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Judgment
K. Govindarajulu, J.—Plaintiff in OS 13/82 is the Appellant in this second appeal.
Parties will be referred according to their status found in the suit.
Though the case is listed for admission, both the sides have consented for final disposal.
The suit is filed by the Plaintiff seeking enforcement of an agreement of sale dated 2.7.1977. It is the case of the Plaintiff that 1st Defendant being the owner of the plaint schedule property has executed the agreement of sale, agreed to sell the plaint schedule property for a sum of Rs. 6,000/- and had received Rs. 1000/-. Further case of the Plaintiff is that 1st Defendant went on postponing, he finally got issued a legal notice on 13.5.1981 and it was returned as "refused". So, there is no other option, has instituted a suit for specific performance. As against this case of the Plaintiff, 1st Defendant admits the execution of the agreement, pleads that the Plaintiff is not entitled for the relief of specific performance, while denying the other contentions pleaded by the Plaintiff. 3rd Defendant denying the case of the Plaintiff in regard to the specific performance, contend as follows:
The terms and contract of the alleged agreement to sell are not binding on this Defendant. The said agreement to sell is enforceable in law. Further, it is not correct to state that the terms of the agreement to sell are binding upon the third Defendant.
Further contend that he is a bonafide purchaser for value. Suit is barred by time. So, suit of the Plaintiff is not maintainable. So, pray for dismissal of the suit. It is also contended by the 3rd Defendant at para.8 that the suit is barred by time.
Learned trial Judge has framed issues, permitted parties to lead evidence. PW1 is examined. Exs.P.1 to 5 are marked. In reply, DWs. 1 to 3 are examined and Ex.D.1 is marked.
D.1 is the sale deed under which the 3rd Defendant claims to have purchased the property. With this evidence, learned trial Judge has answered the following issues with the following reasons while decreeing the suit.
Whether the Plaintiff proves that the agreement to sell in question executed by the first Defendant was for legal necessity?
Whether time was the essence of the contract?
Is the sale in respect of the suit schedule properly in favour of the third Defendant void and not binding upon Plaintiff?
Whether the Plaintiff proves that he has always been ready and willing to perform his part of the contract?
Is the suit not maintainable in law as contended by the first Defendant in para 12 of his written statement?
Is the suit barred by time?
Are the boundaries given in the suit schedule correct?
To what reliefs the parties are entitled?
Findings of the learned trial Judge on the above issues are:
Issue No. 1: Affirmative
Issue No. 2: In the Negative
Issue No. 3: In the Affirmative
Issue No. 4: In the Affirmative
Issue No. 5: In the Negative
Issue No. 6: In the Negative
Issue No. 7: In the Affirmative
Issue No. 8: As per order below;
Aggrieved 3rd Defendant has preferred appeal in RA 45/05. Learned Appellate Judge has raised the following points for consideration while allowing the appeal.
(1) Whether the Plaintiff proves that Defendant No. 1 had executed suit agreement in his favour for legal necessity?
(2) Whether time was the essence of contract?
(3) Whether Plaintiff was always ready and willing to perform his part of the contract?
(4) Whether sale of the suit property in favour of 3rd Defendant by Defendants 1 and 2 is not binding on the Plaintiff?
(5) Whether the suit is barred by time?
(6) Whether the judgment and decree under appeal are opposed to law and evidence on record as contended?
(7) Whether Plaintiff was not entitled for any reliefs before the trial court?
(8) Whether there are any grounds for this Court to interfere in the impugned judgment and decree in this appeal?
(9) What order?
The findings of the learned Appellate Judge are as under:
Point No. 1: In the negative
Point Nos. 2 and 3: In the negative
Point No. 4: Does not survive for consideration
Point No. 5: In the affirmative
Point Nos. 6 to 8: In the affirmative
Point No. 9: As per final order
Learned advocate for the Plaintiff while reiterating the case of the Plaintiff contends that 1st Defendant is the person who has executed the agreement. 1st Defendant has admitted the agreement. In view of this material admission found in the facts of the case, the comment by the learned Appellate Judge in regard to the dates on the stamp is not proper. Why she is commenting is that there is no such pleading in the written statement on the subject of dates. So, any finding given without the pleading is not permissible under law.
Plaintiff has come to know about the action of Defendants 1 and 2 that they are intending to sell the property. So, Plaintiff got issued a legal notice. The said legal notice is refused and it is returned unnerved. It. is further contended that under Article 54 of the Limitation Act, three years period is fixed. Though the agreement of sale (sic) of 1977, there was demand for more money and Rs. 541 is paid for the purchase of the stamp paper. There was a demand by issue of the legal notice. There being no response, the suit is filed by the Plaintiff. 3rd Defendant having purchased the property after the refusal of the notice addressed to 3rd Defendant, 3rd Defendant cannot plead that he is a bona fide purchaser for value. The action of the Plaintiff in asking the 1st Defendant to receive the money and in regard to other property, the suit being filed, it being decreed being not disputed, the transaction has to be accepted, pray for allowing the appeal while setting-aside the order of the learned Appellate Judge.
The submission of the learned advocate for the Plaintiff are rebutted by the learned advocate for the 3rd Defendant by inviting the attention of the Court to the dates of the purchase of the stamp papers. Contend that one of the stamp is dated 24.6.1977 according to the Treasury seal, 11.7.1977 Is the date of sale by the stamp vendor. The other stamp is dated is 5.7.1977 according to treasury seal, sale by stamp vendor is 11.07.1977 and the date of the execution of the alleged agreement is 2.7.1977. So, as on the date of the alleged agreement, the so called stamp paper was not sold by the Treasury. It is a prima facie material available which supports the case of 3rd Defendant that there is a creation of the document colluded between Plaintiff and 1st Defendant. This is properly appreciated by the learned Appellate Judge. This circumstance prove collusion.
Secondly, contend that in the evidence of PW1, PW1 had admitted that as early as 1977, he has demanded for specific performance. Even taking December 1977 as the date of demand, suit filed is not within the period of three years. Suit should be filed within three years of the demand for specific performance. So, the suit is barred by time.
Places reliance on the ruling of the Apex Court in K.S. Vidyanadam and Others Vs. Vairavan, ) to contend that throughout the Plaintiff should prove readiness and willingness and that is the essential ingredient in the suit for specific performance as found from the Judgment of the Hon''ble Apex Court in para 7 and 9. It is not permissible under law to grant specific performance merely for the sake of asking or merely it is legal. Place reliance on the ruling of this Court in Chinnaswamy Vs. Profulla, to contend that this Court has laid down the principles to be followed in cases of this nature, invites the attention of this Court to paragraph 24 and 26 of the Judgment. It is further submitted that after the purchase by the 3rd Defendant, Defendant No. 3 has cultivated Arecanut trees, 200 saplings are planted and there is vast development in the property. Due to the rising rates, collusion between Plaintiff and Defendant No. 3, litigation of this nature has to be considered by the Court cautiously while exercising judicial discretion So, pray for upholding the orders of the Appellate Judge.
Hon''ble Apex Court in Kashmir Singh v. Harman Singh and Anr. (Appeal) civil 1036 of 2002 decided on 03.03.2008), has laid down the scope of Regular Second Appeal. Their Lordships have observed as follows:
The principles relating to Section 100, relevant for this case, may be summarized thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of low in construing a document, it gives rise to a question of law.
(ii) The High Court should he satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on Die decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position to clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved, facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ''decision based on no evidence'', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
The substantial questions of law that arise for consideration is as under:
(1) Whether the appellate Court was justified in rot reading/considering the effect of refusal of notice Ex.P4 dated 13.05.1981, as the sale deed in favour of Defendant No. 3 is dated 20.05.1981?
(2) Whether interference by the appellate Court on finding of the trial Judge on the date of stamp Ex.P1, in para 11 of the Judgment is justified?
(3) Whether Defendant No. 3 has proved development of the land?
In a case of this nature, the first element to be considered by the Court is in regard to the agreement and whether the agreement is proved? According to the case of the Plaintiff, there is an agreement. 1st Defendant has admitted the agreement. Whether this admission of the Defendant is sufficient or some more material is required to accept or reject the case of the Plaintiff is the first point for consideration. It is the positive case of the Plaintiff that after coming to know about the intended sale by Defendants 1 and 2, he has addressed a notice to not only the father and son but also the intended purchaser. Plaintiff relies on the subject, "notice" as per Ex.P.4. To support that it is refused, the cover and acknowledgement card in which the said notice is but are also produced before the Court. The cover contains shara "refused so returned". The name on the cover is Kavalli Erappa, Volmiki by caste. Haldodderi, Kallambella Hobli, Sira Taluk. 3rd Defendant according to the cause title is almost the same except for mentioning the age. So, while considering the niceties of the dates on the stamp paper urged by advocate for Defendant No. 3, the law on the subject of refusal of the notice has to be considered by the Court. Section 27 of the General Clauses Act, 1899 deals with the subject and it reads as follows:
Section 27: Meaning of Service by post:- Where any (Central Act) or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression "serve" or either of the expression "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
According to the General Clauses Act, when there is refusal and if there is no evidence to rebut the address given as wrong, the service is deemed to be sufficient. So, it is the settled law on 1899, so the contention of the Plaintiff that he had intimated the Defendant even before the purchase of the property is proved. So, the niceties of finding the dates without their being a pleading and assessing the evidence on the guise of a prima facie dates available on the stamp paper urged by learned advocate for Defendant No. 3 is not proper. Learned trial Judge''s reasoning in para 11 is apt. So, the action of the 3rd Defendant in refusing to receive the notice proves that he is aware of the case of the Plaintiff about the demand for specific performance on an agreement. This probabalises the case of the Plaintiff that 3rd Defendant is not a bonafide purchaser for value. In the entire argument addressed by the learned advocate for the 3rd Defendant, the impact of the law under Clause 27 of the General Clauses Act is not at all placed before nor has considered the impact of such refusal of notice.
The second contention of the learned advocate for the 3rd Defendant is oh the subject of limitation. It is contended that in the evidence of PW. 1, he has admitted that he has demanded for specific performance with 1st Defendant in the year 1977 itself. Though, such a reading of the evidence is found in the facts of the case, it is not the case of the 3rd Defendant that he has specifically contended that inspite of their being an agreement pleading, performance to postponed, that it made 1st Defendant to sell the property in favour of 3rd Defendant. The conclusion found by the Court supra would probabalise that under the guise of bonafide purchase, the 3rd Defendant even without; pleading the substantial defence in the cast, he is pleading the ground. The analysis would probabalise that there is no specific stand taken in regard to the collusion under the provisions of Sections 16, 17 and 18 of the Indian Contract Act, the plea of collusion should be pleaded with full particulars. No such particulars are found in paragraph 3 of the written statement quoted earlier. So, the submission that there is a collusion asserted by the learned advocate for the 3rd Defendant is liable to be rejected.
The next submission of the learned advocate is that he places reliance on a rulings on this Court in Chinnaswamy v. Profulla ILR 1992 Kat. 2994 and also the ruling of the Hon''ble Apex Court in K.S. Vidyanadam and Others Vs. Vairavan, is concerned, here in the facts of the ease, the 3rd Defendant knowing fully well he goes to purchase the property. He takes the risk and that too in the notice there is a specific mention about the particulars u/s 53(A) of the Transfer of Property Act. For better appreciation, it is extracted,
My client is entitled to protect his possession u/s 53A of the Transfer of property Act. The 1st of you is warned not to execute any sale deed in favour of any person except my client.
So, the principles of Section 53(A) comes to the aid of the Plaintiff rather than to the aid of 3rd Defendant. So, the rulings cited are not attracted in the facts of the case. So, the submission of the advocate for 3rd Defendant that the Plaintiff has failed to prove the readiness and willingness, suit is barred by time are also rejected.
The last submission is that after the purchase of the property, improvements are effected and Arecanut is planted. It is settled law that without a pleading, a party is not entitled for the relief. In case any relief is to be granted, it should be notified to the other side and the other side should have an opportunity, thereby, if this submission is accepted it amounts to violation of the principles of natural justice, the basic concept of law found in the Civil Procedure Code.
Therefore, all the grounds urged by the 3rd Defendant are answered, the Judgment of the Appellate Court is opposed to law, unjustified, substantial questions are answered in favour of Plaintiff. So, the Court holds that the agreement is proved, there being a transaction by 3rd Defendant knowing fully well of the transaction with the Plaintiff, the approach of the learned Munsiff in decreeing the suit is proper. So, the appeal is allowed with costs through out. Three months time is granted to Defendant No. 1 to Defendant no 3 to execute the sale deed. Judgment in O.S. 13/82 of the Court of the Munsiff and JMFC, Sira dated 30.06.1989 is upheld.