Pravendra Kumar @ Pinku vs Ram Kumar
2017 Latest Caselaw 3514 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 6
 

 
Case :- SECOND APPEAL No. - 330 of 2004
 

 
Appellant :- Pravendra Kumar @ Pinku
 
Respondent :- Ram Kumar
 
Counsel for Appellant :- Vimal Kishore Verma
 
Counsel for Respondent :- Amit Kumar Awasthi,Sunder Lal
 

 
Hon'ble Anil Kumar,J.

Heard Sri Vimal Kishore Verma, learned counsel for the appellant, Sri Amit Kumar Awasthi, learned counsel for respondents and perused the record.

By means of present second appeal under section 100 C.P.C. , plaintiff/ appellant has challenged the judgment and decree dated 16.9.2004 passed by District Judge, Sitapur in Civil Appeal no.91 of 2003 ( Ram Kumar Vs. Praveen Kumar alias Pinku) by which appeal filed by defendant/ respondent was allowed and judgment and decree dated 6.12.2003 passed by Civil Judge ( J.D.) Biswan District Sitapur in Civil Suit no.85 of 1998 ( Pravendra Kumar Alias Pinku Vs. Ram Kumar) was set aside.

Facts, in brief, of the present case are that plaintiff/ Pravendra Kumar @ Pinku filed a Civil Suit for specific performance of contract and permanent injunction , registered as 85 of 1998 ( Pravendra Kumar alias Pinku Vs. Ram Kumar ) on the ground that the plaintiff has settled with the defendant to purchase of plot no.381 area 0.902 hectare situate at village Lashkerpur Pergana and Tehsil Biswan District Sitapur . The defendant has executed an agreement to sell after receiving Rs. 18000/- from the plaintiff in presence of the witness. It was settled that Rs. 22300/- would be payable as sale price, out of which through the agreement to sell Rs. 18000/- was paid as earnest money and possession of the plot was handed over . It is further stated in the plaint that it was agreed between the parties that agreement to sale may be executed within six month after giving remaining sale price. However , in spite of the said fact , plaintiff has arranged remaining amount of sale and has requested the defendant to execute the sale but the same was denied by the defendant on so many pretext. On 10.3.1998, it came to the knowledge of the plaintiff in the village that the defendant intends to sell plot no.381 on excessive amount to one Ram Khelawan son of Chandrika or to other persons and not willing to sell the plot to him so a suit for specific performance has been filed . Thereafter defendant has filed written statement denying the allegation as made by the plaintiff.

The trial court, after exchange of pleadings , had framed six issues for deciding the suit and on the basis of material came to the conclusion that the agreement to sale has been executed by defendant in favour of plaintiff in respect of sale of the land in dispute and in advance Rs.18000/- has been received by the defendant and the possession of the same has been given to the plaintiff and also held that agreement for specific performance do not require any re-registration under Section 17 of the Indian Registration Act, 1908.

Accordingly by means of judgment and decree dated 6.12.2003 allowed the suit of plaintiff thereby directing that defendant after receiving the remaining amount of Rs. 4500/- shall execute the sale deed within a period of two months in favour of plaintiff .

The judgment and decree dated 6.12.2003 passed in regular Suit no.85 of 1998 ( Pravindra Kumar Vs. Raj Kumar) has been challenged by the defendant by filing Civil Appeal no.91 of 2003 ( Ram Kumar Vs. Pravindra Kumar alias Pinku) .

Appellate court in order to decide the controversy has framed the following point of determination as per the provisions as provided under Order 41 Rule 31 CPC which are quoted as under:-

"1. Whether the agreement to sell is compulsorily registerable under law, if so its effect?

2. Whether the defendant appellant has ever executed any agreement to sell in favour of the plaintiff-respondents? If so its effect.

3. Whether the plaintiff-respondent was ever ready and willing to perform his part of agreement?

Thereafter, appellate court after taking into consideration the facts and material on record has allowed the appeal and set aside judgment and decree passed by trial court in favour of plaintiff in a suit for specific performance vide order dated 16.9.2004. Aggrieved by the same, present second appeal has been filed by the appellant and pressed on the following substantial question of law:-

"(A) Whether the learned lower appellate court committed the manifest error of law in passing the impugned judgment and decree dated 16.9.2004 by which allowed the appeal filed by the defendant/ respondent and reverting the finding recorded by learned trial court, without considering the evidence available on the record?

( C) Whether in view of the provisions of order 14 Rule 1(iii) read with rule-3 of the C.P.C. an issue on the basis of the pleading made by the parties with effect , that on the basis of the agreement to sale, the possession of the disputed land was handed over to the plaintiff/appellant and since then he is continuously in the possession over the disputed land to be framed and non-framing of the relevant issue on the said plea was contrary to the aforesaid provisions of law?

Order 14 Rule 1(iii) read with rule 3 of the C.P.C. provides that each material preposition of fact and law affirmed by one party and denied by the other shall form the subject of distinct issue, Order 14 Rule 3 C.P.C. provides for framing of the issue by the Courts on the allegation made in the pleadings. The plaintiff/appellant specifically raised the plea in his plaint that on the basis of the agreement to sale the possession of the disputed land has been handed over to the plaintiff/appellant by the respondent, while the respondent denied the same by filing his written statement before the trial court, as such , non-framing of the issue regarding the possession on the basis of the aforesaid pleading was absolute violation of the aforesaid provisions of law, hence the impugned judgment and decree dated 16.9.2004 passed by lower appellate court are totally illegal and liable to be set aside.

(E) Whether the learned lower appellate court committed the manifest error of law in passing the impugned judgment and decree dated 16.9.2004, without relying upon the oral and documentary evidence available on the record?

The plaintiff produced the several witnesses before the trial court in support of his case who has duly proved the execution of the agreement to sale in favour of the appellant and also proved the possession of the appellant over the disputed land and in this regard the appellant also adduced his own evidence which has not been considered by the learned lower appellate court , as such, impugned judgment and decree dated 16.9.2004 passed by learned District Judge, Sitapur are totally illegal and liable to be set aside."

I have heard learned counsel for the parties and gone through the record.

It is not disputed in the present case that agreement to sale dated 25.12.1997 has been executed on the stamp paper of Rs.10/- on the basis of which suit for specific performance was filed by the plaintiff/ appellant, allowed by trial court .

Aggrieved by the same, defendant/respondent filed an appeal, allowed dated 16.9.2004 passed in Civil Appeal No. no.91 of 2003 ( Ram Kumar Vs. Pravin Kumar @ Pinku) by the District Judge, Sitapur, setting aside the judgment and decree passed by trial court and the findings which was given while allowing the appeal are as under:-

"The plaintiff has examined himself as P.W.1 and P.W.2 Brijendra Singh one of the witness of agreement to sell. P.W.1 Pravin Kumar has supported his case and his admitted during his cross examination that Sobran Lal one of the witnesses of agreement to sell has died in the year 1998. He has stated that the agreement to sell was executed on the stamp of Rs.10/- The agreement to sell was executed at the house and he has not come to Tahsil and the agreement to sell was not got registered as he was no having money.

Though the date of agreement is not mentioned in the plaint but from the perusal of document it transpires that on 25.12.1997 the said document was executed through which the possession was also handed over by the defendant to the plaintiff and in view of the amendment made in Section 17 Registration Act the said agreement to sell is compulsorily registerable and due to non-registration of the said agreement the said document cannot be read in evidence and the decree of specific performance cannot be granted on the strength of that agreement to sell.

The learned counsel for the defendant-appellant has argued that there is no averment in the plaint that the plaintiff was ever ready to perform his part of agreement. I have gone through the para-7 of the plaint and found that it is half heartedly pleaded that after the execution of agreement the defendant was ready for getting the sale deed executed in his favour and has persuaded the defendant. But the defendant has postponed it on one pretext or the other. He did not pleaded in the plaint that the plaintiff was every ready to get the sale-executed in his favour. In order to show his willingness or readiness no any written notice was sent to the defendant for execution of sale deed. The learned counsel for the appellant has argued that the present and future readiness and willingness must be pleaded in the plaint."

So far as the findings given by appellate court that the document which is executed on 25.12.1997 on the basis of which suit for specific performance has been filed , is not registered one, so the same cannot be read as piece of evidence as per section Section 17 read with section 49 of the Registration Act ( U.P. Act no. 53 of 1996 w.e.f. 1.1.1997) and section 54 of the Transfer of Property Act because if the value of the document which is executed is more than Rs.100/- , the registration of the same is compulsory , is perfectly valid rather in accordance with law as held by this Court in the case of Ved Prakash Vs. Kanhaiya Lal ,2016 (7) ADJ 591 in para 6 has held has under:-

" In fact, neither the trial court nor the first appellate court has adverted to this issue whether the agreement dated 29.4.2001 being the unregistered document can be read in evidence. Both the courts below have taken into consideration the above agreement and have given their finding upon interpreting its terms. Basically, an agreement by which rights are created in immovable property is required to be registered under Section 17 of the Registration Act and in case , it is not registered then it cannot be read in evidence as per Section 49 of the Indian Registration Act."

And in the case of Bhagwat Kumar Seth Vs. Smt. Charan Jit Kaur and another, 2011 (1) ADJ, 910 it has been held as under:-

" In the present case , the document is unregistered which can be used as piece of evidence. Findings recorded by the learned trial court cannot be accepted and the order is liable to be set aside."

Further the findings given by appellate court on the basis of pleading on record i.e. plaint, the plaintiff was ever showed his willingness or readiness to perform his part of agreement, is perfectly valid rather same is in accordance with the provisions of section 16 (C) of the Specific Relief Act, 1963 which reads as under:-

"Specific terms of a contract cannot be enforced in favour of a person:

(c) ........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 performance of which has been prevented or waived by the defendant."

As per the said provisions, the plaintiff in its plaint for specific performance of agreement to sale in clear words must have stated that he is willing to perform his part of the contract i.e. to say that it postulates a mandatory requirement for the plaintiff to aver and prove his readiness and willingness to perform his part of the contract.

And the plaintiff has to establish to the satisfaction of the court that he has fulfilled all requirement of the Clause (c) of Section 16, the Court will not be able to grant the decree for specific performance of the contract in his favour. Even the absence of party resisting the suit for such relief of specific performance , does not exonerate the plaintiff from his liability to plead and prove his readiness and willingness to perform his part of the contract before the court.

This Court in the case of Ahmad Husain and others Vs. Ganesh Shanker Gupta, 2008(26) LCD 937 in para 14 has held as under:-

"From the above, it is clear that it is a statutory requirement for specific performance of the contract that party should not only aver but prove also that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him. In view of the above statutory requirements, there cannot be any dispute that before decreeing the suit for specific performance, even if no issue was framed by the trial court on this point, the Court should go into the question whether there is averment in the plaint and the same is proved also to show that plaintiff has performed or has been always ready and willing to perform the essential terms of the contract which are to be performed by him. So far as the absence of denial by other party is concerned, it can meet out the first part of the requirement of the provision that plaintiff must aver but averment alone is not sufficient. The provision requires the party praying for specific performance not only to aver but to prove also by evidence. Therefore if no specific issue was framed on that point, yet for the purpose of examination whether the plaintiff has proved or not the averment made in the plaint. For determination of this question Court has to examine the evidence. ( See also Abdul Hai Vs. Smt. Shanti Devi ,2007 (25) LCD 1437)"

No perversity or infirmity is found in the judgment given by first appellate court to warrant interference in this appeal . None of the contention raised by by learned counsel for the plaintiff/ appellant can be sustained and no question of law much less than a substantial question of law was involved in this case which requires consideration by this Court under Section 100 C.P.C. while deciding the present second appeal.

Accordingly, the second appeal lacks merit and is dismissed.

Order Date :- 23.8.2017

dk/