1. Manorma Devi 2. Rohit Singh 3. Birendra Singh 4. Ram Dulari 5. Rajdeo v. 1
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No.552 of 2003 ------ 1. Manorma Devi 2. Rohit Singh 3. Birendra Singh 4. Ram Dulari 5. Rajdeo Singh 6. Renu Kumari Versus 1(a) Gopal Lal 1(b) Kanhai Lal .... .... …. Appellants .... .... .... Respondents CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellants For the Respondents : Mr. S.K. Sharma, Advocate : Mr. M.B. Lal, Advocate ------ CAV ON : 08.05.2024 PRONOUNCED ON: 13.06.2024 1.
Legal Reasoning
The defendants are the appellants and the instant Second Appeal has been filed against the concurrent findings of both the learned Courts below passed by learned Additional District Judge, FTC-III, Chatra in Title Appeal No.09 of 1997 upholding the judgment and decree passed by learned Munsif, Chatra in T.S. No.29 of 1988. 2. Parties shall be referred to by their original placement in the plaint and shall include their heirs and legal representatives substituted at different stages. 3. Plaintiff executes a registered deed of sale in favour of the defendants and on the same day purchaser executes agreement of sale in favour of the Plaintiff for the same suit land for the same consideration amount. Plaintiff’s suit for specific performance of contract has been decreed by both the learned Court’s below. PLAINTIFF’S CASE 4. Original Plaintiff Barho Lal filed suit for specific performance of contract, directing the defendant Harsoo Singh to receive the amount of Rs.1000/- and to execute registered sale deed in respect of the suit land. 5. Plaintiff was in desperate need of money on 21.08.1975, so he approached the defendants for a sum of Rs1000/- against the security of land comprising in Thana No.164, Khata No.263 Plot No.1118 areas 0.25 ½ acre situated in village Edla District Chatra fully described in Schedule A of the Plaint. As per understanding on the same day Plaintiff executed one registered sale deed with respect to the suit land followed by a registered agreement of sale with regard 1 to re-conveyance of it for consideration money of Rs.1000/- executed by the defendants on the same day. 6. The agreement did not stipulate any time frame in the agreement of sale. Plaintiffs approached the defendants for execution of re-conveyance of the property in terms of the agreement on several dates from 21.05.1980 to 21.05.1988, and when the defendants refused to execute the sale-deed, the suit was filed. Defendants continued to assure the execution of deed in the next years. It is also pleaded by the plaintiffs that the suit land remained in cultivating possession with the plaintiffs. DEFENDANTS’ CASE 7. The case of the defendants, in brief, is that the suit for specific performance was barred by limitation and adverse possession. Once the suit land was sold to the defendants on 21.08.1975, the plaintiffs was divested of their right, title and interest over the said property. After the execution of the sale-deed, defendants were put in Khas physical possession of the land. The registered agreement of sale has been disputed and denied and it has been averred that the plaintiffs never approached the defendants to re-convey the suit land on payment of consideration amount. 8. On the basis of pleadings of the parties, the following main issues were framed:- (a) (b) (c) Is the suit barred by law of limitation and adverse possession? Has the plaintiff got any cause of action? Is the plaintiff entitled for any relief? 9. The learned trial Court answered the issues in favour of the plaintiff and the learned first appellate Court concurred with the finding of the trial Court. 10. The suit has been admitted to be heard on the following substantial questions of law:- I. Whether the learned Courts below have granted decree for specific performance without considering and coming to the finding as required by law contained in Section 16, particularly, Section 16(C) of the Specific Relief Act, which the plaintiff has to plead and prove for getting a decree for specific performance? II. Whether the execution of the sale deed by the plaintiff along with registered agreement of sale, executed on the same day, for re-conveyance of the property amounted to mortgage with clause for redemption? III. Whether the suit for specific performance of contract is barred by limitation? 2 11.
Legal Reasoning
It is argued by the learned counsel on behalf of the appellants that as far as the substantial question of law no.(II) is concerned, it cannot be termed as mortgage with clause for redemption. Reliance in this regard is placed on Vanhalabai Raghunath Ithape (Dead) LR. Versus Shankarrao Baburao Bhilare (Dead) LRS & Others, (2013) 7 SCC 173. It has been held in this case that unless there was such a condition embodied in the document which purports to effect the sale, it cannot be said to be a mortgage by conditional sale, further such condition should be incorporated in the same document. 12. It is further argued that the sale deed (Exhibit D) and the agreement of sale (Exhibit 3) do not disclose the requisite intention that it was a mortgage by conditional sale. There is no pleading of the plaintiff that the transaction was mortgage by conditional sale. 13. It is argued by the learned counsel on behalf of the appellants that there was a limitation of three years for bringing the suit for specific performance under Article 54. An agreement was executed on 21.08.1975 and the suit has been brought in the year 1988 (13.07.1988). 14. As per the specific pleading in para 11 of the plaint, the performance of the contract was refused in the year 1980, but still the suit was not filed within reasonable time. Reliance is placed on Chand Rani (Smt). (Dead) by LRS. Vs. Kamal Rani (Smt). (Dead) by LRS., (1993) 1 SCC 519. 15. It is argued with respect to the substantial question of law on the readiness and willingness of the plaintiff performing the contract as mandated under Section 16(3) of the Specific Relief Act is that the plaintiff has failed to prove that he was ready and willing to perform the contract within the reasonable time. It is also argued that this being an essential condition for decreeing the suit, it was incumbent on the part to frame this issue, which has not been made by the learned trial Court. 16. It is argued by the learned counsel on behalf of the plaintiff/respondents that no time was stipulated in the agreement for executing the sale, the subject matter was being immovable property, time cannot be said to be the essence of the contract. It has come in the findings of both the Courts below that the plaintiff approached the defendants on several occasions for performance of the agreement. There is concurrent finding of fact that there was readiness and willingness on the part of plaintiff to perform his part of contract. Reliance is placed on AIR 1963 SC 863. 3 FINDINGS 17. Readiness and willingness is a question of fact regarding which both the learned Courts below have given concurrent finding in favour of the plaintiff. 18. Registered sale deed (Ext-D) was executed on 21.08.1975 for the suit land for a consideration amount of Rs.1000/- by Barho Lal in favour of Harsoo Singh, and on the same day an agreement of sale (Ext-3) was executed with respect to the very same property for the same promised consideration amount by Harshu Singh in favour of the Barho Lal. No time has been mentioned in the agreement of sale, but the recital specifically mentions that whenever the proposed purchaser makes one-time payment of the agreed consideration amount the sale deed would be executed. 19. Limitation is a mixed question of fact and law. The crucial question is when the time starts running? In the present case, as per the pleadings of the plaintiff, on several occasions the plaintiff had offered to pay the consideration amount and requested for the execution of the sale-deed, but the defendants kept on postponing the execution of the sale-deed for one reason or the other and kept on assuring the sale deed to be executed the next year. The learned trial Court on the point of limitation has returned a finding in favour of the plaintiff which has been concurred by the learned appellate Court. 20. P.W.3-Lila Saw has deposed that land in question belongs to Barho Lal and he had given this land on mortgage to Harsu Singh. He had gone several times to return the amount of Rs.1000/-, but he kept on delaying the matter and refused to take money. A panchayat was also held in this regard, but he refused to take the amount before the Punch. In his cross-examination, he has deposed that he was one of the members of Punch. P.W.4-Tika Baitha being an independent witness and has deposed that Barho Lal had given the land on mortgage to Harsu Singh for a sum of Rs.1000/-. The transaction had taken place before him. It was agreed that after the amount is returned, the land will be re-conveyed. Plaintiff offered to make the payment 6-7 times in his presence, but the defendants refused to accept the same. The land was in possession of Barho Lal. In his cross-examination also, he has deposed that he had offered to make to repayment 4-5 times in his presence. This witness is an unlettered farmer and has remained un-demolished in the cross-examination. P.W.5-Dular Kumhar is also an independent witness and has also stated that the land, in question was given on mortgage for a sum of Rs.1000/-, but he refused to take the money. This witness is also an independent witness of the 4 village and has specifically stated that the land in question was given on mortgage and on several occasions, the plaintiff had offered to return the amount, which was refused by the defendants. 21. On combined reading of testimonies of these witnesses, I do not find any infirmity regarding the findings of facts recorded by both the learned courts below that there was readiness and willingness on the part of the plaintiff to repay the amount which was refused to be accepted by the defendants. The present suit was filed only when on the last occasion, the defendants refused to accept the amount. Therefore, the findings of the learned Courts below cannot be faulted on both counts. In this view of the matter, the substantial questions of law regarding readiness and willingness and limitation is answered in favour of the plaintiffs/ respondents. 22. Having answered these two substantial questions of law (I & III), the judgment and decree passed by both the learned courts below for specific performance to sell the said land in favour of the plaintiff needs no interference. 23. It is a moot question whether execution of sale-deed coupled with an agreement of sale by the purchaser together constituted a mortgage with a condition of repurchase or not? We are dealing with a case of poor farmer, which is evident from the LTI and the scribbled signatures of the witnesses of the plaintiff. As discussed above, as per the intention of the parties as deposed to by the witnesses, the said document was intended to be a document of mortgage. As the terms of repurchase were written in a separate document of registered agreement of sale, therefore, if it can be said to be a mortgage or not, is left open. Facts of Indira Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488 at page 495 are almost similar to the present case. In this case, on the same day a sale deed for Rs.7000/- as well an agreement of sale was executed with regard to the same property for the same amount to be executed within a period of 10 years. The suit for specific performance of agreement was decreed. It was held that in transactions of sale of immovable properties, time is not the essence of the contract. The question whether or not the transaction was a transaction of mortgage, depends on the real intention of the parties. It would be difficult to hold that the agreement to sell executed by the defendants in favour of the plaintiff was by way of a “concession”. In the agreement to sell, no reference has been made to the transaction of sale though it has been executed contemporaneously. The agreement was executed evidently because the plaintiff would not have executed the sale deed unless an agreement to sell by a contemporaneous document was also executed to enable the 5 plaintiffs to enforce specific performance within ten years. Their Lordship’s decreed the suit for specific performance of agreement. Judgment and decree passed by both the learned Courts below are affirmed. Second appeal stands dismissed. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, 13th June, 2024 AFR/Anit 6