Heard learned counsel for parties and perused the record.
By means of the present appeal, the appellant has challenged the judgment and decree dated 28.11.2006 passed by Additional District Judge, Court No.4, Hamirpur in Civil Appeal No.04 of 2004 as well as judgment and decree dated 20.10.2003 passed by Additional Judicial Magistrate, Hamirpur in Suit No.197 of 1995.
Facts in brief of the present case are that Smt. Raja Bai/plaintiff/respondent filed a suit for specific performance on the ground that agreement to sale dated 24.6.1992 has been entered between her and Shri Ranvijay Singh in respect to the 1/3rd share in (arazi no.1712 area 4.89 acres situated in Village-Surauli Bujurg, Pargana-Sumerpur, Tehsil and District-Hamipur, recorded in the name of Shri Ranvijay Singh/appellant-defendant as Bhumidhar. As per the terms of the agreement, a sum of Rs.19500/- has been paid at the time of execution of agreement to sale and remaining amount Rs.500/- to be paid at the time of execution of sale deed.
On behalf of the plaintiff-respondent, it has been pleaded that in spite of the requests, readiness/willingness on the part of the plaintiff-respondent, the defendant failed to execute a sale deed as per agreement. So, necessity has arisen to file a suit (Suit No.197/95) in the Court of Additional Chief Judicial Magistrate, Court No.4, Hamirpur for specific performance of contract.
On behalf of the defendant-appellant, in the written statement, defence has been taken that he was in need of money, so taken a loan from Smt. Raja Bai and in the garb of mortgaged deed, the agreement to sell has been executed from him as he is uneducated, illiterate person. Hence, the agreement to sell is by way of fraud played by the plaintiff/respondent as the cost of the land is Rs.48000/-. As, there is no question to sale the same for a Rs.20,000/-, so suit is liable to be dismissed.
The trial court in order to decide the controversy involved in the case has framed five issues, out of which issue no.1 is in respect of execution of the agreement to sale dated 24.6.1992 between the parties. On the basis of the material and evidence on record, it came to the conclusion that the defendant-appellant has executed agreement to sell with the plaintiff-respondent in respect to sale of the property. Accordingly, decreed the suit in favour of the plaintiff-respondent by judgment and decree dated 20.10.2013.
Aggrieved by the said facts, defendant-appellant filed a (Civil Appeal No.4 of 2004), dismissed by order dated 28.11.2006 passed by Additional District Judge, Court No.4, Hamirpur.
In view of the above said factual background, the present said appeal has been filed before this Court.
On 3.4.2007, this Court has passed the following order :-
"On the facts, submission as made and the finding so recorded by the courts below having been assailed on the grounds so taken, this Court is of the view that matter needs hearing after receipt of the record.
Summon the record at the appellant's expenses.
List this matter in July, 2007.
in view of the aforesaid, appellant is directed to deposit an amount of Rs.20,000/- within a period of one month from today with the trial court. The amount so deposited by the appellant will be paid to the plaintiff respondent on moving appropriate application in this regard. If it is done then pursuant to the judgment and decree so passed by the court below the defendant-appellant will not be compelled to execute the sale deed. In the event of default the interim protection given by this Court shall cease to operate and the authority will be free to execute the decree against the appellant."
Learned counsel for the appellant submits that in pursuance to the said direction, appellant has deposited the amount.
Learned counsel for the appellant has pressed the present appeal on the following substantial questions of law :-
"Whether a suit for specific performance of agreement can be decree in a case where the plaintiff claims the refund of money with interest and defendant claims that the document was not an agreement to sale but was intended to be mortgaged deed ?
Whether the P.Ws. Admitted the factum of loan and the money was not paid before the Registry to defendant being a ineducated and rustic farmer need of money for bullock and cart and further admitted the factum that the suit land was of much more value amount to be strong circumstance of mortgage not of agreement to sale, further there is no application of mind to the nature of document, whether the civil court or 1st appellate court should or should not grant the decree for specific performance under section 20 of Specific Relief Act."
Learned counsel for the defendant-appellant while pressing the above said substantial question of law submits that the defendant-appellant was in need of money, taken a loan from the plaintiff-respondent, in the garb of the same, agreement to sell has been executed by way of fraud so it is a false and fabricated document as appellant was never intended to execute the said document, rather he was intended to execute a mortgaged deed as a security for the purpose of loan taken from Smt. Rajabai. Further, the plaintiff/respondent did not explain as to why she wait for 3 years for the purpose of filing the suit and from the statement given by PW.3 Vishal Singh, it is clearly established that the defendant/appellant has taken a loan from the plaintiff/respondent and fraudulently, the agreement to sell has been executed in respect of the land in dispute. Without considering the said facts, the trial courts below decreed the suit of the plaintiff and appellate court dismissed the appeal, so the judgments passed by the both the courts below are contrary to record/fact, perverse in nature, liable to be set aside and appeal may be allowed.
Shri J. P. Tripathi, learned counsel for the plaintiff/respondent while opposing the appeal submits that the agreement to sell dated 24.6.1992 has been entered between the parties in the presence of witnesses which is admitted document on record, Exbt.No.1. Hence, it is totally incorrect on the part of the defendant/appellant to plead or argue that the said document has been obtained by way of fraud in the garb of mortgaged deed as the appellant-defendant is in need of money so taken a loan from the plaintiff-respondent and in spite of repeated requests and reminders, when appellant-defendant failed to execute the sale deed as per terms of the agreement to sell entered between the parties in respect of the land in question and plaintiff-respondent is readiness and willingness to perform her part of obligation, the suit has been rightly decreed by the trial court on the basis of oral and documentary evidence. Thereafter, the appeal filed by the defendant-appellant has also been dismissed by the appellate court.
Learned counsel for the plaintiff-respondent submits that from the statement given by P.W.3-Vishal Singh , it is clearly established that the agreement to sell has been executed and in any manner, it can be derived or established that the agreement to sell is fraud and obtained in the garb of mortgaged deed, rather from the evidence of Vishal Singh it is established that in pursuance to agreement to sell, the plaintiff is in possession of the property in question from Ranvijay Singh and she has shown crop thereon.
Accordingly, learned counsel for the plaintiff-respondent submits that no substantial question of law exits in the present case, rather substantial questions of law as pressed by learned counsel for the appellant are substantial questions of fact. So, keeping in view the said facts as well as the concurrent finding given by the courts below, the present appeal is liable to be dismissed.
I have heard learned counsel for parties and gone through the records.
First point is to be considered in the matter that whether the document was not an agreement to sale but appellant/defendant was intended to execute a mortgaged deed, from the perusal of the material on record, the position which emerges out is that Shri Ranvijay Singh had entered into an agreement to sell in respect of the 1/3 rd portion of the land recorded as Bhukhand 17/2 Rakba 4.89 acres situated in Village-Surauli Bujurg, Pargana-Sumerpur, Tehsil and District-Hamirpur and Shri Ranvijay Singh has purchased the stamp paper from District-Hamirpur. Thereafter, agreement to sell has been written and signed by the parties in the present of witnesses, duly registered on 24.9.2009 in the presence of Sub-Registrar, Hamirpur which is an admitted document on record as Exbt.No.1.
Further, the plaintiff-respondent by a cogent evidence has proved the execution of the said document and moreover the appellant-defendant, in his cross-examination as DW-1, has admitted the fact that there is photograph affixed on the agreement to sell and he has signed the said document. So, argument advanced on behalf of the appellant-defendant that the agreement to sell is a forged and fabricated document and the appellant-defendant was never intended to execute the same, rather he wants to execute a mortgaged deed in order to take a loan from from plaintiff-respondent is contrary to the facts of the case. In this regard, both the courts below have given a concurrent finding of fact that the agreement to sell dated 24.6.1992 has been entered between the parties and the said execution of the same has been duly proved by the cogent evidence by the plaintiff-respondent.
Next point is to be considered in the present case is whether there is readiness and willingness to perform by the plaintiff-respondent on her part of the contract arising out of the agreement to sell dated 24.6.1992 or not ?
As per the settled position of the law the same has to be inferred from the conduct of the parties and attending circumstances. As held in the case of Raj Rani v Kartar Singh AIR 1975 Del 137 that there is a distinction between readiness to perform the contract and willingness to perform the contract. "Readiness" means the capacity of the plaintiff to perform the contract ; this includes his financial ability to pay the purchase price. But "Willingness" postulates an enquiry into the conduct of the plaintiff.
In the Corpus Juris Secundum, vol. 81 pp.950-951, the readiness and willingness has been interrupted that it is the general principle of law that a person seeking specific performance must show that he has performed or offered to perform or is ready, able and willing to perform, all the essential acts required by the contract and he must not remain quiet or hold himself aloof so as to enforce or abandon the contract as events may prove advantageous. The plaintiff is entitled to specific performance where he alleges and proves that he has complied substantially with the conditions of the contract or is able, ready and willing to perform the contract. (See also Satya Jain v Anis Ahmed Rushdie AIR 2013 SC 434).
In the case of Bijai Bahadur v. Shri Shiv Kumar AIR 1985 All 223, this Court held that so far as the question of readiness and willingness is concerned while 'willingness' is merely a mental process, 'readiness' is something to do with translating that will into action and is preceded by a necessary preparation for being in a position to be ready. As to the averments about this continuous readiness and willingness the law never insists on any particular form and the necessary averment may be made in any language the plaintiff may choose to employ. The language is not important. The crucial thing is that the totality of the averments made in the plaint must indicate the readiness and willingness of the plaintiff, even though by necessary inference.
In the Case of Hira Devi v. Harinath AIR 1989 All 11, this Court held that lack of averment as to continuous readiness and willingness in plaint in suit for specific performance of sale does not render the decree a nullity and in execution stage the lack of pleading aforesaid cannot be canvassed.
In the case of Ramakrishna Pillai v Muhammed Kunju AIR 2008 SC 1601, Hon'ble the Apex Court had reserved the finding of the High Court wherein it has been held that no plea as to readiness and willingness was raised and as such no specific performance was granted. It was held by the Hon'ble Supreme Court that the finding of the High Court was factually incorrect and as such the decree was set aside. The plaintiff was entitled to decree for specific performance.
Jurisdiction to grant decree (specific performance) is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so. All the same, the discretion must be exercised in a reasonable manner guided by sound judicial principles and not arbitrarily. If these principles are not observed, the judgment may be upset in appeal because Section 20(1), Specific Relief Act provides that "the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal."
Thus the relief in specific performance is discretionary.(Mayawanti v. Kaushalya Devi (1990) 3 SCC 1) and this discretion is, however, to be exercised in a judicial manner and cannot be arbitrary.(Nanak Builders v.Vinod Kumar Goel AIR 1991 Del 315 at p. 319).
In addition to the said fact, for the specific performance, the basic principles are provided under Section 16 (C) read with Expln. (ii) of the Specific Relief Act is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been unblemished throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. Where there is a clear averment in the plaint that the plaintiff purchaser was always ready to get the sale deed prepared after paying necessary consideration, order decreeing the suit for specific performance of contract in favour of the plaintiff is proper. (See Aniglase Yohannan v Ramlatha AIR 2005 SC 3563) and it will be a proper exercise of the discretion, where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance [Section 20(3)]. This discretion may be refused to be exercised for justifiable cause. (See Kayastha Pathshala v Rajendra Prasad AIR 1990 SC 415 and Nirmala Anand v Advent Corporation Pvt. Ltd AIR 2002 SC 2290).
In the case of Pandu Rang Ganpat Thanavade v Ganpath Bairukadam 1998 (2) JCLR 209 (SC), Hon'ble Supreme Court held that the burden lies on the plaintiff to prove his continuous readiness from the date of the contract till the date of hearing of the suit of perform his part of the contract. The plaintiff must in such a suit aver in the plaint and prove in evidence that he was continuously ready and willing to perform his part of the contract right from the date of agreement till the date of decree or hearing of the suit; but he is not required to do so that on each and every date of hearing he had money ready with him. Even if there is no evidence on the side of the defendant, the plaintiff' cannot take advantage of it as he has not himself stated in his evidence that he was ready and willing to perform his part of the contract and he is not entitled to decree of specific performance. Where in such a suit the plaintiff' has proved his readiness and willingness to perform his part of the contract and also obtained possession of the property at the time of the agreement, requirement of Section 16(c) of the Act is well complied with.
In the matter in question, from the perusal of paragraph nos.8 and 11 of the plaint, it is clearly established that the plaintiff/respondent was always willing to perform his part of obligation arising out of the contract act in order to get the suit for specific performance of the decree which means that person claiming performance has kept the contract subsisting with preparedness to fulfil his obligations and accept performance when the time for performance arrives the finding given by the court below on the point in issue is in accordance with law. Because, as far back as 1928, the Privy Council in the case of Ardeshir H. Mama v Flora Sassoon AIR 1928 PC 208 at p. 216 held that plaintiff' must establish that he was since the date of the contract continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail............ The plaintiff must plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit.
In Satya Gupta (Smt.) alias Madhu Gupta Vs. Brijesh Kumar , 1998 (6) SCC 423 by the Supreme Court as under :-
" At the outset , we would like to point out that the findings on facts by the lower appellate court as a final Court of facts, are based on appreciation of evidence and the same cannot be treated as a perverse or based on no evidence. That being the position , we are of the view that the High Court, after re-appreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on fact on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of Lower Appellate Court on facts merely on the ground that on the fact found by the Lower Appellate Court another view was possible."
Similar view was given by the Supreme Court in Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and others, 1999 (36) ALR 218 (SC) and Hamida and other V. Md. Khalil, 2001 (45) AlR 23 (SC). , wherein it is held :-
" It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first Appellate Court. It is true that the lower Appellate Court should not ordinarily reject witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in Second Appeal when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the Lower Appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible . The High Court cannot substitute its opinion for the opinion of the first Appellate Court unless it is found that the conclusions drawn by the Lower Appellate Court where erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court , or was based upon inadmissible evidence or arrived at without evidence."
It is well settled by a long series of decisions o the judicial committee of the Privy Council and of this Court that a High Court on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-appellant did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact.
In view of the above said facts and circumstances and after a careful consideration of arguments of the respective Counsel, I do not find any error of law in the two concurrent conclusions recorded by the Courts below. No substantial question of law arises in the instant appeal. The judgment under challenged cannot be interfered in this appeal in exercise of jurisdiction under Section 100 C.P.C.
For the foregoing reasons, the present appeal lacks merits and is dismissed .
With a direction that the amount deposited by the appellant/defendant in pursuance to the order dated 03.04.2007 passed by this Court earlier, he can withdraw the same after completing necessary formalities.
Order Date :- 20.08.2014 Mahesh