LETTERS PATENT APPEAL NO.105 OF 1995 ------- Against the judgment and decree dated 31.1.1995 passed by learned single Judge of this Court in F.A. No.523 of 1980 reversing the judgment and decree dated 26.4.1980 passed by Subordinate Judge II, Patna in Title Suit No.188 of 1977. ------- 1. Bindeshwari Singh @ Brideshwar Singh 2. Ashutosh Kumar Singh @ Ashutosh Pd. Singh 3. Mahesh Prasad Singh 4. Kameshwar Singh @ Kmeshwar Sharma 5. Surendra Prasad singh @ Surendra Singh 6. Binod Prasad Singh 7. Birendra Prasad Singh All sons of Chhotu Narain Singh All residents of village Lathar Kab P.S. Bikram (Rani Talab) District Patna. ..... (Defendant 2nd party / Respondents --- in court below) ...... APPELLANTS VERSUS 1(a) Bidya Bhushan Singh Resident of village Lathar Kab, P.S. Bikram (Rani Talab) District Patna ----- (Plaintiff / Apellant in court below) .... RESPONDENT 1ST PARTY 2. Sharfuddin Main 3. Kamaruddin Main Sons of Late Md. Habib 3. Shakina Khatoon daughter of Late Md. Habib All residents of village Lathar Kab, P.S. Bikram (Rani Talab) District Patna (Principal Defendant / Respondent 1st set in court below) .... RESPONDENTS 2ND SET. ------- For the Appellant : M/s Shashi Shekhar Dwivedi, Sr. Advocate Pramod Kumar Singh, Advocate For the Respondent 1st Set: M/s V. Nath, Ashok Kumar, Satish Kumar, Advocates For the Respondents 2nd Set: Mr. Sukumar Sinha, Sr. Advocate ------- 2 P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE C.M.PRASAD -------- Shiva Kirti Singh, J. Defendant 2nd party are the appellants in this appeal under Clause X of the Letters Patent of this Court. They are aggrieved by judgment and decree dated 31.1.1995 passed by a learned single Judge of this Court whereby First Appeal preferred by the plaintiff (respondent 1st party herein) was allowed reversing the judgment and decree passed by Subordinate Judge II, Patna whereby he had dismissed the suit on contest against the defendant 2nd party and ex parte against other defendants but without costs. By the judgment under appeal, the suit for specific performance of contract has been decreed and the defendant 1st set as well as 2nd set have been ordered to execute sale deed on payment of balance consideration amount of Rs.7000/- to the defendant 1st set by the plaintiff within two months. 2. The plaintiff filed the suit for specific performance of contract for sale in respect of lands described in Schedule I of the plaint and for a direction to the respondents to execute and register the sale deed in favour of plaintiff on receipt of Rs.7000/- which was alleged to be the balance consideration money. In alternative, the plaintiff sought for a decree for Rs.41000/- which he claimed to have 3 paid as part of consideration money to defendant 1st set, with interest, both past and pendenti lite and future and to make the said decree a charge on the suit land. A further relief was sought that sale deed dated 12.7.1995 executed by defendant 1st set in favour of defendant 2nd set for part of Schedule I land be declared illegal, collusive without consideration and not binding on the plaintiff. 3. Before considering the rival contentions relevant for the purpose of deciding this appeal, it would be useful to notice the essential facts and case of the parties in brief. Plaintiff’s case is to the following effect. Md. Habib the original defendant no.1, who died during the pendency of the suit and has been substituted by his heirs, the defendants 1st set, was the owner of the suit land. He allegedly suffered losses in business and was afflicted with paralysis in 1968-69. To meet his needs of money, he agreed to sell the Schedule I lands measuring 4 Bighas 5 Dhurs and 5 Dhurki to the plaintiff for Rs.48000/-. On receipt of 41000/- as earnest money, he executed a Baibeyana on 12.5.1974 and agreed to execute and register the sale deed on receipt of balance consideration of Rs.7000/-, by 26.12.1974. Although a time was fixed for both the parties but it was tentative and was not the essence of the contract. The plaintiff made efforts but the defendant no.1 avoided to execute the sale deed on one pretext or the other and also on the plea that an 4 injunction order was passed on 13.6.1974 in Title Suit No.111/74 filed by one Md. Khalil. Plaintiff further pleaded that he came to know that defendant no.1 had executed and registered a sale deed dated 12.7.1975 in respect of 1 Bigha 11 Kathas and 8 Dhurs of land out of Schedule I lands for Rs.18810/- in favour of defendant 2nd set. This sale deed was alleged to be collusive and without consideration and the plaintiff alleged that defendant 2nd set had full knowledge of Baibeyana deed dated 12.5.1974. Plaintiff claimed that he was always ready to perform his part of contract but the defendant no.1 avoided to honour the contract which led the plaintiff to file the suit. 4. No written statement was filed either by the original defendant no.1, Md. Habib or by his heirs, the defendants 1st set and the suit was decided ex parte against them. The defendant 2nd set (appellants herein) contested the suit by claiming that they had purchased 1 Bigha 11 Kathas 7 Dhurs of land from Md. Habib by sale deed dated 12.7.1975 for Rs.18810/-. That sale deed is genuine and for valuable consideration. These defendants claimed to be bona fide purchasers for value without any notice or knowledge of the Baibeyana deed. They admitted that Md. Habib was afflicted with paralysis but they claimed that they were not aware whether he had any need of money in the year 1968-69. They claimed to have acquired knowledge of the Baibeyana deed only after receiving 5 summons of the suit. They pointed out that some of the lands purchased by them were not included in the Schedule I land. They claimed that their sale deed was in the knowledge of all the villagers and they had been coming in possession since the purchase made by them. 5. The trial court framed altogether nine issues, out of which four issues were taken up together for the sake of convenience. They included the issue whether the plaintiff was entitled for decree of specific performance of contract for sale on the basis of Baibeyana deed dated 12.5.1974, whether the plaintiff was entitled to alternative relief i.e. decree for Rs.41000/- with interest, whether the defendant 2nd party is a bona fide purchaser for value without notice of the Baibeyana deed and whether sale dated 12.7.1975 should be declared illegal, void etc. and not binding on the plaintiff. 6. The trial court noticed certain relevant facts which were not in dispute. These included the fact that Md. Habib owned the Schedule I land, he was afflicted with paralysis in 1968-69, he needed money for business and treatment and executed sale deed in favour of defendant 2nd party dated 12.7.1975 (Exhibit A). 7. After discussing the documentary and oral evidence relevant for the concerned issues, the learned Subordinate Judge held 6 that the sale deed in favour of defendant 2nd party i.e. Exhibit A was executed by Md. Habib and its execution was admitted by him before the Registrar. The Court held that there was evidence to show that this sale deed was for consideration and was acted upon. The purchasers amalgamated the purchased land with their own land and got mutated their names in the canal department. 8. On behalf of plaintiff a show cause filed by Md. Habib in Title Suit No.111/74 was brought on record as Exhibit 10 which was considered by the trial court. As per that document, execution of Exhibit A was admitted but an explanation was given in the said show cause that money was accepted for some other purpose and he had signed on Exhibit A under the impression that it was some other document and not a document of sale. The trial court considered such explanation in the show cause as a self serving statement of Md. Habib to save himself from alleged violation of the injunction order in Title Suit NO.111/74. The trial court held that such self serving statement in the show cause of another suit wherein the defendant 2nd party had no opportunity to cross-examine him should not be used against defendant 2nd party. It is not in dispute that the plaint of that suit which is an exhibit shows defendants 2nd set were not a party to that suit. In the present suit, Md. Habib neither filed any written statement nor was examined as a witness 7 and hence, clearly defendant 2nd party had no opportunity to cross- examine Md. Habib and expose his self serving statement in Exhibit 10. 9. In paragraphs 16, 17, 18 and 20 learned Subordinate Judge discussed all the relevant evidence, oral as well as documentary, on the issue whether the defendant 2nd party had knowledge regarding Baibeyana deed dated 12.5.1974 (Exhibit 5). After thorough and proper discussion, it came to a definite finding that the plaintiff’s evidence on this issue was not reliable and it was not proved that the defendant 2nd party had prior knowledge of the Baibeyana deed before execution of sale deed (Exhibit A) in their favour. On such finding the suit was dismissed on contest against the defendant 2nd set. It was dismissed ex parte against defendant 1st party on account of pendency of Title Suit No.111/74 before Subordinate Judge 1st court, Patna in which an injunction order was in operation which prohibited the defendant 1st party from executing any sale deed in respect of the suit lands. 10. On behalf of the appellants, Mr Shashi Shekhar Dwivedi, learned senior counsel has made a pointed attack on the findings given by the learned single Judge in paragraphs 18 to 21 of the judgment under appeal. He submitted that discussions made in the earlier part of the judgment under appeal was only with regard to 8 genuineness of Baibeyana deed (Exhibit 5) and payment of consideration for such deed leading to a finding in paragraph 16 that the Baibeyana deed could be the basis for ordering specific performance of the contract contained therein against the defendant – respondent 1st party. The appellants who are defendants – respondent 2nd party took a clear stand that even if those findings are defective these appellants are not interested in challenging those findings because they affect only the defendant 1st party. However, in respect of discussion made in paragraphs 18 to 21 it was submitted that in paragraph 18, the learned single Judge went into unnecessary discussion on the issue of onus as to who should establish the plea of absence of notice of Baibeyana deed before execution of the sale deed (Exhibit A). It has been submitted that on this issue the appellants could have only made denial which they did in pleadings as well as in evidence and it was not possible to prove a negative contention that they had no knowledge of the Baibeyana deed. Such knowledge had to be established or inferred from the evidence to be adduced by the plaintiff. It was further submitted that the reasoning of the learned single Judge that the defendant no.9, Chottu Narain Singh (D.W.3) could not give the exact date as to when he got knowledge of the Baibeyana deed after execution of the Exhibit A and hence, he should be disbelieved as a untruthful 9 witness, is not a legal and proper approach. Such reasoning and the reasoning that heirs of late Habib did not come forward to support the case of defendant 2nd party could not be a valid ground for upsetting the findings of the trial court on this issue. 11. It was further submitted that a statement by D.W.3 in his cross-examination that he knew about the pendency of the title suit and its nature and the injunction order passed therein was not sufficient to impute D.W.3 with knowledge of the Baibeyana. Such inference by the appellate court was erroneous because in cross- examination the date of such knowledge was never elicited whereas there was specific pleading and evidence that knowledge of Baibeyana deed was acquired after receiving the summons in this suit. The conclusion of the learned single Judge that due to circumstances noticed above prior notice of Baibeyana can safely be assumed, was thus strongly challenged as an unreasonable inference not warranted by the facts of the case. On the aforesaid criticism the finding given by learned single Judge that the sale deed should not be treated to be a bona fide one has been assailed as unwarranted and perverse and similar is the comment of learned senior counsel in respect of the reasoning that since Md. Habib as a seller was bound to disclose defects in the property hence, it must be presumed that he had disclosed such defect in the form of Baibeyana deed. Recitals in 10 the sale deed (Exhibit A) were placed before us to show that the defendant 2nd party had asserted in that sale deed that the purchaser had assured them on enquiry that there was no defect in his title. On behalf of the appellants, reliance was placed upon a judgment of the Supreme Court in the case of Brihanmumbai Mahanagar Palika v. Akruti Nirman (P) Ltd., (2008) 3 SCC 78, in support of the proposition that as a 1st appellate court it was the duty of the learned single Judge to apply its mind to all the points raised and to analyze the factual position in the background of law involved for deciding the appeal and an abrupt conclusion is not a proper way to dispose of a First Appeal. 12. On behalf of defendant 2nd party – respondent 2nd set, Mr Sukumar Sinha, learned senior advocate submitted that although no written statement was filed by defendant 1st party and they had led no evidence in the suit but in order to claim a decree for specific performance of contract, the plaintiff had to plead as well as prove all the necessary ingredients such as his having performed or having always been ready to perform essential terms of the contract. He placed reliance upon a judgment of this Court in the case of Phullan Mian v. Jogendra Ram, 2006 (3) PLJR 526 in support of the aforesaid proposition. That judgment supports the aforesaid plea but that alone is not sufficient because in this case the plaintiff has 11 not only pleaded but has also proved those essential requirements against defendant 1st set to claim specific performance of contract against them. When the defendant 1st set has not filed written statement and has not denied execution of Baibeyana deed (Exhibit 5) or passing of the consideration money as well as other relevant pleadings nor has cross-examined the evidence adduced by the plaintiff in respect of such pleadings, the aforesaid judgment cannot be of any help to them. So far as findings of the courts below are concerned, they are against defendant 1st party and no good ground could be shown to interfere with those findings. The only ground for refusing specific performance of contract against defendant 1st party was the pendency of Title Suit No.111/1974 and an injunction order passed therein but now it is not in dispute that the said suit stands dismissed. Hence, there exists no good ground for denying to the plaintiff the decree of specific performance of contract against the defendant 1st party which has been granted by the learned single Judge in appeal. 13. On behalf of the plaintiff, Mr V. Nath, learned counsel submitted that it was not necessary for the plaintiff to seek setting aside of sale deed in favour of defendant 1st party contained in Exhibit A and such observation by the trial court is unwarranted. He next submitted that judgment of the learned single Judge under 12 appeal has proceeded on correct principles of law. He relied upon a judgment of the Supreme Court in the case of R.K.Mohammed Ubaidullah v. Hajee C. Abdul Wahab, 2001 (2) PLJR (SC) 25 in support of the proposition that specific performance of a contract can be enforced against either party to the contract or any person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. He highlighted that Section 19(b) of the Specific Relief Act protects only the bona fide purchaser who has acted in good faith i.e. with due care, attention and honesty and has paid value without notice of the original contract. He also highlighted that onus of proof of good faith is on the purchaser who takes the plea of being an innocent purchaser. 14. The general propositions of law advanced above are not in dispute. However, the issue of good faith and shifting of onus is dependent upon facts of each case. In the case of R.K.Mohammed Ubaidullah (supra), the facts were quite different inasmuch as the beneficiary of the original contract was in actual possession on the date when the subsequent sale transaction was made in favour of the purchaser and hence, it was his duty to take notice of such possession by making reasonable enquiries as to the title or interest of the person in actual possession when sale 13 transaction was made in his favour. In the present case, the issue of possession has been decided in favour of the appellants and admittedly, the Baibeyana deed was not a registered one hence, ratio in the aforesaid judgment of the Supreme Court does not apply to the present case. 15. On a careful consideration of submissions of all the parties, it is found that the appellate court judgment lacks proper reasoning for reversing the finding of the trial court which has held that the defendant 2nd set had no knowledge of deed of Baibeyana. In fact, the observations and discussions of the learned single Judge in respect of D.W. 3 as well as show cause of Md. Habib in Title Suit No.111/1974 cannot be held to be proper and legally acceptable. It is clear that Title Suit No.111/1974 was between the brothers in respect of a claim for partition and equal share. Such claim was resisted by Md. Habib who claimed the property as his personal property and ultimately, the suit was dismissed. No good material is available on record to sustain the findings of the appellate court that defendant 2nd set had knowledge of the Baibeyana deed prior to execution of sale deed in their favour. The findings of the trial court in this regard have been reversed without any good materials or reasoning. 14 16. In view of aforesaid discussions and findings, the appeal succeeds and the judgment and decree of the learned single Judge against the defendant 2nd set (appellants herein) are reversed. As a result, the plaintiff’s suit against the appellants shall stand dismissed. It is further declared that even if any sale deed has been executed through court in respect of lands covered by the sale deed in favour of the appellants i.e. Exhibit A, such sale deed will not be effective or of any significance. However, it is made clear that no interference is being made with the judgment and decree of the learned single Judge passed in appeal against defendant 1st set i.e. the heirs of Md. Habib. The suit will stand decreed against them in respect of lands covered by the Baibeyana deed (Exhibit 5) but excluding the lands covered by the sale deed in favour of the appellants (Exhibit A). 17. This appeal is allowed accordingly but the parties shall bear their own costs throughout. (Shiva Kirti Singh, J.) C. M. Prasad, J. I agree. (C. M. Prasad, J.) Patna High Court The 19th April, 2010 AFR / S.Kumar