Behari Lal Uppal vs Sawan Singh and another

Muni Lal Verma, J.—The suit, which culminated in this appeal, was instituted by Sawan Singh (now Respondent 1) for specific performance of agreement to sell land, measuring 54 Bighas 14 Biswas, described in the heading of the plaint (hereinafter referred to as the land). Bihari Lal Uppal (now the appellant) was owner of the land and Sawan Singh had been in its possession, most probably as a tenant. N.K. Uppal is his (Bihari Lal Uppal''s) son and Mukhtiar-i-Am and he had been acting and prosecuting the case on his behalf in the capacity of Mukhtiar-i-Am.

The case of Sawan Singh was that on August 20. 1969, Bihari Lal, through N.K. Uppal, executed agreement to sell (hereinafter called the agreement) the and at the rate of Rs. 475/- per Bigha to him (Sawan Singh) and received Rs. 500/- by way of advance money from him. June 15, 1970 was fixed as the date for execution and registration of the sale-deed and the balance of the sale money was to be paid before the sub Registrar. Bihari Lal Uppal or N.K. Uppal did not turn up on the said date to execute the sale deed. Thereafter Bihari Lal Uppal and N.K. Uppal had been dilly-dallying and by the passage of time the price of land had increased, as a result of which Bihari Lal Uppal entered into another agreement to sell the land to Gurdial Singh (now Respondent 2) Therefore, he (Sawan Singh) sent a notice on April 16, 1971, by registered post to Bihari Lal Uppal to complete the sale within one month by executing and registering the necessary deed in his favour It did not bear any fruit. So Sawan Singh brought the suit, claiming decree for specific performance of the agreement with the allegations that he had always been ready and willing to perform his part of the contract and Bihari Lal Uppal had failed to perform his part of the contract. In the alternative, he claimed Rs. 25,982 50 by way of damages. Gurdial Singh was also impleaded as a defendant. He (Gurdial Singh) preferred to remain absent despite his service. So, he was proceeded against ex-pane. The suit, was contested by Bihari Lal Uppal He admitted the execution of the agreement and also the receipt of Rs. 500/- from Sawan Singh, but pleaded, inter alia, that the said amount was received by him as earnest money, that time was of the essence of the contract and it was Sawan Singh who had committed breach of the agreement by not turning up on June 15, 1970 at Rajpura, where the sale-deed was to be executed and registered and he (Sawan Singh) was a poor man and had never possessed funds to pay the balance of the sale money and had always been delaying the execution and registration of the sale-deed. It was under these circumstances that he (Bihari Lal Uppal) agreed to sell land to Gurdial Singh. Hence, the suit was tired on the following issuer :--

Whether the plaintiff remained ready and willing to perform his part of contract, O.P.

Whether the defendants committed the breach of the contract ? O.P.

To what amount of damages if any, the plaintiff is entitled O.P.

4A Whether the time was of the essence of the contract ? If so its effect ? OPD.

Relief.

The learned Subordinate Judge held under issue No. 3 that Sawan Singh could claim Rs. 1370/- by way of damages besides the return of Rs. 500/-, which he had paid to Bihari Lal Uppal as earnest money. He decided issue No. 4-A in the negative and finding issue Nos. 1 and 2 in the affirmative, recorded decree for specific performance of the agreement in favour of Sawan Singh against the defendants. Aggrieved by the said decree, Bihari Lal Uppal has appealed.

The proposition is now well settled that in a contract of sale of immovable property, time is not ordinarily of the essence of the contract unless the parties make it so by express agreement in the contract itself or it can be inferred from the nature of the property required to be sold; and it is supported by Amba Lal Umrao Singh Ji Vs. L. Harish Chander and Others, and Gomathinayagam Pillai and Others Vs. Pallaniswami Nadar, . Therefore, the ordinary presumption is that in the case of contract of sale of immovable property, time is not of the essence of the contract and it is for the party who alleges that it was so (i.e. that the time was of the essence of the contract) to displace the said presumption by the contents of the agreement the circumstances and facts of the particular case. This proposition was not, and could not be, disputed by the Learned Counsel for the appellant. He, however, argued that it was essential for Sawan Singh to call upon Bihari Lal Uppal to execute and register the sale deed in his favour on payment of the balance of the sale money within reasonable time, and added that since Sawan Singh did not take steps to secure the execution and registration of the sale deed within reasonable time, he had disentitled himself to the relief of specific performance the contract. I would agree with him that in a contract of sale of immovable property, it is expected of the parties to take steps to complete the sale by execution and registration of the deed within reasonable time, but I have been unable to agree with him that Sawan Singh did not act within reasonable time for securing the execution and registration of the deed from the appellant June 15, 1970 had been fixed as the date for execution and registration of the deed at Rajpura. It is an admitted fact that Sawan Singh had sent notice (Exhibit P 3) by registered post on April 16, 1971, i.e., about 10 months after the appointed date, for execution and registration of the deed to Bihari Lal Uppal, giving him one month to execute and register the sale deed. Bihari Lal Uppal gave reply (Exhibit P. 4) to the said notice on April 23, 1971 to Sawan Singh and the latter sent rejoinder (Exhibit P. 5) to Bihari Lal Uppal on April 30, 1971. The period of 10 months that elapsed from June 15, 1970, when Sawan Singh demanded Bihari Lal Uppal by registered notice (Exhibit P. 3) to execute and register the sale, deed, cannot, in the instant case, when Sawan Singh had been in possession of the land throughout, be said to be unreasonable. True, Ghanshamdas (D.W. 5) asserted that the grand daughter of Bihari Lal Uppal was to be married to his son on September 12, 1970 and the said marriage was actually performed on November 22, 1971. On the strength of his testimony, the Learned Counsel for the appellant contended, though faintly, that time was of the essence of the contract in the instant case, since Bihari Lal Uppal required money for the expenses of marriage of his granddaughter. This contention cannot be accepted. Admittedly, Ghanshamdas is a close relation of Bihari Lal Uppal and, as such, he would not hesitate to make statement favourable to him. N.K. Uppal, who appeared as D.W.4, did not state that the sale money was required for the expenses to be incurred on the marriage of his daughter or that her marriage could not be performed in the month of September, 1970, on account of non-availability of the sale money. It is not recited in the agreement that the sale money was required for the marriage of the granddaughter of Bihari Lal Uppal. No such plea had even been taken in the written statement. Neither the land nor any other property had been sold by Bihari Lal Uppal or N.K. Uppal in the month of September, October or November, 1971, which could indicate that Bihari Lal Uppal or N.K. Uppal had, in fact required any money for performing the marriage of the granddaughter of Bihari Lal Uppal. Thus there is no recital whatsoever in the agreement from which it can be inferred, even remotely, that the date June 15, 1970, fixed for the execution and registration of the deed was of the essence of the contract. The land is arable. As indicated above, it was in the possession of Sawan Singh. The conduct of the parties too does not warrant an inference that time was of the essence of the contract. Therefore, on the said state of affairs, I unhesitatingly find that the appellant has been unable to show that time was of the essence of the contract. Rather, the circumstances, indicated above, read consistent with the presumption, referred to above, and 1 find that the trial Court was right in holding that time was not of the essence of the contact. So its finding on issue No. 4-A is affirmed.

Ch. Roop Chand Learned Counsel for the appellant, assailing the findings of the trial Court on issue Nos. 1 and 2, contended that it was Sawan Singh who committed breach of the contract in as much as he being a poor Chowkidar had never been ready and willing to perform his part of the contract and had no funds to pay the sale money In my opinion, the said contention is not well founded. As usual, in the cases like the one in hand, the parties throw blame on each other for not completing the sale by executing and registering the deed in the conditions prevailing these days when truth is rarefied, oral testimony is counted as weak evidence and the rule of prudence demands corroboration of the same from other evidence and circumstances of the case before it can be acted upon No doubt, it can be inferred from the statements of Nawab Singh (D.W. 1) and N.K. Uppal (D.W. 4), through the same are not positive on the point, that N.K. Uppal had gone to Rajpura for executing the sale deed in the month of the June, 1970, and Sawan Singh did not turn up But their statements are nothing more than oral testimony. N.K. Uppal admitted that he did not make any application to the Sub-Registrar (Tehsildar at Rajpura), indicating that he had reached there for executing the sale deed. He did not send any notice in writing to Sawan Singh, complaining that he (Sawan Singh) did not reach Rajpura, although he (N.K. Uppal) had gone there to execute the sale died, or that he was prepared to execute and register the sale deed and Sawan Singh could reach Rajpura on any date suggested by him that means that no corroboration is available to the oral testimony of N.K. Uppal and Nawab Singh that N.K Uppal had gone to Rajpura on June 15, 1970, to execute the sale deed. As such, no reliance can be safely placed on their testimony Shangara Singh (D W 2) and Bachan Singh (D.W.3) represented that they had asked Sawan Singh to get the sale deed executed and registered, but he indicated his inability to get the sale deed executed or registered for the reason that he had no money to pay, their statements are again oral and are not supported by any evidence or circumstances of the case. No question suggesting that Shangara Singh and Bachan Singh had approached Sawan Singh to get the sale deed executed and registered was addressed to him during cross-examination and no explanation for omission to cross examine him on that matter is forthcoming. On this state of evidence, the trial Court was right in disregarding their testimony.

Sawan Singh had obtained copy of Jamabandi from the patwari. The said copy is Exhibit P6. It is dated as April 28, 1970. So, it shows that he had taken steps to secure the execution and registration of the sale deed. In the notice Exhibit P. 5), which was given by Sawan Singh through his counsel, he (Sawan Singh) called upon the appellant to execute the sale deed on May 5, 1971, stating clearly that he (Sawan Singh) would be reaching Rajpura on that day and would be waiting for him (the appellant) in front of the office of the Sub-Registrar. N.K. Uppal admitted the receipt of the said notice. The appellant did not give reply to the said notice and N.K. Uppal did not state that he or his father (the appellant) had gone to Rajpura on May 5, 1971 to execute the sale deed. Sawan Singh asserted, and he is supported by Mehar Singh (P. W. 6) that on May, 3, 1971, the vendor represented to Sawan Singh that he (the vendor) would be reaching Rajpura on May, 5, 1971, to execute the sale deed It is in evidence from Sawan Singh and Kastur Singh (P. W. 3) that they reached Rajpura on May 5, 1971, and waited for the appellant till 5 P.M. for execution and registration of the sale deed but he did not turn up They added that the affidavit (Exhibit P. 2) of Sawan Singh was attested by Shri R.S. Rangi Oath Commissioner. The said fact is also deposed to by Shri R.S. Rangi. Affidavit (Exhibit P. 2). Therefore, the aforesaid evidence when read as a whole, points out that Sawan Singh did reach Rajpura on May 5, 1971, and waited for the appellant in front of the office of the Sub-Registrar, but the appellant failed to reach there to execute and register the sale deed. Added to all this, Sawan Singh made positive statement before the trial Court that he was still prepared to accept the land in sale and he had collected the amount of Rs. 27,000/- and had the same with him for payment to the appellant as sale money. On the contrary, N. K. Uppal stated that he was not ready to complete the sale by executing the sale deed. True, Sawan Singh is Chowkidar, but he says, and it is also admitted by N.K. Uppal, that he cultivates the land as well. Therefore, in these days when the prices of produce of the land, including foodgrains, are very high, financial capacity of Sawan Singh to pay the sale money may not be doubted. Further, it was not a matter for the appellant nor for the Court to find as to form which source Sawan Singh had raised or could have collected the money. It is sufficient that he had it. Since the appellant failed to produce any cogent evidence to show that he had ever shown readiness to execute and register the sale deed, the financial capacity of Sawan Singh to pay the sale money could never be judged. In that situation, it would be idle to contend that Sawan Singh could not pay the sale money simply because he was Chowkidar. It, thus, follows that the evidence, circumstances of the case and the conduct of the parties point out unmistakably that Sawan Singh was not at fault and it was the appellant who committed the breach of the contract. So, the findings of the trial Court on issues No. 1 and 2 are correct and the same are affirmed.

In the case of a contract for sale of immovable property damages, in my opinion, can hardly be a satisfactory relief and ordinarily, the Court has to direct specific performance of the agreement. In that view of the matter, and in view of the findings on issues No. 1, 2 and 4-A, Sawan Singh was rightly granted the decree for specific performance of the contract and this appeal is bereft of any merit.

Consequently, I maintaining the decree of the trial Court dismiss this appeal with costs. It is directed (vide section 28 of the Specific Relief Act) that Sawan Singh will now deposit the purchase money for the land to be assessed at the rate of Rs. 475/- per Bigha less Rs. 500/- already paid, for payment to Bihari Lal Uppal appellant on or before April 15, 1975, in the trial Court. On deposit of the said amount, Bihari Lal Uppal shall himself or through his authorised agent execute and cause registration of the sale deed, the expanses of which (including the conveyance charges, stamp and registration) shall be borne by Sawan Singh. He (Sawan Singh) may then apply for recovery of the costs of the suit and the appeal from the appellant and the trial Court may proceed to pay the same out of the purchase money or from any other property of the appellant. In case Sawan Singh fails to pay the aforesaid purchase money on or before April, 15, 1975, in the trial Court, the appellant will be entitled to apply to the trial Court for rescission of the contract and in that event Sawan Singh will not be entitled to recover the costs of the suit or of the appeal from the appellant.