IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 299 of 1998 Date of Decision : November 9, 2010 Sh. Ishwar Dass Appellant Versus Smt. Bhagati Devi and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate, for the appellant. For the respondents : Mr. Tarlok Chauhan, Advocate, for respondent No. 1. Mr. Dinesh Bhanot, Advocate, for respondents No. 5(a) and 5(b). Sanjay Karol, J. (Oral) This is plaintiff’s regular second appeal filed under Section 100 of the Code of Civil Procedure, 1908. 2. Plaintiff’s Civil Suit No. 70 of 1992, for specific performance of agreement to sell and symbolic possession of the suit land stands partly decreed by Senior Sub Judge, L&S at Kullu, H.P. (Exercising the Powers of SJIC, Kullu, H.P.) in terms of judgment and decree dated 22.7.1997. Aggrieved of the same plaintiff Sh. Ishwar Dass filed an appeal before the District Judge, Kullu, H.P. Defendant No. 2 Sh. Gurdial and defendant No. 3 Sh. Anup Ram who are real Whether reports of Local Papers may be allowed to see the judgment? 2 brothers of Smt. Bhagati Devi (defendant No. 1) also filed Cross Objections. Both the appeal and the cross objections stand dismissed by the District Judge, Kullu in terms of judgment and decree dated 30.5.1998. 3. Operative portion of the judgment reads as under:- “8. In view of discussion and findings on points No. 1 and 2 above, the appeal of the plaintiff/appellant fails and the appeal is dismissed. The cross-objections filed by the defendants/respondents No. 2 and 3 also fail and the cross-objections are also dismissed. The impugned judgement and decree of the trial Court dated 22.7.97 is upheld. The parties are, however, left to bear their own costs of the appeal in view of the peculiar facts and circumstances of the case. The original judgment be placed in the civil appeal No. 66/97 titled Ishwar Dass versus Bhagti Devi etc and the copy of the same be placed in cross-objections No. 1/97 titled as Gurdial Singh etc versus Bhagti Devi etc. The file of the trial court be sent back alongwith a copy of this judgment and the file of the cross-objections be tagged with Civil Appeal and then be consigned to record room.” 4. Plaintiff alone has filed the instant appeal which stands admitted on the following substantial questions of law:- “1. Whether the First Appellate Court was right in allowing the Ist defendant in a suit for a specific performance of the agreement entered into by defendants No. 2 and 3 on his behalf also to urge or raise questions, which were not otherwise permissible even in the power of attorney or in that 3 respect even the Ist defendant to be raised in defence? 2. Whether the judgment and decree passed by the Court below are against Section 10(1) of the Specific Relief Act and for that matter, the judgment and decree of the Ist Appellate Court is vitiated? 3. Whether the Ist Appellate Court had committed an error in law in denying relief to the plaintiff- appellant on the ground that the Ist defendant was in possession when the relief claimed in the suit was itself for both the specific performance and recovery of the possession. 4. Whether on the facts and circumstances of the case, the Ist Appellate Court mis-directed itself and mis-construed the materials on record to deny the relief against the Ist defendant? 5. It is not in dispute that Smt. Bhagati Devi (defendant No. 1) is the owner of the suit land. It is not in dispute that she is a widow and she has only one female child. It is also not in dispute that Sh. Gurdial and Sh. Anup Ram are her real brothers. 6. It is the plaintiff’s claim that vide agreement dated 31.12.1990 Smt. Bhagati Devi agreed to sell the suit land through her brothers Sh. Gurdial and Sh. Anup Ram in whose favour she had given power of attorney. Out of total sale consideration of ` 1,60,000/-, earnest money of `1,00,000/- was paid by the plaintiff in cash to Smt. Bhagati Devi through Sh. Gurdial and Sh. Anup Ram. Physical possession of the suit property already stands delivered to him and 4 only symbolic possession was required to be taken from Smt. Bhagati Devi. Since she refused to execute the sale deed legal notice dated 31.3.1992 was sent to her calling upon her to receive the balance sale consideration and execute the sale deed. Upon failure to comply with the same plaintiff filed a suit for symbolic possession and specific performance of the agreement in question. 7. Smt. Bhagati Devi resisted the suit on various grounds. She being an old illiterate and rustic villager, having no male issue had authorized her real brothers only to watch her interest in the property. For the limited purpose of maintenance and getting the mutation of inheritance of the property attested in her name she executed general power of attorney in favour of her brothers. Without her consent, authorization, knowledge and information her real brothers, in connivance with the plaintiff, fraudulently executed the agreement in question. No payment was ever received by her. From the times of her late husband she has been residing in the house constructed over the suit land alongwith her daughter and except for the suit property she has no other property. 8. Defendants No. 2 and 3 conceded to the plaintiff’s claim in entirety. Defendant No. 4 set up an agreement for sale in her favour claiming to be in possession of the suit property. 9. Based on the pleadings of the parties the Trial Court framed the following issues:- 5 “(1) Whether the plaintiff is entitled to the specific performance of agreement dt. 31.12.90 as alleged? OPP (2) Whether the defd. No. 4 is in possession of the suit land by way of agreement dt. 7.3.89? OPP (3) Whether the suit is bad for non-joinder of necessary parties? OPD (4) Whether the plaintiff has no locus-standi to file the present suit? OPD (5) Whether the suit has been filed by the plaintiff in collusion with the defds. No.1 to 3? OPD-4 (6) Whether the agreement dt. 31.12.90 is the result of fraud and mis-representation? OPD-1 to 3 (7) Whether the plaintiff is estopped from his act and conduct to file the suit? OPD (8) Relief.” 10. On the basis of evidence led by the parties and material placed on record, Trial Court decided issue No. 1 against the plaintiff by holding that Sh. Gurdial and Sh. Anup Ram were bent upon to dispose off the property of their real sister at a throw away price with an intention to grab money and take undue advantage of her simplicity and illiteracy. No sale consideration was received by Smt. Bhagati Devi and she was neither consenting nor a willing party to the agreement dated 31.12.1990. Plaintiff and her real brother were bent upon to divest Smt. Bhagati Devi from her entire property which was the only source of her livelihood and place of residence. Contention of defendant No. 4 was rejected as she was not in possession of the suit property which in fact was found to be that of Smt. Bhagati Devi. Issues No. 3 and 5 were not pressed. In view of 6 decision on issue No. 1, issues No. 4 and 6 were rendered redundant. Issue No. 7 was decided against the defendants. However on the basis of admission made by defendants No. 2 and 3 Trial Court decreed the plaintiff’s suit for recovery of `1,00,000/- with cost and future interest @ 6% per annum, to be recovered from defendants No. 2 and 3. 11. The lower Appellate Court upheld the findings returned by the Trial Court that money was neither paid by the plaintiff to Smt. Bhagati Devi nor was it received by her from Sh. Gurdial and Sh. Anup Ram. It further observed that plaintiff had failed to place on record material to show that sale consideration reflected the true market value of the land and that Smt. Bhagati Devi had instructed her real brothers to sell the land in question. 12. I have heard Sh. Bhupender Gupta, learned Senior Counsel appearing for the plaintiff and Sh. Tarlok Chauhan, learned counsel for respondent No. 1 and Sh. Dinesh Bhanot, learned counsel for respondents No. 5(a) and 5(b). 13. Sh. Bhupender Gupta, learned Senior Counsel has invited my attention to the pleadings and the documents and more particularly the power of attorney (Ext. DA) to contend that a false defence was taken by Smt. Bhagati Devi and consequently findings returned by the Courts below are complete misreading and misappreciation of evidence. He has also invited my attention to the provision of Section 188 of the Indian Contract Act, 1872 and to the decisions rendered by the various Courts in Yohannan and another versus 7 Harikrishnan Nair and others, AIR 1992 Kerala 49 and K. Venkoji Rao versus M. Abdul Khuddur Kureshi, AIR 1991 Karnataka 119. In the alternative it is argued that in any event interest awarded by the Trial Court on the decretal amount is much on the lower side. 14. Per contra, Mr. Tarlok Chauhan, learned counsel for defendant No. 1 has argued that agreement in question is void and not legally enforceable for want of any consideration or authorisation. In the alternative it is argued that keeping in view the ratio of law laid down by the Apex Court in Parakunnan Veetill Joseph’s Son Mathew versus Nedumbara Kuruvila’s Son and others, AIR 1987 SC 2328; A.C. Arulappan versus Smt. Ahalya Naik, AIR 2001, SC 2783; Her Highness Maharani Shantidevi P. Gaikwad versus Savjibhai Haribhai Patel and others, (2001) 5 SCC 101 and Bal Krishna and another versus Bhagwan Das (Dead) by LRs and others, (2008) 12 SCC 145 no decree for specific performance can be granted in favour of the plaintiff. 15. Certain facts which cannot be disputed have emerged from the record. The suit property is situated on the main Kullu – Manali National Highway and is just short of five kilometers from the main Manali Township. Judicial notice can be taken of the fact that Manali is a famous international tourist destination where many commercial establishments have come up and land there is quite valuable. From the statements of defendant No. 1 (DW-3) and defendant No. 3 (DW-1) it is evident that Smt. Bhagati Devi is a widow. She has no other property. On the suit land there is a house which is in her 8 possession where she is permanently residing with her daughter. It also cannot be disputed that initially her brothers were living separately and on her asking started residing with her. It has also come on record that Smt. Bhagati Devi is an illiterate and a rustic villager. In fact both plaintiff and the brothers admit her to be a woman of little understanding. Record does not even remotely suggest the necessity to sell the suit property. Undisputedly agreement in question is not signed by Smt. Bhagati Devi. 16. Mr. Bhupender Gupta, learned Sr. Counsel is right in contending that lower Appellate Court erred in coming to the conclusion that it was obligatory on the part of the plaintiff to have placed material on record to show that the sale consideration in fact reflected the true market value of the land. The Court was not required to go into this question at all. The suit was resisted not on account of inadequacy of sale consideration. Further from the power of attorney (Ext. DA) it is also clear that Smt. Bhagati Devi had authorized her brothers to deal with the land including sell the same for a valuable consideration. Defendants’ stand to this extent is not correct. However that would not imply that the brothers has sought permission to sell the land to the plaintiff or that defendant No. 1 had agreed/consented for the same. 17. Agreement (Ext. PW 2/A) records two facts. (i) Possession of the property stands delivered to the plaintiff (ii) Sum of ` 1,00,000/- was paid to defendant No. 1 through defendants No. 2 and 3. Record reveals that these facts are false and incorrect. 9 18. In no uncertain terms, plaintiff admits that Smt. Bhagati Devi alongwith her daughter permanently resides in the house constructed over the suit land. In Court Smt. Bhagati Devi has categorically deposed that even though she is in possession of suit property over which her husband had planted apple orchard but however plaintiff forcibly harvests the apple crop. Now except for the bald statement of the plaintiff, according to whom possession of the suit property stood handed over to him at the time of execution of the agreement, there is no other material on record to prove to the contrary. Revenue record does not show plaintiff to be in possession of the suit property. Hence defendant No. 1 has been rightly held to be in possession of the suit property. 19. On the question of payment of ` 1,00,000/- I am in total agreement with the concurrent findings of fact recorded by the Courts below. No amount whatsoever was paid by the plaintiff to Smt. Bhagati Devi under the agreement. Plaintiff first took a stand that the earnest money of ` 1,00,000/- was paid to defendant No. 1 through defendants No. 2 and 3. However in cross examination he clarified that money was paid to defendant No. 1 near the table of the Petition Writer Sh. Chhering Ram (PW-2) after it was counted by Sh. Anup Ram (DW-1) in the presence of Sh. Dhale Ram Namberdar. Now this Namberdar has not been examined in the Court. Be that as it may be, Sh. Chhering Ram (PW-2) in no uncertain terms states that no transaction of money ever took place between the parties in his presence. In fact version of PW-1 stands 10 contradicted by PW-2 according to whom, as per the entry made in the register, earnest money was received by Sh. Anup Ram (DW-1). No money was ever paid to Smt. Bhagati Devi. Now Sh. Anup Ram has a totally different version to state. According to him he went to PW-2 after 5 p.m. He received the money from the plaintiff and kept on waiting for defendant No. 1 to arrive. He could meet defendant No. 1 only at Dhalpur Ground where he paid the money to her but did not take any receipt. Admittedly no receipt of payment has been placed on record by the parties. Now in view of the glaring contradictions in the statements of the parties it does not stand proved on record that earnest money of ` 1,00,000/- was ever paid by the plaintiff to defendant No. 1 or received by her from her brothers. Plaintiff’s claim of payment of the earnest money is based on falsehood. She also states that she never authorized her brothers to sell the suit property. Plaintiff has failed to show the source of payment of `1,00,000/-. Agreement is full of falsehood. No receipt was obtained for having made payment in cash. It is not that defendant No. 1 was not available. Agreement could have been got signed from her itself. Plaintiff is also a local person and aware of the circumstances in which defendant No. 1 was living. Thus it cannot be said that there was legally binding and enforceable agreement between the parties. 20. Further Section 10 of the Specific Relief Act, 1963 starts with a non obstante clause and although right of specific relief is conferred by a statute but however while granting relief to the 11 plaintiff principles of equity are to be applied. Provisions of Section 10, when read conjointly with Section 20, evidently makes it clear that discretion, to be exercised by the Court, is to be based on the principles of equity, fair play, conduct, hardship and delay. Judgments cited by Mr. Tarlok Chauhan, learned counsel are also to this effect. Scales of equity, in the instant case, in my considered view are heavily loaded in favour of defendant No. 1. Being a rustic lady and no male member to look after her property, she requested her brothers to help her in managing the same. She resides in the house constructed on the suit property. She has no other place to go and has a daughter. Both are dependent upon each other. There was no necessity to sell the property. Consequently it cannot be said that the Courts below erred in not granting the relief prayed for by the plaintiff in the suit. 21. Ratio of law laid down by the Apex Court in Parakunnan Veetill Joseph’s Son Mathew (supra), A.C. Arulappan (supra), Her Highness Maharani Shantidevi P. Gaikwad (supra) and Bal Krishna (supra) evidently disentitles the plaintiff to the relief claimed for. Decisions relied upon by the plaintiff are inapplicable to the instant facts. It cannot be said that the lower Appellate Court misdirected itself by allowing defendant No. 1 to urge question which were otherwise not permissible. Substantial questions of law are answered accordingly. 22. Noticeably defendants No. 2 and 3 have not filed any appeal. Based on their admission, findings of fact and decree passed by the Courts below, qua them, have attained finality. Interest awarded by 12 the Courts below @ 6% per annum appears to be on the lower side. The alleged agreement is of the year 1990 when banking rates of interest were much higher. Instead of 6% plaintiff is held entitled to interest @ 12% per annum. Accordingly decree be modified to the extent that plaintiff shall be entitled to interest @ 12% per annum instead of 6%. Appeal is partly allowed. (Sanjay Karol), Judge. November 9, 2010 (PK)