Jayawanti and Others vs Babaji Narasappa Chougale and Others

B.V. Nagarathna, J.—1. Though the appeals are listed for admission, with the consent of learned counsel on both sides it is heard finally.

R.S.A. No. 5665/2010 is filed by the legal representatives of the original plaintiff in O.S. No. 41/1995, while R.S.A. No. 5849/2010 is filed by the original defendants in the said suit. In both the appeals the respective appellants have assailed judgment and decree passed in R.A. No. 32/2006 by the Fast Track Court-1, Chikkodi, dated 09.07.2010.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.

The plaintiff filed the suit against the defendants seeking the relief of specific performance of agreement dated 26.02.1985 followed by agreement dated 28.12.1992 and for the relief of permanent injunction restraining the defendants from causing any obstruction in the possession and enjoyment of the suit properties of plaintiff. The original plaintiff and defendants are siblings. R.S. No. 195/1 measures 17 acres 14 guntas. The same was owned by the defendant. The plaintiff, being a widow, was assisted in managing her affairs, by the defendant. The defendant was in need of money. He entered into a conditional sale of the suit land in favour of the plaintiff for Rs. 20,000/-. The defendant was required to repay the amount within ten years. Hence, a conditional sale deed was executed on 26.02.1985. The plaintiff was put in possession of the said land. The defendant did not repay the loan amount. Then in December 1992 he was again in need of money, he agreed to sell the suit land for Rs. 60,000/- and received an additional amount of Rs. 30,000/-. The defendant executed an agreement to sell dated 28.12.1992, the plaintiff who had already paid a sum of Rs. 50,000/- to the defendant was ready and willing to perform her part of the contract. But, defendant filed O.S. No. 140/1994 against the plaintiff seeking the relief of permanent injunction against her. The said suit was pending before the Munsiff Court, Chikkodi. When the present suit, i.e., O.S. No. 41/1995 was filed. According to the plaintiff despite her repeated requests, the defendant did not come forward to execute the sale deed by receiving balance sale consideration of Rs. 10,000/-. Hence, suit was filed seeking the aforesaid reliefs.

On receipt of suit summons and Court notices from the trial Court the defendant appeared through his counsel and filed his written statement denying any transaction having taken place between him and the plaintiff. He denied that possession of the suit schedule property was delivered to the plaintiff. He contended that he had not executed any documents in favour of the plaintiff. That the suit was barred by time. He sought for dismissal of the suit.

On the basis of the aforesaid pleadings the trial Court framed the following issues for its consideration.

"ISSUES

1) Whether plaintiff proves that on 26.2.1985 the defendant by receiving an amount of Rs. 20,000/-has executed a conditional sale deed?

2) Whether the plaintiff proves that the defendant by agreeing to sell the suit property in her favour executed a sale agreement dated 28.12.1992 and has further received an amount of Rs. 30,000/-?

3) Whether the plaintiff proves that the defendant put her in possession of the suit land and as per the terms of the conditional sale deed dated 26.2.1985?

4) Whether the plaintiff proves that she was ever ready and willing to perform her part performance of contract?

5) Whether the defendant proves that the suit is barred by time?

6) Whether the plaintiff is entitled to the relief of specific performance of the suit sale agreement?

7) Whether the plaintiff is entitled to the relief of permanent injunction?

8) What order or decree?"

In support of her case plaintiff examined two witnesses as P.W.1 and P.W.2. She produced 32 documents which were marked as Ex. P.1 to 32. The defendant examined himself as D.W.1. He produced two documents which were marked as Ex. D.1 and Ex. D.2. On the basis of the said evidence the trial Court answered issue Nos. 1 to 4 and issue Nos. 6 and 7 in the affirmative and issue No. 5 in the negative and decreed the suit with costs by holding that the plaintiff was entitled to a decree of specific performance of the agreement to sell and a direction was issued to the defendant to execute the sale deed after receiving the balance sale consideration of Rs. 10,000/- within 60 days from the date of the decree, failing which, plaintiff was at liberty to get the sale deed executed in accordance with law. The relief of permanent injunction was also granted to the plaintiff restraining the defendant or anybody acting on his behalf from causing any interference or obstruction in the plaintiff''s enjoyment of the suit property.

Being aggrieved by the judgment and decree of the trial Court dated 19.11.2005, defendant preferred R.A. No. 32/2006 before the first appellate Court which, on hearing the learned counsel for the respective parties framed the following point for its consideration:--

"Whether the impugned judgment and decree requires the interference of this Court and that the appeal is fit to be allowed?"

It answered the aforesaid point in the affirmative and allowed the appeal and rejected the relief of specific performance sought by the plaintiff. It directed the defendant to repay a sum of Rs. 50,000/- with interest at the rate of 6% p.a. from the date of suit till realisation, within a month from the date of the order. As noted above, it is against the judgment and decree of the first appellate Court, that both the plaintiff and defendants have preferred their respective appeals.

I have heard learned counsel for the legal representative of original appellant-plaintiff and learned counsel for the legal representative of original respondent-defendant. The parties are now represented by their legal representatives.

It is contended on behalf of the plaintiff that the trial Court who is right in granting the relief of specific performance and also the relief of permanent injunction to the plaintiff. But the first appellate Court was not right in modifying the said decree and thereby rejecting the relief of specific performance. He contended that in terms of the transaction and agreement between the parties, the defendant had agreed to sell the suit property to the plaintiff for a valuable consideration of Rs. 60,000/-. The defendant had already received Rs. 50,000/- and balance consideration of Rs. 10,000/- only was to be paid at the time of registration of the sale deed. The plaintiff was ready and willing to perform her part of the contract and requested the defendant several times to execute the sale deed but the defendant did not execute the sale deed in favour of the plaintiff. Therefore, she was constrained to file the suit before the trial Court, which rightly decreed the suit. But the first appellate Court did not appreciate the case of the plaintiff and instead held that the plaintiff was not entitled to the relief of specific performance.

He contended that the reason assigned by the first appellate Court that Ex. P.1 is an unregistered document and therefore the same could not be acted upon is incorrect. He submitted that no doubt there was an agreement to sell the property on 26.02.1985. It was a sale subject to a reconveyance. But, that document was also not registered. Therefore, it is to be construed as an agreement to sell only. The subsequent transaction dated 28.12.1992 is a continuation of the earlier agreement dated 26.02.1985. The plaintiff had paid Rs. 50,000/- out of Rs. 60,000/- consideration to the defendant. The defendant ought to have been directed to execute the sale deed instead of directing the defendant to refund the amount with interest at 6% p.a. from the date of suit till the realisation.

Learned counsel for the plaintiff contended that no reasons have been assigned by the first appellate Court for not exercising discretion in favour of the plaintiff and thereby not granting the relief of specific performance. He, submitted that substantial questions of law would arise in this appeal and that the appeal may be heard and allowed in favour of the plaintiff.

Per contra, learned counsel for the defendant who filed R.S.A. No. 5849/2010 while supporting the judgment of the first appellate Court, which rejected the relief of specific performance, however, contended that the first appellate Court directed the defendant to repay the sum of Rs. 50,000/- with interest at 6% p.a. from the date of suit till the realisation, within a month from the date of passing order. He contended that when the first appellate Court did not give any credence to Ex. P.1 document then no direction could have been issued as against the defendant with regard to refund of the amount which was based on the clauses in Ex. P.1. He, contended that the judgment and decree of the first appellate Court requires modification. The suit of the plaintiff has to be dismissed by allowing the appeal and that substantial questions of law would arise in this appeal and hence the appeal may be admitted.

Having heard learned counsel for the respective parties and on perusal of the material on record as well as the original records, I am of the view that the appeal has to be admitted on the following substantial questions of law.

"1) Whether the first appellate Court was right in declining to grant the relief of specific performance to the plaintiff and consequently directing the defendant to repay an amount of Rs. 50,000/- with interest at 6% p.a. from the date of suit till realisation?

2) Whether the first appellate Court ought to have exercised discretion in favour of the plaintiff and granted the relief of specific performance to the plaintiff?"

The appeal is admitted to consider the aforesaid substantial questions of law.

From the material on record as well as from the original records it is noted that there were indeed transactions in respect of the suit schedule property between the original plaintiff and defendant who were none other than sister and brother. As per Ex. P.1 dated 26.02.1985 the defendant had agreed to receive a sum of Rs. 20,000/- from the plaintiff and on condition of return of the same within a period of 10 years from 26.02.1985 the plaintiff was to execute a regular sale deed in his favour. The fact remains that the document dated 26.02.1985 which is styled as a conditional sale deed was not registered. The document at best was an evidence to the effect of the defendant receiving a sum of Rs. 20,000/- from the plaintiff. But under the said document plaintiff was put in possession of the suit schedule property and she was cultivating the land from that day onwards. When the matter stood thus, on 28.12.1992 in Ex. P.1 itself a transaction is recorded whereby the defendant agreed to sell the suit property to the plaintiff for a valuable consideration of Rs. 60,000/-. In fact, it is also recorded that earlier he had received Rs. 20,000/- and that he was receiving a further amount of Rs. 30,000/- and on payment of balance sum of Rs. 10,000/- the defendant was to execute a regular sale deed in favour of the plaintiff.

It is the case of the plaintiff that she requested the defendant several times to accept the balance sale consideration and to execute the sale deed but the defendant did not do so. Hence, she filed the suit for specific performance of the agreement. The trial Court on considering the document on record held that there was indeed a transaction between the parties, that the defendant had agreed to sell the suit property to the plaintiff for Rs. 60,000/-, that the defendant had received a sum of Rs. 50,000/- and a balance sum of Rs. 10,000/- only was to be paid and the plaintiff was ready and willing to perform her part of the contract but the defendant did not execute the sale deed and therefore exercising discretion in favour of the plaintiff granted the relief of specific performance of the agreement. But, the first appellate Court has reasoned that Ex. P.1 was unregistered, no title was conveyed under the document and at best first portion of Ex. P.1 could be construed only as a mortgage and that there was no sale which was to be made by the defendant. The first appellate Court has also held that Ex. P.1 being an unregistered document, the same could not be a subject matter of grant of the relief of specific performance. The aforesaid reasoning of the first appellate Court is not correct. A reading of Ex. P.1 makes it clear that the said document is in two parts as narrated in detail above. In the second portion of Ex. P.1 defendant agreed to sell the suit property to the plaintiff, his sister who was already in possession of the same for a valuable consideration of Rs. 60,000/- inspite of allowing her to retain it as such. Therefore, it is recorded that a sum of Rs. 20,000/- + Rs. 30,000/- has been received by the defendant and a sum of Rs. 10,000/- only was to be the balance sale consideration payable by plaintiff. Having received the amount of 50,000/- under Ex. P.1 the defendant ought to have executed the sale deed in favour of the plaintiff. Therefore, the first appellate Court, in my view, ought to have affirmed with the judgment of the trial Court and granted the relief of specific performance to the plaintiff rather than directing the defendant to repay the amount as an alternative relief. If Ex. P.1 could not have been given credence for the purpose of grant of relief of specific performance, then the same could not have been the basis for directing the defendant to refund the amount. In the circumstances, the first appellate Court was not right in rejecting the relief of specific performance to the plaintiff. Accordingly, the substantial question of law No. 1 is answered in favour of the appellant-plaintiff.

The second question is only a fall out from the first substantial question of law, i.e., whether the plaintiff was entitled to the relief of specific performance having regard to Section 20 of the Act. In this context, it is noted that the trial Court exercised discretion in favour of the plaintiff. The first appellate Court was not right in not exercising discretion in favour of the plaintiff as no circumstance u/S. 20 of the Specific Relief Act, 1963 was made out by the defendant. On the other hand, the first appellate Court ought to have exercised discretion in favour of the plaintiff and granted relief of specific performance. Accordingly, the second substantial question of law is answered in favour of the appellant-plaintiff.

In the result, the appeal filed by the appellant in R.S.A. No. 5665/2010 succeeds. The appeal filed by the defendant in R.S.A. No. 5849/2010 fails. In the circumstances, the judgment and decree of the first appellate Court is modified by holding that the plaintiff is entitled to the relief of specific performance by affirming the judgment of the trial Court. Legal representatives of the original defendant shall execute the sale deed in respect of the suit property in favour of the legal representatives of the plaintiff by receiving the balance amount of Rs. 10,000/- within 60 days from the date of decree, failing which, the plaintiff is liberty to get the sale deed executed in accordance with law. The legal representatives of defendants are restrained permanently from causing any interference or obstruction in the plaintiff''s enjoyment of the suit schedule property.

Parties to bear their respective costs.