Kishor Sahu vs Sudama Prasad Shukla

N.K. Chandravanshi, J

Challenge in this appeal is to the judgment and decree dated 31-8-2018 passed by the 2nd Upper District Judge, Bilaspur in Civil Suit No. 264A/2015 whereby the suit for specific performance of contract brought by the plaintiff/respondent No. 1 against the defendant No. 1 / appellant was allowed in favour of the plaintiff.

(Hereinafter parties shall be referred to as per their description before the trial Court.)

Facts of the case, in brief as pleaded by the plaintiff, are that defendant No. 1 is owner of land bearing Khasra No. 1247/2 area 4.08 acre situated at village Khurdur Patwari Halka No. 13, RI Circle Kota, Tahsil Kota, Distt. Bilaspur (henceforth referred to as ‘subject land’). The subject land was agreed to be sold by defendant No.1 in favour of plaintiff for sale consideration of Rs. 15 lakhs and on 21-7-2014, registered agreement was executed between the parties and earnest money of Rs. 12 lakhs was also paid through Cheque No. 923086 of Oriental Bank of Commerce, Jarhabhatha, Bilaspur, by plaintiff to defendant No. 1. In agreement it was agreed between them that up-till 21-7-2015 after payment of remaining amount of sale consideration i.e. Rs. 3 lakhs, the defendant No. 1 will get executed registered sale deed in his favour and hand over the possession of the subject land to the plaintiff and before registration of sale deed, defendant No. 1 will collect all revenue papers and get the land demarcated. It is further pleaded that after arrangement of amount, vide notice dated 16-4-2015 (Ex. P-3), plaintiff requested the defendant No. 1 for execution of sale deed. After receiving such notice, defendant No. 1 sought further 4 months’ time for demarcation of the land and preparation of all necessary papers to execute sale deed. To show his willingness, defendant No. 1 also handed over Rin Pustika of the subject land to the plaintiff and assured that within 4 months, he will execute sale deed in favour of plaintiff, but despite passing 4 months and request made to the defendant No. 1, he started avoiding to execute the sale deed. Hence on 16-9-2015 plaintiff sent a legal notice Ex. P-5 to the defendant No. 1 for execution of registered sale deed. Despite that, the defendant No. 1 did not execute sale deed in his favour, thus, he is avoiding to perform his part of contract, whereas plaintiff is always ready to perform his part of contract. Therefore, the instant suit was filed against defendants for specific performance of contract.

The defendant No. 1 in his reply admitted receipt of Rs. 12 Lakhs from the plaintiff. He also admitted execution of agreement Ex. P-1 in favour of the plaintiff, but he took defence that due to domestic work, he was in need of money, hence he had borrowed Rs. 12 Lakhs as loan from the plaintiff. The plaintiff agreed to provide him such loan only if he will execute sale agreement of subject land in his favour, therefore, in such a situation, he executed registered agreement Ex. P-1 as nominal agreement (Dikhawati Ikrarnama) only to secure loan taken from the plaintiff. Defendant No. 1 categorically denied that agreement Ex. P-1 was executed for sale of his land. It is further pleaded that at the time of execution of agreement Ex. P-1, value of subject land was about 35 – 40 Lakhs rupees and its present value is about 60 – 70 Lakhs rupees, then how such valuable land could be sold in such a low price. It is further pleaded that out of Rs. 12 Lakhs taken from the defendant No. 1, he has returned Rs. 8 Lakhs with 2% monthly interest to the plaintiff, but despite being demanded, he did not give any receipt in this regard and assured him that after payment of all the amount, he will return the agreement Ex. P-1 to him, but to grab the subject land, plaintiff filed present suit, therefore, plaintiff is not entitled for any relief.

Learned trial Court framed 7 issues and after considering evidence adduced by the parties held that plaintiff has proved his case, hence he decreed the suit in his favour. Hence, this appeal.

Learned counsel for the defendant No. 1 would submit that at the time of execution of alleged agreement, value of subject land was about Rs. 35 - 40 Lakhs, now its value is about 60 - 70 Lakhs rupees, then it is not possible to enter into agreement to sell such valuable property only on meager amount of Rs. 15 Lakhs. This fact itself shows that agreement Ex. P-1 was executed only to secure loan amount Rs. 12 Lakhs taken by defendant No. 1 from the plaintiff. Thus, agreement Ex. P-1 was not executed by defendant No. 1 with intention to sell his subject land in favour of the plaintiff, rather it was executed only with intention to secure loan amount. It is further submitted that defendant No. 1 has already returned Rs. 8 Lakhs out of said loan amount along with interest at the rate of 2% per month to the plaintiff. Learned counsel for the defendant No. 1 heavily contended in his argument that subject land is joint family property of defendant No. 1, as his brothers are also co-sharers of it, therefore, defendant No. 1 alone has no right to sell or to execute any agreement to sell of subject property. This fact was very well known to the plaintiff, despite that, only to harass defendant No. 1 and grab his valuable land in very low price, he has filed present suit taking undue advantage of agreement Ex. P-1, which was executed, only as nominal agreement (Dikhavati Ikrarnama) to secure loan, taken by the defendant No. 1 from the plaintiff. It is lastly submitted that this fact was known to the witnesses of agreement Ex. P-1, therefore, plaintiff has not examined any witness of agreement Ex. P-1, whereas one of the witnesses namely Santosh Vastrakar (DW 2) has been examined by defendant No. 1 who has categorically stated in his deposition that it was only nominal agreement (Dikhavati Ikrarnama) and was executed only to secure amount of loan taken by defendant No. 1 from the plaintiff, but without appreciating these facts and evidence, learned trial Court has decreed the suit in favour of the plaintiff which is perverse and not sustainable, hence it is liable to be quashed.

Per contra, learned counsel for the plaintiff would submit that defendant No. 1 is a well educated and well versed person knowing the effect of execution of registered agreement as he works as broker in LIC and real estate, therefore, had the registered sale deed Ex. P-1 been executed only to secure alleged loan, then necessary contents in this regard would have been added in the agreement, but there is no whisper in it in this regard that it was executed only to secure loan. It is next submitted that defendant No. 1 has not proved any document in respect of his defence that he has returned Rs. 8 Lakhs to the plaintiff, as it is totally false. Learned counsel for the plaintiff further submitted that since agreement to sell of subject land was reduced in writing as Ex. P-1, which has been proved also in view of Section 91 of the Evidence Act, execution of such agreement has not been disputed by the defendant No. 1, hence any oral statement against such instrument for the purpose of contradicting, varying, adding to, or subtracting from its terms cannot be permitted in view of the provision of Section 92 of the Evidence Act.

In rebuttal, learned counsel for the defendant No. 1 submits that defendant No. 1 has categorically pleaded and proved that agreement was executed only to secure loan taken by him from plaintiff and it was never intended by the defendant No. 1 to execute sale deed in favour of plaintiff. It was also admitted by the plaintiff that he will return agreement Ex. P-1 to him after payment of the loan amount, but misusing said agreement, plaintiff has fraudulently filed present suit only to grab valuable land of defendant No. 1 on such alleged low price and thus, the defendant No. 1 had challenged the document Ex. P-1 as a document of a sham transaction, which can be very well challenged in view of proviso (1) of Section 92 of the Evidence Act.

In order to appreciate the contentions of the learned counsel for the parties in this case, it may be necessary to refer to the material provisions of Section 91 and 92 of the Evidence Act.

Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, except the document itself, or secondary evidence of its contents where such evidence is admissible under the provisions of the Evidence Act.

Section 92 of the Evidence Act provides that, when the terms of any such contract, grant, or other disposition of property, have been proved by production of documents itself, or by the secondary evidence of its contents where it is possible, no evidence of oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms.

Proviso to Section 92 of the Evidence Act material on the facts of instant case are proviso (1) and (3), they are as under :-

“Proviso (1). -- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.

Proviso (3). -- The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.”

Considering the provisions of Section 91 and 92 of the Evidence Act, the Supreme Court in the case of Roop Kumar -v-Mohan Thedani [(2003) 6 SCC 595] has held that it is general and most inflexible rule that in respect of written instruments, any other  evidence is excluded from being used either as a  substitute for such instrument, or to contradict or alter them. This is a matter both of principle and policy. It was held that in Section 92 of the Evidence Act, the Legislature has prevented oral evidence from being adduced for the purpose of varying the contract, such contract can be proved by production of such writing. It was held that Section 91 is concerned with the mode of proof of a document with limitation imposed by Section 92. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or substracting from its terms. Relevant portion of said judgment is as under :-

“17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence, p. 648.)

18 In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing.

The grounds of exclusion of extrinsic evidence are : (i) to admit inferior evidence when law requires superior would amount to nullifying the law, and (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.

This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 : AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434 : AIR 2000 SC 426] with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.”

A perusal of the above judgment would show that oral evidence of written agreement is excluded except when it is sought to be alleged the document as a sham transaction. In the instant case also, defendant No. 1 has challenged nature of agreement Ex. P-1 as a document of sham transaction, as it was executed only to secure loan taken by him from the plaintiff. Hence, looking to the proviso (3) of Section 92 of the Evidence Act, defendant No. 1 can challenge agreement Ex. P-1, therefore, objection raised by learned counsel for the plaintiff is not sustainable.

Perusal of pleading and evidence adduced by both the parties shows that registered agreement Ex. P-1 dated 21-7-2014 was executed between plaintiff and defendant No. 1 for sale of the land bearing Khasra No. 1247/2 area 4.08 acre situated at village Khurdur Patwari Halka No. 13, RI Circle Kota, Distt. Bilaspur in favour of plaintiff by defendant No. 1 against sale consideration of Rs. 15 Lakhs, out of which Rs. 12 Lakhs were given by plaintiff to defendant No. 1 vide Cheque No. 923086 of Oriental Bank of Commerce, Jarhabhatha, Bilaspur dated 21-4-2014 as earnest money. It was also agreed between the parties that after making payment of remaining amount i.e. Rs. 3 Lakhs till 21-7-2015, plaintiff will get executed sale deed in his favour and defendant No. 1 will execute the same and hand over possession of the subject land.

Execution of agreement Ex. P-1 and receiving of Rs. 12 Lakhs from plaintiff has been admitted by defendant No. 1 Kishore Sahu (D.W. 1) in his pleading and deposition which is well supported by Santosh Vastrakar (D.W. 2) who is witness of Ex. P-1 also. Challenge of defendant No. 1 is that he had taken Rs. 12 Lakhs from plaintiff as a loan, not as a earnest money to sell his subject land, and only to secure the loan, he has executed agreement Ex. P-1 in favour of the plaintiff. Thus, agreement Ex. P-1 is only a document of a sham transaction as it was not executed with intention to sell subject land in favour of the plaintiff. This fact has also been supported by Santosh Vastrakar (D.W. 2) who is also a witness of Ex. P-1.

Defendant No. 1 Kishore Sahu is a well educated person and he works as broker in LIC and real estate. He has also admitted that in respect of his work he used to go to Registry office, therefore, it can be very well assumed that he is well known to the effect of execution of any registered document. If Ex. P-1 would have been executed only to secure loan, then some fact in this regard would have been mentioned in the document, but Ex. P-1 did not speak anything in this regard, whereas contents of document clearly speaks that it was executed for agreement to sell of subject land.

To substantiate his defence, defendant No. 1 Kishore Sahu (D.W. 1) has deposed in his statement that at the time of execution of agreement Ex. P-1, value of subject land was about 35-40 Lakhs and its present value (at the time of recording of statement) is Rs. 60- 70 Lakhs, but he has not adduced any evidence to prove his aforesaid statement, even his witness Santosh Vastrakar (D.W. 2) has also not stated anything in this regard, whereas such facts could be proved by filing documents about value of the land at village Khurdur at relevant point of time.

Kishore Sahu (D.W. 1 ) and his witness Santosh Vastrakar (D.W. 2) have also stated in their deposition that Rs. 8 Lakhs have been returned by him to the plaintiff with monthly interest of Rs. 2%, but he has not filed any document in this regard. Although he has stated that plaintiff has never given receipt, if it is so, despite that, he could have filed other documents in respect of getting such a huge amount by him, but he has not adduced any evidence in this regard. Defendant No. 1 has further taken a ground of appeal that subject land is their joint family property, his two brothers are also co-sharers, hence he cannot sell it alone, but neither this fact has been pleaded by him in his written statement nor he has stated anything in his examination-in-chief in this regard. Hence this ground cannot be taken into consideration in appeal. Moreover, Kisan Kitab Ex. P-2 shows that subject land is recorded only in his own name, which he has admitted in his cross-examination. Hence, aforesaid ground taken in appeal is not sustainable.

Kishore Sahu (D.W. 1) has admitted in his cross-examination that legal notice sent by plaintiff was received by him which he had read out, despite that, he had not initiated any action nor filed any case against plaintiff. In both legal notices dated 16-4-2015 Ex. P-3 and 16-9-2015 Ex. P-5, plaintiff has categorically stated that defendant No. 1 has executed agreement to sell his land hence, he had requested him to execute sale deed after receiving remaining amount. If Ex. P-1 would have been executed as nominal agreement (Dikhawati Ikrarnama) to secure alleged loan, then after receiving such notice twice, that too, in interval of 4 – 5 months, the defendant No. 1 would have taken any action against the plaintiff, but not taking any action or filing any case by him against plaintiff shows that it was not a nominal agreement (Dikhawati Ikrarnama). Hence only on the basis of oral statement of defendant No. 1, it cannot be held that agreement Ex. P-1 was executed to secure loan and it is a nominal agreement (Dikhawati Ikrarnama).

Although, plaintiff has not examined any witness of agreement Ex. P-1, but since defendant No. 1 has admitted its execution and receiving amount of Rs. 12 Lakhs from plaintiff, hence non- examination of any witness of Ex. P-1 by plaintiff cannot be a ground to deny his claim or to draw adverse inference against him.

A conjoint reading of deposition of plaintiff Sudama Shukla (P.W. 1), Ajay Shukla (PW 2), Manish Rajak (P.W. 3) and Sohan Das (P.W. 4) and both the notices given by the plaintiff i.e. Ex. P-3 and Ex. P-5 shows the readiness and willingness of plaintiff to perform his part of contract, but despite admitting execution of agreement Ex. P-1 and receiving of amount Rs. 12 Lakhs, making false challenge about agreement Ex. P-1 by defendant No. 1 shows his unwillingness in respect of compliance of his part of contract. In the case of Silvey and ors. -v- Arun Varghese and anr. [(2008) 11 SCC 45], Hon’ble Supreme Court has held that when a false plea has been taken by the defendant about non-execution of agreement, then conduct of the parties would be relevant for decreeing a suit for specific performance. In the instant case, although defendant has not denied execution of sale agreement, but he has challenged nature of sale agreement which he has not proved and more particularly, his conduct does not support the defence taken by him. Hence, in view of aforesaid dictum, learned trial Court has not committed any error in exercise of its discretion for decreeing the suit.

In view of aforesaid discussion, we do not find any infirmity or illegality in the judgment and decree passed by learned trial Court.

The instant appeal is dismissed.

In the instant case, appellant has filed an application under Order 41 Rule 27 of the Civil Procedure Code in respect of ground taken by him that subject land is the property of joint Hindu family, appellant only is not the owner of it, rather, his two brothers are also co-sharers of it, hence enclosing the revenue document Form B-1 of year 2009-2010 with application, the appellant has prayed to take document on record. By filing an application under Order 1 Rule 10 read with Section 151 of the CPC, the applicants Sanjay Kumar Sahu and Krishna Kumar Sahu, who are said to be brothers of defendant No. 1/appellant, have stated that subject land was purchased by their father in the name of defendant No. 1/appellant. Being brother of defendant No. 1, they are also co-sharers of subject land, as after death of their father, subject land was mutated in the name of defendant No. 1 and these two applicants, as such, they are necessary party in the case. Hence, they have prayed to implead them as party in this case.

As per Kisan Kitab Ex. P-2 and revenue document  i.e. Kistbandi Khatoni and Khasra Panchshala of the year 2013- 2014, enclosed with Ex. P-1, subject land has been shown in the name of defendant No. 1 Kishore Kumar Sahu and he has also admitted in his cross-examination that he is the only owner of it. Hence considering the facts situation of instant case, we do not feel inclined to allow both the applications. However, it is made clear that if the subject land was joint family property and applicants Sanjay Kumar Sahu and Krishna Kumar Sahu are co-sharers of the land, then they are free to take appropriate recourse for redressal of their grievance in accordance with law. In view of above, we dispose of both the applications.

A decree be drawn accordingly.