Singh Raj and others vs Smt. Gargi Devi and others

C.S. Tiwana, J.—This appeal is on behalf of the defendants against whom a suit filed by Gauri Shanker in the month of July, 1967, after having been dismissed by the Sub Judge First Class, Ballabgarh, on January 4, 1971, was decreed in appeal by the Senior Sub Judge, Gurgaon by judgment dated February 3, 1973. The suit was for obtaining a declaration that the plaintiff was the owner in possession of 1687 Kanals 4 marlas of waste land situated on the bank of the river Yamuna in the area of village Manjhawali in Tehsil Ballabgarh. By way of alternative relief possession was also claimed. A sale deed in respect of the land had admittedly been executed by the plaintiff in favour of Chander Singh defendant No. 11 and the other members of his family defendants Nos. 1 to 10 and Jhabban defendant No. 12 at the premises of the Tehsil, Palwal, on September 23, 1965, with the help of a petition writer It had been recited therein that he being the owner of the land recorded as banjar qadim but comprised of bushes and jungle area and yielding no income was being sold to the vendees already mentioned for a consideration. It requires a specific mention that Jhabban was to get one eight share by virtue of the sale deed. As about the consideration, it was recited that it had been promised that the same would be received before the Sub Registrar and had been received in full. Then follows this material fact by way of recital that the possession had been delivered at the spot to the vendees. The sale deed was subsequently not got registered by any of the parties and the defendants took this defence that they being in possession of the land in part performance of the agreement to sell the plaintiff could not take back the possession from them. The plaintiff denied having received any consideration of Rs. 3,000/- as mentioned in the sale deed yet the trial Court considered the payment of the sale price to be proved Further more, a suit having been filed by the defendants excluding Jhabban against Gauri Shanker on May 25, 1966, for obtaining a declaration in respect of the land in dispute had been decreed on June 13, 1966, by the Sub Judge First Class, Ballabgarh, on an admission of the claim made by Jhabban on behalf of Gauri Shanker for whom he acted as having a general power of attorney. It has to be pointed out that Jhabban himself was made a defendant and it was without effecting service upon Gauri Shanker that Jhabban admitted the whole claim of the defendants and that it was in view of the admission made by him that the declaratory suit was decreed. Thus on the ground of the previous decree of the Court and on the ground that the defendants were in possession of the land in part performance of the agreement to sell the suit of the plaintiff was dismissed.

The lower appellate Court held the consideration not to have been paid and the possession of the defendants not being in part performance of the agreement to sell it decreed the suit of the plaintiff It also found that the previous declaratory decree having been obtained by fraud did not effect the right of the plaintiff.

The registered power of attorney executed by Gauri Shanker in favour of Jhabban is Exhibit D. 1 and it is recited therein that on account of his old age he had entrusted whole of the litigation pending in different Courts to be conducted by Jhabban. Besides other Sowers of a routine nature, it finds a specific mention in the powers of attorney that Jhabban could enter into agreement with regard to the property and that he could then get a sale, mortgage or permanent lease deed executed from the plaintiff. It was further mentioned that whatever bargains the mukhtar-i-am would enter into would be agreed to by him. It is under this kind of power derived from the document. Exhibit, D-1, that the defendants pleaded that on account of the admission made by Jhabban in the previous suit the plaintiff could not deny their title in the land in dispute.

The plaintiff set up this case that he had agreed only to sell 228 Kanals 8 morlas of his land out of the one in dispute to the defendant for a consideration of Rs. 3.000/-. He further mentioned in the plaint that the sale was to be completed in the month of September 1961 and that the payment of the price was to be made before the Sub Registrar. He then admitted that he then put his signatures on the sale deed, Exhibit D5, but immediately afterwards realized that instead of the land which he had agreed to sell the land mentioned in the sale deed was one which subsequently came into dispute. This particular staid was taken by the plaintiff that he refused to get the sale deed registered, as it did not correctly mention the area of the land which was agreed to be sold. Farther, according to the plaintiff, the defendants took away the sale deed on this, pretext that they would get a refund of the amount spent on stamps. The plaintiff then narrated that at a later stags he learnt that the defendants had got some mutation entered on the basis of a decree in civil suit No. 138 of 1966. It was further pleaded by the plaintiff that the decree in the previous suit would not confer any title in the land on the defendants The only right which the defendants, according to the plaintiff, had was to file a suit for the specific performance of the agreement to sell.

The first point for determination which arises in this appeal is whether the plaintiff is bound by the admission made by Jhabban in the previous suit Jhabban was himself one of the vendees in respect of the land. In the ordinary course he could not be impleaded as defendant No. 2 but should have been joined as a plaintiff. He had an interest which came in direct conflict with the interest of the plaintiff. He was interested in making an admission about the receipt of consideration by Gauri Shanker and also in admitting that the vendees had become the owners of the land in part performance of the agreement to sell. Without getting Gauri Shanker served in that suit his rights could not be affected. Furthermore, the plaintiff had given authority to his mukhtar for defending or filing ordinary proceedings in any Court. The terms of the power of attorney cannot be so interpreted as to mean that if anybody filed a suit claiming possession on the strength of a sale deed in his favour, Jhabban could admit that kind of claim as well When the plaintiff reserved a right to himself for the confirmation of any agreement to sell he cannot be deemed to have conferred this right on the attorney that if anybody were to file a suit alleging sale of bind he had the authority to make an admission which had the effect of conferring rights of ownership on the person filing the suit The previous decree being collusive as between Jhabban and the other defendants and having been fraudulently obtained by not getting the service effected on Gauri Shanker does not confer any title on the defendants. The Learned Counsel for the appellants laid great stress on this kind of statement made by Jhabban D.W. 1 that before appearing in the previous suit he had specifically obtained instructions from the plaintiff for making the desired admission. If once it is held that Jhabban acted to defraud his principal so as to gain an advantage, this part of his statement that he had told Gauri Shanker about the pending suit has to be disbelieved.

The second material point for determination is whether the defendants are in possession of the land in part performance of the agreement to sell Din Dayal D.W. 2 and Sohan Lal D.W. 3 being the attesting witnesses of the sale deed deposed about this fact that the sale consideration had been paid. When this fact is taken note of that the consideration was to be paid before the Sub-Registrar it cannot be easily presumed that it was paid before the sale deed was presented for registration. The Learned Counsel for the appellants has banked too much upon the recital itself. He is trying to interpret it in a manner showing that even though the consideration was to be paid before the Sub-Registrar it had been actually paid outside his office. Generally, even if the consideration is to be obtained before a Sub-Registrar the recital in the deed is that it has been paid before the Sub Registrar. In the absence of such a recital after the payment is made before the Sub-Registrar some more words are required to be added in the sale deed itself so as to bring it in conformity with the actual state of affairs It is for avoiding inconvenience to all concerned that the recital about the payment of consideration is made before the presentation of the sale deed before the Sub-Registrar for registration. Had the registration actually taken place and the payment had been shown by the endorsement of the Sub-Registrar to have been made to the plaintiff, the recital could be taken to be in accordance with the actual facts, there is no evidence on this point that any receipt was obtained by the defendants when they made the payment of the consideration outside the office of the Sub-Registrar. Some differences had arisen between the parties before the sale-deed was to be presented before the Sub-Registrar and it cannot, therefore, be presumed that any payment had in fact been made. I thus affirm this finding of the lower appellate Court that the consideration of Rs. 3,000/- had not been paid by the defendants.

The doctrine of part performance has no application in this case. Unless a transferee has performed his part of the contract the doctrine would not apply. In the present case the consideration not having been paid the defendants cannot take advantage of their possession over the land. Furthermore, the possession should have been obtained after the sale-deed bad been executed and before it was registered. The recital is such as to show that the possession had already been obtained at the site. It is not such a case that the plaintiff willingly parted with the possession of the land in accordance with the terms of the sale-deed. No such authority has been cited which could show that a forcible possession obtained by the vendees without the payment of any consideration would entitle them to retain the possession by invoking section 53-A of the Transfer of Property Act. The defendants are thus in illegal possession of the land and the suit of the plaintiff has been rightly decreed by the lower appellate Court.

The appeal is consequently dismissed, but taking into consideration all the facts of this case the parties are left to bear their own costs.