Mohammed Moosa vs Mohammed Ibrahim

A.V. Chandrashekara, J—Heard the learned counsel appearing for the parties.

This second appeal filed under Section 100 of CPC is directed against the divergent judgment passed by the learned Presiding Officer, Fast Track Court-IV, Bidar in R.A. No. 34/2004.

Appellant herein was defendant No. 2 in O.S. No. 59/1986, which was pending on the file of Additional Munsiff Court, Bidar. The respondent herein was the sole plaintiff in the said suit. There were all three defendants in the said suit. Defendant No. 1 Mohd. Ismail was the legally wedded husband of Khuteja Bi. Defendant No. 1-Mohd. Ismail died during the pendency of the suit. The appellant herein is the son of brother of defendant No. 3 - Khuteja Bi.

Parties will be referred to as plaintiff and defendants as per their ranking before the trial Court.

The facts leading to filing of this second appeal are as follows:

a. Defendant No. 1 was the owner in possession of house and vacant place situated in Bidar city. According to the plaintiff, defendant No. 1 had agreed to sell the entire property in bearing Municipal No. 8/2/36 for a sum of Rs. 7,051/- and executed an agreement of sale on 26.04.1984. According to the plaintiff, the entire property has agreed to sell for consideration of Rs. 7,051/- and he received a sum of Rs. 5,000/- as advance in the presence of a person who attested the said agreement of sale.

b. In spite of executing the agreement of sale executed on 26.04.1984, defendant No. 1 did not come forward to execute the regular sale deed. In the mean time, defendant No. 1 and defendant No. 3 colluded with defendant No. 2 and an oral Hiba was set up under which the schedule property was gifted to defendant No. 2. Thereon, defendant No. 2 had filed a suit in O.S. No. 224/1985 against Mohd. Ismail and his wife Khuteja Bi who is defendant No. 3 and obtained a collusive decree and hence the same does not bind him in any manner.

Defendants No. 1 and 3 chose to file a detailed common written statement denying alleged agreement of sale, receipt of Rs. 5,000/- as advance and readiness and willingness of defendant No. 2. Defendant No. 2 has filed separate written statement asserting the property in question. On the basis of the said oral Hiba, defendants have requested the Court to dismiss the suit.

On the basis of the above pleadings, the following issues came to be framed as follows:

ISSUES

Does plaintiff prove that the defendant No. 1 has executed the suit agreement (Agreement of sale dated 26th April 1984 for a total consideration of Rs. 7,051/-) in respect of the suit property?

Does he further show that he had paid a sum of Rs. 5,000/- to defendant No. 1 pursuant to the suit agreement, on the said day (26th April 1984)?

Does he further show that defendant No. 1 had agreed to execute the sale deed in terms of the suit document within the period of one year and thereby had further agreed to handover the possession of the suit property?

Does plaintiff further show that the defendant No. 1 deliberately voided execution of the sale deed in terms of the suit agreement?

Does plaintiff further show that he has been ready and willing to discharge his part of contract as asserted in para No. 5 of the plaint?

Does plaintiff further show that the decree drawn in O.S. No. 224/1985 from the Civil Judge, Bidar is collusive one, as alleged in para No. 3 and 4 of the plaint?

Do defendants show that the Court fee paid is insufficient, as contended in para No. 8 of their respective written statement?

Reliefs?

ADDITIONAL ISSUES

Whether the defendant No. 1 has gifted away the suit house in favour of the defendant No. 2 under an oral gift dated 04.01.1985 and in pursuance thereof handed over the possession?

Whether the defendant No. 2 proves that in pursuance of the same he has become the owner in possession of the suit house?

Plaintiff is examined as PW. 1. One Abdul Gafoor who is stated to be the attestor to the agreement of sale is examined as PW. 2 and other two witnesses have been examined as PWs. 3 and 4. According to the plaintiff, Mansoor and Sharifuddin were passing in front of his house and he disclosed to them about the agreement of sale executed by defendant No. 1. Defendant No. 2 is examined as DW. 1 and two witnesses have been examined on his behalf. Three exhibits have been got marked on behalf of the plaintiff and 30 exhibits have been got marked on behalf of the defendants. Ultimately, issues No. 1 to 6 were answered in the negative and additional issues No. 1 and 2 were answered in the affirmative. Accordingly, suit came to be dismissed by upholding the oral Hiba.

Being aggrieved by the dismissal of the suit, plaintiff chose to file an appeal in terms of Section 96 of CPC before the Court of Civil Judge, Bidar and the same was withdrawn and transferred to the Fast Track Court-IV, Bidar in R.A. No. 34/2004. After hearing the arguments at length, the learned Presiding Office has chosen to allow the appeal by decreeing the suit as prayed for, directing the defendants to execute a regular sale deed in favour of the plaintiff vide considered judgment dated 29.03.2007. It is this divergent judgment which is called in question before this Court.

This Court has framed the following substantial questions of law when admitting the appeal:

Whether in the facts and circumstances of the case, the appellate Court was justified in reversing the judgment and decree passed by the trial Court holding that Ex. P. 1 sale agreement has been duly proved in accordance with law?

Whether in the facts and circumstances of the case, the appellate Court was justified in reversing the judgment and decree passed by the trial Court on the ground the oral gift executed by the 1st defendant in favour of the 2 nd defendant was to defeat the right accrued to the plaintiff?

REASONS

Substantial question of law No. 1: While upturning a well considered judgment of the trial court, the first appellate court will have to assign valid and cogent reasons explaining as to where the trial court has gone wrong and what should have been the proper approach. While upturning the judgment of the trial court, the appellate court will have to come to close quarters and assign very strong reasons. Principles to this effect have been succinctly explained by the Hon'ble apex court in the case of SANTHOSH HAZARE v. PURUSHOTTAM TIWARI (2001 SC 965).

The agreement of sale relied on by the plaintiff is marked as Ex. P1. It is in Urdu language. The translated copy is made available in the trial court also. While appreciating the evidence on record, the trial court has emphatically held that plaintiff has not proved execution of the agreement of sale which is the basis for granting or refusing to grant the relief of specific performance. Of course, agreement of sale is not to be compulsorily attested. But when the authenticity of the very agreement of sale is in question, plaintiff is expected to discharge the initial burden cast on him effectively. Unless it is discharged, the onus does not shift on the other side irrespective of the weaknesses found in the case of the adversary.

PW 2 is stated to be the attestor to the agreement of sale, but he has not supported the plaintiffs case and therefore he was cross-examined with the permission of the court. He has admitted his signature on Ex. P1. Whether such admission would amount to due execution of the agreement of sale, is the question. What is argued by the learned counsel for the respondent, Mr. Amit Kumar Deshpande is that this will have to be viewed in the light of collusion that took place between defendants 1 and 3 on one side and defendant No. 2 on the other hand. He has argued that the first appellate court has given a categorical finding about the 2nd defendant-appellant against the decree obtained in O.S. 224/85. Of course substantial question of law No. 2 is in regard to the same.

The evidence adduced by the plaintiff will have to be viewed in the light of readiness and willingness also. Section 16(c) of the Specific Relief Act mandates that a party seeking the equitable relief of specific performance must be ready and willing to perform his part of the contract. Readiness shows financial capacity and willingness indicates eagerness to get the sale deed executed at the earliest. Nothing has been placed on record to show as to how many times the plaintiff met the appellant-1st defendant calling upon him to execute regular sale deed. When the suit was filed, 1st defendant was alive. Nothing came in the way of the plaintiff to call upon him to execute sale deed by receiving balance consideration. This would have definitely vindicated his stand of readiness and willingness. No valid reasons are forthcoming why such exercise was not done. Readiness and willingness can be ascertained from the notice and the reply given to such notice. Infact no notice was got issued by the plaintiff before filing the suit.

The deposition of PW 1 is nothing but a self-serving statement in regard to the execution of Ex. P1-agreement of sale. The evidence of PW 2-attestor is not of any help in proving execution of the agreement of sale. The learned judge has framed issue No. 1 in regard to due execution of the agreement of sale. While discussing the evidence on record, the learned judge has taken all the four points together for consideration and the exercise so done is not correct and proper.

What is observed in page 19 of the impugned judgment of the first appellate court is that the trial court has adopted a casual approach towards Ex. P1 and disbelieved it. It is further observed that when PW 2 has admitted his signature at Ex. P1(c), the burden of proof would be on him to substantiate the circumstances under which he subscribed his signature. This is the basis for not accepting the version of the trial court in regard to the non-proving of Ex. P1. In the light of defendants denying the very execution of the agreement of sale, initial burden was cast on the plaintiff to get it referred to an expert in terms of Section 45 of the Evidence Act. No such attempt is made.

According to the plaintiff, 2 days prior to the agreement of sale, first talks took place and second round of talks was in the house of 1st defendant. On the first day of talks, two persons were present in the house of the 1st defendant and on the second day also they were present. He has hastened to add that these 3 persons were not present on the first day and second day. 3rd defendant, i.e. 2nd defendant's wife was not present. He does not remember the date, day and month of the talks.

The date on which stamp paper was purchased is 25.4.1984. The date of execution of the agreement of sale is 26.4.1984. If really the agreement of sale-Ex. P1 was executed two days after the first talks, he would have definitely mentioned the date and day on which it took place. He has not deposed about the time gap of the talks held on the first day and the second day. No where in his examination-in-chief PW 1 has deposed the date on which agreement of sale was executed in his favour except stating that Ex. P1 is the agreement of sale. He has not deposed about the talks held earlier to execution of Ex. P1 and Ex. P1 being the consequence of such earlier talks. On the other hand, he is stated to have approached the 1st defendant on several days calling upon him to execute regular sale deed, but it was in vain.

It is his case that the 1st defendant went on postponing execution of regular sale deed on one pretext or the other. These important material aspects have not been considered by the first appellate court while upturning the finding given by the trial court on issue No. 1 which is an important finding.

The evidence of PW 3 and PW 4 is not of much assistance since they were not present when execution of the agreement of sale took place. Though he has deposed that he was ready and willing to perform his part of the contract to pay the balance consideration, he did not get any notice issued. If really he had approached the defendant 7-8 times and he went on postponing the same, that would have been the specific denial to execute sale deed and he could not have kept quiet.

Admittedly one year time is fixed in the agreement of sale. No notice was got issued prior to the filing of the suit. The suit was filed one year after the expiry of time fixed in Ex. P1. It is in this regard the decision rendered by the Hon'ble apex court in the case of Mrs. Saradamani Kandappan Vs. Mrs. S. Rajalakshmi and Others, AIR 2011 SC 3234 : (2011) 8 JT 129 : (2011) 4 RCR(Civil) 130 : (2011) 12 SCC 18 : (2011) 8 SCR 874 is applicable. It is held in the said decision is that though normally time is not the essence of the contract in respect of immovable properties, the same cannot be rigorously applied in respect of immovable properties situated in urban areas. Admittedly Bidar is a city and the property in question is a residential house with open space and is substantially a big property.

Though the suit is filed within 3 years from the date of expiry of the time fixed under the agreement of sale, the suit suffers from serious laches as the plaintiff did not exercise his right vested under the alleged agreement in time. Therefore, the principles enunciated in the case of S. KANDAPPA (supra) are applicable to the present case.

The learned judge of the first appellate court has held that PW 3 and PW 4 are not competent to speak about the contents of Ex. P1, but the learned judge has observed that their evidence could be accepted for substantiating the oral testimony of Ex. P1 touching the suit transaction. This court is unable to accept the reasoning given by the first appellate court. The learned judge has drawn an adverse inference in the light of 3rd defendant-wife of deceased 1st defendant being not examined. That does not assume much importance in the light of heavy responsibility cast upon the plaintiff to prove Ex. P1, the star document for seeking the equitable relief of specific performance and the same being not effectively discharged.

Suffice to state that the approach adopted by the first appellate court in regard to proof of Ex. P1 is quite incorrect and improper and therefore, substantial question of law No. (1) is to be held in the negative.

Substantial question of law No. 2: It is true that the trial court has answered additional issue Nos. 1 and 2 in the affirmative. This finding has been upturned by the first appellate court. In the light of inability of the plaintiff to prove the star document marked as Ex. P1, the affirmative finding given by the trial court on additional issue Nos. 1 and 2 which has been reversed by the appellate court will have no consequence. Accordingly the appeal will have to be allowed.

In the result, the following order is passed:

ORDER

The appeal is allowed in its entirety, setting aside the judgment of the first appellate court. Consequently the judgment of the trial court dismissing the suit is affirmed. Parties to bear their own costs.