1. This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellant/plaintiff against the judgment and decree of the Court of learned District Judge, Kullu, dated 24.3.2000, affirming the judgment and decree of the Court of learned Senior Sub Judge, L & S at Kullu, dismissing the suit of the plaintiff/appellant for specific performance.
2. Briefly stated, the facts of the case are that the appellant hereinafter also referred to as the plaintiff, filed a suit for specific performance of contract as against the respondents, who were impleaded as defendants No. 1 to 3. It was alleged by the plaintiff that the land in suit comprised in Khasra No. 1187 as detailed in the plaint was entered in the name of defendant No. 1 as mortgagee in possession.
It was further alleged that defendant No 1 proclaimed that he has become the owner of the suit land since the mortgage has not been redeemed and as such, he entered into an agreement dated 3.3.1989 with the plaintiff, vide which he agreed to sell the suit to the plaintiff for a sum of ` 15,000/-. A sum of ` 14,000/- was paid to defendant No. 1 at the time of execution of the sale deed and ` 1000/- were to be paid at the time of execution of the sale deed.
It was further alleged that as per the terms of the agreement, the sale deed was to be executed within a period of five years. It was also alleged that the possession of the suit land was given to the plaintiff at the time of execution of the agreement. It was further alleged that defendant No. 1 sold the suit land to defendants No. 2 and 3, which sale deed was challenged being fictitious and without possession. Hence, the suit for specific performance of the contract filed by the plaintiff.
3. Defendant No. 1 who allegedly executed the agreement in favour of the plaintiff as well as defendants No. 2 and 3, did not contest the suit and did not file any written statement and was proceeded against ex parte. Defendants No. 2 and 3 vide their written statement took up preliminary objections in regard to mis-joinder, court fees, jurisdiction and maintainability etc. On merits, they pleaded that defendants No. 2 and 3 are husband and wife and defendant No.3 has purchased the land in suit vide registered sale deed dated 3.5.1990 from defendant No. 1 in the name of his wife and since then, defendant No. 3 is the owner in possession of the suit land. It was also alleged that defendants No. 2 and 3 had verified from the Patwari and it was found that defendant No.1 was in possession of the suit land and there was no bar to the execution of the sale deed. He further pleaded that defendant No. 3 was a bonafide purchaser for value and in good faith and as such, the sale deed is binding. He also denied the allegations made in regard to the fraud committed in execution of the sale deed in favour of defendants No. 2 and 3. It is also pleaded that they had no knowledge of the alleged agreement nor the plaintiff was ever in possession of the suit land.
4. The learned trial Court has framed as many as 11 issues and Issue No. 6 is relevant - whether the plaintiff paid a sum of Rs.14000/- as earnest money and the possession was delivered to the plaintiff and the rest of sale consideration was to be paid at the time of registration as alleged? The learned trial Court held that since the plaintiff had failed to prove that a valid agreement was executed in between the plaintiff and defendant No. 1 and that defendant No. 3 was a bonafide purchaser for value and as such, dismissed the suit of the plaintiff for specific performance. Those findings are affirmed by the learned Appellate Court.
5. I have heard the learned counsel for the parties and have gone through the record of the case.
6. It was submitted by the learned counsel for the appellant that the findings under Issue No. 5 were recorded by the learned trial Court and were affirmed by the learned Appellate Court on grounds not pleaded and on irrelevant considerations. It was submitted that defendant No. 1, who had entered into an agreement, did not contest the suit and did not take any plea that the agreement in question was not executable for some reasons, but the learned trial Court found some infirmities in the said agreement and concluded that the agreement in question has not been proved, which findings were wrongly affirmed by the learned Appellate Court. It is, therefore, clear that the learned trial Court had dismissed the suit of the plaintiff by recording the findings under Issue No. 6 that the agreement in question has not been proved to be a valid agreement since it was surrounded by suspicious circumstances and as such, these findings were recorded as against the plaintiffs.
7. To my mind, the findings under Issue No. 6 have not been given by the learned trial Court based upon the pleadings of the parties, but on assumptions and wrongly a conclusion was drawn that it was surrounded by suspicious circumstances.
8. The plaintiff had filed the suit that a valid agreement was entered into in between the plaintiff and defendant No. 1 and to prove the agreement Ext. PA in question, he had examined himself as PW-1, PW-2 Hari Chand, Advocate, scribe of the agreement and PW-3 Raj Kumar, also an Advocate and a marginal witness and they have clearly stated that the agreement in question was executed by defendant No. 1 in favour of the plaintiff and as per their statements, a sum of ` 14,000/- was also paid by the plaintiff to defendant No. 1.
The agreement in question was on a stamp paper of ` 5/- and first page of the agreement was on stamp paper and the second page of the agreement was on a judicial paper. Defendants No. 2 and 3 have pleaded that they had no knowledge of the agreement and, therefore, they could not raise any specific defence nor they raised anything in regard to the validity of the agreement of any kind available. There was no evidence to rebut the evidence led by the plaintiff to prove the due execution of the agreement, which has not been rebutted by the defendant including the statement made by defendant No. 2 as DW-1.
However, the learned trial Court proceeded to record the findings under Issue No.6 by observing as under:-
“Therefore, it appears that the page No. 2 in which the signatures of the defendant No. 1 were available is used by the plaintiff for preparing this agreement Ex. PA because it is not understood as to why the second page of this agreement Ex. PA is used pertaining to the year 1988. The scribe PW-2 Sh. Hari Chand is also confronted on this fact whether he did not draft both these page at a time. According to him, both these papers had been purchased by the defendant Bed Ram on 3.3.1989, which version appears sophisticated and totally unreliable.“
9. In the next para, a reference was also made to a photo copy Ext. DA and it was concluded that this agreement was scribed by PW-2 Hari Chand and the signatures on the photo copy were allegedly assumed to have been admitted by the said scribe Hari Chand and PW-3 Raj Kumar, Advocate. This Ext. DA, a photo copy, was confronted in the cross-examination of the plaintiff by defendants No. 2 and 3, who claimed that they had no knowledge about the agreement in between the plaintiff and defendant No. 1. The document in question should have been only marked since it was a photo copy and the signatures of these documents could not have been admitted by the witness, but it was a photo copy and not the original copy and the witness could have been confronted with the original agreement Ext. PA.
10. Apart from the above, it is clear that there was no occasion for the Court to conclude that there was a cloud cast to the genuineness of the agreement and it proceeded to hold on the basis of these assumptions that the second part of the document was of the year 1988, though the first part was of 1989 and, therefore, the genuineness of the agreement was doubtful, which was held to be suspicious, which plea had never been taken by defendant No. 1, who did not contest the case and not even specifically by defendants No. 2 and 3. In case, a plea had been taken by the defendants in regard to the genuineness of the agreement, then this question could have been looked into by the learned Court as to whether the second page of the agreement was of the year 1988, but the fact remains that the agreement was executed on 3.3.1989 and the second page of the agreement was of the year 1988. Even if it was lying blank with either of the party, it could have been used. Once defendant No. 1 had not contested the genuineness of the document in question, it was not even contested by defendants No. 2 and 3 on any specific ground and in the absence of averments made in this regard, the learned trial Court could not have held that the document in question was not genuine or was surrounded by suspicious circumstances. Regrettably, the said findings were also affirmed by the learned Appellate Court and wrongly so.
The observations made in this regard are material, wherein it was observed in Page-10 of the judgment as under:-
“It was for the plaintiff to explain that he had brought the money from his house or it had been withdrawn by him from the bank. He was to account for the possession of this earnest money, but there is no an iota of word in the statement of the plaintiff on this factum as from where he had brought this money of Rs.14,000/- on the date of execution of agreement Ex. PA. Even the scribe PW-2 Sh. Hari Chand as well as Marginal witness PW-3 Sh. Raj Kumar did not state as what was the denomination of the currency notes, which were of earnest money and from where the plaintiff had arranged this money on the date of execution of this agreement.”
11. It is, therefore, clear that when nobody had contested this point that no payment was made as to how the Court could make such observations and come to this conclusion that no payment of earnest money was made. There has been no issue raised by the defendants in that regard and, therefore, the learned trial Court on the basis of its own assumptions or observations or comparison of the signatures, came to a wrong conclusion that the document in question was suspicious one or that the earnest money was not paid. Accordingly, the findings under Issue No. 5 in regard to the due execution and Issue No. 6 in regard to the payment of earnest money are liable to be reversed and the same are reversed accordingly and it is held that the agreement was a valid one and there was payment of earnest money of ` 14,000/-.
12. Apart from the above, on the one hand, the learned trial Court had considered the question that it was not raised at all that the plaintiff had not become owner by that time and still had held the validity of the agreement in favour of defendant No. 3, though there are no specific findings that as to when the plaintiff became the owner and as to whether on the date of execution of the agreement in favour of defendant No. 3, he was owner of the suit land or not. That question was never raised and no findings were required to be given in that regard and insofar as the validity of the sale deed in favour of defendants No. 2 and 3 is concerned, it was not challenged on this ground by the plaintiff also. An issue was also framed as to whether defendant No. 3 was a bonafide purchaser for consideration and without notice. There is nothing in the pleadings of the plaintiff or the evidence led by him including the statement of defendant No. 2 himself, that defendant No. 3 had a knowledge in regard to the agreement in question before the sale deed was executed in favour of defendant No. 3. Defendant No. 2 Parkash Chand as DW-1 has stated in his statement that he learnt about the agreement only when he received summons from the Court. There was no evidence on record to show that defendant No. 3 was not a bonafide purchaser for consideration and as such, those findings under Issue No. 9 are liable to be affirmed.
13. In view of the above discussion, it is clear that a valid sale deed was executed in favour of defendant No. 3, who has become owner by purchase and was also proved to be in possession as per the evidence, which findings do not call for reappraisal of the evidence on any ground. However, once the plaintiff has been able to prove that a due agreement was executed in between him and defendant No. 1, he was entitled to return of the money paid by him as earnest money in the alternative. In a suit for specific performance of contract when the relief in regard to the execution of the sale deed cannot be granted for one reason or the other including the fact that defendant No. 1 previous owner has already executed the sale deed in favour of defendant No. 3, the relief in question of specific performance of contract cannot be granted in favour of the plaintiff, but he is entitled in the alternative to return of the earnest money.
14. I am supported by the provisions of Section 10 of the Specific Relief Act, 1963, which starts with a non obstante clause and although right of specific relief is conferred by a statute but however while granting relief to the plaintiff principles of equity are to be applied. Provisions of Section 10, when read conjointly with Section 20, evidently makes it clear that discretion, to be exercised by the Court, is to be based on the principles of equity, fair play, conduct, hardship and delay. In appropriate cases, the relief for the repayment of the earnest money can be granted alonwith 6% interest. Thus, it is held that the findings to the contrary are liable to be set aside and the suit of the plaintiff is decreed to this extent that he is entitled to the earnest money to the tune of ` 14,000/- paid by him to defendant No. 1 alongwith interest at the rate of 6% from the date of payment i.e. 3.3.1989 till deposit.
15. In view of the above discussion, the appeal stands disposed of, so also the pending miscellaneous application(s), if any. Interim order, if any, also stands vacated.
16. There is no order as to costs.