^- c.^^^^' IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR ,. First Appeal Noja -in sifl,;^Si of 2010 gremaR'£si3 APPELLANT PLAINTIFF Vinod Kumar Agrawal, aged about 45 yrs., S/o Shri Chhaganlal Ji Agrawal, R/o Ramsagar Para, Raipur, Tahsil & District - Raipur .(C.G.) Versus RESPONDENTS 1. Chandrika Sonkar, D/0 DEFENDANTS Shri Khelan Sonkar, R/0 - Ramkund, Present Address Behind Radhakrishna Mandir, Samta Colony, Raipur, Tahsil & District - Raipur (C.G.) 2. State of Chhattisgarh, Through: Collector, Raipur (CG) FIRST APPEAL UNDER SECTION_96 OF THE CODE OF CIVIL PROCEDURE 8'ffl HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. ^o0) Appellant Plaintiff Respondents Defendants First Appeal No. 79 of 2010 Vinod Kumar Agrawal Vs Chandrika Sonkar and another J^dament For Consideration Sd/- N.K. Agarwal Judge HON'BLE SHR! I.WI. QUDDU°»1,J ^0^'!T<-e- SA'- I.M.Quddusi Judge PostForjJydamient On ^-f Auaust, 2011 Sd/- N.K. Agarwal Judge fs"l "^ t.. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. •^\° Appellant Plaintiff Respondents Defendants First Appeal No. 79 of 2010 Vinod KumarAgrawal Vs Chandrika Sonkar and another Present: Mr. Goutam Bhaduri, counsel forthe appellant. Mr. BP Sharma, counsel for respondent No.1. Mr. Vinay Harit, Dy. Advocate General for the State/respondent No.2. JUDGMENT (Delivered on2^-?-,2011) Per G. Minhaiuddin. J 1. This appeal has been filed under Section 96 of the Code of Civil Procedure against thejudgment and decree dated 27 March, 2010 passed by the 1 Additional District Judge, Raipur in Civil Suit No.15A/06 dismissing the suit of the plaintiff filed for specific performance of agreement of sale. 2. Facts not in dispute are that the appellant/plaintiff and respondent No.l/defendant entered into an agreement of sale, under which respondent No.1 agreed to sell his land bearing Khasra No.870/1, area 0.186 hectare, situated at Chirhuldi Ward, Raipur (hereinafter referred to as "the suit land"), for a consideration of Rs. 7 lacs and received Rs.40,000/- as earnest money on 28.8.2003 and executed a Bayana Chitti (Ex.P/1) on the same date. Rest of the facts are in dispute. 3. Case of the appellant/plaintiff, in brief, is that respondent No.l/defendant entered into an agreement with the appellant/plaintiff on 28.8.2003 to sell his land bearing Khasra No.870/1, area 0.186 hectare, situated at Chirhuldi Ward, Raipur, ^ for a sum of Rs. 7 lacs and after receiving a sum of Rs.40,000/- as earnest money, executed a Bayana Chitti in favour of the appellant. It was agreed between the parties that respondent No.l/vendor after obtaining necessary clearance from the competent authority - Urban Land Ceiling - will inform the appellant/purchaser about the same and after receiving the balance amount of Rs.6,60,000/-, he will execute a registered sale deed in favour of the appellant/purchaser. However, subsequently, with the ulterior intent and motive of selling the said land at a higher price to another person, respondent No.1 did not care to perform his part of the contract. On getting information that respondent No.1 is trying tosell the suit land at a higher price to another person, a notice was got published by the appellant in this regard in the Ipcal newspapers. A notice was sent by respondent No.1 to the appellant informing him that the suit land is not recorded in the name of respondent No.1, but is a government grassland and respondent No.1 is only in possession ofthe same, therefore, he is not in a position to execute a registered sale deed in favour of the appellant and hence, requested the appellant to take back the amount of earnest money of Rs.40,000/- and cancel the agreement ofsale. 4. A reply to this notice was sent on 8.6.2005 by the appellant to respondent No.1 informing him that he will neither take back the earnest money, nor will cancel the agreement of sale dated 28.8.2003 and asked respondent No.1 to get permission as early as possible from the competent authority - Urban Land Celing - and execute a registered sale deed in favour ot the appellant after 'receiving the balance consideration of Rs.6,60,000/-. The appellant/plaintiff requested the respondent No.l/defendant many a times orally as well as in writing by notice through his advocate for executing a registered sale deed in his favour after receiving the balance consideration. On 4.7.2006 also, the appellant/plaintiff sent a notice to the respondent No.l/defendant through his advocate for the same purpose and requested that if any suit is pending with respect to the land in question, the same should be informed to him. However, when no reply was sent by respondent No.1 to the aforesaid notices, nor any actipn was taken by.respondent No.1 to \\ T^ execute the registered sale deed in favour of the appellant/plaintiff, a suit for specific performance of the contract ol sale dated 28.8.2003 was filed before the trial Court. 5. Case of respondent No.l/defendant, in brief, is that before abolition of the proprietary rights in 1950, Lalllu Prasad was Malguzar of Village : Chirhuldi and through him Dulourin Bai, predecessor in title of respondent No.1, was in possession ofthe suit land i.e. Khasra No.870/1, area 0.186 hectare. After the death of Dulourin Bai, respondent No.1 and his family members are in possession of the suit land but the same has not been recorded in their names. In the government records, the suit land is recorded as grassland and as such, through notice dated 3.6.2005 respondent No.l/defendant had informed the appellant/plaintiff that as the suit land is the government grassland and is not recorded in the name of respondent No.1, therefore, he is not in a position to execute a registered sale deed in respect of the same in favour of the appellant/plaintiff. In view of this, respondent No.1 had also requested the appellant to cancel the agreement of sale dated 28.8.2003 and take back the amount of earnest money Rs.40,000/-. Despite this, the appellant has neither taken back the earnest money,nor cancelled the agreement of sale dated 28.8.2003, and with a malafide intention filed a suit for specific performance of the contract, which is not maintainable and the relief of specific performance cannot be granted in his favour. 6. Learned trial Court, after framing issues and after giving opportunity of hearing and of adducing evidence to the parties, dismissed the suit of the appellanVplaintiff by the judgment and decree dated . 27.3.2010, against which the present appeal has been filed by the appellant/plaintiff. 7. The points for determination in this appeal are - (i) Whether respondent No.1 is the owner of land bearing Khasra No.870/1, area 0.186 hectare, situated at Chirhuldi Ward, Raipur? (ii) Whether respondent No.1 is liable to execute a registered sale deed in respect of the suit land \ '""^. '^ ^SSy^^ jj V ^ -^c/ ^•S-t-ff!" ^^ in favour of the appellant after receiving the balance amount of consideration i.e. Rs.6,60,000/-? 8. The appellant/plaintiff has examined himself and filed documents Ex.P/1 to P/9. Respondent No.l/defendant has examined himself and filed documents Ex.D/1 to D/4. 9. This is not in dispute that respondent No.l/defendant had executed a Bayana Chitti (Ex.P/1) on 28.8.2003 through which he agreed to sell his suit land for a sum of Rs. 7 lacs and has received a sum of Rs.40,000/- as advance on the same date. On 3.6.2005, respondent No.l/defendant- had sent a notice to the appellant/plaintiff informing him that as the land in question is not recorded in his name, the same is, in fact, recorded as government grassland therefore, he is not in a position to execute a registered sale deed in respect of the same in favour of the appellant and further requested the appellant to cancel the agreement of sale dated 28.8.2003 and take back the amount of earnest money i.e. Rs.40,000/-. 10. Learned counsel for the appellant has argued that as respondent No.1 has projected himself to be the owner of the suit land at the time of execution of agreement of sale dated 28.8.2003, therefore, in view of provisions of Section 17 of the Specific Relief Act, 1963, now respondent Nol/plaintiff cannot be permitted to take up a defence that he has no title or defective title in respect of the suit land. 11. Ip this connection, learned counsel has placed reliance on the judgment of the High Court of Andhra Pradesh in Mir Abdul Hakeem Khan Vs. Abdul Mannan Khadri, AIR 1972 Andhra Pradesh 178 and judgment of the Patna High Court in Diwali Lal ancf others Vs. Sardar Baldev Singh and another, AIR 1985 Patna 344. 12. Learned counsel for the appellant/plaintiff referring to the provisions of Section 13 of the Specific Relief Act, 1963 (in short "the Act of 1963") has contended that if title of respondent No.l/defendant is defective with regard to the suit land and there is dispute about ^^ ownership between the State and respondent No.1, then respondent No.1 should move an application under Section 57(2) of the Chhattisgarh Land Revenue Code, 1959 before the concerned Sub Divisional Officer for getting his name recorded in the land record. 13. On the other hand, learned counsel for the respondent No.l/defendant has submitted that the impugned judgment and decree is quite legal and proper and the appellant/plaintiff has no right to claim for specific peri'ormance of contract of sale in view of provisions of Section 17 of the Act of 1 963 as there was no title to the suit land of respondent No.1, therefore, he cannot be compelled to execute a sale deed in respect of the land, of which owner is the State. 14. Learned counsel for respondent No.l/defendant has also contended that in the absence of pleading and claim for relief of refund of earnest money, the learned lower Court has ordered respondent No.l/defendant to refund the earnest money of Rs.40,000/-, which is not sustainable in law. 15. From perusal ofthe LCR, it is clear that an amendment application (IA No.9) under Order 6 Rule 17 of the CPC was moved before the trial Court for incorporating the pleading that respondent No.l/defendant should move an application before the trial Court under Section 57(2) of the CG Land Revenue Code, 1959 before the concerned Sub Divisional Officer for getting his name recorded in the land records. This application was rejected by order dated 20.8.2008. Against this order, a petition i.e. W.P.(227) No.4846/08 under Article 227 of the Constitution of India was filed before the High Court and the same was dismissed by order dated 8.4.2009. 16. At this stage, it is necessary to reproduce Sections 13 & 17 ofthe Actof1963: 13. Rights of purchaser or lessee against person with no title or imperfect title. - (1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser z> or lessee (subject to the other provisions of this Chapter), has the following rights, namely- (a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest; (b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or [essor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance; (c) where the vendor professes to sell unencumbered property, but 'the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the purchaser may cbmpel him to redeem the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgagee; (d) where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the vendor or lessor in the property which is the subject-matter of the contract; (2) the provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property." 17. Contract to sell or let property by one who has no title, not specifically enforceable. - (1) A contract to sell or let any immovable property v\ ^) cannot be specifically enforced in favour of a vendor or lessor - (a) who, knowing not to have any title to the property, has contracted to sell or let the property; (b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt." 17. From bare perusal of the provisions of Sections 17 of the Act of 1963, it is clear that it contemplates a situation where a suit is filed for specific performance of contract by a vendor or a purchaser, who (a) knowing not to have any title to the property, has contracted to sell or let the property; and (b) though he enterecf into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt. 18. So far as Section 13 of the Act of 1963 is concerned, on which reliance has been placed by learned counsel for the appellant, it is appropriate to quote the observations of Hon'ble the Supreme Court made in para-22 of the judgment in the matters of Waheed Baig Vis. Bangi Lakshmamma and others, (2008) 14 SCC 435. "22. A copy of the agreement for sale'has been filed before us. This does not refer to any condition that after payment of instalment the lessee can become the owner and the agreement for sale was to take effect. Since the appellant was not the owner of the property, he could not have entered into an agreement to sell a property of which admjttedly he was not the owner. Great emphasis is laid by learned counsel for the respondents on Section 13 of the Specific Relief ^^0^' Act, 1963 (in short "the Act"). Section 13 reads as follows: "13. Rights of purchaser or lessee against person with no titte or imperfect title. - (1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely - (a) the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such jnterest; (b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance; (c) where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the purehaser may compe] him to cedeem the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgagee; (d) where the vendor or lessor sues' for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the '/'. '°....... '^ ^.-^--'"'^^, ' ^ f'j 11 '^-s-f .r' \> ,<fe vendor or lessor in the property which is the subjet-matter of the contract; (2) the provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property." The section deals with rights of a purchaser in certain cases, where a person contracts tp sell or let certain immovable property having no title or only an imperfect title. These rights enable the purchaser to take action when title of vendor is bettered in the circumstances given in this section. The vendor is under a duty to prov'e his title and to convey what he has contracted to convey. The section gives a right to the purchaser in the event there is a defect in title as enumerated in clauses (a) to (d) to compel the vendor to convey the title or to secure the concurrence or conveyance or to redeem the mortgage, etc. as the case may be." 19. As such, so far as Section 13 of the Act of 1963 is concerned, the suit filed by the appellant/plaintiff appears to be premature because his rights, as enshrined in Section 13 of the Act of 1963, arise only when the defective title of the vendor is bettered in the "ircumstances given in the said section, as observed by the Hon'ble Supreme Court in Waheed Baig (supra). 20. Now coming to the facts of the present case, upon perusal of the material on record, it is found that the present appellant/plaintiff had got the land records searched by an advocate Shri Rahmatullah, who submitted his search report, which was filed before the trial Court and exhibited as Ex.D/1. The appellant/plaintiff himself in para-12 of his statement has admitted that as per search repori: Ex.D/1 given by advocate Shri Rahmatullah, from the year 1984-85 to 1988-89 in revenue records, the suit land is recorded as grassland and as per search report Ex.D/1, from the year 1957 to 20.10.1980, the name of respondent No.l/defendant Chandrika Sonkar has not been recorded as owner of the suit land in the revenue records. The appellant/plaintiff has further admitted in para- ./'-''•° 10 ^^ 12 of his statement that he has filed Khasra Panchshala from 1984- 85 to 1988-89 (Ex.D/2) in which the suit land has been recorded as grassland and in coloumn No.12, respondent No.l/defendant has been recorded as an "unauthorized occupant". It has further been admitted in para-9 of the statement by the appellanVplaintiff that before entering into an agreement for purchase of the suit land, he had neither enquired about the title of respondent No.l/defendant nor did he file any document regarding title of respondent No.l/defendant over the suit land. 21. As such, from the evidence, both oral and documentary adduced before the trial Court, it is clear that the suit land recorded in the revenue record is grassland and in coloum No.12 of Khasra Panchshala, respondent No.l/defendant has been shown as an "unauthorized occupant". In view of this, it is clear that respondent No.l/defendant was neither owner of the suit land on the date of agreement of sale dated 28.8.2003 nor had perfected his title over the suit land till disposal of the suit on 27.3.2010. In these circumstances, the agreement dated 28.8.2003 cannot be specifically enforced and the findings recorded by the trial Court cannot be termed as faulty, and therefore, the same are hereby affirmed. 17. Since no cross-objection has been filed by respondent No.l/defendant with regard to refund of earnest money of Rs.40,000/-, therefore, the order regarding refund of earnest money passed by the Court below cannot be set aside in this appeal. 23. In the result, the appeal being devoid of substance deserves to be dismissed and is, accordingly, dismissed. The impugned judgment and decree dated 27.3.2010 passed by the 1 Additional District Judge, Raipur in Civil Suit No.15A/06 is affirmed. However, there shall be no order as to costs. J u d ge 2.T.8.2011 J u d ge ^l .8.2011