Nibha Devi & Ors. v. Ashok Kumar Sah

Heard Mr. Jitendra Kishore Verma, the learned counsel appearing on behalf of the appellant.

2. The defendant is the appellant in this appeal against the judgment of affirmance upholding the decree in the suit for specific performance of contract.

3. The plaintiff filed the suit for specific performance of contract against the defendant seeking the decree against the defendant for executing the sale deed in respect of the suit land in favour of the plaintiff, on the basis of the agreement for sale dated

17.07.95. It is the case of the plaintiff that the defendant who was the owner of the suit land agreed to sell the suit land with the plaintiff for a total consideration money of Rs. 1,00000/- and after 2 Patna High Court SA No.552 of 2010 (7) dt.01-02-2013 receiving a sum of Rs. 80,000/- by way of advance she executed an agreement for sale stipulating therein to execute the sale deed within a week after receiving the remaining consideration amount of Rs.20,000/-. It is the case of the plaintiff that the possession has also been delivered to him over the suit land after the execution of the agreement for sale. It is however, further case of the plaintiff that when, after arranging the money, he approached the defendant with request to execute the sale deed in pursuance to the agreement the defendant started to linger the matter and finally refused to execute the sale deed.

4. The defendant appeared and contested the claim of the plaintiff with specific case that the agreement for sale in question was not a genuine document. It is the case of the defendant that the plaintiff alongwith some persons forcibly on the point of revolver made the defendant to write on some papers at 8.00 P.M. on 17.07.95 which was later converted into the deed of agreement of sale in question. The defendant thus has asserted that the agreement for sale has been fabricated on the basis of the writings by the defendant on those papers.

5. The trial court after considering the pleadings and evidence of the parties has reached to the conclusion that the defendant failed to establish the allegation of use of force by the 3 Patna High Court SA No.552 of 2010 (7) dt.01-02-2013 plaintiff in obtaining the agreement for sale on 17.07.1995. It has further been found that the agreement for sale on 17.07.1995 was a valid and legal document and the plaintiff has been held entitled to a decree for specific performance of contract as prayed.

6. On appeal, the appellate court after reappraisal of evidence has concurred with the finding of trial court that the allegation of use of force by the plaintiff in obtaining the agreement for sale in question could not be proved by the defendant. Accordingly, the appeal has been dismissed and the decree for specific performance of contract in favour of the plaintiff has been affirmed.

7. Mr. Verma, the learned counsel for the appellant has mainly submitted that both the courts below have erred in ignoring the issue of possession while granting the decree in favour of the plaintiff. It has been urged that the plaintiff’s specific case was that the possession of the suit land was delivered to him after the execution of agreement for sale which fact was denied by the defendant but later on the plaintiff came out with the case alleging that the defendant had damaged four pillars erected by the plaintiff over the suit land and in view of this controversy the issue of possession becomes material before the grant of decree. Elaborating his submissions Mr. Verma has contended that the issue of adverse 4 Patna High Court SA No.552 of 2010 (7) dt.01-02-2013 possession in the facts and circumstances necessarily arose because although in view of Section 22, the relief for possession can be granted in a suit for specific performance of contract but in the facts where the plaintiff admits dispossession by the defendant, the relief for possession cannot be granted straightway as it will then involve the other issues of law. Criticizing the impugned judgments it has been contended by the learned counsel that both the courts below have wrongly not considered this aspect of the matter only on the specious ground that the issue of possession and dispossession is not material in a suit for specific performance of contract.

8. After the perusal of impugned judgments of both the courts below it is pellucid that the plaintiff has filed the simple suit for specific performance of contract on the basis of the agreement for sale dated 17.07.1995 executed by the defendant and further has also sought the relief for confirmation of his possession over the suit land. Although, the defendant challenged the validity and legality of the said agreement for sale but both the courts below on the basis of evidence have concurrently found the same to be valid and legal. This finding has not been challenged on behalf of the appellant.

9. The plaintiff has claimed that he got the possession over 5 Patna High Court SA No.552 of 2010 (7) dt.01-02-2013 the suit land after the execution of the agreement for sale and has thereafter erected pillars for construction of a house. From the judgments of both the courts below, it does not appear that he plaintiff has alleged dispossession from the suit land and has only alleged that the four pillars erected by him on the suit land has been damaged by the defendant during the pendency of the suit. After the finding regarding the legality and validity of the agreement for sale, the issue of possession and subsequent dispossession of the plaintiff will definitely not be a material consideration for grant of the relief for specific performance of contract. It is well settled by now that a suit for specific performance of contract is not a suit claiming a right over a land, as such the submission on behalf of the appellant on the basis of adverse possession or otherwise is clearly misconceived. The provision of Section 22 of the Specific Relief Act can be read as an enabling provision which can be resorted to, in an appropriate case, by a person suing for specific performance of contract for the transfer of immovable property. Even in such a suit the plaintiff who has asserted to be in possession in part performance of the contract is entitled to the protection of his possession in view of Section 53A of the T.P.Act and no defence will become available to a defendant who succeeds in dispossessing the plaintiff during 6 Patna High Court SA No.552 of 2010 (7) dt.01-02-2013 the pendency of the suit. It is difficult to accept the submission on behalf of the appellant that in a suit for specific performance of contract the plaintiff who claimed to be in possession but found dispossessed during the pendency of the suit shall not be entitled to a decree for specific performance of contract when the agreement for sale has been found to be valid and legal. The right of such a plaintiff will not be extinguished even if he is dispossessed by the defendant or found to be not in possession as claimed and in such circumstances the provision of Section 22 of the Specific Relief Act cannot be stretched to deny the relief to the plaintiff. It is also difficult to perceive as to how the question of adverse possession will arise in the facts of the case, as submitted on behalf of the appellant.

10. For the aforesaid premised reasons, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)