Heard the learned counsel Sri Pramod K. Sinha for the appellants and Sri K. Ajit and Sri Ram Autar Verma appearing for the respondents.
This is a defendants' second appeal who claim themselves to be the subsequent purchaser of the property. They have filed this appeal. The plaintiffs filed a suit for specific performance of contract on the basis of registered agreement dated 18.2.1986 for Plot No.1876 measuring about 2 acres 12 decimals and plot no.1876 A and 3 decimal measuring about 2.95 acres for which the defendant no.1 was the owner having full right to sell the said land. A registered agreement was executed on 18.2.1986 for total amount of Rs.68,679/- and at the time of agreement Rs.20,000/- were paid and rest of the amount was agreed to be paid at the time of execution of the sale-deed. There was a clause in the agreement at no.2 that a sale-deed has to be executed within a period of one year. The plaintiffs set out a case in the plaint that in spite of the aforesaid clause, the sale-deed was not executed by the defendants within the period mentioned in the agreement in spite of the notice. Then a suit for specific performance was filed being Suit No.62 of 1987 within the period. It appears that during pendency of the suit the property which was subject matter of the suit, was sold by registered sale-deed in favour of respondents no.3 to 6. The trial court has framed about 17 issues and one of the main issues for consideration was whether the plaintiffs were ready to perform their part of contract and whether defendant no.2 was ready to perform his part of contract? Further various issues relating to dismissal of the suit under Order VII Rule 11 C.P.C., Sections 16 and 20 of the Specific Relief Act as well as whether the suit was barred by the provisions of Section 168 A of the U.P. Z.A. & L.R. Act and further an issue was framed that whether the sale-deed dated 15.5.2002 executed in favour of defendants no.3 to 6 is liable to be cancelled and various other issues regarding Section 61 and 34 of the Transfer of Property Act were also framed. The trial court after recording its finding on various issues has recorded a finding that defendants no.3 to 5 are the bonafide purchasers without knowledge after payment of consideration and, therefore, it cannot be said that the sale-deed executed in favour of the defendants during the pendency of the suit, is liable to be cancelled. But a finding has been recorded that admittedly, there was a registered agreement after payment of Rs.20,000/-, the sale-deed was to be executed by defendants no.1 and 2 within a period of one year. Admittedly, the sale-deed has not been executed and the suit was filed within time. Therefore, a money decree was passed decreeing the suit to the extent of the refund of the amount with interest after recording a finding that as the subsequent purchasers are the bonafide purchasers without knowledge, therefore, the sale-deed cannot be said to be annulled.
The plaintiffs filed an appeal claiming therein that as the suit was filed within time and the defendants who purchased the property are residing adjacent to the same village and they have full knowledge regarding the agreement, therefore, it cannot be said that they are bonafide purchasers in good faith, as such appeal be allowed to the extent with a direction for execution of the sale-deed in their favour. The appellate authority after recording a finding on the basis of the pleadings held that from the record, it is clear that defendants no.3 to 5 are residing in the village adjacent to the village of the plaintiff and therefore, it cannot be presumed by any means that they had no knowledge regarding the execution of the registered agreement in favour of the plaintiff. Therefore, the appeal was allowed after recording such fining with a direction to execute the sale-deed in favour of the plaintiff-respondent. Hence, the present appeal has been filed by defendant nos. 3 to 6 who allege themselves to be subsequent purchasers of the property.
Sri Sinha learned counsel appearing for the appellant has framed various substantial questions of law which are being quoted below:
"A- Whether, the plaintiff-respondent is entitled for relief of specific performance of the Ekerarnama i.e. agreement to sale dated 18.02.1986 against the defendants-appellant ?
B- Whether more hardship would be caused to the defendants-appellants in case the Ekerarnama i.e. agreement to sale dated 18.02.1986 is enforced in favour of the Plaintiff-Respondent ?
C- Whether right from the date of execution of the Ekerarnama till the date of final decree, the plaintiff-respondent was ready and had been willing to perform his part of the agreement to sale ?
D- Whether plaintiff-respondent is entitled for execution of sale deed in his own favour by the defendants-appellants in respect of the entire land in question under the Ekerarnama when the civil appeal No.23/2004, Ram Swaroop Vs. Hakim Singh & others, filed by the defendant-respondent no.2 is still pending ?"
In support of his contention, he has submitted that in view of Order 41 Rule 31 CPC, as 17 issues have been framed by the trial court and finding on each and every issue has been given by the trial court, therefore, the appellate court in view of the aforesaid provisions, was obliged and bound to record a finding on each and every issue and if it has not been done, the judgement and order passed by the appellate court is in total contravention of the aforesaid provision. He has placed reliance upon a judgment of the Apex Court reported in 2001 - AIR (SC)-0-965 in Santosh Hazari Vs. Purushottam Tiwari and has placed reliance upon para 15 of the said judgment. The same is quoted below:
"15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das v. Smt. Narayani Bai, AIR 1983 SC 114). The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
Further submission has been made that the appellant being a bonafide purchaser after paying considerable amount, it is hit by Section 54 of the Transfer of Property Act, therefore, the appellate court was not justified in reversing the finding, that too without discussing the issue on merit. Further in a case of specific performance it has to be seen that who is the bona fide purchaser of the property. Admittedly in 2002, the consideration has been paid and a sale-deed has been executed in favour of the appellant and they are in possession of the property and they have developed the same, therefore, in spite of each and every thing, the equity goes in their favour and the appellate court has no jurisdiction to direct the defendant-appellant to execute the sale-deed in favour of the plaintiff. Further submission has been made that though the agreement was executed for the part of the property but the plaintiff has become dishonest and included the property as a whole and defendant no.2 has filed an appeal which is still pending, therefore, during pendency of the appeal, the appellate court cannot direct the appellant to execute the sale-deed of the property for which the defendant's appeal is still pending.
Further reliance has been placed upon a judgment of the Apex Court reported in (2009) CLT 346 (SC) Azhar Sultana Vs. B. Rajamani & ors. and relied upon paras 22 and 23 of the said judgment which are quoted below:
"22. Furthermore, grant of decree for specific performance of contract is discretionary. The contesting respondents herein are living in property since 1981 in their own right. There is absolutely no reason as to why they should be forced to vacate the said property at juncture.
23. The plaintiff herself has taken a positive plea that there had been a collusion between Khanna and Bahadur Hussain. Such a case has neither been pleaded nor proved. No issue in this behalf was framed. Even otherwise, the question of the defendant's discharging the burden would arise provided the plaintiff is found to be entitled to a decree for specific performance of contract."
In support of the aforesaid judgment, learned counsel for the appellant has submitted that unless and until it is pleaded regarding the collusion and unless and until it is proved and no issue to that effect has been framed, the suit cannot be decreed. Therefore, the judgment and order passed by the court below is liable to be set aside.
I have considered the submissions of the appellant and perused the record. From the record it is clear that a registered agreement was executed on 18.2.1986 after payment of Rs.20,000/- for the property and rest of the amount was agreed to be paid at the time of execution of the sale-deed. Clause 2 of the said agreement clearly states that a sale-deed has to be executed within a period of one year. As the sale-deed was not executed in favour of the plaintiff after notice, the suit was filed in the year 1987. It was kept pending for a considerable period of time and written statement on behalf of defendants no.1 and 2 was field. The issues were framed and the matter was about to be decided. Then in spite of the aforesaid fact the defendants have executed a sale-deed in favour of the defendants no.3 to 6 during pendency of the suit and put them in possession of the property with a full knowledge that suit is pending and right of the parties has to be decided on the basis of the registered agreement and pleadings of the parties. But the trial court has held that defendants no.3 to 6 are bonafide purchasers having no knowledge, therefore, in spite of the fact that defendants no.1 and 2 who were having knowledge regarding the pendency of the suit, the suit has only been decreed for the refund of the amount with interest. The plaintiff-respondents filed an appeal. The appellate court after considering the various issues has recorded a finding that as defendant no.6 and appellant are residing in the village adjacent where the defendants no.1 and 2 are living and there is no so much of distance, therefore, there cannot be any presumption that appellant was not having any knowledge regarding the registered agreement and the pendency of the suit regarding the same property.
As regards the contention of Mr. Sinha placing reliance upon Santosh Hazari's case from the perusal of para 15, it is clear that if the trial court judgment has extensively dealt with oral and documentary evidence adduced by the parties for deciding the issue, then while reversing the finding, the appellate court was bound to record cogent finding on the basis of record and oral evidence but it cannot be reversed in a cryptic manner. Though further the Supreme Court has held that in a case of affirmance of finding of the trial court it is not necessary to deal each and every issue and the question before the appellate court was only whether the appellants were bonafide purchaser of the property or not. A finding to that effect has been recorded that they are living in the adjacent village, therefore, there is a presumption that they were having the knowledge of the agreement as well as the pendency of the suit.
In the present case, it has also to be seen that the suit was filed in the year 1987 and the sale-deed has been executed by the defendant in the year 2002 after a lapse of 15 years, during pendency of the suit, therefore, there cannot be any imagination that the defendant-appellants were having no knowledge of the suit. As regards the contention of Mr. Sinha that in case of specific performance the court has to see regarding the balance of convenience and equity, but in my opinion, in the facts and circumstances, the equity cannot be said to be in favour of the appellant. If a person has purchased a property which is disputed before the court of law, pending for a period of 17 years and get the sale-deed executed in his favour and now he comes with a case before the court that he is bonafide purchaser after due consideration, in my opinion, this cannot be accepted. There is no dispute to this effect that the Apex Court in various judgements has held that in a case of specific performance as in view of the agreement some part of the amount has been transmitted, therefore, if some person has purchased the property bonafide, then balance of convenience is in favour of that person but in the facts and circumstances of the present case it is different being the fact that the plaintiffs were always willing and ready to perform their part of contract in view of Section 16 C of the Specific Relief Act and within one year according to Clause-2 of the agreement he has given a notice to perform his part of contract with defendants. Defendants deliberately have not executed the sale-deed. Then he was compelled to file the suit within a period of one year. As regards the finding of bonafide purchaser, in my opinion, the appellate authority has recorded a cogent finding upon it and that finding can be treated to be a finding of fact and cannot be interfered.
In view of the aforesaid facts, the appeal lacks merit and there is no substantial question of law involved. The appeal is hereby dismissed.
No order is passed as to costs.
17.3.2011 V.Sri/-