Ganeshi Lal and Others vs Jagdish Chander Gupta and Others

V.P. Gupta, J.—The Plaintiffs filed this suit claiming specific performance of a contract and registration of a deed relating to the property which is fully described in the plaint. They also pray for possession of a part of the property and for recovery of Rs. 5,400/- on account of the use and occupation of this property by Defendant No. 2 at the rate of Rs. 150/- per month. Future mesne profits are also claimed.

It is alleged that Defendant No. 1 (Shri Jagdish Chander Gupta) agreed to sell the disputed property to the Plaintiffs for a consideration of Rs. 48,000/-, out of which an amount of Rs. 40,000/- was paid to Defendant No. 1. A receipt for Rs. 40,000/- dated 11-12-1975 was executed by Defendant No. 1 and the remaining amount was to be paid at the time of registration of the deed. The Plaintiffs purchased stamp papers and a sale deed was executed on these stamp papers on 18-11-1974. A duplicate copy of the sale deed was also prepared as it was to be pasted in the book of the Sub-Registrar. The sale deed along with the copy was presented in the office of the Sub-Registrar for registration by Defendant No. 1 on 26-11-1974, but Defendant No. 2 (Shri Surrinder Pal Singh) filed an application with the Sub-Registrar requesting him not to register the sale deed for the reasons that Defendant No. 2 was also an owner of the property and that the property was under-valued. This application of Defendant No. 2 was postponed to 27-11-74 and the parties were asked to appear on that date. Defendant No. 2 did not appear and in the meantime a suit was filed by Defendant No. 2 against Defendant No. 1 in which a stay order was obtained from the Court of Subordinate Judge, Shimla. This stay order was received by the Sub-Registrar with the result that the document already presented could not be registered.

It is further alleged that possession of a part of the property was delivered to the Plaintiffs and that some portion of the property was in possession of Defendant No. 2 who was living there as a licensee.

The Plaintiffs also allege that an application was filed by the Plaintiffs and Defendant No. 1 with the Sub-Registrar on 26-11-1974, praying for extension of the period for registration for another four months. It is alleged that due to the non-vacation of the stay orders the document was not registered and Defendant No. 1 executed a receipt dated 11-12-1975 acknowledging the delivery of possession as well as the receipt of full consideration of money except Rs. 8,000/-.

It is also alleged that Defendant No. 1 get the original sale deed from the office of the Sub-Registrar through his influence. Defendant No. 1 handed over a carbon copy of the sale deed to Shri Kailash Chand, Advocate, through the Plaintiffs. The Plaintiffs got a Photostat copy of this carbon copy prepared. Defendant No. 1 was approached to hand over the sale deed to the Plaintiffs but he refused to do so. The suit filed by Defendant No. 2 against Defendant No. 1 was dismissed on 29-3-1978 and after the dismissal of the suit, Defendant No. 1 was again approached to get the document registered but he asked the Plaintiffs to admit his son (Defendant No. 2) as a tenant to which the Plaintiffs did not agree.

The Plaintiffs now allege that they were and are willing to pay the balance amount of Rs. 8,000/- to Defendant No. 1 and are ready and willing to perform their part of the contract, but Defendant No. 1 is refusing to perform his part of the contract. The Plaintiffs have claimed mesne profits of Rs. 5,400/- for use and occupation of the property by Defendant No. 2 as well as Rs. 3,840/- on account of the stamp expenses etc. This suit was filed on 11-12-1978 for specific performance and mesne profits etc.

The Defendants have contested the suit and have filed separate written statements.

Defendant No. 1 alleges that the suit is not properly valued for the purposes of Court fee and jurisdiction and the same is bad for misjoinder of parties because Defendant No. 2 is not a necessary or proper party. The plea of limitation is also raised. On merits it is alleged that Defendant No. 1 agreed to sell the disputed property to the Plaintiffs vide agreement dated 20-9-1974 for a sum of Rs. 1,15,000/-. Out of this amount only an amount of Rs. 40,000/- was paid to Defendant No. 1 by the Plaintiffs. The possession of a part of the property was delivered to the Plaintiffs in pursuance to this agreement. The Defendant No. 1 has shown ignorance regarding the purchase of stamp papers etc. Regarding the execution of the sale deed, it is alleged that a draft sale deed was prepared by Shri Kailash Chand, Advocate, but in the draft sale deed the sale consideration was mentioned as Rs. 48,000/- instead of Rs. 1,15,000/-. For this reason the Plaintiffs did not approve this draft. The Plaintiffs promised to pay the balance amount of Rs. 95,000/- but as the same was not mentioned, therefore, Defendant No. 1 refused to execute the sale deed. It is admitted that a stay order was issued by the Court of the Subordinate Judge, Shimla. In the receipt handed over to the Plaintiffs on 11-12-1975, Defendant No. 1 did mention that the remaining amount was Rs. 8,000/-. It was so mentioned to save the stamp duty at the time of registration. It is alleged that after receiving an amount of Rs. 75,000/- Defendant No. 1 was always ready and willing to execute the sale deed and get the same registered, but the Plaintiffs were not willing to pay the balance of Rs. 75,000/-. Defendant No. 2 is in possession of a part of the property since long as a tenant of Defendant No. 1. It is alleged that the Plaintiffs cannot claim any mesne profits and the Plaintiffs'' suit is liable to be dismissed.

Defendant No. 2 alleges that the suit is not properly valued for the purpose of Court fee and jurisdiction and that the same is bad for misjoinder of parties and is also barred by limitation. On merits it is alleged that he came to know in November, 1974 that Defendant No. 1 had agreed to sell the disputed property to the Plaintiffs. The relations between him and Defendant No. 1 were not cordial and he filed a suit in the Court of the Subordinate Judge, Shimla regarding his title to the disputed property. It is alleged that he is in possession of a part of the property on a rental of Rs. 162.50 per annum under Defendant No. 1 since 1-4-1972.

Replication was filed by the Plaintiffs and in the replication the allegations of the plaint are reasserted and that of the written statements are denied. In the replication it is stated that initially the Plaintiffs had agreed to purchase the building for Rs. l,15,000/- but at that time the building was believed to be a pucca one. Later on it was found to be a Kutcha structure and as such the price was reduced to Rs. 48,000/-. The Plaintiffs have denied that an amount of Rs. 95,000/- remained to be paid to the Defendants. The tenancy of the Defendant No. 2 is also denied.

Upon the pleadings of the parties the following issues were framed on 16-11-1979:

Whether the Plaintiffs had agreed to purchase the property, in dispute, from Defendant No. 1, for Rs. 48,000/- and not for Rs. 1,15,000/- and whether only a sum of Rs. 8,000/- as consideration remains to be paid to Defendant No. 1 ? O.P.P.

In case issue No. 1 is decided in favour of the Plaintiffs, whether the suit is not properly valued for purposes of Court-fees ? O.P.D.

Whether the suit is bad for misjoinder of parties? O.P.D.

Whether the suit is within limitation ? O.P.P.

Whether any sale deed in respect of the property in dispute was executed by Defendant No. 1 in favour of the Plaintiffs and whether it was presented for registration by Defendant No. 1 before the Registrar at Shimla, if so, its effect ? O.P.P.

Whether Defendant No. 2 is in occupation of two rooms and a kitchen in the ground floor as a tenant and not as a licensee and its effect on the suit ? O.P.D.

Whether the Defendants are liable to pay the stamp duty affixed on the registered deed and as such they are entitled to deduct the same from the amount of Rs. 8000 ? O.P.P.

Whether the Plaintiffs are entitled to a decree for possession of the premises, in dispute, as prayed for ? O.P.P.

Whether the Plaintiffs are entitled to a decree for Rs. 5400/- for the use and occupation of the premises, in dispute, from the Defendant No. 2, as alleged at the rate of Rs. 150/- p.m. ? O.P.P.

Whether the Plaintiffs are entitled to any mesne profits for use and occupation of the building at the rate of Rs. 150/- from the date of the suit till the building, in dispute, is vacated ? O.P.P.

Whether the Plaintiffs are entitled to the costs of the suit ? O.P.P.

Relief.

Issue No. 3:

This issue was not pressed by the learned Counsel for the Defendants.

The Plaintiffs have filed this suit for specific performance and possession treating Defendant No. 2 as a trespasser. The Plaintiffs have nowhere alleged or treated Defendant No. 2 as a tenant. In these circumstances, and in view of the allegations in the plaint, the suit is not bad for misjoinder of parties and this issue is decided against the Defendants.

Issue No. 4:

This issue was not pressed by the learned Counsel for the Defendants. Ex. P. 2 is a receipt dated 11-12-1975. In this receipt there is an acknowledgement regarding the payment of a part of the sale consideration and also for the delivery of possession of a part of the disputed property. This suit was filed on 11-12-1978, that is, within three years of the date of execution of this receipt. Hence this suit is within time and the issue is decided in favour of the Plaintiffs.

Issue No. 6:

There is no proof of any tenancy. Defendant No. 2 has also not appeared in the witness box. Defendant No. 1 has stated that Defendant No. 2 is his tenant. A Photostat copy of a rent note Ex. DW. 1/A dated 16-5-1978 was produced by Defendant No. 1. In the examination-in-chief Defendant No. 1 stated that he had given a part of the disputed property to Defendant No. 2 as a tenant and had not agreed to sell this portion of the property. He further stated that a registered rent note was executed. In cross examination Defendant No. 1 stated that the tenancy in favour of Defendant No. 2 was created in 1972.

In Ex. DW. 1/A there is no mention of the fact that the tenancy was created in 1972. From this document it appears that the tenancy, if any, was created from 1.3.1978. Defendant No. 2 had filed civil suits in 1974 to 1976 claiming title in the property. He claimed the property to be joint family property and also claimed a share in the property. The copies of two plaints are Ex. P. 7 and Ex. P. 20 and copy of one affidavit is Ex.P. 6. These suits were subsequently dismissed on 29-3-1978 as is evident from Ex. P. 3. Defendant No. 1 executed a receipt/acknowledgement Ex. P. 2 on 11-12-1975 and the present suit was filed on 11-12-1978. The execution of the alleged rent note Ex. DW. 1/A dated 16-5-1978 is, therefore, highly suspicious particularly when Defendants Nos. 1 and 2 are father and son. Besides this, Defendant No. 2 claimed to be the owner of the property in the civil suits. He obtained stay orders for the registration of the sale deed as is proved from Ex. P. 5. Defendant No. 2 has also not stood the test of cross examination as he never cared to appear as his own witness. Thus from the various circumstances mentioned above, Defendant No. 2 is not proved to be a tenant of the disputed property. It is, therefore, held that Defendant No. 2 is not in possession of any part of the disputed premises as a tenant.

Issues No. 1, 2 and 5:

These are the only issues upon which common arguments were addressed by the learned Counsel for the parties. The issues are inter-connected and can be dealt with together.

The learned Counsel for the Defendants contended that the present suit was not a suit for specific performance and in any case the suit was filed on mala fide and false allegations and trie discretionary relief should not be allowed. It was further contended that the actual sale price was fixed at Rs. 1,15,000/- and not Rs. 48,000/- and that the Plaintiffs did not disclose the true facts. It was contended that in case the Plaintiffs were willing to pay the balance amount of Rs. 75,000/-then the Defendant No. 1 was ready and willing to execute a regular registered sale deed in favour of the Plaintiffs and that Defendant No. 1 never refused to perform his part of the contract.

The learned Counsel for the Plaintiffs contended that the present suit was a suit for specific performance of a contract and the sale price was settled at Rs. 48,000/-. It was also contended that only an amount of Rs. 8,000/- remained to be paid to Defendant No. 1 and that the Plaintiffs were entitled to get a sale deed executed and registered in their favour on payment of the balance amount of Rs. 8000/-. It was argued that the conduct of the Defendants had all along been mala fide and they were not coming with clean hands. The equity was in favour of the Plaintiffs and the Plaintiffs were entitled to the relief of specific performance, possession as well as mesne profits.

An agreement of sale (Ex. D. 1.) was executed between the Plaintiffs Nos. 1 to 3 and Defendant No. 1 on 20-9-1974. By this agreement Defendant No .1 agreed to sell the disputed property to the Plaintiffs for a sum of Rs. 1,15,000/- and the building was described as a pucca built house. A sum of Rs. 20,000/- was paid to Defendant No. 1 by a cheque and the remaining amount of Rs. 95,000/- was to be received by Defendant No. 1 from the vendees at the time of registration of the sale deed. The stamp and registration etc. expenses were to be borne by the vendees and the sale was to be completed within a period of two months. Time was the essence of the contract. It was agreed that if the vendor resiled from the agreement then he was liable to pay damages to the extent of Rs. 10,000/- and was also liable for specific performance of the contract and in case the vendee resiled from the agreement then the advance of Rs. 20,000/- was to be forfeited.

Another document (Ex. P. 1) was executed by the parties on 26-11-1974. In this document is stated that the possession of the upper flat of the disputed property was delivered to the Plaintiffs by Defendant No. 1 on 26-11-1974 in terms of the sale deed dated 26-11-1974 and that the sale deed dated 26-11-1974 would be presented for registration on 26-11-1974 in the office of the Sub-Registrar, Shimla.

Ex. PW. 1/1 is a copy of the stamp vendor''s register from which it is proved that on 7-10-1974 stamp papers worth Rs. 2,850/- were purchased by the Plaintiffs for a sale deed. Similarly Ex. PW. 2/A/1 is another copy of the stamp vendor''s register dated 26-11-1974. It proves that stamp paper worth Rs. 30/- was purchased by the Plaintiffs.

A suit for declaration of title was filed by Defendant No. 2 against Defendant No. 1 and Plaintiff No. 2 on 27-11-1974. The copy of an application in this suit is Ex. P. 23. An expert injunction (Ex. P. 4) was issued on 27-11-1974 and Defendant No. 1 was restrained from alienating the disputed property to the extent of 2/3rd share. This injunction order was confirmed on 31-12-1974 (Ex. P. 5). Defendant No. 1 contested this suit. Copy of the reply to application is Ex. P. 25 and copy of affidavit is Ex. P. 26. The status of the Defendant No. 2 as a member of the Joint Hindu Family was denied.

Defendant No. 2 filed another suit for partition of some immovable property against Defendant No. 1 and others. In this suit the present disputed property was also included and the Plaintiff claimed partition of this property on the ground that the Plaintiff was a member of the joint Hindu family and Defendant No. 1 being a Karta, was managing the joint Hindu family properties. Defendant No. 2 claimed 1/4th share in the property and it was alleged that Defendant No. 1 was threatening to alienate the properties. This suit was filed in 1976 and copy of the plaint is Ex. P. 20. A written statement (Copy Ex. P. 21) was filed by Defendant No. 1 in this suit. Defendant No. 1 denied the claim of Defendant No. 2 and claimed himself to be the sole owner of the property. It was further alleged that Defendant No. 2 was given a separate residence in the present disputed property as a mere licensee and that the remaining portion of the present disputed property was in possession of the vendees (present Plaintiffs) and that Defendant No. 1 had agreed to sell the property to the vendees (present Plaintiffs) for Rs. 48,000/-. It was further stated that the sale deed was duly executed but the registration could not be effected because of the orders of the Subordinate Judge, Shimla. It was specifically pleaded that there were no tenants in the property. Along with the written statement Defendant No. 1 also attached a copy of the sale deed and the two affidavits. The written statement Ex. P. 21 was filed by Defendant No. 1 on 7-8-1977 and Defendant No. 1 had engaged Shri K.D. Sood as his Counsel. A copy of the sale deed filed with this written statement is Ex. P. 22.

Besides these documents Ex. P. 25 is a reply to an application filed under Order 39 Rules 1 and 2 Code of Civil Procedure. This reply was filed on 20-12-1974 by Defendant No. 1 in civil suit No. 13 of 1978 filed by Defendant No. 2 against Defendant No. 1 and another. In para 3 of the reply Defendant No. 1 has stated as follows:

"3. Para 4 of the application as stated is not admitted. The replying Defendant will transfer the property in accordance with law. He has got an offer of Rs. 48,000/- and he has accepted an earnest money of Rs. 20,000/-. This is a very reasonable bargain and in case the injunction order is not vacated, the replying Defendant will be put to great embarrassment and would also be liable to pay damages of Rs. 10,000/- for non-compliance.

An affidavit dated 18-12-1974 (Ex. P. 26) was also filed along with this reply and the aforementioned allegations of para 3 are re-iterated in the affidavit. Defendant No. 1 has admitted the contents of this affidavit to be correct.

Ex. P. 29 is the Photostat copy of an application dated 26-3-1975 filed by Defendant No. 1 and Plaintiff No. 3. In this application it is stated that a sale deed was executed on a stamp paper by Defendant No. 1 on 18-11-1974 with respect to the disputed property and that the same was presented for registration on 26-11-1974. In the meantime a stay order was brought from the Court of the Subordinate Judge, Shimla by Shri Surrinder Pal Singh (Defendant No. 2) and for this reason the sale deed could not be registered. A request was made that the time for registration be extended. Upon this application there is a noting dated 27-6-75 (Ex. P. 29/1) by the official of the Sub-Registrar. In Ex. P. 29/1 it is stated that the time for registration lapsed on 17-3-1975 and the Registrar is competent to extend the time by another four months up to 17-7-1975 subject to payment of fine etc. It is further suggested that the registration fee for a sale deed for Rs. 48,000/- would be Rs. 491/- and the fine comes to Rs. 4,910/-. Another document marked ''X'' is a Photostat copy of the sale deed dated 18-11-1974. A letter dated 28-6-1977 (Ex. P. 13) addressed to Defendant No. 1 by Shri Kailash Chand, Advocate, proves that a carbon copy of sale deed dated 18-11-1974 was made available to him by Defendant No. 1 and that Shri Kailash Chand, Advocate, was returning the document to Defendant No. 1. An application dated 7-12-1978 (marked P. 19) was filed by Vinod Kumar Plaintiff before the Sub-Registrar to the effect that he was present in the office of the Sub-Registrar for getting the sale deed registered.

The civil suits Nos. 240/1/1974 and 139/1/1975 (both titled Surrinder Pal Singh v. Jagdish Chand) and Surrinder Pal Singh v. Jagdish Chand civil suit No. 32 of 1976 (Surrinder Pal Singh v. Jagdish Chand) were dismissed as not pressed on 29-3-1978 (copy of order is Ex. P. 3).

From the above documents it is proved that Plaintiffs Nos. 1 to 3 and Defendant No. 1 entered into an agreement of sale on 20-9-1974 and by this agreement the property was agreed to be sold to the Plaintiffs by Defendant No. 1 for Rs. l, 15,000/-. Out of the sale consideration an amount of Rs. 20,000/- was paid by a cheque dated 19-9-1974 and the remaining amount of Rs. 95,000/- was to be paid at the time of registration of the deed which was to be completed within two months, that is, up to 20-11-1974. Subsequently before the expiry of the time for the registration of the sale deed, a regular sale deed copy (Ex. P. 22) was executed by Defendant No. 1 in favour of the Plaintiff for a consideration of Rs. 48,000/- on 18-11-1974. This document was presented for registration before the Sub-Registrar on 26-11-1974. In Ex. P. 1 Defendant No. 1 acknowledged the delivery of possession to the Plaintiffs on 26-11-1974 and also acknowledged the factum of presentation of sale deed on 26-11-1974. Due to the stay orders obtained by Defendant No. 2 from the Court of the Subordinate Judge, Shimla the sale deed dated 18-11-1974 was not registered. Subsequently an application for extending the time for registration of the sale deed was given and from the noting (Ex. P. 29/1) it appears that the original document was available with the Sub-Registrar on 27-6-1975. The fact that the sale deed was executed on a stamp paper is also proved from Ex. PW. 1/1 and Ex. PW. 2/A/1. Thus it is sufficiently proved that a sale deed was executed by Defendant No. 1 on a stamp paper for a consideration of Rs. 48,000/- which was presented for registration to the Sub-Registrar on 26-11-1974, but could not be registered due to the stay orders issued by the Subordinate Judge, Shimla. Subsequently Defendant No. 1 executed a receipt on 11-12-1975 and received a further payment of Rs. 20,000/- from the Plaintiffs. The possession of a part of the property was also delivered to the Plaintiffs and it was admitted that only a sum or Rs. 8,000/- remained due from the Plaintiffs. The contention of the learned Counsel for the Defendants that the property was to be sold for Rs. 1,15,000/- vide terms of the agreement dated 19-9-1974, loses its significance in view of the fact that Defendant No. 1 had executed a regular sale deed for a consideration of Rs. 48,000/- with respect to the disputed property. The earlier agreements or contracts became inoperative in view of the subsequent act and conduct of the parties. In this particular case Defendant No. 1 had executed a sale deed for Rs. 48,000/-. In the receipt dated 11-12-1975 (Ex. P. 2), Defendant No. 1 has again stated that only a sum of Rs. 8,000/- remained due from the Plaintiffs with respect to the sale of the disputed property.

Agreement Ex. D. 1. is also not signed by all the Plaintiffs. Further in the written statement Ex. P. 21 filed in civil suit No. 32 of 1976, reply to application Ex. P. 25 and the affidavit Ex. P. 26 filed in civil suit No. 13 of 1978 Defendant No. 1 admitted that he had sold the disputed property for a sum of Rs. 48,000/- and that a sale deed was executed. Defendant No. 1 further admitted Defendant No. 2 to be a licensee only of the property. Defendant No. 1 (DW. 1) has tried to resile from these admissions but a reading of his statements proves that he is not telling the truth and is trying to put forward a false and inconsistent story, which is not borne out by the facts.

Thus from the various circumstances it is proved that the sale deed was executed for a consideration of Rs. 48,000/- in favour of the Plaintiffs by Defendant No. 1 and out of this Rs. 48,000/- the Defendant No. 1 had already received Rs. 40,000/-. The remaining amount of Rs. 8,000/- is still due to Defendant No. 1. Defendant No. 1 cannot now claim that he is entitled to a sum more than Rs. 8,000/-.

The question which now requires consideration is as to whether the Plaintiffs can seek the specific performance on the basis of the un-registered document. The first contention of the Defendants'' Counsel was that the original document was not on record. I have already mentioned that a Photostat copy of the sale deed (Ex. P. 22) was produced by Defendant No. 1 in an earlier civil suit No. 32 of 1976 as is stated in the written statement Ex. P. 21. Moreover, Mark ''X'' is another Photostat copy of the original document which was proved by the Plaintiffs. A notice under Order 12 Rule 8 was served upon the Defendants before leading evidence. This notice is Ex. P. 11 and its reply is Ex. P. 12. As the Defendant No. 1 had himself produced a copy of the sale deed (Ex. P. 22) in an earlier suit and had also admitted the execution of the sale deed in the written statement, reply to the application and the affidavit, therefore, I am of the view that Ex. P. 22 and Mark ''X'' can be read in evidence. Mark ''X'' is now exhibited as Ex. P. 22/A.

The second contention of the learned Counsel for the Defendants was that no suit for specific performance could be filed and only a suit u/s 77 of the Registration Act could be filed for the compulsory registration of the sale deed dated 18-11-1974. The learned Counsel for the Plaintiffs contended that a suit for specific performance was not barred even on the basis of the document dated 18-11-1974 and that the Plaintiffs could seek either the compulsory registration of the document or could treat the document as an agreement and file a suit for specific performance of the same. The Plaintiffs'' Counsel relied upon Sita Dei Vs. Daitary Mohanty and Others, Rajan Patro Vs. Akur Sahu and Others, Anchuru Veerapa Naidu Vs. Gurijala Venkaiah Chowdari, Mathai Ouseph Panackal Vs. Joseph and Another, and A.I.R 1943 Mad 761 (N.H.S.S. Subramaniam Chettiar v. S.M.A.M. Arunachalam Chettiar and Ors.) while the Defendants'' Counsel relied upon AIR 1956 Gau 154 (Ram Kissan Agarwalla and Ors. v. Muktinath Sarma and Ors.).

In 1943 Mad 761 (Full Bench) N.M.S.S. Subramaniam Chettiar v. S.M.A.M. Arunachalam Chettiar and Ors., there was partnership between the Plaintiff and Defendants in a money lending business and the partnership was dissolved in the year 1937. After dissolution, the business was carried on by the Defendants. Defendants Nos. 1 and 2 were left in pos session of all the immovable properties which formed part of the assets of the original partnership. A deed dated 15th August 1937 provided for the terms of dissolution so far as the Plaintiff was concerned. The deed recited that the Plaintiff had released his interest in the assets which were described and which included land and houses belonging to the partnership. It also recited that the Plaintiff had by a Hundi paid a sum of Rs. 18,950/- as his share of the losses which the business had incurred. After making this payment the Plaintiff was entitled to a sum of Rs. 12,534-13-3 which Defendants Nos. 1 and 2 were to pay to him. The deed further provided that the Plaintiff was to execute a formal deed releasing to Defendants 1 and 2 his interest in the assets and have that registered. Defendants Nos. 1 and 2 tendered to the Plaintiffs for the execution and registration of a deed of release but had not paid to the Plaintiffs the sum of Rs. 12,534-13-3 which was due to the Plaintiff under the deed dated 15-8-37. But Plaintiff filed a suit on 14-8-1940 and expressed his willingness to execute a deed as contemplated by the agreement dated 15-8-1937, if presented to him. The suit in fact was for specific performance of the deed dated 15-8-1937. The suit was contested on the ground that any suit for specific performance could not be filed on the basis of the agreement dated 15-8-1937 as the same was unregistered and that the proper remedy was to get the deed dated 15-8-1937 registered.

After considering the case law and the proviso of Section 49 Registration Act and Sections 12 - 14 of the Specific Relief Act it was held that un-registered instrument effecting immovable property is sufficient to support a suit for specific performance and for such a suit the production of the document and its proof will be sufficient to support the Plaintiffs'' case, if it embodies the whole agreement between the parties and there are no other factors to be taken into consideration. The suit of the Plaintiff for specific performance was ultimately decreed.

In 1959 Ori 74 (Rajan Patro v. Akur Sahu and Ors.) the facts were as follows.

A contract was entered between the Plaintiff and Defendants for sale of land worth Rs. 300/- and a Kabala deed was executed. But Kabala deed could not confer any title on the Plaintiff as it was not registered. The Plaintiff filed a suit against the Defendants for specific performance on the basis of the Kabala deed executed on 19-3-1935 for a consideration of Rs. 300/-. The suit was contested by the Defendants and the main objection was that a suit for specific performance was not competent and that the appropriate remedy was to get the Kabala deed registered. It was held that a suit for specific performance of the contract of sale is not barred merely on the ground that the aggrieved party did not choose to bring a suit u/s 77 of the Registration Act, within the prescribed time.

In 1961 AP 534 (Anchuru Veerapa Naidu v. Gurijala Venkaish Chowdari), there was an executed agreement for the complete contract which required registration. A suit for specific performance was filed on the basis of this contract, and it was held that a suit for specific performance was not barred even though no suit u/s 77 of the Registration Act had been instituted. It was further held that there were two alternative remedies available to the parties. It was open for a party to exercise right of election. The remedy for specific performance of course being an equitable remedy, the Court may, if the party is guilty of laches or gross negligence, refuse to exercise the discretion in his favour. It was further held that under proviso to Section 49 an unregistered document effecting immovable property in spite of want of registration can be received as evidence of contract in a suit for specific performance under the Specific Relief Act.

In 1964 Ori 224 (Sita Dei v. Daitary Mohanty and Ors.), a sale deed had been executed but the same was not registered. A suit for specific performance was filed in which the Plaintiff claimed registration of the document as also for grant of possession and confirmation of possession of the property. It was held that the suit was one for specific performance of contract and the same could be decreed. It was further held that an un-registered sale deed could be used as evidence for contract of sale in suit for specific performance and that an un-registered sale deed, on registration, conveys a completed title. Prior to the registration it can be used as an evidence of contract for sale in a suit for specific performance of contract u/s 49 proviso of the Registration Act.

In 1970 Ker 261 (Mathai Ouseph Panakal v. Joseph and Anr.), it was held that a suit for specific performance was competent on the basis of an un-registered sale deed.

The judgment 1956 Gau 154 (Ram Kissan Agarwalla and Ors. v. Muktinath Sarma and Ors.), does not help the Defendant''s contention. On the other hand it declares that in a suit for specific performance an un-registered document effecting immovable property can be given in evidence and may be used as evidence of the terms. It is further observed that the aforesaid in-effective document still remains and can be enforced within the period of limitation provided for it for enforcing their arrangement under the provision of the Specific Relief Act and that suit for specific performance would lie when the document of sale had remained un-registered or where no document of sale had been executed. Thus after considering the various judgments I am of the view that a suit for specific performance is not barred.

The learned Counsel for the Defendant also criticized the statement of Shri Kailash Chand, Advocate, (PW. 6) and contended that the various admissions were made by Defendant No. 1 due to the pressure exercised upon him by Shri Kailash Chand, Advocate. The Defendant admits that he is involved in over 100/150 cases pending in Courts. Defendant No. 1 had engaged Shri K.D. Sood (PW. 5) as his Counsel when various admissions were made. The Defendant No. 1 did not set up any case of coercion etc. in his written statement nor were Shri Kailash Chand, Advocate, (PW. 6) or Shri K.D. Sood, Advocate, (PW. 5) cross examined on this aspect. In fact Defendant No. 1 has tried to set up a different case in his statement than what has been pleaded in the written statement. The statement of Shri Kailash Chand, Advocate (PW. 6) appears to be a correct version of the various facts because the same finds support from the various documents which have already been discussed. Thus the contention of the Defendants'' Counsel for dis-believing the statement of Shri Kailash Chand is also repelled.

The Defendant''s Counsel also contended that the value of the property was more. This contention is not relevant for the purposes of the present suit. In any case this cannot be accepted in view of the various admissions of Defendant No. 1. Shri Amar Singh (DW. 2) was produced by the Defendant. He states that he had seen the building in dispute in the year 1974 and that he had submitted a report in the year 1976 after inspecting the building. According to him the value of the disputed portion of the building was Rs. 40,413/- in 1976.

In view of the above discussion, issues Nos. 1 and 5 are found in favour of the Plaintiffs and issue No. 2 is found against the Defendants.

Issue No. 7:

I have already held that a sale deed was executed on a stamp paper which was purchased by the Plaintiffs and is proved from Ex. P.W. 1/1 and Ex. P.W. 2/A/1. Kailash Chand Plaintiff (P.W. 4) also states that a stamp paper for execution of the sale deed was purchased by the Plaintiffs. Legally and equitably also the stamp duty should be paid by the Plaintiffs. Hence it is held that the Plaintiffs are not entitled to deduct the amount of stamp from Rs. 8,000/- which is the balance amount payable to Defendant No. 1. This issue is decided against the Plaintiffs.

Issue No. 8:

The position of Defendant No. 2 is not that of a tenant as has already been held under issue No. 6. The Plaintiffs are, therefore, entitled to a decree for possession of the premises. This issue is decided in favour of the Plaintiffs.

Issues No. 9 and 10:

There is no convincing evidence regarding the rental value of the premises occupied by Defendant No. 2 who claimed himself to be a tenant of the premises at the rate of Rs. 162.50 per annum. Vinod Kumar (PW. 8) states that a set of two rooms of such a type in his opinion is not available in the Bazar area at less than Rs. 300/- to Rs. 400/- per month. Vinod Kumar is a Plaintiff and his solitary statement cannot be believed. Defendant No. 2 has not cared to appear in the witness box. Further, I am of the view that in the, facts and circumstances of the present case, the Plaintiffs cannot claim any amount from the Defendants for use and occupation of any part of the premises. The Plaintiffs will be acquiring title to the property only after the completion of the contract. The Plaintiffs are yet to pay an amount of Rs. 8,000/- to Defendant No. 1 out of the agreed sale price. The Plaintiffs are already in possession of a major part of the premises as the possession of that part of the premises was handed over to the Plaintiffs in November, 1974. Defendant No. 2 is in possession of a part of the property with the consent of Defendant No. 1 and he has no independent right in this part of the property. Thus, I hold that the Plaintiffs are not entitled to claim any amount for use and occupation of the disputed property which was agreed to be sold to them by Defendant No. 1. Issues No. 9 and 10 are decided against the Plaintiffs.

Issue No. 11:

As the Plaintiffs'' suit is to be decreed partially in view of the findings on the various issues, therefore, in my opinion, keeping in view the various facts and circumstances, the parties should be left to bear their own costs.

Issue No. 12:

As a result of my findings on the various issues the Plaintiffs'' suit for specific performance of the contract is decreed. As the original sale deed is not traceable, therefore, Defendant No. 1 is directed to get a fresh sale deed executed in favour of the Plaintiffs after incorporating all the terms as are mentioned in Ex. P. 22 or Ex. P. 22/A and thereafter get it registered in the office of the Sub-Registrar, Shimla. The Plaintiffs are directed to pay an amount of Rs. 8,000/- to Defendant No. 1 at the time of registration of the sale deed. The amount for the purchase of fresh stamp papers for execution of a sale deed for a consideration of Rs. 48,000/- should be paid by the Plaintiffs and supplied to Defendant No. 1 or the same be deposited with the Court for payment to Defendant No. 1 within a period of twenty days from today. Defendant No. 1 shall purchase the stamp paper within a period of one month from today and then get the sale deed executed and registered within a further period of fifteen days i.e. within a period of one month and fifteen days from today. The Plaintiffs'' suit for possession as prayed is also decreed. The suit for the remaining prayers is dismissed. The parties are left to bear their own costs.