This second appeal has been filed by the defendants-appellants against the judgment and decree dated 11.12.1998 passed by Ist Additional District Judge, Farrukhabad in Civil Appeal No.5 of 1988 (Smt. Shyama Devi and others Vs. Smt. Chanda Devi), arising out of judgment and decree dated 11.12.1987 passed by Additional Civil Judge, Farrukhabad in Civil Suit No.242 of 1984 (Smt. Chanda Devi Vs. Shyama Devi and others) and the relief sought by this appeal is to allow the appeal and set-aside the judgment and decree passed by two courts below and dismiss the suit of plaintiff with costs throughout.
The brief facts relating to the case are that Smt. Chanda Devi, widow of Pandit Suraj Prasad filed Civil Suit No.242 of 1984 on 23.8.1984 for specific performance of contract with the contention that Smt. Bitola Kunwar @ Ram Bitoli, widow of Raghunandan Prasad was bhoomidhar of the land detailed at the foot of the plaint, with transferable rights, agreed to sell her land in favour of plaintiff for an agreed consideration of Rs.20,000/-, executed a registered agreement for sale after receiving Rs.5,000/- as advance sale consideration and sale deed was agreed to be executed after notification of village under Section 52 of U.P. Consolidation of Holdings Act or upon obtaining of requisite permission from consolidation authorities; that on death of Smt. Ram Bitoli @ Bitola Kunwar on 6.9.1982 her real sister Smt. Shyama Devi, the defendant no.1 became owner and Bhumidhar of the property in suit and plaintiff is entitled to get the sale deed executed by defendant no.1; that though Smt. Ram Bitoli had only half share in the property in suit and was competent to execute agreement only in respect of her half share, she pretending herself to be owner of entire property executed the agreement for sale in respect of entire; that the plaintiff has always been ready and willing to perform her part of contract and served the defendant no.1 with notice by registered post as well as telegram for execution of sale deed but she did not turn up; that since the price of entire land was agreed to be Rs.20,000/- and Smt. Ram Bitoli was held owner only to the extent of half share during consolidation, the sale deed of ½ share in the land in suit is required to be executed for half consideration Rs.10,000/- and plaintiff has always been ready and willing to perform her part of contract and get the sale deed executed in her favour on payment of Rs.5,000/-; that after execution of agreement for sale instead of executing sale deed in favour of the plaintiff, defendant no.1 in order to delay and defraud the claim of plaintiff, executed sale deeds of the property in suit in favour of defendant nos.2 & 3, who have also been impleaded as defendants; that the defendant nos.2 & 3 had full knowledge of the agreement in favour of the plaintiff and are not bonafide purchasers for value without notice and being subsequent purchasers are bound to execute sale deed in favour of plaintiff.
The defendants filed their respective written statements. The defendant no.1 contended that it is wrong to say that Smt. Ram Bitoli executed any agreement for sale in favour of plaintiff-respondent or concealed any fact regarding her bhoomidhari rights in respect of half share in the land in suit; that the sale deed in favour of defendant no.3 was executed after due permission from the consolidation authorities; that the agreement is void being a 'contingent contract' and specific performance in piecemeal, in respect of ½ share of Smt. Bitoli may not be permitted; that since the nature of property in suit has been changed and major part of the land has been sold to defendant nos.2 & 3 before filing of the suit, the specific performance of agreement has become impossible; that the plaintiff was tenant of Smt. Ram Bitoli, and got executed a registered power of attorney from Smt. Ram Bitoli in favour of her son Ram Sewak, at the office of Sub Registrar and appears to have obtained the agreement for sale in question by playing fraud on Smt. Ram Bitoli without her knowledge; that Smt. Ram Bitoli was not aware of the execution of alleged agreement; that Smt. Ram Bitoli had cancelled the power of attorney dated 20.5.1982 executed in favour of the son of plaintiff by executing a registered deed of cancellation on 16.7.1982 and also informed through notice; that the description of property is wrong and vague; that the suit is liable to be dismissed with costs.
The defendant nos.2 & 3 filed their separate written statements claiming themselves to be bonafide purchasers for value and in actual physical possession over the property purchased by them.
Upon parties' pleadings, the trial court framed as many as 12 issues and after evidence of parties on the basis of findings of different issues in favour of plaintiff, decreed the suit for specific performance of contract, directing the defendants to execute the sale deed of the property in suit in favour of plaintiff on receipt of Rs.5,000/-, the balance sale consideration.
Feeling aggrieved, the defendants filed Civil Appeal No.5 of 1988 and the appellate court affirming the findings of trial court came to the conclusion that the vendee has to pay entire consideration agreed between the parties, allowed the appeal partly and maintaining the decree for specific performance of contract, modified it to the extent that the sale deed shall be executed by defendants on receipt of Rs.15,000/- as balance sale consideration.
Feeling aggrieved, the defendants have preferred this second appeal under section 100 of Code of Civil Procedure.
This second appeal has been admitted on following substantial questions of law:-
"(a) whether the Court below was justified in granting a decree for specific performance of contract by splitting the contract by appointment (apportionment).
(c) whether the contract has become impossibility of performance due to section 30 of the Consolidation of Holdings Act and Section 56 of the Contract Act.
(d) whether the plaintiff was ready and willing to perform her part of the contract and the suit is hit by Section 16(C) of the Specific Relief Act."
On various issues framed by trial court, upon detailed discussions and analysis of evidence on record, the trial court has held in its findings on issue nos.5, and 11 that it is proved from the evidence on record that the disputed agreement for sale was executed by Smt. Ram Bitoli in favour of plaintiff Smt. Chanda Devi which is not proved to have been obtained by playing fraud on Smt. Ram Bitoli at the time of execution of power of attorney in favour of Pandit Ram Sewak, the son of plaintiff-respondent.
On issue no.10, it held that it is proved from the evidence on record that during consolidation due to the change of numbers within the same plot (CHAK), the identity of land in dispute was not changed and on the ground of change of identity of property in suit, the relief of specific performance may not be refused.
On issue no.8, the trial court has held that the plaintiff has proved that she served notice on defendants through registered post as well as through telegram and that she was always ready and willing to perform her part of contract and to get the sale deed executed in her favour on payment of balance sale consideration.
On issue no.7, the trial court upon considering the statements of subsequent purchasers, defendant no.2 Smt. Saraswati Devi who has stated as D.W.-2 that negotiations for purchase of property were made by her husband who is Lekhpal and before purchasing the land from Smt. Shyama Devi necessary enquiry was not made by her from the office of Sub-Registrar, and defendant no.3 Indresh Singh, who has also stated as D.W.-3 that he did not make any enquiry in the office of Sub-Registrar, held that the disputed agreement for sale is a registered agreement, of which there is a presumption of due notice to subsequent purchasers and since they have not taken due care and precaution and did not make necessary enquiry, before getting the sale deed executed in their favour, it is proved from the evidence on record that they are not bonafide purchasers for value, without notice of the disputed agreement for sale.
On above findings, the suit of plaintiff was decreed for specific performance of contract and defendants were directed to execute sale deed of property in suit in favour of plaintiff on receipt of Rs.5,000/-, the balance sale consideration from the plaintiff.
In first appeal filed under Section 96 of Code of Civil Procedure by defendants against the judgment and decree passed by the trial court, the appellate court affirmed the findings of court below on all the above points/issues. However, the first appellate court held that since the agreement for sale was executed in respect of the entire share of Smt. Ram Bitoli in the plot numbers in question, so inspite of the fact that she had only half share, the plaintiff is not entitled to get the sale deed executed in respect of the half share of Smt. Bitoli on payment of proportionately half sale consideration, rather she has to make payment of entire amount of agreed sale consideration, even on getting the sale deed executed in her favour, only in respect of half share of Smt. Bitola Kunwar in the property in suit. It accordingly modified the judgment and decree passed by trial court, maintaining the decree for specific performance of contract subject to payment of Rs.15000/- instead of Rs.5000/- towards balance consideration.
It is settled principle of law that in second appeal under Section 100 of C.P.C., the concurrent findings of fact recorded by two courts below may not be set aside or interfered with, unless there is some manifest error, illegality or perversity and appeal has to be decided only on substantial questions of law, if any involved.
Learned counsel for the defendants-appellants addressing on all the three substantial questions of law, contended that the disputed agreement for sale was not executed by Smt. Ram Bitoli and since plaintiff Smt. Chanda Devi was her tenant and Smt. Ram Bitoli had executed a registered power of attorney in favour of Pandit Ram Sewak, the son of plaintiff, it appears that at the time of execution of deed of power of attorney on 20.5.1982, the disputed agreement for sale was obtained by playing fraud on Smt. Ram Bitoli without any knowledge to her; that since the village was under consolidation operations, so no sale deed could have been executed, till completion of consolidation proceedings or without permission by the consolidation authorities; that since the property in suit was changed during consolidation operations and the plots given in exchange were at different place, so due to change of subject matter of the suit, the specific performance of contract has became impossible and the decree for specific performance of contract may not be passed; that while the agreement for sale was executed for entire plots, the trial court and first appellate court had no jurisdiction to grant decree for specific performance of contract in respect of half share by apportionment and have acted wrongly in granting decree for specific performance of contract; that the grant of relief of decree for specific performance of contract upon apportionment is legally not permissible under law; that the plaintiff/respondent had failed to show that she was or has been ready and willing to perform her part of contract and to get the sale deed executed in her favour on payment of balance sale consideration; that the appellants/defendants nos.2 & 3 are proved to be bonafide purchasers for value without notice of disputed agreement for sale and no decree can be passed against them; that due to change of plot numbers during consolidation specific performance of contract has become impossible and the decree for specific performance of contract is barred by provisions of Section 30 of U.P. Consolidation of Holdings Act as well as Section 56 of Indian Contract Act; that both the courts below failed to exercise discretion correctly and the decree for specific performance is hit by provisions of Section 16(C) of Specific Relief Act; that the impugned judgments and decrees passed by two courts below are liable to be set-aside and suit is liable to be dismissed with costs throughout.
Learned counsel for the defendants-appellants has relied on following case laws in support of his arguments:- (1) Shanker Singh Vs. Narendra Singh, 2012 (90) ALR 698 (SC), (2) Babulli Vs. Hamidul Bibi, 2009 (75) ALR 865, (3) Ghori Lal Vs. Additional District Judge, Agra, 2011 (113) R.D. 430 and (4) Mahendra Nath Vs. Baikunthi Devi, 1976 (2) ALR 21.
Per contra, learned counsel for the plaintiff-respondent submitted that there is no evidence on record to show that the disputed agreement for sale was obtained by fraud and in absence of any evidence to above effect, the mere contention of defendants-appellants is baseless and worthless; that there is no evidence on record to show that any fraud was played by plaintiff or her son in obtaining the disputed agreement for sale from Smt. Ram Bitoli; that undisputedly, Smt. Ram Bitoli by executing the deed of cancellation of power of attorney on 16.7.1982, cancelled the power of attorney executed in favour of Pandit Ram Sewak, the son of plaintiff but mere cancellation of above deed of power of attorney, does not mean that the agreement for sale executed on 20.5.1982 was also wrong and illegal, particularly when in the deed of cancellation of power of attorney Paper No.106-A on record, she has not stated of any fraud having been played on her; that moreover, Smt. Ram Bitoli got it cancelled the deed of power of attorney only and did not take any action for cancellation of disputed agreement for sale rather allowed it to stand; that considering all these aspects and evidence on record, the trial court has rightly held on issue nos.5 & 11 that the agreement for sale was executed by Smt. Ram Bitoli, which is not proved to have been obtained by fraud and these findings were affirmed by the first appellate court; that there is nothing on record to show that during consolidation proceedings the property in suit was changed and instead of the property/plots agreed to be sold by Smt. Ram Bitoli, some other plots or land at some other place was allotted to her or her successor or that the property/land in suit was materially or completely changed with other plots; that it is proved from the evidence on record that during consolidation operations, neither the numbers and area of plots nor its location/place was changed and if some plot no.2406/2 of negligible area did not fell in share of Smt. Ram Bitoli in consolidation, it does not adversely affect the rights of plaintiff, as the land considerably remained the same; that in the circumstances Section 30 of U.P. Consolidation of Holdings Act as well as Section 56 of Indian Contract Act does not come into play and does not adversely affect the granting the decree for specific performance of contract on the ground of its becoming impossible of performance; that it is proved from the evidence on record that the plaintiff has always been ready and willing to perform her part of contract and to get the sale deed executed in her favour on payment of entire balance consideration despite the fact that Smt. Ram Bitoli was adjudged owner of only ½ share in the property in suit while she agreed to sell full share claiming to be exclusive owner of all the plot numbers; that the learned courts below have not granted decree for specific performance of contract by splitting the contract by way of apportionment and so the substantial question of law in this regard as framed is unwarranted; that the case laws relied by and on behalf of defendants-appellants are based on different facts wherein plots agreed to be sold were entirely or considerably changed with some other plots to the vender and so in view of provisions of Section 30 of U.P. Consolidation of Holdings Act it was held that due to change of property the decree for specific performance of contract cannot be passed and the alternative relief of money decree would be appropriate in such cases; that the defendant nos.2 & 3 had full knowledge of the registered agreement for sale in favour of plaintiff and having full knowledge of the agreement they have obtained sale deeds in respect of part of disputed property, without payment of sale consideration; that the defendant-appellant nos.2 & 3 did not produce any evidence to prove their sale deeds and payment of sale consideration; that the defendant nos.2 & 3 have failed to prove themselves to be bonafide purchasers of value without notice of the disputed registered agreement for sale.
During hearing, upon noticing that the dispute agreement for sale has been executed by Smt. Ram Bitoli alone and it is not a bilateral document having also been signed or thumb marked by the plaintiff, upon query of enforcibility of such an unilateral agreement for sale, learned counsel for the defendants-appellants did not address the court. However, learned counsel for the plaintiff-respondent contended that the agreement for sale is a contract between the parties for sale and purchase of property at agreed price and it may also be oral and if an unilateral document of agreement for sale has been executed, it is equally enforceable at law as a bilateral document.
Learned counsel for the plaintiff-respondent has relied on following case laws:- (1) Zarina Sidiqqui Vs. A. Rama Lingam, 2015 (1) SCC 705, (2) K. Prakash Vs. B.r. Sampat Kumar, 2015 (126) Revenue Decisions 563 and (3) Alok Bose Vs. Parmatma Devi, 2009 (2) SCC 582.
Upon hearing learned counsel for the parties and perusal of record, I find that the two courts below have given concurrent findings of fact that plaintiff has proved that Smt. Ram Bitoli executed disputed agreement for sale in her favour and got it registered. The two courts below have also come to the conclusion that the disputed agreement for sale is not an outcome of fraud and plaintiff has proved that she has always been ready and willing to perform her part of contract and to get the sale deed executed in her favour on payment of balance sale consideration. The trial court on its findings on issue nos.5 & 11 has held that it is proved from the evidence on record that agreement for sale was executed by Smt. Ram Bitoli and was not obtained by fraud. On issue no.8, it held that plaintiff served the defendants with notice through registered post as well as telegram and has always been ready and willing to perform her part of contract. On issue no.10, it held that during consolidation, as per form C.H.-23 issued on 13.8.1984 the numbers of plot (Chak) allotted to Smt. Ram Bitoli are the same and only minor changes were made within the same plots so it will not be correct to say that due to minor changes within the plot (Chak), the land in suit is not identifiable and execution of sale deed has become impossible. The trial court on issue no.7, held that the defendant nos.2 & 3 had full knowledge of the disputed registered agreement for sale and they are not bonafide purchasers of value without notice. The above findings of fact were affirmed by the appellate court in Civil Appeal No.5 of 1988 by the impugned judgment and decree.
It is settled principle of law that the relief of specific performance is a discretionary relief and the court should exercise its discretion judicially and not arbitrarily. It is also settled principle of law that discretion so exercised by the courts in granting or refusing the decree of specific performance of contract, if has been exercised in accordance with sound and reasonable judicial principles, the appellate court should not interfere with the discretion so exercised, either way.
In the case laws relied by defendants-appellants, I find that in the case of Shanker Singh Vs. Narendra Singh, 2012 (90) ALR 698 (SC), the decree for specific performance of contract was refused on the ground that the vender had agreed to sell entire house property alongwith half share of his wife and since he had no authority to enter into contract on behalf of his wife, the decree for specific performance of contract was refused. Similarly, in the case of Babulli Vs. Hamidul Bibi, 2009 (75) ALR 865, the mother had executed agreement for sale in respect of the share of her minor children, which was found unenforceable.
The above case laws being based on different facts, have no application in this case.
In the case of Ghori Lal Vs. Additional District Judge, Agra, 2011 (113) R.D. 430, the description of property was found to have been completely changed and so the decree for specific performance was refused in view of provisions of Section 30 of U.P. Consolidation of Holdings Act.
In the case of Mahendra Nath Vs. Baikunthi Devi, 1976 (2) ALR 21, the Full Bench of this Court upon considering the provisions of Section 30 of U.P. Consolidation of Holdings Act held that:-
" if after consolidation tenure holder was allotted different plots in Chak then contracted, the agreement to sale, will not be enforceable in view of the provisions of Section 30 of U.P. Consolidation of Holdings Act as if the disputed land has gone finally in the Chak of third person the suit for specific performance has to be dismissed. However, if the decree passed before finalisation of Chaks or if the land remains with the judgment debtor even on allotment, effect can be given to the decree under Section 52 (2) of U.P. Consolidation of Holdings Act."
The court in suit for specific performance of a contract for sale, has to specifically enforce the contract, if possible. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view, and if untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargains, it can very well be said that the promiser finds it impossible to do the act which promised to do."
The case laws relied by plaintiff-respondent are as under:-
In the case of Zarina Sidiqqui Vs. A. Rama Lingam, 2015 (1) SCC 705, the Apex Court has held that:-
"the defendants' plea that execution of agreement was obtained by practicing fraud not made out and defendants suppressed the material facts to mislead the court, the exercise of discretion in favour of granting the decree for specific performance was correct."
In the case of K. Prakash Vs. B.r. Sampat Kumar, 2015 (126) Revenue Decisions 563, the court has held that:-
"appellate court not to interfere with the order of trial court unless it is established that discretion has been exercised perversely, arbitrarily or against the judicial principles, and subsequent rise in price not to be treated as hardship entailing refusal of decree for specific performance".
In the case of Alok Bose Vs. Parmatma Devi, 2009 (2) SCC 582, the Apex Court has held that "an agreement of sale comes into existence when vender agrees to sell and vendee agrees to purchase for an agreed consideration on agreed terms, may it be by way of communication signed or unsigned, it may be a single document signed by both parties, it may also be by a document in two parts, each party signing one part one copy and then exchanging, thus both may have copies signed by other parties. It may also by vender executing the document and delivering it to purchaser, who accepts it. Even an oral agreement to sell is valid, then, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. Mere form or manner of drafting of an agreement would not be a decisive factor, real intention and conduct of parties in proceedings in terms of the same would decide, whether an concluded contract came into existence or not."
In view of the above case law, if after consolidation tenure holder gets allotted substantially the same plots in his Chak, without any material considerable or complete change, as in this case, the relief for decree for specific performance of contract can be and should be granted and should not be refused. It is pertinent to mention that there is nothing on record to show that the plots in the Chak allotted to Smt. Ram Bitoli were different from those which were contracted under the disputed agreement for sale. Further there is nothing to show that the plots agreed to be sold under the disputed agreement for sale were allotted to some other persons during consolidation, making the specific performance of contract impossible on account of its becoming 'contingent contract' or in view of provisions of Section 30 of U.P. Consolidation of Holdings Act and Section 56 of Indian Contract Act.
It is not the case of defendants-appellants that the two courts below in arriving at above findings, either failed to consider any material evidence on record or acted wrongly in relying or misreading any inadmissible evidence. In absence of any such illegality or glaring mistake by the courts below, the learned counsel for the defendants-appellants has failed to show any manifest error of fact and law or any perversity in the above concurrent findings of fact and there is no sufficient ground for interfering with or setting it aside or displacing above findings. The learned counsel for defendants-appellants have failed to show that disputed agreement is a 'Contingent Contract' to do an impossible act within the purview of provisions of Sections 39 & 56 of Indian Contract Act. Since there was no material change in allotment of plots to the tenure holder during consolidation and the land agreed to be sold, remained same. The provisions of Section 30 of U.P. Consolidation of Holdings Act do not come in the way of granting relief for specific performance of contract and decreeing suit for such relief.
In view of the discussions made above, I have come to the conclusion that learned counsel for the appellants has failed to show that the courts below have passed the decree for specific performance of contract by splitting the contract or by way of apportionment, or the specific performance of contract had become impossible due to any change of property/plots in view of provisions of Section 30 of U.P. Consolidation of Holdings Act or Section 56 of Indian contract Act or that the plaintiff was not ready and willing to perform her part of contract and the suit was hit by provisions of Section 16 (C) of Specific Relief Act.
All the three substantial questions of law framed for disposal of this appeal are liable to decided against the defendants-appellants. The appeal has no merits and is liable to be dismissed with costs.
The appeal is dismissed with costs. The impugned judgment and decree are affirmed.
After preparation of decree, let the record be sent to court below at earliest.
Order Date :- 29th July 2016 Kpy