12/11/2015
AGREEMENT TO SELL : SUIT FOR SPECIFIC PERFORMANCE
12 NOV 2015ADMIN
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PIC 0139 b4RAJASTHAN HIGH COURT
(ARUN BHANSALI, J.)
NOHNIHAL AND ANR.
Appellant
VERSUS
SMT. BHAJAN KAUR AND ORS.
Respondent
S.B. Civil First Appeal No. 74 of 1989-Decided on 28-7-2014.
Specific Relief Act (47 of 1963), Section 20 – Agreement to sell – Suit for specific performance
Advocate(s): L. R. Mehta, Praduman Singh, Sushant Daga, for Appellants;
J. L. Purohit, Senior Advocate, Rajeev Purohit, for Respondent.
JUDGMENT
1. This appeal under Section 96 CPC is directed against judgment and decree dated 20.05.1989 passed by Additional District Judge No.1, Sri Ganganagar, whereby, the suit for specific performance and permanent injunction filed by appellants-plaintiffs has been dismissed.
2. The facts in brief may be noticed thus : the plaintiffs filed suit with the averments that Pal Singh, father of defendant Nos. 1 and 4 had agricultural land in Chak 40 H.B.; on his death, the defendant Nos. 1 and 4, their mother Smt. Sant Kaur and Jogendra Singh succeeded to the land in equal shares; the land was partitioned on 08.07.1980 and the defendant No. 1 got 23 Bigha 5 Biswa land in Murabba No. 13 and 6 Bigha in Murabba No. 5 of Chak 40 H.B.; before the said partition, the defendant No. 1 was in possession of the land comprised in Murabba Nos. 14 and 20 as well; she sold 8 Bigha 3 Biswa and 4 Bigha 3 Biswa lands in Murabba Nos. 14 and 20 respectively to some persons including plaintiff No. 2 – Tara Singh vide sale deed dated 11.06.1980 and delivered possession; however, after the partition took place among legal representatives of Pal Singh on 08.07.1980, defendant No. 1 retained 7 Bigha 5 Biswa land in Murabba No. 13 and 6 Bigha in Murabba No. 5 and the remaining 16 Bigha land in Murabba No. 13 was delivered to plaintiff No. 2 – Tara Singh in exchange of land sold on 11.06.1980 comprised in Murabba Nos. 14 and 20; it was then claimed that defendant No. 1 agreed to sell land admeasuring 6 Bigha in Murabba No. 5 to plaintiff No. 1 for a sum of Rs. 42,000/- and received Rs. 15,000/- as advance, delivered possession of the land to him and the remaining amount was to be paid at the time of registration of the sale deed; by the same agreement, the defendant No. 1 also agreed to sell 7 Bigha 5 Biswa land comprised in Murabba No. 13 to the plaintiff No. 2 Tara Singh for Rs. 50,750/- and received Rs. 15,000/- by way of advance and similarly the possession of the land was to be delivered to plaintiff No. 2; the defendant No. 1 also got the parchies pertaining of water turn from the Irrigation Department in the name of plaintiffs; it was claimed that the plaintiffs were in possession of the land since 09.07.1980; they were ready and willing to perform their part of the contract; however, the defendant Nos. 1 and 4 were bent upon forcibly evicting the plaintiffs from the land in their possession and, as such, the plaintiffs filed suit in the Court Sub Divisional Officer (Revenue), Srikaranpur on 20.08.1981 and obtained temporary injunction restraining the defendants from executing sale deed in respect of the said land; despite the interim order, the defendant No. 1 through her power of attorney holder Bachan Singh in collusion with defendant No. 4 executed sale deed in respect of 7 Bigha land in Murabba No. 13 in favor of defendant No. 3 Ajeet Kaur on 24.08.1981 and in respect of 6 Bigha land in Murabba No. 5 in favor of defendant No. 2 Jagdev Singh on 25.08.1981; the sale deeds were fictitious; the defendant Nos. 2 and 3 were fully aware about the agreement to sell dated 09.07.1980 in plaintiffs’ favor and they also knew that the said land was in their possession; it was claimed that defendant No. 1 was bound to execute sale deed in respect of the land in question and prayed for decree for specific performance regarding agreement to sell dated 09.07.1980 and permanent injunction restraining the defendants from interfering with the plaintiffs’ possession over the suit land.
3. The defendants contested the suit by filing written statement; defendant No. 1 in her written statement admitted the fact regarding partition; it was claimed that the defendant entered into agreement to sell dated 05.02.1980 regarding the suit land @ Rs. 6,000/- per Bigha and had received Rs. 30,000/- as advance; defendant No. 4 was already in possession of the land and same continued with him in part performance of the agreement dated 05.02.1980; the sale deed dated 11.06.1980 executed by her in favor of plaintiff No. 2 and others in respect of land comprised in Murabba Nos. 14 and 20 was admitted but stated that the said land in fact fell in the share of defendant No. 4 and Jagdev Singh; the plaintiff No. 2 and others tried to obtain possession of the land and on that count dispute arose between the other persons and defendant No. 4; the matter was ultimately settled by the Panchayat, pursuant to the settlement, the plaintiff No. 2 and others got 16 Bigha land in Murabba No. 13 in exchange of the land in Murabba Nos. 14 and 20 on 08.07.1980; the settlement was also accepted by defendant Nos. 2 to 4 and, as such, possession of 16 Bigha land in Murabba No. 13 was delivered to plaintiff No. 2 and other purchasers; the ex*****on of suit agreement dated 09.07.1980 and receipt of consideration and delivery of possession was denied; she admitted signatures on the agreement but explained it by contending that she did sign certain papers for getting water parchies in plaintiff No.2′s name in respect of land sold vide sale deed dated 11.06.1980; the plaintiffs have executed agreement on blank papers, which bear her signatures and they do not get any right based on forged document; it was also claimed that sale deeds have already been executed in favor of defendant Nos. 2 and 3 on 24.08.1981 and 25.08.1981 and, therefore, the plaintiffs are not entitled to any relief.
4. The defendant Nos. 2 to 4 filed their written statement and reiterated the facts stated in the written statement of defendant No. 1 and it was prayed that the suit be dismissed.
5. The plaintiffs filed rejoinder to the written statement; it was claimed that the agreement dated 05.02.1980 was a forged and concocted document and it was stated that defendant No. 1 executed all the documents and did not sign any plain papers.
6. Based on the pleadings of the parties, the trial court framed 8 issues; after oral and documentary evidence was led by the parties, the trial court came to the conclusion that the defendant No. 1 did not execute the agreement in plaintiffs’ favor; issue regarding readiness and willingness was also decided against the plaintiffs in view of findings regarding non-ex*****on of the document; the issue regarding ex*****on of agreement dated 05.02.1980 was also decided against the defendants and it was held that defendants failed to prove the ex*****on of the agreement; the issue regarding bona fide purchase by defendant No. 4 was also decided in favor of the defendants; the suit was held to be maintainable and it was held that the defendants were not entitled to any special costs; ultimately, the suit was dismissed.
7. It is submitted by learned counsel for the appellants that the judgment and decree passed by the trial court is contrary to law and facts of the case; the ex*****on of the agreement dated 09.07.1980, receipt of consideration and delivery of possession is clearly proved from record; the signatures on the suit agreement were admitted and there was no occasion for the trial court to frame the issues regarding ex*****on of the agreement and cast the burden on the appellants; in fact the burden was on the defendants to prove that the signatures were put on blank stamp papers; Chanan Singh PW-3 a witness to the agreement had corroborated the testimony of the appellants and Ram Lal PW-4 Patwari had clearly stated in his evidence regarding the barabandi in plaintiffs’ favor; merely because the stamps for the agreement were purchased on 11.06.1980 i.e. before the settlement by Panchayat on 08.07.1980, it cannot be said that the agreement was suspicious; merely because Sita Ram the scribe was won over by the defendants, it cannot be said that the ex*****on of the agreement was not proved; the version of Sita Ram DW-2 and Gurnam Singh DW-5 is not at all believable; the appellants’ possession has not been explained by the defendants, which clearly fortifies agreement; the possession of the plaintiffs on the suit land is fully established; the plaintiffs had proved their readiness and willingness to perform their part of the contract; the issue Nos. 4 and 5 regarding bona fide nature of transaction and possession of the land is contrary to the record of the case; it was prayed that the appeal be allowed and the suit filed by the plaintiffs be decreed.
8. Per contra learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the appellants and supported the judgment and decree passed by the trial court; it was submitted that the trial court has thoroughly examined the oral and documentary evidence and has rightly concluded that the agreement was not executed by defendant No. 1 Bhajan Kaur; the plaintiff No. 2 taking advantage of blank signed stamp papers has clearly misused the same and has failed to prove the ex*****on of the agreement; the oral and documentary evidence available on record clearly indicate that the agreement was not executed by the defendant, inasmuch as, the scribe and one of the witness to the agreement have appeared as defendants’ witnesses and have clearly supported the defendants’ version; the allegations of winning over are baseless; the fact that the sale deed regarding another piece of land was executed on 11.06.1980 clearly proves the fact that plaintiff No. 2 Tara Sing was already in contract with the defendants and had misused the said aspect only with a view of grab the land in question; it was submitted that the appeal has no substance and the same deserves to be dismissed.
9. In the alternative it was submitted that in case this Court comes to the conclusion that the agreement (Exhibit-1) was executed by Bhajan Kaur, then in that case as the agreement provides for compensation, the plaintiffs are entitled for compensation only; it was further submitted that the relief of specific performance being discriminatory as envisaged by Section 20 of the Act and as the plaintiffs have not approached the Court with clean hands, they are not entitled for relief of specific performance.
(a) Reliance was placed on Harish Singh & Ors. v. Lalu Ram : 1997 (1) RLR 31,
(b) Lourdu Mari David & Ors. v. Louis Chinnaya Arogiaswamy & Ors. : (1996) 5 SCC 589,
(c) Nirmala Anand v. Advent Corporation (P) Ltd. & Ors. : (2002) 5 SCC 481,
(d) A.C. Arulappan v. Ahalya Naik : (2001) 6 SCC 600, Manohar Lal Alias Manohar Singh v. Maya : (2003) 9 SCC 478,
(e) Dadarao & Anr. v. Ramrao & Ors. : (1999) 8 SCC 416
(f) Manikkoth Narayani Amma & Ors. v. P.C. Kalliani Amma & Ors. : (2003) 9 SCC 245.
10. I have considered the rival submissions made by learned counsel for the parties and have perused the judgment passed by the trial court alongwith record of the trial court.
11. The foundational facts which are not in dispute in the present case are that defendant Bhajan Kaur executed a sale deed dated 11.06.1980 in favor of plaintiff No. 2 – Tara Singh and certain other persons regarding land comprised in Murabba Nos. 14 and 20 admeasuring 12 Bigha 6 Biswa; as the said land was part of land belonging to Pal Singh – father of Bhajan Kaur and besides her, there were other successors also, the same led to dispute between Bhajan Kauir and the co-successors; a compromise/settlement dated 08.07.1980 (Exhibit-6) was arrived at among the successors of Pal Singh including Bhajan Kaur, which was supported by the vendees of sale deed dated 11.06.1980, whereby, Bhajan Kaur was allotted land admeasuring 23 Bigha 5 Biswa in Murabba No. 13 and 6 Bigha in Murabba No. 5, in all admeasuring 29 Bigha 5 Biswa; out of the said land, in exchange for 12 Bigha 6 Biswa land forming subject matter of the sale deed dated 11.06.1980, Bhajan Kaur agreed to deliver 16 Bigha land comprised in Murabba No. 13 and possession whereof was handed over to plaintiff No. 2 – Tara Singh and the co-vendees; after the exchange, defendant No. 1 – Bhajan Kaur was left with 7 Bigha 5 Biswa and 6 Bigha land in Murabba Nos. 13 and 5 respectively.
12. It is claimed by the plaintiffs Nonihal Singh and Tara Singh that defendant No. 1 agreed to sell land admeasuring 6 Bigha comprised in Murabba No. 5 to Nonihal Singh and 7 Bigha 5 Biswa comprised in Murabba No. 13 to Tara Singh on 09.07.1980 and an agreement (Exhibit-1) was executed by Bhajan Kaur in this regard; the possession of the land was handed over to the plaintiffs and in pursuance thereof they got the barabandi in their favor and since then they are in possession of the suit property; Bhajan Kaur along with her brother tried to forcibly evict the plaintiffs and, as such, the suit was filed by them before the Sub Divisional Officer and an injunction was granted in their favor, however, one Bachan Singh power of attorney holder of Bhajan Kaur in collusion with defendant No. 4 – Charanjeet Singh executed sale deeds of the land in dispute in favor of defendant Nos. 2 and 3; therefore, the plaintiffs were entitled for specific performance of the contract.
13. The plea in defence raised by Bhajan Kaur essentially is that though the document Exhibit-1 bears her signatures, she never entered into any agreement for sale of land in dispute and the plaintiffs have misused the blank signed stamp papers lying with plaintiff No. 2 – Tara Singh, which were handed over to him at the time of ex*****on of sale deed dated 11.06.1980. Another plea raised by her pertains to ex*****on of an agreement to sale dated 05.02.1980 (Exhibit-A/1) qua the suit land in favor of Charanjeet Singh – her brother and that she had handed over possession of the suit land to the said Charanjeet Singh.
14. The issues which arise for determination in this appeal are whether the defendant Bhajan Kaur entered into agreement to sale (Exhibit-1) and whether the plaintiffs are entitled to decree for specific performance.
15. The trial court after analyzing the oral and documentary evidence came to the conclusion that the agreement was not entered into by Bhajan Kaur and, consequently, dismissed the suit.
16. A close scrutiny of the document Exhibit-1 and the oral evidence, which has come on record, reveals that the agreement is claimed to have been entered into by Bhajan Kaur on 09.07.1980 i.e. the day next to the date when compromise/settlement/partition qua the agricultural land succeeded by Bhajan Kaur along with her brothers and sister-in-law was arrived at.
17. It is interesting to note that a joint agreement qua two different parts of land at different rate per bigha was claimed to have been jointly executed with persons who are apparently not connected with each other; a look at the agreement (Exhibit-1) reveals that the same has been executed on two stamp papers, said to have been purchased by Bhajan Kaur on 11.06.1980; while the signatures on the first page are in quite dark ink, the same on the second page are quite dull, which fact has been accepted by both the plaintiffs in their cross-examination; initially the date indicated in the agreement is 11.06.1980, which has been scored out and 09.07.1970 has been indicated.
18. The crucial aspect of the matter is the following part of cross-examination of PW-2 – Tara Singh, which reads as under:-
19. In the above cross-examination Tara Singh claimed that talks/agreement regarding the suit land happened on 11.06.1980, on that day he was not aware that Bhajan Kaur would get land in Murabba Nos. 13 and 5 on partition; on 11.06.1980 he had entered into agreement qua the entire land and registration of 12 Bigha 5 Biswa took place; the agreement was oral and why Nonihal Singh did not get registration executed on 11th he did not know and then claimed that on 11.06.1980 talks happened with him alone; the agreements with other co-purchasers happened earlier and agreement with him was for 4 Bigha; the agreement (Exhibit-1) does not contain the facts about the earlier agreements and the written agreement was not entered into on the said date and no stamps were purchased for the said purpose.
20. The above statement of Tara Singh clearly demonstrates that he was making absolutely incorrect statements, inasmuch as, on 11.06.1980 he alongwith other co-purchasers purchased land comprised in Murabba Nos. 14 and 20 from Bhajan Kaur treating her to be the owner of the land comprised in the said Khasras; further on 11.06.1980 it could not be envisaged that a partition/compromise/settlement would take place and Bhajan Kaur would get land comprised in Murabba Nos. 13 and 5 in the partition/compromise/settlement dated 08.07.1980 (Exhibit-6) and, therefore, the claim that the agreement was entered into/talks had been concluded qua the land comprised in Murabba Nos. 13 and 5 on 11.06.1980 itself appears to be wholly improbable; it has further been admitted by Tara Singh that Nonihal Singh was not in picture on 11.06.1980 and, therefore, it was incumbent on him to explain as to how Nonihal Singh came in picture and the agreement Exhibit-1 was executed partly in favor of Nonihal Singh and partly in favor of Tara Singh.
21. The fact that the stamp papers, on which, the agreement Exhibit-1 has been executed were purchased on 11.06.1980, is also not in dispute; the case of the plaintiffs is that the agreement was entered into at the Tehsil; PW-1 – Nonihal Singh stated that they approached the scribe alongwith stamp papers and when he asked for stamps worth Rs. 3/-, Balwant Singh and Bhajan Kaur went back and brought the stamp papers; the fact that the agreement is alleged to have been executed at the Tehsil and for getting the requisite stamp papers if Balwant Singh and Bhajan Kaur were required to go back and not purchase the same at the Tehsil itself clearly raises doubt on the plea raised by the plaintiffs; the scribe Sita Ram was named as a witness by the plaintiffs and when he appeared as witness, an application was filed by the plaintiffs on 04.12.1987 indicating that the witness has become too old and was expressing inability in identifying the writing and, therefore, he is not being produced; however, the scribe appeared as defendants’ witness as DW-2 and specifically deposed that Bhajan Kaur was not present at the time when the agreement was executed and the same was inscribed at the office of Gopiram, Advocate at the instance of Jagdish, his colleague.
22. In the cross-examination he admitted that he appeared in Court as plaintiffs’ witness and denied that he was telling lies; he was not cross-examined on his ability to depose at the time when he appeared as plaintiffs’ witness and the said deposition by DW-2 – Sita Ram, the admitted scribe, clearly supports the version of the defendant that she was not present at the time when the document was scribed and the stamps bore her signatures from before the time of writing the same. Besides said scribe, DW-5 – Gurnam Singh one of the witness to the agreement Exhibit-1 also appeared as defendants’ witness and supported the version of the defendants.
23. So far as statement of Chanan Singh (PW-3) alleged second witness to the agreement (Exhibit-1) is concerned, the said witness in the examination in chief claimed that the oral agreement happened in his presence and the written agreement (Exhibit-1) was also executed in his presence. He further claimed that the agreement was signed by Gurnam Singh and Ujagar Singh. In cross-examination he claimed that Balwant Singh (husband of Bhajan Kaur) called him for attesting the document and Bhajan Kaur, Nonihal Singh and Tara Singh were not with Balwant Singh. He further stated that a night before the agreement Bhajan Kaur and Balwant Singh stayed at Hazara Singh’s house.
24. The statements made by Chanan Singh are either not corroborated by any other witness or the same stand contradicted by plaintiff himself, as such the same cannot be believed. The plaintiff Tara Singh does not talk of presence of Chanan Singh at the time of alleged oral agreement on 11.06.1980. The agreement (Exhibit-1) does not bear signatures of Ujagar Singh as claimed. Plaintiff – Tara Singh himself has stated that they took both the witnesses from mandi and that Bhajan Kaur stayed at the residence of Nonihal Singh, which clearly proves the statements of Chanan Singh and/or of Tara Singh as incorrect and not worthy of any credence.
25. From the nature of document (Exhibit-1) i.e. the date of stamp papers, placing of signatures, ink thereof and the evidence of the parties, it is apparent that the document (Exhibit-1) was not executed at the instance of and in the presence of defendant No. 1 – Bhajan Kaur and the same was scribed on stamp papers, which were pre-signed by Bhajan Kaur; the plea raised by Bhajan Kaur about handing over of signed stamp papers to Tara Singh at the time of ex*****on of sale deed pertaining to Murabba Nos. 14 and 20 on 11.06.1980 for the purpose of alternation in the barabandi etc. also appears to be plausible as on 11.06.1980 when defendant Bhajan Kaur executed the sale deed, the partition among the legal representatives of Pal Singh had not taken place and with a view to sell the non-partitioned property and to make it fait accompli for her brothers, she appears to have handed over the stamp papers for giving effect to the sale with irrigation and other authorities.
26. So far as plea raised by the plaintiffs regarding they being in possession of the land in question and the possession being only on account of the agreement Exhibit-1 is concerned, suffice it to notice that the defendant Bhajan Kaur had first sold land comprised in Murabba Nos. 14 and 20 to the plaintiffs, which led to dispute between the parties, whereby, the brothers of Bhajan Kaur resisted delivery of possession, several suits and counter suits were filed by the parties before the revenue courts and where after the settlement (Exhibit-6) was arrived at among the legal representatives of Pal Singh and part of land comprised in Murabba No. 13 was handed over to Tara Singh and other co-purchasers. Further, admittedly Bhajan Kaur is not resident of Srikaranpur; is a resident of District Kapurthala in Punjab and Nonihal Singh is her first cousin (son of maternal uncle) and, therefore, it was quite convenient for the plaintiffs to possess the land belonging to the defendant Bhajan Kaur, specially in view of strained relationship between Bhajan Kaur and her brothers, in her absence.
27. In view thereof the mere fact that vide Exhibits-2 to 4 the barabandi stand in the name of the plaintiff No. 1 qua Murabba No. 5 only, which also has been got issued only on 22.05.1981, by itself cannot prove the agreement Exhibit-1; further, the agreement is claimed to have been entered into on 09.07.1980 and even as per the plaintiffs, the dispute arose within a short span which led to filing of the suit by the plaintiffs on 20.08.1981, cannot lead to an inference regarding defendant Bhajan Kaur’s acquiescence to plaintiffs’ possession and its delivery in pursuance to the so called agreement (Exhibit-1).
28. In view of the above discussion, it is apparent that the alleged agreement (Exhibit-1), though the stamp papers bear signatures of Bhajan Kaur, was not executed by her and, as such, the plaintiffs are not entitled for any relief in the present appeal as well.
29. In view of the above, the findings recorded by the trial court on issue Nos. 1 and 2 do not call for any interference. The findings on issue Nos. 1 and 2 having been recorded against the plaintiffs-appellants, the other issues go into oblivion and have no implication and, therefore, the findings recorded by the trial court do not call for any interference. The alternative plea raised by counsel for the respondents also does not require any adjudication.
30. Consequently, there is no substance in the appeal and the same is, therefore, dismissed. No costs.
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Nohnihal Vs. Bhajan Kaur[2015 STPL(LE-Civil) 91159 RAJ]
