Smt. Bohati vs Smt. Meera Devi, Mukesh Kumar, Yogesh Kumar and Lokesh Kumar All the three sons of Late Shri Dharam Pal through their mother, natural guardian of the minors, Smt. Meera Devi

Hon''ble U.C. Dhyani, J.—This appeal preferred by defendant/appellant Smt. Bohati wife of Shri Bishamber Singh u/s 100 of C.P.C. is directed against the judgment and decree dated 22.10.2001 passed in Civil Appeal No. 25 of 1999 whereby learned Civil Judge, Senior Division, Roorkee allowed the appeal and set aside the judgment and decree dated 17.02.1999 passed by Civil Judge, Junior Division, Rookee in Original Suit No. 257 of 1995. Brief facts of the case are that Dharmpal son of Phool Chand instituted a civil suit no. 25 of 1995 in the Court of Civil Judge, Junior Division, Roorkee against the defendants Ram Kishan, Malkhan and Smt. Bohati for specific performance of contract. It was averred in plaint that defendant no. 1 Ram Kishan was bhumidhar with transferable rights of the disputed land from August, 1999 onwards. The defendant no. 1 entered into a registered agreement on 27.08.1993 in lieu of Rs. 20,000/- . The agreement was registered before the Sub-Registrar, Roorkee. Defendant no. 1 obtained an advance of Rs. 8,000/- from the plaintiff and agreed to pay Rs. 12,000/- at the time of execution of sale-deed. It was agreed upon between the parties that the sale-deed was to be executed by 27.08.1994. It was also agreed upon between the parties that defendant no. 1 shall obtain Rs. 12,000/- from the plaintiff and shall hand over the possession of the disputed land on the same day. The land in question was detailed and specified at the foot of the plaint.

Since defendant no. 1 was a person of Scheduled Caste community and it was necessary for him to obtain permission of the Collector u/s 157A of the U.P.Z.A. & L.R. Act, if he wanted to sell it off to a Non- Scheduled Caste person, therefore it was agreed upon between the parties that the defendant no. 1 shall obtain permission of the Collector within a stipulated period. As soon as the defendant no. 1 shall obtain such permission, he will give notice in writing to the plaintiff/respondent and the sale-deed will be executed one month thereafter. The plaintiff / respondent was always ready and willing to perform his part of obligation. He was always and is always ready to pay expenses to defendant no. 1 in order to get the sale-deed of land in question executed in his favour. Defendant no. 1 sought time from the plaintiff to obtain permission of the Collector. Plaintiff/respondent continued to make request to defendant no. 1 for obtaining permission from the Collector, but the defendant no. 1 did not do so. Plaintiff/respondent served a registered notice dated 16.03.1994 as well as notice under postal certificate upon the defendant no. 1 requesting him to obtain permission from the Collector, take the balance and execute sale-deed on 05.04.1994. This notice was served upon the defendant no. 1 but even after service of such notice defendant no. 1 did not appear before the Sub-Registrar for execution of sale-deed. Plaintiff/respondent continued to remain sitting in Sub-Registrar''s office from morning till evening along with balance amount. He got his attendance registered before the Sub-Registrar.

It was also averred in the plaint that on 22.07.1994 plaintiff/respondent served a registered notice upon the defendant no. 1 again requesting him to execute sale-deed on 27.08.1994. The said notice was also served upon defendant no. 1 but the said defendant did not turn up before the Sub-Registrar, Roorkee on 27.08.1994. Plaintiff remained present in Sub-Registrar''s office from morning till evening along with money and got his presence registered before the Sub-Registrar. The Plaintiff/respondent tried to meet defendant no. 1 personally, but could not. Plaintiff/respondent came to know after a few days that the defendant no. 1 has sold the property in question to defendant no. 2 in order to cause harm to the plaintiff/respondent. Defendant no. 1 left his parental village Khubban Pur and started living in village Sunahti Kharkadi. Defendant no. 1 had no right to sell the property in question in favour of defendant no. 2. Defendant no. 2 was having the knowledge of the agreement executed by the defendant no. 1 in favour of the plaintiff/respondent and in spite of that defendant no. 2 got the sale-deed executed from defendant no. 1 in his favour.

Then again, defendant no. 2 also sold the said property in favour of defendant no. 3. Defendant no. 3 also knew it fully well that the agreement to sell was executed in favour of the plaintiff/respondent by the defendant no. 1 and spite of that he got sale-deed executed in his favour on 24.02.1995. Defendant no. 3/appellant as well as her husband Bishamber Singh were well aware about the agreement to sell executed by defendant no. 1 in favour of the plaintiff/respondent. Plaintiff/respondent was and is willing to perform his part of contract from the very beginning and he is entitled to a decree of specific performance of contract against the defendant no. 1. An alternative relief was claimed by the plaintiff/respondent that in case the decree of specific performance of contract was not granted in his favour then the defendant no. 1 may be directed to pay the plaintiff/respondent Rs. 8,000/- (advance money), interest at the rate of 2 per cent per mensem, damages Rs. 4,320/- ( total - Rs. 12,320/- ).

Defendant nos. 1 & 2 did not appear before the trial court (as well as before the first appellate court or lower appellate court) despite service of summons on them. Defendant no. 3 Smt. Bohati however, contested the suit and filed written statement. In her written statement, she did not admit the agreement to sell executed by defendant no. 1 in favour of the plaintiff/respondent. She however, admitted sale-deeds, firstly executed by defendant no. 1 in favour of defendant no. 2 and subsequently by defendant no. 2 in favour of defendant no. 3. She denied the existence of agreement to sell dated 27.08.1993 in para no. 3 of her written statement and asserted that no such agreement to sell was ever executed. She also denied the payment of Rs. 8,000/- as advance money to the defendant no. 1. Defendant no. 3 also averred in written statement that the agreement to sell was a forged paper. Since no agreement to sell was executed by defendant no. 1 in favour of plaintiff/respondent, therefore the question of executing sale-deed in favour of plaintiff/respondent did not arise. She also denied plaint averment that permission of Collector was required u/s 157A of U.P.Z.A & L. R. Act. She averred that since no agreement to sell was executed therefore, the question of obtaining the permission of Collector never arose. It was admitted that the defendant no. 1 was a person belonging to Scheduled Caste category whereas the plaintiff/respondent was a person of non Scheduled Caste category. Since defendant no. 1 had no agricultural land other than the property in question, therefore no such permission could be granted to defendant no. 1 to sell his land. The suit is barred by Section 157A of U.P.Z.A. & L. R. Act, 1950. The suit was also barred by Section 23 of the Indian Contract Act. No sale-deed could be executed in favour of the plaintiff/respondent on the basis of alleged agreement to sell. It was also averred that the plaintiff/respondent was never ready and willing to perform his part of contract. The suit was barred by Section 16C of Special Relief Act. The plaintiff/respondent did not make arrangement for payment of balance as also the expenses to be incurred in execution of sale-deed. The suit was also barred by Section 41 of Transfer of Property Act. Other allegations made in the plaint were also denied by the responding defendant in her written statement.

Since defendant no. 1 was the owner in possession of property in question, as also a member belonging to Scheduled Caste category, therefore, he executed sale-deed on 17.05.1994 in favour of defendant no. 2 who also belonged to Scheduled Caste category. Property in question was sold to defendant no. 2 for Rs. 30,000/- and possession of the same was given to defendant no. 2 on the same day. Thereafter, defendant no. 2 sought the permission of Collector u/s 157A of U.P.Z.A. & L. R. Act, 1950 and executed sale-deed on 24.02.1995 for Rs. 30,000/- in favour of answering defendant. She also obtained the physical possession of the said land instantaneously. Thus the answering defendant was the bhumidhar with transferable rights in possession of the said land according to her written statement.

Defendant no. 2 moved an application for mutation before the Tehsildar, Roorkee on the basis of sale-deed dated 17.05.1994 in her favour. Notices in general were issued and after proper inquiry said land was mutated in favour of defendant no. 2. The answering defendant also moved such application before Tehsildar, Roorkee for mutation and finally the said land was mutated in her favour. The plaintiff /respondent did not raise objection at this stage and therefore, the suit was barred by principle of estoppel by acquiescence. The suit deserved to be dismissed according to answering defendant no. 3.

On the basis of the pleadings of the parties trial court framed 09 issues as follows :

i. Whether defendant no. 1 executed a registered agreement to sell on 27.08.1993 in favour of plaintiff for Rs. 20,000/- and obtained an advance of Rs. 8,000/- ?

ii. Whether the plaintiff was and is ready and willing to perform his part of contract ?

iii. Whether the defendant nos. 2 and 3 are liable to comply with the agreement dated 27.08.1993 ?

iv. Whether the suit is under valued and court fee paid is insufficient?

v. Whether the suit is barred by Section 157A of U.P.Z.A. & L. R. Act, 1950 and Section 23 of Indian Contract Act ?

vi. Whether the suit is barred by Section 16C of Specific Relief Act ?

vii. Whether the defendant no. 2 is not bonafide purchaser without notice and without proper consideration ?

viii. Whether the suit is barred by principle of estoppel by acquiescence ?

ix. To what relief, if any, is the plaintiff entitled ?

After recording the evidence and hearing the parties learned trial court accepted the alternate relief of the plaintiff/respondent. The defendant no. 1 was directed to pay a sum of Rs. 12,320/- along with interest at the rate of 2 % per mensem in favour of the plaintiff/respondent. The suit of the plaintiff was dismissed as against defendant nos. 2 and 3.

Aggrieved against the judgment and order dated 17.02.1999 of learned Civil Judge, Junior Division, Roorkee (trial court) an appeal was preferred which was transferred to learned Civil Judge, Senior Division for disposal according to law. After hearing the parties, the appeal of the plaintiff/respondent Smt. Meera Devi and three others was allowed. The judgment and decree passed on 17.02.1999 in Original Suit No. 257 of 1995 was set aside. Defendant no. 1 was directed to execute sale-deed in favour of the plaintiff/respondent in pursuance of agreement to sell dated 27.08.1993 within one month, failing which the plaintiff/respondent was given a right to get the sale-deed executed in his favour through the court.

While admitting Second Appeal, the following Substantial Questions of law were framed :

Whether the lower appellate court has erred in law in decreeing the suit ignoring the provision of Section 16(C) and Section 20 of Specific Relief Act, 1963?

Whether the lower appellate court has erred in law in decreeing the suit ignoring the provision of Section 157A of U.P. Zamindari Abolition and Land Reforms Act, 1950, and Section 23 of Indian Contract Act?

Learned trial court in its finding dated 17.02.1999 has held that the defendant no. 1 entered into an agreement to sell with plaintiff/respondent on 27.08.1993, obtained an advance of Rs. 8000/- and agreed to execute sale-deed of the land in question for Rs. 20,000/- in favour of the plaintiff/respondent. Defendant no. 1 did not contest the case before the trial court. Defendant no. 1 did not prefer an appeal before the lower appellate court either. The reason given by the trial court are sound and based on principles of law. There appears to be no reason to interfere with the finding arrived at by the learned trial court as the same has been affirmed by the first appellate court. The first appellate court did not think it proper to interfere with the finding of learned trial court. This court is in agreement with the findings recorded by the learned trial court as well as first appellate court, so far as issue no. 1 is concerned.

Issues no. 2 & 6 were decided together by learned trial court who held that the plaintiff/respondent and his legal heirs, after his death were always ready and willing to perform their part of contract and the suit was not barred by Section 16(C) of Specific Relief Act. Learned first appellate court was also in agreement with the said finding of the learned trial court. This Court finds that findings are based on correct facts and sound principles of law.

So far as issues no. 5, 7 & 8 are concerned they were also decided in favour of the plaintiff/respondent by learned trial court and so did the learned lower appellate court. Issue no. 4 as regards valuation of the suit and court fee thus paid was decided as a preliminary issue by the learned trial court on 24.01.1997. The said issue was not assailed before the first appellate court.

Only issue no. 3 was decided by the trial court against the plaintiff/respondent and accordingly, his main prayer was denied while discussing issue no. 9. It was only the alternative relief prayed for in the suit which was allowed in favour of the plaintiff by learned trial court. Issue no. 3 was framed to the effect whether defendants no. 2 & 3 were liable to comply with the agreement to sell dated 27.08.1993 ? Learned trial court has given cogent reasons for denying this relief to the plaintiff/respondent. Although learned lower appellate court did not concur with the said finding of the learned trial court but he did not assign any reason while disagreeing with the finding arrived at by the trial court. Learned first appellate court simply said that when the trial court has given the finding to the effect that the defendant no. 1 agreed to sell the land in question to the plaintiff/respondent, obtained advance and thereafter the plaintiff/respondent was always ready and willing to perform his part of contract, then why the defendant no. 1 was not directed to execute sale-deed in favour of the plaintiff ? Learned first appellate court held that no explanation was given by the trial court to this effect and thereafter reversed the finding of learned trial court in this respect and allowed the appeal of the plaintiff. While setting aside the judgment and order dated 17.02.1999 of the trial court, the defendant no. 1 was directed to execute the sale-deed in pursuance of agreement to sell dated 27.08.1993 in favour of the plaintiff failing which, it was ordered that the plaintiff will be entitled to do it through the court.

No reason was therefore, assigned by the learned first appellate court to reverse the finding arrived at by the learned trial court in respect of issues no. 3 & 9.

It is a fact that neither defendant no. 1 nor defendant no. 2 filed any written statement. Learned trial court has said in no unequivocal terms that the plaintiff has been able to establish its case and defendant no. 3 was not a bonafide purchaser for value. Learned trial court referred to the provisions of Section 157A and came to the conclusion that the said provision will be frustrated if defendant no. 1 was directed to execute sale-deed in favour of the plaintiff/respondent without obtaining the permission of the Collector of the district and it is on account of these reasons that the main relief sought for by the plaintiff in his suit was denied by him and only the alternative relief was acceded to. Defendant no. 1 was therefore, directed to pay Rs. 12,320/- along with interest 2 % per mensem on the same. The suit was decreed against defendant no. 1. Suit was however, dismissed as against defendants no. 2 & 3.

It will be appropriate to go through the provisions of Section 157A of U.P.Z.A. & L.R. Act, 1950 first. The said provision is reproduced herein below for ready reference:

157-A. Restrictions on transfer of land by members of Scheduled Castes.- (1) Without prejudice to the restrictions contained in Sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Caste shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste, except with the previous approval of the Collector :

Provided that no such approval shall be given by the Collector in case where the land held in Uttar Pradesh by the transfer on the date of application under this section s less than 1.26 hectares or where the area of land so held in Uttar Pradesh by the transferor on the said date is after such transfer, likely to be reduced to less than 1.26 hectare.

(2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed.

It is not in dispute that the plaintiff was not a member of the Scheduled Caste community. It is also not in dispute that defendant no. 1 was a member of Scheduled Caste community. It was therefore, incumbent upon defendant no. 1 to have sought the previous approval of the Collector first and then to execute sale-deed in favour of the plaintiff. His executing a sale-deed in favour of the plaintiff was therefore dependant upon receiving the approval of the Collector. There is nothing on record to show that the defendant no. 1 made any effort, much less any sincere attempt to obtain previous approval of the Collector. But the million dollar question is, can this Court direct the Collector of the concerned district to grant approval in favour of the defendant no. 1 so that he could execute sale-deed in favour of plaintiff? The answer is an emphatic no. The reasons are not for to seek. Firstly, the Collector is not a party to the proceedings. Secondly, this Court is sitting in Second Appeal jurisdiction and not in Writ jurisdiction. Thirdly, no prayer was made by the plaintiff for giving such direction to the Collector of concerned District.

It is not in dispute, as said earlier, that previous approval of the Collector was not obtained by defendant no. 1. Howsoever strong the case of the plaintiff/respondent might be and howsoever weak the case of defendant no. 1 might be, it will not be proper on the part of this Court to direct defendant no. 1 to execute sale-deed of the land in question in favour of plaintiff/respondent in the absence of previous approval of the Collector. If such direction is given by this Court, that would be in breach of Section 157A of U.P.Z.A. & L.R. Act, 1950. Learned counsel for the respondent has very fairly conceded to this aspect of the matter. He has graciously admitted in course of arguments that no court could grant the main relief as sought by the plaintiff/respondent in the absence of approval of the Collector u/s 157A of U.P.Z.A. & L.R. Act, 1950. Learned lower appellate court has not assigned any reason while granting main relief to the plaintiff. This Court holds that any direction to defendant no. 1 to execute sale-deed in favour of plaintiff/respondent without approval of the Collector was not sustainable in view of clear provisions of law as contained in Section 157A of U.P. Act No. 1 of 1950.

Mr. J.S.Bisht, learned counsel for the appellant advanced an argument to the effect that in any case the Collector was not empowered to grant such approval in view of Proviso 2 of Section 157A of U.P. Act No. 1 of 1950. Learned counsel for the appellant submitted that had defendant no. 1 transferred the land in question to the plaintiff/respondent in pursuance of the said agreement to sell, his land would have been reduced to less than 1.26 hectares after such transfer. He has submitted that, in fact, this was the only land in the ownership and possession of defendant no. 1. This Court is not entering into this aspect of the matter primarily because no such evidence has been brought on record, although defendant no. 3 has said in para 5 of the written statement that this was the only piece of land in the ownership and possession of defendant no. 1.

Learned counsel for the appellant also referred to page 11 of the judgment of trial court wherein ruling of Jugraj Singh and another Vs. Labh Singh and others, was mentioned to show that defendant no. 3 had no right to defend defendant no. 1. Learned counsel for the appellant referred to ruling of Ram Awadh (Dead) by Lrs. and Others Vs. Achhaibar Dubey and Another, to show that the said ruling of Jugraj Singh (supra) has been overruled now by the Hon''ble Supreme Court. In para no. 6 of the said judgment it was observed as under:

The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or declined to decree the suit. We are of the view that the decision in Jugraj Singh case is erroneous.

It is therefore, held that it was open to defendant no. 3 to contend on behalf of defendant no. 1 as above.

In view of the above discussion, this Court is of the view that learned trial court has given cogent findings at page nos. 16 & 17 of the judgment while discussing and giving the conclusion with respect to issues no. 3 & 9. The said findings amply demonstrate as to why the plaintiff was not entitled to main relief. Learned trial court rightly exercised its discretion u/s 20 of the Specific Relief Act, 1963. As said earlier, the matter was not at all discussed by learned lower appellate court while reversing the said finding of learned trial court. Learned trial court also referred to the rulings of S. Rangaraju Naidu Vs. S. Thiruvarakkarasu, and Jamila Khatoon v. Ram Niwas Gupta, ALR 1998 (32) 83 in this context. Although no arguments were advanced on these rulings before this Court, yet it appears that these rulings are applicable to the facts of the present case. Further, Section 23 of the Contract Act, 1872 has no bearing on the case but yes, Section 157A U.P.Z.A. & L.R. Act has certainly a telling effect on the outcome of the case.

In M.S.Jagadambal v. S.I. Education Trust, 1988 (supp) SCC 144 it was observed that -

So far as the appreciation of oral testimony by the appellate court is concerned there are two viewpoints. One view is that the court of appeal has undoubted duty to review the recorded evidence and to draw its own inference and conclusion. The other view is that the court of appeal must attach due weight to the opinion of the trial judge who had the advantage of seeing the witnesses and noticing their look and manner. The rule of practice which has almost the force of law is that the appellate court does not reverse a finding of fact rested on proper appreciation of the oral evidence.

Thus on the basis of above discussion, this Court is of the view that the appeal filed against the order dated 22.10.2001 of learned lower appellate court deserves to be allowed. It is accordingly allowed. Judgment and order of the lower appellate court is hereby set aside. Judgment and order dated 17.02.1999 rendered by the trial court is perfectly in consonance with the provisions of law and therefore, the same is affirmed. The judgment of the trial court dated 17.02.1999 whereby the defendant no. 1 was directed to pay an amount of Rs. 12,320/- along with 2 % interest per mensem on the said sum is hereby upheld.

Substantial Questions of Law thus framed stand answered accordingly. This disposes of the Second Appeal No. 1634 of 2001. No order as to costs.