Bishan Singh vs Om Parkash Manjhal

Vinod K. Sharma, J.

CM No. 2524-C of 2010

For the reasons stated in the application, civil misc. is allowed and the delay of 57 days in refiling the appeal is condoned.

CM No. 2525-C of 2010

For the reasons stated in the application, civil misc. is allowed and the delay of 50 days in filing the appeal is condoned.

CM No. 2526-C of 2010

For the reasons stated in the application, civil misc. is allowed and the appellant is allowed to file this appeal as indigent person.

CM No. 2527-C of 2010

For the reasons stated in the application, civil misc. is allowed and the appellant is exempted from filing the certified copy of judgment and decree dated 14.3.2007.

RSA No. 895 of 2010

This regular second appeal by the defendant/appellant, is directed against the judgment and decree dated 27.7.2009, passed by the learned lower appellate court, vide which suit filed by the plaintiff/respondent, for possession by way of specific performance of the agreement, was ordered to be decreed.

The plaintiff/respondent filed a suit for specific performance of agreement to sell dated 21.1.2002, vide which the defendant-appellant had agreed to sell house in dispute for a consideration of Rs. 1,00,000/- (Rupees one lac only). A sum of Rs. 60,000/- (Rupees sixty thousand only), was paid as earnest money. It was the case of the plaintiff/respondent that he was always willing and ready and still ready to perform his part of the contract, and therefore, was entitled to decree for specific performance of agreement to sell.

The defendant/appellant, contested the suit by taking a plea that the agreement was unfair and to the disadvantage of the defendant- appellant, as the defendant/appellant had no other house to live in. It was also pleaded that he was not the owner of the property, which was jointly owned by the other family members. A stand was also taken that the agreement was forged document as the appellant/defendant was made to sign some blank papers as security for loan of Rs. 30,000/- (Rupees thirty thousand only) out of which Rs. 28000/- (Rupees twenty eight thousand only) already stood paid.

Learned courts below on appreciation of evidence have recorded a concurrent finding of fact that the appellant/defendant had entered into an agreement dated 21.6.2002 for the sale of the house in question for consideration of Rs. 1,00,000/- (Rupees one lac only). The learned courts below also held that the evidence on record proved the fact that the plaintiff/respondent was always willing and still willing to perform his part of the contract. Plaintiff/respondent was held entitled to a decree of possession by way of specific performance of agreement.

The concurrent finding of fact, recorded by the learned courts below was challenged by Shri Jagdish Manchanda, learned Counsel appearing on the the appellant, on the ground that the learned courts below, failed to take note of the fact that the defendant/appellant was not the owner of the property, which was inherited by him along with others, therefore, no specific performance could be ordered.

Mr. Jagdish Manchanda, learned Counsel for the appellant contended that this appeal raises, the following substantial questions of law for consideration by this Court:

Whether the sale of ancestral property by the appellant could bind the other heirs in a suit for specific performance?

Whether the agreement was sham and bogus transaction?

Whether the agreement which was unfair and unconscionable could be enforced by way of specific performance?.

In support of the first substantial question of law, learned Counsel for the appellant contended, that the property was inherited by the defendant-appellant from his father, therefore, other legal heirs also had shares in the property. The specific performance of an agreement to sell executed by the defendant-appellant, therefore, could not be enforced, by specific performance.

There is no force in this contention. Nothing was brought on record to show that the property in the hands of defendant/appellant was coparcenary joint Hindu family property. He executed the agreement of sale as absolute owner of the property. In defence he took a false plea that transaction was that of a loan. By way of positive evidence it was proved that earnest money of Rs. 60,000/- (Rupees sixty thousand only) was paid to appellant by way of cheque, which was got encashed by the appellant. Learned courts below, therefore, were right in rejecting this plea of the defendant/appellant.

Learned Counsel for the appellant on the second substantial question of law contended, that the property was worth Rs. 5,00,000/- (Rupees five lacs only), therefore, could not be sold for a sum of Rs. 1,00,000/- (Rupees one lac only), the transaction on the face of it was sham and bogus transaction, therefore, the plaintiff/respondent was not entitled to discretionary relief of specific performance.

This contention again is totally misconceived. No evidence was led to prove, the actual price of the property in dispute. It is well settled law that inadequacy of the price cannot be a ground to deny specific performance of an agreement. This plea again deserves to be rejected.

Learned Counsel for the appellant on the third substantial question of law contended that the agreement was unconscious and unfair, therefore, could not be enforced in view of Section 20 of the Specific Relief Act.

This contention is also misconceived. Nothing was proved on record, as to how the agreement was unconscionable, as no evidence was led to prove the actual price. Rather a false stand was taken, which was proved to be wrong, on the basis of evidence led.

Learned courts below on appreciation of evidence, held that the agreement, as well as willingness to perform the part of contract, by the plaintiff/respondent stood proved. The concurrent finding of fact cannot be challenged in the regular second appeal, specially on the basis of the contentions, which are based on no evidence.

Consequently, this appeal being without any merit is ordered to be dismissed. No costs.