Mrigen Das @ Malakar vs Kumud Chandra Das

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Mitali Thakuria, J

Heard Mr. S. Das, learned counsel for the appellant. Also heard Mr. S. Barooah, learned counsel for the respondent.

This is an appeal preferred under Section 100 of the Code of Civil Procedure, 1908 against the  judgment  dated  09.09.2010, passed  by the  learned  Civil Judge  No.3, Kamrup  at Guwahati in Title Appeal No. 68/2008, whereby the judgment and decree dated 18.08.2008, passed by the learned Munsiff No. 1, Guwahati in Title Suit No. 303/2004, decreeing the suit of the plaintiff/respondent 6 was upheld.

This Court, after hearing the learned counsel for the appellants, admitted this appeal on the following substantial questions of law:-

“Whetherthelearnedcourtsbelowarejustifiedindecreeingthesuitofthe plaintiff  for  specific  performance  of  the  contract  on  the  basis  of  Ext.1 agreement without the proveofthealleged signature ofthedefendant in the said agreement, when the defendant denied execution of such agreement?”

Mr. Das, the learned counsel for the appellant submitted that that the learned Trial Court as well as the learned Appellate Court did not consider the fact that there is no prove of the document, which was alleged to have been executed by the defendant/appellant. In spite of denial  of  signature,  the  plaintiff/respondent  did  not  take  any  step  to  prove  the  signature  of the  defendant/appellant  in  the  deed  of  agreement  for  sale.  Further,  it  is  submitted  that  the document which was exhibited, was the certified copy and it was also not proved as required under the Indian Evidence Act. In spite of refusal of the signature, the learned Trial Court as well as the learned Appellate Court had considered that the agreement for sale was duly proved by the plaintiff/respondent. Mr. Das, the learned counsel for the appellant further raised the issue that the agreement for sale in respect of the suit land cannot be executed by the defendant/appellant, which was already in the possession of one Madhu Ram Boro, with the knowledge of the plaintiff/respondent. But in spite of the plea that said Madhu Ram Boro is  in  possession  of  the  suit  land,  the  learned  Courts  below  did  not  give  any  finding  to  that regard. Mr. Das further submitted that the suit land comprising of land measuring 1 katha 3 lecha,  out  of  3 katha  10  lecha,  covered  by  Dag  No.811  and  K.P.  Patta  No.316  of  village  Niz Hajo,  Mouza  Hajo  of  Kamrup  District.  But  the  defendant/appellant  has  brothers  and  sisters whose names are mentioned in the written statement filed by the respondent and hence, out of 3 katha 10 lecha land, the plaintiff/appellant cannot execute a sale agreement for 1 katha 3 lecha, over which he had no possession or he cannot claim 1 katha 3 lecha out of 3 katha 10 lecha of the entire land. Further he submitted that in spite of the knowledge that the defendant/appellant  has  brothers  and  sisters  who  also  possess  share  in  the  suit  land,  they were  not  made  parties  in  the  suit  and  only  the  defendant/appellant  was  made  party  in  the suit.  Mr.  Das  further  submitted  that  despite  in  para  19  of  their  written  statement  that  there cannot  be  any  agreement  for  sale  for  sale  consideration  of  Rs.18,000/-  only,  as  during  that relevant  period  of  time  also,  the  market  value  of  the  suit  land  was  more  than  Rs.1  lac  per katha. Thus, the value or sale consideration cannot be fixed at Rs.18,000/- and in no occasion Rs.5,000/- can be considered as advance amount as claimed by the plaintiff/respondent. Further, from the evidence on record also it is seen that the PW.1 in his cross-evidence had admitted that he had the knowledge about the brothers and sisters of the defendant  No.1.  Further,  there  is  no  simple  averment  in  the  plaint  regarding  the  readiness and willingness to perform his part of contract to make out a case for specific performance of contract.  More  so,  no  issue  has  been  framed  regarding  the  readiness  and  willingness  of  the party, while deciding the case by the learned Trial Court below. Mr. Das further submitted that at  this  juncture,  if  the  defendant  is  to  execute  the  deed,  he  would  be  in  more  inconvenient position,  as  at  the  time  of  agreement  itself,  the  market  value  of  the  land  was  Rs.1  lac  per katha and hence, in any circumstances Rs. 18,000/- cannot be the total sale consideration as claimed by the plaintiff. The defendant/plaintiff all along denied the execution of the sale agreement  and more  specifically  he denied  his signature on the sale  agreement  but without any  proof  of  the  signature,  it  has  been  held  by  the  learned  Trial  Court  below  as  well as  the learned Appellate Court that the agreement for sale is proved by the plaintiff/respondent.

To substantiate the plea taken by the appellant, Mr. Das, the learned counsel relied upon the decision of the Hon’ble Supreme Court in the case of U.N.Krishnamurthy(Since deceased) through Legal Representative vs. A.M. Krishnamurthy, reported in (2023)11SCC775, wherein the Hon’ble Apex Court had expressed the view that in case of specific performance of contract, it is the duty of the plaintiff to discharge his part of readiness and  willingness to  perform  the  contract  by  adducing  cogent  evidence  and  it  has also  expressed  the  view  that  if  the  plaintiff  failed  to  prove  his  readiness  and  willingness  to perform his part of contract from the date of execution of the agreement, the relief of specific performance cannot be granted to the plaintiff. Basically he relied on para 46 & 47 of the said judgment, which read as under:

“46. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiff’sbalance sheet that he did not have sufficient funds  to  discharge his  part of  contract  in March 2003.  Making  subsequent  deposit  of  balance consideration after lapse of seven years would not establish the Respondent Plaintiff’s readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan (supra) where this Court speaking through Justice SB Sinha held that deposit  of  amount  in  court  is  not  enough  to  arrive  at  conclusion  that  Plaintiff  was  ready  and willing to perform his part of contract. Deposit in court would not establish Plaintiff’s readiness  and  willingness  within  meaning  of section  16(c) of  Specific  Relief  Act.  The  relevant part of the judgment is reproduced below: -

“45. …Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific ReliefAct…”

It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance.”.

Mr. Das, the learned counsel also relied upon another decision of the Hon’ble Supreme Court  in  the  case  of V.S.Ramakrishnan vs.P.M.Muhammad Ali, reported  in  (2022) SCC OnLine SC 1545, wherein also had expressed the same view that the parties to produce evidence to prove the readiness and willingness to perform the contract.

To  substantiate  the  plea  of  inconvenience  on  the  part  of  the  defendant,  Mr.  Das,  the learned  counsel  also  relied  upon  the  decision  of  the  Hon’ble  Supreme  Court  in  the  case  of Annamalaivs.Vasanthiandothers, reported in (2025)SCCOnLineSC2300, wherein Section 20 of the Specific Relief Act is discussed in detail, which is quoted here-in-below for ready reference:-

“Section  20.  Discretion  as  to  decreeing  specific  performance.–(1)  The  jurisdiction  to  decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2). The following are cases in which the court may properly exercise discretion not to decree specific performance:-

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract  or  other circumstances  under which  the  contract  was entered  into  are  such  that  the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or

(c) where the defendant entered into the contract under the circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Explanation 1. - Mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

Explanation 2. - The question whether the performance of a contract would involve hardship on the  defendant  within  the  meaning  of  clause  (b)  shall,  except  in  cases  where  the  hardship  has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4)  The court shall not refuse  to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.”

Accordingly, Mr. Das, the learned counsel for the appellant submitted that the substantial question of law which has been framed by this Court can be decided in favour of the defendant/appellant, wherein the agreement for sale was considered to be proved by the plaintiff/respondent in spite of the fact that the defendant/appellant had challenged the signature  available  in  the  sale  agreement  and  also  denied  execution  of  any  sale  agreement, as stated above. Accordingly, he submitted that the present appeal may be allowed by setting aside  and  quashing  the  order  passed  by  the  learned  Trial  Court  as well  as by  the  learned Appellate Court.

Mr. S. Barooah, learned counsel appearing for the respondent submitted that the present appeal has been filed against the concurrent finding of both the learned Trial Court as well as the learned Appellate Court. He further submitted that the defendant did not take any step to prove the signature in the sale agreement though it was disputed and denied by the defendant/appellant.  All  the  witnesses  who  were  examined  by  the  plaintiff  had  categorically adduced their evidence that the agreement for sale was executed by the defendant/appellant and  considering  this  aspect  of  the  case,  both  the  learned  Trial  Court  below  as  well  as  the learned Appellate Court have arrived at a concurrent finding that the defendant/appellant had executed the sale agreement, wherein the sale consideration was Rs.18,000/- and out of which  Rs.5,000/-  was  paid  in  advance  by  the  plaintiff/respondent.  Mr.  Barooah,  the  learned counsel further submitted that though the issue of non-joinder of the parties has been raised by the appellant, but there is no specific averment made in the written statement as to why the suit is bad for non-joinder of necessary parties. A simple statement was made in the written statement without any specification in that regard. That apart, the issue of non- joinder of necessary party was also framed by the learned Trial Court below as issue No.3 and decided  by  the  learned  Trial  Court.  Mr.  Barooah,  the  learned  counsel  further  submitted  that the  learned  Trial  Court  below  had  made  a discussion  in  the  judgment  while  discussing  the issue No.4 and it is held by the learned Trial Court below that except simple denial of execution of the sale agreement, the defendant/appellant could not produce any evidence to that  regard.  On  the  other  hand,  the  plaintiff/respondent  had  produced  documents  to  prove the execution of sale agreement in favour of the plaintiff/respondent. It is rightly held by the learned Trial Court below that the registered document carries a presumption of genuineness of  execution  and  the  defendant  had  failed  to  disprove  the  execution  of  the  sale  agreement and hence, rightly observed that there was an agreement for sale between the parties, wherein the defendant/appellant had executed the sale agreement in favour of the plaintiff/respondent.

PW.2  was  one  of  the  witnesses  who  was  also  present  at  the  time  of  execution  of  the sale  agreement  and  he  categorically  stated  in  his  cross-examination  that  he  was  present  at the time of execution of the sale agreement. More so, the scribe who was also examined by the  plaintiff  had  deposed  that  he  wrote  the  sale  agreement  as  per  the  instruction  received from the defendant/appellant. Mr. Barooah, the learned counsel for the respondent accordingly submitted that there cannot be any  reason  for making any interference in the judgment passed by the learned  Trial Court below as well as by the learned Appellate Court while arriving at a concurrent finding.

Mr. Barooah, the learned counsel appearing for the respondent also raised the issue that the substantial question of law which has been formulated by the Court also cannot be considered as a substantial question of law. Rather, it is formulated only on the facts. He further submitted that the substantial question of law are the point which directly and substantially affects the right of the parties. To substantiate his plea, the learned counsel for the appellant relied on the decision of the Hon’ble Supreme Court in the case of  SirChunilal V.MehtaandSonsLtd.Vs.CenturySpinningandManufacturingCo.Ltd.,reported in  AIR1962SC1314and  basically  relied  on  para  6 of  the  said  judgment,  which  reads  as under:

“6.  We  are in general agreement with the view taken by the Madras High Court and we think that  while  the  view  taken  by.  the  Bombay  High  Court  is  rather  narrow  the.  one  taken  by  the former High Court of Nagpur is too wide. The proper test for determining whether a question of law  raised  in  the  case  is  substantial  would,  in  our  opinion,  be  whether  it  is  of  general  public importance or whether if directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general. principles to be applied  in  determining  the  question  are  well  settled  and  there  is  a  mere  question  of  applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law”.

Hearing the submissions made by the learned counsel for both sides, it is seen that the only substantial question of law formulated by this Court is on the agreement for sale, wherein it is the allegation that the appellant/defendant that his signature was forged and he denied his signature on the said agreement for sale. It is the only document on the basis of which  the  plaintiff  had  instituted  the  suit  for  specific  performance  wherein  it  is  claimed  that the sale agreement was executed by the defendant/appellant for a total sale consideration of Rs.18,000/-, out of which Rs.5,000/- was paid in advance.

It is a fact that the defendant/appellant had denied his signature in the sale agreement and  also  denied  the  sale  agreement  executed  in  favour  of  the  plaintiff/respondent.  On  th other  hand,  it  is the  claim of  the  plaintiff/respondent  that  the  sale  agreement  was executed by the defendant/appellant for the sale of land measuring 1 katha 3 lecha and in pursuant to the sale agreement, wherein the defendant/ appellant obtained the sale permission from the concerned authority and to execute the sale deed. To prove the sale agreement i.e. the Ext.1, the plaintiff/respondent had adduced his evidence along with two other independent witnesses who claimed their presence at the time of execution of the sale agreement and the scribe also stated in his evidence that sale agreement was prepared as per the instruction of the defendant/appellant. More so, it is also seen that the sale agreement is a registered agreement which was executed in presence of the authority. Though, the defendant/appellant had denied his signature on the sale deed but he could not produce any evidence to substantiate  his  plea  that  the  signature  available  in  the  sale  agreement  is  not  his  signature nor he prayed for examination of the sale agreement by forensic expert. The defendant/appellant only adduced his evidence denying execution of the sale agreement and also denied his signature. Thus, the learned Trial Court as well as the learned Appellate Court below had rightly arrived on a decision that the agreement was proved by the plaintiff/respondent and it was executed by the defendant No.1 in presence of the independent witnesses. Accordingly, the substantial question of law goes against the defendant/appellant, as he could not substantiate his plea that the signature available in the sale agreement is not his signature nor he ever executed any sale agreement. The defendant/appellant could have approached the learned Trial Court with a prayer for examination  of  his  signature  through  forensic  expert,  when  he  disputed  the  signature.  Thus the simple rebuttal evidence of the defendant/appellant, there is no other evidence to disprove  the  plea  of  the  defendant/appellant  in  regards  to  execution  of  the  sale  agreement and it is rightly observed by the learned Trial Court below that a registered document carries a presumption about genuineness of its execution and such presumption cannot be dislodged by parole evidence.

Coming to the issue raised by the learned counsel for the defendant/appellant in regards  to  the  saleable  right  of  the  defendant  No.1,  it  is  seen  that  the  plaintiff/respondent also exhibited the copy of the jamabandi, wherein the name of the present defendant/appellant  is  also  mutated  in  place  of  his  deceased  father  along  with  his  brothers. In the same time, it is also seen that on the strength of inheritance, the appellant/defendant also  filed  application  before  the  authority  concerned  for  issuance  of  No  Objection  Certificate for  selling  the  land  to  one  Madhu  Ram  Boro,  who  is  stated  to  be  in  possession  of  the  suit land. At the time of issuing the No Objection Certificate also, one proceeding was initiated as KRM Case No.87/2004 and vide order dated 09.12.2004, which is exhibited as Ext.2 also, it is seen that the sale permission was given in favour of one Madhu Ram Boro on application filed by the defendant/appellant, wherein the plaintiff/respondent was also heard while issuing the order of No Objection Certificate in favour of said Madhu Ram Boro. Thus, it cannot be held that the defendant/ appellant had no  saleable right over the  suit land wherein he already obtained sale permission to sale the land to one Madhu Ram Boro, who is also stated to be in possession  over  the suit land. But it is an admitted  fact that prior  to the issuance of  the No Objection Certificate for sale of the suit land in favour of Madhu Ram Boro, the sale agreement was executed on 23.04.2002.

Further,  it  is  the  issue  raised  by  the  learned  counsel  for  the  defendant/appellant  that there was no prove about the readiness and willingness on the part of the plaintiff/respondent  to  perform  his  part  of  contract.  But  from  the  record  it  is  seen  that  the plaintiff/respondent took necessary steps and even file objection when the defendant/ appellant  approached  the  authority  concerned  for  obtaining  the  No  Objection  Certificate  to sale  the  land  in  favour  of  one  Madhu  Ram  Boro.  The  plaintiff/respondent  all  along  ready  to execute his part of contract but it is seen that he awaited for long as the defendant/ appellant assured him to obtain the No Objection Certificate from the authority concerned after receiving Rs.5,000/- in advance for execution of the sale deed. Thus it is not a case that the plaintiff/ respondent never showed his readiness and willingness to perform his part of contract. Rather it is the plaintiff/respondent, who took all initiatives for execution of the sale deed in his favour and to that regard, as referred above, he also approached the concerned authority filing an objection not to issue any No Objection Certificate in favour of one Madhu Ram Boro.

Further,        Mr.     Das,   the     learned         counsel         for      the          defendant/    appellant      also    referred        to Section 20 of the Specific Relief Act, when the Court can exercise it’s discretion not to decree a specific performance wherein the terms of the contract or conduct of the parties at the time of entering into the agreement or other circumstances, under which the contract was entered into  are  such  that  the  contract,  though  not  voidable,  gives  the  plaintiff  an  unfair  advantage over the defendant or where the performance of the contract would involved some hardship on the defendant which he did not foresee.

But here in the instant case, it is seen that there is no such unfair advantages taken by the  plaintiff.  Rather,  it  is  the  defendant  who  did  not  perform  his  part  of  contract,  in  spite  of entering into a sale agreement. The value of the suit property may be much higher than the value mentioned in the sale agreement, but that is not the look out of the Court as the parties  are  always  at  liberty  to  fix  the  sale  consideration  amount  to  their  satisfaction.  But  it cannot be disproved by the defendant/appellant that at the time of executing the sale agreement,  the  consideration  amount  was  fixed  at  Rs.18,000/-  and  out  of  which  Rs.5,000/- was paid in advance by the plaintiff/ respondent.

From the discussions made above, it is also seen that the defendant/appellant also had the saleable right over the suit property and in view of such right, he also applied for the No Objection Certificate before the Circle Office to obtain the No Objection Certificate for execution of sale deed in favour of one Madhu Ram Boro.

As  per  Section  21  of  the  Specific  Relief  Act,  if  the  contract  become  impermissible  with no fault of the plaintiff, the Section 21 enables the Court to award compensation in lieu of the specific performance and such compensation can be awarded by the Court even if there is no specific/alternative prayer to that regard in case it is impossible on the part of the defendant to perform his part of the contract. But here in the instant case, as discussed above, it is seen that there is no evidence at all to held that the contract has become impossible and it is not possible on the part of the defendant/appellant to execute the sale deed in favour of the plaintiff/respondent, in pursuant to the sale agreement to provide any other alternative remedy for compensation to the plaintiff/respondent.

Considering the entire discussions made above, this Court is of the opinion that the substantial question of law, which has been framed in this appeal is decided in negative, which goes against the appellant/defendant. Accordingly, there is no need of any interference in the concurrent findings of the learned Civil Judge No.3, Kamrup at Guwahati in Title Appeal No.  68/2008,  whereby  the  judgment  and  decree  dated  18.08.2008,  passed  by  the  learned Munsiff No. 1, Guwahati in Title Suit No. 303/2004, was upheld.

Accordingly, the present appeal is devoid of merit and accordingly the same stands dismissed.

Return back the Trial Court Record along with a copy of this judgment forthwith.