a'f- ^{ ]2^i- IN THE HIGH COURT OF CHHATTISGARH BILASPUR FIRSnr APPEAL N0. OF 2009 APPELLANTS : PtAINTIFFS \^^ *^v ' ...- ...-••:" .^"...•°•'' w^yr ..•&• .'fc?" 1. Gopiram Patet S/0 Sunderlal Patel, aged about 38 years, Occupation- Agriculturist 2. Manohar Patel S/0 Sunderial / Patet, aged about 36 yeans Occupation- Agricutturist 3. Shyam Lal Patel S/0 Sundertaf Patel, aged about 33 years Occupation- Agricuiturist All are R/0 Village- Kosmanda Police Station- Pusaur, Tahsil and District Raigarh (C.G.) VERSUS RESPOI^DENTS ; (1) Smt. Mongra Chauhan Widow DEFENDANTS of Late Urkula Chauhan, agect about 58 years, Occupation- House Wife R/0 Vitlage- Pusaur near (Poli'ce Station) Police Station- Pusaur, Tahsit ^od District Raigarh (C.G.) ^ -l/ (^) Smt. Rukmani Cheuhan D/0 '^ Urkula Chauhan aged about 42 years Occupation- House Wife R/0 Village- Shivpuri Post- Gerwani, Tahsil and District Raigarh (C.G.) 'i "Sr ^ ^ rf?^ij»g <{> \ C5S^ ^*. ^ ; v^1T&^ ""'•")./...•~-'" (3) State of Chhattisgarh though ./'• /' Coltector, Raigarh, District Raigarh, (C.G.) (4) Narsingh Prasad S/0 Chhattar Sai Thawait, aged about 70 years, R/0 Village- Pusaur, Tahsit and District Ralgarh (C.G.) MEMORANDUM OF PIRST APPEAL UNDER SECTTIQN 96 OF THE CIVIL PROGEDURE CODE • ^° - ^ HK3H COURT OF CHHATTISGARH AT BtLASPUR Sinate Bench: Hon'bte Shri Justice Prashant Kumar Mishia F.A.Jto.ieSoLZOOS Smt Mongra Choyhan and others JUDGMENT Postfor^-10-2010. Prashant Kumar Mishra Judge fs'"v ^ .^'•: ^ HK3H COURT QF CHMATTiSGARH AT BiLASPUR Sinate Bench: Hon'We Shri Jusfice Prashant Ktnnsff Mishra APPELLANTS RESPONDENTS F.A.No. 163/2009 Gopiram Patel andothera. VQ'SIS Smt. Mongra Chouhan and (Ahers. Shri Awadh Tripathi, counsel forttie appeiiants. Shri Sanjeev AgrawaJ, Panet Lawyer for the State/respondent No.3. ^hri Aiok Bakshi, counsel for res(»ndentNo.4. None for other r^pondents. APPEAL UNDER SECTION 86 OF THE CODE OF CIVIL PROCEDURE JUDGMENT 04 .10.^10) This is piaintifls' appeal under Section of C.P.C. chaltenging the judgnient and decree passed by the trial Court dismissing their suit for specific performance ofconfract. (2) The facte of the case, brietiy stated, ars that the ptaintiffs have fiied tte subject suit for spscific perfonnance of the agreement dated 25-01-2001 in reiation to 1.177 hecter^ land situated at viilage Pusaur, Tahsil and Distrid- Raigarh. The plaintifSs averred that the defendants No. 1 & 2 agreed to saie the suit land to the plaintifls for Rs. 2,15,000/- and rwsMved SKivance of Rs.15,CXX)/- and executed the agreement on 25-01-2001. fiS. that Ume the tand was recorded in fte name of Urkula Chouhan, therefore the said agresd that when the revenue recofds are corrected they shall recewe the balance amount and execute a sale-deed in favow of the plaintiffe. The defendants recwved ftirtwr amount of Rs.10.0(KS/- on 09-(fi-2{XK and executed a receipt. The name cS e defendants No. 1 & 2 were mutated in the revenue records yet it wss not infonned to the plainBffs. !;.l;^ ^^. ""as. •a A,.1'/ '^- ^- ^^ however when they came to know aboi^ conneclion of revenus record they approsched the defwdants No. 1 & 2 requestir^ them to recave the amount of Rs.1,86.(XX)/- and execute the sale-deed. The said defendants postponed the toansaetion and in spt8 of repeated request made by the ptaintiffe they are avoiding execufion of the sale-deed and are likely to sale it to some ottier pereon. A legal notice was sent on 02-02-3M6 to wrtiteh the defendante No. 1 & 2 replied and denied to execute the sale-deed. (3) it was further stated by Uie ptaintHfe that though ttie asreOTiented amount '«asRs.2,15,OCK)/- but ttie vatue of Ismd on which the revenue recwds have been corrwted onty comes to Rs.1,86,(XK}/-, therefore <he present suit has been filed for fte said area and value. When the defendants No. 1 & 2 alienated the suit iand in favour of defendant No. 4 during pendency of suit i.e. on 2^-04-2QQS Vns plaint was amended to ptesKl that the sale-deed executed ty defendante No. 1 & 2 in favour of defendant No. 4 on 21-04-2CX)6 fe illegal, void and not binding on the frtaintife, (4) The defendants No. 1 & 2 denied e execution of the ^reement and stated that they had obteined loan on two occastons firsdy Rs.5,(KKV- and thereafter Rs.20)/- and havs aiso received 79 Tami rice. They pieacted that they are iltiterato viflag^s and being ladies are innocent and that while taking their thurab impression and signalur^ the agrewient wae not resri over to them nor a copy thereof was handed over. They fljrfter stated that ttie land was jointfy recorcted in the name of ottier co-owners nanwty Kanhu, Nanhu and Chhabi. therefore the defendants alone wouU not have entwed into ttse agreement. It v@s specifically stated that when the d^endante asked for loan of Rs.10,000/- ftey were paid an amount of Rs.200/- only in Raigarh and remaining amount of Rs.9,^X}?- was to be paid in the v9age. but evwi after obtaining ftie receifrt regarding payment of Rs.10,CKX)/- the remaining amount ^ '•K^,, i i "'& ^^&r '^?. -^ "r-T of Rs.9,8W/- was not paid to e defendante No. 1 & 2. It was also steted that ttte name of defendants No. 1 & 2 have been rectnded on the entire area and no ottier mutation proreeding is pending. (5) The d^iendants No. 4 Narssngh ftasad, the subsequent purchaser, tited his s^arate written stetement and stated <hat he has purohased ttte entire agreemented area of land by paying consideration of Rs.2,91,0(X)/- to the defendants No. 1 & 2 and that the said defendants never infonn him stoout the pendency of ttie suit and that he is a bonafide purchaser. tecording te> these defendante. the friaiitfitfe never raised any objection befwe the registering authority nor he was infonned about ttis litigalion, ttiwefore the sale-deed cannot t»declared nuil and void. (6) The triai Court has recorded finding that ihe execution of the agreement as wv as the exacfcition of subsequent receipt regarding payment of Rs.10,000/- to the defendante No. 1 & 2 are proved, however, while deciding issue No. 3 fte trial Court held ttiat ttie plaintilfe were not ready and wiliing to perfonn their part of the contract and thus they are not enfitted for a decree for specific performance. (7) Leamed counse! for the appetlante have argued that fte findmg regardir®readiness and willingness has been amved at by the trial Court by misreading <rf evidence and the impugned judgment and ctewee desep/es to be set-aside. Per con^a, teamed cwinsel for the respondent No. 4 has argued that the trial Court has apiff^eiated evidence sn its fcue pefspective and has recorded the finding with regard to readiness and wilti(^ness in accordance w Ihe evidence and no interference is called for. (8) The plaintifis have been non suited on tt ground that ftey ware not ready antf wiBing therefore, this Court is only reqiared ta address ilseif on <he s ;v^ ^ ewdence and finding on issue No. 3 framed by the trial Court regarding readiness and willingness of the plaintifts to perform their part of ttie confrsKit. (9) Plaading re^irding r^idin^s and wilfingness has been made in para 5 of the piaint. !t has been stated by the ptaintiffe ttiat the defendante No. 1 &2 aiways rrfused to execute the sate deed. On a ciosure scrutiny of para 5 of the ptaint it woutd appear that th? pieading lacks in materisd terms inssmuch as the particulars and deteiis of Uie effort made by Ihe plaintifls to demonstrate th®rreadiness and willir^ness are found mi^ing. tt has not been steted as to on which paiticular date and before which wihiesses the plaintiffs requested the defendante for execution of the sale-deed. Siinilariy (PW-1) G(yiram has again failed to (rface on record ttie said particulara in affidavit under Order 18 Rute 4 of C.P.C, (10) The e^reement (Ex.P-1) was executed between the parties on 25-01-2tx)1 and the second agreemenVreceipt for payment of Rs.10,000/- to Vne defendants 'wss executed on 09-02-2002. The instant suit vras filed after four yeare i.e. 13-04-2006. In tt>e agreement (Ex.P-1) 'rt was stated tttat the saie-deed shat! be executed after mutation of the name of ttie defsndante in Uie revenue record. tn para 3 of fce agreement it has been spedfcaily mentioned ttiat the sale-deed shail bs executed by the defendants within 'bwlve monttts' from the date of order of mutation. it appears that inttially the period was typed as two' months and subsequenUy whitener has been used and over writing has been made to er-ase <he word tm>' and just above this, words twslve months' have been written, however the said correction/over writing does not bear initiate of any of the party nor it beare ttie initial of the Notaiy before whom the agreement was Nrtarized. Thus, prima fsscie the sajd part of the agreement appears to have been ovemritten and intefp<^ated. (11) The revenue documente (Ex.P-17) in favour of defendante No. 1& 2 were prepared and have been signed by the Addifional Tahsildar, Pusaur on 29-03-2(XS. This douiment mates an endorssment that the Bhu-Adhikar Evam Rin Pustika is prejared in pureuance to the order datsd 29-04-2004 passed by the Board of Revenue. (12) Ex. P-15 is an apptiration moved by fte {riaiitfffe before ttie ftctditi<mal Tahsildar anci Patwari requesting the said authorifies to not to issue copies of tt rewnue records to the defendante No. 1 &2 as they are iikety to dispose of the pr<yerty. in this applieatiQn atso it was mentioned that name of the ptaintiffs have aiready been recorded and 'Rin Pustika' has been issued to them on 29-03-20(». This a licaUon was filsd by fte frfaintiffe on 15-(&- 2035. There is ateotutely no evidence on record as to at what punt of time tte frfaintiffs became aware of the oreler passed by the Board of Revenue in favour of the defendante or the issuance of 'Rin Pusfika' and correctiwi sf revenue record in their favwir. it is ateo strange as to why the plainttfis dkl not flle a suit immediately after 15-09-20(ffi when they inoved appiication before the Addifionat Tahsiidw vide (Ex.P-15). Even the tegai nofice (Ex.P-3) was issued by the ptaintiffe to the defendante on 02-02-20C^ i.&. after aboyt 5 months from e a^lication made by ttiem before ttia Addffionai Tahsitdar. it was ali tt»emore necessary for the plamtiffe to have filed fte suit immediateiy because in Ex.P-15 ey have eiyressed fteir apprehension ttsat the defendante are Kkeiy to dispose of the property. In vtew <rf the said evktence on record ths finding recorded by the triai Court that the plalnHfe were not rwsdy and wiling to perform their j»rtofthe contract is not per/wse. (13) There is yet another feature in the (riaint and in ttie plaintiffe' case :h disentitled them to daim relM for specific perfonnance of the contract. In the agreement Ex.P-1 Uie total agreemented sate consideration was -^- iS"'""'^M tsgi, ^^s A:il' %^y 1> .13 Rs.2,15,000/-. however the plaint has been filed for the tands menfened in Scheduie 'A' with the ptaint and ttie piaintifEs have ass^sed the value of the suit land at Rs.1,^,000/-. In the agreement it is not mentioned as to on which rate tha Sand woutd be soid meaning thereby that rate per acre was not mentioned. It was also not menConed that if the name of defendants No.1 &2 are not recordeci on the entire area, the sale deed for the area whfch wouid be recordeci in their name shalt be executed by receiving consideration on a particular rate by proportionately reducing the amount of sate consideration. ni'n the absence of such reciterfs in the agreement ttie piaintitfe wwe not entMed to fix their own value of ttie iand and fite a suit by valuing the same at Rs.1,86,003/- and not at Rs.2,15,000/- for which ths agreement was entered. (14) In ttie matter of Bal (Wshna and Ansvther Vs. Bhagwan Das and Otters reported in 2008 (12) SCC 145 the Supreme Court has heid that readiness and wiltingn^s to pay a tesser consideration is not permissibte. !t has aiso been held therein ttiat specific performance of contract cannot be enforced in favour of a pereon who fails to aver and prove his readiness and wllingness to perfonn the wsentiat terms of the contract. (15) !n view of the above discusston, this Court comes to this conclusion that the plaintifls/appellante have faited to friead and prove their readiness and wiHingness to perfonn thsir part of the contract in terms of requirement of law under Section 16 of the Specifc Petfomiance Act. The finding in this regard r»ordedby ttie trial Court Is perfastly sn accordance wittt ttie ewlence on record. (16) There ss no substance in this appeal whteh fails and is hereby \dismissed. ^^^a^!^^ 1< ^ (17) There shalt be no order as to costs. A decree be drawn up accordingly. Sd/- Prashant Kumar Mishra Judge fv