Ramesh Chandra vs Siyaram and Others

M.K. Mudgal, J.—The appellant/plaintiff has filed the appeal u/s 96 of the CPC being aggrieved by the judgment and decree dated 7.2.2000 passed by the Court of Additional District Judge Sheopurkalan (Shri P.K. Shrivastava) dismissing the suit for specific performance of the contract. In this appeal appellant is referred as "plaintiff" and the respondents as "defendants." Undisputed facts are that-

Defendant No. 1 Siyaram was the Bhumiswami of the disputed survey No. 3316/2 area 3 Bighas situated at village Baroda Tehsil Sheopurkalan. Defendant No. 1 had sold the disputed land to the defendant No. 2 Rajaram vide registered sale deed dated 26.6.95 before the plaintiff filed the suit on 29.7.95.

The facts in brief of the plaint are that defendant No. 1 contracted to sell the disputed property to the plaintiff vide agreement to sell dated 26.4.95 for consideration of Rs. 90,000/-. The plaintiff had to recover an amount of Rs. 86,000/- from the defendant No. 1 which was due on loan account said to have taken by defendant No. 1 and that amount was adjusted in payment of part consideration. Remaining Rs. 4000/- was to be paid at the time of execution of the sale deed. After executing the agreement to sell the possession of the disputed land was given by the defendant No. 1 to the plaintiff. The plaintiff further alleged that on 18.5.95 the defendant No. 1 visited Sheopur to execute the registered sale deed and purchased stamps worth Rs. 9790/- from stamp vendor where for the payment was made by the plaintiff. The copy of draft document of sale Ex-P/3 the original of which is also numbered Ex-P/5 was prepared by the typist and defendant No. 1 put his signature on the carbon copy Ex-P/3. However, before putting the signature and execution of the sale deed Ex-P/5 the defendant No. 1 asked the plaintiff to return the sale agreement which was handed over to him by the plaintiff for his perusal upon which the defendant No. 1 tore up the sale agreement and threw it into the drain and then asked the plaintiff to return the Rinpustika and Khasra. Thereafter, the defendant No. 1 without putting his signature on the original sale deed and without getting it registered left the place with an assurance that he will execute the registered sale deed some time afterwards but he did not do so. The plaintiff has further alleged that he was ready and willing to get the sale deed executed in his favour but defendant No. 1 unauthorisedly executed the sale deed on 26.6.95 in favour of defendant No. 2 who was trying to dispossess the plaintiff of the disputed property on the strength of sale deed dated 26.6.95.

The defendants No. 1 and 2 filing a joint written statement, denying the allegations of the plaint have submitted that the defendant No. 1 neither entered into a written contract to sell the disputed property on 26.4.95 nor a document of agreement to sell was executed in favour of the plaintiff. The defendants have also denied to have handed over the possession of the disputed land to the plaintiff. The defendant No. 1 has further contended that as per allegation of the plaint Rs. 86,000/- was not due for payment of the plaintiff on any account. The defendant No. 1 has further stated that on 18.5.95 he and plaintiff came to Sheopur for getting the sale deed registered in favour of the plaintiff and stamps Rs. 9790/- were purchased from stamp vendor Mohanlal Gupta. Document of sale deed was prepared by the typist but the amount of consideration i.e. Rs. 90,000/- was not being given by the plaintiff to the defendant No. 1 owing to which, defendant refused to execute the sale deed in favour of the plaintiff. Defendant No. 2 has claimed that he is a bonafide purchaser of the disputed land and by registered sale deed dated 26.6.95 possession of the disputed property was given by the defendant No. 1 to him. The defendants have further alleged that the plaintiff was not in possession of the disputed land and so without asking relief of possession the suit was not maintainable.

The learned trial Court after framing eight issues and after recording evidence of both the parties and having considered the recorded evidence has dismissed the suit.

The following issues crop up for consideration in this appeal-

(i) Whether the defendant Siyaram had contracted to sell the disputed land vide agreement dated 26.4.95 to the plaintiff for the consideration of Rs. 90,000?

(ii) Whether the plaintiff gave Rs. 86,000/- to the defendant as part consideration?

(iii) Whether the plaintiff had been ready and willing for performance of the contract and for getting the sale deed executed in his favour?

Learned counsel for the appellant after taking this Court through the record of the trial Court alongwith the impugned judgment by referring the evidence available on record has submitted that the findings of the lower Court are perverse and not based on proper reasonings. He has further submitted that the lower Court has committed grave error in dismissing the suit. Inspite of fact that the issue No. 1A and 1B in respect of contract to sell dated 26.4.95 and issue No. 5 relating to readiness and willingness have been found proved in favour of the plaintiff. The learned counsel has further submitted that the respondents have not filed any cross objection or cross appeal related to findings of issue No. 1 A, 1B and 5. Now they have no right to challenge the findings in this appeal. Learned counsel has cited the following judgments to buttress his submission:-

(i) Prakash Chandra Vs. Angadlal and Others,

(ii) Hashan Shah vs. Nannu Shah, 1982 MPWN 106.

(iii) Mahesh Chandra Gupta and Another Vs. A.K. Mishra,

(iv) Tek Chand and Others Vs. Deep Chand and Others,

(v) R. K. Mohammed Ubaidullah and Others Vs. Hajee C. Abdul Wahab (D) By Lrs. and Others,

(vi) Ram Niwas (Dead) Through Lrs. Vs. Smt. Bano and Others,

(vii) Balaram Vs. Bapusingh, 1982 MPWN 294.

(viii) Sajan Singh Vs. Fanindra Pal Singh, 1994 (1) VIBHA 77.

Per contra, the respondents'' counsel has submitted that the findings of the lower Court in respect of issue No. 1A, 1B and 5 are not based on proper reasonings. As per the plaint allegation a part consideration of Rs. 86,000/- was paid by the plaintiff to the defendant No. 1 but it has not been specifically pleaded either in the plaint or produced any reliable evidence on record how the aforesaid amount was paid as a part consideration. Despite that the lower Court has committed error having found proved issue No. 1A and 1B in favour of the plaintiff. Learned counsel has further submitted that though the cross objection or cross appeal has not been filed in this appeal on behalf of the respondents yet defendants have full right to challenge the findings relating to issue No. 1A, 1B and 5 under Order 41 Rule 33 of CPC. Learned counsel has further stated that filing of cross objection or cross appeal is required only if the decree had been passed in favour of the plaintiff or against the respondents but in this case plaintiff suit was dismissed by the impugned judgment and decree. Therefore, the defendant can assail the legality and propriety of the findings in respect of issue No. 1 A, 1 B and 5 without filing the cross objection and cross appeal. Learned counsel has cited the judgment C. Cheriathan Vs. P. Narayanan Embranthiri and Others, in support of his argument.

Arguments were considered and record was perused.

At first, the contention of learned counsel for the appellant is being considered. The learned counsel has submitted that the finding of issue no. 1A, 1B and 5 given by the trial Court in favour of the plaintiff cannot be challenged by the respondents/defendants in this appeal, as no cross-objection under Order 41 Rule 22 of the CPC or cross appeal has been filed on behalf of the defendants.

Provisions of Order 41 Rule 33 of CPC are as under:

Power of Court of Appeal-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees):

A reading of the aforesaid provision, makes it clear that the contention raised by the appellant''s counsel does not appear to be correct. Admittedly, the suit filed by the plaintiff for specific performance of contract was dismissed by the learned trial Court and no decree in favour of the plaintiff or against the defendants was passed by the trial Court. It is true that the issue no. 1A, 1B and 5 decided by the trial Court in favour of the plaintiff would mean against the defendants. The defendants have no right to file an appeal against the findings only given by the trial Court relating to issue no. 1A, 1B and 5 whereas no decree was passed by the trial Court in favour of the plaintiff. As the appeal is filed by the plaintiff, the defendants have full right to challenge the findings given by the trial Court against them without filing any cross-objection or cross-appeal because the defendants are neither claiming any decree in their favour nor seeking any relief, as per the judgment of the Apex Court held in para 18 of C. Cheriathan Vs. P. Narayanan Embranthiri and Others,

According to para 1 and 2 of the plaint, the plaintiff has pleaded that the defendant No. 1 Siyaram used to borrow money from his adoptive father, Ramgopal for which Rs. 68,000/- was due against him. After settling the account total amount with interest Rs. 86,000/- remained due for payment from the defendant No. 1. Consequently, the defendant No. 1 contracted to sell the disputed agricultural land on 26.4.95 and a document of agreement to sell was prepared at Shambhudayal Patel''s house but it has not been made clear by the plaintiff as to how much amount was borrowed by the defendant No. 1 from the plaintiff''s adoptive father and when the loan was taken. These facts were necessary in the pleadings by which it could be ascertained how much amount was borrowed by the defendant No. 1 and whether the loan amount had been time barred or not and whether the time barred amount could be considered for contract to sell dated 26.4.95 as valid part of consideration.

Admittedly, the document of agreement to sell dated 26.4.95 has not been produced on record. In this regard, plaintiff has tried to say in para 6 of the plaint and in his statement para 5 that the document of agreement to sell was torn up by the defendant Siyaram on 18.5.95 when the document of sale deed Ex-P/5 was being prepared at Sheopur. If this version was correct why the contents of agreement to sell was not mentioned in the document of sale deed Ex-P/5 which was prepared in the presence of plaintiff and defendant No. 1 Siyaram. By mentioning of the said fact, the existence of agreement to sell could have been established. However, the plaintiff without seeking permission for producing secondary evidence u/s 65 of the Evidence Act could not have produced oral evidence by not only himself but also his witnesses Shambudayal (PW/2), Mohanlal (PW/4) and Sitaram (PW/5). As per Section 61 of the Evidence Act, the contents of documents may be proved either by primary or by secondary evidence. u/s 64 of the Evidence Act documents must be proved by primary evidence except in the cases hereinafter mentioned.

In the instant case as stated earlier when the document of agreement to sell dated 26.4.95 was got executed by defendant No. 1 in favour of the plaintiff at Shambhudayal Patel''s house that document must have been produced to prove the contents of the agreement dated 26.4.95 but he did not act accordingly. That document was primary evidence for proving the contents of agreement to sell. Though the plaintiff and his witnesses have tried to say that the document was torn up by the defendant but torn pieces of the document were also not produced on record. Moreover, if it was not possible for the plaintiff to produce them, he must have sought the permission for producing the secondary evidence u/s 65 of the Evidence Act from the Court. Without seeking the permission from the Court secondary evidence being produced by the plaintiff to prove the contract dated 26.4.95 cannot be relied upon as oral statements made by the plaintiff''s witnesses come in the purview of secondary evidence. The learned trial Court has not considered the evidence in a right perspective in deciding the issue No. 1A and 1B.

The plaintiff has not produced any document showing the defendant No. 1 having borrowed money from his adoptive father. The plaintiff Ramesh Chandra has deposed in para 18 that his family is a joint family. He was not able to say anything as when and what amount was borrowed by the defendant No. 1 from his father because he was not present there. The witness has further stated that this can only be made clear only by his father. In spite of this the statement of his adoptive father Ramgopal was not got recorded by the plaintiff. Why was his father not produced to clarify about the actual loan amount and when the loan was taken by the defendant? The plaintiff has admitted in para 19 that whenever his father lends some money to a borrower, a stamp is got executed from a borrower by him. In para 20 of the plaintiff''s statement, it has come on record that when the defendant borrowed the money from his father stamps were got executed by his father from the defendant but not a single document has been produced on record by the plaintiff showing his father to have lent any money to the defendant No. 1. In spite of having document of loan transaction in the possession of the plaintiff why they have not produced on record and have been suppressed by the plaintiff. The presumption goes against the plaintiff to this effect that either the loan transaction must be time barred or story being put forth by the plaintiff was doubtful. The plaintiff in para 26 has admitted that when the document of contract to sell was got executed from the defendant No. 1 no amount in cash was given to him. On this basis, it is inferred that the amount of Rs. 86,000/- as part consideration was not actually paid by the plaintiff to the defendant. Nevertheless how much actual amount was due, was not proved by any evidence. Mere oral statements of plaintiff''s witnesses as regards borrowed amount do not have any relevance without producing the document of loan transaction. Without consideration if any contract is made it is void as per Section 25 of the Contract Act.

In para 21 and 22 of the plaintiff Ram Chandra''s statement, it has come on record that in 1993 three bigha land was purchased by him from the defendant No. 1 Siyaram at the rate of Rs. 20,000/- per bigha and sale deed was executed by the defendant No. 1 Siyaram in his favour. The certified copy of the sale deed dated 19.5.93 has been produced on record which reflects that the sale deed of three bigha land was executed by the defendant No. 1 Siyaram in favour of the plaintiff. The witness has further admitted that the old borrowed money would be set off as consideration of the said sale deed. In such a situation, it becomes clear that if the earlier loan amount was adjusted in the year of 1993 how the amount became Rs. 86,000/- in course of just two years during the period i.e. 1993 and 1995. Despite the above fact, the credibility of plaintiff''s statement appears to be doubtful as in para 8 and 27 of his statement the plaintiff has deposed to have given the remaining part of consideration Rs. 4000/- to the plaintiff when the document of sale deed was prepared. On the contrary, during cross-examination in para 28 the plaintiff has admitted not to have given Rs. 4000/- to the defendant No. 1 Siyaram and has further stated that the said amount is to be paid to the defendant and his earlier statement about having given Rs. 4000/- to the defendant is not correct. Considering the totality of the plaintiff''s evidence, it is concluded that no consideration was paid by the plaintiff to the defendant.

Rebutting the plaintiff''s evidence, defendant Siyaram has categorically denied to have borrowed Rs. 86,000/- from plaintiff''s father and to have executed any document of agreement to sell as alleged by the plaintiff. Though defendant No. 1 Siyaram in para 4 has deposed that he orally contracted to sell the disputed land to the plaintiff''s father Ramgopal at the rate of Rs. 30,000/- per bigha and consequently he arrived at Sheopur for getting a sale deed executed in favour of the plaintiff but the amount of consideration was not being paid by the plaintiff and so he refused to execute the sale deed as desired by the plaintiff. Yet no inference can be drawn in favour of the plaintiff on the basis of the said statement because in the instant case there is no dispute on this point that the defendant Siyaram had orally contracted to sell the disputed property to the plaintiff''s father. The main issue of controversy is that whether the document of agreement to sell was executed by the defendant Siyaram on 26.4.95 and Rs. 86,000/- as part consideration of sale was paid by the plaintiff to the defendant. On the controversial issue nothing material could be brought in the cross-examination of the defendant''s statement on which his testimony may be discarded but the learned trial Court has misconstrued the defendant''s statement. Approach of learned trial Court in appreciation of evidence and in giving findings having found proved the issue No. 1A and 1B are totally perverse to the recorded evidence. The plaintiff has utterly failed to prove the execution of contract of sale dated 26.4.95 and having given the part consideration of Rs. 86,000/- to the defendant. Resultantly, the findings of issue No. 1A and 1B given by the learned trial Court being found erroneous are, hereby, set aside.

As discussed earlier when the issue No. 1 and 1B are found against the plaintiff, the question of readiness and willingness automatically go to against the plaintiff. Hence finding of issue No. 5 is also hereby set aside.

Considering the result of issue No. 1 A, 1B and 5 it is concluded that the plaintiff is not entitled to get the relief of specific performance of the contract in this case. Though the learned counsel for the appellant has cited the judgments Prakash Chandra Vs. Angadlal and Others, and Tek Chand and Others Vs. Deep Chand and Others, yet no advantage can be given to the plaintiff in the instant case because issue No. 1A, 1B and 5 have not been found proved in his favour.

In view of the facts and circumstances of the case there is no need to discuss the issue whether the defendant No. 2 is a bonafide purchaser or not and what would be the effect of not examining the defendant No. 2. This issue could have had relevance for discussion if issue No. 1A, 1B and 5 had been found proved in favour of the plaintiff. The judgment in this regard cited on behalf of the plaintiff do not support the plaintiff''s case. Having taken into account the recorded evidence, it is inferred that though the findings of issue No. 1A, 1B and 5 given by the learned trial Court are found perverse and unconvincing yet conclusion for dismissal of plaintiff''s suit is not found correct. Hence, affirming the impugned judgment and decree of the trial Court, the appeal is hereby dismissed. Cost of this appeal shall be borne by the appellant.

Decree be drawn up accordingly.