Hari Singh vs Vidya Devi And Others

Sharad Kumar Sharma, J

(Via Video Conferencing)

This is a plaintiff’s Second Appeal, which is arising out of the concurrent judgements, rendered by both the Courts below, in a proceedings,

which was arising out of Civil Suit No. 254 of 2012, Hari Singh Vs. Smt. Vidya Devi and others, whereby, the Suit for specific performance preferred

by the appellant had been dismissed on 29.07.2016, so far it relates to the execution of the decree of specific performance for execution of sale deed,

but however, it was partially allowed only limited to the extent for the refund of the money, i.e. the consideration, which exchanged hands and

between the parties to the Suit. The Trial Court in its judgment dated 29.07.2016, recorded the following reasons :-

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izfroknh la[;k&1 dks iVVs ij vkoafVr gqbZ Fkh] vr% ,slh fdlh iVVs dh Hkwfe dk cSukek ugha djk;k tk ldrk gSA

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gSAâ€​

On the Suit being dismissed on 29th July, 2016, by the Court of Civil Judge (Junior Division), Kashipur, District Udham Singh Nagar, the

plaintiff/appellant, herein, being aggrieved against it, had preferred a Civil Appeal before the Appellate Court, being Civil Appeal No. 50 of 2016, Hari

Singh Vs. Smt. Vidya Devi (since deceased) and others, which too, have been dismissed by the judgement of 24th February, 2020, of the first

Appellate Court, which is under challenge in the present Second Appeal.

Before venturing to answer the argument as extended by the learned Counsel for the appellant, few admitted facts, which can be born from the

record are that the property, lying in Khasra No. 183, which was having an area of 0.121 hectares, in fact, admittedly, it was a land, which stood

allotted by the Land Management Committee, vide its resolution dated 18th October, 2001, in favour of the defendant No. 1 (the alleged proposed

seller), who was the seller of the plaintiff/appellant, herein. The nature of the land, which was allotted by the Land Management Committee, was

categorized as Shreni-2 land, which is non-transferable land and no agreement for sale could have been executed by the defendant No.1 in favour of

the plaintiff/appellant. Apart from that, what is being reflected from the record is also that on 11th December, 2008, it is contended by

plaintiff/appellant that a registered agreement for sale with an agreed sale consideration of Rs. 48,000/- was executed by defendant in favour of

plaintiff/appellant, with a certain riders attached to it, as a condition precedent for executing the sale deed, it was to the effect that the defendant

would get an appropriate permission from the competent Revenue Authorities for the purposes of executing the sale deed in pursuance to the

agreement for sale dated 11th December, 2008. The execution of the sale deed was further subject to the condition that the sale would be executed

only when the defendant get, herself recorded as sankramaniya bhumihdar. Subsequent thereto, admittedly by qualifying the terms of earlier

agreement for sale dated 11.12.2008, an unregistered agreement for sale is said to have been executed on 12.12.2008, on an enhanced consideration

of Rs.65,000/-.

But the fact remains that despite of unregistered agreement for sale having been executed, the defendant did not get herself declared as

sankramaniya bhumidhar within the stipulated time, though the plaintiff/appellant in the suit has come up with the case that after the unregistered

agreement for sale, which is said to have been entered on 12th December, 2008, he was placed in possession and he has even raised the certain

consideration with regard to the fisheries ponds and the rooms for use as poultry farm.

The case of the plaintiff/appellant was that when the sale deed was not executed, he issued notice to the defendant/respondents on 24th May, 2012.

The Suit was contested by defendant/respondent by filing a written statement, being paper No.24-A, and it was contended thereof that the agreement

for sale could not be put to execution for the reason being that the Suit itself was instituted after the expiry of alleged agreed period, to get the sale

deed executed and further that sale deed would not be executable since it was based on an agreement for sale dated 11th December, 2008, no sale as

such could have been executed.

Be that as it may. Apart from the fact that the judgements are concluded by concurrent finding of facts, this Court is otherwise of the view that on

merits, the plaintiff/appellant has got no case as such to interfere under Section 100 of the CPC in a Second appellate jurisdiction for the reason being :

i. That the land, which was vested with the seller defendant/respondent agreed to be sold to the plaintiff/appellant was a land, which was allotted by

the Land Management Committee, on 18th October, 2001. Such type of land, where allotment is made by the Land Management Committee would do

not carry a sellable rights in favour of allottees, hence, no agreement for sale could have been executed, as land was falling under the category of non

transferable land.

ii. The land thus allotted by the Land Management Committee to the seller of the plaintiff/appellant, since being a land, which was recorded in Shreni-

2, could not have been agreed to be sold by the agreement for sale, which was sought to be executed in the Suit for Specific Performance filed by the

plaintiff/appellant.

iii. Even otherwise also, it is settled law that an unregistered agreement for sale, which was subsequently executed on an enhanced agreed sale

consideration, could not be taken as a foundation for preferring a Suit for specific performance. However, the direction issued by the judgements

under challenge in the Second Appeal for refund of the sale consideration, which has exchanged hands, had been because unregistered agreement

could be read for the collateral purposes of refund back of the money to the plaintiff/appellant but that direction in itself will not validate the right of the

defendant/respondent to get the agreement for sale executed in relation to a property, which admittedly continued to be recorded in Shreni-2, at the

time when the agreement for sale was entered into.

In view of the aforesaid reasons, this Court does not find any merit in the Second Appeal, as no substantial question of law involved consideration

before this Court to be answered. Consequently, the Second Appeal lacks merit and the same is accordingly dismissed, as is concluded by concurrent

finding of facts.