Heard Sri Anil Kumar Aditya, learned counsel for the appellants and Sri Manish Chandra Tiwari, holding brief of Sri A.T. Kulsreshtha, learned counsel for the respondents as well as perused the materials on record, including the judgments of the courts below.
This Second Appeal has been preferred against the judgment and decree dated 21.11.2009, passed by the Additional District Judge, Court No.12, Aligarh, in Civil Appeal No.130 of 2004, Bhagwant Singh Vs. Holdil Singh, allowing the Appeal preferred by respondent no.1 by which the judgment and decree dated 22.5.2004, passed by the Trial court has been set aside.
It emerges from the record that an agreement to sell (a lease deed as alleged by the appellant) was executed by one Hodil Singh, now represented through his legal heirs and legal representatives, on 27.4.1994 for selling of his Bhumidhari agricultural land measuring 8 Bigha 13 Biswa and 15 Biswansi, situate in Village Bajrangpur, Majra Vijay Garh, Pargana Akrabad, Tehsil Sikandra Rao, now Tehsil Koil, District Aligarh. The said deed was duly registered in the office of the Sub Registrar Sikandra Rao, District 2 Aligarh. Lateron, two Suits were filed in the Civil Court, that is, one being Suit No. 375 of 1995, preferred by Hodil Singh against Bhagwant Singh, seeking a relief that the said agreement to sell, registered on 27.4.1994, be declared null and void. He had challenged this deed on various grounds as mentioned in the plaint. According to him, a document which was registered on 27.4.1994, was, in fact, a lease deed for cultivating the land in dispute. Neither adequate consideration or price of the land was given to him nor he ever intended to transfer his agricultural land. Another Suit, that is, Suit No. 855 of 1998, Bhagwant Singh Vs. Hodil Singh was filed by Bhagwant Singh, now represented through his legal heirs and legal representatives, against Holdil Singh seeking specific performance of the contract entered into between the parties.
It was pleaded by Bhagwant Singh that the said agreed to sell was executed by Hodil Singh agreeing to sell the aforesaid land for a total sum of Rs.1,55,000/= for which a written agreement/contract was prepared, executed and registered on 27.4.1994 in the office of the Sub Registrar. A sum of Rs.30,000/- was paid as an advance amount to Hodil Singh. According to him Rs.26,000/- was paid before to Hodil Singh before registration of the agreement to sell and Rs.4,000/- was paid at the time of registration of the agreement to sell in the office of the Sub Registrar. These events were noted in the agreement to sell. The parties were agreed that the sale deed would be executed by 27.10.1995. In the meantime, vendee, that is, Bhagwant Singh, was required to make arrangements of the remaining amount to be paid to vendor at the time of execution of the sale deed.
In furtherance of the agreement to sell, Bhagwant Singh, sent a written notice to Hodil Singh, vendor, on 3.7.1995 for execution of 3 the sale deed, indicating therein that he had arranged the money, but Hodil Singh did not turn up to execute the sale deed. Thereafter, notices were sent on 25.10.1995 and 27.10.1995 by Bhagwant Singh for execution of the sale deed in the office of the Sub Registrar. It was pleaded by Bhagwant Singh in the plaint of Suit No. 855 of 1998 that through notices he had indicated to Hodil Singh that he was will to pay the remaining balance amount towards sale consideration and was ready to get the sale deed executed to discharge his part of contract. On refusal of Hodil Singh, he was compelled to file Suit No. 855 of 1998, which was ultimately decided by the judgment and decree dated 22.5.2004.
The Trial court had decided these two Suits by one and common judgment. It had dismissed the Suit preferred by Hodil Singh, declining to hold that the document/deed, which was registered on 27.4.1994 was a lease deed. It was held by the Trial court that Hodil Singh had executed an agreement to sell in favour of Bhagwant Singh, which was registered on 27.4.1994. Following findings and conclusions have been recorded by the Trial court in its judgment:-
"......उक तथयो से सपष है िि यिि होडल िसंह दारा पटा ििषपािित ििया गया तो ििििित रप से समपिि िा िबजा भी भगवंत िसंह िो िे ििया होता और यिि िबजा िही ििया गया तो वािी होडल िसंह यह सपष िरता िि ििि पिरिसिितयो मे पटा ििषपािित िरिे िे बाि भी उसिे दारा भगवंत िसंह िा समपिि पर िबजा िही ििया गया िा। उपरोक पिरििाा से सपष है िि वािी होडल िसंह दारा िसतावेज िो इिरारिामा समझते हु ए ही ििषपािित ििया गया िा।"
Ultimately, the Trial court had dismissed Suit NO. 375 of 1995, filed by Hodil Singh and the Suit filed by Bhagwant Singh was partly 4 decreed, directing the vendor to return Rs.4,000/- receiving by him as advance money. This decree was challenged by Bhagwant Singh by filing a First Appeal, which was registered as Civil Appeal No. 130 of 2004. The lower Appellate court has allowed he appeal preferred by Bhagwant Singh, represented by his legal heirs and legal representatives. The judgment and decree passed by the Trial court, while deciding, Suit no. 855 of 1998, preferred by Bhagwant Singh was set aside. The lower Appellate court has held that Hodil Singh could receive the balance amount of sale consideration of Rs.1,25,000/- and execute sale deed in favour of legal representatives of Bhagwant Singh. This judgment is under challenge in this Second Appeal.
Sri Anil Kumar Aditya, learned counsel for the appellants, has assailed this judgment on various grounds. According to him, the document registered on 27.4.1994 was merely a lease deed. It was not an agreement to sell. The total advance amount of Rs.30,000/= as alleged was not paid to Hodil Singh. The Trial court has rightly held that he was only paid Rs. 4,000/- at the time of registration of agreement to sell. Much stress has been laid that there was no willingness or readiness shown by Bhagwant Singh in arranging the money and getting the sale deed executed within time. Hodil Singh was not paid the entire agreed amount within time. Suit N. 855 of 1998 was preferred beyond time of three years of the deed of execution of agreement to sell. This shows that Bhagwant Singh never intended to get the sale deed executed within the stipulated period of time and he was only taking advantage of the situation. In support of his submissions, he has placed reliance on the judgments reported in 2009(2) AWC 1546, Azhar Sultana Vs. B. Rajamani and others, AIR 2003 SC 1391, Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and othrs, AIR 2004 SC 3504, 5 Pukhraj D. Jain and others v. G. Gopalakrishna and 2008 (105) RD 739, Shambhu Prasad Vs. Smt. Shamim Jahan to strengthen his submissions as put-forth in the grounds of appeal and during arguments. He led the Court to chronology of events and facts to show that the element willingness and readiness was absent in the present case. The delay in approaching the court itself reflects on the conduct of the respondent. He has further submitted that there were two Suits, that is, Suit No. 375 of 1995 and Suit No. 855 of 1998 and it can be said that there were two judgments deciding two Suits. Therefore, Bhagwant Singh should have filed two Appeals which has not been done in the present case. Principles of Res Judicata have also not been followed in the present case. In this regard, he has placed reliance on the judgments reported in AIR 2009 SC 1819, Harbans Singh and others Vs. Sant HariSingh and others and 2009(4) AWC 3613, Hradeshwar Nath v. Nandlal and another. In addition, the other grounds were also highlighted in the memo of Appeal.
On the other hand, Sri Manish Chandra Tiwari, learned counsel for the respondents, has opposed the motion. According to him, Bhagwant Singh, had one and half years' time to get the sale deed executed. It was stipulated in the agreement to sell itself that the sale deed could be executed by 27.10.1995. He had arranged the money and indicated his intention, willingness and readiness by sending notice firstly on 3.7.1995 and thereafter on 25.10.1995 and 27.10.1995 requiring Hodil Singh to come in the office of the Sub Registrar and execute the sale deed. There is also a reference of a Panchyat being held in the Village which could not yield any result. In these compelling circumstances, Bhagwant Singh was left no option but to file Suit No. 855 of 1998 for specific performance of the contract. Sri Tiwari has supported the judgment rendered by 6 the lower Appellate court and drawn attention of the Court on various findings recorded by the Appellate court and the conclusions drawn.
Having heard learned counsel for the parties and carefully gone through the materials available on record as well as the judgments of the courts below.
In the present case, the Trial court has already dismissed the Suit No. 375 of 1995, filed by the appellant, Hodil Singh, the vendor, against Bhagwant Singh, the vendee. It has categorically recording findings and concluded that there existed an agreement to sell not a lease deed. The findings recorded by the Trial court, as mentioned in the foregoing paragraphs, have remained unchallenged and uncontested. These findings and conclusions certainly operate against the appellants. Even this Court itself has perused the findings recorded by the Trial court and the lower Appellate court. Here is a case where the Trial court itself had held that Hodil Singh was conversant with the procedure for execution of the deeds. It was not the case that he was an illiterate person or insane person having no knowledge of execution of deeds. This fact finds support from the fact that in the agreement to sell photographs of both the parties, that is, vendor, Hodil Singh and Bhagwant Singh were affixed, which were duly identified by the witnesses, terms and conditions were stipulated in writing and it was also signed by the vendee, Hodil Singh and as such it cannot be said that Hodil Singh was not aware of the contents of the agreement to sell or unware of the execution of the agreement to sell or that it was a lease deed. He was paid Rs.26,000/- before registration of the agreement to sell and Rs.4,000/- was paid to him at the time of registration of the agreement to sell in the office of 7 the Sub Registrar. Thus, by no stretch of imagination it can be presumed that he was not aware that he had executed an agreement to sell. Therefore, there is no reason to form a different opinion during the course of hearing of Second Appeal on admission to take another view in the matter. There is no allegation against the Sub Registrar or the Deed Writer that incorrect facts were mentioned in the agreement to sell. The Trial court has already held agreement to sell to be a valid and legal document and this Court while examining the matter in the Second Appal is in full agreement with this finding recorded by the Trial court and the lower Appellate court as this is a concurrent finding of fact.
As far as the intention to perform the part of the contract by Bhagwant Singh is concerned, in the present set of circumstances, this Court has taken note of the fact that the respondent-Bhagwant Singh had filed 12 documents, which were placed as Paper 7-Ga. These 12 documents included the registered notice sent by Bhagwant Singh, requiring Hodil Singh to come to the office of the Sub Registrar for execution of the sale deed and the receipts issued by the Sub Registrar that the vendee, Bhagwant Singh, had appeared before the Sub Registrar. Thus, on the basis of documentary and oral evidence produced by the vendee, Bhagwant Singh, the lower Appellate court has formed the opinion that there was every intention, willingness and readiness available on the part of Bhagwant Singh to show that he was always prepared to get the sale deed executed. The notices were sent by Bhagwant Singh to Hodil Singh within the stipulated period on 3.7.1995, 25.10.1995 and 27.10.1995 for getting the sale deed executed. There was specific mention in the plaint also that such intention, willingness and readiness were existed at the time of filing of the Suit.
It is noteworthy that the appellant had failed to demolish these 12 documents and testimony of the witnesses. No document to the contrary was produced by Hodil Singh before the courts below. The lower Appellate court, in the light of these documents and oral testimony of witnesses has rightly recorded its opinion that these evidences remained uncontroverted and unchallenged. While deciding the Suits, the Trial court has ignored all these documents. It is relevant to mention here that the lower Appellate court has followed the law laid down in the judgments reported in AIR 1997 SC 463, AIR 2006 SC 2172, Sugani v. Rameshwar Daw and others and AIR 2009 SC 2408, Moti Lal Jain v. Ramdasi and others while recording its findings and conclusions. Even this Court, from the factual matrix of the case, is of the opinion that the vendor, Bhagwant Singh, had proved his case before the courts below that he was always willing and ready to get the sale deed executing after the remaining balance sale consideration. His willingness and readiness finds support from the notices sent by him on 3.7.1995, 25.10.1995 and 27.10.1995 and from other documentary evidence.
As far as application of principles of Res Judicate and other arguments of Sri Anil Kumar Aditya, learned counsel for the appellants, are concerned, both the Suits, that is, Suit Nos. 375 of 1995 and 855 of 1998 were clubbed together by the Trial court and both were decided by one common judgment and decree dated 22.5.2004, after hearing learned counsel for the parties and with their consent as the very genesis and the subject matter of both the Suits were same. By the said judgment and decree, Suit No. 375 of 1995, filed by the vendee, Hodil Singh against the vendor, Bhagwant Singh, was dismissed and Suit No.855 of 1998, filed by the vendor, Bhagwant Singh, was partly decreed. The Trial court, while deciding the Suits, framed separate issues which were dealt 9 with, findings and conclusions were recorded and evidence adduced were appreciated. Both the parties agreed for clubbing of the Suits, thus, one and common judgment was rendered as the issues and subject matter of both the Suits were common and same. Thus, rightly a single Appeal was preferred by Bhagwant Singh, which was rightly dealt with by the lower Appellate court. It appears that no serious objection was raised either before the Trial court or before the lower Appellate court and, therefore, at the Second Appellate stage it is not permissible to raise this issue. Since there was a common judgment, the lower Appellate court did not add anything new, while dealing with the appeal and decided the issues and concluded the controversy.
While dealing with Second Appeals, this Court is regularly noticing that the parties entering into agreement to sell or contract or sale deeds are approaching the Court taking the dishonest pleas that either they have not executed agreement to sell or contract or they do not have knowledge about the contents or terms and conditions of the agreement to sell or the contract entered into just in order to escape to perform their part of contract and to frustrate performance of the contract thereby showing extreme dishonesty and cheating to the sanctity of the agreement or contract or sale deeds, which, in fact they have entered into and received money in part performance thereof. In the process of execution of agreements, contract or sale deed how it could be possible that the persons executing these documents/deeds was unaware of the contents or terms and conditions of the documents/deeds on which he put his signature or thumb impression, as the case may be. In most of the cases of challenging the documents/deeds, it is the dishonesty of the person, who has executed the agreement to sell, contract or sale deed as well as it is high degree of cheating and 10 fraud with the other party. In the present days, if it is permitted it will create a chaos in the Banking, finance and other economic affairs, which may result irreparable damage to the economy as well. In the execution of the agreements, contracts or sale deeds, it is the faith and confidence of the parties which plays the important role. If this faith and confidence in execution of agreements, contracts and sale deeds is permitted to be shaken, it will convey very bad indication for the economy and the promises reduced by way of these documents. Thus, the sanctity of agreement must be respected and preserved.
Now a days, it has become a regular tendency that first enter into an agreement or a contract in respect of immoveable property or some other contractual affairs or business with an ulterior motive and thereafter resile from the promise made through the agreement or contract by entering into litigation. It is a new device invented just in order to get the execution of terms and conditions contained in an agreement or contract frustrated. The person, who has paid the money or consideration on execution of an agreement or contract feels cheated after getting involved in an unexpected and unsavoury situation of unwanted litigation so initiated by a dishonest person. Thus, the primary duty of a Court of law is to enforce a promise, which the parties have made and to uphold the sanctity of a contract or an agreement entered into between the parties, which form the basis of a society, though there may be exception. The Courts must exercise extreme restraint in holding a contract or an agreement to be void as it would encourage dishonesty and cheating.
My this view finds support from the judgment reported in AIR 1959 SC 781, Gherulal Parakh v. Mahadeodas Maiya.
In view of the discussions made above, no substantial question arises to be considered in the present Second Appeal. Accordingly, the Second Appeal is dismissed. The judgment and decree of the Lower Appellate court is affirmed.
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