Regular Second Appeal No.1904 of 2002. -1- In the High Court of Punjab and Haryana at Chandigarh. Regular Second Appeal No.1904 of 2002. Date of decision:23-5-2008 Sunam Rai @ Sunam Ram. ...Appellant. Versus Sunder Dass and another. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. B. R. Gupta Advocate for the appellant. Mr. L. N. Verma Advocate for the respondents. ... K. C. Puri, J. Judgment. The prayer, made in this Regular Second Appeal by the appellant, is for the reversal of impugned judgment and decree dated 22.2.2002 passed by Mr. O.P.Verma, the then Additional District Judge, Fatehabad vide which he set aside the judgment and decree dated 31.7.1998 delivered by Mr. Virender Parshad, the then Civil Judge (Junior Division), Fatehabad. The entire controversy revolves around agreement, Exhibit Regular Second Appeal No.1904 of 2002. -2- P-1. The plaintiffs alleged that the defendant executed said agreement Exhibit P-1 in their favour to sell his land measuring 8 Kanals 0 Marlas comprised in Khasra No.210/17 situated within the revenue estate of village Hijrawa Khurd, Tehsil Fatehabad for a total sale consideration of Rs.50,000/- and received a sum of Rs.28,400/- in advance as earnest money in the presence of witnesses. 24.11.1992 was fixed as the date for the execution of sale deed when the remaining sale price was to be paid. It was also agreed that in case the plaintiffs resiled from the agreement, their earnest money was to be forfeited and if the defendant failed to perform his part of the contract, then the plaintiffs were at liberty to get the sale deed executed through court, after making payment of balance sale consideration. The plaintiffs reminded the defendant at his house on 23.11.1992 about the date of execution of sale deed. The plaintiffs visited the Tehsil Office Fatehabad, on 24.11.1992 with the balance sale consideration and kept on waiting for the entire day for the defendant but the defendant did not come present. In this connection, the plaintiffs also got an affidavit attested from the Tehsildar, Fatehabad to get their presence marked. It is further the case of the plaintiffs that they got served a registered notice dated 5.12.1992 upon the defendant through their counsel in which date of execution of sale deed was mentioned as 21.12.1992. Again on the said date, they visited the office of Sub Registrar, Fatehabad with the remaining sale consideration but the Regular Second Appeal No.1904 of 2002. -3- defendant did not turn up. In the same manner, they got an affidavit attested from the Executive Magistrate, to get their presence marked. The positive case of the plaintiffs was that they had always been ready and willing to perform their part of the contract and were still ready and willing to get the sale deed executed and registered in terms of the agreement to sell, Exhibit P-1, but the defendant failed to perform his part of the contract. On notice having been issued, the defendant contested the suit. Besides raising some preliminary objections in the written statement, he averred, on merits, that he having inherited the suit land from his father, the same was ancestral and the alleged agreement, Exhibit P-1, could not be executed. His father borrowed a sum of Rs.2,000/- as a loan from the father of the plaintiffs and for security of said loan, an agreement of sale was executed by his father in favour of father of the plaintiffs. After the death of his father, the father of the plaintiffs has again got executed a new agreement of land as security of aforesaid loan. The plaintiffs, after the death of their father, got executed five agreements from him from time to time as security of the aforesaid loan. There was no intention either of the plaintiffs to purchase the suit land or his intention to sell the same. He had not received Rs.28,400/- from the plaintiffs as earnest money, in the presence of witnesses. On the pleadings of the parties, the trial Court framed the Regular Second Appeal No.1904 of 2002. -4- following issues:- i). Whether the defendant had entered into an agreement to sell on 25.9.92 in favour of plaintiffs for Rs.50,000/- and Rs.28,400/- were paid to the defendant by the plaintiffs? If so, to what effect?OPP. ii). If issue No.1 is proved, whether the plaintiffs are ready to perform their part of contract. If so, to what effect?OPP. iii). Whether the suit is false and frivolous? If so, to what effect?OPD. iv). If issue No.1 is recasted to the effect whether the plaintiffs have no locus standi to file the present suit and whether the alleged agreement pleaded in para No.2 of the preliminary objections of the written statement, if proved, were executed as security of loan, then its effect?OPD. iv-A). If issue No.4 is not proved, whether the suit land is ancestral in the hands of defendant and qua his sons as alleged?OPD. v) Whether there is no cause of action against the defendant? OPD. vi) Whether the suit is not maintainable in the present form?OPD. vii) Whether the plaintiffs are estopped by their own act and conduct to file the present suit?OPD. Regular Second Appeal No.1904 of 2002. -5- viii) Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD. ix) Relief. Under issue Nos. (i), (ii), (iii) and (iv), the learned trial Court held that the agreement to sell dated 25.9.1992, Exhibit P-1, was executed by the defendant in favour of the plaintiffs for the re-payment of loan and there was no intention between the parties to act upon the same. Resultantly, issue Nos. (i) (ii) were answered against the plaintiffs and issue Nos. (iii) and (iv) in favour of the defendant. Issue No.iv-A, (v), (vi) and (vii) were decided in favour of the defendant, whereas issue No.(viii) was decided against the defendant. As a result of said findings, the suit of the plaintiffs for specific performance of agreement was dismissed vide judgment and decree dated 31.7.1998. However, suit for recovery of Rs.2,000/- along with interest @ 12% per annum from 1.1.1986 was decreed. Feeling aggrieved against the said judgment and decree, the plaintiffs filed an appeal which was accepted by the then learned Additional District Judge, Fatehabad vide impugned judgment and decree dated 22.2.2002. Being not satisfied with the said impugned judgment and decree, the defendant has preferred this appeal. I have heard arguments addressed by the counsel for the parties and have gone through the record of the case. Regular Second Appeal No.1904 of 2002. -6- The appellant, in the grounds of appeal, has stated that following substantial questions of law arise for consideration of this Court:- 1. Whether specific performance of a contract can be ordered in favour of a dishonest prospective vendee? 2. Whether the recitals in the document under challenge can be taken to be admission of the executant thereof? 3. Whether the learned Appellate Court has failed to properly appreciate the evidence? 4. Whether the learned Appellate Court was justified in reversing the judgment of learned trial Court? This Court on 6.5.2005, noted the following contention of counsel for the appellant:- “The learned counsel for the appellant has submitted that the agreement in question Ex.P1 was never intended to be acted upon. It has further been submitted that Milkha Ram plaintiff had not come to the Court with clean hands and had denied the execution of the previous agreements between the parties in respect of the property in question but the agreements Exhibits D1 to D10 were duly proved by DW10 Chetan Dass, Deed Writer. It has been further submitted that in any case, discretionary relief of specific performance should not have been granted to the plaintiff Regular Second Appeal No.1904 of 2002. -7- on the facts and circumstances of the case. Heard. Needs consideration. Admit. Interim directions to continue”. Continuing with the said argument, the learned counsel for the appellant has submitted that the intention of the parties was not to execute the sale deed but was to secure the loan advanced by the plaintiffs or their predecessors in interest. It is further submitted that the averments, as detailed in para No.13 of the grounds of appeal, clearly show that in the year 1988, an agreement for the land in dispute was executed for a sale consideration of Rs.15,000/- and the earnest money was shown to be as Rs.11,700/- and the date for the execution of sale deed is mentioned as 29.12.1988. However, three days prior to 29.12.1988 i.e. on 26.12.1988, another agreement was executed. From the perusal of Exhibit D-2, it is clear that earnest money of Rs.13,100/- was paid and the date of execution of sale deed has been mentioned as 28.6.1989. Two days prior to 28.6.1989, an agreement was executed between the parties regarding which entry Exhibit D-3 dated 26.6.1989 has been executed. Rs.14,700/- have been shown to be the earnest money in that agreement. This amount of Rs.14,700/- includes the interest for the period between 26.12.1988 to 28.6.1989 and the parties have been extending the term of agreement and last agreement was executed between the parties on 26.6.1992 regarding which entry Regular Second Appeal No.1904 of 2002. -8- Exhibit D-10 has been placed on the file. Earnest money has been shown to be Rs.27,350/- on 26.6.1992 and the date of execution has been shown to be 25.9.1992. The agreement in question dated 25.9.1992 was executed wherein an amount of Rs.28,400/- has been shown to be the earnest money and the date of execution of sale deed has been shown to be 24.11.1992. This amount of Rs.28,400/- is calculated after adding interest to an amount of Rs.27,350/- in respect of agreement dated 26.6.1992 regarding which entry Exhibit D-10 has been produced on the file. The originals of these agreements are supposed to be in possession of the plaintiffs and they have not produced by them in spite of application moved by the appellant in the trial Court on 3.5.1993. The appellant pleaded the execution of agreements between the father of plaintiff/respondents and his father and also between the parties, but, in the reply dated 20.8.1993, the plaintiff/respondents have pleaded that they have no knowledge of the agreements and those agreements have no relevancy. The execution of agreements regarding which entries Exhibits D-1 to D-10 have been produced on the file has not been denied by the plaintiffs/respondents. So, the trend of Exhibits D-1 to D-10 clearly show that for the last so many years, the agreements in respect of suit property are being executed between the parties with the intention to secure the loan of plaintiff/respondents and there was never any intention to execute the sale deed. It is submitted that when there was no intention between the Regular Second Appeal No.1904 of 2002. -9- parties to execute the sale deed and agreements were merely to secure the loan, then in that case, decree for specific performance cannot be passed. The trial Court has returned a finding that the agreements in question were meant only to secure the debt but the first Appellate Court has set aside that finding on flimsy grounds. The reason given by the first Appellate Court for granting the relief of specific performance is that the appellant had been executing number of agreements and on that count, he is at fault. That finding does not sustain the test of legal scrutiny. The Court has to find out the real intention of the parties to execute the agreements. In case the Court comes to the conclusion that the real intention of the parties was to secure the debt, in that case, decree for specific performance should not be passed. The finding of the learned trial Court regarding this issue is correct whereas the finding of the first Appellate Court is liable to be set aside. It is further submitted that even the first Appellate Court has returned a finding regarding execution of agreements between the parties entries of which are Exhibits D-1 to D-10. Otherwise also, under Section 20(2) of the Specific Relief Act if under terms of the contract, plaintiff get an unfair advantage over the defendant, in that case, the Court may not exercise its discretion of specific relief in favour of the plaintiff as laid down in A.C.Arulappan Versus Smt. Ahalya Naik, 2001(4) Recent Civil Reports (Civil) 109. To support his contentions, the learned counsel for the Regular Second Appeal No.1904 of 2002. -10- appellant has relied upon the following authorities:- 1.S.Venkatappa Versus Narayanappa, 2001(2) Recent Civil Reports (Civil ) 699. 2.Gurbax Singh Versus Labhu Ram, 1996(1) Recent Revenue Reports 509. 3.Dharam Lal Versus Jameswar Das,1996(1) Recent Revenue Reports 279. 4.Tejram V. Patirambhau, AIR 1997 Supreme Court 2702. 5.Khalil Ahmad Versus Naurozy, 2001(4) Recent Civil Reports 143. The learned counsel for the appellant has further submitted that the suit property is Joint Hindu Family Coparcenery Property. No decree for specific performance can be passed regarding coparcenery property without any legal necessity. It is submitted that the property was owned by the father of the defendant. So, this Joint Hindu Family Coparcenery Property was in the hands of the defendant and decree for specific performance cannot be passed. In reply to the above noted submissions, the learned counsel for the plaintiff/respondents has submitted that so far as previous agreements are concerned, those agreements have not been produced on the file. The appellant has not sought permission of the trial Court to prove those agreements by way of secondary evidence. Regular Second Appeal No.1904 of 2002. -11- Mere production of entries of deed writer are not sufficient. Moreover, Exhibits D-1 to D-10 have not been specifically pleaded. No evidence beyond pleadings and at variance with the pleadings can be allowed. To support this contention, the learned counsel for the respondents has relied upon authority reported as Bondar Singh and others Versus Nihal Singh, 2003(2) R.C.R(Civil) 222 (S.C). It is further submitted that once due execution of agreement of sale and payment of earnest money is proved, in that case, decree for specific performance should have been passed which the learned first Appellate Court has rightly passed. The payment of Rs.28,400/- has been proved beyond doubt. The appellant has himself mentioned in the agreement that Rs.28,400/- have been received. So, in view of authority reported as Afsar Gujjar (deceased) Rep. by his L.Rs. Versus Barkha Ram, 1989 P.L.J.23, decree for specific performance is the only adequate relief. Mere fact that prices have increased considerably is not a ground to dis-allow the relief of specific performance in view of authority reported as S.V.R. Mudaliar (dead) by Lrs. and others v. Mrs. Rajabu F.Buhari (Dead) by LRs. and others, AIR 1995 Supreme Court 1607. It is further submitted that no substantial question of law has arisen. Substantial questions of law mentioned in para No.18 of the grounds of appeal are not substantial questions of law. The appeal is liable to be dismissed on that count alone. To support this contention, Regular Second Appeal No.1904 of 2002. -12- the learned counsel for the plaintiffs/respondents has relied upon authority reported as Mathakala Krishnajah v. V.Rajagopal, 2005(2) R.C.R (Civil) 741. It is further submitted that the land in dispute is not ancestral property. According to the mutation on the file, the defendant inherited the property on account of Civil Court decree and not by inheritance. It is settled law that once the land has been received by the party other than inheritance i.e. by way of Will or decree, the same is not ancestral property. To support this contention, the learned counsel for the plaintiffs/respondents has relied upon authority reported as Harnek Singh Vs. Sukhdev Singh, 2002(1) Civil Court Cases 59 (P&H). Otherwise also, a person who has executed an agreement to sell the property cannot raise the said plea. It is further submitted that all the entries, Exhibits D-1 to D-10, are written by the same deed writer. So, this fact clearly suggests that the dead writer has been won over by the defendant. Therefore, entries Exhibits D-1 to D-10 are liable to be ignored. I have given my careful consideration to the rival submissions made by both sides and have carefully gone through the record of the case. So far as the second contention raised by the learned counsel for the appellant to the effect that the suit property is Joint Hindu Family Coparcenery Property is concerned, that submission is Regular Second Appeal No.1904 of 2002. -13- without any substance. From the mutation Exhibit P-12, proved on the file, it is clear that the property has been inherited by the defendant and his brother on account of decree of Civil Court passed by Shri Dharam Pal, Additional Senior Sub Judge, Fatehabad in civil suit No.863 of 1994. So, the property has not been inherited by the defendant from his father by way of natural succession but on account of decree and in view of authority, in Harnek Singh's case (supra), the suit property cannot be held to be Joint Hindu Family Coparcenery Property. So far as first argument to the effect that there was no intention between the parties to execute the sale deed but was to secure loan is concerned, that argument carries weight and has to be accepted. The learned counsel for the plaintiffs/respondents has attacked the execution of Exhibits D-1 to D-10 on the ground that the same have been executed by one deed writer namely Chetan Dass and as such these entries are manoeuvred by the appellant but that submission is without any substance. Agreement, Exhibit P-1, relied upon by the plaintiffs is also executed by the same deed writer i.e. Chetan Dass. The other documents, i.e. affidavits Exhibit P-2 and P-6 produced by the plaintiffs have also been scribed by Chetan Dass, deed writer. So, it cannot be said that Chetan Dass is, in any way, inimical to the plaintiffs. He has produced entries Exhibits D-1 to D-10 coupled with register in which entries have been made. Otherwise, there is no reason to discard the testimony of Chetan Dass, moreso when the Regular Second Appeal No.1904 of 2002. -14- documents, Exhibits P-1, P-2 and P-6, relied upon by the plaintiffs are also executed by the said deed writer. From the perusal of the record, it is revealed that the defendant moved an application dated 3.5.1993 in which it was pleaded that the father of the defendant had executed various agreements in favour of the father of the plaintiffs. After their death, an agreement of sale was executed between the defendant and the plaintiffs on or before the month of January, 1990, thereafter second agreement on or before July, 1990, third agreement in the month of May, 1992 and fourth agreement in the month of September,1992 in respect of the suit land. In reply to that application, the plaintiffs have mentioned that they have no knowledge of any such agreement and that those agreements were not relevant for the decision of the present case. It is further mentioned in the reply that those agreements are not in their possession. So, the execution of previous agreements between the parties has not been specifically denied. The learned counsel for the plaintiffs/respondents has submitted that since the entries, Exhibits D-1 to D-10, have not been specifically pleaded, on that count, Exhibits D-1 to D-10 cannot be read into evidence. The other contention is that the appellant has not sought the permission of the Court to prove those agreements by way of secondary evidence. These arguments advanced by the counsel for the Regular Second Appeal No.1904 of 2002. -15- plaintiffs/respondents look attractive but are without any legal force. The original agreements are supposed to be in possession of the plaintiffs. For seeking permission to lead secondary evidence, the defendant was required to prove the existence of originals. Since the defendant was not in possession of these agreements or copies thereof, so he could not seek the permission of the Court to produce those documents in evidence by way of secondary evidence. However, the appellant has produced the entries of the deed writer on the file, as Exhibits D-1 to D-10. Even the learned first Appellate Court has opined that Exhibits D-1 to D-10 which relate to the execution of various sale agreements are proved. The relevant portion of para No.10 is reproduced as under:- “Though plaintiff Milkha Ram (PW1) has testified that except agreement (Ex.P1), no other agreement to sell was got scribed from Chetan Dass, deed writer (DW1) but his testimony stands falsified from the statement of the latter who has proved writings (Ex.D1) to (Ex.D10), all of which relate to execution of various sale agreements.” In para No.14 of the judgment, the learned first Appellate Court has held as under:- “It is amply proved that a number of agreements to sell were executed between the appellants and the respondent. Respondent had executed a few other such agreements in Regular Second Appeal No.1904 of 2002. -16- favour of Dayal Chand and Gopal Singh as well as would be evident from documents mark A to D. He has not been able to explain why he has been executing so many agreements and thus his own conduct becomes quite doubtful. No one can be given liberty to go on executing various contracts/ agreements taking it guaranteed that he cannot be compelled to act upon the same. These documents constitute a self inflicted hardship and the executant cannot seek indulgence of the court.” So, from the file, I am convinced that agreements, entries of which are Exhibits D-1 to D-10, are duly proved on the file. Otherwise also, there is concurrent finding of both the Courts below regarding execution of agreements between the parties, the copies of which are Exhibits D-1 to D-10 and as such that being a finding of fact cannot be interfered with in the Regular Second Appeal. Now, the question arises whether in view of the execution of the previous agreements between the parties, the first Appellate Court should have passed a decree for specific performance reversing the judgment of the trial Court vide which the relief of specific performance was dis-allowed to the plaintiffs. The answer to that question is in the negative. From the entries, Exhibits D-1 to D-10, it is crystal clear that previously also, right from 1988 to 26.6.1992, ten agreements have been executed regarding the suit land regarding which Regular Second Appeal No.1904 of 2002. -17- entries are Exhibits D-1 to D-10. The details of Exhibits D-1 to D-10 are given as under:- Date of the Sale price. Earnest money Date fixed for sale agreement. --------------- ---------- ------------ --------------------- 19.2.1988(D1) 15,000/- 11,700/- 29.12.1988. 26.12.1988 (D2) 15,000/- 13,100/- 28.6.1989. 26.6.1989 (D3) 15,000/- 14,700/- 4.1.1990. 2.1.1990 (D4) 20,000/- 16,500/- 3.7.1990. 2.7.1990 (D5) 25,000/- 18,500/- 1.1.1991. 31.12.1990 (D6) 50,000/- 20,700/- 30.6.1991. 26.6.1991 (D7) 50,000/- 23,000/- 25.12.1991. 23.12.1991 (D8) 50,000/- 23,900/- 24.2.1992. 27.5.1992 (D9) 50,000/- 25,800/- 26.6.1992. 26.6.1992 (D10) 50,000/- 27,350/- 25.9.1992. ------------------- ---------- ------------ ------------- So, from the trend of above-said agreements, it can be safely inferred that after adding interest in respect of original advance of Rs.11,700/-, the said amount has swollen to Rs.27,350/- as mentioned in Exhibit D-10. Thereafter, agreement Exhibit P-1 was executed on 25.9.1992 and it so seems that after adding interest in the amount of Rs.27,350/-, the amount of Rs.28,400/- has been shown to be that of earnest money. The defendant has pleaded that previously the Regular Second Appeal No.1904 of 2002. -18- father of the plaintiffs advanced the amount of Rs.2,000/- to his father. That amount by adding interest has been shown to be earnest money. However, the appellant has not produced any evidence regarding the execution of agreement between the predecessor-in-interest of the plaintiffs and the defendant. However, the appellant has been able to prove the entries Exhibits D-1 to D-10 on the file. From these documents, it can be safely inferred that the intention between the parties was to secure the debt of the plaintiffs and there was no intention for executing sale deed between the parties.