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Judgment
Dr. A.K. Rath, J.
Plaintiff is the appellant against a confirming judgment in a suit for specific performance of contract.
The case of the plaintiff is that defendant no.1 is the owner of the suit land. To press his legal necessity, defendant no.1 intended to sell the same.
Defendant no.1 executed an agreement to sell the land on 24.8.1980 in his favour for a consideration of Rs.6,000/-. He paid a sum of Rs.5,000/-
towards part consideration to the defendant no.1. Defendant no.1 agreed that the land will be sold within three months and the balance of Rs.1,000/-
shall be paid at the time of registration of the sale deed. The defendant no.1 maintained a stony like silence. The plaintiff sent a letter on 25.10.1980
under certificate of posting to him for execution of the sale deed. After receipt of the notice, defendant no.1 sent a reply on 13.11.1980 stating that he
was not prepared to sell the land in view of rise in price. The plaintiff enquired into the matter and ascertained that defendant no.1 had executed a
nominal sale deed in the name of the defendant no.3. The plaintiff was ready and willing to perform his part of contract, but the defendant no.1 failed
to do so. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
The defendant no.1 filed written statement denying the assertions made in the plaint. The specific case of the defendant no.1 was that the suit land
originally belonged to his cousin Radhasyam Patnaik. Radhasyam was a friend of the plaintiff. Radhasyam sold the entire plot to one Bacha Das.
Again Radhasyam mortgaged the same to the Government fraudulently to secure loan. The land was put to auction by the Government for recovery
of the loan amount. He was the auction purchaser. Since the possession was not delivered, he instituted T.S. No.63/67 against Bacha Das.
Radhasyam was looking after the case. He had obtained a number of blank signed papers from him to utilize in the court in his absence, whenever the
same was necessary. After the suit was decreed, the plaintiff sold Ac.1.64 dec. of land to the sons of Radhasyam. Since the rest portion of the suit
land was not sold, Radhasyam bore a grudge against him. Neither he executed any agreement for sale in favour of the plaintiff, nor received any
amount. The document is a fraudulent one.
Defendant nos.2 and 3 filed a joint written statement stating inter alia that defendant no.3 is a bonafide purchaser of the suit land for value. The suit
land was delivered to him. He had no knowledge with regard to agreement entered into between plaintiff and defendant no.1.
On the inter se pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary, to substantiate their cases.
Learned trial court decreed the suit in part with the finding that Ext.1 is a genuine and valid document. Defendant no.3 had no knowledge about the
execution of Ext.1 for sale of land by the defendant no.1. Defendant no.3 is a bonafide purchaser. It directed the defendant no.1 to refund Rs.5000/-
to the plaintiff with simple interest at the rate of 12% per annum from the date of execution of Ext.1 (24.8.80) till realization of the entire decreetal
dues. The plaintiff appealed before the learned District Judge, Ganjam, which was subsequently transferred to the court of learned 1st Additional
District Judge, Ganjam, Berhampur and renumbered as T.A. No.27/88 (T.A. No.59/87 GDC). Learned lower appellate court held that writings in
Ext.1 raised suspicion. Writing had been started from the top of the paper leaving a little gap. At the beginning almost the first half of the writing
contains small letters and gradually the size of the letters had been increased. Ext.1 is not a genuine document. The same had been fabricated using a
blank paper containing the signature of defendant no.1. It further held that “there is nothing to disbelieve that defendant no.1 has not executed the
sale deed, Ext.B, in favour of defendant no.3.†But then, it came to a conclusion that “So Ext.B is a sale deed executed under which the entire
consideration money has not been paid. Under the peculiar facts of the case, I hold that it is a nominal sale deed.†Held so, it dismissed the appeal. It
is apt to mention here that during pendency of the second appeal, the appellantplaintiff and respondent no.1-defendant no.1 died. The legal heirs have
been substituted.
The second appeal was admitted on the following substantial questions of law.
“(i) Whether the appellate court is correct in reversing the findings of the trial court without assigning any reason ?
(ii) Whether the learned appellate court had put the onus properly ?â€
Heard Mr. Sanjat Das, learned counsel for the appellants. None appeared for the respondents.
Mr. Das, learned counsel for the appellants, submitted that defendant no.1, to press his legal necessity, entered into an agreement to sell the suit
land in favour of the plaintiff on 24.8.1980, Ext.1. The defendant no.1 received Rs.5000/- towards part consideration. It was agreed upon between the
parties that the sale deed will be executed within three months and balance consideration shall be paid at the time of registration of sale deed. The
plaintiff was ready and willing to perform his part of contract. But the defendant no.1 failed to do so. Defendant no.1 clandestinely executed a nominal
sale deed in favour of defendant no.3, Ext.B. He further submitted that the finding of the learned lower appellate court that Ext.1 is a fabricated
document is perverse.
Section 19 of the Specific Relief Act, which is relevant, is quoted hereunder:
“Section 19. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against â€
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good
faith and without notice of the original contract;
Section 19 of the Specific Relief Act was the subject matter of interpretation in the case of Simanchal Mahapatro and another vs. Budhiram Padhi
and another, AIR 1976 Ori.113. This Court held that the subsequent purchaser in order to successfully resist a suit for specific performance of a prior
contract of sale must establish that â€
(a) he is a bona fide purchaser for value,
(b) he had no notice of the prior contract, and
(c) before he had notice of the prior contract of sale, he paid the consideration money to the owner.
On a bare perusal of Ext.1, it is evident that the letters had been written symmetrically. The size of the letters is same. The finding of the learned
lower appellate court that the first four lines of Ext.1 were written in small letters and the remaining parts were written in big letters is perverse.
Though the learned lower appellate court came to a conclusion that “there is noting to disbelieve that defendant no.1 had not executed the sale
deed Ext.B in favour of the defendant no.3â€, it abruptly came to a conclusion that “Ext.B is a sale deed executed under which the entire
consideration money has not been paid. Under the peculiar facts of this case, I hold that it is a nominal sale deed.†The judgment suffers from
internal inconsistencies.
The conclusion is irresistible that Ext.1 is a genuine document under which the defendant no.1 had received an amount of Rs.5,000/- from the
plaintiff. But then, defendant no.1 alienated the property in favour of defendant no.3 by means of a registered sale deed dated 14.4.1981, Ext.B, for a
valid consideration and thereafter delivered possession. Learned trial court on a vivid analysis of record and document came to hold that defendant
no.3 had no knowledge with regard to agreement to sell between the plaintiff and defendant no.1. There is no perversity in the said findings. The
substantial questions of law are answered accordingly.
The next question arises for consideration as to whether the court can direct the defendant no.1 to refund the amount in the absence of any
prayer. The apex Court in the case of Firm Srinivas Ram Kumar vs. Mahabir Prasad, AIR (38) 1951 SC 177 held thus: The question, however, arises
whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the
court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or
had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written
statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the
plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be
regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the
defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a
separate suit.
In view of the authoritative pronouncement of the apex Court in the case of Firm Srinivas Ram Kumar (supra), learned trial court is perfectly
justified in directing the defendant no.1 to pay an amount of Rs.5000/-. But then, the interest as awarded appears to be too exorbitant. Instead of 12%,
the same should be 6%.
In view of the foregoing discussions, the judgment of the appellate court is set aside. The appeal is allowed. The suit is decreed to the above
extent. The parties shall bear the costs throughout.