Balvinder Singh vs Hansa Singh and Others

N.K. Kapoor, J.—This is plaintiffs regular second appeal against the judgment and decree of the District Judge whereby the judgment and decree of the trial Court has been reversed.

Plaintiff filed a suit for specific performance of agreement dated 2.11.1973. According to the plaintiff, Hansa Singh, owner of land measuring 55 Kanals 10 Marlas, entered into an agreement to sell for a valuable consideration of Rs. 20,000/-. A sum of Rs. 9,000/- was paid to Hansa Singh as earnest money and the balance amount was to be paid at the time of execution of sale deed on or before 12.12.1973. Hansa Singh failed to perform his part of the contract. Hansa Singh had appointed Shri Karnail Singh-defendent No.2 as his Mukhtiar, but this power of attorney was cancelled by Hansa Singh on 2.11.1973. Despite the cancellation of the power of attorney Karnail Singh alienated the disputed land in favour of defendants 3 to 6 by means of registered sale deed dated 26.11.1973. According to the plaintiff, defendantthe vendees were aware of the earlier agreement and so the same does not effect the plaintiffs possessory rights. Plaintiff further made an averment to the effect that out of land measuring 55 Kanals 10 Marlas area comprised in rectangle No. 67/1 infact is not in his ownership and so sought relief of specific performance in respect of the remaining land measuring 49 Kanals 7 Marlas.

Hansa Singh filed written statement admitting the plaintiffs claim to be correct, Karnail Singh filed a separate written statement. According to Karnail Singh, Hansa Singh received a sum of Rs. 7,000/- and so executed general Power of Attorney in his favour to deal with his property in any manner he like. Thus, according to the case set up by Karnail Singh he had full authority to alienate the suit land on behalf of Hansa Singh.

Defendant Nos.3 to 6 filed separate written statement pleading that they have purchased the suit land for a consideration of Rs. 12,000/- from Karnail Singh, Mukhtiar of Hansa Singh by means of a registered sale deed dated 26.11.1973. They further claimed themselves to be bonafide purchasers for value without notice of any agreement in favour of the plaintiff. Other pleas regarding collusive nature of the suit and its maintainablity in the present form were raised. In the alternative, defendants prayed that in case the suit is decreed they be held entitled to a sum of Rs. 12,000/- and another sum of Rs. 7,000/- as they have dug out a tubewell in the disputed land.

On the pleadings of the parties, the following issues were framed: -

1) Whether the suit is collusive between plaintiff and defendant No.1 ? OPD.

2) Whether the suit does not He in the present form? OPD.

3) Whether the agreement between plaintiff and defendant No.1 is not valid and binding on the contesting defendants? OPD.

4) Whether defendants 3 to 6 are bonafide purchasers without notice for consideration? OPD.

5) Whether the plaintiff is entitled to specific performance? OPP.

6) Whether the plaintiff is entitled to alternative relief, if so from whom? OPP.

7) Whether the defendants have effected improvements, if so of what amount and to what effect? OPD.

8) Whether there was any agreement between defendants No.1 and 2, if so its effect? OPD.

9) Relief.

Trial Court decided issues 1 and 2 in favour of the plaintiff. Issue No.3 was decided against the defendants. Issue No.4 was decided against the contesting defendants. Issue No. 5 was decided in favour of the plaintiff. Under issue No.6, the Court held that since plaintiff is entitled to specific performance of the agreement, there is no need to grant her the alternative relief of damages. Issues 7 and 8 were decided against the defendants. Resultantly, suit of the plaintiff was decreed.

Before the tower appellate Court, the appellants assailed the finding of the trial Court to issue No.5 only i.e. ''whether the plaintiff is entitled to specify performance''. It was urged before the lower appellate Court that there has been non-compliance of section 10 of the Specific Relief Act nor there is a specific averment in the plaint that the plaintiff is ready and willing to perform her part of the agreement. Thus, there is a non-compliance of Form 47 of Appendix A of Civil Procedure Code.

Lower appellate Court on considering this aspect of the matter came to the conclusion that since the plaintiff has only claimed relief in respect of 49 Kanals 7 Marlas of land whereas agreement to sell pertains to an area measuring 55 Kanals 10 Marlas, plaintiff has not adhered to the terms of agreement and so it can be inferred that she is not ready and willing to perform her part of the agreement. Accordingly, finding on issue No.5 was reversed. Appeal was consequently accepted.

Counsel for the appellant has termed the finding on issue No. 5 to be wholly illegal and perverse and hence un-sustainable. According to the counsel, as per material evidence brought on record plaintiff had proved her entitlement to specific performance of the agreement, which finding has erroneously been reversed by the lower appellate Court without adverting to the pleadings and the evidence adduced in support of it. Thus, there has been a misreading of evidence leading to the dismissal of the suit. The claim of the appellant having been accepted by the vendor and it being further proved on record that the sale in favour of contesting defendants by Karnail Singh who had no authority to act on behalf of Hansa Singh infact could not raise any such plea before the lower appellate Court nor such a plea could be accepted as per facts on record. So, the judgment and decree of the Court below deserves to be reversed.

Shri Viney Mittal, Senior counsel appearing for the contesting respondents argued that the lower appellate Court on considering the matter has come to a correct conclusion that plaintiff had forfeited her right of specific performance as she did not express her readiness and willingness to perform her part of the agreement. Elaborating, the counsel urged that whereas the agreement to sell was for 55 Kanals 10 Marlas, plaintiff claimed relief in respect of 49 Kanals 7 Marlas on and that too on the payment of proportionate price and so the Court below rightly declined the plaintiff''s claim. In support of the above submissions, counsel relied upon the following decisions :-

1) Devi Dayal v. Manohar Lal (1982)84 P.L.R. 105; and

2) Smt. Hamam Kaur v. Jagtar Singh, 1991 100 P.L.R. 618.

I have heard the learned counsel for the parties for a considerable time and perused the judgments of the Courts below. Matter in dispute lies within a very narrow compass. Plaintiff entered into an agreement of sale for an area measuring 55 Kanals and 10 Marlas for a consideration of Rs. 20,000/- with one Hansa Singh. A sum of Rs. 9,000/- was paid at the time of execution of agreement. Remaining amount was to be paid at the time of registration of sale deed which was to be executed on or before 12.12.1973. Hansa Singh earlier had executed a power of attorney in favour of one Karnail Singh. This power of attorney was cancelled by him on 2.11.1973. Despite the power of attorney having been cancelled Karnail Singh acting as general attorney of Hansa Singh sold the suit land to defendants 3 to 6 vide registered sale deed dated 26.11.1973. As noticed in the earlier part of the judgment, the suit of the plaintiff was decreed as prayed for which finding has been reversed by the lower appellate Court holding that since the plaintiff had claimed relief in respect of 49 Kanals, 7 Marlas it exhibits her unwillingness to perform her part of the agreement. It is worth noticing that Hansa Singh - the vendor admitting the claim of the plaintiff. Not only this, the trial Court also came to the conclusion that Karnail Singh had no authority to sell the property owned by Hansa Singh and sale deed executed by him in favour of defendants 3 to 6 being without authority confers no rights upon them. So, in the context of the present case plea that the plaintiff is not ready and willing to perform her part of the agreement at best, could be taken by Hansa Singh alone. Since Hansa Singh had already accepted the claim of the plaintiff the lower appellate Court indeed erred in law in dilating upon it and accepting the plea in an appeal preferred by persons who infact had acquired no right even on the basis of sale deed dated 26.11.1973.

A perusal of the plaint and the evidence adduced makes it amply clear that. though the initial agreement was for a land measuring 55 Kanals 10 Marlas, plaintiff on her own laid claim for an area measuring 49 Kanals 7 Marlas as the remaining part of the land (as per agreement) was not owned by Hansa Singh. This fact has simply been glossed over by the lower appellate Court. The other contention of the learned counsel for the respondents is that as the plaintiff had expressed her willingness to purchase the remaining part of the land on payment of proportionate price, the same disentitles her to a relief of specific performance is too mis-placed. Such a plea can only be raised by the vendor. Since vendor had filed the admission statement the objection raised by the respondents is without any substance.

The Court in Devi Dayal''s case (supra) was examining as to whether an agreement entered into by a coparcener to sell his share in the coparcenary property can be specifically enforced. The Court held that since such a sale can be challenged by any of the other coparceners and so liable to be set aside, no useful purpose would be served by enforcing such a contract of sale.

In Smt. Hamam Kaur''s case (supra) the Court held that relinquishment u/s 12 of the Specific Relief Act can be made at any stage of the suit or appeal and it is not necessary to incorporate the plea specifically in the pleadings. Point under controversy was not in issue before the Bench.

No doubt relief of specific performance is discretionary relief and that the Court if not bound to grant this relief in all cases but keeping in view the facts of the present case, I am of the view that the reason that her claim having been accepted by the vendor at the out set-at the time of filing the suit, she has been deprived of her valuable right by persons who have no right or title in the suit property. Accordingly, I accept the appeal, set aside the judgment and decree of the lower appellate Court and as well modify the judgment and decree of the trial Court to the extent that defendant No.1 shall execute the sale deed in respect of 49 Kanals 7 Marlas on payment of the remaining amount (as per agreement) and will bear the conveyance expences and that the defendant shall execute the sale deed within a period of two months from the passing of the judgment and on defendant''s failing to execute the same plaintiff will be at a liberty to get the sale deed executed through the agency of the Court, with costs.