1. It is plaintiffs appeal whose suit the declaration and possession has been dismissed by the trial Court.
2. The suit was instituted on 21st Mar. 1963 for the specific performance of agreement dated 1st Dec. 1957 made by the defendant Som Parkash to execute a gift deed and get it registered in respect of the suit land and in the alternative for a declaration that the plaintiffs were owners in possession of the suit land and for an injunction restraining the defendant from interfering in their possession.
3. The brief facts are that one Maya Dass was the owner of the suit property. He died issueless and without any widow. The plaintiffs Karam Dass, Biram Dass, Gurbachan Dass and the defendants Som Parkash and Charan Dass are his nephews. Maya Dass became a Udasi Sadhu and at the fag end of his life he adopted defendant Som Parkash as his Chela. The plaintiffs wanted to contest the said adoption. However in order to avoid litigation, Maya Dass agreed to give 60 Kanals of land to the plaintiffs in equal shares out of his land situate at Banga. He further agreed to give 40 Kanals of land to Biram Dass and Gurcharan Dass plaintiffs out of his land situate at villages kajla and Bala and 12 Kanals of land to Karam Dass plaintiff situate in these two villages. At the time of that agreement, the plaintiffs were not possessed of any money to defray expenses of the stamp and registration of the gift deed. Consequently it was agreed that the gift deed would be executed after thirteen days of the Lohri in the year 1957. Meanwhile Maya Dass died before the gift deed could be executed. After his death, the defendant being his Chela succeeded to the estate left by Maya Dass. He also agreed to execute the gift deed as promised by his Guru Maya Dass and in this behalf executed a formal agreement dt. 1st Dec. 1957 (Ex. P1). It was stipulated herein that the gift deed would be executed after the consolidation proceedings in village Banga were over and the mutation of inheritance in respect of the land in village Bala had been sanctioned. Although the consolidation proceedings were over, the defendant was reluctant to execute the gift deed. The plaintiffs sent a notice to the defendant in this behalf. The defendant sent a telegram in reply saying that he would execute the gift deed on 2nd Feb. 1963. The plaintiff reached the office of the Sub-Registrar on that Day but the defendant did not turn up. Thus, the plaintiffs had always been ready band willing to perform their part of the agreement. They prayed for a decree for specific performance of the agreement dt. 1st Dec. 1957 and, in the alternative, for a declaration.
4. The suit was contested by the defendant Som Parkash, inter alia, on the plea that after execution of the agreement Ex. P.1, dated 1st Dec. 1957 a fresh agreement dt. 2nd Aug. 1962 (Ex. DI) was executed and by virtue of that agreement, the earlier agreement stood rescinded and cancelled. It was, therefore, maintained that the suit on the basis of the agreement dt. 1st Dec. 1957 was not competent. A plea was also taken that the agreement Ex. P1 was without consideration and the plaintiffs had obtained the defendants signatures thereon under threat and undue influence. After the filing of the written statement, the plaintiffs moved an application dt. 29th Aug. 1963, under O. 6. R. 17, Civil P. C., for amendment of the plaint so as to claim the relief on the basis of the agreement of the plaint so as to claim the relief on the basis of the agreement Ex. D.1 which was pleaded by the defendant in his written statement. However, that application was contested on behalf of the defendant. Ultimately, the trial Court allowed the amendment of the plaint vide its order dt 22 nd Oct. 1963, on payment of costs which were duly paid. Thus, the amended plaint filed along with the application for amendment was treated to be the plaint in the suit. Written Statement to the amended plaint was also filed on 3rd Dec. 1963. Later on, the trial Court framed two preliminary issues as to whether the suit was bad for multifariousness and whether the suit had not been properly valued for Court fee and jurisdiction. The trial Court vide its order dt 23rd Jan. 1964, came to the conclusion that the plaintiff is given option to remove the defects by 29th Jan 1964 and amend the plaint accordingly. In other words, the plaintiff was restored to its original position as to when the suit was filed on 21st Mar. 1963 and the earlier order passed by the trial Court allowing the amendment dt 22nd Oct. 1963 was, thus, set at naught. On the pleadings of the parties the trial Court framed the following issues:--
1) whether there was any agreement dt. 2-8-62 between plaintiffs and defendant and Charan Dass; if so to what effect?
2) Whether the plaintiffs are entitled to the possession of the suit land on the basis of the agreement dt. 1-2-57?
3) Whether the plaintiffs are entitled to get the gift deed executed and registered in their favour?
4) Whether the plaintiffs are entitled to declaration and injunction prayed for?
5) Whether the agreement dt, 1-12-57 was got executed under undue influence; if so, to what effect?
7) Whether the agreement dt 1-12-57 is without consideration; if so to what effect?
Ultimately, the suit was dismissed by the trial court vide its judgment dt. 30th April, 1964, Aggrieved by the judgment and decree the plaintiff filed Regular First Appeal No. 176/1964. The said appeal was disposed of on 29th April, 1976 by a short order whereby the decree of the trial Court was set aside and the suit was remanded to the trial Court. After remand two additional issues were framed which are to the following effect:--
'8. Whether Maya Dass was owner of the property in dispute or the property belonged to Bhek?
9. If issues No. 8 is not proved and it is found out that the property belonged to Bhek could, it be alientated by the Manager of the Bhekh?
Ultimately the Trial Court again dismissed the plaintiffs suit mainly on the ground that the agreement dt 1st Dec. 1957, on the basis of which the plaintiffs had claimed the relief in the present suit had been substituted by agreement dt. 2nd Aug. 1962 (Ex.D1) and therefore, the earlier agreement was no longer valid and the plaintiffs suit on that score could not succeed.
5. As observed earlier, the trial Court had dismissed the plaintiffs suit primarily on the aground that the agreement Ex. P1 dt. 1st Dec. 1957 was superseded by the subsequent agreement Ex. D1 dt 2nd. Aug. 1962, and, therefore, no relief could be granted on the earlier agreement. The learned counsel for the plaintiff-appellants submitted in the first instance that the order of the trial Court dt. 23rd Jan. 1964 whereby the plaintiff was given an option to remove the defects in the plaint was wrong and illegal. In any case, argued the counsel having allowed amendment of the plaint vide order dt. 22nd Oct. 1963, there was absolutely no occasion for the trial Court to come to a different finding subsequently on the same point. Thus, according to the counsel, if the amended plaint dt. 29th Aug. 1963, is restored, the plaintiffs are entitled to the relief on the basis of the agreement Ex. D1 as well. According to the learned counsel, though the earlier agreement Ex. P1 was also not rescinded by the subsequent agreement Ex. D1 as the pre-conditions for rescinding the agreement were not fulfilled but in any case the plaintiffs could not be non-suited on that ground alone. They were entitled to the relief even under the agreement Ex.D1 for which the decree could be passed in their favour. In support of this contention, reliance was placed on Vishram Arjun v. Shankariah AIR 1957 Andh Pra 784.
6. On the other hand, learned counsel for the defendant respondent submitted that since the suit was based on the agreement Ex. P1 and since that agreement was cancelled or rescinded by the subsequent agreement Ex.D1 then the plaintiffs were not entitled to any relief and the suit had been rightly dismissed.
7. I have heard the learned counsel for the parties and have also gone through the relevant evidence on record. It is unfortunate that this dispute had been pending since the year 1963. No doubt, as a general rule no plaintiffs is entitled to a relief for which there is no foundation in the plaint but when on the pleadings and the issues and the evidence adduced the relief is clear, this general rule does not apply because it is the duty of the Court to grant relief as the circumstances of the case would warrant even though it may not be asked for. Reference in this respect be made to Vishram Arjun's case (supra). It has also been observed therein that the primary duty of Courts, after all, is to do justice. Rules of procedure are intended only to advance the cause of justice rather than to impede the same. All that the Court is to guard against is that no prejudice has been done or no surprise has been sprung to the other party. It is the case of the defendant Som Parkash himself that the earlier agreement Ex. P1 was superseded by another agreement Ex.D1 dt 2nd Aug. 1962. As a matter of fact, the plaintiffs were allowed to amend their plaint when this plea was taken in the Written Statement and amended plaint dt 29th Aug. 1963 was also accordingly filed. Charan Dass, one of the brothers of the parties, who was not a party to the original suit was also impleaded therein as the defendant. It is quite surprising that later on the said order of amendment of the plaint dt. 22nd Oct. 1963 was set at naught by another order dt. 23rd Jan. 1864. If that amended plaint dt 29th Aug 1963 was there, then it could not be successfully argued on behalf of the defendant that the plaintiff were not entitled to the relief under the agreement Ex.D1 assuming that the earlier agreement Ex.P1 was superseded by the subsequent one. Since on all the material issues. the finding has been given in favour of the plaintiffs I do not find any justification for sending the case back again for re-trial on the basis of amended plaint dt 29th Aug. 1963. All the relevant facts are on the record. Ex.D1 had been duly proved and is admitted by the defendant himself. Thus, on the facts and circumstances of the case, the plaintiffs are entitled to the relief on the basis of the amended plaint dt 29th Aug 1963 in accordance with the terms of the agreement Ex.D1
8. In order to make it clear, according to the terms of the agreement x. D1 the parties agreed to execute a fresh agreement in the following manner:--
'There is a mention regarding execution of gift deed in respect of the lands situate in Village Banga, Bala and Kajla in the previous agreement deed. Now in lieu of it, registered gift deed in respect of entire land situate in village Kajla comprised in................total area 44 Kanals 16 Marlas and land measuring 55 Kanals 14 Marlas Kham situate in the area of village Balla at well Sadhan Wala.............................Will be executed by the first party in favor of the second party in equal shares within a period of 6 months according to the terms envisaged in the agreement deed. The registration expenses of all kinds in respect of the deed will be borne by the second party. Two killas of land out of abovementioned area is mortgaged with possession on behalf of the first party in favour of Karam Dass, Biram Dass and sons of Ram Chand in equal shares. The mortgage money of this land is to be paid by the first party out of his own pocket within the fixed period. If he fails to pay off the mortgage money on any account then the first party will give some area for temporary cultivation to the second party. The parties will be under all circumstances bound by the abovementioned terms. No party will resil in any way. In case the first party contravenes the terms and will not get the gift deed registered in favour of the second party then in that case the first party will be liable to pay a sum of Rs. 20.000/- only as costs to the second party. The previous agreement deed shall stand absolutely rescinded after the execution of registered gift deed. In case second party contravenes abovementioned terms in any way, this will also be liable to pay a sum of Rs. 20,000/- only as costs to the first party and they will be liable in all respect. The second party will not be at all entitled to my personal and other property. The either party will be entitled by all means to file a suit for performance of the agreement against the defaulting party hence this agreement deed has been reduced to writing so that it may serve as an authority.
Dated the 2nd August, 1962.'
9. As observed earlier, since the facts are not disputed and rather admitted, the plaintiffs are entitled to the relief under the said agreement Ex.D1 as reproduced above. Consequently, the appeal succeed, the judgment and decree of the trial Court is set aside and the suit is decreed by way of specific performance of the agreement Ex.D1 dt. 2nd Aug. 1962 and a decree for possession of the land mentioned therein as per the relief claimed in the alternative in the amended plaint dt 29th Aug 1863 is granted in favour of the plaintiffs and defendant 2 Charan Dass againsnt Som Parkash, defendant. However, there will be no order as to costs.
10. The necessary stamp and registration charges etc. will be deposited by the plaintiffs within two months and on deposit of the same Som Parkash will execute the necessary gift deed as per the terms of the agreement Ex. D1 failing which the executing Court shall get the gift deed executed in accordance with law.
11. Appeal allowed.