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Maharao Brijraj Singh and anr. Vs. Saraswati Devi Sharma - Court Judgment

LegalCrystal Citation
SubjectCivil;Contract
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 100 of 2000
Judge
Reported in2003(3)WLN16
AppellantMaharao Brijraj Singh and anr.
RespondentSaraswati Devi Sharma
DispositionAppeal allowed
Cases Referred and Satyabrata v. Mugneeram
Excerpt:
.....1999--section 3--temporary injunction--appeal--temporary injunction granted by trial court in a suit for specific performance of oral agreement to sell land on basis of receipts showing payments to defendants--suit land was initially acquired by state govt. under urban land ceiling and regulation act, 1976 in year 1990, but released from its acquisition in year 1993 and was handed over to appellants--held, receipts of payment not showing for what account payments were made--on the basis of money receipts, no presumption of prima fade case could be drawn in favour of plaintiff at interlocutory stage--terms of oral agreement alleged to have been entered into, neither stated in pleadings nor there is prima fade evidence to support prima fade case in favour of plaintiff--plaintiff neither..........in the possession of the plaintiff over the suit land during pendency of suit no. 1/2000 for specific performance of the contract.2. plaintiff-respondent instituted a suit seeking specific performance of contract and permanent injunction against maharao brijraj singh & thakur prithvi singh in respect of 80 bighas of agricultural land situated in village rampura tehsil ladpura district kota renowned as ummaid vilas enclave, bearing khasra nos. 433, 434, 436 to 439, 440 to 489, 491, 492/684 and 546/691. in the plaint, it was admitted case that the suit land stood acquired by state govt. under the urban land ceiling & regulation act, 1976 (for brevity ulcar act) but by order dated 24.2.1990, it had been released from its acquisition with the stipulation that suit lands would be.....
Judgment:

Arun Madan, J.

1. This misc. appeal arises out of order dated 2.2.2000 passed by the Addl. Judge No. 1, Kota in application for temporary injunction, whereby appellants (defendant) have been restrained from interfering in the possession of the plaintiff over the suit land during pendency of suit No. 1/2000 for specific performance of the contract.

2. Plaintiff-respondent instituted a suit seeking specific performance of contract and permanent injunction against Maharao Brijraj Singh & Thakur Prithvi Singh in respect of 80 Bighas of agricultural land situated in village Rampura Tehsil Ladpura District Kota renowned as Ummaid Vilas Enclave, bearing Khasra Nos. 433, 434, 436 to 439, 440 to 489, 491, 492/684 and 546/691. In the plaint, it was admitted case that the suit land stood acquired by State Govt. under the Urban Land Ceiling & Regulation Act, 1976 (for brevity ULCAR Act) but by order dated 24.2.1990, it had been released from its acquisition with the stipulation that suit lands would be allotted to weaker sections of the society for constructing their houses after due sanction of the UIT Kota.

3. The plaintiff sought specific performance of an oral agreement alleged to have been entered on 24.2.1990 in between Bhim Singh (f/o Brijraj Singh defendant No. 1) and plaintiff Saraswati Devi and whereby it was agreed that the plaintiff would pay Rs. 12 lacs to Maharao Bhim Singh who had to get sanction of construction and approval of the scheme from UIT Kota, and whereafter a sale deed pursuant to oral agreement to sell the suit land was to be executed and registered, so as to enable the plaintiff to carve out plots for allotments to the weaker sections of the society at cheaper rates as per State Govt.'s order. Maharao Bhim Singh died in July, 1991. Brijraj Singh is son of Bhim Singh while Prithvi Singh was Private Secretary of Bhim Singh.

4. In the plaint, it was also case of the plaintiff that pursuant to oral sale agreement, 80 Bighas of suit land had been handed over by delivery of possession in her favour by Maharao Brijraj Singh, because she had paid sale consideration of Rs. 21 lacs on 26.2.1990, Rs. 6 lacs on 8.3.1990, Rs. 2 lacs on 15.3.1990 and Rs. 2 lacs on 22.3.1990 to Maharao Brij Raj Singh under its receipts issued by his agent and private Secretary Prithvi Singh (defendant No. 2). But, the defendants did not execute and get registered a sale deed pursuant to oral sale agreement rather they kept on prevaricating and despite the fact that the plaintiff had been in cultivatory possession over the suit land since 1980 and after such an oral agreement to sale, her possession was as a purchaser, the defendant No. 2 (Prithvi Singh) alongwith others attempted on 20.1.2000 to take back forcibly possession of the suit land so as to dispossess therefrom and thereby the plaintiff had to lodge an FIR besides preferred to institute a suit for specific performance, alongwith temporary injunction.

5. In written statement as well as reply to the T.I. application, the defendants denied to have entered into any oral sale agreement with the plaintiff, and further alleged that the receipts produced by the plaintiff are forged inasmuch as these receipts did not contain description of the land in dispute. The defendants contended inter alia that the suit land had been recorded in the names of Khatedari Shiv Kumari w/o Bhim Singh, Indira Kumari, Bhuvnesh Kumari alongwith Bhim Singh in A/C No. 77, but they have not been impleaded as defendants. The possession of the plaintiff was also denied. The defendant No. 1 had even denied that the defendant No. 2 was ever private secretary of his father. It was the defendant's case that the suit land could only be allotted to lower and middle class of society therefore, could not have been sold, nor oral sale agreement could have been entered into with the plaintiff because such an agreement was ab-initio void being against public policy in the eye of law and not enforceable, inasmuch as, no rights could accrue to the plaintiff, on such oral agreement nor suit for specific performance is maintainable for such oral sale agreement.

6. It was also case of the defendant No. 1 that he had also filed a suit before the Asstt. Collector on 18.1.2000 for permanent injunction therefore, the T.I. application in the present plaintiffs suit was not maintainable inasmuch as according to Sections 10 & 151 CPC, the hearing on the T.I. application alongwith suit, itself, ought to have been deferred. Further, the defendant No. l averred that all communications to the Ceiling Authority and State Government were made by him and after deacquisition on 16.12.1993, suit land was handed over to him. The defendant No. 1 also raised objection that the suit being instituted after 10 years was time barred.

7. After having heard both the parties on the application seeking temporary injunction, the learned trial Court granted temporary injunction, by order dated 2.2.2000. Hence this appeal.

8. Arguments were heard at length. The learned counsel for both the parties have made lengthy submissions by taking although the material on record so as to appreciate each and every fact and circumstances averred in the pleadings of the parties and brought on record. During the course of hearing, I found that both the learned counsel have reiterated their contentions raised before the trial Court by having referred to their respective pleadings on record. Shri K.K. Mehrish on behalf of the defendant laid much stress to take different view than expressed by the trial Court because Shri Mehrish contended that in exercise of its discretion the trial Court has acted unreasonably and capriciously rather has ignored relevant facts and, therefore, according to Shri Mehrish it is an appropriate case where this appellate Court must exercise its jurisdiction to interfere with discretion illegally and unreasonably exercised by the trial Court in granting the impugned temporary injunction in favour of the plaintiff. Shri Mehrish placed reliance upon a decision of the Apex Court on Pradesh Cooperative Federation v. Sunder Bros. Delhi, : AIR1967SC249 .

9. Shri Mehrish though relied upon a catena of decisions in support of his contentions so as to interfere with the impugned temporary injunction, but in order to avoid reiteration of the dictum of law laid down in the cited decisions, I restrict myself to refer to some of the decisions with a view to decide present controversy only at appropriate stage while dealing with relevant question.

10. Per contra, learned counsel for the plaintiff laid great emphasis by contending that no doubt it is trite law that in an appeal against the temporary injunction granted by the trial Court in exercise of its discretion, the appellate Court has to see as to whether such a discretion was based upon settled principles of law and whether the trial Court arrived at its conclusions in exercise of such a discretion in a reasonable and judicious manner. But, according to Shri Hardev Singh, learned Sr. Advocate appearing for the plaintiff, the Appellate Court can interfere only in a case where the discretion is exercised by the trial Court arbitrarily, capriciously or in a perverse manner, and while adjudging this aspect the Appellate Court must continue itself to decide merely on the material brought before the trial Court; and that apart the Appellate Court cannot substitute its own opinion in exercise of power under Order 43 Rule 1 CPC even if it would have reached a different conclusion.

11. Shri Hardev Singh and his associates appearing for the plaintiff strongly contended that the discretion exercised by the trial Court (so as to grant the impugned temporary injunction on the meticulous scrutiny of the affidavits and other material on record by arriving at the inescapable conclusion that mere denial on the part of the defendants as to the plaintiffs continuous possession for last two decades is totally false) has not only been exercised reasonably and judiciously but also founded on the inevitable conclusion which can be arrived at. Lastly, Shri Hardev Singh urged that basic fallacy of the present challenge herein this appeal does not fall within the purview of considerations by this Appellate Court whereas the decision on temporary injunction has not to be confused with the decision of merits of the suit, inasmuch as the impugned order cannot be decided on the technicalities such as maintainability, joinder of parties.

12. Having heard and considered the rival contentions of both the parties and perused the record with reference to their respective contentions besides the citations referred to at the bar during the course of arguments, I must at the very outset mention the fetters wrung out of the dictum of law as to exercise of appellate powers against the impugned discretion exercised by the trial Court.

13. No. doubt, an appeal against exercise of discretion since is said to be an appeal on principle, therefore, the Appellate Court will not reassess the material on record so as to reach a conclusion different from the one arrived at by the trial Court if the one reached by that Court was reasonably possible on the material. If the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view, may not justify interference with the trial Court's exercise of discretion. (See Wander Ltd v. Antox India (P) Ltd, 1990 (Supp) SCC 727 followed in Printers (Mysore) (P) Ltd v. Pothan Joseph, : [1960]3SCR713 and relied upon in NR Dangre v. Whirlpool Corpn. : (1996)5SCC714 .

14. In my considered view, interference in this appeal would be called for only if I conclude that the exercise of discretion in favour of the plaintiff is contrary to the settled principles for the grant of a temporary injunction or that it is arbitrary or perverse. The interlocutory remedy is intended to preserve in status quo the right of parties which may appear on a prima facie case. Thus, I am also conscious of one of fetters laid down by the Apex Court in a plethora of decisions on the present context that while interfering with the exercise of discretion of the trial Court this appellant Court will not substitute its own discretion except where such a discretion is shown to have been exercised arbitrarily, or capriciously or perverse or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions.

15. Let me now advert to examine the tenability of the grounds on which the impugned temporary injunction granted by the trial Court is assailed in this appeal. In the instant case, the trial Court held prima facie case in favour of the plaintiff for grant of temporary injunction inter alia on the ground that though the receipts clearly revealed that they were issued by the defendant No. 2 Prithvi Singh in lieu of sale of Ummed Vilas but since the defendants could not establish that if these receipts were not issued against oral agreements then for what purpose they were issued. Be that as it may, since it is a case of the plaintiff for grant of temporary or permanent injunction in a suit for specific performance on the basis of oral agreement, the trial Court under the impugned order of temporary injunction prima facie held on the basis of the receipts that oral agreement was made by Maharao Bhim Singh and the plaintiff to sell the suit land. But in my considered view, such conclusion to hold prima facie for grant of temporary injunction in favour of the plaintiff on the basis of such receipts which did not state at all as to for what account payments were made. In any of these receipts relied upon is not clear as to whether, it was at alleged oral sale of agreement? At the stage of consideration for grant of temporary injunction, the conclusion arrived at by the trial Court that since the defendants or their counsel failed to establish that these receipts were not being issued against alleged oral agreement or as to for what purpose they were issued, was totally perverse would it not be an absolutely fallacious approach to be adopted in such matters?; and having ignored settled principles of law regulating the grant or refusal of interlocutory injunction because first of all it is for the applicant seeking temporary injunction to establish prima facie that the receipts on the basis of which specific performance of oral sale agreement is sought, were issued by the defendants against sale consideration under oral agreement, especially when these receipts did not specifically make it clear or establish by stating therein the purpose of payment of such amount. The onus of proof to establish such a thing was heavily on the plaintiff so as to seek temporary injunction by showing prima facie case on the basis of such receipts, and not on the other side. No such presumption as having been raised by trial Court to conclude prima facie case in favour of the plaintiff on the basis of payment receipt of the year 1990 out to have been drawn at interlocutory stage by arriving at the conclusion that the defendants or their counsel failed to establish as to for what purpose these receipts were issued.

16. Next plunge of attack with regard to prima facie case in a suit for specific performance is that according to Section 16 of the Specific relief Act, 1963 (for short the Act, 1963), and as held in O. Verghese v. Joseph Aley : [1970]1SCR921 , the plaintiff must plead and prove that he has been and is still ready and willing to specifically perform his part of the agreements and that he had applied to defendants specifically to perform the agreement to sale, otherwise the suit for specific performance is not maintainable. In the instant case upon a careful consideration of the impugned order, I find that the trial Court has ignored this legal aspect of the case. Having perused the pleadings on record, I find that terms of oral agreement alleged to have been entered into between the plaintiff and Maharao Bhim Singh have neither been stated in the pleadings by the plaintiff (respondent) nor there is prima facie evidence to support thereof so as to establish prima facie case at this stage in favour of the plaintiff for grant of temporary injunction.

Section 16 of the Act, 1963 reads as under:

Section 16, Personal bars to relief:

Specific performance of a contract cannot be enforced in favour of a person--

(a) who would not be entitled to recover compensation for its breach; or

(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract, or

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, otehr than terms of the performance of which has been prevented or waived by the defendant.

Explanation.--For the purpose of Clause (c)--

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

17. Once Section 16 ibid puts a bar to a relief in a suit for specific performance and in other words, specific performance cannot be enforced as envisaged in Sub-section (c) in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. That apart, as per explanation (ii) to Section 16, the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Similarly a suit for specific has to conform to the prescribed Forms 47 & 48 of Schedule-I of the CPC. That being so, the Apex Court in Prem Raj v. DLF Housing Construction (P) Ltd. : [1968]3SCR648 referred to in O.Varghese v. Joseph Aley, (supra) held that in a suit for specific performance it is duty of the plaintiff not only to set out agreement in all its details, but also he must go further and plead that he has applied to the defendants to perform the agreement and that he is ready and willing to perform his part otherwise in the absence thereof the suit is not maintainable. This dictum of law (supra) has also been reiterated in Abdul Khader Rowther v. PK Sarai Bai : 1989(43)ELT797(SC) . As already found above, in the instant case, the plaintiffs suit for specific performance does not conform to the requirements prescribed in Forms 47 & 48 and therefore, at this stage without expressing any opinion on the merits of the suit, but I do not find any prima facie, case for grant of temporary injunction in this view of significant legal aspect which has been altogether ignored by the trial Court while issuing temporary injunction in favour of the plaintiff.

18. My attention was also drawn to Section 20(2)(c) of the Act, 1963. Section 20(2) of the Act, 1963 which provides that following are cases in which the Court may properly exercise discretion not to decree specific performance:

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, or

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, make its inequitable to enforce specific performance.

19. According to Shri Mehrish, the present suit is a case where it is inequitable to enforce specific performance of the said oral agreement pleaded by the plaintiff by virtue of exemption granted in favour of the vendor Maharao Bhim Singh (defendant) under Section 20 of the ULCAR Act, in respect of the suit land of 80 Bighas and that being so, Bhim Singh could not have entered into an oral agreement otherwise also, as it was against public policy, being violative of provisions contained in Section 23 of the Contract Act, 1872, and such an exemption could have been withdrawn under Section 20(2) of the ULCAR Act which provides as under:

(2) If at any time the State Government is satisfied that any of the conditions subject to which any exemption under Clause (a) or Clause (b) of Sub-section (1) is granted is not complied with by any person, it shall be competent for the State Government to withdraw, by order, such exemption after giving a reasonable opportunity to such person for making representation against the proposed withdrawal and thereupon the provisions of this Chapter shall apply accordingly.

23. What consideration and objects are lawful, and what not. - The consideration or object of an agreement is lawful, unless it is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regard it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

20. In the instant case, as per the plaint it is an admitted case of the plaintiff that an exemption was granted to Maharao Bhim Singh (alleged vender) under Section 20(1) of the ULCAR Act for construction of houses for medium and low income group persons then certainly Maharao Bhim Singh had no power to alienate the suit land of 80 Bighas and therefore, even if the plaintiffs as pleaded for having entered into an oral agreement to sell the suit land in her favour, for which specific performance is sought, is accepted prima facie. to be true, even then, by virtue of Section 20(2) of the ULCAR Act, such an oral agreement being opposed to public policy and its object being unlawful and it being forbidden by law and further it would defeat the provisions of the ULCAR Act, the disputed oral agreement and contract of sale is ex-facie void ab initio under Section 23 of the Contract Act, 1872 and thereby it cannot be said that the plaintiff had a prima facie even as per his own pleading in the suit for specific performance on the basis of such an void agreement, and atleast the plaintiff has no case for grant of temporary injunction. The trial Court ignored this significant legal aspect which goes to the root of the case, itself, on the basis of which no prima facie case is made out in her favour. Hence the trial Court committed illegality and has not properly exercised the discretion for temporary injunction. I am conscious of the fact that the ULCAR Act albeit has been repealed by the ULCAR (Repeal) Act, 1999 but concomitantly, under saving clause thereto, as provided in Section 3 thereto, the repeal of the principal Act (ULCAR) shall not affect (a) the vesting of any vacant land under Sub-section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; (b) the validity of any order granting exemption under Sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any Court to the contrary.

21. As regards possession over the suit land since 1980, the plaintiff had merely produced copies of receipts of payment of tax made to some of departments or grain merchants, but curiously enough without expressing any opinion on merits thereon, prima facie they relate to earlier year of 1980 because they do not specify Khasra numbers of suit land and thus cannot have any relevance or connection to the possession over the suit land so as to prima facie establish it in her favour but contrarily this aspect has been denied by the defendants by contending inter alia that vide order dated 30.6.1990 the State Government had stayed operation of its earlier order dated 24.2.1990 directing the Collector to ensure that no construction is done on the suit land nor possession thereof be transferred in favour of anybody else; that a suit for perpetual injunction against the present plaintiff and her son has been pending before the Revenue Court where a temporary injunction had been issued on 18.1.2000 in favour of the defendant No. 1 and that from the copies of inventory of the private property of Maharao Bhim Singh as sanctioned by the Government of India vide Dakhalnama dated 1.7.1993, inasmuch as on the other hand, the plaintiff did not produce Khasra Girdawaries of earlier or subsequent years to the alleged oral sale agreement with a view to prove prima facie case of her possession for these years and further that the plaintiff herself alongwith application under Order 41 Rule 27 CPC produced a copy of Khasra Girdawari which prima facie established possession of defendant No. 1 over the suit land. Be that as it may, all these aspects having not been considered rather eschewed as irrelevant for while exercising the discretion, in my considered view, are sufficient to reverse the temporary injunction granted by the trial Court under the impugned order. Other documents produced by plaintiff alongwith application under Order 41 Rule 27 CPC, having been prepared after presentation of the appeal and cannot be relied upon being not relevant and useful for decision of this appeal by this Court and therefore, such an application for taking on record these other documents is dismissed.

22. That apart, as held in Radhakishan v. Sridhar : [1961]1SCR248 and Satyabrata v. Mugneeram : AIR1954SC44 , under Section 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property, because where, the parties enter into a mere agreement to sell, therefore, it creates no interest in favour of the vendee and the proprietary title does not validly pass from the vendors to the vendee. The obligation of the parties to a contract for sale of land are therefore, the same in other ordinary contracts and consequently the doctrine of frustration is applicable to contracts for sale of land in India.

23. Moreover, the law is well settled that the contract for sale is a right being created in personam and not in estate. No privity in estate can be deduced therefrom, which may bind the Estate as in cases of mortgage, charge or lease. Merely personal right is created to the purchaser so as to seek specific performance which may ultimately bind any subsequent transferee who if any gets transfer of property with notice of agreement to sell, but till a decree for specific performance of a contractor is obtained, the seller is entitled to full enjoyment of the property. Even otherwise if a decree for specific performance of a contract is obtained and no sale deed is actually executed, even then, it can also not been said that any interest in the suit property is vested. Thus viewed, no temporary injunction could have been granted at the instance of a person like the present plaintiff in whose favour the agreement to sell is executed till decree of specific performance is passed or obtained by him.

24. In ultimate analysis, I must hold that the learned trial Court has committed a manifest error of law and jurisdiction in holding that the plaintiff-respondent has succeeded to establish prima facie case, balance of convenience and irreparable injury in her favour, therefore, she is entitled to obtain equitable discretionary relief of temporary injunction under Order 39 Rules 1 & 2 CPC. As noticed above it has ignored aforesaid significant facts and circumstances besides legal aspect of the matter including the maintainability of suit for adjudging the prima facie case, which lead towards an irresistible conclusion that the plaintiff miserably failed to establish a clear and free from objection a prima facie case on equitable grounds. The learned trial Court has failed to take judicial notice of the mandatory provisions of the Specific Relief Act, Indian Contract Act, Transfer of Property Act, ULCAR Act, ULCAR (Repeal) Act, referred to in earlier part of this order, as well as mandatory provisions envisaged under Section 10 read with Section 151 CPC which has resulted in miscarriage of justice, warranting interference by this Court in exercise of its appellate jurisdiction.

25. In the result, this appeal is allowed; order dated 2.2.2000 of the ADJ No. 1, Kota referred to in 1st para of this judgment is set-aside. Since I have examined the matter at an interlocutory stage, none of the observations contained in this judgment shall affect the final decision of the suit on merits after recording of evidence, and whatever has been stated hereinabove shall not prejudice the parties in these civil and revenue proceedings pending before competent Court of law. Having regard to the nature of the controversy, it will be appropriate and expedient in the interest of justice if the trial Court disposes of the suit itself, expeditiously. No order as to costs.


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