HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
APPEAL SUIT No.688 of 2009
and
CROSS-OBJECTIONS No.49 of 2018
COMMON JUDGMENT :
This appeal is arising out of the judgment in O.S.No.24 of
2006 dated 03.08.2009 on the file of Senior Civil Judge at Gadwal.
2. For the sake of convenience, parties are referred to as
arrayed in the suit.
3. The appellants are defendant Nos.1 to 3. The original suit is
filed by the plaintiffs for specific performance of contract directing
the 1st defendant to execute a registered sale deed in favour of the
plaintiffs in respect of suit schedule properties in Sy.No.115/అ ,
115/ఆ and 116 for the land admeasuring Ac.5-20 gts., Ac.5-20
gts., and Ac.5-00 gts., respectively with common boundaries as
narrated in the plaint schedule, situated at Tirumallapur village of
C.C.Kunta Mandal and further to induct the plaintiffs in possession
of the said properties.
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4. It is the case of the plaintiffs that defendant No.1 is the
absolute owner of the suit schedule lands who agreed to sell the
same to them inclusive of the attached things such as crops, garden,
borewells, electric motors and pipelines etc., @ Rs.35,000/- per
acre, for a total consideration of Rs.5,60,000/-. On 07.07.2005, the
plaintiffs paid an amount of Rs.3,00,000/- to defendant No.1
towards earnest money on execution of agreement of sale. Though
defendant No.1 is the absolute owner of the suit schedule
properties, it appears that he got mutated an extent of Ac.5-00 gts.,
in Sy.No115 in the name of his wife i.e. defendant No.2 and some
extent of land in Sy.No.115/ఆ in the name of his son, to secure
subsidies from the department of horticulture and at the instance of
the plaintiffs, defendant No.1 joined defendant No.2 as a party to
the agreement of sale, but he failed to get the signature of
defendant No.2 on the said agreement. It is the further case of the
plaintiffs that the agreement of sale stipulates that the balance sale
consideration of Rs.2,60,000/- shall be paid on 20.01.2006 and
thereafter, a regular sale deed has to be executed by defendant
No.1. However, an amount of Rs.60,000/- was paid to defendant
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No.1 on 29.07.2005 and the balance sale consideration is only
Rs.2,00,000/-. In spite of the plaintiffs' willingness to perform
their part of contract, the defendant No.1 postponed to execute the
regular sale deed. But, on the other hand, a legal notice dated
22.12.2005 was issued to the plaintiffs through defendant Nos.2
and 3, calling upon the plaintiffs to cancel the agreement of sale
and to take back the amount from defendant No.1, for which, a
reply notice was issued by the plaintiffs on 18.01.2006 expressing
their readiness to pay the balance consideration and calling upon
them to execute the regular sale deed. In order to avoid further
complications, the plaintiffs have filed the present suit against
defendant Nos.1 to 3, though there is no specific relief sought
against defendant Nos.2 and 3. Accordingly, the plaintiffs prayed
to decree the suit.
5. On the other hand, a detailed common written statement was
filed by defendants 1 and 2, which was adopted by defendant No.3,
denying all the allegations made in the plaint. It is the specific
contention of the defendants that the lands admeasuring Ac.4-25
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Cross-Objections No.49 of 2018
gts., and Ac.5-20 gts., are comprised in Sy.Nos.115/అ and 115/ఇ ,
respectively, situated at Tirumallapur village, were purchased in
the name of defendant No.1 with the financial help of the brothers
of defendant No.2. In order to keep up the respect and image of
defendant No.1 in the society, defendant No.2 got the sale deed
registered in the name of defendant No.1 and the said lands are
neither self-acquired nor ancestral properties of defendant No.1,
but are the properties of defendant No.2, though the name of
defendant No.1 was recorded as pattadar and possessor. The lands
admeasuring Ac.4-34 gts., and Ac.1-13 gts., comprised in
Sy.Nos.116/అ and 115/ఆ respectively were purchased by the 2nd
defendant on her name and on the name of defendant No.3 with the
financial help of her brother, and as such, they are not the self-
acquired properties of defendant No.1. Further, defendant Nos.2
and 3 erected borewells, planted sweet lemon plants and defendant
No.1 has got no interest or title over the said lands, and further, the
agreement of sale was not in the knowledge of defendant Nos.2
and 3 and it is signed only by defendant No.1 without their
consent, and therefore, is not binding on them. It is the specific
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contention in the written statement that defendant No.1 cannot
represent the other defendants in an agreement of sale and the said
contract is not enforceable, and therefore, prayed to dismiss the
suit.
6. Basing on the aforesaid pleadings, the trial Court has framed
the following issues:
1. Whether the plaintiff is entitled for specific
performance as prayed for ?
2. To what relief ?
7. On behalf of plaintiffs, PWs.1 to 6 were examined and
Exs.A-1 to A-17 were marked. On behalf of the defendants,
DWs.1 and 2 were examined and Exs.B-1 to B-5 were marked.
8. The trial Court, after considering the entire oral and
documentary evidence on record, has decreed the suit in part
directing defendant No.1 to execute registered sale deed in favour
of the plaintiffs within two months from the date of deposit of the
balance sale consideration of Rs.2,00,000/- by the plaintiffs into
the Court, which shall be done within one month from the date of
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Cross-Objections No.49 of 2018
the judgment and further, the plaintiffs are entitled to costs against
defendant No.1.
9. Being aggrieved by the said judgment, the defendants have
preferred this appeal.
10. It is relevant to mention that Cross-objections No.49 of 2018
were filed by the L.Rs. of the 1st plaintiff and the 2nd plaintiff.
11. Heard both sides and perused the record.
12. On perusal of the plaint, it is noticed that the plaintiffs
prayed only for the relief of directing defendant No.1 alone to
execute registered sale deed in their favour basing on the
agreement of sale dated 17.07.2005 (wrongly mentioned as
17.02.2005 in the plaint) and to put them into possession of the suit
schedule property and no alternative relief is sought for, for refund
of amount as contemplated under Section 22 (1) (b) of the Specific
Relief Act.
13. The point for determination in this appeal is:
Whether the trial Court has erred in granting a decree
and judgment in favour of the plaintiffs though the
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Cross-Objections No.49 of 2018
agreement of sale dated 17.07.2005 does not contain
the signatures of the 2nd and 3rd defendants being the
owners of the suit schedule land ?
14. It is urged by the learned counsel for the appellants that the
averments of the plaint and the evidence is not sufficient to show
that the plaintiffs are ready and willing to perform their part of
contract and the trial Court has erred in applying Section 12(3)(a)
of Specific Relief Act even in the absence of any such relief being
sought for.
15. It is further urged by the learned counsel for the appellants
that there is no evidence on record to show that the plaintiffs have
relinquished all pleas, for performance of the remaining part and all
rights to compensation for the deficiency or for the loss or damage
occasioned due to the default of the defendant No.1. It is further
contended by the learned counsel for appellants that the trial Court
ought to have considered that the seller is not the sole owner of the
property which he has agreed to sell and the buyer can only have
specific performance to the extent of the share of the seller but he
has to fulfill the conditions enumerated under Section 12 of the
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Cross-Objections No.49 of 2018
Specific Relief Act. It is further urged by the learned counsel for
the appellants that the contract intended to be dealt is to be in
whole but not in a piece-meal and the trial Court erred in granting
relief of partial performance of contract which is barred in the eye
of law. It is further contended that the trial Court has erred in
decreeing the suit and it ought to have seen that the plaintiffs were
never willing to perform their part of contract, and therefore,
prayed to set aside the judgment and decree of the trial Court.
16. On the other hand, it is contended by the learned counsel for
the respondents/cross-objectors that the trial Court has erred in
dismissing the suit for specific performance to an extent of Ac.5-00 gts., in Sy.No.116 of Tirumallapur village while decreeing the suit to an extent of Ac.5-20 gts., and Ac.5-20 gts., in Sy.Nos.115 and 115/అ , respectively. It is further contended by the learned counsel for respondents that the trial Court ought to have decreed the suit to the entire extent of suit schedule property as it belongs to the 1st appellant and he is the only pattadar of the entire lands and further, the agreement of sale dated 17.07.2005 discloses that defendant 9 GAC, J A.S.No.688 of 2009 And Cross-Objections No.49 of 2018 No.1 executed the said document for the total extent of land but not for part of land, and therefore, prayed to dismiss the appeal, and to further grant a decree in favour of the plaintiffs for the extents of land, which was not decreed by the trial Court.
17. On perusal of Ex.A-1, it is evident that it is an unregistered agreement of sale and though the names of defendant Nos.1 and 2 are there, it contains the signature of defendant No.1 alone. The survey numbers mentioned in Ex.A-1 are 115/అ , 115/ఆ and 116 and defendant No.1 was shown as pattadar for Sy.Nos.115/అ and 115/ఆ to the extent of Ac.5-20 gts., and Ac.5-20 gts., but at Sy.No.116, the extent of land is shown as Ac.5-00 gts., which is on the name of defendant No.2. Though Sy.No.116 forms part of the contract, it was not signed by defendant No.2 and defendant No.1 who has no right over the property, cannot enter into contract on behalf of defendant No.2. Ex.A-3 is the legal notice dated 22.12.2005 issued to the plaintiffs by the 2nd and 3rd defendants, who are the wife and son of the 1st defendant respectively, after coming to know about Ex.A-1. The recitals of Ex.A-3 disclose that 10 GAC, J A.S.No.688 of 2009 And Cross-Objections No.49 of 2018 after coming to know about Ex.A-1, reply is being issued contending that defendant No.1 has no right to alienate the lands as he has no legal or family necessities to alienate the lands, and as such, the alienation of the said lands is illegal and will not confer any right on the plaintiffs.
18. It is important to note that the recitals of Ex.A-1 clearly disclose that the names of defendant Nos.1 and 2, are shown therein, as if they intended to sell the land to the plaintiffs, but the same was not signed by defendant No.2. On the other hand, Ex.A-3/legal notice reveals that defendant No.1 has no legal or family necessities to alienate the lands, which means, the purpose mentioned by defendant No.1 in the agreement of sale is denied in the notice/Ex.A-3 issued by defendant Nos.2 and 3.
19. It is relevant to mention that Ex.A-1 specifies the date for execution of registered sale deed as 29.10.2005 in favour of the plaintiffs on payment of the balance sale consideration. Ex.A-4 is the reply notice dated 18.01.2006, issued by the plaintiffs to the defendants, wherein, they admit that defendant No.2 is the owner 11 GAC, J A.S.No.688 of 2009 And Cross-Objections No.49 of 2018 of the land bearing Sy.No.116 to an extent of Ac.5-00 gts., situated at Tirumallapur village and they are ready and willing to pay the balance sale consideration and further requested to execute registered sale deed. Admittedly, the plaintiffs have to pay the balance sale consideration on 29.10.2005 as per Ex.A-1. There is no evidence on record to show that the plaintiffs were willing and ready to perform their part of contract, till 22.12.2005 i.e. the date of Ex.A-3. As per Ex.A-1, the time stipulated is 29.10.2005, which is the essence of the contract. Hence, it can be presumed that the plaintiffs have not expressed their readiness or willingness to perform their part of contract to defendant No.1 till 18.01.2006 i.e. the date of the reply notice. Neither the recitals of the plaint nor the reply notice of the plaintiffs disclose about the dates on which the plaintiffs are ready to pay the balance sale consideration, except the bald allegation that defendant No.1 is postponing the execution of registered sale deed.
20. It is the specific finding of the trial Court that defendant No.1 alone is the executant of Ex.A-1 for the entire suit schedule 12 GAC, J A.S.No.688 of 2009 And Cross-Objections No.49 of 2018 land and defendant Nos.2 and 3 have no knowledge about Ex.A-1 and after coming to know of it, defendant Nos.2 and 3 issued Ex.A-3/legal notice informing the plaintiffs that though defendant No.1 is the pattadar, he had no vested interest to alienate the property, as he is not burdened with family maintenance or marriages of daughters. On considering the documents, it is evident that patta to the extent of Ac.5-20 gts., and Ac.4-25 gts., in Sy.No.115 stands in the name of defendant No.1 vide documents in Exs.A-10 and A-11 and patta to the extent of Ac.1-09 gts., Ac.1-08 gts., and Ac.1-08 gts., comprised in Sy.No.116 stands in the name of defendant No.2 vide Exs.A-12 to A-14. Ex.A-15 is the C.C. of pahani pertaining to the vendors under Exs.A-10 and A-11. Ex.A-16/pahani pertains to the lands purchased by defendant No.2 on her name. According to Ex.B-1/ROR and Ex.B-2/pahani, defendant No.2 is the pattadar for Ac.4-34 gts., in Sy.No.116/A while defendant No.3 is the pattadar for Ac.1-13 gts., in Sy.No.115/ఆ .
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21. It is the specific contention of the appellants that defendant No.1 got mutated the lands in the name of his wife and son and sub-division also took place for the said survey numbers. The trial Court, even after considering that defendant No.1 alone is the contracting party for the lands belonging to defendant Nos.2 and 3, directed defendant No.1 to execute the regular registered sale deed.
22. Section 12 of the Specific Relief Act reads as under:
"Specific performance of part of contract :
(1) Except as otherwise hereinafter provided in this section, the court shall not direct the specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed be a only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either--
(a) forms a considerable part of the whole, though admitting of compensation in money; or 14 GAC, J A.S.No.688 of 2009 And Cross-Objections No.49 of 2018
(b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party--
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b) pays or has paid the consideration for the whole of the contract without any abatement; and
(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed the court may direct specific performance of the former part.
Explanation.--For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a 15 GAC, J A.S.No.688 of 2009 And Cross-Objections No.49 of 2018 portion of its subject-matter existing at the date of the contract has ceased to exist at the time of its performance."
23. Thus, as per Section 12 of the Specific Relief Act, Courts have to pass a decree for the whole of the contract but not to a part thereof. It is pertinent to note that the plaintiffs being aggrieved of the judgment of the trial Court, filed cross-objections. The plaintiffs have not expressed their willingness for getting the registered sale deed for part of the lands, but they are willing to purchase the entire land, though the land is not in the name of defendant No.1.
24. The chief affidavit of PW-1 is nothing but reiterating the plaint averments. His evidence only disclose that they got issued reply notice on 18.01.2006 after receiving the notice of defendant Nos.2 and 3. In the cross-examination, PW-1 admitted that he has to pay Rs.2,00,000/- to defendant No.1 and defendant No.3 owns an extent of Ac.1-13 gts., in Sy.No.115 and he has not deposited balance consideration in to the Court. Further, he did not pay any amount to defendant No.2 under Ex.A-1.
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25. PW-2 is the attestor to Ex.A-1 and deposed about the suit transaction under Ex.A-1 and also stated that he is the attesting witness to the agreement/Ex.A-1. In the cross-examination, it is deposed by PW-2 that PW-1 is his brother-in-law and he does not know as to who filed suit against whom and also admitted that Ex.A-1 was not executed by defendant Nos.2 and 3 and also does not know the extents of land belonging to each of the defendants.
26. PW-3 is the scribe of Ex.A-1. His evidence is also on the same lines as that of PW-2. In the cross-examination, PW-3 deposed that he is a document writer and he does not know the mode of acquisition of land by defendant Nos.1 to 3.
27. PW-4 is a third party to the suit. His evidence disclose that he was the owner and possessor of land in Sy.No.115/అ to an extent of Ac.4-25 gts., of Tirumallapur village and has sold the land in favour of defendant No.1 under Ex.A-11. In the cross- examination, it is deposed by PW-4 that he does not remember whether he got Ex.A-11 sale deed registered in the name of defendant No.2 or not.
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28. PW-5 is also the third party to the suit. His evidence disclose that he was the owner and possessor of land in Sy.No.116/1/1 to an extent of Ac.1-09 gts., of Tirumallapur village and has sold the land in favour of defendant No.1 under Ex.A-12. In the cross-examination, it is deposed by PW-5 that he executed registered sale deed in favour of defendant No.2 as requested by defendant No.1.
29. PW-6 is also a third party. His evidence disclose that he was the owner and possessor of land in Sy.No.116/1/4/A to an extent of Ac.1-08 gts., at Tirumallapur village and has sold the land in favour of defendant No.1 under Ex.A-13. In the cross- examination, it is deposed by PW-6 that he did not execute registered sale deed in favour of defendant No.2 but executed in favour of defendant No.1.
30. PW-7 is also a third party. His evidence disclose that he was the owner and possessor of land in Sy.No.116/1/2 to an extent of Ac.1-08 gts., of Tirumallapur village and has sold the land in 18 GAC, J A.S.No.688 of 2009 And Cross-Objections No.49 of 2018 favour of defendant No.1 under Ex.A-14, but PW-7 was not subjected to cross-examination.
31. On perusal of the evidence of PWs.1 to 7, it is evident that defendant No.1 executed Ex.A-1 in favour of plaintiffs for which, PW-2 is the attestor and PW-3 is the scribe. The plaintiffs and defendant No.1 entering into agreement of sale under/Ex.A-1 is not at all in dispute. The admitted fact is that the plaintiffs have not sought any relief against defendant Nos.2 and 3 though they are arrayed as parties to the suit. On the other hand, it is also an admitted fact that defendant Nos.2 and 3 are not signatories to the agreement of sale i.e. Ex.A-1, though defendant No.2 is the owner of the part of the suit schedule property. The evidence of PWs.4 to 7 is in no way helpful to the plaintiffs to prove that defendant No.2 is not the owner of the land.
32. On behalf of defendants, the 2nd defendant herself was examined as DW-1 and it is the specific admission of DW-1 in the cross-examination that she purchased the lands with the financial assistance/help of her brother and kept it in the name of her 19 GAC, J A.S.No.688 of 2009 And Cross-Objections No.49 of 2018 husband and further stated that she was not aware whether defendant No.1 received Rs.3,00,000/- and Rs.60,000/- from the plaintiffs.
33. DW-2 is the brother of DW-1. His evidence disclose that he gave financial assistance for defendant No.2 in order to purchase the lands on the name of defendant No.1.
34. The dispute between the parties is whether defendant No.1 can execute registered sale deed in favour of plaintiffs basing on Ex.A-1, though he is not the owner of part of the suit schedule properties. As stated supra, the plaintiffs are unwilling for part performance of the contract as such they have filed cross- objections. The trial Court has erred in decreeing the suit for specific performance for part of the suit schedule properties though Section 12 of Specific Relief Act is not applicable. Admittedly, defendant No.2 has not signed Ex.A-1/agreement of sale and therefore, the Court cannot direct defendant No.2 to execute regular sale deed in favour of the plaintiffs. As part of the suit schedule properties is on the name of defendant No.2, part of the 20 GAC, J A.S.No.688 of 2009 And Cross-Objections No.49 of 2018 contract cannot be performed and a person who has no right over part of the property i.e. defendant No.1 cannot execute regular sale deed over such property. Moreover, the plaintiffs have failed to establish that they are ready and willing to pay the balance sale consideration as stipulated in Ex.A-1 i.e. by 29.10.2005, which is the essence of the contract. Therefore, it can be safely concluded that the plaintiffs have failed to establish that they are ready and willing to perform their part of contract and there is no possibility of performance of contract under Ex.A-1 as part of the property belongs to defendant No.2, who is not signatory to the document.
35. Section 22 of the Specific Relief Act reads as follows:
Power to grant relief for possession, partition, refund of earnest money, etc. :
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--
(a) possession, or partition and separate possession, of the property in addition to such performance; or 21 GAC, J A.S.No.688 of 2009 And Cross-Objections No.49 of 2018
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed:
Provident that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.
36. As already stated supra, alternative relief is not pleaded by the plaintiffs before the trial Court for refund of earnest money, as stipulated under Section 22(1)(b) of Specific Relief Act. But, the counsel for the cross-objectors pleaded that this Court may direct defendant No.1 to refund the earnest money paid by the plaintiffs vide Ex.A-1 to a tune of Rs.3,00,000/- and Rs.60,000/- which was paid prior to 20.01.2006, and also direct the trial Court to refund an amount of Rs.2,00,000/- which was deposited by the plaintiffs, after decretal of the suit i.e. on 01.09.2009. 22
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37. The learned counsel for the appellants also filed a Memo before this Court stating that they have not withdrawn any amount which was deposited by the plaintiffs/respondents. The recitals of Ex.A-3 notice also disclose that they have no objection for refund of the amounts paid by the plaintiffs. Therefore, this Court directs defendant No.1 to refund the amounts received by him from the plaintiffs and further directs the trial Court (Senior Civil Judge's Court, Gadwal) to permit the plaintiffs to withdraw the amount of Rs.2,00,000/-, which was deposited by them on 01.09.2009, vide Challan No.7327, lodgment No.53/09-10, along with interest accrued thereon.
38. With the above directions, the A.S.No.688 of 2009 is allowed and Cross-objections No.49 of 2018 are disposed of. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 20.09.2022 ajr