Chuhar Singh vs Jai Prakash Gupta and Satpal Gupta

Kuldip Singh, Judge

The defendant has come in appeal against judgment, decree dated 20.12.2001 passed by learned District Judge, Sirmaur District at Nahan in Civil Appeal No. 57-CA/13 of 2000 reversing judgment, decree dated 28.1.2000 passed by learned Sub Judge 1st Class, Court No.2, Paonta Sahib in Civil Suit No. 124/1 of 1998. The facts in brief are that respondents had filed a suit for specific performance of contract on the basis of agreement dated 11.4.1997 with a direction to the appellant to execute and register the sale deed in respect of the land comprised in Khasra No. 531/429/1 measuring 6 biswas and 5 biswansis out of land measuring 5 bighas 6 biswas situated at Dhaulakuan after getting necessary tatima from Patwari showing 5 gathas wide land adjoining to Nahan-Paonta Sahib road alongwith decree of possession.

The pleaded case of the respondents is that the parties entered into an agreement on 11.4.1997 for sale of land for a consideration of Rs. 50,000/-. The appellant was paid Rs. 25,000/- on 11.4.1997 as consideration. The possession was to be delivered at the time of execution and registration of the sale deed which was to be completed on or before 10.4.1998. The respondents approached the appellant several times, the appellant failed to execute and register the sale deed.

The respondents issued notice on 4.4.1998 asking the appellant to execute and register the sale deed on 10.4.1998 but the appellant failed to execute and register the sale deed. The respondents thereafter got issued the notice to appellant on 8.5.1998 but again without any result.

The appellant after one week of execution of the agreement had approached the respondents and received Rs. 25,000/- balance sale consideration as the appellant was in need of money. The appellant failed to perform his part of the contract, the respondents were ready and willing to perform their part of the contract.

The suit was contested by the appellant by filing written statement in which preliminary objections of maintainability, non-joinder and cause of action were taken. It has been pleaded that suit land is joint undivided property of appellant and others. The respondents are not entitled to specific performance of specific portion out of Khasra No. 531/429 on the basis of agreement. The appellant never intended to alienate the specific portion nor had agreed to do so. The appellant had not received the sale consideration. The alleged agreement is the outcome of fraud, the agreement was only for share and not for specific portion. Rs. 25,000/- were paid to the witnesses which were never given to the appellant. The respondents are not entitled to decree.

The replication was filed. It has been stated that the appellant has become dishonest after receiving Rs. 50,000/-. On the pleadings of the parties, the following issues were framed:-

Whether the defendant entered into an agreement with the plaintiffs for sale of suit land on 11.4.97 as alleged? OPP

If issue No.1 is proved in affirmative, whether the aforesaid agreement is an outcome of fraud and connivance of witnesses as alleged? OPD

Whether the defendant had received Rs. 25,000/- from the plaintiffs at the time of execution of sale agreement on 11.4.97 as alleged? OPP

Whether the defendant had agreed to execute and register the sale deed in favour of the plaintiffs on or before 10.4.98 as alleged? If so, its effect? OPP

Whether the defendant had received the balance amount of sale consideration to the tune of Rs. 25,000/- after one week of the execution of agreement for sale and thus had received full and final payment of entire sale consideration as alleged. If so, its effect? OPP

Whether the plaintiffs are still ready and willing to perform their part of the contract as alleged? OPP

Whether the plaintiffs are entitled for the recovery of Rs. 50,000/- alongwith interest in the alternative as claimed? OPP

Whether the plaintiffs are entitled for the decree of specific performance of the contract as alleged? OPP

Whether the suit is not maintainable as alleged? OPD

Whether the suit is bad for non-joinder of necessary parties as alleged? OPD

Whether the plaintiffs have no cause of action as alleged? OPD

Whether the plaintiffs have no locus-standi to file the present suit as alleged? OPD

Relief.

The issues No. 1, 3 and 4 were answered in affirmative, issues No. 7, 9, 11 and 12 partly in affirmative and issues No. 2, 5, 6, 8 and 10 in negative and the suit was decreed for recovery of Rs. 25,000/- alongwith interest at the rate of 12% per annum from the date of the suit till realisation, the remaining claim of the respondents was rejected.

The respondents filed appeal against judgment, decree dated 28.1.2000 which was allowed by the learned District Judge on 20.12.2001. The learned District Judge set-aside the judgment, decree dated 28.1.2000, the suit of the respondents for specific performance of the contract was decreed on payment of Rs. 25,000/- to appellant within three months from the date of decision of the appellate Court. The appellant was directed to execute the sale deed within a week after the receipt of remaining amount of sale consideration, hence second appeal which has been admitted on the following substantial questions of law:-

Whether the mis-reading of documents Ext.PW-3/D and Ext.PW-3/A has vitiated the findings of the learned Court below?

Whether a decree of specific performance of contract pertaining to the jointly held property can be passed without joining the necessary parties/co-sharers who have specific interest in the suit property?

Whether a decree for specific performance of joint land holding can be passed, moreover when the party is not in actual and specific possession of any portion of the joint holdings?

Heard and perused the record. It has been submitted by the learned counsel for the appellant that the learned District Judge has misread notice Ex.PW-3/A dated 4.4.1998 and notice Ex.PW-3/D dated 8.5.1998. The decree of specific performance of contract cannot be passed without joining the other co-sharers as parties in the suit. The decree for specific performance in a joint holding cannot be passed when the appellant is not in actual and specific possession of any portion of the joint holding. The learned counsel for the respondents has supported the impugned judgment, decree.

The substantial question of law No.1 is taken up for consideration. PW-3 O.P. Chauhan, Advocate has stated that he had issued notices Ex.PW-3/A dated 4.4.1998 and Ex.PW-3/D dated 8.5.1998. The acknowledgement Ex.PW-3/C is of notice Ex.PW-3/A. The appellant in his statement has admitted that he had received two notices issued by O.P. Chauhan, Advocate. In Ex.PW-3/A the appellant was called upon to execute and register the sale deed on 10.4.1998. It has been contended on behalf of the appellant that in notice Ex.PW-3/D issued on 8.5.1998 the respondents had asked the appellant to execute the sale deed on 10.4.1998. This requirement could not be fulfilled when the notice itself was issued on 8.5.1998 how the sale deed could be executed and registered on 10.4.1998 as mentioned in notice Ex.PW-3/D. This aspect of the case has been misconstrued by the learned District Judge.

In the notice Ex.PW-3/D no doubt in para 4 the date 10.4.1998 has been stated for execution and registration of the sale deed, but such date in notice Ex.PW-3/D is simply a typing mistake. The appellant cannot take advantage of such mistake. In the end of notice Ex.PW-3/D, it has been stated that the date for execution of the sale deed 10.4.1998 had already expired, there were holidays from 10th to 12th April. The purpose of issuing notices Ex.PW-3/A and Ex.PW-3/D on behalf of the respondents was to remind and ask the appellant to execute and register the sale deed in terms of the agreement. The substance of the notices was to show that respondents were ready and willing to perform their part of the agreement and they requested the appellant to execute and register the sale deed in accordance with the agreement dated 11.4.1997. There is no misreading, misconstruction of notices Ex.PW-3/A and Ex.PW-3/D. The substantial question of law No.1 is decided against the appellant.

The substantial question of law No. 2 is with respect to necessary parties. The contention of the learned counsel for the appellant is that specific performance of contract pertaining to joint land is not possible without joining the other co-sharers who have interest in the suit property. The other co-sharers are necessary parties. The perusal of judgment dated 28.1.2000 indicates that issue No.10 is of necessary parties. The onus of this issue was on appellant. The trial Court partly decreed the suit on 28.1.2000 and issue No.10 of necessary parties was decided against the appellant. The respondents filed appeal against judgment, decree dated 28.1.2000. The appellant did not file any appeal against judgment, decree dated 28.1.2000 nor he filed cross-objections in the lower Appellate Court in the appeal filed by the respondents. Thus, the findings on issue No.10 of necessary parties as against the appellant attained finality. The appellant now in second appeal cannot be permitted to re-open the findings of necessary parties which he allowed to become final. The substantial question of law No.2 is decided against the appellant.

The substantial question of law No. 3 is lastly taken up for consideration. Ex.PW-2/A is the agreement dated 11.4.1997 between the appellant and respondents. In agreement it has been provided that appellant is co-owner in possession of land comprised in Khasra No. 531/429/1 measuring 5-6 bighas situated at Mauza Dhaulakuan. The appellant had agreed to sell 0-6-5 bighas land out of his share for consideration of Rs. 50,000/-. It has also been provided in the agreement that appellant shall give one jarib land adjoining to Nahan-Paonta Sahib road and a tatima shall be prepared accordingly from Patwari by the appellant. DW-1 Jai Parkash (sic Chuhar Singh S/o Pesu Ram) has stated that at the time of execution of the agreement Rs. 25,000/- were paid to him, the remaining Rs. 25,000/- were to be paid at the time of execution and registration of the sale deed. The respondents had not paid balance amount Rs. 25,000/-. The appellant has clearly stated that on payment of balance amount Rs. 25,000/- he is ready to execute and register the sale deed from his share.

Ex. PX is the copy of jamabandi for the year 1993-94 showing Chuhar Singh S/o Pesu one of the owners in the column of ownership and Chuhar Singh co-sharer in the column of possession on Khasra No. 531/429 min measuring 5-6 bighas. DW-2 Dhani Ram is the cousin of the appellant. He has stated that they have joint land in Dhaula Kuan with Chuhar Singh. He has stated that Chuhar Singh is in possession of 5 bighas 6 biswas land exclusively. It is nobody''s case that the share of the appellant in the total Khata is not more than 0-6-5 bighas nor it is case of anybody that appellant has executed the agreement of land more than his share in the Khata. It can be safely concluded that the land agreed to be sold by appellant to the respondents is within the share holding of the appellant in the Khata. The appellant is in possession of the land which he agreed to sell to the respondents.

In A. Abdul Rashid Khan (Dead) and Others Vs. P.A.K.A. Shahul Hamid and Others, , the Supreme Court has noticed Manzoor Ahmed Margray Vs. Gulam Hassan Aram and Others, , wherein it has been held that there is no bar for passing the decree for specific performance with regard to 1/3rd or 2/3rd share owned by the contracting parties for which he can execute the sale deed. The Supreme Court further held that even where any property is held jointly, and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, he is bound to execute the sale deed. In the absence of other co-sharer, there could not be any decree of any specified part of the property to be partitioned and possession given.

In the present case, the appellant is already in possession of the land which he agreed to sell to the respondents vide agreement Ex.PW-2/A, therefore, the involvement of other co-sharers does not come into picture at the time of execution and registration of the sale deed and handing over the possession. The respondents will just substitute the appellant after the execution, registration and handing over of the possession of the suit land. The share of the appellant from the joint holding to the extent land sold will be reduced and the respondents to the extent of land purchased by them as per agreement Ex.PW-2/A would become co-sharers in the joint holding with other co-sharers. The appellant under the agreement had already agreed to get the tatima prepared from the Patwari. The appellant in possession of the joint holding has agreed to sell only a part of joint holding alongwith possession which is permissible. The learned District Judge has rightly appreciated the controversy. The substantial question of law No.3 is decided against the appellant. In view of above discussion, there is no merit in the appeal which is accordingly dismissed with no order as to costs.