This second appeal has been preferred against the judgment and decree dated 12.10.2009 passed by the Addl. District Judge, Court No.9, Bulandshahr affirming the judgment rendered by the trial court, i.e., Addl. Civil Judge, Court No.2, Bulandshahr in original suit no.26 of 2006 decided on 13.5.2008. The plaintiff respondent Bhikhari Lal filed a suit No.26 of 2006- Bhikhari Lal Vs. Bulaki Ram (since deceased) for specific performance of contract with a prayer seeking direction to defendant (appellant herein) to execute a saledeed in favour of the plaintiff. He has sought suitable direction for implementation of the terms and conditions spelt out in the agreement to sale registered on 12.12.2001. In the present case the plaintiff has set out a case before the trial court that an agreement to sale was executed by the defendant on 12.12.2001 which was duly registered by the Sub Registrar, Sikandarabad and necessary entries were made in the register. The defendant had agreed to sell the half portion of the agricultural land of Gata Nos.2051, 2055,2056 and 2060 covering an area of 2 Bighas 16 Biswas for a consideration of Rs. 2 lakh. Out of total amount of sale consideration, Rs.20,000/- was paid as earnest money by the plaintiff before the Sub Registrar. The plaintiff had agreed to pay the remaining amount at the time of the execution of the saledeed. One year's period, that is, upto 12.12.2002 was stipulated in the agreement dated 12.12.2001 for execution of the sale deed. When after the stipulated period, the defendant did not execute the sale deed, litigation was initiated against him. It was displayed before the trial court vide para 8 of the plaint that the plaintiff purchaser had always remained ready to discharge his burden by making total payment of remaining amount and was prepared to get the sale deed executed in his favour.
The appellant respondent Bulaki Ram contested the suit. Detailed written statement was filed rebutting the submissions made in the plaint. According to the defendant no agreement to sell the above land was executed in favour of the plaintiff defendant. The appellant was not prepared to sell his land for the above 2 said consideration of Rs.2/- lakh. It was pleaded that the son of the defendant was a heart patient and it was pleaded that for the purpose of treatment, he took loan of Rs.25,000/-. He was ready to repay Rs.25000/- at the interest of Rs.2.5% and the deed was executed for the purpose of security of money parted by the plaintiff respondent. According to defendant Bulaki Ram what was done on 12.12.2001 in the office of Sub Registrar was registration of a deed for the security of money, i.e.,Reen Guarantee Dastavez as described in the written statement and not agreement to sell the property. The defendant repaid Rs.35,000/- to the plaintiff and a receipt was executed by the plaintiff putting his signatures. The plaintiff did not return the same to the plaintiff despite payment of the aforesaid amount. The land became much valuable later on.
The trial court while adjudicating the dispute had framed 7 issues covering the dispute. However, an application seeking amendment of the plaint for framing a new issue was submitted which was not considered.
The trial court has rendered a judgment and decreed the suit of the plaintiff with the direction to the defendant to execute the saledeed in furtherance of the agreement to sell in persuance of the agreement dated 12.12.2001 after paying the remaining amount of Rs.1,80,000/- within three months. The appeal was preferred which was also dismissed affirming the findings of the trial court.
Learned counsel for the appellant reiterated the same grounds which was raised before the trial court. He has submitted that the compliance of section 16(c) of Specific Relief Act was mandatory for specific performance of the contract. In the present case, the plaintiff did not show any willingness or was prepared to pay the remaining amount for the purpose of executing the saledeed. Since compliance of section 16(c) was not done in the present case, the agreement was not enforceable. In support of his submission he has placed reliance on the cases of Ramawati Devi Vs. Idris Ahmad(dead) 2007(4)CCC 448(Ala), N.P.Thirugnanam Vs. Dr. R.Jagan Mohan Rao & others AIR 1996 SC 116, S.Abdul Khader Vs. Abdul Wajid 2008(4) CCC 33 (SC), Bal Krishna & Anr. Vs. Bhagwan Das(dead) & others 2008 (2)CCC 144(SC) and Most. Etwari Devi & others Vs. Most. Parvati Devi 2006SCCR
248. 3 I have heard learned counsel for the parties and perused the record. Both the courts have recorded concurrent findings of fact on the basis of oral and documentary evidence including the testimony of Bulaki Ram that on 12.12.2001 at 2 p.m. he went to the office of Sub Registrar, Sikandarabad. The agreement to sell dated 12.12.2001 ( document 9a) was executed . It was duly registered in the office of Sub Registrar, Sikandarabad. The appellant Bulaki Ram now represented by legal representatives had admitted before the trial court that the document dated 12.12.2001 was executed in his presence. He has signed the document. However in defence he has stated that it was a document which can be defined as security agreement ( Reen Guarantee Dastavez) and not agreement to sell the property. The court had taken note of the registered document (9a) which was duly signed by the defendant and the plaintiff. The writer and author of the document was examined and put for cross examination of the defendant. Both the courts below had written finding that the document was written and executed in presence of Bulaki Ram. Naturally when this exercise was conducted on 12.12.2001, he had knowledge of the contents and purpose for which he all the way went to the office of Sub Registrar to receive a sum of Rs.20,000/- as earnest money. One year period was allowed to the vendee to execute the saledeed. An independent witness P.W.2 Hem Chand's testimony was also appreciated. He has also verified the above facts. The court has drawn inference that the document was a legal and valid document as per section 114 of Indian Evidence Act. As far as repayment of Rs.35000/- is concerned, the court has dealt with this issue and has found that this was a fabricated and forged document. It was not a case where security of repayment of loan was executed rather it was an agreement to sell the property and such document was executed on 12.12.2001. As far as compliance of section 16(c) is concerned, the courts below have recorded a concurrent finding of fact that a specific plea in para 6 was taken that he was always prepared to pay the entire amount and was willing to get the sale deed executed and for this purpose he went to the office of Sub Registrar and defendant did not turn up to execute the same as agreed. In the facts and circumstances of the case both the courts , that is, trial court and the appellate court have drawn inference that the plaintiff respondent was prepared to comply with the terms and conditions spelt out in the agreement to sell and was ready to discharge the burden and to execute the sale deed.
In view of above, both the courts have recorded concurrent findings of fact . No substantial question of law has been made. No ingredients or elements as required to be attracted under section 100 of the Code of Civil Procedure are available in this case. This Court has also scrutinised this case in the light of the law laid down by the Hon'ble Apex Court in the judgments reported in AIR 2008 SC 1749- Kashmir Singh Vs. Harnam Singh and another, AIR 1999 SC 2213- Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others and (1995) 6 SCC 213- Kashibai w/o Lachiram and another Vs. Parwatibai w/o Lachiram and others and does not find any ingredients as required under Section 100 of the Code of Civil Procedure attracted in the present case. In view of the above, no substantial question of law arises to be considered. The appeal is accordingly dismissed. VPC/11.1.2010