Sat Paul Singh vs Hukam Chand

G.R. Majithia, J.

The defendant has come up in first appeal against the judgment and decree of the trial Judge whereby the suit for specific performance of the agreement to sell dated October 4,1975 was decreed in favour of the plaintiff/respondent. The plaintiff has preferred Cross Objections No. 4CI of 1979.

The facts : An agreement to sell dated October 4, 1975 with regard to the property in dispute was executed by the defendant in favour of the plaintiff. The agreement stipulated that the defendant was owner of the agricultural land and the house mentioned therein. The agricultural land was to be sold at the rate of Rs. 3500/ per kanal and the house for Rs. 6000/. The defendant received Its. 1000/ as earnest money at the time of execution of the agreement to sell and the remaining consideration was to be received at the time of the execution of the sale deed which was to be executed by May 31, 1976. The defendant in breach of the terms of the agreement to sell started negotiations with other persons for transferring the disputed property to them. The plaintiff filed a suit on January 1, 1976 claiming permanent injunction restraining the defendant from alienating in any manner to any other person except the plaintiff land measuring 3 kanals 21/2 marlas out of 6 kanals 5 marlas comprised in Khewat No. 66, Khatauni No. 248, bearing Khasra Nos. 181(03), 20(36), 211(013), 222(115), 356(014), 357(214) entered in Jamabandi for the year 197071 and the house marked ABCD shown red in the plan Ex. PI bounded as East : Street, West House of Parma and Har Dass, North : House of Rakha and Janak and South : House of Tirath s/o Udho situated in the area of village Pahlewal, P.S. and Tehsil Garhshankar. The suit was dismissed as withdrawn on July 20,1976 since in the meantime right to sue for possession by way of specific performance of the agreement had accrued to the plaintiff. The defendant did not execute the sale deed in furtherance of the agreement to sell in favour of the plaintiff necessitating the filing of the suit for the relief of specific performance of the agreement to sell.

The defendant in the written statement pleaded that be had 1/3 share in the house and 1/2 share in the agricultural land and was not the owner of the entire property mentioned in the agreement. He further pleaded that he had received Rs. 400/ at the time of the execution of the agreement to sell and not Rs. 1000/ as alleged. He denied the terms and conditions of the agreement. He also pleaded that the plaintiff was not willing to perform his part of the contract. The plaintiff insisted on claiming more then the defendant''s share in the suit property and the sale deed could not be executed. He also pleaded that the suit was barred under Order 2 rule 2 Civil Procedure Code.

On the pleadings of the parties, the following issues were framed :

(1) Whether the defendant did not execute the agreement dated 4.10.1975 in favour of the plaintiff? OPD.

(2) Whether the plaintiff was ready and willing to perform his, part of the agreement dated 4.10.75 ?

(3) Whether the plaintiff is entitled to damages in the alternative. If so how much ?

(4) Whether this Court has no jurisdiction to try this suit.? OPD.

(5) Whether the suit is bad for nonjoinder of necessary parties ?

(6) Whether the defendant is not the owner of the entire property in dispute ? If so its effect ?

(7) Whether the suit is barred under Order 2 rule 2 C.P.C and principle of resjudicata ? OPD.

(8) Whether the plaintiff is not entitled to specific performance of the agreement ? OPD.

(9) Relief.

Issue No. 1 was answered by the trial Judge in favour of the plaintiff and it was held that the defendant executed the agreement in dispute in his favour; issue No. 2 was answered in favour of the plaintiff and it was held that the plaintiff had been ready and willing to perform his part of the contract; issue No. 3 was found in favour of the plaintiff and it was held that he was entitled to the alternative remedy of damages; issue No. 4 was answered against the defendant and it was held that the civil Court at Ludhiana had jurisdiction to try the suit; issue No. 5 was answered against the defendant; issue No. 6 was answered in favour of the defendant and it was held that the defendant was not owner of the whole property but was owner of 1/2 share of the property in dispute; issue No. 7 was decided against the defendant and it was held that the suit is not barred under Order 2 rule 2 or Section 11 of the Civil Procedure Code; issue No. 8 was answered in favour of the plaintiff and it was held that he was entitled to specific performance of the agreement to sell. The suit was ultimately decreed.

The learned counsel for the defendant urged that the agreement to sell was vague and was incapable of performance. The submission is devoid of any merit. The plaintiff has given details of the land and the house, subject matter of the agreement to sell, in the heading of the plaint. In para No. 2 of the plaint, he stated that the land and the house with regard to which agreement to sell was executed has been stated in the heading of the plaint. Para No. 2 of the plaint reads thus :

"That the land and the house which the defendant agreed to sell and about which reference has been made in the said agreement and have been fully described in the head note of the plaint. Copy of Jamabandi 197071 and the site plan prepared by the draftsman are attached. "

The corresponding reply in the written statement to this para reads as thus :

"2. In reply it is submitted that the defendant has 1/2 share in the land in dispute and has 1/3rd share in the house in suit. The boundaries of the house given in the plaint are wrong and incorrect and the site plan is not according to the spot."

The defendant did not deny the specific plea taken by the plaintiff in para No. 2 of the plaint that the land and the house fully detailed and described in the heading of the plaint were agreed to be sold under the agreement to sell. Reply has to be specific and not vague. From a plea which is not expressly denied an interence can be drawn that the same was admitted to be correct. No ambiguity is left from the pleadings of the parties that the agreement to sell related to the suit land which was described in the preamble of the plaint.

The defendant has not been proved to be owner of the entire property mentioned in the agreement to sell but was as owner to the extent of 1/2 share. The plaintiff is entitled to sue for possession by specific performance of the agreement to sell of that portion of the property of which the defendant has been found to be the owner. It will be useful to refer to the following observations of the apex Court in Kartar Singh v. Harjinder Singh & Ors., 1990 (1) CLJ (C. Cr. & Rev.) 537 :

"5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is dear from Section 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sell whole of his property. The two contracts, viz., for the sale of his share and of his sister''s share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent''s sister and the only valid contract was with respondent in respect of his share in the property."

For the reasons aforesaid, the appeal is devoid of any merit and is dismissed.

In the CrossObjections, the plaintiff has claimed costs in the suit amounting to Rs. 1392.25. He was denied costs in the suit by the trial Judge. No reasons are given by him for denying the costs to the plaintiff. Normally costs abide by the event unless for reasons to be recorded it is held otherwise. Consequently CrossObjections are allowed and it is held that the plaintiff is entitled to costs in the suit

The parties shall however, bear their own costs in the appeal.