HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.444 of 1974 =========================================================== 1. Sati Pd. Yadav son of Dwarika Pd. Yadav, 2. Shib Shankar Pd. Yadav, son of Sati Prasad Yadav. 3. Naresh Kumar Yadav son of Shib Shankar Prasad Yadav, under the guardianship of his father Shib Shankar Prasad Yadav, all residents of village- Thatha, P.S. Chautham, District-Monghyr. Versus 1. Shrimati Urmila Devi wife of Ganga Sagar Prasad Yadav deceased respondent .... .... Appellant/s no. 1. 2. Ramjit Kumar. 3. Rakesh Kumar both minor sons of the deceased Ganga Sagar Prasad Yadav. 4. Shrimati Sajanmala Devi. 5. Ratan Mala Kumari minor both daughters of deceased respondent no. 1. 6. Chandrama Devi wife of late Lakhan lal Manal resident of village and P.O. Verko, District-Bhagalpur. 7. Raj Kumari Devi wife of Nago Choudhary resident of village and P.O. Verko, District Bhagalpur. 8. Indrama Devi wife of Rajendra Yadav resident of village and P.O. Bank District-Monghyr. 9. Ramdulari Devi wife of Ishwar Dayal Yadav resident of village Sojal Korama, P.O. Sanjha Jagdishpur, District-Bhagalpur, all the respondent 7 to 9 are the daughters of the deceased Jiro Devi. 10. Ashwani Kumar Yadav. 11. Sanjay Kumar Yadav. 12. Saroj Kumar Yadav. 13. Manoj Kumar Yadav all are sons of deceased Ganga Sagar Prasad Yadav, residents of village Thatha, P.S. Chautham, District-Monghyr. 14. Koko Mehto son of Smt. Sugia Devi, deceased respondent of village Raghunathpur, P.S. Balia, District-Begusarai.
Legal Reasoning
15. Smt. Mankha Devi, daughter of Smt. Sugia Devi, deceased and wife of Jaldhari Yadav, resident of village Shalarpur, P.S. Parbatta, District-Monghyr. 16. Chittaranjan Yadav son of Marar Yadav, and maternal grand son of Smt. Sugia Devi, deceased resident of village Paura, P.S. Gogri, District-Monghyr. Patna High Court FA No.444 of 1974 dt.29-07-2013 2 17. Medni Yadav, 18. Achambhit Yadav, son of Jhari Lal Yadav, resident of Basudeopur, Tola Sisba, P.s. Gogri, District-Monghyr. 19. Dasrath Yadav, son of Ram Yadav, 20. Maheshwar Yadav, son of late Ram Yadav, residents of village Thatha, P.S. Chautham, District-Monghyr. 21. Kapildeo Yadav son of Jagdish Yadav. 22. Fagu Yadav son of Jichu Yadav 23. Kailoo Yadav, son of Mongal Yadav deceased residents of Thatha, P.S. Chautham, District-Monghyr. .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. S.S. Dwivedi, Sr. Adv. Mr. Rakesh Chandra, Adv Mr. R.K. Debey, Adv. Mrs. Sangeeta Sharma, Adv. For the Respondent/s : Mr. Roy Shivaji Nath, Sr. Adv. Mr. Roy Saurabh Nath, Adv. Mr. Amrit Anunay, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 29-07-2013 This appeal has been filed by the defendant 4th set in T.S. No. 59/56 of 1967/73 against the judgment and decree dated 11.06.1974 passed by Additional Sub-Judge-I, Munger allowing the relief for Specific Performance of Contract as prayed. There is no dispute between the parties to the appeal that the suit land belonged to the defendant no. 1 Sohagwati Devi (since deceased, through L.R.). It is case of the plaintiffs that the defendant no. 1 Sohagwati Devi executed a deed of Mahadnama (agreement for Patna High Court FA No.444 of 1974 dt.29-07-2013 3 sale) on 08.06.1967 whereby she agreed to sell the suit land measuring 10 bigha 7 katha 10 dhur to the plaintiff 1st party for consideration amount of Rs. 19,000/- with stipulation that out of the total consideration money, an amount of Rs. 4,000/- would be retained by the plaintiff 1st party Ganga Sagar Pd. Yadav for redemption of earlier mortgage of the suit land, an amount of Rs. 7,000/- would be paid to the defendant no. 1 in cash and Rs. 8,000/- would be paid to the defendant no. 1 on execution of the sale deed within four months. It is further case of the plaintiffs that Rs. 7,000/- has been paid as advance to the defendant no. 1 at the time of execution of the agreement for sale. The plaintiffs have alleged that the defendant no. 1 thereafter did not become ready to execute the sale deed as per agreement, and in reply to the legal notice sent by the plaintiffs, it was disclosed that the property subject matter of agreement for sale has been transferred to the defendant 2nd set namely Medni Yadav and Achambhit Yadav by executing two gift deeds dated 25.07.1967 whereby an area of 1 bigha 11 katha was gifted to Medni Yadav and an area of 1 bigha 11 dhur 1 dhurki was gifted to Achambhit Yadav. It has been further alleged by the plaintiffs that they also came to know that the donees Medni Yadav and Achambhit Yadav have sold 3 bigha 2 katha 2 dhur of the land which had been gifted to them, to the defendant 4th set by executing sale deed on 05.09.1967 in their favour. Patna High Court FA No.444 of 1974 dt.29-07-2013 4 The plaintiffs have asserted in the plaint that the gift deeds and the sale deeds in favour of the defendants are fraudulent, sham and illegal documents and the defendant no. 1 is liable to abide by the terms of agreement for sale with the plaintiffs and to execute the sale deed, as prayed. The original defendant no. 1 Most. Sohagwati Devi filed her written statement but the same was not accepted by the court and by order dated 11.06.1974 the same has been rejected. The defendant 4th set filed their joint written statement and have contested the case of the plaintiffs. They firstly have denied that validity and legality of the agreement for sale and thereafter have asserted that the defendant 1st set, out of her freewill and consent, executed the gift deeds in favour of the defendant 2nd set. They have also asserted that they are bona fide purchasers of the suit land for valuable consideration and had no notice of the alleged agreement for sale as propounded by the plaintiffs. These defendants have also claimed to be in possession of the lands purchased by them and paying rent and getting rent receipt for the same. In view of the pleadings of the parties, the learned court below framed the following issues:- (I) Is the suit as framed maintainable? (II) Have the plaintiffs got cause of action for the suit? Patna High Court FA No.444 of 1974 dt.29-07-2013 5 (III) Is the Zerbeyanama dated 08.06.1967 valid, genuine and for consideration? (IV) Are the plaintiffs entitled to the decree as prayed for? After considering the pleadings and evidence of the parties, the learned court below decided the issue no. (iii) in favour of the plaintiffs and held that the Zerbeyanama dated 08.06.1967 was a valid and genuine document. It was therefore held that the plaintiff no. 1 Ganga Sagar Pd. Yadav was entitled to get the sale deed executed in respect of the suit land in accordance with the Zerbeyanama from the legal heirs of the defendant no. 1 Most. Sohagwati Devi. It was also directed that out of the consideration money, the amount of Rs. 3,000/- would be paid to the defendant no. 6 (defendant 4th set) as he had redeemed the mortgage for the suit land, and further Rs. 1,000/- was directed to be paid to the Fagu Yadav and Kailoo Yadav who were two other mortgagees for the suit land. This appeal has been filed by the defendant 4th set alone. Although the total suit property admeasures an area of 10 bigha 7 katha 10 dhur but the defendant 4th set- appellants have claimed to have acquired title and possession over 3 bigha 2 katha and 2 dhur out of the suit land by purchase through sale deed dated 05.09.1967 executed by the donees from the original defendant no. 1 Most. Sohagwati Devi. Patna High Court FA No.444 of 1974 dt.29-07-2013 6 Heard Mr. S.S. Dwivedi, the learned senior counsel for the appellants and Mr. Roy Shivaji Nath, the learned senior counsel for the plaintiff-respondents. No body has appeared for the other respondents when this appeal was called out for hearing. Mr. Dwivedi, the learned senior counsel, at the out set has submitted that the fact is manifest from the pleadings as well as impugned judgment that the defendant 4th set-appellants are the purchasers of the part of the suit property subsequent to the agreement for sale and therefore the provision of Section 19 (b) of the Specific Relief Act is clearly attracted. It has been urged that the defendant 4th set in their written statement have categorically averred that they are bonafide purchasers for value and without notice of the agreement for sale and it has also been averred that the two gift deeds dated 25.07.1967 executed by the admitted title holder Most. Sohagwati Devi in favour of the defendant 2nd set were also valid transactions. Elaborating his submissions, the learned senior counsel has canvassed that the court was bound to frame an issue in this regard in view of the provision of Section 19 (b) of the Specific Relief Act and ought to have recorded the finding before granting the decree for Specific Performance of Contract. It has been further submitted that even the plaintiffs have also prayed for a declaration in this regard which fact is apparent from the relief no. 2 in the plaint but the same has altogether Patna High Court FA No.444 of 1974 dt.29-07-2013 7 been ignored by the learned court below and no issue or a finding have been recorded. It has been emphatically submitted that from a bare perusal of the impugned judgment along with the plaint and written statement, it is evident that it is the case of total non- application of mind by the learned court below to the pleadings of the parties as well as the relief claimed by the plaintiffs and therefore even the findings recorded by the learned court below should not be upheld as these findings could not have been recorded when the court was oblivious of the facts clearly demonstrating that the part of the suit property had already been transferred by way of gift and sale. The learned senior counsel therefore has prayed that in view of the aforesaid facts and circumstances, it is a fit case where the entire matter should be remanded back to the trial court for a decision afresh on all the issues arising between the parties after framing necessary issues in view of the provision of Section 19 (b) and section 16 (C) of the Specific Relief Act. Mr. Roy Shivaji Nath, the learned senior counsel appearing for the plaintiff-respondents has also accepted that the plaintiffs has sought the relief for declaration that the gift deeds executed in favour of defendant 2nd set were sham and fraudulent transaction and further that the sale deed executed in favour of the defendant 4th set was also not legal and valid document but the learned court below has ignored Patna High Court FA No.444 of 1974 dt.29-07-2013 8 the said relief as well as the pleadings in that regard, failed to frame the necessary issues and failed to record the findings mandated by the provision of the Specific Relief Act before decreeing the suit granting the relief further Specific Performance of Contract. The learned senior counsel therefore has agreed that the matter be remanded back to the trial court for fresh hearing on all the issues arising in view of the pleadings of the parties and also as required by law. From the plaint, it appears that the plaintiffs have prayed for grant of the following reliefs by way of relief no. 2 and 3:- 2- ;g fd bl U;k;ky; ls ;g rtoht fd;k tk; fd okn ckr iDdh gksus lkFk oknh izFke i{k ds cspus ds oks tjs o~;kuk ukek ejdqek 8-6-67 bZ0 ds izfrokfnuh izFke i{k dks dksbZ gd oks ogt djus nku i= ;k dsokyk ;k djokus dsokyk ogd izfrokfnx.k f}rh; i{k oks r‘rh; i{k oks prqFkZ i{k dks ugh Fkk oks mu oflds tkr ls mudks mij tk;nkn eqUntsZ flMwy u0&1 vthZnkoh dksbZ gd oks gfd;r oks n[ky dotk gkfly ugha gqbZ oks ugha gS oks oknh izFke i{k muyksxksa ls Hkh (deed of reconveyance) ;k dsokyk rgjhj oks rkehy ogd vius djkus ds eqLrgd gSa oks okoksntw ryc rdktk ds izfrokfnx.k f}rh; i{k oks r‘rh; i{k oks prqFkZ i{k oks izfrokfnuh izFke i{k dks feydj (deed of reconveyance) ;k dsokyk rgjhj oks rkehy ugha djuk ogd oknh izFke i{k dks egt uktk;t oks [ksykQdkuqu gS oks oknh izFke i{k eqLrgd djk ikus fMxzh LlislhQhd ij QksjesUl vkWQ dkWuV“sDV ds gSA 3- ;g f d bl U;k;ky; ls izfrokfnuh izFke i{k rk&&&&& izfrokfnx.k prqFkZ i{k dks gsnk;r fd;k tk; fd vUnj eS;kn eksbus vnkyr tks ,d ekg ls oSlh ugha gks (deed of conveyance) ;k dsokyk fulor tk;nkn eqUntsZ flMwy u0&1 vthZnkoh ds ogd oknh izFke i{k rgjhj oks rkehy oks jftLVjh dj nsosa oks vxj vUnj eS;kn eksbus vnkyr d rgjhj oks rkehy ugha djsa rks bl Patna High Court FA No.444 of 1974 dt.29-07-2013 9 U;k;ky; ls (deed of conveyance) ;k dsokyk feutkfuo izfrokfnuh izFke i{k oks f}rh; i{k dks r‘rh; i{k dk prqFkZ i{k gLo etequ eqUntsZ (draft of conveyance)tk bl vthZnkoh ds lkFk nkf[ky fd;k tkrk gS ;k ftl etequ ls bl U;k;ky; ls eksukflc le>k tk; mlh etequ ls ogd oknh izFke i{k rgjhj oks rkehy dj jft"V“h djok fn;k tk; oks oknh izFke i{k dks n[ky mij tk;nkn eqUntsZ flMwy u0&1 vthZnkoh ds [kkl n[ky o osn[kyh izfrokfnx.k ds oks o osn[kyh mu l[l ds tks izfrokfnx.k ds rjQ ls o oDr n[khy dkj ik;s tk; fnyk fn;k tk;A From the perusal of the first paragraph of the impugned judgment as well as the impugned decree, it transpires that the relief prayed by the plaintiffs against the gift deeds and sale deeds have at all been not taken into notice by the learned court below. The issues framed in the suit also demonstrate that no issue with regard to the gift deed in favour of the defendant 2nd set or the sale deed in favour of the defendant 4th set has been framed. Further no issue with regard to the “readiness and willingness” of the plaintiffs to perform their part of the contract has been framed. In the case of J.P. Builders Vs. A. Ramadas Rao, 2011 (1) SCC 429, the Apex Court has laid down the principle that a court before granting a decree for specific performance of contract is bound to record its finding regarding the readiness and willingness of the plaintiff to perform his part of the contract, even in case where no objection in this regard has been raised by the defendant in the suit. Patna High Court FA No.444 of 1974 dt.29-07-2013 10 From the perusal of the record and after considering the submission of the learned senior counsel for both the parties, it is manifest that the learned court below has not adverted to the pleadings of the parties and sequentially has also failed to frame the necessary issues in view of the pleadings and the provisions of the law. The learned senior counsel for both the parties have also jointly submitted that in absence of the necessary issues, the parties did not lead evidence with regard to the validity of the gift deeds in favour of the defendant 2nd set, the sale deed in favour of defendant 4th set (appellants in this appeal), the readiness and willingness of the plaintiffs to perform their part of the contract and also for the facts related to the provision of Section 19 (b) of the Specific Relief Act. In this view of the matter and also in view of the stand taken by the learned counsel for the parties, there is no option but to allow this appeal, set aside the impugned judgment and decree and remit the whole matter to the learned court below for hearing and disposal afresh in accordance with law after framing the appropriate issues in view of the pleadings of the parties and relevant provisions of law, after allowing the parties, the necessary opportunity to lead their respective evidence. In the result, this appeal is allowed and the impugned judgment and decree is set aside. The suit is remitted back to the trial Patna High Court FA No.444 of 1974 dt.29-07-2013 11 court for fresh hearing and disposal, after framing the necessary issues and granting opportunities to the parties to lead evidence in accordance with law. The learned court below is directed to expedite the hearing of the appeal as the suit is of the year 1967. Devendra/- (V. Nath, J)