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Judgment
J.K. Maheshwari, J.—Being aggrieved, the appellants have filed the aforementioned six appeals u/s 96 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 14.05.2001 passed by the II Additional District Judge, Bhopal in Civil Suit No. 22-A/1997 and 23-A/1997, and also, the common judgment and decree dated 05.10.2001 passed by the XI Additional District Judge, Bhopal in Civil Suit No. 45-A//2001, 46-A/2001, 47-A/2001 and 48-A/ 2001. By the impugned judgment and decree the aforesaid six civil suits seeking relief of specific performance of the agreement to sell dated 30.08.1990, were decreed by the trial Court. In addition to this, four sale deeds executed on 18.01.2001 by the defendants No. 2 to 5 in favour of defendants No. 7 to 10 during the pendency of the civil suits were also declared as null and void. The agreements to sell dated 30.8.1990 are six in number but with similar words by one intended seller in the name of different intended purchasers specifying different area with common attesting witnesses however the different suits were filed by the intended purchasers stating similar facts and raising the common issue. The two suits have been decided by the judgments and decree passed on one date i.e. 14.05.2001 and four suits have been decided by a common judgment and decree dated 05.10.2001. The counsel representing the parties present in the Court consented for analogous hearing because similar facts and common question of law is involved in all the six appeals, therefore, all the appeals are being decided by this common judgments.
In each civil suit, there were ten defendants. The names and ranks of these defendants are common in each civil suit. All the six appeals have been preferred by defendants No. 2, 3, 4, 5, 7, 8, 9 and 10 jointly. The defendant No. 1 Kailash Agrawal and defendant No. 6-State of M.P. in all the civil suits have been joined as respondents No. 2 and 3 in all the appeals. The respondent No. 1 in each of the appeals are plaintiff in respective suits, however, the appellants in all he appeals are defendants No. 2 to 5 and 7 to 10 and be referred hereinafter as defendants. Similarly respondent No. 1 be referred as plaintiff''s and respondents No. 2 and 3 be referred as defendants No. 1 and 6, respectively in each of the appeals. It is made clear here that Defendant No. 1-Kailash Agrawal even after service of notice has failed to put his defence and remained ex parte in the trial Court. He has not led any evidence in suit and not preferred any appeal against the impugned judgments and decree. The plaintiff K.D. Maheshwari in F.A. No. 54/2002 has died during the pendency of the appeal, therefore, L.Rs. have been substituted.
The undisputed facts are that Smt. Sushila Bai wife of Late Shri Chandmal Agrawal resident of Sagar was the owner of the land bearing Khasra No. 546 area 9.03 acres, Khasra No. 547 area 15.5 acres and Khasra No. 548 area 3.48 acres; admeasuring total area 27.56 Acres situated at Village Godarmau, Tehsil Hazur, Dist. Bhopal. The aforesaid land was purchased by way of registered sale deed dated 29.04.1966 Ex. P-4A and her name was also mutated in revenue records as per Ex. P-3A. Smt. Sushila Bai died on 25.12.1992 while residing at Sagar leaving behind three sons namely Kailash Agrawal, Vinod Agrawal and Jagdish Agrawal and also two daughters namely Usha and Sangita. The aforesaid six civil suits were filed seeking a decree of specific performance of agreement to sell dated 30.8.90 allegedly executed by Smt. Sushila Bai against her LRs, the defendants No. 1 to 5. The State of M.P. was joined as defendant No. 6. During the pendency of the civil suits, four registered sale deeds were executed on 18.01.2001 by the defendants No. 2 to 5 in favour of individual purchasers, however, they were allowed to join on 23/3/2001 as defendant No 7 to 10. The defendant No. 1-Kailash Agrawal, the eldest son of Late Smt. Sushila Bai, has neither filed any written statement nor contested the six civil suits and also has not chosen to file any appeal challenging the judgment and decree passed by the Trial Court. It is undisputed that agreements to sell were executed in presence of plaintiff and not by the power of attorney holder. It is also undisputed that the six civil suits were filed by plaintiffs without the aid of any power of attorney holder, however, later on, one K.D. Maheshwari, who is plaintiff in the Civil Suit No. 48-A/2001, 46-A/2001 and 47-A/2001 as the power of attorney holder, to the respective plaintiff''s. The Civil Suit No. 22-A/1997, filed by Bharat Kumar Lathi, was prosecuted by Pankaj Maheshwari as Power of Attorney holder of the Plaintiff. It is also undisputed that in the five Civil Suits, the plaintiffs have refrained themselves from entering into witness box to prove the contents, correctness, genuineness and validity of individual agreement to sell alleged to have been entered in between Smt. Sushila Bai and the individual plaintiff. It is also undisputed that notice in writing was not issued by the plaintiffs or by the power of attorney holders either to Smt. Sushila Bai or to her legal heirs insisting and asking performance of agreements to sell. The readiness and willingness by purchasing stamps for execution of the sale deeds and ready to pay the registration charges was also never conveyed in writing either by the plaintiffs or by power of attorney holders. Neither Smt. Shushila Bai during the life time nor her legal heirs were communicated in writing to remain present in the office of Sub-Registrar for execution and registration on the sale deeds discharging their obligation. It is also undisputed that Smt. Sushila Bai was an old, infirm and widow lady, as her husband, Shri Chandmal Agrawal was died in the year 1986.
It is not out of place to note here that K.D. Maheshwari and Mahesh Kumar Maheshwari both are the sons of Chhatralal Maheshwari. Smt. Suryakanta Maheshwari is the wife of K. D. Maheshwari, Pankaj Maheshwari and Ku. Sangeeta Maheshwari both are brother and sister and son and daughter of K.D. Maheshwari and Ram Kumar Inani, Shyam Kumar Inani and Bharat Kumar Lathi also in their relation. However, the Power of attorney Bharat Kumar Lathi has been taken in the name of Pankaj Maheshwari and Power of Attorney of Shyam Kumar Inani and Ramkumar Inani is in the name of K.D. Maheshwari.
The facts of the case are that six agreements to sell dated 30.8.90 got executed from Smt. Shushila Bai in the name of K.D. Maheshwari, Smt. Suryakanta, Miss Sangeeta Maheshwari, Bharat Kumar Lathi, Shyam Kumar Inani and Ram Kumar Inani on the same date and time at one place at Bhopal. The details of Khasra Nos., area and of consideration in the aforesaid six agreements to sell with Civil Suit Numbers are summarized as under for the convenience:-
s. No.
Khasra No.
Area in in acre
Consideration on recited (in Rupees)
Name of Purchaser
Civil Suit No.
1.
548
3.48
58,000/-
Bharat Kumar Lathi
22-A/97
2.
547
3.50
70,000/-
Shyam Kumar Inani
23-A/97
3.
547
4.00
80,000/-
Smt. SuryakantaMaheshwari
45-A/01
4.
547
4.00
80,000/-
Ram Kumar Inani
46-A/01
5.
546
4.50
90,000/-
SangeetaMaheshwari
47-A/01
6.
546
4.50
90,000/-
K. D. Maheshwari
48-A/01
In short, the case of the plaintiffs before the Trial Court was that, Smt. Sushila Bai wife of Late Shri Chandmal Agrawal has executed six individual agreements to sell in favour of six individual purchasers i.e. plaintiffs in respect of different piece of land. These six agreements to sell were executed on 30.08.1990 at Bhopal before the Notary-T.R. Sharma at the residence of the defendant No. 1-Kailash Agrawal. The sale consideration, as recited in the individual agreement to sell, was paid in cash and the possession of the land in question was also delivered by Smt. Sushila Bai to the intended purchasers. These six agreements to sell were commonly witnessed by two witnesses namely Deepesh Chandra Patni and Sharma Ji. The time was not the essence of contracts and this fact was specifically mentioned in para 6 of the agreements. The plaintiffs have repeatedly asked Smt. Sushila Bai to execute the registered Sale Deeds, however, no sale deed were executed and Smt. Sushila Bai died on 25.12.1992. After her death the sons and daughters have also failed to execute the sale deeds despite the request made by the plaintiff. The cause of action to file the civil suits as alleged has arisen on 06.10.1994, when objections were raised by the defendants before the Tehsildar in the mutation proceedings initiated by the Plaintiffs on the basis of these six agreements to sell. It is said, that readiness and willingness was always shown by the plaintiffs, however, sale deeds were not executed, therefore, the need to file aforesaid civil suits seeking relief(s) of specific performance has arisen. During the pendency of the aforesaid six Civil Suits, the land in question was alienated by the defendant No. 2, 3, 4 and 5 by executing four sale deeds on 18.01.2001 in favour of the defendant No. 7, 8, 9 and 10, therefore, these registered sale deeds were also challenged to declare as null and void.
The defendants No. 2 to 4 by filing joint written statement on 28.08.98/30.09.1998 have disputed the execution of agreements to sell by Smt. Sushila Bai on 30.08.1990. it is contended that these agreements to sell are forged and fabricated. It is stated that Smt. Sushila Bai was permanent resident of Sagar and never visited to Bhopal for execution of any such agreements to sell. It was also contended that Smt. Sushila Bai was not having good relation with the eldest son i.e. defendant No. 1/Kailash Agrawal and never resided at Bhopal with him, and died at Sagar on 25.12.1992. It is specifically said that no sale consideration was received by Smt. Sushila Bai and possession of land in question was also not delivered to any person. The land in question, being Joint Hindu Family Property, could not have been alienated alone by Smt. Sushila Bai. The defendant No. 1-Kailash Agrawal joining hands with K.D. Maheshwasri and Mahesh Kumar Maheshwari has fabricated and prepared false and forged documents i.e. agreements to sell dated 30.8.90. It is said that Smt. Sushila Bai never executed any power of attorney on 04.09.1990 in favour of Mahesh Kumar Maheshwari granting any authority and power to alienate the land in question and to receive sale consideration for the land in question. Plaintiffs never served any notice in writing either to Smt. Sushila Bai or to the LRs seeking execution of Sale deeds in pursuance of alleged agreements to sell. It is said that plaintiffs did not dare to file the civil suits during the life time of Smt. Sushila Bai and filed against LRs after about four and half years of execution of sale agreements, thus, the suit is time barred and the relief of specific performance as prayed can not be granted.
The State of M.P. being defendant No. 6, has also filed its written statement on 28.01.1997 contending that the land in question is situated in urban area, it could not have been alienated as agricultural land. The valuation of the suit land was also required to be made treating it as urban land affixing the Court Fees.
The lis pendens purchasers, arrayed as defendant No. 7, 8, 9 and 10 by filing separate written statement on 10.04.2001/23.04.2001, have taken the plea of impostor of executants and contended that Smt Sushila Bai never executed any agreement to sell in favour of the plaintiffs. However; neither Late Smt. Sushila Bai nor her legal heirs are bound by any such agreement to sell executed by the impostor. The alleged agreements to sell are forged and fabricated documents. The defendant No. 7, 8, 9 and 10 are bonafide purchasers and have paid the sale consideration to the defendant No. 2, 3, 4 and 5. They are in possession and plaintiffs were never remained in possession on the land in question and now the land is mutated in their name. the registered sale deeds were executed without having any knowledge of any defect in the ownership and title of the sellers. The six civil suits for specific performance filed by the plaintiffs are time barred and, cannot be decreed in favour of the plaintiffs granting discretionary relief to them.
On the basis of the pleadings of the parties the trial Court has framed the issue regarding execution of agreements to sell on 30.8.1990 in favour of the plaintiffs for the disputed land after payment of total consideration and delivery of possession by deceased Smt. Sushila Bai to the plaintiffs. The issue of readiness and willingness, part performance of the agreement by the plaintiffs and refusal to perform their part by defendants has also been framed. The issue regarding lis pendens transfer and execution of four sale-deeds dated 18.1.2001 by defendants No. 2 to 5 in favour of the defendants No. 7 to 10 instead of injunction in favour of plaintiffs and such sale deeds may be declared as null and void has also been framed. In Civil Suit No. 22-A/1997 and 23-A/1997 the issue that the State of M.P. is a necessary party has been framed while in Civil Suit Nos. 45-A/2001, 46-a/2001, 47-A/2001 and 48-A/2001 the issue has been framed that agreement to sell dated 30.8.1990 is a fabricated and forged document and got executed by the plaintiffs in their favour with the help of defendant No. 1 and also with respect to adequate valuation and payment of Court-fees.
The parties during trial went to prove their case and in Civil Suit No. 22-A/97 plaintiff examined Pankaj Kumar Maheshwari (PW-1) as Power of Attorney Holder of Bharat Kumar Lathi. In Civil Suit No. 23-A/97 plaintiff has examined P.W. 1 K.D. Maheshwari a Power of Attorney Holder of plaintiff Shyam Kumar Inani, and Also P.W. 2 Deepesh Chandra Patni one of the attesting witness of the agreement to sell and P.W. 3 Mahesh Kumar Maheshwari power of attorney of Smt. Shushila Bai in each suit. The defendant has also examined D.W. 1 Mohd. Shakir and D.W. 2 Vinod Kumar Agrawal. Similarly in Civil Suit Nos. 45-A/2001, 46-A/2001, 47-A/2001 and 48-A/20014 plaintiff and defendant have examined aforesaid witnesses. In addition thereto plaintiffs have examined P.W. 4 R.K. Pathik and defendants have examined D.W. 3 Naveen Chandra Deshpande as Handwriting Experts. Thus except in Civil Suit No. 48-A/2001 in remaining other suits the plaintiff has not come in the witness box and their Power of Attorney Holder either K.D. Maheshwari or Pankaj Maheshwari have deposed.
In the Civil Suit No. 22-A/1997 and 23-A/1997, the Trial Court has decided all the issues positively in favour of the plaintiffs and decreed the suit in favour of the plaintiff. In the Civil Suit No. 45-A/2001, 46-A/2001, 47-A/2001 and 48-A/2001, the Trial Court has decided Issue No. 1, 2, 3, 4, 6, 7 and 8 positively in favour of the plaintiff and the issue No. 5 in negative and against the defendants, decreeing the civil suits in favour of the plaintiffs granting relief so prayed.
In Civil Suit No. 22-A/97 the Trial Court in judgment dated 14.5.2001 incorrectly observed that the suit has been filed by Bharat Kumar Lathi putting his signature on the plaint and on verification. In fact the suit is filed in the name of Bharat Kumar Lathi but the signature and verification is by Pankaj Maheshwari, the Power of Attorney Holder. The Civil Suit No. 23-A/ 97 has been filed with the signature of Shyam Kumar Inani. The Trial Court relying upon the statement of the Power of Attorney Holders Pankaj Maheshwari and K.D. Maheshwari and the attesting witness recorded a finding that Smt. Sushila Bai executed the agreements to sell after receiving the sale consideration and delivered the possession at the same time. It is held that Smt. Sushila Bai was introduced by defendant No. 1-Kailash Agrawal, who remained ex-parte in the suit, and the Defendants No. 2 to 5 have not brought Kailash Agrawal in witness box to disprove the aforesaid fact and also not brought any evidence to prove their defence that the agreement executed by Smt. Sushila Bai is a forged and fabricated one, however, not discharged the burden lies on them. The finding has also been recorded that after full payment of consideration and delivery of possession nothing remained for performance on the part of the plaintiff and in the proceedings in revenue Court the defendants have denied the execution of sale-deed and got mutated their names, however, decreed the suit filed by the plaintiffs, directing specific performance.
In Civil Suit Nos. 45-A/2001, 46-A/2001, 47-A/2001 and 48-A/2001 the Trial Court considering the findings recorded in Civil Suit Nos. 22-A/97 and 23-A/97 affirmed those findings of execution of agreements to sell and delivery of possession. It was also found that despite having Power of Attorney executed by Smt. Sushila Bai in favour of Mahesh Kumar Maheshwari who has not executed the sale-deed in favour of plaintiffs. The plea taken by the defendants No. 2 to 5 with respect to joint Hindu Family property found untrue. On consideration of the evidence of the Handwriting experts it is observed that Handwriting Expert of defendants is more experienced but because defendants No. 2 to 5 and 7 to 10 are unable to prove that defendant No. 1 was in collusion with the plaintiff to get executed agreements to sell dated 30.8.1990 and to prove their defence, therefore, decreed the suit. On the point of readiness and willingness similar finding has been recorded as recorded in Civil Suit Nos. 22-A/97 and 23-A/97. In both the judgments it is held that lis pendens sale deeds dated 18.1.2001 executed by defendants No. 2 to 5 in favour of defendants No. 7 to 10 is null and void and decreed the suit in toto. The issue with respect to joining of the State of M.P. as necessary party for the purpose of Order 1 Rule 3-B of CPC has also been found prove because the transaction relates to agricultural land.
Shri R.P. Agrawal, learned Senior Counsel, assisted by Sarvasri Ashok Lalwani, Sanjay Agrawal and Sharad Gupta, assailed the judgment and decree and urged that the Trial Court has committed error of law in granting decree for specific performance in favour of the plaintiffs and further declaring registered sale deeds dated 18.01.2001 as null and void. It is submitted that the plaintiffs have failed to enter into witness box, therefore, alleged agreements to sell (Ex. P/2) could not have been proved by the power of attorney holder Krishna Das Maheshwari (P.W. 1). All the civil suits were filed by the plaintiffs without the aid of power of attorney holder, however, the plaint averments can not be proved by the Power of Attorney holder K.D. Maheshwari (P.W. 1), who appeared in Civil Suit No. 23-A/1997, 45-A/ 1997, 46-A/41997 and 47-A/1997 and Pankaj Maheshwari (PW-1) in Civil suit No. 22-A/1997 as power of attorney holder. They were not having any knowledge of the ingredients of transaction alleged to have been entered on 30.08.1990 with plaintiffs. The alleged agreements to sell are forged and fabricated documents and could not be made the basis for grant of decree of specific performance. Smt. Sushila Bai has never been resided at Bhopal and an impostor of Smt. Sushila Bai has executed alleged agreements to sell. The plaintiffs have never shown readiness and willingness to perform their part of the agreement and never issued any notice in writing either to Smt. Sushila Bai or the LRs of Smt. Sushila Bai discharging the obligation of contract.
Learned Senior Counsel further submitted that the defendant No. 1/Kailash Agrawal, the eldest son of Late Smt. Sushila Bai, at whose residence these six agreements to sell alleged to have been executed on 30.8.1990 by Late Smt. Sushila Bai at Bhopal, have neither filed any written statement admitting the pleadings of the plaint regarding execution of agreements to sells, nor examined by the plaintiffs to prove its execution at his residence at Bhopal, in his presence. In spite of taking plea of execution of alleged agreements to sell by an impostor of Late Smt. Sushila Bai, the plaintiffs have failed to prove due execution either by examination of Notary or, by examination of any witness who could have proved the identity of Late Smt. Sushila Bai. The scriber of alleged agreements to sell has not been examined to prove the intention of Smt. Sushila Bai to sell the land in question. The attesting witness Deepesh Chand Patni (PW-2) and Power of Attorney K.D. Maheshwari (PW-1) have failed to prove the identity of Late Smt. Sushila Bai and have also failed to dispel the suspicious circumstances in which alleged agreement to sell have been executed. Mahesh Kumar Maheshwari (PW-3), in whose favour the power of attorney (Ex. P/5) alleged to have been executed on 04.09.1990, further created many doubts against the plaintiffs and added further weakness to the plaintiff''s case. As recited in alleged agreements to sell dated 30.08.1990, if entire sale consideration was paid at the time of execution, there was no need to execute any power of attorney on 04.09.1990 authorizing Mahesh Kumar Maheshwari (PW-3) to receive sale consideration or to sign agreement on her behalf. Neither any agreed map has been enclosed with the agreements to sell nor, the boundaries are described. In fact, false and forged documents were fabricated jointly by K.D. Maheshwari and Mahesh Kumar Maheshwari in their names and also in the name of family members and relatives with the help of the defendant No. 1-Kailash Agrawal. The readiness and willingness on the part of the plaintiffs could not have been assumed by the Trial Court in absence of any notice in writing stating that they are ready to bear registration charges and the cost of stamp duty requesting presence of defendants in the office of Sub Registrar. The Trial Court has ignored the admission of K.D. Maheshwari (PW-1) made in para 10, 18, 32, 38 and 39 of his deposition regarding non issuance of any notice by the plaintiffs. The Trial Court has also ignored the admission of K.D. Maheshwari (PW-1) in para 11 and 17 and also, admission of Mahesh Kumar Maheshwari (PW-3) in para 4 of his deposition with respect to existing and continuous possession of the defendants. The Trial Court has also ignored the admission of K.D. Maheshwar (PW-1) in para 10, 14, 15, 16, 21, 22, 25 and 33 of his deposition and also, admission of Deepesh Chand Patni (PW-2) in para 4, 7 and 8 of his deposition and also, admission of Mahesh Kumar Maheshwari (PW-3) in para 2, 5 and 6 of his deposition not establishing the identity of Late Smt. Sushila Bai. It is submitted that any sale during the pendency of the litigation, is not void but only renders it subservient to the rights of the other parties to the litigation. The subsequent purchasers also can raise the plea that plaintiffs were not ready and willing to perform his part of the contract. The relief of specific performance, being discretionary, could not have been granted ignoring the conduct of the plaintiffs and also looking to unreasonable delay in filing the civil suits. Since the plaintiffs have failed to establish the readiness and willingness to perform their part of contract, it would not be necessary to enter into question as to whether the purchasers/defendant No. 7, 8, 9 and 10 were bonafide subsequent purchasers for value without notice or not. However, prayed that all the appeals may be allowed setting aside the judgments and decree and also by dismissing the suits with cost.
Per contra, Shri Imtiaz Husain, learned counsel appearing on behalf of plaintiffs have argued in support of the findings recorded in the judgments and decree passed by the Trial Court in favour of the plaintiffs in aforesaid six civil suits. Learned Counsel prayed for dismissal of the appeal with cost and further submitted that, in the Civil Suit No 48-A/2001, the plaintiff K.D. Maheshwari, in whose presence agreements to sell were executed by Late Smt. Sushila Bai on 30.08.1990, has been entered into witness box and has proved the execution and genuineness of agreement to sell in his favour. Being power of attorney holder of remaining four plaintiffs in other four civil suits he has rightly deposed and proved the agreements to sell executed by Late Smt. Sushila Bai in favour of the plaintiffs. Pankaj Maheshwari (PW-1) was examined as Power of Attorney Holder in Civil Suit No. 22-A/1997 to prove agreements to sell. It is further submitted by learned counsel that one of the attesting witness, Deepesh Chand Patni (PW-2) has also proved the execution of the agreements to sell and, in absence of any contrary evidence on record, the testimony of attesting witness could not have been ignored merely on disputing the sale agreements by appellants. The defendants have taken the plea of impostor, however, failed to prove the plea and also failed to prove any suspicious circumstances looking into the fact that the agreement to sell (Ex. P/2) was executed before Notary on 30.08.1990 and, the power of attorney (Ex. P/5) was executed in favour of Mahesh Kumar Maheshwari on 04.09.1990 before Sub-Registrar, therefore, presumption regarding due execution of documents would also arise in favour of the plaintiffs. It is further submitted that by the learned counsel that the burden of proof and the onus of proof are two different aspects. The defendants have failed to prove any fraud, undue influence or misrepresentation on the part of the plaintiffs. Since entire sale consideration of Rs. 4,68,000/- was received by Late Smt. Sushila Bai in cash on 30.08.1990, and the possession of the land in question was also delivered to the plaintiffs supplying the original documents therefore, the question of absence of any readiness and willingness on the part of the plaintiffs would not arise. The defendants No. 2 to 5 were duty bound to execute the sale deeds in favour of individual plaintiffs. The lis pendens purchasers/defendants No. 7, 8, 9 and 10 have no right to dispute the genuineness and correctness of the agreements to sell and no right or interest could have been validity created in them by the defendant No. 2, 3, 4 and 5 by the sale deeds executed during the pendency of the civil suits. The sale deeds executed on 18.01.2001 were rightly declared null and void. The relief of specific performance, being discretionary, has rightly been granted by the learned Trial Court in favour of the plaintiffs, however interference is not warranted.
Shri Imtiaz Husain on the point of examination of Power of Attorney as a witness has relied upon the judgments in the case of Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd., 2005 (1) MPLJ 421 (S.C.) Smt. Gangavva Vs. Arjunsa, AIR 2001 Karnataka 231 and Bhimappa Vs. Allisab, AIR 2006 Karnataka 231. On the point of presumption of authentication if the document is registered or notarized, he has placed reliance upon the judgments in the case of Ram Kishan Dwivedi Vs. Rohni Prasad Tiwari and Others, and Shankar Dayal Vs. Pragi Lal, 1997 (2) Vidhi Bhaswar 80. On the issue of distinction between onus of proof and burden of proof he has placed reliance upon the judgments in the case of Pawan Kumar Gupta Vs. Rochiram Nagdeo, (1994) 4 SCC 243 , Kuppuswami Vs. Arumugam, AIR 1967 SC 1395, Anil Rishi Vs. Gurbaksh Singh, , Krishna Mohan Kul @ Nani Charan Kul and Another Vs. Pratima Maity and Others, and Vinay Kumar Tamrakar Vs. Shanti Singh, 1993 (11) MPWN 155 . On the point of part performance where the full amount of consideration was paid and possession has been delivered reliance has been placed upon the judgments in the case of Chetak Constructions Limited Vs. Om Prakash and Others, and Millappa Vs. Srinivas Rao, AIR 2004 Kar 31 . On the point of lis pendens transfer deeds oare void, he has placed reliance upon the judgments in the case of Dhanna Singh and Others Vs. Baljinder Kaur and Others, and Ramesh Chadra Pattnaik Vs. Pushpendra Kumari, 2009 (1) MPLJ 302 (SC).
Shri Ravish Agrawal, learned Senior Counsel assisted by Shri Pranay Verma, Advocate contends that the defendant No. 1 has not filed any written statement and led any evidence, however, he has nothing to say in this case. Smt. Sheetal Dubey, learned Government Advocate states that it is a contest in between the plaintiffs and appellants and the State Government has been joined as a party for the purpose of Order 1 Rule 3-B of CPC, however, she is having nothing to say in the case.
After having heard learned Counsel for the parties at length and on consideration of arguments, pleadings, documents and evidence on record, following points arise for determination:-
(a) Whether execution of agreements to sell dated 30.08.1990 was duly proved by plaintiffs?
(b) Whether the testimony of the power of attorney holder to prove the execution and the genuineness of the transaction alleged to have been entered into between the plaintiffs and Late Smt. Sushila Bai could be relied upon to prove the agreements to sell dated 30.08.1990?
(c) Whether the question of readiness and willingness was redundant and not required to prove in recital of payment of full consideration and delivery of possession recorded in alleged agreements to sell?
(d) Whether lis pendens purchasers have not acquired any title and interest by virtue of registered sale deeds dated 18.01.2001 and while granting decree of specific performance in favour of plaintiff in six civil suits the trial Court has rightly declared the lis pendens sale-deeds null and void?
(e) Whether all the six suits have been filed within the reasonable time and the plaintiffs are having possession on the suit land?
Re: Point (a)
In the six civil suit seeking decree of specific performance of agreements to sell dated 30.8.1990 executed by Smt. Sushila Bai alienating 23.98 acres of land out of total 27.56 acres of land for a consideration of Rs. 4,68,000/- is the subject-matter. Seeking decree of specific performance execution of all the agreements to sell ought to be proved by the plaintiffs. As per Section 67 of the Evidence Act signature and handwriting of person alleged to have signed on document must be proved. As per Section 101 of the Evidence Act burden of proof lies on a person who desires a Court to give judgment as to any legal right or liability dependent on the existence of facts which the person asserts, must prove that those facts exist. In the present case plea of impostor of Smt. Sushila Bai at the time of execution of agreements to sell has been raised by defendants, however, as per Section 111 of the Evidence Act the proof of good faith in transactions where one party is in relation of active confidence is on the party who is in the said position. In the present case the executants of agreements to sell Smt. Sushila Bai was the resident of Sagar (M.P.) as apparent from the sale deed Ex. P-4 by which, the land in question is in her name, situated at village Godarmau, Tehsil Huzur, district Bhopal and died there at on 25.12.1992. Her eldest son defendant No. 1 Kailash Agrawal resided at Bhopal and other family members defendants No. 2 to 5 resided at Sagar. The husband of Smt. Sushila Bai died in the year 1986. Thus it is apparent that Smt. Sushila Bai was an old, widow and infirm lady. After the death of her husband, as alleged agreements to sell were executed at Bhopal at the residence of eldest son Kailash Agrawal and as per plaintiffs he identified her as Smt. Sushila Bai. In such circumstances the burden of proof lies on the plaintiffs to establish execution of sale agreements after explaining the contents to executants and its genuineness to get decree of specific performance. At this stage it would be desirable to take guidance from various judgments on the issue prior to dealing the said point. The Hon''ble Apex court in the case of Mst. Kharbuja Kuer Vs. Jangbahadur Rai, has held as under:-
As regards documents taken from pardanashin women, has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the documents to which he has affixed his name does not apply in the case of a pardanashin woman. The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was entered into by her after clearly understanding the nature of transaction. It should be established that it was not her physical act but also her mental act. The burden can be discharge not only by proving that the document was explained to her and that she understood it but also by other evidence, direct and circumstantial. The rule evolved for the protection of pardanashin ladies should not be confused with other doctrine such as fraud, duress and actual undue influence, which apply to all persons whether they be pardanashin ladies or not.
The said principle has been reiterated by Hon''ble the Apex Court in the case of Krishna Mohan Kul V Pratima Maity, AIR 2003 SC 4351 elaborating the application of the said principle to an old, illiterate and ailing person also, wherein the Apex Court held as under:-
The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executants involved, but the mental act. Observations of this Court, though in the context of pardanashin lady in Mst. Kharbuja Kuer Vs. Jangbahadur Rai, are logically applicable to the case of the old, invalid, infirm (physically and mentally) and illiterate persons.
The Division Bench of this Court in the case of Ramibai Vs. Life Insurance Corporation of India reported in 1981 JLJ 388 explaining the scope of Section 67 of the Evidence Act and to elaborate the principal, how a document can be proved held as under:-
Section 67 does not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of a particular person. Thus, the signatures may be proved in any one or more of following modes:-
(i) By calling the person who signed or wrote a document.
(ii) By calling a person in whose presence the documents are signed or written.
(iii) By calling handwriting expert.
(iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written.
(v) By comparing in Court, the disputed signature or handwriting with some admitted signatures or writing.
(vi) By proof of an admission by the person who is alleged to have signed or written the document what he signed or wrote it.
(vii) By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person. A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by the scribe who signed on behalf of the executants.
(viii) By other circumstantial evidence.
The Privy Council in the case of Kumbhan Lakshmanna and others Vs. Tangirala Venkateshwarlu and others, reported in AIR (36) 1949 Privy Council 278 has explained the provisions of Section 101, 102 and 103 of the Evidence Act and held that the burden of proof of pleadings never shifts, in fact onus to prove shifts. His Lordship has held as under:-
What is called the burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as "shifting". The burden of proof on the pleadings never shifts, it always remain constant The initial burden of proving a prima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion then the burden of proof of the pleadings recedes into the background.
The Apex Court in the case of Thiruvengada Pillai Vs. Navaneethammal and Another, held that the burden remains on the plaintiff to prove that the defendant had executed the agreement and not on the defendant to prove the negative. The Apex Court in the said case held as under-"
The Trial Court had analyzed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate Court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiffs came to Court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the Trial Court and High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of PWs 1 to 3. We are therefore of the view that the decision of the High Court, reversing the decision of the first appellate Court does not call for interference.
In the case of Subhra Mukherjee and Another Vs. Bharat Coking Coal Ltd. and Others, while dealing with the issue of burden of proof and "the transaction is bona fide and genuine" or sham and bogus, the Apex Court has held as under:-
There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But a plain reading of question No. 1 discloses that it is in two parts: the first part says, ''whether the transaction, in question, is bona fide and genuine one, which has to be proved by the appellants. It is only when this has been done that the respondent has to dislogue it by proving that it is a sham and fictitious transaction. When circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the Court to find out whether the respondent has led any evidence to show that the transaction is sham, bogus or fictitious.
The Division Bench of this Court in the case of Sirmul Vs. Smt. Annapurna Devi, while dealing with the issue that burden of proof lies certainly on a person enjoying good faith an active confidence in a case of specific performance of the contract explaining the scope of Section 111 of the Evidence Act observed as under:-
In the cases of burden of proving good faith where one party is in a position of active confidence of another, the Courts of equity have invariably placed the burden of sustaining the transaction upon the party benefitted by it, requiring him to show that it was of an unobjectionable character and one which it ought not to disturb. The principle is of universal application and must not be regarded as a technical rule of English law, as held by Privy Council in case of Demerara BC v. Louisa Hubbard, (1923 AC 673 PC). In the case where Pardanashin lady has executed a deed, it was held essential by the Privy Council in case of AIR 1930 139 (Privy Council) it is for vendor that he should prove the bona fide nature of the transaction.
In the matter where power of attorney holder is prosecuting the suit filed by plaintiffs seeking decree of specific performance, then how it can be proved discharging burden, the guidance may be taken by the judgment of Hon''ble the Apex Court. In the judgment of Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, which is the case of specific performance of agreement to sell and filed by the Power of Attorney holder, in the said judgment the Court held as under-
To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered into by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue. A plaintiff cannot obviously examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness arid willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. Therefore a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned.
The Hon''ble Apex Court in the case of L.I.C. of India and Another Vs. Ram Pal Singh Bisen, dealing with an issue of proof of contents of a document held that mere filing or exhibiting of a document in court does not amount of proof of its contents. While dealing with an issue of admission of a document in court it is observed that it may amount to admission of its contents but not their truth. In such a circumstances, it is apparent that the genuineness, truthfulness of the document is an essence to prove it even on exhibiting and admitting the said document in the Court. In the case of H. Siddiqui (dead) by L.Rs. Vs. A. Ramalingam, , the Hon''ble Apex Court while explaining scope of Section 67 held that admission of a document for its content may not necessary led to drawing any inference unless the contents thereof have some probative value. It is observed that admission of the signature on the document would not amount to admission of the contents. The Court is duty bound to see and draw the inference determining the probative value of such admission or its contents. Thus it is apparent that mere filing of a document would not lead to the conclusion that it has been proved. In fact it ought to be established that the executants was able to comprehend the nature and contents of the document and thereafter signed on receiving the amount of consideration in a case of specific performance of agreements to sell.
In view of the foregoing and as per the law laid down by various judgments it is apparent that in a case of old, widow, infirm, Pardanashin, illiterate and ailing persons who are unable to comprehend the nature of the recital, it should be established by the plaintiff that prior to the execution of document by signing on it, the contents were explained and also understood by executants. Thus, it is not merely a physical act of the executants, but also the mental act of the person executing the document is of great value. However, to fulfill requirement of Sections 67, 101, 102, 103 and 111 of the Evidence Act to prove the execution of the document it must be established that the person executing the document concisely subscribed to its contents. In the sense to put the mark or signature on it after having known and understanding its contents or other ingredients of contract. Mere proof of signature of the person on the document cannot by itself establish the execution of the documents. It is true that the defendants have taken a plea of impostor of a lady in place of Smt. Sushilabai, but no cogent evidence to prove such plea has been brought. On failure to prove the defence by defendants burden to prove the agreement to sell does not reverse on defendants. The burden of proof that the agreement to sell dated 30.8.90 was executed after explaining its contents to the executants and its genuineness, lies on the plaintiff and thereafter onus will shift on defendant to prove their defence. The probative value to execute the document with truthfulness has to be first established by the plaintiff. Thus for the decree of specific performance, which is discretionary in nature the burden lies on the plaintiff and by taking a plea of impostor and execution of a forge document, the said burden would not shift on the defendant in view of the judgement of Sobharam Mukherji (supra). In the facts of the present case it is apparent that plaintiffs have not appeared in the witness box to prove the agreement to sell and to state his own case making them available for cross-examination to the defendant. In the said context, the judgment of the Apex Court in the case of Prabhudayal and others Vs. State of Maharashtra, is relevant. In para 17 the Apex Court has held as under:-
17.Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examination by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in AIR 1927 230 (Privy Council) . This was followed by the Lahore High Court in AIR 1930 1 (Lahore) AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Mad 225 , also followed the Privy Council decision in Sardar Gurgaksh Singh''s case (supra). The Allahabad High Court in Arjun Singh Vs. Virendra Nath and Another, held that if a party abstains from entering the witness box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass Vs. Bhishan Chand and Others, , drew a presumption u/s 114 of the Evidence Act, 1872 against a party who did not enter the witness box.
In the context of the said legal position the facts of the case are required to be analyzed. Out of six civil suits, the Suit No. 22-A/97 has been filed by the intended purchaser Bharat Kumar Lathi, but the signature on verification of the suit is of the Power of Attorney Holder Pankaj Maheshwari verifying the pleadings. Similarly in Civil Suit No. 46-A/2001 intended purchaser Ramkumar Inani has filed the suit, but the signature on verification of the suit is of the power of attorney holder K.D. Maheshwari. In fact the pleadings have not been signed and verified in view of the procedure so prescribed under Order 6 Rule 14 of CPC. While in other suits plaintiffs have put their signatures on plaints. Leaving Civil Suit No. 48-A/2001, in remaining 5 suits plaintiffs have not come in the witness box to prove the agreements to sell executed by Smt. Sushila Bai in their favour. The Power of Attorney Holders namely, K.D. Maheshwari and Pankaj Maheshwari have appeared to prove averments of the suit. Undisputedly execution of agreements to sell dated 30.8.1990 was not through the Power of Attorney Holders. It was executed in the presence of the plaintiffs and they were not knowing Smt. Sushila Bai intended seller. She was identified as Sushila Bai by defendant No. 1 Kailash Agrawal. It is also not in dispute that Smt Sushila Bai was not the resident of Bhopal and was the resident of Sagar and died there at. As per the pleadings and the evidence her son Kailash Agrawal defendant No. 1 was the author in execution of agreements to sell. The defendant No. 1 Kailash Agrawal in whose presence agreements to sell were executed and who identified Smt. Sushila Bai has remained ex-parte and not filed any written statement admitting the claim of plaintiffs and also not called as witness by the plaintiffs. The wordings of all six agreements to sell are the same except the Khasra Nos. and area of the land and the amount of consideration so paid for sale. As per the contents of the agreements to sell entire amount of consideration was received in cash and possession on the date of execution of the agreements were delivered. It is mentioned that the sale-deeds may be executed in the name of the plaintiffs or any other person. It is also mentioned that necessary documents for execution of the sale-deeds shall be prepared by the intended purchasers and if any help of the seller is required, it be extended by Smt. Sushila Bai. If the land is acquired by the government the compensation be payable to the purchasers. There was no time limit for execution of the sale-deed. The each agreements to sell were on the stamp of Rs. 5/- only. The attesting witnesses of the agreements to sell are Deepesh Chandra Patni and one Mr. Sharma. It is notarized by Mr. T.R. Sharma, Public Notary. It is not clear that who has purchased stamps for agreements to sell or who has scribed all those agreements. On the agreements to sell there is no thumb impression and after four days, Ex. P-5, a General Power of Attorney of Smt. Sushila Bai in the name of Mahesh Kumar Maheshwari has been taken, wherein her name was written as ''Sushila Devi'' and not as ''Sushila Bai''. Thereupon her signature and thumb impression are there. In the Power of Attorney powers have been given to Mr. Mahesh Kumar Maheshwari to receive the advance amount, to sign agreements to sell, sale-deed or any other document by receiving amount and to deliver the possession on the land. On conjoint reading of the documents agreements to sell Ex. P-2 and Power of Attorney executed by Smt. Sushila Bai in favour of Mahesh Kumar Maheshwari Ex. P-5 it is clear that after receiving the entire consideration, possession was delivered and only the sale-deed is required to be executed. Thus if Smt. Sushila Bai had received the amount of consideration and signed the agreements to sell, then there was no necessity to execute general power of attorney for the said purpose in favour of Mahesh Kumar Maheshwari. In such circumstances if sale-deed was remained for execution, then by special power of attorney may be assigned to Mahesh Kumar Maheshwari for execution of the sale-deed and no other purpose was remained to assign power to Mahesh Kumar Maheshwari. It has not been explained by plaintiffs that if entire sale consideration was paid and possession was delivered, the, Smt. Sushila Bai can execute the sale-deed itself after agreements to sell on the date of execution of power of attorney and there was no necessity to take her power of attorney in the name of Mahesh Kumar Maheshwari. However, suspicion has been created by executing the power of attorney in the name of Mahesh Kumar Maheshwari, who is the brother of K.D. Maheshwari plaintiff in Civil Suit No. 48-A/2001 and power of attorney holder in other four suits. On the said power of attorney, Smt. Sushila Bai has put her signature and also the thumb impression. No evidence has been brought to dispel such suspicious circumstances by the plaintiffs in the suit. It is relevant to observe, why the plaintiffs have not filed the suits during life time of Smt. Sushila Bai, has not been explained to come out from such suspicion. The Power of Attorney Holders of plaintiffs K.D. Maheshwari and Pankaj Maheshwari in 5 suits have made an endeavour to prove execution of the agreements to sell deposing in the Court on behalf of plaintiffs. But, they have failed to prove the identity of Smt Sushila Bai. It is categorically admitted that before alleged execution of agreements to sell Smt. Sushila Bai was not known to them. It is further admitted that the defendant No. 1 Kailash Agrawal has identified, that, the lady executing agreements to sell is Smt. Sushila Bai and they have seen her at the residence of Kailash Agrawal. The Power of Attorney Holders state that the signature put on the agreements, is of Smt Sushila Bai and of no one else. The Public Notary who executed the agreements to sell has not been called in the witness box to establish identification of Smt. Sushila Bai and prove that she has executed the agreements to sell in favour of plaintiffs after understanding its contents. The eldest son of Smt. Sushila Bai, namely, Kailash Agrawal-defendant No. 1 who introduced her as Smt. Sushila Bai to the plaintiffs has not admitted the plaint allegations and not called by plaintiff in the witness box to prove the aforesaid facts and also the fact that agreements were executed at his residence at Bhopal. The attesting witness Deepesh Chandra Patni (PW-2) has been examined who is not the resident of Bhopal or of Sagar, however, he was also not known to Smt. Sushila Bai. In his statement it is categorically admitted by him that after execution of the agreements to sell he returned back to Indore. At the time of execution of agreements three other sons of Smt. Sushila Bai were not present. It was only Kailash Agrawal to whom he was not known earner. He had seen him on spot thereby he can say that the person so present was the Kailash Agrawal, and on his saying he said that the lady signing on the agreements to sell was Smt. Sushila Bai. It is said that the contents of the agreements were not discussed in front of him and the possession was not delivered to plaintiffs on spot. In the said context the evidence of defendant No. 2 Vinod Agrawal (DW-2), the son of Late Smt. Sushila Bai is relevant. In his deposition he has denied the signature of his mother Smt. Sushila Bai on agreements to sell dated 30,8.1990 (Ex. P-2) and Power of Attorney dated 4.9.1990 (Ex. P-5) and stated that it is forged signature. It is also on record that the Bhu Adhikar and Rin Pustika (Ex. P/3) produced before the Trial Court by the plaintiffs, is forged and fabricated document and Vinod Agrawal (DW-2) has produced original Bhu Adhikar and Rin Pustika (Ex. D/10). Thus it is clear that the plaintiffs have not proved the execution of the agreements to sell executed on 30.8.1990 in their favour dispelling suspicious circumstances.
Although in Civil Suit No. 45-A/2001, 46-A/2001, 47-A/2001 and 48-A/2001, the plaintiffs have examined R.K. Pathik (PW-4), handwriting expert to prove the signature of the Smt. Sushila Bai on agreements to sell (Ex. P/ 2). The defendants, in rebuttal, has examined Naveen Chandra Deshpande (DW-3), handwriting expert to prove the fabrication and forgery of the signature of Smt. Sushila Bai on agreements to sell (Ex. P/2). In my considered opinion, the handwriting expert''s report and his evidence is an opinion and can not improve the case of the party where the important witnesses, in whose presence the documents alleged to have been executed, is withheld without any reasonable and just cause. R.K. Pathik (PW-4) has failed to prove that disputed signatures of Smt. Sushila Bai comparing with any admitted/standard signature. In the aforesaid civil suits also another attesting witness Mr. Sharma, the Notary and the scriber of the agreement were important witnesses, however, these three important witnesses have not been examined to prove due execution of alleged agreements to sell after explaining the contents to the executant. From the evidence of Deepesh Chand Patni (PW-2) and Mahesh Kumar Maheshwari (PW-3), the due execution of the agreements to sell (Ex. P/2) and power of attorney (Ex. P/ 5) is not proved. Surprisingly in the power of attorney dated 04.09.1990 (Ex. P/S), the name of Smt. Sushila Bai is engraved as "Sushila Devi". It is not proved that Smt. Sushila Bai was ever known as "Sushila Devi". Obviously in the original sale deed dated 29.04.1966 Ex. P-4-A the name of the Sushila Bai is also engraved as "Sushila Bai wife of Chandmal Ji" showing her residence at Sagar. The hand writing expert R.K. Pathik (PW-4) has also failed to prove his competence and experience as hand writing expert. On the other hand, the hand writing expert Navin Chandra Deshpande (DW-3) has proved twenty one years long experience in the field and his retirement from the post of Superintendent of Police of the State engaged in the field. From the evidence of R.K. Pathik (PW-4), the plaintiffs have failed to prove that the opinion evidence given by R.K. Pathik (PW-4) is more sound and reliable than the opinion evidence of defendant''s witness Navin Chandra (DW-3). The trial Court has also acknowledged the experience and his report is more plausible. The opinion evidence given by R.K. Pathik (DW-4) could not be relied to prove the genuineness of the signature of Smt. Sushila Bai appearing on the agreements to sell.
In view of the discussion of pleadings and evidence and the legal position emerges by the various judgments, the arguments so advanced by Mr. Imtiaz Hussain, Advocate taking plea of distinction in between onus of proof and burden of proof relying upon various judgments of Hon''ble Apex Court requires consideration. The judgment of Pawan Kumar Gupta (supra) so relied on by him is distinguishable. In the said case as per the deed of sale of building executed in favour of a particular person mentioning that sale consideration was paid by him to former owner, on the basis of the sale-deed said person filing a suit for eviction of the defendant-tenant, the defendant contended that sale-deed was a Benami one and not by real purchaser but by his father, however, onus to prove the nature of transaction lies on him. In the said context Apex Court held that burden lies on the person who alleges that recital in the sale-deed to be untrue and not on the person who was mentioned in the sale-deed as the purchaser for consideration. In the said judgment any specific proposition of law has not been laid down, but on the facts of the case the Apex Court has shifted the onus to other side. In a case of Kuppuswamy Chettiar Vs. A.S.P.A. Arumugam Chettiar and Another, the plea of misrepresentation for execution of the document was raised. In the said context the Apex Court held that onus is upon person who raised the plea of misrepresentation. But the said case was not of specific performance of contract, wherein for grant of discretionary relief the contract is required to be proved. In the case of Anil Rishi Vs. Gurbaksh Singh, the Apex Court held that a distinction exists between a burden of proof and onus of proof and follows from onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; ((ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both the others. The Apex Court observed in reference to Section 101 of the Evidence Act that ordinarily, the burden of proving the fact rests on the party who substantially asserts the affirmative of the issue and not on the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. As per Section 102 of the Evidence Act the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same Thus, in the said case analogy laid down by the Privy. Council in the case of Kumbhan Lakshmanna and Others (supra) has been reiterated. It is required to be seen in the context of nature of the claim made in the suit and to determine it in the said facts and circumstances of the individual case. In the case of Krishna Mohan Kul @ Nani Charan Kul and Another Vs. Pratima Maity and Others, the Apex Court observed that when fraud, misrepresentation or undue, influence is alleged by a party in a suit, the burden to prove the validity of the deed of settlement was on defendant No. 1. The Division Bench in the case of Vijay Kumar Tamrakar v. Shandi Singh, 1993 (II) MPWN 155 held that presumption lies in favour of a document, which is registered. The aforesaid two judgments so relied upon are having no application in the suit for specific performance of the contract.
In view of the facts of this case as discussed and also legal position emerges by various annunciations in the considered opinion of this Court, the burden to prove the agreements to sell dated 30.8.1990 lies on the plaintiffs. However, by the evidence the plaintiffs were required to discharge onus to prove the agreements to sell applying principle of onus probandi. The said burden was required to be discharged by the plaintiffs which initially lies on them to prove the facts asserted in the plaint. When the plaintiff discharges such burden and gives evidence in support of the prima facie case, the onus shifts on the defendant to adduce the evidence in rebuttal and to meet the case of the plaintiff. Thus, even on agreeing with the argument of Shri I. Husain having distinction in between onus of proof and burden of proof, in the facts of the present case, the onus has not been discharged by the plaintiffs proving the contents, genuineness, truthfulness of the agreements. In the light of the judgments of the Apex Court Rampal Singh (supra) and also H. Siddiqui (supra), the Court is duty bound to see the fact tat the execution of the document has been duly proved explaining the contents and in the facts of the case what is the probative value of agreements to sell dated 30.8.1990 executed by Smt. Sushila Bai. It is true that in support of the plea of impostor defendants have failed to lead evidence, however, failure to prove defence does not reverse or discharge plaintiffs burden of proof. After meticulous exercise of the facts of the case and legal position so emerges, in the opinion of this Court, the finding to shift burden on the defendants merely having a plea of impostor and not discharging such burden by the defendants decreeing the suits for specific performance by the trial Court is unsustainable in law. It is to be further observed that the execution of the agreements to sell dated 30.8.1990 has not been proved by the plaintiffs dispelling suspicious circumstances as discussed hereinabove.
In view of the foregoing discussion, in the considered opinion of this Court, the plaintiffs have failed to prove execution, contents, genuineness and validity of agreements to sell dated 30.8.1990. Learned trial Court has not duly appreciated the evidence brought on record in the context of the aforesaid legal position, however, committed serious error of law holding that the agreements to sell dated 30.8.1990 are proved and decreed the suits for specific performance of contract filed by the plaintiffs. Therefore, Point No. (a) is answered accordingly.
Re: Point (b)
Now to consider the point to prove the execution and the genuineness of the transaction on the basis of the testimony of the power of attorney holder, the basic provision has been specified under Order 3 Rules 1 and 2 of CPC, whereby appearances etc. may be in person, by recognized agent or by pleader. On reading thereto, it is apparent that the principal may assign to the agent authorising for appearances and not for the acts done by the principal. The Apex Court while interpreting aforesaid provision in the case of Janki Vashdeo Bhojwani (supra) has held in para 13, 16 and 17 as under
Order III, Rules 1 and 2, Civil Procedure Code, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2, Civil Procedure Code, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principle in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree.
On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri vs. State of Rajasthan, 1986 2 WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
The Rajasthan High Court in the case of Sambhu Dutt Shastri Vs. State of Rajasthan, (1986) 2 WLL 713 (Raj) has held as under :-
a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
The said judgment has further been given approval by Rajasthan High Court in the case of Ram Prasad Vs. Hari Narain, AIR 1998 Raj 185 and it was held as thus:
the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.
In the case of Man Kaur (supra) Hon''ble the Apex Court has considered the judgment of Janki Vashdeo Bhojwani (supra), Shambhu Dut Shastari (supra) and Ram Prasad (supra). In the said case, it is held that the view taken by the Rajasthan High Court in the case of Sambhu Datt Shastri (supra) and Ramprasad (supra) discloses the correct legal position however affirmed the view taken by Rajasthan High Court. In the said case it has further been explained that when the statement of power of attorney holder is recorded showing the personal knowledge then up to what extent such statement may be relied upon to prove the execution of a document. The circumstances and principles showing the relevance of the statement of the power of attorney holder summarized by Hon''ble the Apex Court is reproduced as under:-
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his ''state of mind'' or ''conduct'', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his ''bona fide'' need and a purchaser seeking specific performance who has to show his ''readiness and willingness'' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or ''readiness and willingness''. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
It is to be further noted that in the case of Man Kaur (supra), Hon''ble the Apex Court has relied upon the judgment of Vidyadhar (supra) of the Apex Court. In the said case, it was held that if a party is not presenting himself in the witness box to prove the fact and making him available for cross-examination to other side a presumption would arise that the case set up by him is not correct. Thus in the said context the argument so advanced by Mr. Imtiaz Hussain heavily placing reliance on the judgment of Janki Vashdeo Bhojwani (supra) to say that the statement of K.D. Maheshwari to prove the other agreement to sell ought to be relied upon is of no help to him. It is to be observed that K.D. Maheshwari was present as one of the intended purchaser while execution of the agreement of himself. By his statement he is unable to prove his own agreement to sell explaining the contents of the agreement to the executant who is old and pardanashin lady and to prove its genuineness and truthfulness. By his own statement the identity of the executant Smt. Sushila Bai has not been established. He is unable to dispel the suspicious circumstances i.e. why the subsequent power of attorney of Sushila Bai was taken in the name of Mahesh Kumar Maheshwari specifying the fact that he can receive the amount on behalf of Smt. Sushila Bai and sign the agreement. If in the agreements to sell (Ex. P/2) the amount of consideration has been received then there was no necessity to assign such power again to his brother Mahesh Kumar Maheshwari. In the statement of K.D. Maheshwari recorded in other suits as power of attorney it has not been stated by him that the amount of consideration for a piece of land was settled before him with Smt. Sushila Bai. On the point of readiness and willingness of the plaintiffs conduct and act has not been explained by him in his statement which is necessary in a suit for specific performance of the contract and to discharge the obligation of contract. If the plaintiff himself remained present in the Court as a witness then he can make the aforesaid statement. The defendant may have an opportunity to cross-examine the plaintiff on the said issue. It can be said by the plaintiffs that the contents of the agreements were explained and understood by the Pardanashin lady proving its execution. However, the aforesaid fact has not been proved by K.D. Maheshwari even though he was present at the time of execution of other agreements and contesting the claim of other plaintiffs on their behalf as a power of attorney holder. It is further required to be mentioned here that if the agreements to sell were executed on behalf of the plaintiff through the power of attorney holder K.D. Maheshwari then his statement may be material to prove the ingredients of the agreement to sell otherwise mere presence of K.D. Maheshwari would not itself is sufficient to prove the agreement to sell executed by the plaintiff with Smt. Sushila Bai. In such circumstances, the argument so advanced by Mr. Imtiaz Husain that the statement of K.D. Maheshwari though recorded as power of attorney holder but it is based upon his personal knowledge to prove the agreement to sell dated 30.8.1990 is of no help to him.
The judgment in the case of Smt. Gangavva Vs. Arjunsa, AIR 2001 Karnataka 231, Bhimappa V Allisab, AIR 2006 Karnataka 231, so relied upon are of no help and the said judgments are per incuriam in view of the judgment in the case of Mankaunwar (supra). The judgment of this Court in the case of Smt. Prabha Devi Goyal Vs. Laxmikant, 2000 (1) MPJR 151 is of no help on facts and also in view of the judgement of Mankunwar (supra). In view of the aforesaid legal position and on analyzing the facts of the present case it is apparent that agreements to sell dated 30.8.1990 were executed between plaintiffs and Smt. Sushila Bai and not through power of attorney holders. K.D. Maheshwari as a power of attorney holder in 4 suits and Pankaj Maheshwari in one suit were not aware regarding personal act of the plaintiffs disclosing their mind set and the talks entered with the executant Smt. Sushila Bai. The plaintiffs themselves can prove the aforesaid fact and also payment of consideration which they have delivered to the executant Smt. Sushila Bai at the time of execution of the agreements. If they appear in the witness box then they can prove that the contents of the agreements were explained to Smt. Sushila Bai who is an old, infirm and widow lady. They may further be in a position to say that the possession was delivered to them specifying the part of the land. The power of attorney holders under the law cannot appear as a witness on behalf of the principal for the act done by him. In such circumstances in 5 suits the testimony of power of attorney holders K. D. Maheshwari and Pankaj Maheshwari cannot be relied upon with respect to execution and genuineness of the transaction alleged to have been entered into in between the plaintiffs and late Smt. Sushila Bai. If the plaintiffs were made available as witnesses then they may be cross-examined by the defendants otherwise a presumption would arise that the case set up by the plaintiffs is not correct in light of the judgment of Vidhyadhar (supra). In C.S. No. 48-A/2001 K.D. Maheshwari himself has appeared as witness in the witness box, but he was unable to prove execution, genuineness and validity of the agreements to sell as discussed hereinabove, however, on the cost of repetition it is not required to be discussed further. In their statement, power of attorney holders K.D. Maheshwari and Pankaj Maheshwari have failed to prove specific boundaries and identity of the land involved in each agreement to sell. It is categorically admitted by K.D. Maheshwari in paras 10 and 39 that no notice in writing was ever served either on Smt. Sushila Bai or her legal representatives, insisting execution of registered sale-deed. Thus the state of mind prevalent at the time of execution of the agreements to sell showing genuineness and also the readiness and willingness has not been proved on the basis of the statements of the power of attorney holders. Thus, the Point (b) is answered accordingly.
Re: Point (c)
Now on consideration of argument of part performance and to deal with the issue of readiness and willingness which is to be proved by the plaintiff even on payment of full consideration and by delivery of possession so alleged in recital and is necessary for grant of a discretionary relief, the provisions of section 16 (c) of the Specific Relief Act are necessary to look into, which is reproduced as under
It is to be observed that Section 16(c)of the Specific Relief Act, 1963 puts an embargo in decreeing the suit for specific performance of contract in favour of the plaintiff, whereby who fails to aver and prove that he has performed or has always been, ready and willing to perform the essential terms of the contract which are to be performed by him (other than terms of the performance of which has been prevented or waived by the defendant).
Explanation (ii) to Section 16 provides that for purposes of clause (c) of section 16, the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
In view of the above, in a suit for specific performance the plaintiff should not only to plead but prove his readiness and willingness to perform essential terms of the contract leaving the terms which has been prevented or waived by the defendant. The aforesaid provision has been considered and interpreted by the Hon''ble the Apex Court in the case of Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., and held that in terms of contract coupled with the conduct of vendee showing readiness and willingness to perform the contract has not been proved, which is an essence to grant the discretionary relief in a case of specific performance of contract. The Hon''ble Apex Court considering the scope of Section 16(c) and relying upon a judgment in the case of Ouseph Varghese Vs. Joseph Aley and Others, held as under:-
The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in Pt. Prem Raj v. D.L.F. Housing and Construction (Private) (Ltd.) and another (Civil Appeal No. 37/66, decided on 4-4-1968) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.
The said view has been in the case of Abdul Khader Rowther Vs. P.K. Sara Bai and Others, and held that along with pleading, evidence is also required. The remark is as thus
His plaint does not contain the requisite pleadings necessary to obtain a decree for specific performance. This equitable remedy recognised by the Specific Relief Act cannot be had on the basis of such pleadings and evidence."
The Hon''ble Apex Court further in case of N.P. Thirugnanam (D) by L.Rs., Vs. Dr. R. Jagan Mohan Rao and others, in para 5 has held as under:-
The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract."
Considering the aforesaid judgments, Hon''ble the Apex Court in the case of Man Kaur (supra) observed that readiness and willingness and its obligation in terms of the contract is one of the ingredients to grant the decree of specific performance. The plaintiff has to prove that he was always willing to perform his part of contract including obligation in terms of the contract for which it is necessary to him to step into the witness box and give evidence that he was all along ready and willing to perform his part of the contract and subjected to himself available for cross-examination on that issue. It is to be observed that the plaintiff cannot obviously examine in his place, his attorney-holder who did not have personal knowledge of the transaction and the readiness and willingness. The readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness.
On the said point Shri Imtiaz Husain has placed reliance on the judgments in the case of M/s Chetak Construction Ltd. v. Om Prakash & others 2003 (II) MPJR 95; Malllappa v. Srinivasa Rao and others AIR 2004 Kar 31; Smt. Sohbat Dei v. Devi Phal and others 1971 SC 2192; Khivraj Chordia and others v. Esso Standard Eastern Inc. AIR 1975 Mad 374; AIR 1925 75 (Privy Council) and Mithu Khan v. Ms. Pipariyawali and others AIR 1986 M.P. 39 and contended that when the full amount of consideration has been paid and delivery of possession has been made, readiness and willingness to the contract is not required to be proved as part performance was already there.
On consideration of rival submissions and on the facts of the aforesaid six Civil Suits, the plaintiffs have failed to prove continuous readiness and willingness on their part. Neither any notice in writing was ever served on Smt. Sushila Bai in her lifetime nor any notice in writing was ever served on the legal heirs of Late Smt. Sushila Bai insisting upon execution of registered sale deeds. The readiness and willingness to perform ones part of contract and its obligation also includes purchasing of stamp duty and registration charges of sale deed which is incumbent upon vendee as per the evidence on record and in particular from the categorical and unequivocal admission made by the K.D. Maheshwari (PW-1) in his deposition, it is apparent that the plaintiffs have never shown their intention to get the sale deeds executed in their favour. Plaintiffs have clearly developed cold feet in their case. The legal heirs of deceased Sushila Bai were never contacted by the plaintiffs to insist upon execution of registered sale deeds issuing notice in writing. Even during the life time of Smt. Sushila Bai, Mahesh Kumar Maheshwari (PW-3), alleged power of attorney holder of Smt. Sushila Bai, was never insisted upon to execute the sale deeds in pursuance of alleged agreements to sell (Ex. P/2). Thus in my considered opinion, the plaintiffs have failed to prove continuous, readiness and willingness to perform their part of the agreement. My view also find supports from the law laid down by the Hon''ble Supreme Court in Man Kaur (supra). I am not impressed by the submission of learned Counsel for the Respondent that the question of readiness and willingness has become redundant because of full consideration was paid and the possession was also given to the plaintiffs. The readiness and willingness is not restricted only to the extent of payment of full consideration and delivery of possession. To make arrangement for payment of Registration Charges and Stamp Duty is also part of readiness and willingness to perform ones part of contract in discharge of his obligation to contract. In view of the foregoing plaintiffs have not proved the readiness and willingness to perform the obligation under the agreements granting discretionary relief of specific performance of agreements to sell dated 30.08.1990 and failed to establish before the Court. In view of the said Point (c) is answered accordingly.
Re: Point(d):
While granting decree for specific performance in favour of the plaintiffs, the Trial Court has also granted relief declaring the sale deeds dated 18.01.2001 as null and void. It is not in dispute that the defendant No. 2, 3, 4 and 5 have executed four sale deeds in favour of individual purchasers i.e. defendant No. 7, 8, 9 and 10 on 18.01.2001 receiving the amount of consideration. The possession in pursuance of these sale deeds were also given by the defendant No. 2, 3, 4 and 5 to the defendant No. 7, 8, 9 and 10. The names of the defendant No. 7, 8, 9 and 10 have also been mutated in revenue records. Bhu Adhikar and Rin Pustika (Ex. D/2, D/7, D/8, D/9) were also issued in favour of the defendants. It is said by Shri Imitaz Husain, learned counsel for the respondent No. 1 that the alienation was made ignoring the order of injunction passed by the Trial Court on 04.12.2000 and, therefore, the lis pendens purchasers have acquired no title and interest in the disputed land. The registered sale deeds are null and void. It is well settled that the alienation made by the party during the pendency of the litigation is subject to final decision of the litigation and the transaction, if any, is always not void. Hon''ble Supreme Court, recently in Vinod Seth Vs. Devinder Bajaj and Another, has clearly laid down the law in this regard. In Azhar Sultan (supra), the Hon''ble Supreme Court further held that in case plaintiff is failed to prove his entitlement to get the decree of specific performance, the question of alienation of land in dispute to the subsequent purchaser during the pendency of Trial would become redundant and the Court need not to decide the validity of the transaction entered between the parties during the pendency of the civil suits. Thus, the Trial Court, committed error of law in declaring the sale deeds dated 18.01.2001 as null and void. The lis pendens purchasers i.e. defendant No. 7, 8, 9 and 10 have acquired valid title and their interest is required to be protected in view of law laid down by the Hon''ble Supreme Court in Azhar Sultan (supra). It is relevant to note here that in Civil Suit No. 22-A/1997 and Civil Suit No. 23-A/1997 only, the injunction restraining alienation was granted by the trial Court, but in Civil Suit No. 45-A/2001, Civil Suit No. 46-A/2001, Civil Suit No. 47-A/2001 and Civil Suit No. 48-A/2001 application for injunction was not filed, however as per order dated 11.1.2001 passed by the trial Court reply filed by the appellants defendants was returned back and there was no order of injunction in the said four suits. However, the contention of Shri Imtiaz Husain, counsel appearing on behalf of the plaintiffs that the injunction was granted in all the suits is factually incorrect. In any case in view of the aforesaid discussion, the argument of Shri Imtiaz Husain is without any substance, however, it stands rejected.
In view of foregoing it is apparent that execution of the agreements to sell dated 30.8.1990 has not been proved by the plaintiffs for Which a decree of specific performance was prayed for in the suits. The execution of the lis pendens sale-deeds dated 18.1.2001 of the disputed land was by the defendants No. 2 to 5 in favour of defendants No. 7 to 10. As per the evidence the purchasers were not having the knowledge of injunction granted by the trial Court. On payment of the amount of consideration defendants No. 7 to 10 purchased the disputed land. Thus, it is apparent that the plaintiffs are unable to prove the agreements to sell in their suits. Thus lis pendens saledeeds in favour of defendants No. 7 to 10 executed by defendants No. 2 to 5 would not be null and void. The trial Court committed an error to declare such sale-deeds as null and void, however, the finding so recorded by the trial Court in this respect is hereby set aside. Thus, point (d) is answered accordingly.
Re: Point (e):
In addition to the aforesaid points two other additional points are required to be seen which relate to filing of suit within the reasonable time, as well as delivery of possession on the suit land at the time of execution of agreements to sell.
In addition to the aforesaid, looking to the facts that the agreements to sell are executed on 30.8.90 and the plaintiffs have filed all the suits on 1.5.1995 after more than four and half years and the plea of limitation has been raised in written statement, however even if the time is not the essence of the agreement, but what may be the reasonable time to file a suit is a point for consideration in the facts of this case. Simultaneously, if in the agreement the boundaries of the land has not been specified, the agreed map has not been attached and without reaching on the spot the possession has been delivered, however viability of findings of the possession so recorded by the trial Court is also required to be seen.
In the cases of specific performance of contract filing of a suit within a reasonable time to grant the discretionary relief is having substance to the issue. In the case of Veerayee Ammal Vs. Seeni Ammal, the Apex Court referring the Law Lexicon by P. Ramanatha Aiyar wherein word ''reasonable'' has been described, held as thus:-
The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable." The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means as soon as circumstances permit. In P. Ramanatha Aiyar''s The Law Lexicon it is defined to mean:
A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than ''directly''; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.
In the case Manjunath Anandappa Urf. Shivappa Hanasi Vs. Tammanasa and Others, , the Apex Court found that filing a suit for specific performance after 6 years was not a reasonable time to grant discretionary relief and may be a ground to refuse such relief as per Section 20 of the Specific Relief Act. The Apex Court in the aforesaid case has observed as under:--
The plaintiff filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on record to show that he had ever asked defendant 1, the owner of the property, to execute a deed of sale. He filed the suit only after he came to know that the suit land had already been sold by her in favour of the appellant herein. Furthermore, it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to the discretionary relief."
In view of the aforesaid legal position and looking to the facts of the present case, it is clear that the alleged agreements to sell were executed by Smt. Shushila Bai on 30.8.90 and she was died on 25.12.92. In the facts of this case, defendants have taken the defence of impostor of executant and also that the agreements to sell are forged and fabricated, however, the plaintiffs must explain why the suits have not been filed during the life time of Smt. Sushila Bai showing readiness and willingness to get the sale deeds executed in their favour by issuing a notice in writing. Thus plaintiffs were not having dare to file a suit against Smt. Shushila Bai during her life time, which is a relevant factor in this case. The plaintiffs have not given any notice in writing to the legal heirs of the deceased Smt. Sushila Bai showing readiness and willingness for execution of the agreements to sell up to two and half years and tried to mutate their names on disputed land without having any saledeed in their favour. Similarly, no such notice was given to the power of attorney holder Mr. Mahesh Kumar Maheshwari in the said facts even if the time may not be an essence of the contract, but the suit which is filed after more than four and half years seeking decree of specific performance, however, in the facts of the case discretionary relief of specific performance can be refused. The guidance may be taken from the judgment of the Apex Court in the case of Manohar Lal @ Manohar Singh Vs. Maya, wherein it is observed that "Discretion as to decreeing specific performance-Agreement to sell agricultural land--Suit for specific performance of--Agreement proved by the plaintiff-appellant but the plea of the defendant that the plaintiff had obtained her thumb impression on some plaint paper, could not be outrightly rejected--On facts, the view taken by the High Court that a just, legal and proper exercise of judicial discretion would be not to direct specific performance.
In the facts of the present case it is apparent that the suits have not been filed during life time of the intended seller Smt. Sushila Bai. It is also apparent that plea of execution of the agreements by an impostor of Smt. Sushila Bai has been taken. The agreements to sell so executed by her has not been proved by the plaintiffs coming in witness box and making themselves available for cross-examination to other-side. The testimony of the attesting witness is also not reliable to establish the agreements to sell. The identity of the executant Smt. Sushila Bai has not been established by defendant No. 1 Kailash Agrawal or by the Notary, who has notarized the agreements to sell coming in witness box. The plaintiffs have never issued any notice to the legal heirs of deceased Smt. Sushila Bai stating readiness and willingness in writing. In such circumstances, in the opinion of this Court, filing of suits after more than four and half years of execution of agreements to sell is not within the reasonable time to grant discretionary relief in favour of the plaintiffs.
On perusal of the agreements to sell it is apparent that total three Khasra numbers are there and the total land is 27.56 acres out of which 23.98 acres was agreed to sell by these agreements to sell. In the agreements to sell dated 30.8.1990 the boundaries of the land so agreed to sell are not clear. The map of the said land has also not been attached. Thus the identification of a particular land which is agreed to sell is itself not clear from the individual agreements. In his statement the power of attorney K.D. Maheshwari has admitted that in agreements to sell fact regarding delivery of possession was mentioned, but on spot the possession was yet to be taken. After the death of Smt. Sushila Bai when plaintiffs have applied for mutation on the basis of agreements to sell which was objected by defendants No. 2 to 5, and on their objection plaintiffs names were not mutated on the land in dispute but the defendants names were mutated. On execution of the sale-deed by defendants No. 2 to 5 in favour of defendants No. 7 to 10 their names have been mutated as apparent from Ex. D-2, Ex. D-7, Ex. D-8 and Ex. D-9. Thus it is clear that in the revenue records the name of Smt. Sushila Bai was recorded and after her death names of defendants No. 2 to 5 were entered into. On execution of the sale-deed by them in favour of defendants No. 7 to 10 their names have been mutated. In this context it is to be observed here that revenue entries indicate possession of the deceased Smt. Sushila Bai, defendants No. 2 to 5 and thereafter defendants No. 7 to 10 by which the presumption of continuous possession of the defendants may be drawn without its delivery to the plaintiffs as admitted by the power of attorney holder K.D. Maheshwari himself in his statement. In the said context it is to be observed that genuineness and truthfulness of the agreements to sell so executed by Smt. Sushila Bai has not been established by the cogent evidence before the Court in view of the discussion so made hereinabove. However, in such circumstances the finding of possession of the plaintiffs so recorded by the trial Court is erroneous and liable to be set aside. In view of consistent revenue entries Exs. D-2, D-7, D-8 and D-9 it is to be held that the possession has not been delivered to the plaintiffs by the defendants. Thus Point (e) is answered accordingly.
In First Appeal No. 372/2001, First Appeal No. 54/2002, No. 55/2002, First Appeal No. 57/2002 and First Appeal No. 58/2002 application under Order 41 Rule 27 read 151 of CPC taking documents on record has the plaintiffs. Along with the said application the Chartered Accountant has been attached. The acknowledgment of the income tax return of Sangeeta K.D. Maaheshwari and Suryakanta Maheshwari has also been filed. In the application it is stated that the counsel for the plaintiffs appearing before the trial Court did not advice the plaintiffs to submit copy of the income tax return on record and because the plaintiffs are challenging the payment of consideration, therefore, the said documents are necessary to be taken oh record. Counsel for the appellants has opposed to take such document on record and contended that the reason why the documents could not be produced at the time when the decree appealed against was passed has not been properly specified, therefore, the said documents cannot be taken on record. After hearing and on perusal of the record it is apparent that in F.A. No. 58/2002 and in F.A. No. 372/2001 certificate of Chartered Accountant issued on 14.11.2011 has been attached wherein it is said that the amount of consideration so paid to Smt. Sushila Bai has been shown in the income tax return. Pan Card number of the plaintiffs has not been indicated in the said certificate and since when the plaintiffs are income tax payee is also not clear. The Books of Accounts has also not been produced.
In F.A. No. 55/2002 acknowledgment of income tax return of the assessment year 1992-93 has been filed which is dated 16th of September, 1994. The agreements to sell are dated 30.8.1990. The Pan Card was not available and it is mentioned that the number is awaited. In F.A. No. 54/2002 the acknowledgment of the assessment year 1991-92 and 1992-93 of 27th of March, 1995 has been filed wherein note has been put that the salary certificate not attached. Similarly in F.A. No. 57/2002 income tax return of the assessment year 1992-93 along with the acknowledgment of 3rd of April, 1996 has been attached. The aforesaid apparently indicates that the documents have been prepared after 4-5 years of execution of agreements to sell in their favour to mitigate the objections, if any. As per Order 41 Rule 27 of CPC parties to appeal shall not be entitled to produce the additional evidence whether oral of documentary, but in any case if the party seeking to produce additional evidence establishes that after exercise of due diligence he could not produce those documents when the decree appealed against was passed. In the present case the suits were filed on 1.5.1995. Decree was passed on 14.5.2001 and 5.10.2001, thereafter the appeals have been preferred in the year 2001 and 2002. The applications have been filed during the course of final hearing before this Court in November, 2011. The reason so specified is that the counsel appearing on behalf of the plaintiffs in trial Court did not advice them to produce the documents do not seem to be reasonable looking to the fact that why those documents have not been filed for about more than eight years during pendency of these appeals and no explanation is available to that effect. In the opinion of this Court, the reason so assigned in the application to take said documents on record is not plausible and sufficient to exercise the discretion in favour of the plaintiffs to take those documents on record. In addition thereto in view of the discussion as made hereinabove, it is apparent that the execution of agreements to sell after payment of amount of consideration has not been duly proved showing genuineness and its correctness, therefore, the documents so filed by the plaintiffs cannot be taken on record and the application under Order 41 Rule 27 read with Section 151 of CPC filed by the plaintiffs stands rejected. In view of foregoing discussion all the six appeals filed by the defendants No. 2 to 5 and 7 to 10 are hereby allowed. The impugned judgment and decree dated 14.05.2001 passed by the 2nd Additional District Judge, Bhopal in Civil Suit No. 22-A/1997 and 23-A/1997 and also the common judgment and decree dated 05.10.2001 passed by the 11th District Judge, Bhopal in Civil Suit No. 45-A/2001, 46-A/2001, 47-A/2001 and 48-A/2001 are hereby set aside. Consequently the suit filed by the plaintiffs are hereby dismissed. In the facts and circumstances of the case, the parties to bear their own costs.