Shanker Singh v. Nathuni Singh

All above Added & Substituted after death of Choudhary Narayan Singh ---Defendant’s L.Rs/Appellant’s L.Rs/Appellants Versus

#1. Nathuni Singh 2. Rasdheshyam Singh Sons of Late Jokhu Singh Both R/O village Sheon, P.S.-Bhabua, Distt-Kaimur (Bhabua). ----Plaintiffs/Respondents/Respondents ----------- For the appellants : M/s J.P.Bhagat & Pancham Lal Jaiswal, Advocates For the respondents: M/s Dinbandhu Singh & Santosh Kumar, Advocates -------

20.01.2009 Heard learned counsel for the parties.

#2. This second appeal has been filed by the defendants- appellants-appellants challenging judgments and decree of both the learned courts below.

#3. The matter arises out of Title Suit No.24 of 1988 which was filed by the plaintiffs-respondents-respondents for specific performance of agreement for sale between the parties by registered - 2 - deed of agreement dated 08.06.1984 which was executed by the parties for the sale of the suit property for a consideration of Rs.30,000.00, out of which Rs.20,000.00 was already paid by the plaintiffs to the defendants and both the parties were to perform their respective part of the agreement by 08.06.1995 when the sale deed had to be executed by the defendants in favour of the plaintiffs with respect to the suit property.

#4. The said suit was decreed by the learned Additional Munsif I, Bhabua by judgment and decree dated 31.05.1993. Against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal No.76 of 1993 (07/2004) which was dismissed by the learned Additional District Judge-cum- Fast Track Court, IV, Bhabua by his judgment and decree dated 31.01.2006. The said judgments and decree of the learned courts below are under challenge in the instant second appeal.

#5. From a bare reading of the plaint and written statement of the parties, it is apparent that the plaintiffs had specifically claimed that a decree for specific performance of contract be passed in their favour as there was an agreement for sale between the parties and the plaintiffs were throughout ready and willing to perform their part of the agreement by payment of the remaining consideration amount. In reply to the said contention of the plaintiffs, the defendants claimed that they never intended to enter into an agreement for sale with the plaintiffs, rather the defendants were intending to execute only a mortgage deed, but the plaintiffs got a - 3 - deed of agreement for sale executed fraudulently and hence there was no question of the plaintiffs’ willingness or readiness for payment of the remaining consideration amount.

#6. The learned courts below considered the entire matter in detail and came to the specific finding that the plaintiffs had been able to prove that they were pressing the defendants to execute the sale deed, but the defendants were dilly dallying the matter. It was also found by the learned courts below that when the defendants were totally denying their intention of executing an agreement for sale, it was not necessary for the plaintiffs to show that they had also sent any notice to the defendants for performance of their part of the agreement.

#7. Learned counsel for the appellants has raised two points in the instant second appeal. The first is that although the property was in the name of one person, but that person belonged to a joint family and hence the property in question was a joint family property and unless severance or partition amongst co-sharers is proved, there is no question of any sale by that person alone in whose name the property was purchased. The second point raised on behalf of the appellants is that the plaintiffs never gave any notice to the defendants showing their readiness and willingness to pay the balance amount of consideration which vitiates the judgments and decree of the learned courts below.

#8. So far the first point raised by the appellants is concerned, admittedly the property was purchased in the name of the - 4 - defendants and there was no pleading or evidence to show that there was any nucleus of the alleged joint family from which the suit property could have been purchased. On the other hand the plaintiffs were able to show that the suit property was the exclusive property of the concerned defendant and on that basis he had entered into the agreement for sale. In the said circumstances, the learned courts below after considering the material rightly came to a specific finding that the suit property was purchased by the defendants exclusively and it did not belong to the joint family.

#9. So far the second point raised by the appellants is concerned, there is no bar in law that without any notice by the plaintiffs to the defendants, the claim of specific performance of agreement cannot be allowed. In the instant case, the plaintiffs had specifically pleaded that they were throughout ready and willing to execute their part of agreement, but the defendants refused, whereas on the other hand, the defendants claimed that there was no question of readiness and willingness as they never intended to execute any deed of agreement for sale, rather they had intended to execute a deed of mortgage, hence admittedly defendants were not ready to execute any sale deed. Thus the learned court below rightly came to the conclusion that the plaintiffs had been able to prove that it was the defendants who had dilly dallied the matter with regard to execution of the sale deed in favour of the plaintiffs.

#10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of - 5 - the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly, dismissed at this stage under Order XLI rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)