Ashish Kumar vs Smt. Rukmani Devi and Others

Alok Aradhe, J.—This appeal has been preferred by the plaintiff. this Court vide order dated 01.5.2009 while admitting the appeal had formulated following substantial questions of law:-

(i) Whether the Courts below erred in dismissing the suit against the evidence and the agreement to sale Ex. P/1 on this point that the plaintiff was not ready and willing to perform part of contract as provided u/s 16(1)(c ) of the Specific Relief Act even though he had paid the maximum part of consideration?

(ii) Whether the Courts below erred in accepting the plea of bonafide purchasers in respect of defendant nos. 2 to 4 against the evidence of defendants?''

Facts giving rise to filing of the appeal, briefly stated, are that the plaintiff filed a suit seeking relief of specific performance of contract as well as permanent injunction on the ground that on 06.1.1998 the defendant No. 1 entered into an agreement to sell the suit plot admeasuring 4271 sq.ft. for a consideration of Rs. 15,000/-. At the time of execution of the agreement a sum of Rs. 13,000/- was paid. It was agreed between the plaintiff and defendant No. 1 that on receipt of balance amount, for which no time limit was prescribed, the defendant No. 1 would execute the sale-deed in favour of the plaintiff. It is the case of the plaintiff that under the agreement, the possession of the plot in question was handed over to the plaintiff. However, on 15.1.2001 the defendant No. 2 informed the plaintiff that the construction which has been raised by him on the plot in question is unauthorized. Thereupon the plaintiff informed him about the agreement dated 06.1.1998. The plaintiff got a notice published on 21.1.2001 in daily ''Dainik Bhaskar'' and sent a telegraphic notice to defendant No. 1 on 21.1.2001. Thereafter, the plaintiff filed the suit seeking relief of specific performance of contract and permanent injunction restraining the defendant No. 1 from alienating the suit plot.

The defendant No. 1 filed written statement in which, inter alia, it was pleaded that agreement was executed by way of security for loan. It was further pleaded that plaintiff was never placed in possession of the suit plot and the possession of the suit plot continued with the defendant No. 1. The defendant No. 1 executed the sale deeds on 16.1.2001 and 17.1.2001 in favour of defendants No. 2 to 4 had handed-over possession to them. It was further pleaded that market value of the suit plot was Rs. 30/- per sq.ft. and, therefore, the question of selling the same for Rs. 15,000/- does not arise. It was further held that defendant No. 1 sold the plot for a consideration of Rs. 1.28 lacs. It was further pleaded that the suit is barred by limitation. The defendants No. 2 to 4 filed their written statement in which, inter alia, it was pleaded that defendants No. 2 to 4 had made an enquiry and found out that defendant No. 1 is the owner. They got the plot in question demarcated on 13.1.2001. The defendants No. 2 to 4 are bonafide purchasers for valuable consideration without any notice of previous agreement.

The trial Court vide judgment and decree dated 17.8.2006, inter alia, held that in the sale deed (Exhibit-P-1) no time limit was prescribed for payment of remaining sale consideration. It was further held that execution of the agreement (Exhibit-P-1) was duly proved. However, the defendant No. 1 failed to prove that agreement was executed by way of security for loan. The trial Court further held that there is no plea with regard to readiness and willingness of the plaintiff to perform his part of the contract in the plaint. It was also held that plaintiff after execution of the agreement did not make any effort to obtain permission from the Gram Panchayat and only sent a notice (Exhibit-P-2) on 21.1.2001. Accordingly, it was held that the plaintiff failed to prove his readiness and willingness to perform his part of the contract. It was also held that there is no material on record to show that defendants No. 2 to 4 had notice of previous transaction. The trial Court further held that the plaintiffs are bonafide purchasers for valuable consideration and that the possession of the plot in question was not handed over to the plaintiff. Accordingly, the suit was dismissed.

Being aggrieved by the decree passed by the trial Court the plaintiff preferred an appeal. The respondent No. 1 filed cross objection with regard to findings on issues No. 1 & 7. The lower appellate Court vide judgment and decree dated 31.10.2008, inter alia, held that agreement was not executed by way of security for the loan. It was further held that from the date of execution of the agreement dated 06.1.1998, on 21.1.2001 i.e. the date when the plaintiff sent notice, there is no documentary evidence on record to suggest that plaintiff ever asked the defendant No. 1 to execute the sale deed. Accordingly, it was held that plaintiff has failed to prove his readiness and willingness. The lower appellate Court further held that plaintiff is entitled to refund of Rs. 13,000/- along with interest at the rate of 6% p.a. Accordingly, the decree passed by the trial Court was modified. The lower appellate Court, however, affirmed the findings of the trial Court on Issues No. 1 & 7 and dismissed the cross objection filed by the defendant No. 1.

Shri A.K. Jain, Learned Counsel for the appellant submitted that in the instant case since the defendant no. 1 has taken a stand that agreement is executed by way of security for the loan, therefore, he is not entitled to take advantage of provisions of Specific Relief Act, 1963. It was further submitted that under the agreement the plaintiff had paid the substantial amount i.e. a sum of Rs. 13,000/- out of total sale consideration of Rs. 15,000/-, therefore,. the finding recorded by the courts below that plaintiff is not ready and willing to perform his part of contract is perverse. It was further submitted recital contained in the agreement does not prescribe time for making payment of sale consideration and, therefore, time was not the essence of the contract. It was further submitted that subsequent purchaser cannot raise a plea that plaintiff has failed to prove his readiness and willingness. While inviting the attention of this Court to the statement of subsequent purchasers, namely, Ms. Lalita and Surendra it was submitted that defendants did not make any inquiry prior to execution of the sale deed with regard to previous agreement with the plaintiff. The courts below, therefore, grossly erred in holding that defendants No. 2 to 4 were bonafide purchasers for valuable consideration without notice of the previous transaction. In support of his submissions, Learned Counsel for the appellant has placed reliance on the decisions reported in Devalsab (Dead) by Lrs. Vs. Ibrahimsab F. Karajagi and Another, and others R. K. Mohammed Ubaidullah and Others Vs. Hajee C. Abdul Wahab (D) By Lrs. and Others, Motilal Jain Vs. Smt. Ramdasi Devi and Others, , Jugraj Singh and another Vs. Labh Singh and others, and Nirmal Singh (Deceased by LRs) and others Vs. Smt. Gejo and another,

On the other hand Learned Counsel for the respondent No. 1 while inviting attention of this Court to the agreement (Exhibit-P-1) submitted that for execution of the sale deed it was necessary to obtain permission from the Gram Panchayat. However, the plaintiff failed to even obtain permission from the Gram Panchayat and did not take steps nearly for a period of three years. The notice in the newspaper as well as telegraphic notice were sent to defendant No. 1 after execution of the sale deed. It was further submitted that concurrent findings of fact have been recorded against the appellant by the courts below that he has failed to prove his readiness and willingness to perform his part of the contract. Accordingly, it was urged that plaintiff is not entitled to decree for specific performance of contract. In support of his submissions Learned Counsel has placed reliance on the decisions reported in Bansidhar Das Vs. Duryodhan Majhi and Others, , Smt. Sundari devi Vs. Deo Narayan Prasad and Ram Awadh (Dead) by Lrs. and Others Vs. Achhaibar Dubey and Another,

Learned Counsel for respondents No. 2 to 4 submitted that defendants No. 2 to 4 are bonafide purchasers for valuable consideration without any previous transaction and finding in this regard has been recorded by the courts below on meticulous appreciation of evidence and, therefore, the same does not call for any interference by this Court in exercise of jurisdiction u/s 100 of the Code of Civil Procedure.

I have considered the submissions made on both sides. In AIR 1928 208 (Privy Council) it has been held that where the plaintiff claims a decree for specific performance of contract it is necessary for him to prove his readiness and willingness to perform his part of contract. Section 16(c) of the Specific Relief Act, 1963 provides that plaintiff must plead and prove that he is ready and willing to perform his part of the contract. The continuous readiness and willingness at all stages from the date of agreement till the date of filing of the suit need to be proved. [See: Raj Kishore (Dead) By L.Rs. Vs. Prem Singh and Others, , Laxman Tatyaba Kankate and Another Vs. Smt. Taramati Harishchandra Dhatrak, , Jugraj Singh (supra). It is well settled in law that by virtue of section 20 of Specific Relief Act the relief of specific performance of contract lies in the discretion of the Court and the Court is not bound to grant decree of specific performance of contract merely because it is lawful to do so. [See: Bal Krishna and Another Vs. Bhagwan Das (Dead) and Others,

In the instant case the agreement (Exhibit-P-1) was executed on 06.1.1998. The agreement contained a stipulation that to get the sale deed executed it is necessary that plaintiff should obtain permission from the Gram Panchayat for construction and should raise some construction. The plaintiff neither obtained any permission from the Gram Panchayat for construction nor raised any construction on the plot. Nearly after a period of three years from the date of execution of the agreement, the plaintiff for the first time sent a notice on 21.1.2001. There is no averment in the plaint that plaintiff made any effort for execution of the sale-deed from the date of execution of the agreement till notice Exhibit-P-2 was sent. In paragraph 9 of the plaint, the plaintiff has merely stated that he is ready and willing to deposit the balance of amount of sale consideration i.e. Rs. 2000/- in the CCD as and when the Court passes an order in this regard. Thus, the plaintiff has neither pleaded his readiness and willingness to perform his part of the contract nor has proved the same. Merely because maximum part of the sale consideration has been paid by the plaintiff, it cannot be inferred that plaintiff is ready and willing to perform his part of the contract. For the aforementioned reasons, first substantial question of law is answered in the negative and against the appellant

Both the courts have concurrently recorded a finding that the defendants No. 2 to 4 are bonafide purchasers for valuation consideration. Patwari, namely, Krishna Manoranjan Shrivastava has been examined as DW. 3. In his statement, the aforesaid witness had stated that he has carried out demarcation on 13.1.2001. It has further been stated by him that he found the defendant No. 1 to be possession of the suit plot and suit plot was vacant. It has also been stated by him that possession of the defendant No. 1 was recorded in the revenue records. The respondent No. 4, Smt. Lalita, who has been examined as defendant witness in paragraph 6 of her statement had stated that her son made enquiry from Patwari and it was found that defendant No. 1 is the owner and in possession of the suit plot. It has further been stated that demarcation was also carried out. Similarly, the respondent No. 2 who has been examined as defendant witness has stated in paragraph 5 as well as 8 of his statement that he had made enquiry on the spot and found out that defendant No. 1 is the owner and is in possession of the suit plot. It has further been stated by him that he got the suit land demarcated. Even otherwise, the question whether or not the person is bonafide purchaser for valuable consideration is a question of fact.

jurisdiction of this Court to interfere with the findings of fact u/s 100 of CPC is limited to the case where the finding is either perverse or based on no evidence. this Court cannot interfere with the concurrent finding of fact until or unless the same is perverse or contrary to material on record. [See: Mst. Sugani Vs. Rameshwar Das and Another, , Gurdev Kaur and Others Vs. Kaki and Others, , Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, and Narayanan Rajendran and Another Vs. Lekshmy Sarojini and Others, It is equally well settled that this Court in exercise of power u/s 100 of the CPC cannot re-appreciate evidence. [Sec. Thimmaiah and Others Vs. Ningamma and Another, It is equally well settled that where on appreciation of evidence, even if two view are possible, this Court in exercise of powers u/s 100 of the CPC would not interfere. [See: Kondiba Dagadu Kadam v. Savitribai Sopan Guzar and others, (1999) 3 SCC 722 and Veerayee Ammal Vs. Seeni Ammal, . It has further been held by the Supreme Court that interference with a question of fact is not permissible. [See: Basayya I. Mathad Vs. Rudrayya S. Mathad and Others, In S. Appadurai Nadar & another v. A. Chokalinga Nadar and Another, (2007) 12 SCC 774 it has been held by the Supreme Court that in exercise of power u/s 100 the Courts should be slow in reversing the finding of fact. The finding of fact even if erroneous would not be disturbed in second appeal unless the finding is shown to be perverse and based on surmises and conjectures. [See: Kulwant Kaur and Others Vs. Gurdial Singh Mann (dead) by Lrs. and Others etc., Shri Hafazat Hussain Vs. Abdul Majeed and Others, and Bharatha Matha and Another Vs. R. Vijaya Renganathan and Others,

The finding recorded by the trial Court as well as lower appellate Court that defendants no. 2 to 4 are bonafide purchases for valuable ''consideration without notice of precious transaction, by no stretch of imagination, can either be said to be perverse or based on no evidence. this Court in exercise of powers u/s 100 of the CPC cannot re-appreciate the evidence. For the aforementioned reasons, the second substantial question of law is also answered in the negative and against the appellant. In the result, the appeal fails and is hereby dismissed.