Ors. on 21 May, 2024
Author: Anil Verma
Bench: Anil Verma
1
THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
FIRST APPEAL No. 247 of 2003
BETWEEN:-
VIRENDRA SINGH S/O SHIV PRASAD HARDIYA,
AGED : ABOUT 45 YEARS, OCCUPATION :
AGRICULTURIST, R/O HARDIYA COMPOUND,
INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI B. I. MEHTA - SENIOR ADVOCATE WITH SHRI J. B. MEHTA -
ADVOCATE)
AND
1. GOVIND PRASAD S/O RADHAKISHAN
GOYAL, AGED : 45 YEARS, OCCUPATION :
MEDICAL PRACTITIONER, R/O 78/47,
AGARWAL NAGAR, NAVLAKHA, INDORE
(MADHYA PRADESH)
2. SMT. USHA W/O GOVIND PRASAD
GOYAL, AGED : 42 YEARS, OCCUPATION :
AGRICULTURIST, R/O 78/47, AGARWAL
NAGAR, NAVLAKHA, INDORE (MADHYA
PRADESH)
3A. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR SMT. USHA
WD/O LATE SHRI KAMALKANT GOYAL,
AGED : 68 YEARS, OCCUPATION :
HOUSEHOLD, R/O WARD NO.10, INDIRA
GANDHI WARD, HARDA (MADHYA
PRADESH)
3B. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR SANJAY S/O
LATE SHRI KAMALKANT GOYAL, AGED :
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 21-05-2024
17:56:00
2
48 YEARS, OCCUPATION : BUSINESS, R/O
WARD NO.10, INDIRA GANDHI WARD,
HARDA (MADHYA PRADESH)
3C. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR RAJENDRA
S/O LATE SHRI KAMALKANT GOYAL,
AGED : 46 YEARS, OCCUPATION :
BUSINESS, R/O WARD NO.10, INDIRA
GANDHI WARD, HARDA (MADHYA
PRADESH)
3D. KAMALKANT S/O RADHAKISHAN GOYAL
(DECEASED) THROUGH LR SMT. ANJALI
D/O LATE SHRI KAMALKANT GOYAL,
AGED : 43 YEARS, OCCUPATION :
HOUSEHOLD, R/O WARD NO.10, INDIRA
GANDHI WARD, HARDA (MADHYA
PRADESH)
4. VISHAL S/O GOVIND PRASAD GOYAL,
AGED : 23 YEARS, OCCUPATION :
BUSINESS, R/O 78/47, AGARWAL NAGAR,
NAVLAKHA, INDORE (MADHYA
PRADESH)
5A. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
SMT. SHAKUN BAI WD/O
LAXMINARAYAN, AGED : 45 YEARS, R/O :
VILLAGE NARVAR, NEAR MOINY BABA
KA ASHRAM, SANWER ROAD, INDORE
(MADHYA PRADESH)
5B. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
DEEPAK S/O LAXMINARAYAN, AGED : 25
YEARS, R/O : VILLAGE NARVAR, NEAR
MOINY BABA KA ASHRAM, SANWER
ROAD, INDORE (MADHYA PRADESH)
5C. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
GOLU S/O LAXMINARAYAN, AGED : 24
YEARS, R/O : VILLAGE NARVAR, NEAR
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 21-05-2024
17:56:00
3
MOINY BABA KA ASHRAM, SANWER
ROAD, INDORE (MADHYA PRADESH)
5D. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
SURAJ S/O LAXMINARAYAN, AGED : 22
YEARS, R/O : VILLAGE NARVAR, NEAR
MOINY BABA KA ASHRAM, SANWER
ROAD, INDORE (MADHYA PRADESH)
5E. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
RANI D/O LAXMINARAYAN, AGED : 19
YEARS, R/O : VILLAGE NARVAR, NEAR
MOINY BABA KA ASHRAM, SANWER
ROAD, INDORE (MADHYA PRADESH)
5F. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
SEEMA D/O LAXMINARAYAN, AGED : 17
YEARS (MINOR) THROUGH NATURAL
GUARDIAN SMT. SHAKUN BAI WD/O
LAXMINARAYAN, R/O : VILLAGE
NARVAR, NEAR MOINY BABA KA
ASHRAM, SANWER ROAD, INDORE
(MADHYA PRADESH)
5G. LAXMINARAYAN S/O DALCHAND
LASHKARI (DECEASED) THROUGH LR
DOLLY D/O LAXMINARAYAN, AGED : 15
YEARS (MINOR) THROUGH NATURAL
GUARDIAN SMT. SHAKUN BAI WD/O
LAXMINARAYAN, R/O : VILLAGE
NARVAR, NEAR MOINY BABA KA
ASHRAM, SANWER ROAD, INDORE
(MADHYA PRADESH)
6. STATE OF MADHYA PRADESH, THROUGH
COLLECTOR, INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI AJAY BAGADIA - SENIOR ADVOCATE WITH SHRI NILESH
AGRAWAL - ADVOCATE FOR RESPONDENTS NO.1 TO 5; AND
SMT. VARSHA SINGH THAKUR - GOVT. ADVOCATE FOR RESPONDENT
NO.6.)
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 21-05-2024
17:56:00
4
Reserved on : 08/05/2024
Pronounced on : 21/05/2024
This appeal having been heard and reserved for orders, coming
on for pronouncement this day, the court passed the following:
JUDGMENT
This first appeal under Section 96 of Code of Civil Procedure, 1908 (in short, 'CPC') has been preferred by the appellant / defendant No.3 against the impugned judgment and decree dated 03/03/2003 passed by the 16th Additional District Judge, Indore in Civil Suit No.7- A of 2002, whereby respondents No.1 to 3 / plaintiffs suit for specific performance of contract, permanent injunction and mesne profit has been decreed.
02. Brief facts of respondents No.1 to 3 / plaintiffs' case are that plaintiffs had entered into an agreement to sale with respondent No.5 / defendant No.1 Laxminarayan on 05/08/1988 for consideration of Rs.2,30,800/- for the purpose of 5.77 acres agricultural land bearing survey No.219/3, 219/4 and 220/1 of Village Mundla Dosdar (Tillor Bujurg), Tehsil and District Indore, out of which Rs.91,000/- was paid on the date of agreement and it was alleged that its possession was also handed over. The balance amount was payable on or before 01/12/1988. On 01/01/1993 defendant No.1 Laxminarayan has again executed an agreement to sale of the disputed land in favour of the appellant / defendant No.3 and possession was also handed over.
03. The case of the plaintiff is further that since Laxminarayan was not expressing his willingness to perform the agreement, legal notices Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 5 dated 01/12/1990, 09/09/1991 and 26/10/1992 were sent to him and in the reply received on 26/10/1992 it was made clear by Laxminarayan that he has not received any amount against the agreement, therefore, he is not obliged to perform his any part in contract and refused to execute the sale deed. Hence, plaintiff filed this civil suit.
04. Defendant No.1 Laxminarayan / (legal representatives of Laxminarayan) denied all the plaint averments by stating in his written statement that although he has executed an agreement dated 05/08/1988 in favour of the plaintiffs in respect of sale of the suit land, but he did not received any amount as an advance and not handed over the possession of the suit land to the plaintiffs. Plaintiffs' suit is time barred. Later on defendant No.1 amended his pleading by stating that he has made all these allegations at the instance of defendant No.3, which was not binding upon him. He never appointed Kanhaiyalal Verma as his Power of Attorney, therefore, any sale deed executed by Kanhaiyalal Verma in favour of defendant No.3 is not binding upon him and such sale deed is fake and bogus.
05. Appellant / defendant No.3 also denied the plaint averments by stating in his written statement that on 01/01/1993 defendant No.1 has executed an agreement to sale in respect of the suit land for consideration of Rs.2,75,000/-, received the whole consideration amount and also handed over possession of the suit land. Defendant No.1 executed the sale deed through Power of Attorney in favour of defendant No.3, which is binding upon him.
06. On the basis of the aforesaid pleadings, the trial Court has framed issues and both the parties were directed to adduced their evidence.
Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 6After completion of the evidence, the trial Court appreciated the evidence available on record and passed the impugned judgment and decree, whereby plaintiffs' suit has been decreed. Being aggrieved by the same, appellant / defendant No.3 has filed this first appeal.
07. Learned counsel for the appellant contended that appellant has purchased the suit land on 19/11/1996 through registered sale deed, which has been duly executed by defendant No.1 Laxminarayan through his Power of Attorney. Impugned judgment and decree passed by the trial Court is erroneous and against the law and facts. The trial Court has committed an error in allowing the civil suit. The trial Court has ignored the pleading and evidence adduced by the appellant. Hence, he prays that impugned judgment and decree be set aside.
08. Per contra, learned counsel for the respondents opposes the prayer by submitting that impugned judgment and decree passed by the trial Court is just and proper and based upon cogent evidence adduced by the plaintiffs. Appellant has purchased the suit land during the pendency of the suit, therefore, on the basis of principle of lis pendens, they cannot be considered as bona fide purchaser and not deserve for any benefit on the basis of the sale deed.
09. Heard learned counsel for the parties at length and perused the entire record of the trial Court with due care.
10. Plaintiff Dr. Govind Prasad Goyal (PW-1) before the trial Court categorically stated in his statement that on 05/08/1988, he entered into an agreement to sale with defendant No.1 Laxminarayan for consideration of Rs.2,30,800/- and they have agreed that he will pay the remaining amount till 01/12/1988, thereafter, shall deed would be Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 7 executed in his favour, otherwise he will not be entitled for any amount. Again by agreement (Ex.-P/2 and P/3) the time was extended and later on by agreement (Ex.-P/4) it has been agreed that plaintiffs should pay rest of the amount till 30/04/1990.
11. Plaintiffs have examined Dr. Rajesh Agrawal (PW-2) and Rajendra Goyal (PW-3), who are the witnesses of agreement (Ex.-P/4). Plaintiffs have also examined Rajesh (PW-3) and Sanjay (PW-4), but they are not the witnesses of agreement. Harisingh (PW-5) and Kundan (PW-6) are the witnesses of agreement (Ex.-P/1). The case of the defendant No.1 Laxminarayan is that the plaintiffs have never paid any amount to him against the agreement and as such he is not obliged to get sale deed in favour of the plaintiffs.
12. From perusal of the evidence, it is evident that plaintiffs were required to pay balance consideration initially by 01/12/1988 and later it was extended up to 30/04/1990, but the suit was filed on 22/02/1993 i.e. more than 02 years and 10 months. The original agreement was alleged to have been executed on 05/08/1988 and if calculated from aforesaid date then suit was filed after a lapse of 05 years. The Hon'ble apex Court in the case of K. S. Vidhyanadam Vs. Vairavan reported in 1997 (3) SCC 1 has held that "even though time is not the essence of contract of sale of immovable property and suit can be filed within a period of 3 years provided under Article 54 of Limitation Act, but it should be performed within a reasonable time having regard to the terms of contract prescribing a time limit and nature of the property."
13. Continuing steep rise in the price of the suit property would be a relevant factor for the Court to decide whether the delay or laches on Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 8 the part of the plaintiff to perform his part of the contract would disentitle him the specific performance. Where the agreement specifying period of 6 months within which plaintiff had to purchase the stamp papers and after lapse of 2 and half years initial payment of a small amount as earnest money by the plaintiff would be a circumstance which would weigh against exercise of discretion for grant of specific performance of the agreement in favour of the plaintiffs.
14. Law is also well settled that in the matter of agreement to sale the plaintiff have to show bona fide readiness and willingness to perform his part of the agreement with adherence of each and every terms of the agreement to sell, particularly schedule of payment. If particular dates are stipulated for payment of amount under the agreement, then time would be essence even the agreement is related to sale of immovable property. The default in the schedule of payment shall certainly attract the clause of automatic termination of the agreement, therefore, the subsequent conduct of the parties are also relevant for adjudication of their intention.
15. The Division Bench of this Court in the case of Sirumal Vs. Smt. Annapurna Devi reported in 2000 (II) MPJR 474, has held as under:-
"It may be seen that the plaintiff has pleaded in the plaint that he was ready and willing to pay the balance of consideration under the agreement, such pleadings does not amount to readiness and willingness to perform one part of contract as generally plaintiff was ready and willing to perform his part under the agreement.Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 9
Agreement specifically enjoins the duty upon the plaintiff that he has to bear the stamp duty and registration charges also. The plaintiff has not pleaded his readiness and willingness to meet the stamp duty and registration charges, which was incumbent upon him under the provisions of section 29 (1) (c) of the Stamp Act and section 55 (1) (d) of the Transfer of Property Act."
16. Co-ordinate Bench of this Court in the case of Hafiz Habibur Rehman Vs. Haji Ali Mohd. reported in 1981 (II) MPWN 129, has held "in the suit for specific performance of contract, plaintiff has to plead his readiness and willingness to perform his part, this can also be inferred from material facts pleaded in plaint."
17. It is a settled law that terms of an agreement for specific performance have to be read and understood as it is. The entire agreement to be read as a whole to ascertain the intention of parties and working out provisions thereof to ascertain fulfillment of the requisite conditions so that the agreement could be enforced by law. The clauses of the agreement neither can be supplemented nor substituted by extensive description in the plaint or in the oral testimony.
18. In the instant case, the plaintiffs did not pay payment of consideration as scheduled in the agreement. Plaintiff Govind (PW-1) did not depose in his statement that he is ready to pay stamp and registration charges. Even the plaintiffs did not send draft of proposed sale deed along with the said notice, therefore, it cannot be presumed that the plaintiffs were ready and willing to perform their part in the said contract.
19. The Divisional Bench of this Court in the case of Kamalrani Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 10 Rajaram Guru and Others Vs. Kumari Pinki D/o Hari Shankar Guru and Another reported in 2001 (2) MPLJ 677 has held that "plaintiff should also plead that he was ready and willing to meet the stamp and registration charges. The averment that plaintiff was ready to pay balance money is insufficient." This citation is completely applicable in the instant case, because the plaintiff did not mention in his pleading for asserting his willingness for performing his part of contract.
20. It is also noteworthy that as per the agreement there was a necessity condition to obtain permission from the Collector, because unless the transaction covered by Section 170-A and 170-B of M. P. Land Revenue Code, regarding which permission of the competent authority is required and without which such permission the transaction falls into the prohibited category. The grant of permission by the Collector has been made a condition precedent for execution of the sale deed, which was also not duly complied with by the plaintiffs, therefore, on the basis of above plaintiffs had failed to prove that they were always ready and willing to perform their part of contract.
21. So far as the possession of the suit land is concerned, although Dr. Govind Prasad (PW-1) categorically stated in his statement that on 05/08/1988 at the time of execution of the agreement to sale (Ex.-P/1), the possession of the suit land was handed over to him and he was in possession of the suit land, but in para 26 of cross-examination he categorically admits that appellant Virendra Singh Hardiya possess the suit land since 1993. Plaintiffs have failed to prove relevant entry in the Khasra in which the name of plaintiff was mentioned as a possession Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 11 holder. In view of the aforesaid, plaintiff have failed to prove that possession of the suit land was ever handed over to them.
22. Defendant No.1 Laxminarayan in reply of the notice (Ex.-P/13) categorically denied his signature on the agreement (Ex.-P/1), therefore, burden of proof lies upon the plaintiffs that the defendant No.1 Laxminarayan has signed the agreements (Ex.-P/1 to P/4), but plaintiffs have failed to prove the aforesaid facts, therefore, adverse inference may be drawn against them.
23. It is also remarkable that trial Court has decided the issue No.2 against the plaintiff. Hence, adverse inference can be drawn against the plaintiffs for giving false evidence and it shows that plaintiffs had not come before the Court with clean hands. Since specific performance is discretionary relief, hence, it cannot be exercised in favour of the plaintiffs. On the point of possession of the suit land, the statement of plaintiff Govind Prasad was found false by his own cross-examination.
24. Moreover, the plaintiffs conduct in not taking any concrete steps until about 2 years and 10 months further corroborates not only that the agreement to sale stood cancelled after lapse of time but also delayed action on the part of the plaintiff disentitles him to exercise discretion in his favour. Hence, the plaintiffs could not said to be ready and willing to perform his part of the contract. Due to default of payment schedule as agreed to, the agreement stands rescinded on its own.
25. Hon'ble the Apex Court in the case of Manawanti Vs. Kaushalya Devi reported in (1990) 3 SCC 1, it has been held as under:
"19. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 12 direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract act all."
Therefore, on the basis of evidence available on record, this Court is of the considered view that agreement to sale (Ex.P/1 to P/4) are the vague, uncertain and not capable for its execution under the law.
26. So far as the status of appellant is concerned, undoubtedly, the appellant have purchased the suit property during the pendency of the litigation between the parties. Learned counsel for the respondent submits that on the principle of lis pendens provided under Section 52 of the Transfer of Property Act and law laid down by Hon'ble the Apex Court in the case of Thomson Press (India) Ltd. Vs. Nanak Builders and Investors Pvt. Ltd. and Others reported in AIR 2013 Supreme Court 2389, the transfer of the suit land in favour of the appellant pendente lite is effective in transferring title to the appellant but such title shall remain subservient to the rights of the plaintiff in the suit and subject to any direction, which the Court may eventually pass therein.
27. Although, appellant has purchased the suit land through registered sale deed and the land owner Laxminarayan had subsequently executed an agreement to sale in favour of the appellant and later on also executed the registered sale deed in respect of the suit property, therefore, the appellant has been impleaded in the suit at a Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00 13 subsequent stage on account of disclosure of the fact that the land owner Laxminarayan had executed a sale deed in his favour. Laxminarayan also supported the case of the appellant. After purchasing the suit land through registered sale deed, appellant is also in lawful possession of the suit land until the agreement to sale has been executed in favour of the plaintiff, but as per the earlier discussion, the agreement was no longer survives as per the default on the fact of non-payment of the consideration amount. After the lapse of scheduled period agreement not remain legally executable, therefore, appellant is the bona fide purchaser of the suit land.
28. On the basis of the foregoing analysis, this Court finds that finding of the trial Court is not based on proper appreciation of the evidence. The Court below has committed a grave error in relying upon untrustworthy, shaky and vague evidence to grant the discretionary relief of specific performance in contravention of the mandate of Section 20 of the Specific Relief Act, 1963. The finding of fact recorded by the trial Court is illegal and perverse and judgment and decree passed by the trial Court deserves to be set aside.
29. In view of the above, appellant succeeds and the impugned judgment and decree passed by the trial Court is hereby set aside. The suit filed by the respondents / plaintiffs is dismissed.
No order as to costs.
Certified copy as per rules.
(ANIL VERMA) J U D G E Tej Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 21-05-2024 17:56:00