1. Heard Sri R.C.Singh, learned counsel for appellant and Sri M.D.Mishra, Advocate, holding brief of Sri Ramanuj Yadav, learned counsel for respondent.
2. This is a defendant's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter eferred to as "C.P.C.") arising from judgment dated 18.12.1978 and decree dated 02.01.1979 passed by Sri Chandra Mohan, District Judge, Banda whereby it has allowed Civil Appeal No. 83 of 1978, and set aside judgment and decree dated 11.08.1978 passed by Sri Udai Chand Dixit, Civil Judge, Banda in Original Suit No.26 of 1977.
3. Trial Court had dismissed the suit but Lower Appellate Court (hereinafter referred to as "LAC") has allowed appeal, decreed the suit and issued direction to defendant-appellant-1 for specific performance of agreement to sell dated 19.7.1976 by executing a sale deed in favour of plaintiff-respondent.
4. The appeal was admitted on 4.4.1979, treating grounds 1 and 2 as substantial questions of law, and the same read as under :
"(i) Whether, in the instant case, there is no specific averment in the plaint that the plaintiff-respondent had been ready and willing to perform her part of contract so mere giving evidence on this point in absence of any such averment in the plaint will not satisfy the requirement of Section 16(2) of Specific Relief Act so mere giving evidence in this behalf does not satisfy the requirement of law?
(ii) Whether, compliance of requirement of Section 16(c) of the Specific Relief Act is mandatory for obtaining the decree of specific performance of contract."
5. Facts in brief giving rise to this appeal are as under:
6. Smt. Geeta Devi, wife of Balram i.e. Plaintiff-respondent (hereinafter referred to as "plaintiff") instituted Original Suit No.26 of 1977 in the Court of District Judge, Banda impleading Anshu, Son of Kallu and Natthu Ram, Son of Ram Sajivan as defendants 1 and 2 seeking a direction for specific performance of agreement to sell dated 19.7.1976 by executing sale deed in respect of land, detailed at the bottom of plaint, which reads as under:
7. Initially suit was filed by impleading only Anshu but subsequently by way of amendment, allowed by Trial Court vide order dated 05.10.1977, Anshu was numbered as Defendant-1 and Natthu Ram was impleaded as Defendant-2.
8. Plaint case set up was that land, forming part of Gata No.3, was in possession of Defendant-1 Anshu and he was Sirdar thereof in July, 1976. He was in dire need of money for purchasing cattle and other personal expenses, hence, entered into an agreement for sale of disputed land to Plaintiff for a consideration of Rs.6,000/-. In this regard an agreement for sale was executed on 19.7.1976, which was notorized before Chandra Shekhar Dwivedi, Notary, on 20.7.1976. Defendant-1 Anshu was required to deposit twenty times of revenue for acquiring bhumidhari rights and thereafter sale deed was agreed to be executed and for this reason, sale deed could not be executed immediately but only agreement for sale was executed. Later, Defendant Anshu acquired bhumidhari rights but despite request by Plaintiff, did not execute sale deed hence suit for specific performance.
9. Later on, plaint dated 20.7.1977 was amended pursuant to Court's order dated 05.10.1977 and paragraph 8-A was inserted which reads as under :
^^8 v- ;g fd izfroknh uEcj 1 vUlw us oknh ds gdwd o bdjkj ukek fnukad 19-7-76 dks toky igqWapkus dh fu;r ls fookfnr Hkwfe okdS pd uEcj 3 dks QthZ o lkft'kh rkSj ij orkjh[k 22-7-77 cgd izfroknh ua- 2 dj fn;k gSA il izfroknh ua- 2 Hkh cjQ+k gqTtr vk;Unk Qjhd cuk;k x;k gSA izfroknh ua- 2 dh laj{kd ekrk o firk dks c[kwch tkudkjh bdjkjukek utkbZ dh c;ukek ds igys ls FkhA** "8a. That defendant no. 1 Ansu, with an intent to frustrate rights of plaintiff accruing from agreement dated 19.07.1976, has by committing forgery and conspiracy transferred disputed land situated at Chak No. 3 to defendant no. 2 on 22.07.1977? Therefore, in order to avoid any dispute in future, Defendant no. 2 has also been made party. The guardians (parents) of defendant no. 2 were well aware of agreement in question prior to sale-deed?"
(English Translation by Court)
10. Defendant Anshu contested the suit by filing written statement dated 08.9.1977 wherein all averments contained in plaint were denied except contents of para 2. He denied to have executed any agreement to sell and said that if any document has been prepared by Plaintiff, it is a forged and fictitious document. He (Defendant Anshu) is an illiterate person and has never promised or agreed to sell disputed land to Plaintiff. He also stated that the two witnesses of document, relied by plaintiff, are her relatives and cunning and fraud persons. He also disputed financial capacity of plaintiff to give Rs.6,000/- for purchase of land in dispute stating that she is a young newly wedded lady and had no resources to earn or otherwise financial capacity to have such amount.
11. After impleadment, Defendant-2 Natthu Ram also filed written statement dated 06.03.1978 and therein also he took same stand as was taken by Defendant-1 Anshu.
Trial Court formulated following five issues :
^^1- D;k izfroknh ua0 1 us fookfnr Hkwfe ds cspus dk bdjkjukek ckfnuh ls fd;k gS] tSlk fd okni= esa dgk x;k gSA 2- D;k bdjkjukek futkbZ ds fy[kkus ds le; vkjkth uEcjku 72 o 84 o 81 izfroknh ua0 1 ds pd esa ugha FkkA 3- D;k izfroknh u0 2 [kjhnkj usd& fu;r o dher nsdj fcuk Kku bdjkjukek futkbZ ds gSA vxj gS rks bldk D;k vlj gSA 4- D;k nkok nQk 34 LiSflfQd fjyhQ ,DV ls ckf/kr gSA 5- D;k okfnuh bl okn esa fdlh izfrdkj ds ikus dh vf/kdkfj.kh gS] vxj gS rks fdl izfrdkj dhA** "1. Whether the defendant no. 1 has entered into an agreement with the lady plaintiff for selling the disputed land as alleged in the plaint?
2. Whether at the time of the agreement in question, plot nos. 72, 84 and 81 were not in the chak of defendant no. 1.
3. Whether the defendant no. 2, the buyer, though having bona fides and having paid the price, is without the knowledge of the contents of the agreement in question? If so, its effect?
4. Whether the claim is barred by Section 34 of the Specific Relief Act?
5. Whether the lady plaintiff is entitled to any compensation in this suit? If so, to what compensation?
(English Translation by Court)
12. Issues 1 and 2 were taken together. In support of plaint case and to prove agreement to sell, plaintiff examined Deed Writer Badku Ram as PW-2, and two attesting witnesses Ram Kishan PW-6 and Ahibaran as PW-7. She also examined Chandra Shekhar Dwivedi, Notary as PW-1, Hand-writing Expert D.Alexender as PW-4 and her father-in-law Jai Karan as PW-5. Hand-writing Expert's report is Paper no.32-C.
13. Trial Court, giving inasmuch as 11 reasons for doubting correctness of agreement to sell dated 19.7.1976, answered Issue-1 in 'negative' and Issue-2 in affirmative. Issue-3 was answered in affirmance and Issues-4 and 5 were answered in negative. Hence suit was dismissed vide judgment dated 11.08.1978.
14. Plaintiff, aggrieved by aforesaid judgment dated 11.8.1978 passed by Sri U.C.Dixit, Civil Judge, Banda, preferred Civil Appeal No.83 of 1978 in Court of District Judge Banda.
15. Learned LAC formulated two points for determination as under :
"i. Whether defendant 1 executed an agreement to sell in favour of plaintiff and obtained advance sale consideration of Rs.6,000 as alleged by plaintiff?
ii. Whether defendant 2 Nathu Ram was a bona fide purchaser for valuable consideration without knowledge of agreement to sell executed by defendant 1 in favour of plaintiff.
16. LAC answered first point for determination in favour of plaintiff and second point for determination against defendant 2 hence allowed appeal, set aside judgment of Trial Court and decreed the suit by directing plaintiff to execute sale deed by specific performance of agreement to sell dated 19.07.1976 vide judgment dated 18.12.1978.
17. When second appeal was pending before this Court, plaintiff sought amendment in plaint, which was allowed vide Court's order dated 09.7.1999 and para 7A was allowed to be inserted in the plaint, which reads as under :
^^7v- ;g fd ;|fi okfn;k us dqy jde [email protected]& :0 cjoDr bdjkjukek etdwj igys gh vnk dj nh gS] fQj Hkh okfn;k bdjkjukek futkbZ ds fo'ks"kr% vius fgLls ds vU; lHkh Hkkxksa ds vuqikyu esa lnSo rS;kj jgh gS vkSj vkt Hkh rS;kj gS rFkk dksbZ dk;Z fdlh izdkj dk mls djuk gS rks mlds vnk djus esa Hkh okfn;k lnSo igys ls rS;kj jgh gS vkSj vkt Hkh rS;kj gSA** "7a. That the lady plaintiff, at the time of the aforesaid agreement, has already paid the total amount of Rs. 6,000/- yet the lady plaintiff has always been ready and is still ready for meeting the terms and conditions as in the agreement in question, especially with respect to discharge of her part of all obligations, and she has always been ready and is still ready to perform any work which is to be completed by her." (English Translation by Court) (Emphasis added)
18. Defendants were permitted to file additional written statement. Thereafter this Court formulated an additional issue and directed Trial Court to record its finding on the said issue and remit to this Court. The additional issue reads as under :
"If the suit is hit by the provisions of Section 16(c) of the Specific Relief Act, 1963 or if plaintiff was ready and willing to perform her part of contract"
19. Pursuant to this Court's order dated 13.8.1999, Trial Court treated the aforesaid issue as Issue-6 and after giving opportunity to both the parties to adduce evidence, answered the same vide its judgment dated 30.10.1999 against plaintiff holding that relief was barred by Section 16(c) of Specific Relief Act, 1963 (hereinafter referred to as "Act, 1963").
20. Learned counsel for appellant informed the Court that Defendant-1 executed a registered sale deed in favour of Defendant-2 on 22.7.1977 in respect of land in dispute and in that view of the matter, plaint was amended by impleading Natthu as Defendant 2 in the suit.
21. In order to put the facts straight, I may also place on record that record that appeal was earlier decided by Hon'ble A.P.Singh,J. vide judgment dated 14.8.1996 and it was allowed. The judgment of LAC was set aside and Trial Court's judgment was restored. Court took the view that plaint did not conform requirement of Order VI, Rule 3 C.P.C., inasmuch as, statement needed to be pleaded as contained in Para 3 of Form- 47 to Appendix 'A' C.P.C. with regard to the fact that "plaintiff is still ready and willing to perform agreement on her part" was missing and it was mandatory, as held by Supreme Court in Onseph Verghese vs. Joseph and others (1969) 2 SCC 539 hence, it could not have been decreed. Subsequently, aforesaid judgment was recalled vide order dated 16.7.1997. Thereafter amendment application was filed by plaintiff seeking insertion of para 7-A in the plaint, which was allowed and subsequent events thereafter are already stated above.
22. Sri R.C.Singh, learned counsel appearing for appellant assailing judgment of LAC contended that:
i. Plaintiff never appeared in witness box and factum that she was ready and willing to perform her part of contract remained to be unsubstantiated as no evidence on record was brought by plaintiff by appearing in witness box to assert this fact.
ii. Evidence of her father-in-law cannot be treated to be a substituted evidence since facts were such, which could have been deposed by plaintiff herself and having failed to adduce her evidence, it can be said that there was no evidence to show that agreement to sell was actually executed or that plaintiff was ready and willing to perform her part of contract hence judgment of Trial Court is liable to be set aside.
iii. Subsequent assertion of fact regarding readiness and willingness, that too after 21 years after filing of suit in 1977 is an inherent serious flaw, cannot said to have been removed or rectified by subsequent amendment and LAC committed manifest error in decreeing the suit without looking into this aspect that no relief, in view of section 16(c) of Act, 1963 could have been granted. Even amendment in plaint would not make good aforesaid fatal deficiency.
iv. Lastly, defendant 2 was oblivious of agreement to sale when sale deed was executed on 22.2.1977. He was a bona fide purchaser for value hence relief of specific performance could not have been granted.
23. Sri R.C.Singh, Advocate, in support of above submission, relied on Supreme Court's judgment in Madhusudan Das vs. Smt. Narayani Bai and others AIR 1983 SC 114; Man Kaur (Dead) by Lrs. vs. Hartar Singh Sangha (2010) 10 SCC 512; Vidhyadhar vs. Mankikrao and another, AIR 1999 SC 1441; Pukhraj D. Jain and others vs. G. Gopalakrishna, AIR 2004 SC 3504; Vijay Kumar and others vs. Om Prakash, AIR 2018 SC 5098; P.Meenakshisundaram vs. P.Vijayakumar and another 2018(5) SCALE 229; Kamal Kumar vs. Premlata Joshi and others (2019) 3 SCC 704; A.C. Arulappan vs. Smt. Ahalya Naik, AIR 2001 SC 2783; and Thomson Press (India) Ltd. vs. Nanak Builders and Investors P. Ltd. and others, AIR 2013 SC 2389.
24. Sri M.D.Mishra, learned counsel appearing for respondents contended that amendment was already allowed and thereafter finding has been recorded and therefore flaw of deficiency with regard to readiness and willingness stood removed. Once an amendment is allowed, it relates back to the date of filing of suit and therefore, defendants cannot claim any benefit on the ground that plaint when initially filed had no pleading that plaintiff was ready and willing to execute sale deed and that objection is now impermissible to be taken. He also said that entire amount was already paid to Defendant-1 and nothing was to be done on the part of Plaintiff; Suggestion that plaintiff was not ready to perform her part of contract is a superfluous and imaginary argument, inasmuch as, plaintiff was not supposed to do anything since she has already paid entire consideration to Defendant-1 and thereafter defendant had to come forward for execution of sale deed, which he failed and therefore, suit for specific performance was filed. In the facts of this case, Defendant 1 cannot take any advantage since nothing was required to be done by plaintiff. The argument of appellant is superfluous and bereft of any substance.
25. I have given serious thoughts to the rival submissions as also the facts, stated above.
26. Suit for specific performance was filed for execution of sale deed by enforcing agreement to sell dated 19.7.1976. On that day, admittedly defendant 1 Anshu (Now deceased and substituted by Legal representative) held the land in dispute as Sirdar. He attained status of bhumidhar with transferable rights in view of amendment in Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "Act, 1950") vide U.P. Act No.8 of 1977, which came into force on 28.1.1977. The plaint, initially filed by plaintiff, admittedly did not contain any averment that plaintiff was still ready and willing to perform her part of contract, as required under Order VI, Rule 3 read with Para 3 of Form- 47 to Appendix 'A' C.P.C. Trial Court answered Issue-1 that agreement to sell itself was not proved to have been executed by Defendant-1 and, therefore, non suited plaintiff. LAC reversed aforesaid finding while deciding first point for determination, which resulted in reversal of Trial Court's judgment.
27. When the matter came to this Court, it was found that in absence of any pleading in a suit for specific performance, as required in Order VI Rule 3 C.P.C. read with Para 3 of Form- 47 to Appendix 'A' C.P.C., that Plaintiff was still ready and willing to perform her part of contract, suit for specific performance could not have succeeded and barred by Section 16(c) of Act, 1963. Hence an amendment application was moved by plaintiff, which was allowed and thereafter Issue-6 was framed and sent for adjudication to Trial Court. Thereon, Trial Court has recorded its finding against plaintiff vide judgment dated 30.10.1999.
28. The aforesaid finding in respect of Issue 6 has not been examined by LAC since it had no occasion to examine the same and if findings of Trial Court on Issue-6 continued, suit for specific performance could not have been decreed and LAC's judgment would be unsustainable.
29. In my view, since Trial Court has returned its finding on Issue 6 against plaintiff-respondent, which renders LAC's judgment unsustainable unless findings of Trial Court on Issue 6 is reversed by LAC, without expressing any final opinion on the issue, at this stage, I find it expedient to set-aside judgment of LAC insofar as it has allowed appeal and direct it to proceed to consider plaintiff's appeal in order to decide the same on the findings recorded by Trial Court on Issue-6 and thereafter decide the appeal in light of findings given on Issue-6 by it.
30. The two substantial questions of law, on which appeal was admitted, in view of subsequent events, i.e. amendment of plaint, formulation of additional issue by this Court and its adjudication by Trial Court, virtually, had become redundant at this stage. Now it is a question of correctness of findings recorded by Trial Court on Issue-6 which, in my view, need be examined first by LAC and not by this Court straightaway.
31. In the light of of above, appeal is partly allowed. Judgment of LAC to the extent it has allowed appeal on the basis of findings recorded on two points for determination only is set aside. LAC now shall formulate another point for determination in the light of findings of Trial Court on Issue no.6 and thereafter decide appeal accordingly.
32. Since this is an old matter, LAC would make all endeavour to decide appeal expeditiously and, in any case, within three months from the date of production of a certified copy of this order before it.
33. Record of LAC shall be remitted forthwith.
Order Date :-29.8.2019 KA