Munikannan vs Kenchappa

A.V. Chandrashekara, J.—Plaintiff of an original suit bearing OS. No. 374/1996, which was pending on the file of the then the Court of Munsiff, Shimoga, is before this Court challenging the concurrent findings. Suit filed for the relief of specific performance has been dismissed and the alternative relief of refund of advance amount has been ordered by the trial Court. The said judgment and decree passed in OS. No. 374/1996 on 16.3.2005 was called in question before the Court of Principal Senior Civil Judge at Shimoga in RA. No. 77/2005 under Section 96 of CPC. The said appeal has been dismissed confirming the judgment of the trial Court. It is these judgments, which are called in question on various grounds as set out in the appeal memo filed under Section 100 of CPC. The respondent herein is the lone defendant in the aforesaid original suit. The parties will be referred to as plaintiff and defendant as per their ranking in the trial Court.

The facts leading to the filing of the suit before the trial Court are as follows:

"The defendant is the owner of an agricultural land measuring 1 acre 13 guntas in Sy. No. 134 of Hasudi Village, Shimoga Taluk. He is stated to have agreed to sell 20 guntas out of 1 acre 13 guntas of land in said Sy. No. 134 in favour of the plaintiff for a total consideration of Rs. 30,000/- and in this regard, an agreement of sale was executed by him in favour of plaintiff on 3.4.1993. On the said date, he is stated to have received a sum of Rs. 15,000/- as advance in the presence of witnesses, who have attested the said document. He had agreed to execute a regular sale deed before the end of July 1993 by receiving the balance consideration of Rs. 15,000/-."

It is the case of the plaintiff that the defendant had approached him for further advance and received a sum of Rs. 13,000/- on 1.6.1993 and handed over possession of the schedule property and agreed to execute a regular sale deed on or before 4.7.1996 by receiving the balance consideration of Rs. 2,000/-.

Inspite of several oral requests, the defendant did not come forward to execute a regular sale deed and as such, there was no avenue for the plaintiff except to get a notice issued through his advocate on 29.6.1996 calling upon the defendant to execute a regular sale deed by receiving the balance of consideration. Inspite of receipt of the same, the defendant did not come forward to execute the regular sale deed and as such, he chose to file a suit seeking the main relief of specific performance on 17.7.1996 with an alternative relief of refund of advance amount of Rs. 28,000/-with interest at 24% p.a., thereon from the date of filing of suit till realisation.

The defendant appeared before the Court and filed detailed written statement. He has denied the very execution of the agreement of sale and the receipt of advance amount of Rs. 15,000/- and further receipt of Rs. 13,000/- on 1.6.1993 and handing over possession of the very suit schedule property in favour of the plaintiff. The very document is stated to be a concocted document. The defendant is stated to have obtained a loan from the plaintiff and the plaintiff is said to have misused the blank stamp paper bearing his signature. He has called upon the plaintiff to prove the contents of the plaint strictly. The plaintiff is said to have misused the trust that he had in him. With these pleadings he has requested for dismissal of the suit.

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

"1. Whether the plaintiff proves that defendant executed an agreement to sell on 3.4.93 agreeing to sell suit property for Rs. 30,000/- and received Rs. 15,000/- as part payment?

Whether the plaintiff further proves that defendant received Rs. 13,000/- on 1.6.93 out of remaining balance consideration and acknowledged in the agreement itself?

Whether the plaintiff proves that defendant delivered the possession of suit property on 1.6.93 in favour of plaintiff?

Whether the plaintiff proves his readiness to perform his part of contract?

Whether the defendant proves that sale agreement dated 3.4.93 is a concocted one as pleaded as in para 8, 9 and 10 of written statement?

Whether the plaintiff proves alleged cause of action?

Whether the plaintiff is entitled for relief of specific performance of agreement to sell?

Alternatively, whether the plaintiff is entitled for relief of refund of balance consideration of Rs. 28,000/-? If so, at what rate of interest?

Whether the plaintiff is entitled for relief of permanent injunction?

What order or decree?"

The plaintiff himself is examined as PW.1 and one Mr. Krishna Murthy, attestor to agreement of sale, is examined as PW.2. In all 10 exhibits have been got marked on his behalf. The defendant did not choose to enter into the witness box. Ultimately, the trial Court has answered issues 1, 2, 4, 6 and 8 in the affirmative and remaining issues in the negative. Consequently, the suit is decreed in part with costs directing the defendant to repay a sum of Rs. 28,000/-with interest at 12% pa., thereon from 1.6.1993 till the date of realisation. It was this judgment and decree, which was called in question before the first appellate Court under Section 96 of CPC in RA. No. 77/2005. The learned Principal Senior Civil Judge, Shimoga, has dismissed the appeal holding that the plaintiff is not entitled for the relief of specific performance and that there is absolutely no scope to interfere with the well considered judgment. It is these judgments, which are called in question on various grounds as set out in the appeal memo.

After hearing the arguments, at the time of admission, this Court has framed the following substantial questions of law :

"1. Whether both the Courts below having held all the issues in the affirmative in favour of the plaintiff, were justified in refusing the relief of specific performance only on the ground that the suit schedule property is not properly identified in the absence of any pleadings or evidence to that effect by the defendant?

Whether both the Courts below were justified in granting the relief of refund of advance amount as against specific performance citing the reasons of hardship in the absence of pleadings and/or evidence by the defendant in this behalf?"

Heard the learned Counsel for the appellant and the respondent at length. Perused the records of both the trial Court as well as the first appellate Court.

REASONS

Point No. 1: The land in Sy. No. 134 measures 1 acre 13 guntas. This is evident from Ex. P5, the RTC of the land in question issued by the Tahsildar, Shimoga, for the years 1989-1990 to 1993-1994. The name of Kenchappa is not only found in column 9 but also in column 12(2) of RTC, which is earmarked for incorporating the name of the person in possession. Admittedly, the land in question was granted in favour of Kenchappa, the defendant in case bearing No. 42/1974-75 dated 30.5.1981. He had paid the upset price of Rs. 2,000/- for getting the grant by way of regularization. This is evident from Ex. P6, the copy of mutation register.

In Ex. P1, the agreement of sale is stated to have been executed by the defendant in favour of the plaintiff. There is a reference about the total extent of land in Sy. No. 134 possessed by Kenchappa to an extent of 1 acre 13 guntas. The boundaries of 20 guntas of land are clearly mentioned. The said 20 guntas of land allegedly intended to be sold by the defendant in favour of the plaintiff, is bounded on west and north by the remaining land of Kenchappa, on east by Odda Rama'' land and on south by Ganeshappa's land. These boundaries are also found in the schedule appended to Ex. P3, the legal notice got issued on 29.6.1996. The same boundaries are found in the schedule appended to the plaint.

The learned judge of the trial Court has come to the conclusion that the evidence in regard to the boundaries of the schedule is feeble and therefore, the plaintiff has not been able to prove the same to the satisfaction of the Court. The first appellate Court has also affirmed the said finding. Normally, the second appellate Court cannot interfere with the concurrent finding on facts. This is very much relevant even in respect of the present case also. However, what is argued before this Court by the learned Counsel for the appellant is that the trial Court as well as the first appellate Court have committed a serious error in assessing the material evidence in regard to the boundaries. Section 100 of CPC does not inhibit the second appellate Court to make a re-assessment of the evidence, provided both the Courts have adopted a wrong approach to the real state of affairs or have ignored the material evidence placed on record.

Admittedly, the defendant has not chosen to enter into the witness box. The plaintiff has been examined at length. In paragraph 4 of his cross-examination conducted on 5.4.2004, the plaintiff has deposed that he did not go near the suit schedule property and verify the facts prior to the intended purchase. He has further deposed that he did not verify the document. These two sentences found in paragraph 4, have been blown out of proportion by the trial Court as well as the first appellate Court. In his cross-examination done on 5.11.2004, the plaintiff has specifically given the boundaries of 20 guntas of land. The boundaries given by him in page 7 tally with the boundaries found in the schedule appended to the plaint. This is further supported by the evidence of PW.2 - Krishna Murthy, who is the attestor to the agreement of sale, marked as Ex. P1. In fact, PW.2 has deposed that the agreement pertains to 20 guntas of southern portion in Sy. No. 134 measuring 1 acre 13 guntas. In the light of this material evidence found in Ex. P1 and the oral evidence of PWs.1 and 2, both the trial Court as well as the first appellate Court have committed a serious error in assessing the evidence in this regard. Therefore, this Court is of the considered opinion that both the Courts have adopted a wrong approach to the real state of affairs in regard to the boundaries of 20 guntas of land and hence, the substantial question of law No. 1 is answered in the negative.

Point No. 2: The crucial point for consideration is in regard to the discretion exercised by the trial Court, which is affirmed by the first appellate Court in regard to the refusal to grant the equitable relief of specific performance. Even if a document is proved as an agreement of sale, the Court make a serious effort to know as to whether the said document is an out and out agreement of sale. What is argued before this Court by the learned Counsel for the appellant is that, when Ex. P1 is proved, Section 92 of the Evidence Act is an inhibition on the part of defendant to contend that the possession has not been handed over. But, mere proof of a document will not ipso facto allow the Courts to come to the conclusion that the contents of the said document have been proved. While in Ex. P2, the endorsement dated 1.6.1993, it is mentioned that the possession was handed over to the plaintiff after receiving Rs. 13,000/-, the said endorsement is not corroborated in material particulars. If a person is found to be in possession of an agricultural land wholly or in part, the name of said person will be found at least in column 12(2) of the RTC. The name of the plaintiff does not find a place in the RTC marked as Ex. P5, issued for the years 1989-1990 to 1993-1994, instead, the name of Kenchappa is found even for the year 1993-1994.

Admittedly, the suit came to be filed in the year 1996 i.e., three years after the alleged execution of the agreement of sale. If, he was really in possession of the property, the plaintiff would have paid the proportionate land revenue to the 20 guntas of land in question. In the light of the same, the trial Court and the first appellate Court are justified in coming to the conclusion that the evidence in regard to the alleged possession being handed over to the plaintiff, is feeble.

The learned Counsel for the appellant has relied on the decision of the Hon'ble Apex Court in the case of Santa Rani v. Deepak Raj & Ors., reported in 2001(4) Supreme 510. Paragraphs 4 and 5 of the said judgment are relevant and they are reproduced below:

"4. So far as the first question is concerned, the High Court, did notice the fact that defendant No. 2 who got the sale deed executed in his favour did not even enter the witness box in respect of the claim made by him that he is a bona fide purchaser for value without having notice of the earlier agreement, however, stated that this aspect ought to has been examined. We fail to understand, when two Courts come to the conclusion that no evidence had been adduced in this regard and when defendant No. 2 had only produced the sale deed without even examining himself, as to how the High Court in the second appeal could have upset a finding to that effect.

On the second question there was neither any plea nor proof that defendant - vendor suffered hardship as a result of the sale being asked to be specifically performed. When the plea of hardship had not been raised by the party concerned, examination of the provisions of Section 20(2)(b) of the Specific Relief Act would not arise at all. When the party concerned did not raise this plea as to how the Court could imagine it might result in hardship to the party concerned, is beyond our comprehension. We set aside the order of the High Court and restore that of the first Appellate Court. The appeal is allowed accordingly."

Relying on Section 20, Sub-section 2, sub-clause (b) of the Specific Relief Act, 1963, the learned Counsel for the appellant has vehemently argued that the defendant has neither taken a plea of hardship nor proved the same and therefore, the trial Court as well as the first appellate Court could not have dismissed the main relief on this ground. Section 20 consists of 4 Sub-sections and Sub-section 2 consists of 3 more sub clauses. Section 20, Sub-sections 1 and 2 are relevant and they are reproduced below:

Discretion as to decreeing specific performance.--

"(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The 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

So far as the facts in Santa Rani's case is concerned, the person who had purchased the land from the owner during the existence of earlier agreement of sale had not entered into the witness box. As per Section 19 of the Specific Relief Act, 1963, a person who claims to be a bona fide purchaser for value without notice must discharge his initial burden. Unless the said initial burden is effectively discharged, the onus does not shift on the other side. In the present case, the defendant is the owner of the land in question and therefore, the observations made in paragraph 4 of Santa Rani's case are not applicable to the facts of the present case.

Insofar as the plea of hardship is concerned, it is true that the defendant has not taken any specific plea of hardship. The trial Court has come to the conclusion that the transaction does not appear to be an out and out agreement of sale and therefore, the defendant must be permitted to refund the amount with reasonable interest thereon. Section 20 speaks not only about the terms of contract, but also about the conduct of the parties and other circumstances under which the contract was entered into. Admittedly, the defendant is an agriculturist having 1 acre 13 guntas only. The said land was granted to him by the Special Tahsildar, Shimoga, on 30.5.1981 and he had paid a sum of Rs. 2,000/- as upset price. While granting the land, a clause prohibiting alienation for a period of 15 years from 30.5.1981 was imposed. If said 15 years is reckoned from 30.5.1981, he could not have alienated the land in question up to 30.5.1996.

Admittedly, the alleged agreement of sale is stated to have come into being on 3.4.1993. If the plaintiff could pay Rs. 15,000/- on 3.4.1993 itself and if, he could pay another sum of Rs. 13,000/- on 1.6.1993, it is un-understandable as to how the date for executing the regular sale deed could be postponed for a further period of almost three years. This aspect of the matter has to be taken into consideration.

The evidence of PW.1 himself discloses that the defendant had approached him on 3.4.1993 seeking a sum of Rs. 15,000/-. Admittedly, the defendant and the plaintiff were in cordial terms. The defendant had approached the plaintiff seeking a sum of Rs. 15,000/- as financial assistance to perform his daughter's marriage and the same was paid on 3.4.1993. This would somehow indicate that the defendant was in need of financial assistance to perform the marriage of his daughter and being an agriculturist, he could not have sold the land, which is the only source of income. If, he really intended to sell the land, nothing would have come in the way of the plaintiff to pay the entire amount of Rs. 30,000/- on the very day and to have a regular sale deed. In fact, nothing was to be performed by the defendant at the time of executing the agreement of sale so as to postpone the date of executing a regular sale deed. These pleadings have been taken into consideration by the trial Court to come to the conclusion that the defendant had some hardship.

It is true that if, the defendant had entered into the witness box, it could have further strengthened his case. But, mere non examination of the defendant, will not allow a Court to draw an adverse inference in all cases. If a party is able to cull out some useful answers from the mouth of the plaintiff, who has sought the equitable relief of specific performance, that would be sufficient. In the present case, the trial Court has exercised the discretion under Sub-section 2(a) of Section 20 of the Specific Relief Act and the totality of the case has been taken into consideration by the trial Court to refuse the equitable relief of specific performance. Therefore, even in the absence of specific averment in the written statement regarding the hardship and even in the absence of the defendant having entered the witness box, the trial Court as well as the first appellate Court are justified in exercising the discretion of refusing the equitable relief of specific performance. In this view of the matter, the substantial question of law No. 2 will have to be answered in the affirmative.

At this juncture, the learned Counsel for the appellant has argued that at least some compensation should be awarded as contemplated under Section 21 of the Specific Relief Act. Admittedly, the defendant is an agriculturist, having only 1 acre 13 guntas of land. The trial court has directed the defendant to repay a sum of Rs. 28,000/- with reasonable interest at 12% pa. If the property was an urban property, it would have been something different. Even otherwise, there is no substantial question of law involved in regard to the grant of compensation as per Section 21 of the Specific Relief Act, 1963. Taking into consideration the totality of the case, no compensation could be granted to the parties. The discretion so exercised by the trial Court, which is affirmed by the first appellate court cannot be considered as either improper or illegal.

In the light of the above, there is no merit in the appeal and in fact, the trial Court has directed the defendant to pay back a sum of Rs. 28,000/- with interest at 12% pa. The interest so awarded is consistent with the prevalent rate of interest awarded by nationalised banks on various kinds of fixed deposits. Thus, the appeal is liable to be dismissed.

ORDER

The appeal is dismissed with costs.