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Court No. - 53
Case :- SECOND APPEAL No. - 1064 of 2019 Appellant :- Smt. Taukheeran Respondent :- Harpal Singh And 3 Others Counsel for Appellant :- Manish Kumar Pandey
Hon'ble Vivek Agarwal,J.
Heard Sri Manish Kumar Pandey, learned counsel for the appellant.
This Second Appeal has been filed by the plaintiff being aggrieved of the judgment and order dated 24.07.2018 and decree dated 06.08.2018 passed by the learned Civil Judge (Senior Division), Bijnor in orignal Suit No.106 of 2015 whereby in a suit for specific performance, main relief of directing the defendant of executing the sale deed in favour of the plaintiff has been declined and alternate relief as sought by the plaintiff has been allowed. Appellant is also aggrieved of the order dated 16.07.2019 and decree dated 27.07.2019 passed in Civil Appeal No.39 of 2018 passed by the Additional District Judge, Court No.6, Bijnor affirming the judgment and decree passed by the Trial Court.
Brief facts leading to the present appeal in short are that plaintiff had entered into an agreement to sale with late Tula Ram son of Natthu Singh on 23.12.2006. She had paid a sum of Rs.1,45,000/- in favour of Tula Ram out of total sale consideration of Rs.1,50,000/-. According to one of the stipulation in the agreement to sale, since Tula Ram was a person belonging to Scheduled Caste category, it was agreed that Tula Ram shall obtain necessary permission for sale from the District Magistrate and, once, such permission is obtained and communicated to the plaintiff then plaintiff shall within one month of such communication pay the remaining sale consideration and get the sale deed executed.
According to the plaintiff, on 29.06.2013, she came to know that Tula Ram had already executed the sale deed in favour of one of her close relative namely defendant no.4 and, therefore, she had filed an objection against the mutation of name of such purchaser before the competent revenue authority, which was accepted on 29.10.2013 and recording of name of the defendant no.4 was set aside. Thereafter, plaintiff had sent a notice dated 18.11.2014 to execute the sale deed in favour of the plaintiff, as according to the plaintiff, permission to sale of such land was accorded in favour of the defendants on 12.03.2013.
In the aforesaid backdrop, suit was filed on 07.02.2015 claiming relief of specific performance of the contract and in the alternative refund of Rs.1,45,000/- alongwith 12% interest thereon w.e.f. 23.12.2006 i.e. the date of the agreement.
Learned Trial Court decreed the suit for alternate relief holding that plaintiff has not claimed any relief of cancellation of sale deed, which was executed in favour of the defendant no.4.
Learned first Appellate Court has affirmed such finding on a different reasoning that plaintiff has failed to prove her readiness and willingness inasmuch as admittedly plaintiff gathered knowledge about execution of sale deed from the Chakbandi Lekhpal on 29.06.2013 and since permission was granted by the competent authority on 12.03.2013, plaintiff should have issued a notice for specific performance of the agreement within one month of such knowledge i.e. 29.06.2013 as per the stipulation contained in the agreement to sale.
Learned counsel for the appellant has placed reliance on the judgment of Hon'ble Supreme Court in case of Durga Prasad and another Vs. Deep Chand and others as reported in AIR 1954 SC 75 wherein, it has been held that “where there is a sale of the same property in favour of a prior and subsequent transferee and the subsequent transferee has, under the conveyance outstanding in his favour, paid the purchase-money to the vendor, then in a suit for specific performance brought by the prior transferee, in case he succeeds, the question arises as to the proper form of decree in such a case. The practice of the courts in India has not been uniform and three distinct lines of thought emerge. According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the prior transferee and direct conveyance by the vendor alone. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchaser alone. According to the S.C., the proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. He does not join in any special convenants made between the prior transferee and his vendor; all he does is to pass on his title to the prior transferee. AIR 1931 Cal 67, Appt.; AIR 1932 All 694, Not Appr.,(1864) 67 ER 1057:”
Similarly, reliance has been placed on the judgment of Supreme Court in case of Thomson Press (India) Ltd. Vs. Nanak Builders and Investors Private Ltd. and others as reported in 2013 (5) SCC 397 wherein, it has been held that Section 52 of the Transfer of Property Act does not intend to annul conveyance or transfer otherwise but too render it subservient to rights of parties to litigation. Transfer in favour of appellant pendente lite is effective in transferring title to appellant but such title shall remain subservient rights of plaintiff in suit and subject to any direction which Court may eventually pass therein, hence, person purchasing property with knowledge of earlier agreement can be joined as party in suit for specific performance.
Placing reliance on such judgments of Hon'ble Supreme Court, it is submitted that the suit should have been in fact decreed for the main relief of specific performance rather than for ancillary relief of refund of earnest money.
After hearing learned counsel for the appellant and going through the records, few facts need to be highlighted namely; defendant no.4 had knowledge of the agreement between the plaintiff and the original Vendor-Tula Ram, was a fact required to be pleaded and proved by the plaintiff. Though, in the original suit, there is a pleading to this effect but there is no evidence led that the defendant no.4 had in fact knowledge of such agreement.
In the written statement, defendant nos.1, 2 and 3 have specifically pleaded that their father was a illiterate person and sons of the plaintiff being a cunning person had taken advantage of old age of their father and had taken him for execution of certain documents to the Tehsil- Nazibabad to get his old age pension settled. They further pleaded that no consideration was passed on to the father of the defendant nos.1, 2 and 3 and plaintiff was never put into possession by their father and such agreement was a forged document, which was prima facie null and void. It is also mentioned in the written statement that none of the witnesses to the agreement were related to said Tula Ram, even it has been pleaded that defendant nos.1, 2 and 3 have no knowledge of such agreement. They also pleaded that permission as was obtained from the competent authority was obtained through fraud.
Under such facts and circumstances and also in view of the admitted position, plaintiff was to pay the remaining sale consideration and get the sale deed executed within one month of getting knowledge of permission from the competent authority, it is apparent that when plaintiff has admitted her source of knowledge of execution of sale deed and permission from the competent authority in the hands of the Chakbandi Lekhpal on 26.09.2013, then there was no justification for sitting silent till 18.11.2014.
It is apparent from the pleadings in para-5 of the plaint, Annexure-1 that even notice dated 18.11.2014 was addressed to defendant nos.1, 2 and 3 and it is alleged that despite receiving such notice, they have not responded and thereafter on 13.01.2015, plaintiff had again issued a notice to defendant nos.1, 2, 3 and 4 asking them to remain present in the Office of Registrar, Nazibabad on 23.01.2015. But, they did not remain present in the such Office though plaintiff marked her presence in the said Office clearly demonstrate that in the first place, no notice was issued in favour of the defendant no.4; that means that in the first place, there was no averment that defendant no.4 had knowledge of the agreement to sale and despite such knowledge and information, she had purchased such property vide sale deed dated 28.12.2011 and as an afterthought, subsequent notice was issued in favour of the defendant no.4.
In this connection, provisions contained in Section 27 of the Specific Relief Act are important inasmuch as, it says that specific performance may be enforced against (a) either party thereto; (b) any other person claiming under him by a title subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract.
Thus, provisions of Section 27 of the Specific Relief Act provides immunity to a subsequent purchaser, who has paid his money in good faith and who was not having notice of the original contract. From the material available on record, it is borne out that this fact was to be proved by the plaintiff, onus of which was on the plaintiff that the subsequent purchaser was having notice of the original contract. This failure coupled with the fact that in the first place, no notice was issued to the subsequent purchaser and also a fact that notice issued to the successors of the Vendor in the first place was after more than one year of getting knowledge of a sale in favour of defendant no.4 proves breach of the conditions of the agreement, which stipulates enforcement of agreement within 30 days of such permission from the competent authority coupled with the fact that there was failure on the part of the plaintiff to prove notice of the original contract in the hands of the subsequent purchaser.
In view of such facts, law laid down in cases of Durga Prasad and another (supra) and Thomas Press (supra) has no application to the facts of the present case.
In fact, in case of Kanshi Ram Vs. Om Prakash Jawal and others as reported in AIR 1996 SC 2150, Hon’ble Supreme Court has held that when vendor himself had claimed alternative relief for damages then in such circumstances, ordering specific performance would be inequitable and unjust and, accordingly, vendee was directed to pay a particular sum to the vendor.
In view of such facts also and therebeing the concurrent findings recorded by the Court granting alternate relief does not call for any interference and, therefore, Second Appeal fails and is, accordingly, dismissed.
Order Date :- 26.11.2019 Ashutosh