APPEAL FROM APPELLATE DECREE NO.125 of 1994 **** (Against the judgment and decree dated 27.01.1994 passed by Sri Manohar Prasad, Ist Additional District Judge, Bhagalpur in Title Appeal No.55 of 1991 reversing the judgment and decree dated 30.04.1991 passed by Sri R.B. Dwivedi, Munsif Banka in Title Suit No. 94 of 1988) Smt. Jala Devi wife of Sri Ganesh Modi resident of village Karshope, P.S. Shambhuganj, District Banka. ………..Plaintiff……Respondent….. Appellant. V e r s u s 1.Chedan Prasad Mandal son of Raj Narayan Mandal 2.Manoranjan Mandal 3. Bulbul @ Bulbul Kumar Mandal 4. Bikash Mandal. All residents of village Karshope, P.S. Shambhuganj, District Banka. ………..Defendants…..Appellants….. Respondents For the appellant : M/s Ganpati Trivedi and Dev Kumar Pandey, Advocates. For the respondents : M/s Umakant Prasad No.1 and Parmanand Prasad, Advocates. P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN S.N. Hussain, J. This second appeal has been filed by the sole plaintiff-respondent-appellant challenging the judgment and decree of the learned court of appeal below. 2. The matter arises out of Title Suit No.94 of 1988, which was filed by the appellant for specific performance of contract by way of directing defendant no.1 to accept balance consideration money and give her the registration receipt of registered sale deed(Ext.2) dated 10.09.1986 executed by the defendant in favour of the plaintiff with respect to the suit land. 3. The said suit was decreed by the learned Munsif, Banka vide his judgment and decree dated 30.04.1991, which was challenged by the defendants in Title Appeal No. 55 of 1991. The said title appeal was allowed by the learned Additional District Judge-I, Bhagalpur vide judgment and decree dated 27.01.1994 2 setting aside the judgment and decree of the trial court and rejecting the claim and suit of the plaintiff. The said judgment and decree of the lower appellate court has been challenged by the plaintiff in the instant second appeal. 4. The facts, which are admitted by the parties are that defendants agreed to sell the suit land to the plaintiff and the amount of consideration was fixed at Rs.12,000.00 whereupon the defendants executed a sale deed, which was duly registered on 10.09.1986 (Ext.2). The controversy between the parties is that according to the plaintiff Rs.6,000.00 was paid in advance, as mentioned in the sale deed, and it was agreed that at the time of exchange of equivalents the remaining Rs.6,000.00 will be paid by the plaintiff to the defendants, which amount was being offered by the plaintiff after registration of the sale deed. But according to the defendants no advance was paid and the plaintiff had to pay the entire consideration amount of Rs.12,000.00 at the time of exchange of equivalent, which the plaintiff was not ready to pay, hence on 19.12.1988 the defendants executed a deed of cancellation of the aforesaid sale deed dated 10.09.1986. It may be noted here that the said deed of cancellation dated 19.12.1988 was not brought on record by the defendants although statement with respect thereto was made in the written statement (Ext.B). 5. Considering the pleadings of the parties, the leaned trial court formulated the following issues for deciding the suit: (i) Is the suit as framed maintainable? (ii) Has the plaintiff got any cause of action for the suit? (iii) Has Rs.6,000.00 part consideration money been paid in advance to defendant no.1 by the plaintiff before execution of the sale deed? (iv) Has plaintiff got possession from defendants on the suit land after execution of the sale deed? (v) Is the deed of cancellation executed by defendant, cancelling the sale deed, valid, legal and biding upon the plaintiff? (vi) Is plaintiff entitled to a decree of specific performance of contract? (vii) Has any fraud been committed or played upon the defendants at the time of execution of sale deed by getting the fact of Rs.6,000.00 advance, part consideration money being paid to defendant mentioned in the sale deed without paying it to defendant? (viii) Is the plaintiff ready and willing to perform his part of contract from the day of execution of sale deed till today? (ix) Are the defendants ready to perform their part of contract from the date of contract till today? 3 (x) Had the defendants any necessity to enter into contract of sale for getting consideration money of the sale deed? (xi) Is the contract of sale binding and enforceable against minor defendants? (xii) Is the suit barred by special and general law of limitation? (xiii) Is the suit hit by the provisions of Specific Relief Act? (xiv) Is the plaintiff entitled to any other relief or reliefs? 6. On the said issues evidence were led and arguments were made by the parties and the learned trial court decreed the suit vide judgment and decree dated 30.04.1991 on the basis of the following findings: (a) The defendants had necessity of money which led them to contract and to execute the sale deed for getting consideration money mentioned in the deed. (b) The sale deed is binding and enforceable against all the defendants alike. (c) In view of the evidence, it is quite apparent that the plaintiff had paid Rs.6,000.00 in advance before execution of the sale deed to defendant no.1 due to the defendants legal necessity. (d) The deed of cancellation dated 19.12.1988 executed by defendants to cancel the sale deed(Ext.2) is hit by provisions of section 52 of the Transfer of Property Act and is not valid, legal and binding on the plaintiff. (e) The evidence on behalf of the plaintiff on the point of possession is not believable. (f) It is clear that plaintiff is willing and ready to perform her part of contract whereas defendants are not willing and ready to perform their part of contract. (g) Plaintiff has got good cause of action and there is no defect in the framing of the suit. (h) Plaintiff is entitled to a decree of specific performance of contract in her favour and against the defendants. 7. Against the aforesaid judgment and decree of the learned trial court, the defendants filed the above mentioned title appeal and considering the specific claims of the parties the learned court of appeal below formulated the following points for deciding the title appeal: (i) Whether the plaintiff paid a sum of Rs.6,000.00 after the oral agreement between them and before execution of the sale deed on 10.09.1986? (ii) Whether the possession of the suit land was delivered by the defendant to the plaintiff after execution of the sale deed dated 10.09.1986? 8. On the aforesaid points parties were heard and the learned court of appeal below allowed the said title appeal vide judgment and decree dated 27.01.1994 after arriving at the following findings: 4 (a) Plaintiff was put in possession of the suit land by the defendants and the learned trial court has rightly decided that issue. (b) The recitals of the sale deed has not to be taken on the very face of it and the payment of advance of Rs.6,000.00 has to be decided on the basis of attending circumstances and evidence on record. (c) The witnesses examined on this point by the plaintiff did not inspire confidence as they did not specify the time, date and month or occasion of payment. (d) The deposition of defendant no.1 as D.W.3 was discarded by the learned trial court solely on the ground that other witnesses have not stated about non-payment of Rs.6,000.00 as advance. (e) The contract for sale took place in September, 1986 and on 11.09.1986 the defendants honoured their contract and executed the sale deed but since there was wrong entry about the payment of advance, legal notice was sent by defendants demanding consideration money from the plaintiff. (f) The defendant is still in possession of the suit land but yet the plaintiff claimed that she was in possession of the suit land after execution of the sale deed, which is indicative of dishonesty in his mind. (g) The relief of specific performance of contract is a relief of equity and hence the plaintiff approaching the court for such relief must come with clean hand before the court. (h) The plaintiff tried to defraud the defendants of Rs.6,000.00 by surreptitiously getting mentioned advance of Rs.6,000.00 in the sale deed. 9. Against the aforesaid judgment and decree of the learned court of appeal below, the plaintiff filed the instant second appeal on 07.04.1994, which was admitted on 07.01.1998 and following substantial questions of law were formulated: (i) Whether the lower appellate court was justified in shifting the onus on the plaintiff to prove the alleged fraud in the sale deed pleaded by the defendant when the execution of the sale deed was admitted by the defendant? (ii) Whether the findings of the lower appellate court that the plaintiff fraudulently incorporated the recital that Rs.6,000.00 was prepaid to the defendant is vitiated for non-consideration of evidence of PWs. 5, 8 and 9 who unequivocally stated that the fact of advance payment was 5 inserted at the instance of the defendant no.1 and this was heavily relied by the trial court? 10. So far question no.(i) is concerned, it is an admitted fact that sale deed dated 10.09.1986(Ext.-2) was executed by the defendant in favour of the plaintiff with respect to the suit land for a consideration of Rs.12,000.00. It is also an admitted fact that in the said sale deed it was specifically stated that advance of Rs.6,000.00 out of the said consideration money was already paid by plaintiff, which was received by the defendant and hence only the remaining Rs.6,000.00 was to be paid by plaintiff to the defendant at the time of exchange of the equivalents. 11. From the above mentioned fact, it is quite apparent that the plaintiff was relying upon a registered deed, which was admittedly executed by the defendant. However, the only adverse claim of the defendant with respect to the said sale deed was that the statement regarding payment of advance of Rs.6,000.00 was fraudulently incorporated by the plaintiff in the sale deed, although no such advance was paid and hence the plaintiff had to pay entire consideration money of Rs.12,000.00 at the time of exchange of equivalents but the plaintiff having not paid the said amount, the defendant executed a deed dated 19.12.1988 cancelling the aforesaid sale deed dated 10.09.1986. 12. Since the claim of the plaintiff was based on a registered document admittedly executed by the defendant whereas the claim of the defendant was that a fraud was played by the plaintiff, who got the statement of advance incorporated in the said admitted sale deed, the onus was clearly upon the defendant to prove the aforesaid fraud as claimed by him. Furthermore, the plaintiff not claiming any fraud, rather relying upon the registered document cannot legally be asked to prove his case concerning fraud. In the said circumstances the learned court of appeal below was legally not justified in shifting the onus on the plaintiff to prove the alleged fraud in the sale deed pleaded by the defendant, specially when the execution of the sale deed was admitted by the defendant. 6 13. The learned trial court, on the other hand, had rightly placed the onus on the defendant to prove the fraud in the sale deed alleged by him and rightly came to the conclusion that the defendant failed to discharge the said onus, nor could he prove the alleged fraud by any valid and satisfactory evidence. The learned trial court also found that the deed of cancellation dated 19.12.1988 cannot be held to be legal and valid as by execution of the sale deed their right, title and interest transferred by the defendant in favour of the plaintiff by registered sale deed dated 10.09.1986 cannot be taken away. Furthermore, the said deed of cancellation was executed on 19.12.1988, i.e. more than two years after the sale deed and also after the aforesaid title suit was filed by the plaintiff, hence the aforesaid deed of cancellation dated 19.12.1986 is also hit by the provision of section 52 of the Transfer of Property Act. In any view of the matter the said deed of cancellation was never brought on record of the suit by the defendant, although it was briefly described in the written statement (Ext.B), hence there was no occasion for the courts below to place any reliance upon it. These aspects of the matter were completely ignored by the learned court of appeal below. 14. So far question no.(ii) raised above is concerned, the appellant has specifically claimed that the findings of the lower appellate court that the plaintiff fraudulently incorporated the recital that Rs.6,000.00 pre-paid to the defendant was vitiated for non-consideration of the evidence of PWs.5, 8 and 9, who unequivocally stated that the fact of advance payment was inserted at the instance of defendant no.1 and this was heavily relied by the learned trial court. 15. From perusal of the judgment and decree of the learned court of appeal below, it is quite apparent that it had framed two points to decide the title appeal, namely, (i) whether the plaintiff paid a sum of Rs.6,000.00 after the oral agreement between them and before execution of the sale deed dated 19.09.1986 and (ii) whether possession of the suit land was delivered by the defendant to the plaintiff after execution of the sale deed dated 19.09.1986? 16. In paragraphs 10, 11 and 12 of the said impugned judgment the learned court of appeal below has considered the first point mentioned above but the evidence 7 of PWs. 8 and 9 have nowhere been considered therein, whereas the trial court while considering the issue no.(vii) of the title suit, considered the entire evidence, both oral and documentary adduced by both the parties including the depositions of PWs. 8 and 9 out of whom PW.8 Madan Mandal was the identifier of the defendant(executant) on the sale deed and had also supported the plaintiff’s claim that the fact of advance payment was inserted in the sale deed on the statement of defendant no.1 himself, whereas PW.9 Mishri Lal Singh was scribe of the said deed and had also stated that he had written about the advance payment of consideration money in the sale deed on the statement of the executant himself. These facts were fully corroborated by the depositions of PWs. 2, 4, 5, 7 and 10, which were duly discussed by the trial court in its judgment, whereas the learned court of appeal below did not at all consider the depositions of PWs.8 and 9 and discarded the clear and reliable statement of the other PWs. solely on the ground that it was difficult for the witnesses of the defendant to give negative evidence. 17. The learned court of appeal below decided the said issue no.(i) in favour of the defendant merely on the ground that the learned trial court placed excessive reliance on the recital of the sale deed with regard to the payment of advance of Rs.6,000.00. The learned court of appeal below failed to appreciate that the said document was a registered document executed by the defendant himself in which the statement with regard to payment of advance of Rs.6,000.00 was clearly incorporated and that fact was fully supported by the other evidence adduced on behalf of the plaintiff. On the other hand, although the defendant adduced DWs.1, 2, 3, 4, 5, 6 and 7 but except DW.3 who was the defendant himself, none of the witnesses stated anything about the defendant’s claim of non-payment of advance and fraud. Even the Advocate Notice(Ext.A/1) produced by the defendant did not contain any statement regarding non-payment of advance of Rs.6,000.00 as mentioned in the sale deed. 18. In the said circumstances, the learned court of appeal below was not justified in relying on the pleadings of the defendant supported merely by the deposition of defendant himself in complete absence of any documentary or oral 8 evidence showing non-payment of advance, whereas the plaintiff’s claim of payment of advance was fully proved by the sale deed(Ext.2) executed by the defendant himself as well as other evidences discussed above, which have not been appreciated by the learned court of appeal below. It is thus apparent that the plaintiff had approached the court for the relief of specific performance of contract with clean hands, whereas it is the defendant who has raised a false claim of non-payment of advance, which he could not prove by any reliable and material evidence. 19. Considering the entire pleadings of the parties and the evidence adduced by them as well as the specific provisions of law applicable to the case and the judgments and decree of the learned courts below, this court comes to the conclusion that the learned trial court has decided the matter legally and properly whereas the learned court of appeal below has committed serious errors of law, which resulted in grave injustice leading to involvement of substantial questions of law in the instant second appeal as discussed above. Accordingly, this second appeal is allowed, the judgment and decree of the learned court of appeal below is set aside and the judgment and decree of the learned trial court is hereby affirmed. However, in the circumstances of the case there will be no order as to cost. Patna High Court, (S.N. Hussain, J.) Dated, the 10th of November, 2008 N.A.F.R./harish