1. Heard learned counsel for the appellant on the point of admission of second appeal and perused the records.
2. In original suit no. 45/2007 (Gajraj v. Jai Shankar), the plaint case in brief was that defendant is owner of a portion a land of (1-1-5) of plot no. 898 situated in village Jorai. This plot has been partitioned and defendant has agreed to sale whole of share of this plot no. 898 to plaintiff for a consideration of Rs. 1,50,000/- and executed the registered agreement to sell dated 27.02.2005 in that regard, and paid Rs. 1,00,000/- as advance consideration. After that plaintiff has been ready and willing to perform his part of contract and was ready and willing to purchase the said land, but in spite of his reminders the defendant had been delayed in execution of sale-deed. Then plaintiff had given the defendant a registered notice dated 17.01.2007 which was received by defendant, but he answered the same mentioning incorrect facts in his reply in which he had stated that he had taken Rs. 1,00,000/- as loan on interest at the rate of 12 per cent per annum and had executed deed of loan. Since the defendant had refused to execute the sale-deed of disputed property, therefore the plaintiff had filed suit for specific performance of his contract dated 17.2.2005.
3. The defendant had filed written-statement by which he denied the plaint averments and further pleaded that disputed property was not partitioned between its co-sharers. The agreement to sell was not executed as mentioned in plaint. The plaintiffs used to cultivate the defendant's agricultural land on Batai for several years. The defendant had needed of Rs. 1,00,000/- for purchasing tractor, so he requested for loan from plaintiff. The plaintiff had persuaded him to execute the deed of loan, but he had fraudulently got executed the registered deed of agreement to sell. The defendant had never consented to sell his land. He is ready to return Rs. 1,00,000/- to plaintiff with interest. The plaintiff's suit is liable to be dismissed.
4. After receiving evidences and affording opportunity of hearing to the parties, the Additional Civil Judge (S.D.), Gyanpur, Bhadohi had decreed the original suit for relief of specific performance of contract by its judgment dated 6.8.2013. Then Civil Appeal no. 61/2013 (Jai Shankar v. Gajraj) had been preferred against the judgment trial court which was heard and dismissed by the judgment dated 3.9.2015 by Additional District Judge, Bhadohi, Gyanpur. Aggrieved by this judgment of trial court as well as the first appellate court, this second appeal has been preferred by defendant of original suit.
5. Learned counsel for the appellant contended that agreement to sell in question was executed on 17.2.2005 and registered notice for specific performance was given by plaintiff to defendant on 17.01.2007, but it is not written in plaint that what the plaintiff was doing in such a long period. He argued that if plaintiff was in fact willing to perform his part of contract dated 17.2.2005, then he would not have waited for such a long time which shows his lack of readiness and willingness to perform his part of contract. He also contended that plaintiff had not given any explanation in his evidence as to what was he waiting for during such long period after execution of registered agreement to sell dated 17.2.2005 and before institution of suit. His main argument was that although suit was filed within period of limitation, but it is not proved that plaintiff was always ready and willing to perform his part of contract. In such circumstances only relief of return of advance consideration should have been passed instead of decree of specific performance. In this regard, learned counsel for the appellant relied on certain judgments of Apex Court which are being discussed hereinafter.
6. The appellant side had relied a case of I.S. Sikandar (Dead) By LRS. Vs. K. Subramani and others (2013) 15 SCC 27, in which Apex Court had held that the Court must take into consideration the conduct of plaintiff subsequent toagreement and prior to filing of suit, and it should be confirmed that plaintiff must be ready and willing to carry out his part of agreement at all material times. The Apex Court had also held that attending circumstances regarding readiness and willingness to carry out such contract must be considered. In this Ruling, Apex Court had found that nothing was there on record to show that plaintiff could have made arrangement for taking a compliance on consideration, so in such case, his readiness and willingness cannot be accepted. In J.P. Builders and another Vs. A. Ramadas Rao and another (2011) 1 SCC 429, the Apex Court had also held that attending circumstances regarding readiness and willingness to perform his part of contract of plaintiff alongiwth his conduct prior and subsequent to agreement in question must be considered for determining his readiness and willingness. In this judgment Apex Court had also held that financial capacity of plaintiff to perform such part of contract should also be considered for determining his readiness and willingness. These rulings relied by learned counsel for the appellant are acceptable and this court is in agreement with these verdict.
7. It is settled legal possession that after execution of registered agreement to sell, if a suit is filed for specific performance of such agreement, then Court must ensure that plaintiff had been ready and willing to carry out his part of agreement at all relevant times. His conduct subsequent to execution of agreement and prior to filing of suit alongwith attending circumstances, and also the financial capacity of payment for purpose of his part of agreement must be considered by the Court for determining his readiness and willingness. These are certain facts which has to be kept in mind and a Court for deciding the suit on specific performance of contract of sale. But, as has been held in J.P. Builders case (Supra), the question as to whether onus of these facts was discharged by plaintiff or not, depends on the facts and circumstances of each case.
8. In present case, financial capacity of defendant/respondent was questioned by learned counsel for the appellant. But it is apparent from the records, as has been admitted by defendant/appellant himself, that when defendant was in need of Rs. 1,00,000/-, it was immediately given by respondent/plaintiff to him. This explains the financial capacity of plaintiff/respondent to pay the money and also his eagerness for the purchase of disputed property, for which registered agreement to sell was got executed. So far as the time of about 2 years after execution of registered contract in question is concerned, admittedly it was within terms of contract. According to terms of contract the proposed sale-deed in question was to be executed in two years and according to defendant/appellant himself, the plaintiff was in possession of disputed property. Therefore, there was no need on his part to show the unnecessary haste for purchase of property which might have created bitterness in the relationship of parties. The persons who had given 2/3rd share of the amount of consideration immediately on demand immediately may not be treated as he is financially weak and unable to make arrangement remaining consideration of Rs. 50,000/- only. Even the defendant/appellant had pleaded in written-statement and given evidences which shows that plaintiff was a man of means who had the money lending business. This fact of money lending is not proved but plaintiff's capacity to pay the remaining amount was neither challenged in written statement nor before the lower courts during evidence. In this regard, there has been concurrent finding of fact of the two courts below regarding readiness and willingness of plaintiff/respondent to perform his part of contract after execution of registered agreement to sell till filing of the original suit. Both the courts below had given finding to the effect that defendant /appellant had consented to sell his land in question and plaintiff had been ready and willing to perform his part of contract. Both the courts below had given finding that against the pleading of defendant/appellant and in favour of plaintiff/respondent.
9. The dispute between the parties in this case was as to whether registered agreement to sell dated 17.2.2005 was executed between the parties as pleaded in plaint and whether the plaintiff had been ready and willing to perform his part of said agreement. These are question of fact and not of law. Such questions of fact can be decided on the basis of evidence as has been done by the lower courts. The findings given by lower courts are apparently correct and acceptable and there appears no infirmity or perversity in it.
10. On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law was involved in the case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant- plaintiffs can be sustained.
11. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.
Order Date :- 4.2.2016 Sanjeev