Radha Bai and Others vs Nachhatar Singh and Others

Vineet Kothari, J.—The appellants/defendants, Mst. Radha Bai D/o late Sh. Ramlal, and 4 others have, preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908, aggrieved by the judgment and decree dated 28th March, 1987 passed by learned Additional District Judge, Raisinghnagar, in Civil Original Suit No. 12/1983-Nachhatar Singh S/o. Sh. Bali Singh Vs. Lachhman Das S/o. Bhinyaram and others, whereby the suit filed by the respondent/plaintiff, Nachhatar Singh, for specific performance of the agreement dated 26.11.1977 (Exhibit-1) was decreed.

Succinctly stated, the facts of the case are that the land measuring 25 Bigha in Murabba No. 390/375 in Kila No. 1 to 25 in 20 SJM was agreed to be sold by one Ramlal to the plaintiff, Nachhatar Singh under the agreement executed in favour of plaintiff, Nachhatar Singh on 26.11.1977 (Exhibit-1) for consideration of Rs. 25,000/-, which sum was paid to the father of the defendant No. 1 (Ramlal) on the same date and the written agreement (Ex. 1) was executed and two attesting witnesses, namely, Jagdish Rai and Ramrakh, were also examined by the learned trial court. The present appellant/defendant, Mst. Radha Bai, who claimed to be the daughter of Sh. Ramlal, is said to have got mutated the land in question in her favour on 04.12.1981, after the death of said Ramlal, whose date of death is not on record and upon her refusal to execute the sale-deed pursuant to the Agreement dated 26.11.1977, executed by her father late Sh. Ramlal, in favour of plaintiff, Nachhatar Singh, the present suit for specific performance of the agreement was filed by the plaintiff/respondent No. 1 on 01.09.1983, which came to be decreed by the learned trial court of Additional District Judge, Raisinghnagar finding the existence of the said agreement dated 26.11.1977 having been executed by late Sh. Ramlal and also readiness and willingness of the performance on the part of the plaintiff and the defendant was directed to execute the sale-deed within two months from the date of obtaining ''Sanad'' as required under Section 13 of the Rajasthan Colonization Act, 1954 (Act of 1954).

The present first appeal was filed by the appellants/defendants in this Court on 26.06.1987, which was admitted by on 12.08.1987 and later on after hearing both the parties on 20.01.1988, a coordinate bench of this Court passed the following interim order while disposing of the stay application.

"Hon''ble Mr. K.S. Lodha, J.

20.1.88

Mr. R.N. Bishnoi, for the appellant.

Mr. B.R. Arora, for the respondents.

I have heard learned counsel for the parties on the stay application. It is directed that the respondents shall be free to take steps for obtaining permission for sale from the authority concerned and may also get other formalities completed but he shall not get the sale-deed executed through the court without the permission of this Court during the pendency of this appeal.

The stay application is, accordingly, disposed of."

The "Sanad" under Section 13A of the Act of 1954, appears to have been obtained by the plaintiff, Nachhatar Singh, on 23.12.1995 after the payment of installments due from the vendor, Ramlal, and the regularization charges as prescribed in those provisions amounting to Rs. 12,500/- and 37,500/- on 30.12.1989 and 24.12.1992 respectively and the said order of the District Collector, Sri Ganganagar, dated 23.12.1995, has been placed on record along-with application (IA No. 16006/2009) filed by the respondent No. 1/plaintiff, Nachhatar Singh, under Order 41 Rule 27 C.P.C., which stands allowed.

Mr. Mahesh Bora, Sr. Advocate assisted by Mr. Kishan Gopal, learned counsel for the appellants/defendants submitted that the decree under appeal is not sustainable because the sale agreement purportedly executed by late Sh. Ramlal, on 26.11.1977 (Ex. 1) itself was a void and contrary to the Condition No. 9 of the Rajasthan Colonization (General Colony Conditions) 1955, which prohibits the transfer of ''Gair-Khatedari'' rights of the land allotted under these Rules by the allottee unless regular "Sanad" upon payment of due installments is issued in his/her favour and, therefore, the decree of specific performance could not have been granted in favour plaintiff/respondent No. 1. He also submitted that against the mutation in favour of defendant/appellant, Mst. Radha Bai, the defendant No. 5, Ajmer Singh S/o. Sh. Bali Singh (real brother of the plaintiff, Nachhatar Singh) also challenged the mutation on the basis of a Will allegedly executed by late Sh. Ramlal, in his favour and, therefore, it appears that both the brothers, viz. Ajmer Singh and Nachhatar Singh, wanted to grab this irrigated land of 25 Bigha, under the said two documents purportedly executed by the father of the appellant/defendant, Mst. Radha Bai, one Will allegedly executed in favour of Ajmer Singh and another the Agreement dated 26.11.1977 (Ex. 1) executed by late Sh. Ramlal in favour of plaintiff, Nachhatar Singh, and this creates a serious doubt about the existence and validity of the agreement itself, therefore, the specific performance ought not to have been decreed in favour of plaintiff. He also submitted that the suit itself was barred by limitation as in pursuance of the alleged Agreement dated 26.11.1977 (Ex. 1), the present suit seeking specific performance of the same was filed only on 01.09.1983 beyond the prescribed limitation of three years and, therefore, the impugned judgment and decree of the learned court below deserves to be reversed.

On the other hand, Mr. B.M. Aggarwal and Mr. S.L. Jain, learned counsel for the respondents/plaintiffs vehemently opposed these submissions and supporting the impugned judgment and decreed urged that the validity of the Agreement was duly proved before the learned court below having been executed on 26.11.1977 as not only the plaintiff, Nachhatar Singh, was examined by the learned trial court but also one of the attesting witnesses, namely, Ramrakh was also examined, who was the document writer, who very well proved the existence and execution of the said Agreement by late Sh. Ramlal on 26.11.1977.

They also submitted that as far as absence of "Sanad" in favour of late Sh. Ramlal at the time of execution of agreement dated 26.11.1977 is concerned, that defect stood cured after the plaintiff pursued the matter with the District Collector, Sri Ganganagar, under the permission granted by this Court vide the interim order dated 20.01.1988, quoted above, and finally said "Sanad" was obtained by the plaintiff on 23.12.1995 after payment of all the due installments and regularization charges. The plaintiff/respondent No. 1 is in possession of the suit land in question right from the date of agreement dated 26.11.1977 itself and the findings of facts of the learned trial court about the readiness and willingness in favour of plaintiff are correct and justified findings based in relevant oral as well as documentary evidence led before the learned trial court and there is no contrary material on record adduced by the defendants/appellants except seeking to create unreasonable doubt about the execution of the said agreement to dispute and deny the specific performance in favour of plaintiff.

They also relied upon judgment of this Court in the case of Ruda Ram Vs. Mehar Singh--> and the judgment of Punjab and Haryana High Court in the case of Lt. Colonel Jaswant Singh (deceased by LR) Vs. Daljit Singh (deceased by LR) and Others, in support of their contentions that even in absence of "Sanad", the agreement to transfer the agricultural land in question was at best an irregular transfer, which could be regularized as per the non-ostante and overriding provisions of Section 13A introduced in the Act of 1954 with effect from 07.11.1984, which provides for validation of certain transfers and declaration of consent to transfer, notwithstanding anything contained in Section 13, or in any other provisions of this Act or in the Rules made or statement of conditions issued thereunder, but subject to Section 42 of the Rajasthan Tenancy Act, 1955. Learned counsel for the respondents, therefore, contended that necessary requirements and facets for grant of specific performance were duly satisfied in the present case, viz. existence of valid agreement duly executed, full consideration paid and "Sanad" for transfer of such land in favour of plaintiff, duly obtained in due course of time with the permission of the Court and, therefore, the decree of specific performance is required to be sustained and the present first appeal filed by the appellants/defendants deserves to be dismissed.

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

This Court has little doubt that the agreement in question executed by late Sh. Ramlal in favour of plaintiff, Nachhatar Singh on 26.11.1977 was a valid agreement, even though the agreement to transfer the land in question covered by the Act of 1954 was irregular in essence at that point of time when the vendor, Sh. Ramlal, did not have proper "Sanad" in his favour. To validate and regularize such transfer only, the provisions of Section 13A were brought on the statute book and, therefore, there is no dispute in the present case for specific performance of agreement u/s. 13A of the Act of 1954, the plaintiff has been able to get the same on 23.12.1995 by paying the due installments due from the vendor, Sh. Ramlal, as also the regularization charges. It is also not in dispute that full consideration for the said transfer of Rs. 25,000/- were duly paid to the vendor, Sh. Ramlal on the date of execution of agreement, therefore, existence and validity of agreement and readiness and willingness on the part of the plaintiff, stood well proved by the plaintiff before the learned trial court and there is no contrary evidence adduced by the defendants on record to rebut the same.

The mere claim of the daughter of late Sh. Ramlal, i.e. appellant/defendant, Mst. Radha Bai, that she got the land mutated in her name way back on 04.12.1981 after the death of Sh. Ramlal, does not confer any right upon her to successfully dispute and deny the existence and validity of the Agreement dated 26.11.1977 (Ex. 1) executed by her father, nor is there any doubt about the existence of agreement sought to be created by the learned counsel for the appellants/defendants on the basis of alleged Will executed by said Sh. Ramlal in favour of Ajmer Singh (real brother of the plaintiff), is justified. The said Ajmer Singh remained exparte before the learned trial court and never raised his claim over the land in question, which was agreed to be sold to his brother, Nachhatar Singh (plaintiff). Therefore, the fact of the alleged Will executed in favour of Ajmer Singh, is of little consequence or bearing on the present lis.

The judgment relied upon by the learned counsel for the respondents, the relevant extract of which are quoted herein below for ready reference, clearly support the case of the respondent/plaintiff if the same are ready with the provision of Section 13(1)(a) and (b) of the Specific Relief Act, 1963. In the case of Ruda Ram (supra), this Court has held as under:-

"Thus, Section 23 contains a comprehensive statement of the principles on which the presence of a term in the contract specifying a sum of money to be paid for a breach of contract has to be construed. It is also clear that where the contract contains a stipulation that in the event 01 non-performance a certain sum of money shall be paid, that fact is not itself decisive in considering whether or not specific performance should be granted. It also appears that In some contracts there is a stipulation to pay a certain sum of money in the event of default in performance. The general rule is that If a thing being agreed upon to be done, though there is a penalty annexed to secure Its performance, yet the very thing itself must be done. Normally, such a stipulation is inserted in order to emphasize the execution or due performance of the contrast. Merely that there is such a stipulation, the party committing default cannot exercise option of paying the penalty and avoiding specific performance of the contract. That is the reason that the Legislature in Section 23 of the Specific Reliefs Act cast a duty on the Court to interpret the intention of the parties and for that, to evaluate the terms of the contract and other circumstances present in the case, if we examine the terms of the contract before us, the most important fact to be borne in mind is that along with execution of the contract the Defendant Appellant accepted part payment of the sale price and also delivered possession of the land under sale. Delivery of possession in pursuance of agreement to sell is a very important fact underlying the intention of the parties to the contract. We can, therefore, say that the intention of the Defendant was to execute the sale-deed in favour of the Plaintiff after obtaining ''sanad''. It appears to us that if the ''sanad'' would have been granted to the Defendant Appellant he would have got the sale deed registered then and there. The specific performance was, therefore, not possible till the Defendant paid remaining installments to the Rehabilitation Department and obtained ''sanad''. In other words, only for want of ''sanad'' the Defendant-Appellant could not have executed the sale-deed and got it registered in such a case, possession is a very important ingredient and if the Defendant parted with the possession in pursuance of the above agreement to sale, there is nothing to doubt that the intention of the Defendant-Appellant was to sell the property. Hence, we hold that as per the terms of the contract and the attending circumstances, the Defendant intended to sell the property, there is a concurrent finding that the Plaintiff has been ready and willing to perform his part of the contract. A notice was issued by him to the Defendant in this connection. The Plaintiff even contacted the Sub Registrar for the purpose of registration. All these facts were noticed by the learned Single Judge and the finding was recorded that the Plaintiff was always willing and ready to perform his part of the contract. Hence, the defaulting party In respect of the above agreement was the Defendant-Appellant. Thus, the learned trial Court as well as learned Single Judge committed no error In decreeing the suit of the Plaintiff for specific performance of the contract." 13. In the case of Lt. Colonel Jaswant Singh (supra), the Punjab and Haryana High Court held as under:-

"The subject-matter of the suit for specific performance of agreement to sell was a plot allotted by the Improvement Trust to the defendant-vendee. The allotment was subject to condition that the allottee cannot transfer the plot for certain period. A clear and unequivocal offer to purchase the allotted plot was made by the defendant to the plaintiff through his letters. The plaintiff thereupon proceeded to comply with the directions given by the defendant and repaid the money to the defendant, which had already been paid by the defendant to the Improvement Trust. Plaintiff also paid the entire price in respect of the land to the Improvement Trust. There is thus found a valid and enforceable agreement between the parties. The defendant had made it clear, while making offer to the plaintiff, that the plaintiff may purchase the land on the terms as specified by the Improvement Trust. It would be thus clear that an agreement to sell was entered into subject to the terms including the receipt of permission from the Improvement Trust after the expiry of ten years. Denial by the Improvement Trust to the transfer of land before expiry of 10 years period would not render the agreement between plaintiff and defendant invalid or unenforceable inasmuch as the plaintiff came before the civil Court with a suit for specific performance only after the expiry of ten years only. A bar to the transfer of land would not be a bar against or cloud on the title to respect of the land." 14. Section 13(1)(a) and (b) of the Specific Relief Act, 1963 reads as under:-

"13. Rights of purchaser or lessee against person with no title or imperfect title.- (1) Where as person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:-

(a) If the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;

(b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance."

In view of aforesaid legal and factual premise, this Court is satisfied that the present first appeal of the appellants/defendants has no force and the judgment of the learned trial court granting decree of specific performance of the agreement dated 26.11.1977 deserve to be upheld.

Accordingly, the present first appeal filed by appellants/defendants is dismissed and the judgment and decree of the learned trial court of Additional District Judge, Raisinghnagar, dated 28th March, 1987 is upheld. No costs. A copy of this order be sent to the concerned parties and the learned court below forthwith.