H.B. Dyavaiah vs Munna and Others

B. Sreenivas Gowda, J.—This is plaintiffs Regular Second Appeal challenging the judgment and decree of the Courts below dismissing the suit of the plaintiff brought for the relief of specific performance of agreement of sale dated 18.01.1996.

I have heard the learned counsel for parties. Perused the judgment and decree of both the Courts below.

For the sake of convenience, the parties are referred to as they are referred to in the trial Court.

The point does require to be considered is:

"Whether there is any substantial question of law needs to be considered and answered?

The answer is in the negative for the following reasons.

The case of the plaintiff is that the defendant is the absolute owner of the suit schedule property and on 18.01.1996 he entered into an agreement of sale with the plaintiff agreeing to sell the suit schedule property in his favour for sale consideration of Rs. 16,000/- and it was paid on the date of agreement itself. The defendant No. 1 delivered possession of the suit property in favour of the plaintiff under the agreement of sale. He has also delivered the patta receipt in token of delivery of the said property. Despite repeated requests and demand made by the plaintiff, defendant No. 1 did not come forward to execute and register sale deed in his favour in respect of the suit schedule property. The defendant No. 1 has failed to perform his part of contract. Therefore, plaintiff has got issued legal notice dated 29.06.1996 and 01.06.1996 calling upon the defendant No. 1 to execute the registered sale deed in his favour. When the demand made under the said notice was not complied with plaintiff has brought the suit for specific performance of the agreement of sale.

The defendant No. 1 after entering appearance in the suit filed written statement denying the averments made in the plaint, inter alia, contending that he is the owner of the suit schedule property, but he categorically denied execution of the agreement of sale as claimed by the plaintiff. He contends that he has not executed any agreement of sale, much less, the said agreement in favour of the plaintiff and he has not received any sale consideration, much less, Rs. 16,000/- shown to be paid to the defendant No. 1 by the plaintiff under the agreement. Thus, he prayed to dismiss the suit filed by the plaintiff

The defendant No. 2 though was served with the notice of the suit he did not contest the proceedings and therefore, he was placed exparte.

The trial Court based on the rival pleadings of the parties has framed the following issues for its consideration:

"1) Whether the plaintiff proves that deceased defendant No. 1 has executed an agreement of sale dated 18-01-1996 agreeing to sell the suit schedule property for a consideration of Rs. 16,000/-?

2) Whether the plaintiff further proves that the deceased defendant No. 1 has received the entire consideration amount and delivered the possession of the suit property in his favour?

3) Whether the plaintiff further proves that he is ready and willing to perform his part of contract?

4) Whether the plaintiff further proves that the deceased defendant No. 1 has violated the terms of agreement?

5) Whether the plaintiff proves that the defendant No. 2 has purchased the suit property from deceased defendant No. 1 knowing fully well about the agreement of sale?

6) Whether the plaintiff is entitled to the reliefs sought for?

7) What order or decree?"

The plaintiff in support of his case has examined himself as PW1 and other three witnesses as PW2 to 4 and documents produced by him were marked as Ex. P1 to P10. On behalf of the defendants no evidence either oral or documentary was adduced. The trial Court after hearing the learned counsel for parties and considering the oral and documentary evidence on record decreed the suit in part and directed the defendant No. 1 to repay the sale consideration of Rs. 16,000/- to the plaintiff with interest.

The plaintiff aggrieved by the judgment and decree of the trial Court refusing to grant the relief of specific performance has challenged the same in RA No. 43 of 2007 before the lower Appellate Court. The lower Appellate Court on re-appreciation of entire oral and documentary evidence on record dismissed the appeal and confirmed the judgment and decree passed by the trial Court.

It is admitted case of the plaintiff that defendant No. 1 who was the absolute owner of the suit schedule property had entered into an agreement of sale dated 18.01.1996 with the plaintiff agreeing to sell the suit schedule property in his favour and under the agreement he had delivered possession of the suit schedule property in his favour.

As per the agreement of sale produced at Ex. P1 stamp paper is shown to have been purchased on 08.01.1996, 10 days prior to execution of the agreement of sale dated 18.01.1996, whereas stamp paper bears the date as 05.05.1995. As per the evidence of the plaintiff and his witnesses on the date of execution of Ex. P1 - agreement of sale the stamp paper was purchased, ie., it was purchased on 18.01.1996. According to PW2 the stamp paper was purchased in the name of the plaintiff and according to PW3 it was purchased in the name of defendant No. 1.

The Courts below on careful securitization of all the three sheets of stamp paper of Rs. 5/- face value each, found that except the first sheet of stamp paper the second and third sheet of stamp paper did not disclose in whose name the said stamp papers were purchased. However, the first sheet of the stamp paper discloses the name of Abdul Khalik S/o. Late Sultan Mohammed. The patta book and tax paid receipts which were marked as Ex. P2, they are in the name of defendant No. 1. Though possession of the suit property was shown to have been delivered by the defendant No. 1 in favour of the plaintiff under the agreement of sale at Ex. P1, required stamp duty was not paid. Therefore, the suit agreement was impounded by the trial Court and it was referred to the jurisdictional Deputy Commissioner.

There is no merit in the contentions of the learned counsel for appellant that when the agreement of sale was allowed to be marked as Ex. P1. Subsequently, it could not have been impounded and referred to the Deputy Commissioner for appropriate action in the matter. It is no doubt true that once a document produced in the case is allowed to be marked as an exhibit its admissibility cannot be questioned later but in the instant case an insufficiently stamped document was allowed to be marked as exhibit. Even after marking it as an exhibit it can be impounded and referred to the jurisdictional Deputy Commissioner for determination of duty and penalty payable on such document.

The judgment and decree of the Court below would disclose that plaintiff did not make any attempt to pay the duty and penalty and bring the document before trial Court. As on the date of trial Court considering the case of the plaintiff the suit document was not available before it. This is the main ground on which both the Courts below have declined to grant the relief of specific performance in favour of the plaintiff.

Further the defendant No. 1 has sold the suit property in favour of the defendant No. 2 and possession of the suit schedule property was delivered to the defendant No. 2 on the date of alienation. The plaintiff, who seeks enforcement of the agreement of sale did not choose to ask for cancellation of the sale deed executed and registered by the defendant No. 1 in favour of the defendant No. 2. The Courts below have rightly held that unless plaintiff asks for cancellation of the sale deed executed by defendant No. 1 in favour of defendant No. 2 and ask for a direction to both the defendants to execute and register sale deed in his favour, it cannot grant the relief of specific performance as sought by the plaintiff.

The Court below on equity have ordered for refund of sale consideration of Rs. 16,000/- by directing defendant No. 1 to repay the said sale consideration to the plaintiff. This alternative relief granted by the trial Court and confirmed by the lower Appellate Court has not been challenged by the plaintiff.

I have carefully gone through the judgment and decree of the Courts below and I do not find any illegality or infirmity warranting interference of this Court, much less, there is no substantial question of law arises for consideration.

Accordingly, the appeal is dismissed as devoid of merits.

No order as to costs.