1. This second appeal arises out of a suit filed by respondent Mhanubi Kasimsaheb Shaikh, original plaintiff for getting specific performance of a contract of sale Exh. 34 dt 17th Aug., 1970. It was the case of the plaintiff that the property sold was a house situated at Siddeshwar peth, Solapur and the terms of the contract were reduced into writing. It was stated into writing. It was stated that Rs. 4,000/- were fixed as the sale price and Rs. 2,000/- were to be paid at the time of agreement as earnest money. It was also agreed that the sale-deed was to be executed with in a week from the date on which the said agreement was to be executed. It was further averred by the plaintiff that under the said agreement Exh. 34, two rooms were given in possession of the plaintiff on Aug., 17, 1970, The plaintiff stated that at the time of filing of the suit she was not in possession because she alleged that on 24th of Aug. 1970, the defendant took possession of the said two rooms. The plaintiff preyed for specific performance of the contract Exh. 34 and in the alternative, she also prayed for decree of Rs. 2,000/- which were paid by her as earnest money, In case, the contract is not accepted.
2. The defendant filed his written statement at Exh. 15 and his principal defence was that the alleged transaction of the sale was not truly reflected in te documents but in fact the alleged transaction was only in the nature of loan transaction. The plaintiff does not possess any money lending license. Though carries on the transaction of money lending. She has earlier entered into such transaction with defendant in the year 1968 and therefore defendant stated that the alleged agreement not being an agreement of sale, the suit is liable to be dismissed.
3. The learned trial Judge framed necessary issues, which are as follows;-
'(1) Whether the plaintiff proves the agreement of sale dt. 17-8=1870 as alleged.
(2) Does show prove that she was put in possession of two rooms as part performance of the alleged agreement of sale.
(3) Does defendant prove that suit dealing was a money-lending transaction.
(4) Whether plaintiff is entitled to get specific performance of the agreement of sale as claimed? If yes, on what terms.
(5) Whether in the alternative plaintiff is entitled to the refund of Rs 2,000/- with interest as claimed.' Other issues are not necessary to refer to for the disposal of this appeal. Parties led evidence. Plaintiff examined three witnesses in support of her case. The plaintiff's witness I Kasimsaheb Imamsaheb Shalkh examined at Exh. 40 is the husband of the present plaintiff Plaintiff's witness 2 is Narayan Dakaji Murjkar who is examined at Exh. 43, Plaintiffs third witness is Abdul Rahiman Hussinsaheb Merchant, who is examined at Exh. 44.
4. The defendant himself is examined as witness at Exh. 46 and no other evidence was produced by the defendant. After going through the oral evidence and the document relief on by the plaintiff (Exh. 34) the learned trial Judge found that the plaintiff has failed to prove the nature of transaction as alleged. He also found that the defendant also failed to prove the transaction as of loan and on the issue of delivery of possession, he found that the plaintiff was not in possession. The learned judge also relied on the circumstance that the plaintiff had given different versions with regard to the payment of earnest money and in view of this fact, he was not impressed by the terms of the agreement and therefore he negatived the finding against her. Therefore the learned trial Judge dismissed the suit of plaintiff as far as the specific performance of the agreement is concerned and granted, in the alternative, the decree for Rs. 1,750/- with interest and the decretal debt was kept as charge on the property described in the plaint, In the result, he dismissed the suit of the plaintiff by his judgment and decree dt 27.6.1973.
5. Being aggrieved by this decree, the plaintiff filed an appeal before the District Court at Solapur and the Assistant Judge. Solapur, who heard the appeal, reversed the decree passed by the learned trial Judge and decreed the suit for specific performance of the agreement as per Exh. 34 Dt. Aug., 17 1970. He also directed the plaintiff to deposit the remaining part of the sale price and thus plaintiff's claim was decreed by him. The learned appellate Judge framed two points for determination as under:-
'(1) Whether the plaintiff succeeded in proving that both the parties had intended to have a genuine agreement of sale in respect of the suit property as per the document Exh. 24 D/- 17th Aug., 1970.
(2) Whether the defendant proved that the document was executed as a surety for the repayment of Rs. 2,000/- and it enshrined the transaction of loan.'
The District Judge did not choose to raise point regarding the alleged delivery of possession under the agreement but it appears that he had confirmed the same finding recorded by the trial Judge on the point. As recorded by the trial Judge on the point, as recorded in his judgment at para 17, The learned asst. Judge held the agreement to be proved on the finding that the price agreed has not been proved to be grossly inadequate and secondly, he relied on the fact that since the plaintiff was residing in rented premises. She had advanced the substantial sum of Rs. 1,750/- to the defendant in the hope that she would get property of her own. From this he inferred that she must have intended to purchase the property and having held that these circumstances are in favour of the plaintiff, especially he relied on the vital circumstance that the plaintiff's husband had paid Rs. 2,000/- to the defendant and taken back Rs. 250/- for payment of Municipal Taxes. Thus he reversed the decree of the trial Court and allowed the appeal by his judgment and decree dt 17th March 1976.
6. The defendant being aggrieved by this judgment and decree, had preferred this second appeal in the High Court, which is placed before me for final hearing. Today before the hearing started, the learned advocate Mr. J. R. Lalit, who was appearing for the appellant and Mr. V. B Rajure who was appearing for Mr. Bhimrao N. Naik on 14th Oct., 1981, were present and I heard the appeal, which was part heard and kept today in the early hours. Mr. Bhimroa N. Naik appearing for respondent, requested the he should be allowed to appear and address the Court as he was not able to come on earlier day. I have permitted Shri bhimrao N. Naik to address me on behalf of the respondent along with Mr. V. B. Rajure Mr. J. R Lalit learned Advocate for the appellant has not raised any objection and he has fairly consented that Mr. Bhimrao N. Naik should be permitted to argue the appeal and Mr. Bhimrao N. Naik then resumed the arguments.
7. Mr. Lalit, the learned Advocate for the appellant submitted three points for consideration. Mr. Lalit firstly contended that the decree of the trial Court was perfectly justified especially because that the trial Court was right in refusing the specific performance to the plaintiff. Mr. Lalit pointed our to me first of all, that the agreement Ex 24 is on ordinary paper. It is signed as many as by five witnesses. It appears that the revenue stamp and the recitals in this agreement regarding the price and in respect of delivery of possession are not borne out by the plaintiff herself. Mr. Lalit then contended that the alleged price, which is one of the important price, which is one of the important terms of such agreement regarding the earliest money is not found to be unanimous, because the plaintiff alleged in the suit that the earnest money was R. 2,000/- while in the notice Exh. 42 dated 21-8-1970 plaintiff has stated that Rs. 2,100/- were paid. The agreement Exh. 34 itself mentions that Rs. 1,842/- were paid and Rs, 250/- were o be paid towards the Municipal taxes. The sum be Rs. 2,092, though a calculation is given, as it is only to emphasize the discrepancy as to the earnest money which is paid by the plaintiff according to her own say, Mr. Lalit, therefore, contended that the learned trial Judge was right in holding that there are different versions given by the plaintiff, as many as three versions and therefore the specific performance was refused and if was quite proper. Thirdly, Mr. Lalit further submitted that the alleged amount of Rs. 250/- which was retained by the plaintiff for payment of Municipal taxes was spent towards some private affairs and therefore this case to that extent appears to be incorrect. I find sufficient force in the above contention because in a suit for specific performance the terms of contract are strictly to be obeyed. Lastly, Mr. Lalit pointed out that the recital in the agreement with regard to the possession that two rooms. Were given in pursuance of agreement dated the 17th Aug., is not correct because the defendant never delivered possession, according to Mr. Lalit, the possession, continued with the defendant. On this aspect of the case Mr. Lalit pointed out rightly that the learned appellate Judge committed an error in holding that the trial court had, in fact found that possession of two rooms was given to the plaintiff.
8. In this connection, Mr. Lalit pointed out from the contents of para 17 of the Appellate Court.s judgment that this assessment of the learned Appellate Judge was absolutely wrong, because in fact the trial Court had found on issue 2 specifically that two rooms were not given in possession as part performance of the agreement Exh. 34. The learned Assistant Judge was certainly in error in concurring with the trial Court holding that the agreement was acted upon on the basis that possession was actually delivered to the plaintiff. The initial assumption of the learned Assistant Judge was found to be erroneous, Mr. Bhimrao N. Naik the learned Advocate for the respondent was permitted to read the evidence in this second appeal because I thought that the leaned Assistant Judge has wrongly determined the issue of delivery of possession.
9. It is true that in a second appeal, apparently, if the two courts below had found the factum of possession has been proved or disproved this Court will be reluctant to reopen this finding. But in this case, in view of the provisions of S. 103, C. P. C. I find that there is much substance in the grievances made by Mr. Lalit that the learned appellate Judge wrongly determined the issue of delivery of possession on a totally wrong assumption that the learned trial Judge had found that the possession is delivered and the agreement was acted upon. This finding of the learned Appellate Judge had resulted in reversing the decree of trial Court. As I have stated above. S. 103. Civil P. C. Reads as under:-
'103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal-
(a) which has not been determined by the lower appellate court or both by the Court of first instance and the lower appellant court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law is referred to in S. 100'
In this case, the learned appellant Judge had certainly committed an error it wrongly assuming that the learned trial judge had found in favour of the plaintiff as far as the delivery of possession is concerned and it is one this wrong assumption that the learned appellate judge concluded the issue with cryptic reasoning, saying that:
'This fact has been clearly borne out by evidence of plaintiff's witness and, therefore, the lower Court rightly held that the plaintiff was in possession of the two rooms.'
I think that the learned appellate judge was totally in error in recording the finding on this issue and as pointed out by Mr. Lalit. I agree with his submission that this error has vitiated his judgment. 1982 Bom./25 VIII G - 14
9A. Mr. Bhimrao N. Naik contended that the evidence on record especially evidence of witness 1, plaintiff's husband and second witness who is scribe of the document and the third witness Abdul Rahman son of Hussinsaheb Merchant. Whose statement of deposition is at Exh. 44, proves the factum of possession and relying on the evidence of these three witnesses, he pointed the evidence of the first witness, which is to this effect:
'(1) Kasimsaheb Imamsaheb Shaikh has deposed that at the time of said agreement, amount of Rs. 2,000/- was paid and he also deposed that on 24th Aug., 1970 the defendant broke open the lock and took forcible possession of the said rooms'
This evidence of Kasimsaheb suffers from basic infirmity that Kasimsaheb was not a witness of the said agreement Exh. 34. It is doubtful, whether he was present at the time of execution of the agreement Exh. 34. He is husband of the plaintiff. It is not know, why the plaintiff herself did not choose to come in the witness box. For these reasons the evidence of this witness is not sufficient to be accepted for the purposes of proof of the alleged transaction as well as delivery of possession. There is no evidence on record to show that defendant took forcible possession of two rooms on Aug., 24, 1970 It would have been very significant. If this forcible dispossession would have been proved by the plaintiff in this case, but for want possible to accept the statement of Kasimsaheb that plaintiff was put in possession of two rooms and she was again dispossessed.
10. The evidence of second witness relied on by Mr. Nail is a scribe, Narayan Dekeji Murajkar, who has deposed that:
'On the day Rs. 2,000/- were paid, the defendant also gave possession of two rooms.
Relying on this deposition Mr. Naik contended that the delivery of possession should be held proved. I am not able to accept this pat of evidence to be correct. The agreement Exh. 34 itself recites that possession was given on the said day and the recital in the agreement is to this effect
This recital in the Exh. 34 has to be read along with recital regarding the amount of earnest money which is mentioned in the agreement as Rs. 1,842/- and which according to the recital is that this amount was agreed to be kept for depositing in the Post Office for the purpose of paying does of the earlier purchasers referred to in the earlier part of the recital of this document. Evidence of Narayan saying that Rs. 2,000/- were paid and possession was delivered, appears to be discrepant because earnest money mentioned in the agreement is Rs. 1,842/- while Narayan's deposition is that Rs. 2,000/- were paid. Therefore I do not attach much importance to this evidence.
11. Mr. Naik then relied on the evidence of the third witness in order to show that possession must have been delivered as part performance of the agreement Exh. 34, Mr. Naik invited my attention to the deposition of Mr. Abdul Rehman son of Hussinsaheb at Exh. 44, whose deposition is as follows:-
Hayatbi was in possession of two rooms I do not know personally about any transaction between the plaintiff and defendant and Hayatbi. Hayatbi and myself handed over the possession of two rooms to Kasimsaheb. Kasimsaheb paid Rs. 2,000/- to Saheblal and Saheblal paid the said amount to me and thus we delivered the possession to Kasimsaheb.'
It is noticeable that the above evidence is inconsistent and completely discrepant with the evidence given by the witness Narayan, because he refers that the defendant i.e. Saheblal gave possession while the above deposition shows that this witness Abdul Rahiman and Hayatbi handed over possession. Secondly, it is to be noticed that the evidence of this witness suffers from basic infirmly by his own saying that he has no personal knowledge of the transaction which took place between Hayatbi and plaintiff. It is the case of the plaintiff that in view of the earlier transaction the present agreement should be held to be genuine and if that is so the deposition of this witness saying that he has no personal knowledge of the earlier transaction shows that there is no connection between the earlier transaction and the transaction embodied in Exh. 34. It is contrary to the case of plaintiff herself. Therefore this evidence is also quite insufficient to support the case as made out by the plaintiff. In view of this summary or evidence and observations which I have made, it is not possible to accept the contention of Mr. Bhimrao N. Naik that the possession of two rooms must have been delivered as part performance of the alleged contract Exh. 34, Mr. Bhimrao N. Naik the learned Advocate then contended that as stated by the learned Appellate Judge in para 19 of the judgment the plaintiff was residing in rented house and it is likely that she must have paid that amount with a hope that the would get the property of her own. The learned appellate Judge in para 18 of his judgment has stated thus:-
'In view of the evidence on record and the various transactions which have been referred to by the plaintiff in the plaint which were entered into by the defendant with various persons in respect of the suit house, it seems that the plaintiff must be held entitled to the relief of specific performance of the agreement:-
The reason given in this para quoted above seems to be quite irrelevant.The fact that the various transactions referred to by the plaintiff earlier would only show that the defendant is trying to obtain moneys cancelling the earlier transactions and therefore it may perhaps lend support to the defence of the defendant that the transaction which he entered into was in the nature of a loan transaction. It is not that the mere changing the nature of transaction from time to time would give support to either of them, second reason given by the learned Judge that since the plaintiff is staying in the rented house she must have been in the hope to get the property of her own and therefore she entered into this agreement, also is not correct. It would be unreasonable to assume that a tenant staying in the rented house, if entered into any such transaction would like to purchase the house. Almost her point is that the Rent Act is applicable to this case if that is so, it requires to be notice hat not tenant would like to purchased the house instead of remaining satisfied with the benefits of the protection available under the Rent Act. It would be too far to interfere with this case, but suffice it to say that both the reasons given by the learned Judge appear to be incorrect. They do not support the case of the plaintiff as for as the agreement Exh. 24 is concerned. The relevant question which the learned appellate Judge ought to have taken into consideration is. 'What is the effect of non delivery of possession in part performance of the agreement' and secondly, different versions of the plaintiff in respect of principle terms of payment of earnest money under the agreement. Unfortunately, the learned appellate judge committed the basic effort in wrongly assuming that the delivery of possession was made as part performance of the contract as held by him in para 17 of the judgment and which error according to me has vitiated his judgment and this is a clear error of law. Because if the finding was based on vital points on his erroneous assumption as to the view of the trial Court and it was also vitiated because the learned appellate Judge had not chosen to examine or discuss the evidence in detail. Therefore, in my opinion, the judgment of the appellate judge is liable to be set aside in this appeal. No other point is urged in this second appeal.
12. It may be stated here that the jurisdiction for the decree of specific performance is discretionary and in my opinion the discretion in refusing to give the decree was rightly exercised by the learned trial judge relying on the various circumstances. Although in appeal It is liable to be corrected u/s. 20, Specific Relief Act. For the reasons which I have given above, the learned appellate judge committed an error in understanding the view of the learned trial judge regarding the delivery of possession, the learned appellate judge came to the erroneous conclusion as shown by me above and therefore, in my opinion the discretion which was exercised by him in reversing the decree passed by the trial Court was not properly exercised and it appears that because of this erroneous approach and finding the committed an error in passing the decree for specific performance of agreement of sale Ex. 34 in this case.
13. In the result, I allow the appeal and reverse the decree of learned appellate judge and resolve that of the learned trial judge. Mr. Lalit pointed out to me that the decree of the appellate court regarding the costs through out should be maintained and he also made a grievance that he has succeeded to the extent of Rs. 2,250/- and therefore costs should be allowed. As the matter relates to the grant of decree for specific performance of the contract and the jurisdiction as I have stated is discretionary. I have reversed the decree of the appellate court. I do not see an reason to maintain the decree as far as the cost given to the defendant is concerned and therefore the decree of the appellate court is reversed and the appeal is allowed with no order as to costs.
14. Appeal allowed.