Rakesh Kumar vs Shakuntala Devi And Others

Sharad Kumar Sharma, J

This is a plaintiff's second appeal, wherein, the plaintiff has questioned the judgment and decree dated 15.02.2019 passed by learned 1st Additional District Judge, Kashipur, District Udham Singh Nagar in Civil Appeal No. 72/2016 'Rakesh Kumar vs. Shakuntala Devi and Others'. By virtue of the judgment rendered by the 1st Appellate Court, which has confirmed the judgment and decree dated 30.09.2016, which has been rendered by the learned Civil Judge (S.D.), Kashipur, District Udham Singh Nagar in Original Suit No. 84/2014 'Rakesh Kumar vs. Nanhe Singh & Others'. As a consequent thereto, concurrently both the courts below have dismissed the Suit of the plaintiff/appellant being the suit for specific performance seeking a specific performance of an agreement for sale dated 31.07.2009, which is said to have been admittedly executed by the defendant no. 1 Nanhe Singh on 31.07.2009 in relation to the property, more particularly, described as property bearing Khasra No. 41 having an area of 2.205 hecatres, i.e. equivalent to 0.735 hectares.

According to the plaint allegation it was contended by the plaintiff/appellant herein that defendant no. 1 by virtue of a registered agreement for sale had agreed to sell khasra no. 41, having an area of 2.205, hectare situated in village Dhakia Harchand, Tehsil Jaspur, District Udham Singh Nagar, of which he claims himself to be having the bhumidhari rights, it was agreed by defendant no. 1 that out of the aforesaid property he had agreed to sell part of it equivalent to 0.735 hectares of land of Khasra No. 41 in favour of the plaintiff on exchange of sale consideration of `1,05,000/- It was the case of the plaintiff/appellant that respondent no. 1 Nanhe Singh had executed a registered agreement for sale by getting it registered before the Sub-Registrar, Kashipur, District Udham Singh Nagar, which stands recorded with them in their name and at the time of entering into the agreement for sale an earnest money of `1,00,000/- was handed over by the plaintiff/appellant to defendant no. 1 and the remaining `5,000/- was agreed to be paid at the time of execution of the sale deed, which was agreed to be executed latest by 31.07.2010. It was contended by the plaintiff/appellant that he made various efforts and request from defendant no. 1/respondent to execute the sale deed and when the defendant no. 1 has shown his reluctance to execute the deed as agreed by him on 31.07.2007, within the time specified under the agreement, the plaintiff/appellant had served him through a legal notice on 14.07.2010, calling upon him to appear before the Sub-Registrar on the date fixed, i.e. 31.07.2010, for executing the sale deed, and as per the plaint averments he contended that on 31.07.2010 he had marked his attendance before the Sub-Registrar and he further contends that he hadwaited for the entire day with the balance sale consideration to be paid to the defendant/respondent no. 1 and he waited for his appearance before the Sub-Registrar for getting the execution of the sale deed, but, when he did not appear onteh date fixed in the notice, consequently he recorded his presence at 5:00 PM. It was then only the cause of action, which is attributed to have arisen which necessiated for instituting the suit in question because it was a threat which was exerted by the defendants on 02.08.2010, that they are going on to sell the property in question in favour of some other persons. The summons were issued by the Trial Court in the suit in question and thereafter the Suit proceeded ex parte as against the defendant no. 2, who had not put in appearance on the date scheduled, i.e. 21.03.2015 to contest the Suit on merits. After the exchange of pleadings, the learned Trial Court framed the following issues:

"6. उभय पक्षों के अभिवचनों के आधार पर एवम वाद के न्यायपूर्ण निस्तारण के लिये निम्नलिखित वाद बिन्दु विरचित किये गयेः-

क्या वादी एवं प्रतिवादी संख्या-1 के मध्य विवादित सम्पत्ति का पंजीकृत मुआहिदा बय निष्पादित हुआ?

क्या विवादास्पद मुआहिदा बय निष्पादित होने के समय प्रतिवादी संख्या-1 नन्हे सिंह विवादित सम्पत्ति का स्वामी थ?

क्या वादी उक्त मुआहिदा बय का अनुपालन करने हेतु सदैव इच्छुक व तत्पर रहा है?

अनुतोष?"

While dealing with the finding on issue no. 1 the leanred Trial Court on application of evidence had come to a conclusion that since defendant no. 1, who was the principal party to the proceedings who had executed the agreement for sale on 31.07.2009 he himself has not put in appearance and even otherwise also, as per the documents which has been produced by the parties before the court below, it has been proved on record that the defendant no. 1 who had executed the agreement for sale was not the recorded owner of the property in question. Consequently the learned Trial Court while deciding issue no. 1 has held and that under the given set of circumstances, whereby, the agreement for sale paper no. 11 ga and as per the conditions contained in paragraph 4, for executing the sale deed after the receipt of balance sale consideration cannot be executed by defendant no. 1, who had put in appearance, as he was not the actual recorded owner of the property in question. Thus the Court decided issue no. 1 as against the principal plaintiff that no Suit for specific performance of agreement for sale could be decreed. Even the learned Trial Court while considering the finding on issue no. 2 with regards to as to whether the defendant no. 1 was the owner in possession of the property, which was agreed to be sold by him on the agreement for sale dated 31.07.2009, a finding has been recorded in paragraph 27 of the Trial Court's judgment that the defendant no. 1 was not the recorded owner and, hence, he was not competent to execute any agreement for sale and, hence, merely because of its registration under Section 17 of the Registration Act will have no bearing and would not make it enforceable. Paragraph 27 of the judgment is quoted hereunder:

"27. पक्षकारों द्वारा किए गए परस्पर विरोधी उक्त अभिकथनों पर कोई विवेचना करने से पूर्व न्यायलय के मत में यहां यह स्पष्ट करना न्यायोचित प्रतीत होता है कि, वादी द्वारा प्रस्तुत वाद, प्रतिवादी संख्या-1 द्वारा उसके पक्ष में निष्पादित मुआहिदा बय के विर्निदिष्ट अनुपालन हेतु योजित किया गया था तथा अचल सम्पत्ति से सम्बन्धित मुआहिदा बय के विर्निदिष्ट अनुपालन हेतु न्यायालय द्वारा तभी आदेश दिया जा सकता है, जबकि विवादित सम्पत्ति विक्रेता का स्पष्ट स्वामित्व हो। विवादित सम्पत्ति में विक्रेता का स्पष्ट स्वामित्व न होने पर न्यायालय द्वारा अचल सम्पत्ति से सम्बन्धित मुआहिदा बय के विर्निदिष्ट अनुपालन का आदेश नहीं दिया जा सकता है। विधि का उक्त सिद्धान्त धारा 17 विर्निदिष्ट अनुतोष अधिनियम में भी उपबन्धित किया गया है तथा उक्त बाबत Pemmada Prabhakar vs. Yongmen's Vysya Association; 2014(1) CCC 26 SC के बाद में भी यह अभिनिर्धारित किया गया है कि Contract to sell or let any immovable property by a person not having absolute title and right cannot be enforced."

The said ratio has been propounded by the Hon'ble Apex Court in its judgment reported in 2015(5) SCC 355, wherein, it has been held that any contract to sell the property if it has been executed by a person who is not having an absolute title over the property in question no specific performance for the said contract could be sought for by filing the Suit for specific performance. Paragraph 28 to 30 are quoted hereinbelow:

"28. It is an undisputed fact that the suit schedule property is self acquired property by late Pemmada Venkateswara Rao as he had purchased the said property vide Sale-Deed Document No.5174 of 1970 dated 24.11.1970 from his vendors. It is also an undisputed fact that the said property is intestate property. He is survived by his wife, 3 sons and 3 daughters. The said property devolved upon them in view of Section 8 of Chapter 2 of the Hindu Succession Act as the defendants are class I legal heirs in the suit schedule property. Undisputedly, the Agreement of Sale- Ex.-A1 is executed only by defendant Nos. 1 and 2. The 3rd son, mother and 3 sisters who have got equal shares in the property have not executed the Agreement of Sale. In view of the matter, the Agreement of Sale executed by defendant Nos. 1 and 2 who have no absolute right to property in question cannot confer any right whatsoever upon the plaintiffs for grant of decree of specific performance of Agreement of Sale in their favour. The said agreement is not enforceable in law in view of Section 17 of the Specific Relief Act in view of right accrued in favour of defendant Nos. 3 to 6 under Section 8 of the Hindu Succession Act.

The provisions of Section 17 of the Specific Relief Act in categorical term expressly state that a Contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor who does not have absolute title and right upon the party. It is worthwhile to extract Section 17 of the Specific Relief Act,1963 here :-

"17.-Contract to sell or let property by one who has no title, not specifically enforceable.- A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor;

(a) who, knowing not to have any title to the property, has contracted to sell or let the property

(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt."

In view of the aforesaid provisions of the Specific Relief Act, the Agreement of Sale entered between the plaintiffs and some of the co-sharers who do not have the absolute title to the suit schedule property is not enforceable in law. This aspect of the matter has not been properly appreciated and considered by both the First Appellate Court and the Second Appellate Court. Therefore, the impugned judgment is vitiated in law.

Even assuming for the sake of argument that the agreement is valid, the names of three sons are mentioned in Agreement of Sale, out of whom the agreement is executed by defendant Nos. 1 and 2 and they assured that they would get the signatures of the 3rd brother namely, Srinivasa Rao and also the remaining 3 sisters. At the time of execution of this agreement signatures were not obtained. Therefore, the agreement is not executed by all the co-sharers of the property which fact is evident from the recitals of the document itself. Hence, the plaintiffs are not entitled for specific performance decree. This vital factual and legal aspect has been ignored by both the First Appellate Court and the Second Appellate Court. Therefore, the impugned judgment is vitiated both on facts and law. Accordingly, the point No. 1 is answered in favour of the defendants."

Considering the aforesaid ground that since the defendant no. 1 did not held the title of the property in question, it will render the agreement for sale dated 31.07.2009, itself to be bad right from the date when it was registered in favour of the appellant before the Sub-Registrar. Consequently, the learned Trial Court after considering the rival contentions and the evidences, which has been led by the parties, which proved that the property in question the ownership was vested with defendant no. 2 and defendant no. 1 is not interested to enter into an agreement for sale with the plaintiff and had dismissed the Suit by the impugned judgment dated 30.09.2016.

Being aggrieved against the said judgment the plaintiff/appellant has preferred the First Appeal being First Appeal No. 72/2016, which too was concurrently based on the findings, which has been recorded by the Trial Court in its judgment dated

18.02.2016 had concurrently held that as per the averments and evidence, which has been adduced by the parties, since the defendant no. 1, who has executed the agreement for sale in favour of the plaintiff/appellant, had no right or title vested with him in relation to the property, which was agreed to be conveyed, no specific performance as such could be granted in favour of the plaintiff/appellant.

The grievance as argued by the learned counsel for the appellant is that the Appellate Court while exercising its powers under Order 41 Rule 31 of the Code of Civil Procedure has framed two issues, which are quoted hereunder:

"14. उपरोक्त तर्कों को सुने जाने व पत्रावली का परिशीलन किय जाने से विदित है कि इस अपील के निस्तारण हेतु आदेश 41 नियम 31 सी.पीसी. में उल्लिखित प्रावधान के अनुसार निम्नलिखित अवधारणीय बिन्दु उत्पन्न होते हैं-

क- क्या प्रस्तुत मामले में प्रतिवादी सं02 द्वारा कथित वसीयत के बारे में कोई निष्कर्ष दिया जा सकता है?

ख- क्या पंजीकृत इकरारनामे के आधार पर वादी/अपीलार्थी कोई अनुतोष प्राप्त करने का अधिकारी है?"

However, in case if we scrutinize the issues thus framed by the Appellate Court yet again when the basic foundation of creation of a right in favour of the plaintiff by virtue of the agreement for sale has been made by a person, who was not holding a title, no fruitful purpose will be solved in returning any finding on the issues thus formulated by the learned First Appellate Court. In view of the fact that the defendant no. 1 had no right to sell the property this Court does not find any anomaly in the impugned judgments which could call for interference while exercising its powers under Section 100 of the Code of Civil Procedure. Apart from it, as far as the propriety of the property, which was proposed to be purchased by the plaintiff by virtue of the agreement for sale dated 31.07.2009, in view of the provisions contained under Section 3 of the Transfer of Property Act, and particularly the provisions as contained in its relation

(i) it is the purchaser now who has to discharge the responsibility to ensure that the property which he is proposing to purchase is a property which is actually vested with the seller and he has absolute title to sell and,

(ii) in an event in future if there is any difficulty pointed out or found in relation to the title of the seller of the plaintiff, it will be the plaintiff who would be responsible for entering into a wrongful agreement for sale with a person who was not holding the title over the property in question.

Consequently, this Court does not find any merit in the second appeal. The Second Appeal is dismissed.