6.2. Mr. Singh would also submit that the trial Court has also erred in
holding that plaintiff is in possession of the suit land as the defendant
has always been in possession of the suit land and it was never
handed over to the plaintiff.
6.3. Lastly, Mr. Singh would submit that the suit filed by the plaintiff
suffers from delay and latches and is therefore, barred by limitation as
the agreement to sale was executed by the parties on 28/01/2003,
legal notice was issued by the plaintiff on 23/02/2006 and the suit was
instituted on 25/03/2006, therefore, plaintiff's suit could not have
been entertained by the trial Court and it ought to have been
dismissed on the ground of delay and latches itself.
6.4. Mr. Singh would strongly place his reliance upon the decision
rendered by the Supreme Court in the matter of Pydi Ramana Alias
Ramulu v. Davarasety Manamadha Rao 1, and also rely upon other
decisions of the Supreme Court rendered in the matters of Alagammal
and Others v. Ganesan and Anr.2, Rajesh Kumar v. Anand Kumar and
Others3, U.N.Krishnamurthy v. A.M. Krishnamurthy4, Sardamani
Kandappan v. S. Rajalakshmi and Others5 to buttress his submission.
1 (2024) 7 SCC 515
2 (2024) 3 SCC 232
3 2024 SCC Online SC 981
4 (2023) 11 SCC 775
5 (2011) 12 SCC 18
7. Mr. Uttam Pandey, learned counsel for the respondent/plaintiff, would
support the impugned judgment and decree passed by the trial Court
and submit that the trial Court is absolutely justified in decreeing the
suit of the plaintiff as plaintiff was always ready and willing to perform
his part of the contract which is visible from the fact that Rs. 50,000/-
was paid by him as earnest money on 28/01/2003 i.e. on the date of
the agreement to sale and thereafter, Rs. 50,000/- was paid by him on
08/03/2003 and the remaining Rs. 64,000/- was paid by him on
29/03/2003 and it was also noted in the agreement (Ex. P/1) in which
defendant has also put his signature, as such, total sale consideration
amount of Rs. 1,64,000/- has been paid by the plaintiff to the
defendant which has duly been proved by the plaintiff (P.W.-1) and his
two witnesses namely Goukaran Prasad (P.W.-2) and Budharu Ram
(P.W.-3). Furthermore, handwriting expert namely Dr. Kumari Sunanda
Dhenge (P.W.-4) has also established that the signature on the
agreement belongs to the defendant. As such, even though entire
amount of sale consideration has already been paid by the plaintiff,
the defendant still did not take any step to execute the sale deed in
favour of the plaintiff even though the plaintiff has also been in
possession of the suit land. He would lastly submit that the suit filed
by the plaintiff is not barred by limitation and even otherwise, specific
plea of delay and latches has not been taken by the defendant in his
written statement, as such, the instant appeal is liable to be dismissed.
8. I have heard learned counsel for the parties, considered their rival
submissions made herein-above and went through the record with
utmost circumspection.
Points for determination :-
9. In order to decide the appeal, the following two points that arise for
determination which need to be considered and answered are as
follows :-
(i) Whether, pursuant to the agreement to sale dated 28/01/2003 (Ex.
P/1), plaintiff has further paid Rs. 50,000/- and Rs. 64,000/- as sale
consideration to the defendant by making note in the agreement (Ex.
P/1) in which defendant has also put his signature ?
(ii) Whether, the plaintiff was ready and willing to perform his part of
the contract ?
Answer to Question No. (i) :-
10. In this regard, the statements of plaintiff (P.W.-1) as well as his two
witnesses namely Goukaran Prasad (P.W.-2) and Budharu Ram Nishad
(P.W.-3) may be noticed herein profitably.
11. Plaintiff Lakhan Lal Meshram (P.W.-1), in his affidavit under Order 18
Rule 4 of CPC has clearly stated that pursuant to the agreement to
sale dated 28/01/2003 (Ex. P/1), he has paid Rs. 50,000/- as earnest
money to the defendant which has also been admitted by the
defendant Awadh Ram (D.W.-1) in paragraph 1 of his affidavit under
Order 18 Rule 4 of CPC. Plaintiff has further stated that he has paid
further amount of Rs. 50,000/- on 08/03/2003 and the remaining
amount of Rs. 64,000/- on 29/03/2003 and has also made a note with
that regard in the agreement (Ex. P/1) in which defendant has also
put his signature.
12. Similarly, Budharu Ram Nishad (P.W.-2) has clearly stated in his
affidavit under Order 18 Rule 4 of CPC that prior to the registry,
defendant demanded money from the plaintiff on account of which
plaintiff took defendant to the Bank along with him and withdrew Rs.
50,000/- and paid to the defendant on 08/03/2003 and made a note
in the agreement (Ex. P/1) which was signed by the defendant. He has
also admitted in his cross-examination that he was present when the
plaintiff handed over the said amount to the defendant.
13. Likewise, Goukaran Prasad (P.W.-2) has stated in his affidavit under
Order 18 Rule 4 of CPC that on 29/03/2003, plaintiff paid the
remaining amount of Rs. 64,000/- to the defendant in his presence
and after receiving the said amount, the defendant himself made a
note in the agreement and put his signature therein. He has further
stated that he was given the agreement to put his signature on stamp
as witness, however, when he read it, he found that defendant had
mistakenly mentioned the amount as Rs. 10,64,000/- instead of Rs.
1,64,000/- and when he told about the same to the defendant, the
defendant asked him to correct his mistake and write the amount in
words over his signature and accordingly, he did the same as being
told by the defendant.
14. Since the signature put by the defendant on the agreement to sale
(Ex. P/1) was disputed, the matter was referred to the handwriting
expert, Dr. Kumari Sunanda Dhenge (P.W.-4). She took sample
handwriting of the defendant before the trial Court and marked it as
S-1 to S-8 and further marked the disputed signature on the
agreement as Q-1, A to S and after examination, she opined that
both the sample handwriting as well as the disputed writing in the
agreement are similar. Though she was subjected to some extent of
cross-examination but nothing can be extracted to hold that the
disputed signature (Q-1) in the agreement (Ex. P/1) does not belong
to the defendant.
15. Thus, in view of the aforesaid evidence available on record, the trial
Court has rightly recorded a finding that plaintiff had paid the entire
sale consideration amount of Rs. 1,64,000/- to the defendant. I do
not find any perversity or illegality in the said finding recorded by the
trial Court, as such, the above-stated finding is hereby affirmed.
Answer to Question No. (ii) :-
16. Mr. B.P. Singh, learned counsel for the appellant/defendant, would
strongly rely upon the decision rendered by the Supreme Court in
the matter of Pydi Ramana Alias Ramulu (supra) and submit that
plaintiff was not ready and willing to perform his part of the
contract as the agreement to sale (Ex. P/1) is dated 28/01/2003 and
legal notice was issued by the plaintiff to the defendant on
23/02/2006 and the suit was filed by the plaintiff on 27/03/2006
and though the suit was within the period of limitation, but it goes
to show that plaintiff was not ready and willing to perform his part
of the contract.
17. In this regard, paragraphs 15 and 19 of the decision rendered by
the Supreme Court in the matter of Pydi Ramana Alias Ramulu
(supra) may be noticed herein :-
"15. As per the recital in the agreements, the defendant
was required to get the suit land surveyed and as such
the total consideration was agreed to be settled after
such survey. On the one hand, the plaintiff contends that
the defendant never got surveyed the suit land. On the
other hand, pleadings and evidence of the plaintiff is
silent on steps taken by the plaintiff as expected of a
reasonable person which has not been taken in the
instant case, namely, the plaintiff has not produced any
evidence either oral or documentary to establish that
there was any demand made by him for the land being
surveyed by the defendant. No witnesses have been
examined on behalf of the plaintiff to establish that at any
point of time there has been demand made by the
plaintiff with the defendant by calling upon him to get the
suit land surveyed as agreed under the agreement of sale
Ext. A-1.
19. The ratio of the above judgment in all force would be
applicable to the facts on hand in the instant case. The
agreement of sale (Ext. A-1) was executed on 7-6-1993
and the date fixed for execution of the sale deed was one
year from the date of measurement of the suit scheduled
property. Undisputedly no such measurement was carried
out and the plaintiff has not raised his little finger in this
regard from the date of execution of agreement till he got
issued legal notice dated 30-5-1996 that it almost for a
period of 3 years and the suit came to be filed only on 9-
6-1997 at the fag end of the expiration of the limitation.
The long unexplained delay in not taking any reasonable
steps as is expected from a reasonable person is itself
sufficient to disentitle the plaintiff to an equitable relief. It
is no doubt true that suit for specific performance can be
filed even on the last date of the limitation as prescribed
under Article 54 of the Limitation Act. However, the steps
taken by the plaintiff during this period, namely, from the
date of agreement till date of filing of suit will have to be
explained in the plaint and proved in the evidence which
is lacking in the instant case."
18. In the aforesaid case (supra), defendant was required to get the
suit land surveyed and the total consideration was agreed to be
settled after such survey and the date fixed for execution of sale
deed was one year from the date of measurement of the suit land.
No survey was apparently carried out by the defendant, however,
the plaintiff also did not take any steps to get the suit land surveyed
by the defendant and even legal notice was issued by the plaintiff
after two years of expiry of the one year period as per the
agreement. In that situation, their Lordhships have held that long
unexplained delay in taking reasonable steps, as is expected from a
reasonable person, is itself sufficient to disentitle the plaintiff to
relief of specific performance of contract.
19. The aforesaid condition is not present in the instant case as plaintiff
had already paid the entire sale consideration amount to the
defendant prior to the end of one month period as per the
agreement to sale (Ex. P/1) which shows that plaintiff was ready
and willing to perform his part of the contract. Further there is oral
and documentary evidence available on record in the shape of
statements of plaintiff (P.W.-1) and his two witnesses namely
Goukaran Prasad (P.W.-2) and Budharu Ram Nishad (P.W.-3) to
establish that plaintiff was always ready and willing to perform his
part of the contract as the agreement to sale was entered into
between the parties on 28/01/2003 (Ex. P/1) and legal notice was
issued by the plaintiff to the defendant on 23/02/2006 and the suit
has been filed by the plaintiff on 27/03/2006 which is within the
period of limitation of three years as enumerated under Article 54
of the Indian Limitation Act, 1963. As such, the decision relied upon
by learned counsel for the appellant/defendant in the matter of
Pydi Ramana Alias Ramulu (supra) is totally distinguishable and
would not apply to the facts of the present case. Similarly, the
other decisions relied upon by learned counsel for the
appellant/defendant in the matters of Alagammal (supra), Rajesh
Kumar (supra), U.N. Krishnamurthy (supra), Sardamani Kandappan
(supra) are also distinguishable and would not apply to the facts of
the instant case.
20. Now, so far as the question of possession of the suit land is
concerned, it has been stated by the plaintiff that he has been in
possession of the suit land pursuant to having made total payment
of sale consideration to the defendant, however, the defendant has
disputed the said fact and has stated that he has not delivered
possession of the suit land to the plaintiff and he himself is in
possession of the suit land.
21. The Supreme Court, in the matter of Babu Lal v. M/s Hazari Lal
Kishore Lal and Others6, has held that in an appropriate case of
specific performance of contract of sale of immovable property, the
Court is competent to order delivery of posession of the property,
even if not specifically asked for, by allowing suitable amendment
in the plaint and the order for delivery of possession without
corresponding amendment in the plaint would be a mere omission
and it would not be fatal to the relief of possession.
22. The principle of law laid down in Babu Lal (supra) came to be
considered by the Supreme Court in the matter of
6 (1982) 1 SCC 525
Manickam @ Thandapani & Another v. Vasantha 7, in which, the
principle of law laid down in Babu Lal (supra) has been followed
with approval after reviewing the earlier decisions on the point and
it has been held that relief of possession is ancillary to the decree
for specific performance and need not be specifically claimed. It
has been further held by their Lordships that the expression "at any
stage of proceeding" is wide enough to allow the plaintiffs to seek
relief of possession even at the appellate stage or in execution even
if such prayer was required to be claimed and it has been held by
their Lordships in para 25 & 26 as under :
25. A perusal of the aforesaid judgments would show
that relief of possession is ancillary to the decree for
specific performance and need not be specifically
claimed. That was the position even under the Specific
Relief Act, 1877. Section 22 of the Act was introduced in
pursuance of the recommendation of the Law
Commission to avoid multiplicity of proceedings and to
cut down the delay. Therefore, though the
preponderance of judicial opinions under the Specific
Relief Act, 1877 was in favour of the fact that relief of
possession is ancillary to the decree for specific
performance, it was further clarified by introducing
Section 22 of the Act.
26. The matter can be examined from another angle as
well. Section 22(2) of the Act, though is worded in
negative language, "no relief under clause (a) or clause
(b) of sub- section (1) shall be granted by the court
unless it has been specifically claimed", but the proviso
takes out the mandatory nature from the substantive
7 2022 Livelaw (SC) 395 {SLP (Civil) No.15653 of 2017 decided on 5.4.2022}
provision of sub-section (2) when the plaintiff is allowed
to amend the plaint on such terms as may be just for
including the plaint for such relief "at any stage of the
proceeding". "At any stage of the proceeding" would
include the proceeding in suit or in appeal and also in
execution. The proviso to sub-section (2) of Section 22 of
the Act contemplates that the Court shall, at any stage of
the proceedings, allow the plaintiff to amend the plaint
on such terms as may be just for including a claim for
such relief. The said proviso makes the provision
directory as no penal consequences follow under sub-
section (2) of Section 22. Therefore, sub-section (2) of
Section 22 is a rule of prudence to ask for possession "in
an appropriate case". The appropriate case would not
include a suit for specific performance simpliciter but
may include a suit for partition or a suit when the decree
is to be executed against a transferee. Sub-section (2)
cannot be said to be a mandatory
provision as the power to claim relief at any stage of the
proceeding makes sub-section (2) directory. Sub-section
(2) is a matter of procedure to avoid multiplicity of
proceedings. The procedural laws are handmaid of
justice and cannot defeat the substantive rights.
Reference may be made to M/s. Ganesh Trading Co. v.
Moji Ram8 wherein it was held as under:
"2. Procedural law is intended to facilitate and not to
obstruct the course of substantive justice. Provisions
relating to pleadings in civil cases are meant to give to
each side intimation of the case of the other so that it
may be met, to enable courts to determine what is
really at issue between parties, and to prevent
deviations from the course which litigation on
particular causes of action must take."
Their Lordships further held in para 30 as under :
8 (1978) 2 SCC 91
"30. The defendant in terms of the agreement is
bound to handover possession of the land agreed to
be sold. The expression "at any stage of proceeding"
is wide enough to allow the plaintiffs to seek relief of
possession even at the appellate stage or in execution
even if such prayer was required to be claimed. This
Court in Babu Lal has explained the circumstances
where relief of possession may be necessary such as
in a suit for partition or in a case of separate
possession where the property conveyed is a joint
property. In the suit for specific performance, the
possession is inherent in such suit, therefore, we find
that the decree-holders are in fact entitled to
possession in pursuance of the sale deed executed in
their favor."
23. In view of the authoritative pronouncement by their Lordships of
the Supreme Court in Babu Lal (Supra) and further followed in
Manickam @ Thandapani (supra), it is quite vivid that in the suit
for specific performance of a contract for transfer of immovable
property, the possession is inherent in such decree and therefore,
the decree holder is entitled to possession pursuant to the sale
deed executed in his favour, though relief of possession was not
claimed and granted in the suit so filed by decree holder and
decree is silent, by virtue of Section 22 of the Specific Relief Act,
1963. As such, in the suit for specific performance of contract,
decree for possession is inherent and it is held so accordingly.
Conclusion :-
24. In conclusion to the aforesaid legal discussion, it is hereby held that
the trial Court has rightly held that since plaintiff had already paid
the total sale consideration amount to the defendant, he was
always ready and willing to perform his part of the contract and the
suit filed by the plaintiff is not barred by limitation. I do not find
any merit in this appeal warranting interference by this Court under
Section 96 of CPC.
25. Accordingly, this first appeal stands dismissed leaving the parties to
bear their own cost(s).
26. Decree be drawn-up accordingly. SD/
- S Sd/-
(Sanjay K. Agrawal) (Sanjay K. Agrawal)
JUDGE JUDGE
Harneet
