APPEAL FROM ORIGINAL DECREE No.175 OF 1979 Against the Judgment and decree dated 22.11.1978 passed by Sri Bhagwan Prasad Sing,the learned 2nd Additional Subordinate Judge, Biharsharif, in T.S. No.45 of 1969 / 19 of 1973. Mostt.Albia Khatoon and others-----Defendants-Appellants. Versus Zamil Azhar & others-----------Plaintiffs-Respondents. For the appellants: Sri Faruque Manzoor, Sri Sunil Kumar Tiwary, Sri Sudhir Ranjan & Sri Prerna Pandey, Advocates. For the respondents:Sri Raghib Ahsan, Sri Abdus Salam & Sri Raj Nandan, Advocates. P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO JUDGMENT Mungeshwar Sahoo,J. This first appeal has been filed by the defendants – appellants against the Judgment and decree dated 22.11.1978 passed by Sri Bhagwan Prasad Singh, the learned 2nd Additional Subordinate Judge, Biharsharif, in Title Suit No.45 of 1969 / 19 of 1973 whereby the plaintiffs-respondents’ suit for specific performance has been decreed. 2. The plaintiffs-respondents filed the aforesaid suit for specific performance of contract dated 2.6.1966 regarding Schedule I property. 3. According to the plaintiff, Abu Zaffar, Bibi 2 Amna Khatoon and Mostt. Mahmuda were the owners of the Schedule-1 property. Abu Zaffar and Mostt, Bibi Mahmuda appointed Md. Shami as their Mokhaream ( power of attorney holder). Md. Shami was son of Mostt. Mahmuda. Md. Shami died and thereafter his mother Bibi Mahmuda also died leaving behind defendant no.3, Bibi Uma Khatoon who also died during the pendency of the suit. 4. The further case is that Md. Shami as power of attorney holder on behalf of Abu Zaffar and Bibi Mahmuda and also Bibi Amna Khatoon entered into contract for sale of the land described in Schedule-1 in favour of the plaintiff and defendant no.7 to the extent of 11 anas and 5 anas respectively. 5 anas in favour of defendant no.7, i.e., defendant 3rd party, and the contract for sale was registered on 2.6.1966. Possession was delivered. The consideration amount was fixed at Rs.12875/- and out of that Rs.1500/- was paid earlier and Rs.1000/- was paid on the date of registration of contract for sale. In the contract it was stipulated that the sale deed was to be executed and registered by 31st March, 1967. 5. The further case of the plaintiff is that several times he asked the defendants to execute the sale deed but they avoided. Lastly on 10.3.1967, 14.3.1967 he went to Md. Shami and Amna Khatoon and requested them to execute sale deed after receiving balance consideration amount. On 27.3.1967 they promised to come to Biharsharif on 29.3.1967 3 and execute the sale deed and, therefore, in good faith the plaintiff purchased stamps on 29.3.1967 but they never turned up. Thereafter telegram was sent and legal notice was also sent to Md. Shami and Bibi Amna Khatoon but the defendants failed to perform their part of the contract. It is further alleged that the defendants avoided to receive the legal notice in collusion with the Post Master, Md. Salauddin who is brother of son-in-law of Md. Shami. It is further alleged that on 20.5.1967 the defendants sent a legal notice to the plaintiff stating that the contract for sale has been cancelled because of the fact that sale deed was not obtained within 31st March, 1967 due to fault on the part of the plaintiff and defendant no.7. The plaintiff replied denying their fault and stated that they are still ready to purchase after payment of consideration money. Subsequently they sold the suit property to defendant 2nd party by registered sale deed dated 2.6.1967. 6. The further case of the plaintiff is that they were ready and willing and are still ready and willing to purchase the suit property after paying the remaining consideration amount. The defendant 2nd party purchased the suit property knowing the previous contract for sale executed by Md. Shami and Amna Khatoon in favour of the plaintiff and defendant 3rd party as such the sale deed is not binding on them and the purchase is not bonafide purchase for value. The defendant 3rd party did not join as plaintiff, therefore, the 4 plaintiff alone had filed the suit imp leading Salauddin as defendant 3rd party. 7. It may be mentioned here that defendants no.1 to 4 were defendant first party,, defendants no.5 and 6 were the defendant second party and defendant no.2 was defendant 3rd party. 8. The defendants no.1 and 4 filed contesting joint written statement. The defendants no.5 and 6 also filed joint contesting written statement supporting the case of defendant first party. The defendant no.7 neither appeared nor contested the suit. 9. According to the contesting written statement the defendants have raised various legal pleas. Their main contention is that the transaction was one transaction and, therefore, the suit filed by the plaintiff alone is not maintainable. The defendants have admitted the execution of the contract to sell dated 2.6.1966. The further defence is that the time was essence of contract. The defendants denied that possession was delivered. The defendants further denied that the plaintiff and defendant no.7 were ready to perform their part of the contract and they attempted for the same on 10.3.1967, 14.3.1967 and 27.3.1967. According to them the plaintiff and defendant no.7 never contacted the defendants and it is false to say that the plaintiff purchased stamp. It is alleged that the stamp was purchased by the plaintiff for selling his own land. 5 According to the further defence Md. Shami asked the plaintiff to get the sale deed executed after payment of consideration amount as he was in need of money on account of his illness. He also wrote many letters for the same. He and Amna Khatoon were always ready to perform their part of the contract. On 21.3.1967 Md. Shami wrote letter to father of the plaintiff but in spite of that no step was taken by the plaintiff and, therefore, the contract for sale was cancelled. The reply to the notice sent by the plaintiff is belated attempt to patch up their laches. On these grounds the defendants prayed that the plaintiff’s suit be dismissed. 9. On the basis of these pleadings of the parties the learned court below framed as many as seven issues. While deciding the Issue no.I, i.e., “ Is the suit as framed maintainable ?” The learned court below considering Section 15 of the Specific Relief Act and also various decisions of the different Hon’ble High Courts came to the conclusion that the suit as framed is maintainable and the suit is not bad for non- joinder of defendant no.7 as plaintiff. 10. The learned court below while deciding Issue no.III regarding readiness and willingness found that the plaintiff and defendant no.,7 were always ready and willing to perform their part of the contract. The learned court below also found that the contract for sale was subsisting on the date of filing of the suit and the plaintiff and defendant no.7 were in 6 possession and time was not the essence of contract. On the basis of all these findings the learned court below decreed the suit. 11. The learned counsel for the appellant submitted that the learned court below wrongly found that the plaintiffs and defendant no.7 were ready and willing to perform their part of the contract. The learned counsel further submitted that there are overwhelming evidence available on record to show that the plaintiffs and defendant no.7 were never ready to perform their part of the contract but the learned court below has given the finding otherwise. The learned counsel further submitted that there is specific stipulation in the contract for sale, Ext.4 which is a registered document, that the sale deed was to be registered within 31st March, 1967 and, therefore, the time was essence of the contract but the learned court below has wrongly given a finding that the time was not the essence of contract. The learned counsel for the appellants further submitted that the learned court below has misread the evidences of the parties and has come to wrong conclusion. According to the learned counsel the plaintiff alone cannot maintain the suit because the contract was jointly executed in favour of the plaintiff and defendant no.7. On these grounds the learned counsel for the appellants submitted that the impugned Judgment and decree are liable to be set aside. 12. The learned Senior counsel appearing on 7 behalf of the respondents submitted that in view of section 15 of the Specific Relief Act the plaintiff can maintain the suit. According to the learned counsel the plaintiff is ready to pay the whole consideration amount alone and the other person has been added defendant no.7 and, therefore, there is no bar or defect in the maintainability of the suit and the learned court below has rightly found that the suit is maintainable. The learned counsel further submitted that the learned court below has rightly came to conclusion that the plaintiff and defendant no.7 were always ready and willing to perform their part of the contract and that time is not the essence of contract. On these grounds the learned senior counsel for the respondents supported the judgment and decree passed by the learned court below and prayed that the appeal be dismissed. 13. In view of the above rival contentions of the parties the following points arise for consideration:- I. Whether the plaintiffs and defendant no.7 were ready and willing to perform their part of the contract and whether the plaintiffs’ suit is maintainable ? II. Whether time is the essence of contract in the present case ? III. Whether the defendants no.5 and 6. the subsequent purchasers have purchased the suit land having knowledge about Ext.4 or whether they are subsequent bonafide purchasers for value without notice of prior agreement ? 8 IV. Whether the plaintiff alone can maintain the suit for specific performance of contract ? FINDINGS 13. Point No.I:- To prove the readiness and willingness the plaintiff has examined P.W.1 Md. Salauddin Ahmad. He has stated that the plaintiff, Zamil Akhtar and defendant no.7, Alimuddin had gone to Shami Ahmad and Amna Khatoon with money for asking them to execute the sale deed on 10.3.1967, 14.3.1967 and 27.3.1967. He has further stated that on 27.3.1967 Shami Ahmad and Amna Khatoon told the plaintiff to purchase stamp and assured that they will go to execute the sale deed on 29.3.1967. The learned counsel for the appellants submitted that the evidence of this witness cannot be relied upon because he is the brother of the plaintiff as such he is interested witness. In my opinion on this ground in civil case the evidences cannot be discarded. From perusal of the evidence of this witness it appears that he has fully supported the case of the plaintiff. P.W. 3 is the plaintiff Zamil Akhtar himself. He has also stated that the same thing in his evidence that on 10.3.1967 he had gone to Shami Ahmad and Amna Khatoon with the balance consideration amount and asked them to execute sale deed. Shami Ahmad asked him to come on 14.3.1967 and again on 14.3.1967 Shami Ahmad asked him to come on 27.3.1967. On 27.3.1967 Shami Ahmad asked him to purchase the stamp and assured that he will come to Biharsharif 9 on 29.3.1967 for executing the sale deed in the evening and the sale deed will be executed on 30.3.1967. In support of this fact the plaintiff had filed the purchased stamp of Rs.312/- which has been marked as Ext.9. 14. The learned counsel for the appellant submitted that the plaintiff had purchased the said stamp for selling his land. So far this submission is concerned I find no force because it is the general practice that the purchaser always purchase the stamp and not the vendor of the land. In the instant case also there is specific case of the plaintiff that he purchased the stamp for obtaining sale deed from Md. Shami and Amna Khatoon according to the assurance given by Md. Shami. Therefore, it cannot be accepted that the plaintiff purchased the stamp for selling his land and moreover, had the plaintiff purchased the stamp for selling his land the stamp would have been used in registering the sale deed. 15. According to the plaintiff when Md.Shami and Amna Khatoon did not come he sent telegram asking them to come to Biharsharif. The telegram has been proved and marked as Ext.3 which is a copy of telegram. Ext.6 is the postal receipt which proved the fact that the telegram was sent. Exts.1 and 1/A are the legal notice which shows that the plaintiff requested the said Shami Ahmad and his wife, Amna Khatoon to come to Biharsharif. The plaintiff has proved the envelop, Ext.5 and the registration receipt which has been marked as 10 Ext.6A. 16. On the contrary to falsify the case of the plaintiff the defendants have adduced evidence to the effect that during the aforesaid period Shami Ahmad and Amna Khatoon were at Panduwa and not at village Mafi. All the witnesses examined on behalf of the defendants, i.e., D.W.1, D.W.6, D.W.7, D.W.8 and D.W.9, Amna Khatoon have stated that Shami Ahmad was at Panduwa from January,1967 to May,1967. The defendants have also adduced documentary evidences. Exts.A and A/1 are Inland letters and Exts.B and B/2 are Postcards. All these Letters were alleged to have been written by Md. Shami during the period January to March,1967 from Panduwa to different persons. These documents have been filed to prove that at the alleged time Md.Shami was at Panduwa. I fail to understand that how these letters came in possession of the defendant because the letters were addressed to different persons in January to March, 1967 and at the time of evidence the said letters have been produced from the custody of the defendant. 17. The defendants have also filed Ext.D series which are prescriptions of doctors of Kolkata and Giridih. Ext.E series are medical report and X-ray report. Ext.F is the discharge certificate and it does not bear any date. It shows that Md. Shami was under treatment from 1st February to 8th February,1967. Ext.H series are dated 8th February,1967 and are 11 hospital receipts. All these documents show that Md. Shami was under treatment at different places such as Giridih and Kolkata. Therefore, on the basis of these evidence it cannot be said that on the date as alleged by the plaintiff Md. Shami was not present in his village. It is the specific case of the plaintiff supported by reliable evidence that he had gone to Md.Shami and Amna Khatoon on 10.3.1967,14.3.1967 and 27.3.1967. Moreover, this specific case cannot be belied by the evidence adduced by the defendants which only shows that during that period Md. Shami was under treatment at different places. The Inland letters and Postcards, the Ext.A series and Ext.B series , said to have been written by Md. Shami, to different persons have been produced from the custody of defendant no.1 which cast a serious doubt about case of the defendants. On the other hand, the plaintiff has been able to adduce reliable evidence to show readiness and willingness. I, therefore, find that the plaintiff was always ready and willing to perform the part of the contract. 18. Point No.II:- Ext.4 is the registered contract for sale dated 2.6.1966. It is stipulated in the said contract for sale that the sale deed was to be executed within 31st March,1967. According to defendant because of this stipulation in the registered agreement time was the essence of the contract. On the other hand, according to the plaintiff time was not the essence of the contract because after the said day dated 31st 12 March,1967 also the defendants have stated that they were ready to execute the sale deed. The learned counsel for the plaintiff-respondents submitted that pursuant to the agreement for sale the plaintiffs was put in possession of the property and, therefore, the time was not essence of contract. 19. From perusal of Ext.4 it appears that it is mentioned that possession of the suit property was delivered in favour of the plaintiff and defendant no.7. The defendants have adduced evidence contrary to this fact. Since the allegation of delivery of possession is mentioned in a registered document the contrary oral evidence adduced by the defendant is not acceptable. In my opinion, no oral evidence for the purpose of contradicting or varying the statements made in Ext.4 is admissible. Therefore, according to the contract for sale, Ext.4, delivery of possession was given to the plaintiff and defendant no.7. 20. In a decision reported in A.I.R. 1988 Supreme Court 1074 Smt. Indira Kaur vrs. Shri Shiv Lal Kapur the Hon’ble Supreme Court has held that in transactions of sale of immovable property time is not the essence of the contract.D.W.8 in his examination – in –chief has stated that in May, 1967 Md.Shami had come to village of Mafi and had called Zamil Akhtar, the plaintiff, and asked him to get the land registered but Zamil Akhtar did not get it registered because of paucity of fund. This evidence is the evidence of defendant 13 which shows that in May,1967, i.e., after 31st March,1967 also Md.Shami was ready to execute the sale deed. D.W.7 Md.Salauddin at paragraph 14 of his crosexamination has clearly stated that 2 - 4 days prior to the registered sale deed in favour of defendants no.5 and 6 Md. Shami was ready to execute sale deed in favour of plaintiff. This evidence shows that the defendants have admitted the fact that after 31st March, 1967 also Md. Sham was ready to execute sale deed in favour of the plaintiff. Now, therefore, for the argument sake only the defendants- appellants cannot be allowed to say that time was the essence of contract. It is well settled principles of law that whether the time was the essence of contract or not should be gathered from the facts and circumstances of the case and subsequent conduct of the parties to the contract. In the present case as discussed above it is admitted fact that the said Md. Shami was ready to execute the sale deed even after 31st March,1967. Therefore, this evidence of admission of the defendant coupled with stipulation regarding delivery of possession in favour of the plaintiff in Ext.4 and over and above these evidences the well settled principles of law as laid down by the Hon’ble Supreme Court I find that time was not the essence of the contract in the present case. The finding of the learned court below on these points is, therefore, confirmed. 21. Point No.3:- So far this point is concerned it is admitted fact that the sale deed was executed in favour of 14 defendants no.5 and 6 on 2.6.1967 vide Ext.J. It is for the subsequent purchasers to show that they purchased the property for value without the knowledge of the prior agreement. In the present case it appears that none of the subsequent purchasers and / or descendants who have been substituted were examined on behalf of the defendants. Only D.W. 10 Sultan Azim son of Ifat Ara has been examined but in his evidence no where he has denied the fact that the purchasers had no prior knowledge about the agreement. Moreover, the Ext.4 itself shows that they had the knowledge about the prior agreement. In my opinion, therefore, sale deed executed in favour of defendants no.5 and 6 is not binding on the plaintiff. The subsequent purchasers are bound by the agreement and their purchase is not bonafide. 22. Point No.IV:- So far this point is concerned according to the plaintiff he requested the defendant no.7 to join with him but he refused to join and, therefore, he has been made party defendant no.7 in the suit. Further according to the plaintiff he is ready to pay the balance consideration amount as a whole and is ready and willing to purchase the suit property. Admittedly in this case the defendant no.7 neither appeared nor contested the suit. In view of section 15 of Specific Relief Act the plaintiff can alone maintain the suit. There is no bar in the Act that the suit is not maintainable. The only requirement of the law is that all the parties to the contract should be made party in the suit. I, 15 therefore, find no force in the submission of the learned counsel for the appellant. Accordingly, I find that the plaintiff- respondent alone can maintain the suit and the learned court below has rightly found the same. Accordingly, the finding of the learned court below is hereby confirmed. 23. In view of my above finding I find no merit in the first appeal and, accordingly, this first appeal is dismissed. In the facts and circumstances of the case there shall be no order as to cost. The Patna High Court, Patna. The 25th June, 2010 AnilKr.Sinha,Secretary/N.A.F.R. ( Mungeshwar Sahoo )