Atar Singh and Ors. vs Shyam Bihari @ Sardar & Ors.

R.N. Ray, J.—Heard learned Counsel for the appellants who submitted that plaintiffs filed suit for specific performance of contract regarding the disputed land and it was stated in the plaint that Badshah who was the sole defendant died during the pendency of the suit and present defendant was substituted in his place, Badshah agreed to sell his property detailed at the foot of the plaint for consideration of Rs. 14, 500 and he received a sum of Rs. 5980 by way of earnest money and persuent to that agreement he executed a registered agreement of sale in favour of the plaintiffs. The terms and conditions of the agreement were fully detailed in the agreement itself and some of those conditions are being high lighted in paragraph 2 of the plaint. It has been contended that plaintiffs were althrough willing to perform their part of contract but the defendant did not agree to pay 20 times revenue to acquire bhumidhari right. It was also agreed upon that in case the defendant failed to execute the saledeed within the stipulated time, then it would be open to the plaintiffs to get the sale executed through the intervention of the court and in case the plaintiffs failed to fulfil their part of contract, then the earnest money would be forfeited by the defendant. It was also provided that if the defendant did not acquire bhumidhari sanad on after depositing 20 times of the land revenue from pocket plaintiff pay (sic) money than the money so deposited and spent by them would be liable to be adjusted towards the balance of saleconsideration which had to be paid at the time of the execution of the saledeed. Plaintiffs asserted that these conditions were binding on the defendant and he had no authority to deny the same but in utter disregard of these terms and conditions, the defendants adopted totally indifferent attitude and he did not obtain bhumidhari right. Repeated request were made by the plaintiffs and on 27876 plaintiffs sent a notice calling upon the defendants to abide by the terms and conditions of the agreement, the notice was served upon the defendants on 9976 but the defendant did not pay any heed to the request of the plaintiffs as such the present suit was filed. The defendant filed written statement and thereafter he died. Learned trial Court after considering the materials on record decreed the suit for specific performance of contract, the substituted defendants preferred appeal before the lower appellate Court and the lower appellate Court held that defendant Badshah executed a deed of agreement against acceptance of consideration money and that plaintiff was althrough willing to perform his part of contract D.W. 1 stated that value of the disputed property on the date of execution of deed was Rs. 30, 000 and on the date of deposition was Rs. 50, 000 P.W. 1 admitted that there exists a tube well over the disputed property and the value of the tube well has not been assessed. It has been argued that the value of the tube well in the year 1976 could not be less than Rs. 10, 000 i.e. (at the relevant time for execution of the alleged agreement saledeed) as such the plaintiff led emphasis on the refund of the earnest money. P.W. 1 himself admitted that on the date of issuing notice he was prepared to get back his earnest money but on the date of deposition he was not all prepared. As such the plaintiffs suit for recovery of Rs. 5980 together with pendente lite and future interest at the rate of Rs. 9% per annum was decreed. Against the same judgment and order dated 19984 as passed in Civil Appeal No. 222/82 of the court of II Additional District Judge, Agra, this present appeal has been preferred by the plaintiffsappellants.

It has been contended before me that since there is concurrent findings of fact of the learned Court below that plaintiffs were although willing and ready to perform their part of contract and Badshah actually executed contract of sale upon receiving earnest money so, even assuming that the market price of suit property was more at the relevant time for executing the deed of agreement relating to the disputed land till then the suit for specific performance of contract of the disputed land ought to have been allowed to stand. It has been contended tough not admitting but even assuming that there was a tube well in the disputed land and for that reason also the decree given by the Court below ought not to have been disturbed by the learned appellate Court. In this way he contended that the suit for specific performance of contract ought to have been allowed by the learned Court below and as such he has tried to impress upon this Court for allowing the second appeal and setting aside the judgment and decree of the lower appellate Court and affirm the judgment and decree of the trial Court. Learned Counsel for the appellant cited a decision reported in AIR 1972 Cal 207, wherein their Lordships held that discretion to enforce specific performance must not be exercised arbitrarily but judicially upon considering the circumstances of the case. Another decision reported in AIR 1994 SC 105 and JT 1993 Vol 3, 616 was also reported to.

Learned Counsel for the respondent supported the judgment more or less on the reasons as has been assigned by the learned appellate Court and submitted that relief should be granted where it appears that plaintiff is to get adequate relief byway of compensation.

In support of the contention, the learned Counsel for the respondent referred to the following decisions as had been reported in AIR 1977 page 156; AIR 1978 212 AIR 1979 SC 1241 ; AIR 1972 (Cal), 207 and JT 1995 (3) 616.

Duly considered the submissions of both sides and persued the written statement and exhibits and judgment of the learned Court below and also oral evidences adduced by the parties in the Court below. I also agree with the findings of the learned Court below that Badshah duly executed the contract of sale of the disputed land and a tubewell constructed therein existed. I also hold that plaintiff was although willing and ready to perform his part of contract at the time of the alleged execution of contract and the plaintiffs also duly prayed for alternative relief and to allow this appeal will result in miscarriage of justice because that will force the defendantrespondent to be victim of unequitable bargain.

From the materials on record, I hold that there was a tubewell on the disputed land which costed Rs. 10, 000 and value of the land was much higher, in view of such materials on record I concur with the judgment and decree passed by the learned appellate Court by allowing the relief for refund of the earnest money together with interest at the rate of 9% from the date of filing of the suit and plaintiffs are to get cost of suit and cost of the appeal before the learned appellate Court.

In the circumstances, this appeal fails and stand dismissed. I do not order as to costs in this second appeal only.