High Court
Case Details
Reserved A.F.R. Court No. 6 Case :- SECOND APPEAL No. - 657 of 2003 Appellant :- Babu Ram And Others Respondent :- Om Singh And Another Counsel for Appellant :- U.K. Mishra,A.K. Mishra,Ashutosh Mishra, I.B. Yadav,K. Mishra,V.K. Mishra.. Counsel for Respondent :- Y.S.Bohra,Pooja Agarwal Hon'ble J.J. Munir,J. 1. This is a defendants' second appeal, arising out of a suit for specific performance of contract. 2. Om Singh and Jay Bhagwan, who are the two respondents to this appeal, instituted Original Suit No. 769 of 1998 against Bhawar Singh, Suresh Pal, Rajpal, Tejpal, Babu Ram and Jagpal, all of whom are the appellants here, seeking a decree for specific performance of contract. It was the plaintiffs’ case that defendant no. 1 to the suit, Bhawar Singh is the bhumidhar of agricultural land comprising plot no. 248(M) admeasuring 0.008 hectares, plot no. 250 admeasuring 0.010 hectares, plot no. 251(M) admeasuring 1.354 hectares, plot no. 252/1 admeasuring 0.086 hectares, plot no. 252/2 admeasuring 0.020 hectares and plot no. 253 admeasuring 0.089 hectares, aggregating an area of 1.567 hectares, situate at Village Harchandpur, Tehsil and District Baghpat. Out of the said plots, he had sold away on 15.06.1994, a substantial part in favour of the plaintiff-vendees, leaving a residue of 0.237 hectares. The defendant-vendor Bhawar Singh executed a registered agreement to sell, relating to the remainder of 0.237 hectares of land in the plots above detailed, in favour of plaintiff-vendees Om Singh and Jay Bhagwan, covenanting to sell the said property for a total sale consideration of Rs. 48000/-. Bhawar 2 Singh received in earnest a sum of Rs. 5000/- out of the contracted sale consideration. 3. The agreement to sell was admitted to registration by the Sub-Registrar on 15.06.1994. It was covenanted that the conveyance in terms of the suit agreement shall be executed by Bhawar Singh (hereinafter referred to as the ‘defendant- vendor’) within a period of 1 year and 3 months, that is to say, by 15.09.1995. The plaintiffs, Om Singh and Jay Bhagwan pleaded that they have been ever ready and willing to get a conveyance executed and registered in accordance with the suit agreement and have never neglected to perform their part of the contract. Om Singh and Jay Bhagwan shall hereinafter be referred to as the ‘plaintiff-vendees’. 4. The plaintiff-vendees requested the defendant-vendor many a times over by word of mouth to come forward and execute the sale deed as covenanted after receipt of the balance sale consideration of Rs. 43,000/-, but the defendant- vendor would ward off responding to his obligation. The plaintiff- vendees, faced with inaction, caused a registered notice dated 14.08.1995 to be served upon the defendant-vendor through their learned Counsel Mr. Chashmveer Singh, an Advocate at Baghpat, calling upon the defendant-vendor to appear before the Sub-Registrar’s office at Baghpat on 15.09.1995 and execute the requisite sale deed in terms of the suit agreement, upon receipt of the balance sale consideration. The notice aforesaid was served upon the defendant-vendor in due time and on 15.09.1995, the plaintiff-vendees attended the office of the Sub-Registrar at Baghpat, but the defendant-vendor did not appear to fulfil his obligation under the suit agreement. The plaintiff-vendees, on 15.09.1995, reached the Sub-Registrar’s 3 office at Baghpat, along with balance sale consideration and waited outside the office throughout the day for the defendant- vendor. The plaintiff-vendees got their attendance marked with the Sub Registrar in accordance with rules. The defendant- vendor got the plaintiff-vendees' notice dated 14.08.1995 replied to through his Counsel vide a memo dated 23.08.1995,
Facts
carrying incorrect facts. The defendant-vendor’s reply to the notice dated 14.08.1995 assured the plaintiff-vendees that the former had turned dishonest and was disinclined to execute a sale deed in terms of his obligations under the suit agreement. 5. Accordingly, the plaintiff-vendees instituted Original Suit No. 769 of 1998 before the Court of Civil Judge (Senior Division), Meerut on 20.08.1998, seeking a decree of specific performance, ordering the defendant-vendor to execute the requisite sale deed in terms of the suit agreement after receipt of the balance sale consideration. It was further prayed that in the event the defendant-vendor does not comply with the decree within the time provided by Court, sale deed be executed in favour of the plaintiff-vendees through process of Court in accordance with law and actual physical possession over the suit property be delivered to them. The plaint, as originally drawn up, arrayed the defendant-vendor alone as the defendant and it was against him alone that the relief was sought. 6. A written statement dated 23.11.1998 was filed by the defendant-vendor, traversing the plaintiff-vendees’ case. He denied executing the suit agreement or receiving any earnest. It was pleaded that on 15.06.1994, that is to say, the date when the suit agreement is said to have been executed, the defendant-vendor had executed a sale deed of all his 4 agricultural holding in favour of the plaintiff-vendees, under the pressure of his son. The suit property was all that had been left with him. The defendant-vendor’s son was given to vices and had subjected the defendant-vendor to undue influence, asking him to execute a conveyance on 15.03.1994 in favour of the plaintiff-vendees. In deference to his son’s wishes, the defendant-vendor executed a sale deed in favour of the plaintiff- vendees, but was not paid any sale consideration. All that is shown as consideration in the sale deed would have been paid to the vendor’s son. The vendor did not receive anything towards consideration. It was denied that any notice was served upon the defendant-vendor, asking him to appear before the Sub-Registrar and further that he never caused a reply to that notice to be sent to the plaintiff-vendees through his Counsel. He never instructed any Counsel to answer the plaintiff-vendees' notice. It was the defendant-vendor's case that he never instructed any Counsel and if a reply had been sent to the plaintiff-vendees, it was a got up one, which the plaintiff-vendees got served upon themselves through Counsel, set up on the defendant-vendor’s behalf, without the latter’s authority. 7. It was further pleaded that the defendant-vendor is an illiterate and a poor man. He has a lone son, who is given vices and stays away from the village. The son brought undue influence to bear upon the defendant-vendor, forcing him to sell his land. Acting under his son’s pressure and influence, the defendant-vendor parted with 16 bighas (kachcha) of his agricultural holding in favour of the plaintiff-vendees through a registered sale deed dated 15.06.1994. The sale consideration set forth in the sale deed was never received by the defendant- vendor. He does not know how much money was paid. 5 Whatever consideration was paid by the plaintiff-vendees was received by the defendant-vendor’s son, who never accounted for it. It is pleaded that the defendant-vendor had a total of 19 bighas (kachcha) of agricultural holding, out of which he had a remainder of three bighas after execution of the sale deed last mentioned. He had retained the said land in order to feed his cattle. On the date the sale deed was executed in favour of the plaintiff-vendees, they had got a number of papers thumb marked by him and out of those papers, some were utilised to manufacture the suit agreement. The defendant-vendor came to know of all this transaction carried in the suit agreement, when he was served with the Court’s summons dated 19.08.1998 on 16.10.1998, asking him to appear and put in his written statement. 8. It is the vendor’s case that the plaintiff-vendees had got the suit agreement executed by playing fraud, taking undue advantage of his lack of understanding. They got the papers carrying the suit agreement thumb-marked by practising fraud and on the basis of that fraudulent agreement, they have instituted the present suit. The vendor never consciously executed the suit agreement nor did he come to know of this fraud in good time. It is also the defendant-vendor’s case that he is a humble farmer and had no occasion to purchase land or so to speak, experience of transacting sale/ purchase of land. 9. The plaintiff-vendees are natives of village Sunheda. They had their land in Village Harchandpur, which they have sold off and purchased land from the defendant-vendor worth the proceeds that they received from the sale of their land. The defendant-vendor agreed to sell that land in deference to his unworthy son’s wishes. He never wished to sell his land, but did 6 not have the courage to disoblige his son. He was left with three bigha (kachcha) land (the suit property) that he utilizes to earn his livelihood. He owned a buffalo that yielded milk, but the same was not sufficient to feed himself and his ageing wife. He has purchased, therefore, a bullock-cart after selling off his buffalo to make his ends meet. 10. It appears that pending suit, on 16.09.1998, the defendant-vendor sold off the suit property through a registered conveyance in favour of Babu Ram, Jagpal, Tejpal and Rajpal, all sons of Preetam Singh and Suresh Pal son of Dalel. In order to avoid any legal complication, these defendant-purchasers pendente lite were applied to be impleaded as defendants to the suit by the plaintiff-vendees and necessary amendment sought to the plaint, both of which were granted. Accordingly, appellant nos. 1 to 5 to this appeal were impleaded as defendant nos. 2 to 6 to the suit. The defendants-appellant nos. 1 to 5 shall hereinafter be referred to as the defendant- purchasers. It appears that pending suit, the suit property, in relation whereto, the suit agreement was executed, was the subject matter of consolidation, in consequence whereof the plot numbers mentioned in the suit agreement were assigned a new number bearing khasra no. 530. Therefore, along with the amendment sought to implead the defendant-purchasers and bringing on record facts about the sale deed in their favour, an amendment was also sought to the plaint, pleading that the old plot numbers, subject matter of the suit agreement, have been assigned a new khasra number bearing no. 530 during consolidation with an identical area. 11. The written statement filed by the defendant-vendor was amended twice; once on 12.10.2000 and the other on 7 11.04.2001. By the amendment of 12.10.2000, it was pleaded that the plaintiff-vendees never expressed their willingness to purchase the suit property and never demanded execution of a conveyance on the basis of the suit agreement. 12. By the other amendment dated 11.04.2001, it was pleaded that the defendant-purchasers have purchased the defendant-vendor's entire land comprising plot no. 530 admeasuring 0.237 hectares, whereof the defendant-vendor was the sole bhumidhar, the said land being allotted to him under Section 30 of the U.P. Consolidation of Holdings Act, exclusively, and in relation whereto, he had complete rights under the law to transfer in favour of the defendant-purchasers. It was pleaded that the transfer made in favour of the defendant-purchasers was valid and the said conveyance does not entitle the plaintiff-vendees to any compensation from the defendant-vendor. A plea was further incorporated to the effect that the suit is barred by limitation. 13. A separate written statement was filed on behalf of the defendant-purchasers jointly on 10.04.2000, in substance, pleading a case that they were the bona fide purchasers for value without notice. The other pleadings raised are the same as those raised by the defendant-vendor that the suit agreement was secured by the plaintiff-vendees through the practice of fraud etc. which does not confer any right upon them. 14. On the pleadings of parties, the Trial Court framed the following issues (translated into English from Hindi): “1. Whether the plaintiffs are entitled to get a sale deed executed in their favour on the basis of the disputed agreement to sell dated 15.06.1994 as pleaded in plaint? 8 2. Whether the disputed agreement was executed by Bhawar Singh in favour of the plaintiffs is without consideration as pleaded in paragraph no. 11 of the written statement bearing paper no. 18 ka-1, if yes, its effect on the suit? 3. Whether the disputed agreement to sell dated 15.06.1994 was got executed by the plaintiffs by defrauding the defendant, as pleaded in paragraph no. 13 of the written statement? 4. Whether defendant nos. 2 to 6 are bona fide purchasers for value without notice as pleaded in paragraph no. 18 of their written statement bearing paper no. 31 ka-1? 5. Relief, to which the plaintiffs are entitled? 6. Whether the suit is time barred? 7. Whether defendant no. 1 has exclusive right to the suit property? 8. Whether defendant nos. 2 to 6 in their capacity as the transferees of the disputed land have exclusive right to it, if yes, its effect?” 15. The plaintiff-vendees, in support of their case, have led documentary evidence that inter alia includes the suit agreement in original, marked Ex. ka-2, the notice dated 14.08.1995 in original, marked as Ex. ka-1, registered postal receipt paper no. 10-ga, the A.D. Card paper no. 11-ga, the reply to the notice dated 23.08.1995, paper no. 12-ga, a certified copy of the application for attendance, paper no. 13-ga Ex. ka-3, a certified copy of the application for attendance Ex. ka-4, a certified copy of CH-Form Ex. ka-1, a certified copy of CH-Form-41, Ex. 2. In addition, oral evidence was led on behalf of the plaintiff-vendees comprising PW-1 Om Singh, PW-2 Shiv Charan and PW-3 Virendra Kumar. 16. The defendant-vendor and the defendant-purchasers filed the sale deed in original executed by the defendant-vendor in favour of defendant-purchasers dated 16.09.1998 paper no. 43- ka. In their oral testimony, the defendant-vendor and the 9 defendant-purchasers examined DW-1 Bhawar Singh and DW- 2 Babu Ram. 17. The Trial Court, by its judgment and decree dated 08.05.2002, decreed the plaintiff-vendees' suit for specific performance of contract, ordering the defendant-vendor to execute the requisite sale deed in favour of the plaintiff-vendees within a month after receiving the balance sale consideration. 18. The defendant-purchasers and the defendant-vendor together carried an appeal to the learned District Judge, Meerut from the Trial Court’s decree. The appeal was numbered as Civil Appeal No. 130 of 2002 and came up for determination before the learned District Judge, Meerut on 11.02.2003. The learned District Judge, Meerut dismissed the appeal with costs, affirming the Trial Court. 19. Aggrieved, this appeal from appellate decree has been carried by the defendant-vendor and the defendant-purchasers together. The appeal was admitted to hearing on 22.05.2003 and by a separate order of the said date, operation of the decree for specific performance was stayed. Since the order of admission made on 22.05.2003 did not formulate the substantial questions of law involved, but admitted the appeal with reference to the question no. 9-B as framed at the foot of the appeal, this Court, before the opening of hearing, proceeded to formulate the substantial questions of law involved vide order dated 01.09.2021. The substantial questions of law involved in this appeal read: (1) Whether a suit for specific performance can be decreed without an issue about readiness and willingness being framed? 10 (2) Whether a suit for specific performance can be decreed without an issue of readiness and willingness being framed where the issue is substantially suited between parties? (3) Whether specific performance can be granted in relation to agricultural land that has been the subject matter of consolidation operations where the vendee has been moved to different plots, different from those that are subject matter of the suit agreement (4) Whether the Court while granting specific performance ought to exercise discretion according to the principles settled under Section 20 Specific Relief Act?
Legal Reasoning
Atma Ram v. Charanjit Singh2, the decision of this Court in Dhanu v. Ajai Kant and others3 and the authority of the Karnataka High Court in Channayya & another v. Annapurna4. 25. The learned Counsel for the plaintiff-vendees, Ms. Pooja Agarwal, has refuted the submissions advanced on behalf of the defendants on the questions under consideration. She submits that a perusal of the record indicates that the plaintiff- vendees have categorically averred in the plaint that they are ever ready and willing to perform their part of the contract and had given notice to the defendant-vendor to appear in the Office of the Sub-Registrar, Baghpat on 15.09.1995 to execute the covenanted sale deed. It was the defendant-vendor, who was in breach and did not turn up all through the day before the Sub- Registrar. It is pointed out that oral and documentary evidence have been led by the plaintiff-vendees to establish the twin facts 2 (2020) 3 SCC 311 3 2019 SCC OnLine All 5148 4 2006 SCC OnLine Kar 24 13 of readiness and willingness. She submits that by deciding Issue No.1 along with Issue No.7, the Trial Court has wholesomely tried the issues of readiness and willingness. Upon consideration of the relevant evidence, the Trial Court has found the plaintiff-vendees ready and willing to perform their part of the contract under the suit agreement. It is the learned Counsel's submission that a finding has been recorded by the Trial Judge that the notice dated 14.08.1995 was received by the defendant-vendor, but he did not appear before the Sub- Registrar on 15.09.1995 to execute the sale deed. It has also been found that the plaintiff-vendees had appeared and their attendance was recorded by the Sub-Registrar, Baghpat on 15.09.1995. 26. It is urged that the Lower Appellate Court has also recorded a finding of fact that the plaintiff-vendees were ready and willing to perform their part of the suit agreement. The learned Counsel for the plaintiff-vendees has relied upon the decision of the Supreme Court in Official Liquidator, Supreme Bank Ltd. v. P.A. Tendolkar (dead) by LRs and others5 and further upon the authority of their Lordships in P. Purushottam Reddy and another vs. Pratap Steels Ltd.6 It is submitted by Ms. Pooja Agarwal that failure to frame a specific issue on ‘readiness’ and ‘willingness’, may be an irregularity, but in a case like the one here, where both parties have led oral and documentary evidence, bearing on the issue directly, which has been adjudicated by both Courts of fact below, the decree of specific performance, resultant on those findings, cannot be held vitiated.
Arguments
20. Heard Mr. Ashutosh Mishra, learned Counsel for the defendant-vendor and the defendant-purchasers. Ms. Pooja Agarwal, learned Counsel appearing on behalf of the plaintiff- vendees, has been heard in answer. 21. Substantial Questions of Law Nos.1 and 2 are essentially the same, with the second question carrying the essence of the proposition involved to its last detail. As such, both the questions are being dealt with together. 22. It is submitted by Mr. Ashutosh Mishra, learned Counsel for the defendants that in a suit for specific performance, it is essential that the plaintiffs must show their readiness and willingness at all times. Readiness connotes financial capacity of the one who seeks to enforce specific performance, whereas willingness distinctly refers to his personal or mental inclination to enforce performance of the contract. Section 16(c) of the Specific Relief Act, 1963 mandates 'readiness' and 'willingness' on the plaintiffs' part and is a condition precedent to the grant of relief of specific performance. The law requires that the plaintiffs must allege and prove a continuous 'readiness' and 'willingness' from the date of the contract till the institution of the suit. It is 11 emphatically argued that the Trial Court's failure to frame an issue with regard to the plaintiffs' 'readiness' and 'willingness' renders the decree passed by the two Courts below unsustainable in law. It is pointed out by the learned Counsel for the defendants that failure of the Trial Court to frame a proper issue with regard to 'readiness' and 'willingness' and the resultant failure of justice was culled out as a ground in the memorandum of appeal lodged before the Lower Appellate Court, that has been asserted in Paragraph No.8 thereof. 23. Elaborating these submissions, it is argued that the plaintiff-vendees have failed to establish their 'readiness' in view of the specific averments carried in Paragraph No.14 of the written statement filed on behalf of the defendant-purchasers. In support of his submission on this score, Mr. Ashutosh Mishra has placed reliance on the decision of the Supreme Court in M/ s. J.P. Builders and another v. A. Ramadas Rao and another1. It is next submitted that without framing an issue about readiness and willingness, the Trial Court has returned a finding about willingness alone, with nothing said on the point of readiness. To this end, learned Counsel for the defendants has drawn the attention of the Court to the findings of the Trial Court recorded on Issue Nos.1 and 2. 24. It is submitted by Mr. Mishra that the plaintiff-vendees have failed to prove their readiness and willingness from 15.09.1995 (the date when they appeared before the Sub- Registrar) to 20.08.1998 (the date of institution of the suit). The Courts below, in the submission of the learned Counsel for the defendants, have failed to take into consideration the plaintiff- vendees' failure to prove their ‘readiness’ and ‘willingness’ throughout the aforesaid period of time. Instead, the Lower 1 (2011) 1 SCC 429 12 Appellate Court has returned a perverse finding that the suit can be filed even on the last date of limitation with a remark that people tend to avoid litigation. It is urged that the Lower Appellate Court has committed a manifest error of law in not appreciating the fact that ‘readiness’ and ‘willingness’ had to be established on the last day of limitation also. The Lower Appellate Court, according to the learned Counsel for the defendants, has confounded the limitation prescribed for instituting the suit with the requirement of readiness and willingness to get a conveyance executed in terms of the contract, a matter generically different from limitation. In support of his contention, learned Counsel for the defendants has further placed reliance on the decision of the Supreme Court in