Sh. Rajesh Sehgal & Others vs Ch. Karan Singh & Others
2010 Latest Caselaw 5714 Del

 R-19
 *            IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                      RFA No. 67/1998
 %                                                15th December, 2010


 SH. RAJESH SEHGAL & OTHERS                    ...... Appellants
                      Through: Mr. Rajendra Dutt, Advocate.

              VERSUS

 CH. KARAN SINGH & OTHERS                            .... Respondents

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. By means of the present appeal under Section 96 of the

Code of Civil Procedure, 1908 (CPC) the plaintiffs-appellants seek to

impugn the judgment and decree dated 15.11.1997 whereby their suit

for specific performance was dismissed. Though the trial Court

framed as many as 12 issues, I do not think discussion on any of the

issues was necessary or relevant once the findings of issue No.3 was

against the appellants/plaintiffs and which issue pertains to whether

at all there existed a clear cut and definite agreement to sell with

respect to specific property/land. Issue No.3 reads as under:-

"3. Whether the agreement dated 30/1/80 is incapable of specific performance being vague? OPP"

2. The trial Court has decided this issue in para Nos.9 and 10

of the judgment which read as under:-

"9. The plaintiff‟s witness has admitted that the land in Khasra No.683 belonged to defendant No.1 and Khasra No.681 and 684 were holdings of Nathu and Khatta No.512 belonged to defendant No.1 and Khatta No.248 belonged to defendant No.2. It was also admitted that Khatta of defendants No.1 and 2 in the revenue record were separate. He also admitted that he was not knowing how much holding each of the defendant was holding at the time of execution of the agreement to sell. He also admitted that the defendant No.1 owned other agricultural land in addition to Khatta No.683 and similarly defendant No.2 also owned other agricultural land in addition to K.No.681 and 684. He admitted that the possession of the land mentioned in the agreement to sell has been with the defendant No.1 and 2. The agreement to sell which is Ext.PW1/2 does not mention as to which land belonged to which of the defendants and out of which Khatta Number how much has been sold. It simply mentions that first party i.e. defendants were exclusive owners of land measuring 4 bighas in K.No.683, 684 and 681 and out of this 11 bighas, they had agreed to sell 7 bighas to the plaintiff. From the evidence and from the documents placed on the record, proved and admitted by the parties, it is clear that the defendants were having mere agricultural land and their land was not a joint land. They were owners of separate portions of land. Agreement did not mention anything as to which of the defendants was to part with which of the land out of which of Khatta number. Naturally the agreement is vague in this respect. It is admitted by the witnesses of the plaintiff that the defendants were also owners of mere agricultural land. Therefore, the recital in the agreement with the defendants were absolutely owners in possession of 11 bighas of agricultural land is also partly correct and does not give true picture. Another important factor in this agreement is that in para No.2 of the agreement, it is mentioned that actual vacant physical

possession of the said land has been delivered to the plaintiff on the spot. Para No.2 follows para No.1 and the „said land‟ here means the land which has been agreed to be sold. Thus the agreement shows that the possession of 10 bighas of land has already been given to the plaintiffs whereas it is admitted by the plaintiff‟s witness that no such possession was given. The agreement further mentions that the plaintiff shall be entitled to sell "said land" in parts to any intending purchaser and shall execute agreement, power of attorney and sell the same on commission basis to third party. This clause in the agreement and clause 2 of the agreement if read in the context of the whole body of the agreement, will show that this agreement to sell was prepared by Man Mohan Lal colonizer, who was only a witness to befool the intending purchasers, to show them that he has been given possession of the land by the owners and he has get authority to sell the land and he was selling the land as agent of the owner and was receiving commission. It is admitted that no such possession was given. The land was not further sold by the plaintiffs and actually the defendant had entered into transaction of this land with subsequent purchaser. It seems that the plaintiffs had assured the defendant of lucurative price and paid some advance and entered into vague agreement to attract the customers but could not find any customer and kept silent upto 1985. Suddenly they realized the importance of the agreement and tried to use this agreement. I came to the conclusion that the agreement is totally vague as far as 7 bighas of land out of 11 bighas is concerned.

10. The other part of the agreement is about 3 bighas of land which was not even in possession of the defendants. They were not knowing the details of the land which will be allotted to them in consolidation. The total land to be allotted in consolidation was 3 bighas 11-1/2 biswas. Unless and until it was known to the defendants as to where this land was situated and what was the identity of the law, the agreement to sell entered into was vague."

A reading of the aforesaid findings and conclusions of the Court

below shows that the defendants were owners of area of land

mentioned in khasra Nos.683, 684 and 681 in village Mundaka, Delhi.

Both the prospective sellers/defendants agreed to sell parts of khasra

Nos.683, 684 and 681 totaling to 7 bighas, however, what were these

specific portions out of the aforesaid khasra numbers which were the

subject matter of the Agreement to Sell and which belong to the

defendant No.1 separately and which belong to the defendant No.2

separately were not mentioned in the agreement. Thus, there is no

demarcation as to which specific area of the khasra numbers which

were owned by the defendants/prospective sellers were the subject

matter of the agreement to sell. Not only that, the agreement to sell

was for a total of 10 bighas and not 7 bighas. So far as the 3 bighas

are concerned, what were these 3 bighas out of which khasra

numbers and which portion of those khasra numbers is admittedly not

mentioned in the agreement to sell because the said three bighas had

yet to be allotted to the defendants. Quite clearly, therefore, the trial

Court was justified in arriving at the finding that the agreement was

wholly vague and incapable of specific performance. It need not be

gain said that consensus ad idem is the very basis of an agreement

which becomes a contract because it is only an agreement

enforceable in law which is a contract. The precondition of a valid

Agreement is when there is a specific subject matter of the

agreement. In the present case, there is no specific subject matter of

the agreement because no specific lands from the stated khasra

numbers are mentioned in Agreement and in fact with respect to 3

bighas, what is that land of 3 bighas is not mentioned at all.

3. At this stage, it would be profitable to refer to Section 93

of the Indian Evidence Act, 1872 and which reads as under:-

"93. Exclusion of evidence to explain or amend ambiguous document- When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects."

4. Once, therefore, agreement to sell is vague, no amount of

evidence can be led to make the agreement lose its ambiguity or

defectiveness. The counsel for the appellant made a vain endevaour

to contend that the documents can be made more comprehensible,

however, in view of Section 93 of the Indian Evidence Act, 1872, it is

not possible to accede to this argument.

5. In view of the findings that there is no agreement to sell,

there is no need of any further discussion as to who is in breach of the

agreement, who had to perform the obligations, out of the obligations

which obligation had to be performed either by the appellants or by

the respondents and so on.

6. This Court, sitting as an appellate Court, cannot interfere

with the findings of the trial Court unless the findings are illegal and

perverse. I do not find any illegality or perversity in the findings and

conclusions of the trial Court with regard to issue No.3. The trial Court

was wholly justified in holding that the agreement was vague and

incapable of specific performance inasmuch as there is in fact no

agreement in the eyes of law for any specific property. Even

assuming two views were possible in the facts of the present case,

this Court in appeal is not entitled to interfere merely because another

view is possible.

7. In view of the above, I do not find any merit in the appeal

which is therefore dismissed, leaving the parties to bear their own

costs. Trial Court record be sent back.

C.M.No.292/1998 in RFA No.67/1998

Since the main appeal is dismissed, no orders are required

to be passed in this application which is accordingly disposed of.

DECEMBER 15, 2010                             VALMIKI J. MEHTA, J.
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