Mohan Singh and Others vs Jato Bai and Others

Dr. Vineet Kothari, J—The appellants/plaintiffs (decree holder), in whose favour decree of specific performance of the agreement was granted by the learned trial court, have filed the present misc. appeal being aggrieved by the remand order dated 29.05.2000 passed by the first appellate court of learned Additional District Judge, Raisinghnagar, Sri Ganganagar, allowing defendants'' appeal and setting aside the decree of specific performance passed in favour of plaintiffs, Mohan Singh and Balbeer Singh v. Smt. Jato Bai Wd/o late Sh. Varyam Singh, and others.

The learned trial court while granting said decree of specific performance in respect of 12 Bigha and 10 Biswa of agricultural land situated in Chak 2 LPN in Murabba No. 268/357 Kila No. 1 to 13, which was agreed to be sold by the vendor Varyam Singh to the present appellants/plaintiffs under an Agreement to Sell dated 31.03.1979 for a sum of Rs. 50,000/- @ Rs. 4,000/- per Bigha and under duly executed Agreement to Sell, a sum of Rs. 26,000/- was immediately paid to the vendor Sh. Varyam Singh, father of the defendants and later on a further sum of Rs. 5,000/- was also separately paid and possession of the 5 Bigha of land was immediately given and remaining possession was also given on the day of ''Baishakhi'' and thus possession of the land in question is with plaintiffs since 1979. The learned trial court also found readiness and willingness on the part of plaintiffs since they had paid at the time of agreement and taking over the possession, a sum of Rs. 40,000/- out of Rs. 50,000/- was paid and only a sum of Rs. 10,000/- was further to be paid on the date of registry of sale-deed in favour of plaintiffs and also permission to sell was to be taken from the Colonization Department. It appears that the father of the defendants, late Sh. Varyam Singh (vendor) expired and thereafter his son Gurdev Singh refused to execute the sale-deed in favour of plaintiffs and, therefore, the present suit was required to be filed by the plaintiffs on 07.09.1992. The relevant findings of the learned trial court are quoted herein below:-

The first appellate court, however, allowed the defendants'' appeal vide the judgment and decree dated 29.05.2000 on the ground that judgment of Hon''ble Apex Court in the case of Dadarao and Another Vs. Ramrao and Others, (1999) 8 JT 608 : (1999) 7 SCALE 57 : (1999) 8 SCC 416 : (1999) 4 SCR 356 Supp : (2000) 1 UJ 308 , in which construing a negative clause in the Agreement to Sell, where the sale-deed could not be executed, the plaintiff would pay liquidated damages to the defendants/vendor and, therefore, the appellate court felt that the present case also deserves to be tried again in the light of that judgment. The relevant portion of the appellate court''s order is also quoted herein below for ready reference:-

Aggrieved by the same, the appellants/plaintiffs have filed the present appeal in this Court on 27.07.2000. While admitting the present misc. appeal, a coordinate bench of this Court vide order dated 04.02.2002 confirmed the interim stay order dated 14.11.2000 staying the further proceedings in the trial court.

Mr. Rishi Vaishnav and Mr. V.K. Bhadu, learned counsel for the appellants/plaintiffs urged that the plaintiffs are in possession of the land in question ever since the year 1979 and they have paid a sum of Rs. 40,000/- as against the agreed total sum of Rs. 50,000/- at the time of agreement and at the time of giving possession of the land in question to the plaintiff by the father of the defendants/respondents, namely, late Sh. Vayam Singh; and all the relevant issues framed by the learned trial court were decided in favour of plaintiffs on the basis of cogent and relevant evidence including that of scribe, the independent witnesses, who stated before the court on oath that the agreement was executed by Sh. Varyam Singh and money under that agreement was also paid by the plaintiff to the vendor. As against the plaintiffs'' evidence, the sole witness of the defendants side was of DW.1, namely, Gurdev Singh himself, who baldly denied the existence of the said agreement and stated that the land in question was given merely on contractual basis for cultivation to the plaintiffs.

Learned counsel for the appellants/plaintiffs distinguished the judgment relied upon by the learned appellate court in the case of Dadarao (supra) as there was no specific clause of refund in the present case by the plaintiffs as against that, the vendor Sh. Varyam Singh, had agreed to give double amount of money taken by him for transfer of land in question, if the sale-deed could not be finally executed by him, and if the plaintiffs failed to get the sale-deed executed, the money so paid by them and installments paid to the Department for regularization in favour of plaintiffs, would stand forfeited, which showed the clear intention of vendor to transfer the land. He, therefore, submitted that the decree of specific performance granted by the learned trial court could not be set aside lightly by the learned appellate court and the present appeal against the remand order deserves to be allowed.

On the other hand, Mr. Abhinav Jain, learned counsel for the respondents/defendants relied upon the judgment of this Court in the case of Rika Ram v. Urja Ram (S.B.C.M.A. No. 628/2015, decided on 05.05.2015) and urged that the remand in such matters was not to be interfered with and this Court had upheld the remand order in that case and, therefore, the present appeal of the plaintiffs/appellants deserves to be dismissed.

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

On last few dates, following interim orders were passed by this Court, after hearing both the sides.

"Order dated 07.05.2015

"The learned counsel Mr. Rishi Vaishnav prays for a short time to take the instructions from the plaintiff-appellant, as to whether for maintaining the decree of specific performance in his favour instead of remand of the case to the learned Trial Court, he is willing to pay a reasonable compensation to the defendants for transfer of the land in question situated at Chak 2 L.P.M. Murabba No. 268/357. The learned counsel may also take the instructions regarding the suggested amount of compensation which he is ready and willing to pay to the defendants.

By the impugned judgment and decree dated 12.09.1996/19.09.1996, the learned Trial Court, while decreeing the suit, held that in case, the sale deed is not executed by the defendants in favour of the plaintiff, the plaintiff would be entitled to get refund of Rs. 40,000/- from the defendants and also entitled to get compensation of the amount of Rs. 80,000/-, meaning thereby, the defendants were liable to pay Rs. 1,20,000/-, in all, to the plaintiff.

The irrigated land in question, admeasuring 12 bighas and 10 biswas, is in possession of the plaintiffs since the year 1979 under the said agreement which is dated 31.03.1979. Therefore, it is considered expedient that by exchange of money, as aforesaid, the decree of specific performance may be upheld in favour of the plaintiffs.

The learned counsel for the appellants may complete his instructions to aforesaid propositions which may also be conveyed to the learned counsel for the defendants, who may also take the instructions from the defendants in this regard.

Both the learned counsels for the parties may apprise the Court about the respective instructions in this regard on the next date of hearing.

List the matter on 12.05.2015 on Top of the List, as prayed."

Order dated 12.05.2015

"Learned counsel for the appellants, Mr. Rishi Vaishnav submits that in the present suit for specific performance, to put an end to the dispute, the plaintiff-appellants are ready and willing to further pay, besides the agreed amount, a sum of Rs. 3,50,000/- to the defendants for executing the conveyance deed/sale deed in favour of the plaintiff-appellants of the agricultural land in question.

Learned counsel for the respondents, Mr. S.L. Jain prays for sometime to take instructions in the matter.

Put up after two weeks as prayed."

Order dated 28.05.2015

"Both the learned counsels submit that in terms of offer for compromise between the parties vide offer order dated 07.05.2015 of the appellant, as recorded by this Court is not possible, therefore, the matter is required to be heard on merits.

List the matter for hearing after summer vacations, as prayed"

It is true that against the remand order, this Court would not like to interfere lightly and just for askance. It always depends upon the facts and circumstances of each case whether a remand for determination of issues which were not earlier decided by the learned trial court, was actually called for or not. In the present case, this Court finds that the learned trial court had decided all the relevant issues with respect to validity of agreement, existence of the agreement, possession of land being handed over to the plaintiffs and their readiness and willingness to perform their part of promise under the agreement rightly and based on relevant evidence. Merely because the appellate court came across the decision of the Hon''ble Supreme Court in which remand of trial was directed in view of existence of a Clause in the agreement itself, which was not brought to the notice of the court below earlier and, therefore, it resulted in remand. The facts governing the present appellants are different and stand out, namely, validity of the agreement has been fully established by the plaintiffs, passing of consideration to the vendor, Sh. Vayam Singh and also transfer of possession of land since 1979 and except the bald denial of agreement by the son of the vendor, namely, Gurdev Singh, no controverting material was brought before the learned trial court or the appellate court to raise a doubt about the validity of existence of the Agreement to Sell itself. There was no negative clause as was available before the Hon''ble Apex Court in the case of Dada Rao (supra) in the present case. On the other hand, the stipulation about the payment of double amount of the sum received by the vendor, Sh. Vayam Singh, clearly expressed his desire to abide by the terms of the agreement and transfer the land in question with the counter condition that the plaintiffs will allow forfeiture of the amount paid by them in case they failed to perform their part of the terms of the agreement and get the sale-deed executed. This stipulation on the other hand affirms the desire and willingness of the vendor Sh. Vayam Singh, to execute sale-deed in favour of plaintiffs. Therefore, such decree of specific performance could not be set aside by the learned appellate court merely on the basis of mis-application of the judgment of the Hon''ble Apex Court in the case of Dadarao (supra), which did not apply to the facts of the present case.

As far as judgment relied upon by the learned counsel for the respondents/defendants in the case of Rika Ram (supra) rendered by this Court is concerned, the aforesaid judgment is ex-facie distinguishable. The question which arose in the said case was as to whether form and substance of the agreement itself was forged and as to whether amount of Rs. 28,000/- was taken as a loan by putting the land in question in mortgage or the defendants had agreed to sell the land in question by entering into an agreement to sell, and remand was made to the trial court for deciding these issues, which went to the root of the matter and, therefore, the remand was upheld by this Court. No such facts are available in the present case and, thus the judgment relied upon by the learned counsel for the respondents/defendants is distinguishable from the present case.

Therefore, this Court is of the considered opinion that the present misc. appeal of the appellants/plaintiffs deserves to be allowed, and the same is, accordingly, allowed, and setting aside the remand order dated 29.05.2000 of the appellate court, the decree of the specific performance is restored. However, in view of long lapse of period by now of about 36 years of the agreement and possession of the land being with the plaintiffs, and admittedly a sum of Rs. 10,000/- remaining due to be paid by the plaintiffs to the vendor, Sh. Varyam Singh, it is considered expedient to direct the appellants/plaintiffs to pay a lump sum amount of Rs. 3,50,000/- (excluding the sum of Rs. 10,000/-) to the defendants/respondents towards the consideration for execution of the sale-deed by the defendants in favour of plaintiffs in view of submissions on behalf of the plaintiffs/appellants, vide interim order dated 12.05.2015, quoted above. If the said sum of Rs. 3,60,000/- is deposited with the trial court by the plaintiffs within a period of two months from today, the defendants shall execute the sale-deed in favour of plaintiffs for the land in question, failing which the trial court is directed to execute the sale-deed in favour of appellants/plaintiffs. No costs. A copy of this order be sent to the concerned parties and the courts below forthwith.