Sudhir Kumar vs Subhash Chandra & Others

Respondent no. 4 though has been served through the mother, but the interest of other respondents is identical to respondents no. 1, who is being represented by Mr. D.C.S. Rawat. So, service on the respondent no. 4 is also deemed sufficient.

Since delay condonation application (CLMA 2647/2016) is not being seriously opposed, hence the same is allowed. Delay in preferring this second appeal is condoned.

Heard learned Counsel for the parties on the question of admission of this second appeal.

It transpires that an unregistered agreement to sell dated 17.12.2006 was executed between the plaintiff and the respondents. Plaintiff is a developer of the residential colony, whereas the respondents are the owners of the land whereon the colony had to be developed. Plaintiff started his work. Plots of land had to be sold at the instance of the plaintiff appellant to the prospective purchasers by the defendants respondents. Most of the defendants reside in Delhi.

After executing certain sale deeds, the defendants resiled from the terms of the agreement. So, an Original Suit No. 1/2009 was instituted to compel the respondents to make compliance of the terms of the agreement to sell. This suit was dismissed by the Court below on 30.8.2014. First Appeal No. 13/2014 preferred by the plaintiff was also dismissed by the Additional District Judge, Kotdwar on 9.10.2015, whereagainst this second appeal has been filed.

Learned Counsel for the appellant has vehemently relied upon a judgment of Hon''ble Supreme Court rendered in the case of Gautam Sarup v. Leela Jetly & Others, (2008) 7 SCC 85, He has strenuously argued and stressed on what has been held in paragraph 16 of the said verdict. For convenience, such paragraph is reproduced below:

"A thing admitted in view of Section 58 of the Evidence Act need not be proved. Order 8 Rule 5 of the Code of Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions of Order 12 Rule 6 of the Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one''s stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile thereform. The decisions of this Court unfortunately in this regard had not been uniform. We would notice a few of them."

I think this precedent of the Hon''ble Apex Court is not at all applicable in the present controversy because the Hon''ble Supreme Court has laid down the law pertaining to Section 58 of the Evidence Act regarding the evidentiary value of the admissions made in the pleadings of the parties and in that precedent itself, it has been made clear by the Hon''ble Apex Court that such admissions are not at par with the admission made in a document and are admissible against the party making the admissions. So, any so-called admission made in the unregistered agreement dated 17.12.2006 cannot be treated at par with the admission of the pleading of the parties.

Further, as per Section 19 of the Registration Act, no transfer of the immovable property could have been made on the basis of such unregistered agreement to sell and the effect and impact of such agreement under Section 49 of the same Act is a nullity.

Furthermore, it has been the specific case of the defendants that the first page of the agreement to sell had been changed by making manipulations by the plaintiff and that is why he could not produce either the notary who notarised that agreement or any attesting witness and not even the scribe of such agreement before the Court below.

Contention of learned Counsel for the appellant that it was incumbent upon the defendants to produce the photocopy of the agreement to sell whereupon he was relying is altogether untenable because the burden to prove the facts and the pleadings are on the plaintiff, and not upon the defendants.

No substantial question arises in this second appeal. I do not find any merit in this appeal and the same is hereby dismissed.

Interim order, if any, stands vacated.