Kamal Chand vs Ganga Ram and Others

Dr. Vineet Kothari, J.—1. The present first appeal has been filed by the defendants, the legal representatives of late Sh. Kamal Chand, against the respondents/plaintiffs, Ganga Ram and Jagdish, both sons of Sh. Hazari Mal. The suit property is an agricultural land of 2000 square Yards situated at Nagaur, for which a suit for specific performance by the respondents/plaintiffs came to be decreed by the learned Addl. District Judge, Nagaur (for brevity, hereinafter referred to as ''trial court''), namely, Suit No. 1/1974- Gangaram & Anr. Vs. LR''s of Kamalchand & Anr., on 18.09.1987 on the basis of an alleged oral agreement between the parties, way-back in the year Oct, 1967, to transfer the land in question ad-measuring 2000 square yard @ Rs. 8/- per Yard (Gaj.). The findings of the learned trial court in favour of respondents/plaintiffs are quoted herein below for ready reference:--

Aggrieved by the same, the appellants/defendants have filed the present first appeal under Section 96 of the CPC, 1908, in this Court on 30.11.1987.

Mr. D.R. Bhandari, learned counsel for the appellants/defendants submitted that there was no agreement between the parties to transfer the said agricultural land and the existence of the said agreement was denied by the defendants throughout. He submitted that in the earlier suit filed by the present appellant, Kamal Chand, seeking possession of the property from the respondents, Gangaram and Jagdish, the said suit being Suit No. 5/173 was decreed by the learned trial court on 05.02.1980 and inter-alia while deciding the Issue No. 7 in that case, the learned trial court had clearly found that there was no such agreement oral or in writing seeking to transfer the said land of the appellant, Kamal Chand, to the respondents, Gangaram and Jagdish; and that those findings have been upheld up to Division Bench of this Court and the execution proceedings of that decree of possession are still pending in the competent court.

Learned counsel for the appellants, therefore, submitted in such circumstances in the subsequently filed suit for specific performance by the plaintiffs/respondents, Gangaram and Jagdish, and Jagdish having died during the course of this litigation, the learned trial court could not have given the decree of specific performance in their favour ignoring those findings on Issue No. 7, merely because at that time, the appeal against that judgment was pending in the High Court, which ultimately however came to be dismissed against them. He read before this Court the said findings on Issue No. 7 of the learned trial court in the judgment dated 05.02.1980 in Suit No. 5/1973- LR''s of Kamal Chand Vs. Gangaram & Anr., which are quoted herein below for ready reference:

The Division Bench of this Court also dismissed the D.B. Special Appeal (Civil) No. 2/1996- Gangaram & Anr. Vs. LR''s of Kamal Chand, upholding the judgment of learned Single Judge dated 26.05.1994 dismissing the said Intra-court Appeal No. 20/1980 against the judgment and decree dated 05.02.1980 in the aforesaid Suit No. 5/1973. The relevant extract of the judgment of Division Bench is also quoted herein below for ready reference:--

"The suit was filed by respondent Kamal Chand (since deceased) against the appellant Gangaram for recovery of possession of property in question inter alia on the ground that the plaintiff was in occupation of the property in question as licensee from the defendant.

The defendant pleaded in defence that the plaintiff is estopped from recovering the possession of the property in question inter alia on the ground that the defendant was in possession of the property in question in part performance of an agreement to sell which came into existence between the plaintiff and the defendant.

The property in question is 2,000 Sq. Yards of land situated at Nagore forming part of a bigger plot purchased by Kamal Chand in the year 1950 for Rs. 2500/-.

According to defendant Gangaram, Kamal Chand plaintiff had agreed to sell 2000 Sq. Yards of land out of the said plot to defendant at the rate of 8/- per Sq. Yard in the month of Oct., 1967 and he had paid Rs. 3,000/- as earnest money. The total plot ad measuring 8752.25 Sq. Yards.

Amongst other issues, Issue No. 7 was framed on the aforesaid pleadings of the defendant whether defendants have purchased from the plaintiffs 2000 Sq. Yards of land out of the Patasudh land of plaintiff ad measuring 2752 Sq. Yards at the rate of 8/- per Sq. Yard in October, 1967 and has paid Rs. 3,000/- as earnest money against it, if so, what is its effect on the suit.

The learned trial court decided the Issue No. 7 against the defendant by holding that the defendant has not been able to prove the alleged agreement to sell in his favour. Consequently, the suit of the plaintiff was decreed on the basis of title which was otherwise proved on defendant''s own admission. Along with the decree for possession, a decree of mesne profits for three years till filing of the suit was also passed.

Aggrieved with the aforesaid judgment and order, defendant filed Civil First Appeal No. 20/80.

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The provisions of Sec. 53-A are unequivocally clear in this regard. It opens with the sentence "where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty."

Thus, on the plain reading of provisions of Sec. 53-A of the Transfer of Property Act, it is clear that writing signed by the transferor or on his behalf from which the terms necessary to constitute the transfer can be ascertained is sine qua non before a person in possession can defend his possession on the principle of part performance of contract against a person who holds title to such immovable property. There being no case set up by either of the parties that there was any writing signed by the alleged transferor, and only oral agreement has been sought to be proved by the defendant, the question of invoking Sec. 53-A did not arise. The existence of oral agreement between the parties was not an issue which was necessary to be decided between the parties in the suit out of which this appeal has arisen. As a matter of fact, in the defence of appellant, existing title of plaintiff in the suit land, until alleged agreement with him, was impliedly admitted. Hence, if his defence u/s. 53A failed, he could not have avoided the decree for possession, notwithstanding oral agreement existing. In fact, the learned Single Judge has rested his decision only on this principle without going into the other challenges made by the appellant. Other issues were inferred not necessary to be decided.

In the present circumstances, as we notice, the defendant appellant in the present proceedings had pursued his remedy of enforcing the alleged oral agreement to sell of seeking a decree of specific performance and it appears that no plea of pendency of the issue about the existence of oral agreement in previously instituted suit was raised seeking stay of subsequent suit under Sec. 10 CPC.

In these circumstances, we are of the opinion that so far as the decree of the learned trial Judge as affirmed by the learned Single Judge in favour of plaintiff-respondent for possession on the basis of title by ignoring the plea of defendant under Sec. 53-A which was not founded on a written agreement, does not call for interference.

Any finding recorded by the learned trial Judge about the existence or non-existence of oral agreement being wholly unnecessary for the purpose of deciding this appeal or the suit on admitted facts must be held to be not necessary for decision of the suit and not binding on the parties in the way to burden their remedies in a subsequent suit for specific performance. That suit has to be decided independently on the basis of material available.

In these circumstances, this appeal is dismissed. No order as to costs.

Mr. D.R. Bhandari, learned counsel for the appellants, therefore, contended that the discretionary relief of granting specific performance in such cases, was improperly used by the learned trial court in favour of plaintiff Gangaram and Jagdish and, therefore, the present first appeal of defendant, Kamalchand, deserves to be allowed.

On the other hand, Mr. Sundeep Bhandawat, learned counsel for the respondents/plaintiffs urged that the oral agreement was duly supported by the statement of Mediator, one Sh. Damodarlal Acharya and Sh. Vallabh Lodha, and therefore, in view of existence of the oral agreement and part payment having already been made by the plaintiffs and upon establishing their readiness and willingness to perform remaining part of their contract, the learned trial court was justified in granting the decree of specific performance, which does not deserve to be disturbed by this Court in the present appeal. He also submitted that the plaintiffs are in possession of the suit property in question since long and also willing to pay additional compensation to the defendants/vendor and in these circumstances, the present appeal of the defendants/appellants deserves to be dismissed.

I have heard the learned counsel for the parties at length and perused the record.

This Court is of the considered opinion that the present first appeal of the appellants/defendants, Legal Representatives of late Sh. Kamal Chand, deserves to be allowed and the impugned decree of specific performance deserve to be set aside.

Once, it is brought before the learned trial court with evidence that there was a serious dispute between the parties about the existence of the agreement to transfer the property itself, that too an oral agreement, the decree of specific performance, which indisputably lies in the realm of fair exercise of discretion of the learned trial court, should not have been granted by the court below. The mere fact that two independent witnesses and eminent persons of the city inter-meddled between the parties about the agreement itself, is enough to show that there was no valid agreement in writing available between the parties in existence. The land in question indisputably belonged the defendant, Kamal Chand and only a small portion of advance of Rs. 3000/- was given to the defendant(s) against the allegedly agreed sum of Rs. 14,500/- and which was never tendered or paid by the plaintiffs. The rate of Rs. 8/per square yard was also prima facie abysmally low and with the lapse of long time with the increase in the market value of the land, price was bound to shoot up considerably. If the parties had any genuine desire to transfer the suit property at this rate, nothing prevented the parties to enter into an agreement in writing in this regard and taking entire consideration for transfer of land execute a registered sale-deed therefor. The statement of even Mediator, Mr. Damodar Das Acharya, Advocate who even was a Cabinet Minister also shows that oral agreement was never finalized as there was a dispute about the rate or price.

The facts and circumstances narrated above, specially, a suit for possession having been decreed in favour of present appellants/defendants, namely, LR''s of Kamal Chand, it clearly establishes that they are fighting tooth and nail not to part with the ownership and title of the said land but to retain the same at any cost and they even have a decree of competent court upheld up to Division Bench of this Court in their favour. The fact of pendency of this litigation was very well before the learned trial court in the present suit for specific performance and particularly the findings of Issue No. 7-A have been recorded against the respondents/plaintiffs, Gangaram and Jagdish, quoted above, which definitely established that there was no oral agreement even in favour of plaintiffs for transfer of such land in their favour. In these circumstances, to grant the specific performance for transfer of property in the face of a contrary decree of possession in favour of the defendants/appellants, was clearly not fair use of discretion by the learned trial court in this regard; and that too with a weak foundation that defendants'' appeal against decree was pending before the High Court, which ultimately came to be dismissed by learned Single Judge and also by the Division Bench of this Court.

Thus, this Court is of the clear opinion that in the present case, the suit for specific performance deserved to be dismissed and no such relief could have been granted in favour of plaintiffs, Gangaram and Jagdish. The defendants/appellants'' appeal, therefore, succeeds and is allowed accordingly and setting aside the impugned judgment and decree dated 18.09.1987 in Suit No. 1/1974, the plaintiffs/respondents are directed to hand over back the possession of the suit land to the defendants/appellants, subject to refund of Rs. 3000/- advance paid by them to the defendants. Such amount of Rs. 3000/- may be deposited by the defendants/appellants with the learned trial court within a period of one month from today and the possession of the land in question may be handed over to the appellants/defendants within a period of three months from today. In case the respondents/plaintiffs fail to handover the possession of the land in question within three months, they will pay mesne profit @ Rs. 10,000/- per month to the defendants/appellants and the appellants will be entitled to expedite the execution and invoke contempt jurisdiction of this Court. No costs. A copy of this judgment be sent to the concerned parties and the court below forthwith.