Delhi High Court
The Engineering And Industrial ... vs Saraswati Sharma And Ors. on 28 February, 2013
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 20.09.2012
% Judgment delivered on: 28.02.2013
+ RFA (OS) No. 23/1996
THE ENGINEERING AND INDUSTRIAL CORPN.
..... Appellant
Through: Mr. Madan Bhatia, Senior Advocate
along with Mr. Anup Kr. Sinha and
Mr. A.K. Pandey, Advocates.
versus
SARASWATI SHARMA AND ORS.
..... Respondents
Through: Mr. Sunil Magon, Advocate for the
respondents No.1 to 5.
Mr. R.L. Kohli, Advocate for the
respondents No.6 to 9.
+ RFA (OS) No. 26/1996
SMT. KRANTI DEVI & ORS.
..... Appellants
Through: Mr. R.L. Kohli, Advocate.
versus
SARASWATI SHARMA AND ORS.
..... Respondents
RFA (OS) Nos. 23/1996 & 26/1996 Page 1 of 51
Through: Mr. Sunil Magon, Advocate for the
respondents No.1 to 4.
Mr. Madan Bhatia, Senior Advocate
along with Mr. Anup Kr. Sinha and
Mr. A.K. Pandey, Advocates for the
respondent No.6.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. The present appeals are directed against the same judgment & decree
dated 23.05.1996 passed in Suit No. 632/1988.
2. The afore-said suit for specific performance, possession & other
incidental reliefs had been preferred by Late Smt. Saraswati Sharma w/o
Late Shri Bhagat Ram, and their children, namely- Sh. C.M. Sharma, Smt.
Om Rishi, Smt Shashi Kalia & Smt. Lalita Mathur, (Respondent Nos. 1 to 5
in both these appeals) against Defendant No.1 - Engineering & Industrial
Corporation (P) Ltd (for short EICPL), appellant in RFA (OS) No. 23/1996,
and Defendant Nos. 2 to 5 Smt. Kranti Devi, Shri Avinash Tyagi, Shri K.C.
Tyagi and Shri Munish Tyagi, appellants in RFA (OS) No. 26/1996.
3. By the impugned judgment, learned Single Judge has decreed the
aforesaid suit against EICPL, and against the other defendants, who have
been held to be trespassers in respect of the property in question.
Facts
4. It was the plaintiffs case that EICPL had acquired 146 bighas, 15.1/2
biswas of land in village Naraina, near Pusa Institute and developed it into a
Colony known as „Inderpuri Colony‟. The project was sponsored by EICPL
and was piloted by its sister concern „MOHANCO‟.
5. Late Sh. Bhagat Ram (husband of Late Smt. Saraswati Sharma and
father of Plaintiff Nos. 2 to 5) on 25.05.1951 booked a shop plot measuring
about 100 sq. yds. @ Rs.12.50 per sq. yd. bearing Shop No.A-5. Rs.25/-
was paid as earnest money to MOHANCO as per Receipt No.515 dated
25.05.1951 (Exhibit P-1). On 28.05.1951, a sum of Rs.287/8/- was paid on
account of the balance earnest money by Shri Bhagat Ram to MOHANCO
under Receipt No.641 (Exhibit P-2). In April 1952, the booking was
changed to shop plot No.R-12. It was again changed to Shop plot No.A-12,
which was about 110 sq. yds. (hereinafter referred to as "the suit property").
The rate per square yard remained the same. Shri Bhagat Ram in all had paid
Rs.1,375/- by May 1952.
6. EICPL vide letter dated 14.03.1961 (Exhibit P-7) acknowledged the
receipt of Rs.1,375/- towards full payment of the suit property and requested
Shri Bhagat Ram to fill in and sign the memo form enclosed with the said
letter and to sign on the standard form of the conveyance deed and also to
pay a sum of Rs. 131/- on account of cost of stamp paper, registration
charges etc. to enable EICPL to execute and register the conveyance deed of
the plot of land in the name of Shri Bhagat Ram. The plaintiffs claimed that
Shri Bhagat Ram returned the said memo form, duly filled in and signed,
and also signed the standard form of conveyance deed and also paid
Rs.131/- to EICPL.
7. The plaintiffs claimed that in part performance of the agreement,
possession of the suit property was also given to Shri Bhagat Ram, who
enclosed it by a brick boundary wall over which angle irons with barbed
wires were later fixed. Thereafter, a notification under Section 4 of the Land
Acquisition Act, 1894 was issued on 21.03.1964 by which the Government
proposed to acquire the land in Inderpuri Colony. Consequently, EICPL
postponed the completion of the sale deed. It was claimed that after the
death of Shri Bhagat Ram on 25.05.1980, Plaintiff No. 2, Shri C.M Sharma
contacted EICPL who agreed to execute the sale deed in favour of the
plaintiffs but avoided the actual execution of the same, on some pretext or
the other. In December 1980, Shri C.M. Sharma contacted Shri P.N Dutt,
Director of EICPL, who agreed to execute the sale deed, but again avoided
the execution of the same.
8. In or about the first week of March 1984 the Plaintiffs received a
letter dated 28.02.1984 (Exh. PW-4/1) from one Shri A.K Vaid, a close
relative of the Director of EICPL, requesting Shri C.M. Sharma to meet him
in connection with the suit property. Shri C.M. Sharma met Shri A.K Vaid
and Shri P.N Dutt, and was informed by them that, in or about December
1983, defendant Nos. 2 to 5 in the suit & one Late Shri Amrish Tyagi had
trespassed into the suit property and that they were claiming to be the
owners of the same. Upon assurance given by EICPL that they had already
made a complaint to the police, the plaintiffs did not initiate legal
proceedings against the trespassers.
9. Later on, the plaintiffs came to know that a suit, being Suit
No.1546/84, had been filed by EICPL in this Court against the trespassers
(to which the plaintiffs had not been made a party) and that the same was
coming up for hearing on 30.01.1987. This suit had been preferred on the
plea that Shri Bhagat Ram failed and neglected to complete the sale deed in
his favour and that the bargain stood revoked and cancelled and the plot was
lying vacant and was in possession of EICPL till before December 1983.
10. The plaintiffs claimed to have learnt of the mal intentions of EICPL to
back out of the transaction with Late Shri Bhagat Ram from this stand of
theirs, and in February 1987, the plaintiffs filed an application under Order 1
Rule 10 of the Code of Civil Procedure, 1908 (CPC for short), i.e. I.A.
1352/87 in the said suit. The same, however, came to be dismissed on
11.09.1987.
11. In this background, the plaintiffs filed the present suit against EICPL
and defendant nos. 2 to 5. The plaintiffs claimed that all the defendants
were bound to deliver possession of the suit property to them. The plaintiffs
also claimed mesne profits/damages for use and occupation of the suit
property @ 1,500/- per mensem. The plaintiffs also claimed Rs.54,000/- on
account of mesne profits/damages from 01.03.1985 to 29.02.1988 @ Rs.
1,500/- per mensem and future mesne profits/damages from 01.03.1988 till
actual physical & vacant possession of the suit property @ Rs. 1,500/- per
mensem.
12. EICPL contested the suit on the ground that the same was barred by
limitation; the application filed by the plaintiffs under Order 1 Rule 10 CPC
had been dismissed by this Court; and, thereafter, when on 01.12.1987
EICPL filed an application under Order 40 Rule 1 CPC (bearing I.A. No.
8951/84 in Suit No. 1546/84) for the appointment of a receiver of the suit
property, which was opposed to by defendants No.2 to 5/(alleged
trespassers), the plaintiffs filed the present suit. It was claimed that the
plaintiffs had been set up by the alleged trespassers and that the present suit
was filed in collusion with them.
13. According to EICPL, Late Shri Bhagat Ram did not comply with its
letter dated 14.03.1961 (Exhibit P-7) and did not pay the sum of Rs.131/-.
The plaintiffs stand of delivery of possession of the suit property to Shri
Bhagat Ram, as well as the issuance of any communication dated
28.02.1984 (Exh. PW-4/1) at the instance of Shri P.N. Dutt was also
disputed. EICPL claimed that by letter dated 17.05.1965 (Exhibit D1-W1/3)
Shri Bhagat Ram was informed that the agreement stood revoked and that
the sum of Rs.1,375/- would be refunded on Shri Bhagat Ram delivering the
receipts issued by EICPL. It was claimed that no reply was sent by Shri
Bhagat Ram and, as such, the said revocation had been accepted by him. It
was further stated that EICPL had instituted Suit No.1546/84 in their own
right and the plaintiffs could not claim or derive any benefit from the same.
Defendant nos.2 to 5 in their written statement, inter alia, stated that one Sh.
Vijay Singh S/o Sh. Devi Sahai was in possession of the suit property for the
last 16-17 years. He sold the suit property to Smt. Kranti Devi, Defendant
No.5 vide an agreement to sell dated 16.10.1982. It was claimed that Sh.
Vijay Singh has handed over physical vacant possession of the suit property
to Smt. Kranti Devi at the time of execution of agreement to sell. Defendant
No.4, being the son of Smt. Kranti Devi was claimed to be in possession of
the suit property. It was claimed that the suit had been filed by the plaintiffs
in collusion with Defendant No.1 EICPL. It was also averred that Late Sh.
Bhagat Ram was never in possession, and there was no occasion to hand
over possession of the suilt property to him. It was also denied that Late Sh.
Bhagat Ram had enclosed the suit plot by boundary wall with barbed wires.
The said defendant also denied that Late Sh. Bhagat Ram continued in
possession of the suit plot till he died in May 1980 and thereafter plaintiffs
came into possession of the suit plot as owners thereof. They also continued
that they were in lawful possession of the suit property that they are liable to
pay mesne profits to the plaintiffs.
14. Issues were framed in the suit on 20.01.1989, which read as follows:
1. Whether the suit is not properly valued for the purposes of court-
fee and jurisdiction?
2. Whether the suit is bad for mis-joinder and non-joinder of parties?
3. Whether the claim in suit in within limitation?
4. Whether the claim for possession and/or mense profits against
defendants no. 2 to 5 is not maintainable?
5. If issue No. 4 is proved in favour of the plaintiffs, at what rate the
plaintiffs are entitled to recover mense profits and for what period
and from which of the defendants?
6. Whether the plaintiffs are entitled to relief of specific
performance?
7. Are plaintiffs entitled to relief of possession?
8. Whether the plaintiffs or their predecessors in-interest was ready
and willing to perform his part of contract?
9. Whether Mr. Bhagat Ram deceased was put in possession of the
property in part performance of the agreement to sell?
10.Whether defendants no. 2 to 5 are in possession of the property in
their own rights?
11.Are the plaintiffs entitled to relief of perpetual injunction?
12.Whether there are equitable grounds not to order specific
performance in favour of the plaintiffs?
13. Relief?
15. The plaintiffs examined the following five witnesses:
i) Shri Shanta Prasad Verma, s/o Mr. Vir Bahadur Sharma,
L.D.C., Land and Building Department, Delhi Administration
(PW1).
ii) Shri Kashmiri Lal Chugh, s/o Shri B.R. Chugh, Assistant
Surveyor of Works, Competent Authority Branch, Land and
Building Department, Delhi Administration (PW2).
iii) Shri Surjit Lal Gandhi, s/o Shri Parma Nand, Asstistant in the
Office of Registrar of Companies (PW3).
iv) Shri Chandra Mohan Sharma/plaintiff No.2 (PW4).
v) Shri M.C. Sharma, s/o Shri G.L. Sharma, Retd. Govt. Servant,
New Delhi. (PW5)
16. EICPL examined one witness i.e. Shri P.N. Dutt, Director of EICPL
(D1W1). Defendant nos.2 to 5 examined two witnesses, i.e. (i) Shri Vijay
Singh s/o Shri Devi Sahai (D2W1), and (ii) Smt. Kranti Devi/Appellant
No.1 in RFA (OS) 26/1996 (D2W2).
17. The learned Single Judge upon appreciation of the evidence led before
him and after considering the submissions came to the conclusion that the
Defendants No.2 to 5/alleged trespassers had absolutely no right, title or
interest in the suit property and that EICPL had failed to execute the sale
deed and was now only trying to take advantage of its own wrongs. The
plaintiffs, on the other hand, had taken all the steps that they could have to
complete the transaction. Accordingly, the plaintiffs were held entitled to
the relief of specific performance and consequential reliefs against the
EICPL and to possession of the suit property from all the defendants
alongwith mesne profits in the sum of Rs.2,02,500/- for the period of
01.03.1985 to 31.05.1996 and thereafter Rs 5,000/- per mesne from
01.06.1996 till vacant possession is delivered to the Plaintiffs.
Submissions of Appellant in RFA (OS) 23/1996
18. Mr. Madan Bhatia, learned senior counsel for the appellant EICPL,
has primarily made three submissions. His first submission is that the
impugned judgment is not a judgment within the meaning of Order 20 Rule
4(2) and Rule 5 of the CPC. He submits that the impugned judgment does
not contain the reasons for the decision given on various issues. It is
submitted that the court was obliged to state its finding or decision with
reasons therefor, upon each issue, which has not been done. Mr. Bhatia
submits that the suit proceedings were also vitiated on the ground that the
appellants were not afforded a reasonable opportunity to cross examine the
plaintiffs witnesses.
19. By placing reliance on the judgment of the Privy Council in Ma.
Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249, the judgments of the
High Court of Madras in R. MuniswaniGoundar (died) and Anr.Vs. B.M.
Shamanna Gouda and Ors., AIR 1950 Mad 820 and Lakshminarayana
Reddiar vs. Singaravelu Naicker and Anr. AIR 1963 Madras 24, the
judgment of the High Court of Mysore Hutchegowda vs. H.M Basaviah,
AIR 1954 Mysore 29, and the judgment of the High Court of Calcutta in
ManickLal Seal and Anr. v. K.P Chowdhury, AIR 1976 Calcutta 115, the
contention of Mr. Bhatia is that the suit is hopelessly time barred. It is
submitted that Article 54 of the Limitation Act, 1963 provides limitation of
3 years for the filing of a suit for specific performance of a contract. The
period shall begin to run from the date fixed for the performance or, where
no such date is fixed, when the plaintiff has notice that performance is
refused.
20. Mr. Bhatia submits by reference to Exhibit P-7 dated 14.03.1961 that
EICPL had fixed the date for performance of the agreement soon after
30.03.1961, by which late Shri Bhagat Ram was required to return the
documents duly attested along with a sum of Rs. 131/-towards stamp paper,
corporation tax, registration fee etc. The plaint itself states that one of the
terms of the contract was that "The sale would be registered on full
payments in the name of the purchaser or his nominee if so desired by the
purchaser. All the expenses on stamp paper and registration will be borne
by the purchaser."
21. It is argued that the aforesaid term shows that the time for execution
and registration of the sale deed arrived when the full payment was made. In
Para 6 of the plaint it is the case of the plaintiffs themselves that the entire
payment of Rs. 1375/- was made by Bhagat Ram (deceased) on 6.5.1952.
The sale, therefore, had to be completed soon thereafter. Since that was not
done, the cause of action arose within a reasonable period thereafter and the
suit should have been filed within three years of the cause of action arising.
22. Placing reliance upon the judgment of the Supreme Court in Shriman
Shamrao Suryavanshi & Anr. v. Pralhad Bhairoba Suryavanshi (dead) by
LRs. & Ors, AIR 2002 SC 960, it is submitted that since the plaintiffs did not
take any steps to fulfill the necessary conditions, it did not have the right to
claim possession of the suit property, much less stake a title to the same.
23. Mr. Bhatia submits that Paras 15 & 16 of the plaint themselves
constitute an admission that performance was refused by EICPL.
Consequently, the cause of action arose upon such refusal to perform the
agreement. These paragraphs read as under:
"15. That, After the death of Shri Bhagat Ram Sharma, the
plaintiff no. 2 had contacted in December 1980 Shri P.N Dutt, a
director of Defendant no. 1 and asked him to execute the
conveyance deed of the plot in dispute in favour of the plaintiffs
on account of their being heirs and legal representatives of
Bhagat Ram Sharma. Mr. Dutt however, made an illegal and
exorbitant demand of money from the plaintiffs for executing
the Conveyance Deed. But since the plaintiffs were not in a
position to meet the said demand, the execution and registration
of the sale deed was deliberately avoided by the Defendant no.
1, with the object of extracting money from the plaintiffs.
16. That thereafter Plaintiff No.2 met Mr. P.N. Datt, a number
of time and explained to him the financial position of the
Plaintiffs and requested him to execute the necessary Sale Deed
in favour of the Plaintiffs. Shri P.N. Datt, though assuring the
Plaintiff No.2 that the necessary Sale Deed shall be executed,
has been avoiding the execution of the Sale Deed with the
object of extracting more money from the Plaintiffs."
24. Mr. Bhatia further relies on the statement of PW4, wherein he stated
"When I contacted the appellant/Defendant no. 1, after the demise of my
father, I was told that some additional money was demanded from them, in
connection with the execution of the sale deed. My father died on
25.05.1980." Mr. Bhatia submits that the said statement shows that notice of
refusal to perform the contract stood given to the plaintiffs in 1980 and the
Respondents have no basis to claim that refusal by the appellant was in
1988.
25. Mr. Bhatia submits that a false story has been put up by the plaintiff
in Para 8 of the plaint by stating that "In part performance of the said
agreement, possession of the said shop plots bearing No. A-12, Inderpuri,
New Delhi was delivered by Defendant no. 1 to Shri Bhagat Ram, who
enclosed it by a brick boundary wall, over which angle irons with barbed
wires were fixed later." As per the learned counsel this story is frivolous, as
the Agreement of Sale relied upon by the respondents/plaintiffs in their
plaint provides that "Clear and clean titles to the land with its physical
possession would be passed to the purchaser at the time of its registration."
26. Mr. Bhatia submits that the Director of the appellant company, Shri
P.N. Dutt (D1W1) categorically stated that the possession of the plot was
never handed over to Shri Bhagat Ram. Learned senior counsel in support of
his contention, relies upon communications dated 02.08.1961, 02.11.1963
and 17.05.1965, marked as Exhibits D1W1/1, D1W1/2 and DIWI/3, sent by
the appellant EICPL to late Shri Bhagat Ram, wherein he was put to notice
that unless he complied with the conditions mentioned in the appellants
letter dated 14.03.1961 (Exhibit. P-7), the bargain would lapse.
27. Mr. Bhatia, lastly submits that having refused to perform their part of
the contract, the plaintiffs cannot now claim the relief of specific
performance. It is submitted that the relief of specific performance is a
discretionary and equitable relief, which cannot be granted in case of delay
and latches. Mr. Bhatia submits that the plaintiffs have not approached the
court with clean hands, which is a pre-requisite for maintaining a suit of
specific performance of an agreement to sell. Consequently, they are not
entitled to any relief. It is submitted that Shri Bhagat Ram neglected to have
the contract of sale executed and completed for a period of 26 years during
his life time. Even his heirs did not take any steps to have the contract of
sale completed for a period of 8 years after his death. His heirs have sought
to enforce an agreement of sale 34 years after the agreement was executed.
The grant of relief to the respondents/plaintiffs is highly inequitable and
contrary to the established principles of law governing the grant of specific
relief, as prescribed by Section 20 of the Specific Relief Act. Reference in
this regard is made to judgments of the Supreme Court in Lourdu Mari
David and ors. vs. Louis Chinnaya Arogiaswamy and ors. AIR 1996 SC
2814, and K.S. Vidyanadam & Ors. v. Vairavan, AIR 1997 SC 1751, and
the judgments of the High Courts in Puroshottam Sava .v. Kunverjee Devji,
AIR 1954 Saurashtra 104, Narinjan and ors. v. Muhammad Yunus, AIR
1932 Lahore 265, and the judgment of the Privy Council in Narain Das v.
Abhinash Chander and Anr., AIR 1922 PC 34.
28. Mr. Bhatia argues that from 1952 to 1988 there was a sea change of
circumstances in Delhi-its population, its development, and the market value
of the land have undergone an astronomical change. When these parameters
have changed so drastically, keeping in view the aforementioned
acquiescence & delay, the question of granting specific performance of an
Agreement of Sale does not arise at all.
Submissions of Appellants in RFA (OS) No. 26/1996
29. Mr. Kohli, learned counsel for the appellants in RFA (OS) 26/96,
submits that EICPL had been indulging in booking of plots on paper plans
without reference to any proper colonization, and without caring as to which
land had/had not been acquired by them. The plans were altered a number of
times. The colony was unapproved and random bookings were done being
unmindful as to which plot falls on which khasra Nos. and who was owning
and occupying the same. It is contended that the carelessness of EICPL is
very much evident from the fact that, at least, two times there was change in
the number of plot booked by Shri Bhagat Ram.
30. Citing reference to Para 20 of the plaint, wherein it is averred that the
appellants had trespassed into the suit property in or about December 1983,
it is submitted that the plaintiffs have twisted the factual position. It is
submitted that the appellants had taken possession of the suit property from
Shri Vijay Singh - the original owner thereof, vide written agreement dated
16.10.1982, proved on record as Exhibit D2 W2/1.
31. Mr. Kohli asserts that Shri Bhagat Ram, under any circumstances,
could not have taken the possession of the suit plot as it is clear from the
terms of the agreement that the possession and title had to be transferred by
the company EICPL simultaneous to the registration of the sale and, as
nothing happened after June 1952, there was no occasion for Shri Bhagat
Ram to have ever entered into the possession of the suit plot.
32. Mr. Kohli submits that the plaintiffs were never in possession of the
suit property because, had they been in possession of the same, they would
have known as to when they got possession from EICPL; when were they
dispossessed, and; by whom. No date of alleged dispossession is disclosed
by them.
33. Placing reliance upon the judgments of Probodh Kumar Das and
ors. vs. Dantmara Tea co. Ltd. and ors., AIR 1940 PC 1, Babu Lal VS.
Hazari Lal Kishori Lal and Ors, AIR 1982 SC 818, and Delhi Motor
Company and Ors. VS. U.A. Basrurkar and Ors., AIR 1968 SC 794, Mr.
Kohli submits that assuming, while not conceding, that the plaintiffs were in
possession of the suit property, the same, in the absence of a registered sale
deed in their favour, did not give them any right or title over the suit
property whatsoever.
34. It is submitted that the suit instituted by respondent nos. 1 to 5 is not
maintainable in view of the fact that the previous suit instituted by EICPL
against the appellants, wherein the first issue was whether EICPL was the
owner of the suit property, and the second issue was whether the appellants
had trespassed the suit property and, as such, were liable to be disposed, was
dismissed as withdrawn. It is submitted that since the suit stood abandoned
in terms of Order XXIII Rule 1, CPC - neither EICPL nor the plaintiffs,
who claimed under them, could maintain another suit.
35. Referring to the decision of the Bombay High Court in Purshottam
Vishindas Raheja vs. Life Insurance Corporation of India and Ors., AIR
1982 Bom 523, Mr. Kohli submits that the plaintiffs at best were entitled to
refund of their money with interest from EICPL and not to any relief of
specific performance and much less of possession from the appellants. It is
submitted that the award of damages/mense profits, keeping in view the fact
that the plaintiffs had acquired no right, title or interest in the property, is
erroneous.
36. Apart from the aforesaid, Mr. Kohli impugns the judgment on the
ground that the suit preferred by respondent nos. 1 to 5 is barred by
limitation and that the proceedings were vitiated since the the appellants
were not allowed to cross-examine the witnesses of the
Respondents/plaintiffs.
Submissions of Respondent Nos. 1 to 5/plaintiffs
37. Mr. Mago, learned counsel for respondent nos. 1 to 5, submits that the
appellant EICPL on 14.03.1961 vide Exhibit- P7, acknowledged the receipt
of the entire sale consideration of the suit property and also asked the buyer
Shri Bhagat Ram to pay a sum of Rs. 131/-towards the cost of stamp paper,
registration charges etc. and also requested Shri Bhagat Ram to fill in the
memo signed by him and attested by a Gazetted Officer and to send it back
to the appellant. Accordingly, Shri Bhagat Ram filled in the said memo and
got it attested by Shri M.C Sharma, PW-5. In this regard, Mr. Mago places
reliance on the evidence of PW-5, wherein he states: "I know Bhagat Ram.
He is my neighbour. I was a gazetted officer. I attested his signature on a
document related to purchase of a plot in Inderpuri. About a week after I
attested the document, I had asked Bhagat Ram whether the document had
served its purpose. He told me that it had."
38. Mr. Mago further submits that late Shri Bhagat Ram tendered
Rs.131/- to EICPL, who thereafter gave possession of the suit property to
Shri Bhagat Ram in part performance, pending the execution of the
conveyance deed. It is submitted that Shri Bhagat Ram upon getting
possession of the suit property, got it enclosed by a brick boundary wall over
which angle irons with barbed wires were later fixed.
39. It is submitted that EICPL - in view of notification dated 21.03.1964
under Section 4 of the Land Acquisition Act proposing to acquire the land in
Inderpuri colony which included the suit property, got the objections under
section 5-A of the Land Acquisition Act, marked as Exhibit PW1/A, to be
filled by each land holders including Shri Bhagat Ram - which included his
name, parentage, address, number of plot, year of booking etc. It is
submitted that on 01.05.1964, Shri Bhagat Ram filed his objections on the
printed form in the Court of Land Acquisition Collector through EICPL
stating that he was the owner and is in possession of the said plot. Mr.
Magon also places reliance on: the affidavit of Prem Narain Dutt dated
23.02.1982, Exhibit P2/2, stating that the suit property has been sold to Shri
Bhagat Ram; Exhibit P-2/3, which is an application of exemption filed by
the appellant EICPL, addressed to the Lieutenant Governor, Delhi, stating
that even those buyers who had not made full payments were handed over
the possession even though the sale deeds/transfers had not been executed
and such plots were deemed to be the holdings of the purchasers for all
intents and purposes; Exhibit- PW-2/1, which is an affidavit of Prem Narain
Dutt, Joint Manager Director of EICPL, filed in the land acquisition
proceedings before the competent authority, giving details of the vacant
plots which excludes the suit property, and; Exhibit- P-4/1, being letter
dated 28.02.1984 written by A.K. Vaid - stated to be a close relative of the
P.N. Dutt and requesting plaintiff No. 2 to meet him in connection with the
suit property, where after he was informed that the defendant Nos. 2 to 5
(appellants in RFA (OS) No. 26/1996) had trespassed the suit property and
against whom EICPL had lodged a police complaint.
40. Mr. Mago submits that the contention of the appellants that the suit
was barred by limitation is without any merit. He submits that it was only
when the plaintiffs learnt that EICPL, in its suit preferred against the
appellants in RFA (OS) No. 26/1996 took the plea that Shri Bhagat Ram
failed and neglected to complete the sale deed in his favour, and that bargain
stood revoked and cancelled and the plot was lying vacant and was in
possession of EICPL till before December 1983 - that the plaintiffs came to
learn of the mal intentions of EICPL to back out of the transaction with Late
Shri Bhagat Ram and, thereafter, they filed the present suit. It is submitted
that contention of the appellants that Shri Bhagat Ram and, thereafter, the
plaintiffs had refused to perform their part of the contract and that they did
not take any steps to fulfill the necessary conditions is in the teeth of the
records of the case. It is submitted that the complete amount, including
Rs.131/- towards the cost of stamp paper, registration charges etc. already
stood paid, demonstrating that the plaintiffs were always ready & willing to
perform their part of the agreement and had done everything required of
them to get the sale transaction completed. Since the refusal on the part of
EICPL could be inferred for the first time only when the plaintiff learnt of
the stand of EICPL in their Suit No.1546/84, the cause of action arose for
the first time at that stage in favour of the plaintiffs. Therefore, the present
suit preferred in 1988, was perfectly within the period of limitation.
Reference in this regard is made to the judgments of the Supreme Court in
Devalsab (Dead) by LR's v. Ibrahimsab F. Karajagi & Anr., AIR 2005 SC
1940, S. Brahmanand & Ors. v. K.R. Muthogopal(D) & Ors., AIR 2006 SC
40, Gunwantibhai Mulchand Shah and ors. Vs. Anton Elis Farel and Ors.,
AIR 2006 SC 1556, Ahmmadsahab Abdul Milla (dead) by proposed Lrs. v.
Bibijan & Ors., AIR 2009 SC 2193, and the judgment of this Court in Shri
K. Narendra v. Riviera Apartments (P) Ltd., DRJ 1993 (25) 72.
Discussion
41. After hearing the rival submissions and having perused the record, we
are of the view that there is no merit in these appeals qua the grant of the
relief of specific performance and that the suit of the plaintiffs has rightly
been decreed by the learned Single Judge in that respect. However, We are
inclined to modify the decree in relation to the damages awarded against
defendants No.2 to 5 from 01.06.1996 onwards, i.e., for the post decretal
period as indicated hereinbelow.
42. A perusal of the impugned judgment shows that the Ld. Single Judge
has properly appreciated the facts/evidence, applied his mind and has
decided the case considering the material on record. The judgment is well
structured. The expression "judgment" is defined to mean the statement
given by the judge on the grounds of a decree or an order (see section 2(9)
CPC). Order 20 Rule 2 states that where a written judgment is to be
pronounced, it shall be sufficient if the finding of the Court on each issue
and the final order passed in the case are read out, and it shall not be
necessary for the Court to read out the whole judgment. Order XX Rule 5
states that in suits in which issues have been framed, the Court shall state its
finding or decision, with reasons therefor, upon each separate issue, unless
the finding upon any one or more of the issue is sufficient for decision of the
suit.
43. In our view, what Rule 5 of Order XX provides is that, generally, the
Court should return its finding with reasons on all the issues arising in the
suit. However, where the finding upon one or more of the issues is
sufficient for the decision of the suit, the other issues need not be delivered.
However, there is no requirement that the judge while deciding the suit and
pronouncing the judgment on all the issues, should discuss the evidence, or
the submissions, and; the precedents issue wise. In our view, it would be
sufficient if the judgment contains the reasoning or the grounds on which the
judge returns his finding on the issues, and it is not necessary that the said
discussion, reasoning or grounds are contained in compartments created by
issues. It is possible that, in a given case, the learned Judge may consider it
appropriate to reflect his reasons - on the basis of the pleadings; the
evidence, and; the precedents for his finding or decision on various issues
arising in the suit, in one part of the judgment, and then may correlate his
decision on the separate issues with reasons given by him.
44. A perusal of the impugned judgment shows that the learned Single
Judge sets out in the first paragraph the introduction of the suit. Thereafter,
he proceeds to set out the case of the plaintiffs and reliefs sought, in paras 2
and 3. The case of the defendants pleaded in the written statement is set out
in paras 4 to 6. Para 7 sets out the issues struck by the Court on 20.01.1989.
In paras 8 to 10, the statements of the plaintiffs witness are set out. From
para 11 to para 15, the learned Single Judge sets out the evidence led by the
defendants. In para 16, the learned Single Judge sets out his observation of
the demeanor of D2W1 and on the basis of his evidence, concludes that he
had no hesitation in coming to the conclusion that the said witness was
uttering falsehood. In paras 17 and 18, he discusses evidence of D2W2 and
in paras 19 and 20, he gives his conclusion that the said evidence is not
trustworthy as the said witness was not able to answer the questions. He
observes that defendant nos.2 to 5 have no interest in the property and they
are rank trespassers. The justification of this finding of the learned Single
Judge is contained in para 21 and 24. The aspect of grant of relief of
specific performance is considered by the learned Single Judge in paras 22
and 23. Thereafter, the issue wise findings are recorded by the learned
Single Judge from paras 27 to 39. On the aspect of limitation, while
returning the finding that the suit of the plaintiffs is not barred by limitation,
in para 30 the learned Single Judge discusses the said issue. Since defendant
nos.2 to 5 are held to be rank trespassers, issue no.4 in relation to the claim
of compensation and mesne profits against defendant nos.2 to 5 is held to be
maintainable. Issue no.5 in relation to quantification of mesne profits is
dealt with in para 26 and 32. On the basis of the evidence of the parties and
the discussion in earlier paragraphs, the Court holds issue no.6 in favour of
the plaintiffs i.e. that the plaintiffs are entitled to the relief of specific
performance. On issue no.7, the learned Single Judge holds that since he
has already held that the plaintiffs are entitled to take possession from
defendant nos.2 to 5 (as defendant no.1 confessed that it is not in
possession), the said issue is also decided in favour of the plaintiffs. The
issue with regard to the readiness and willingness on the part of Sh. Bhagat
Ram/plaintiffs is decided in para 35 by observing that the plaintiffs and late
Sh. Bhagat Ram were all ready and willing since they had paid the entire
sale consideration including the expenses. He observes that it was not open
to the defendant no.1 to take a plea that the plaintiffs or late Sh. Bhagat Ram
were not ready and willing. On issue no.9, once again, the learned Single
Judge holds that Sh. Bhagat Ram was put in possession of the property in
part performance of the agreement to sell. Issue no.10 is decided in para 37.
The learned Single Judge observes that on the basis of the analysis of
evidence, he had concluded that defendant nos.2 to 5 were rank trespassers.
On that basis, the said issue is answered against defendant nos.2 to 5 and in
favour of the plaintiffs. Issue no.11 pertained to the relief of perpetual
injunction prayed for by the plaintiffs against the defendants - to restrain
them from disposing of, transferring, alienating etc. the suit property. He
holds that since the decree is being passed, the said issue does not arise for
consideration. Obviously, once the suit for specific performance is decreed,
the defendants cannot transfer, alienate or part with possession of the suit
property. Issue no.12 raised by the defendants to contend that the plaintiffs
are not entitled to relief on equitable grounds is decided in favour of the
plaintiffs by giving the reasoning that the defendants had not been able to
advance any justification in that respect, and that the defendant no.1 did not
even cross examine PW-4. He holds that there is no equitable ground to
refuse the relief to the plaintiff and that, on the contrary, it would be
inequitable if the said relief is refused to the plaintiff. Finally, in para 40,
the relief granted in the suit has been set out.
45. From the above, it would be seen that for the decision on every issue,
the learned Single Judge has given his reasons. It cannot be said that any of
the issue has been decided by the learned Single Judge in ignorance of the
pleadings and the evidence brought on record. The reasons for the decision
of the learned Single Judge on each issue are clearly brought out in the
judgment. There is a clear correlation between the decision on each issue
and the reasons therefor. The reasons may not have been given issue wise in
respect of each issue, but they are there. Consequently, the first submission
of Mr. Bhatia that the judgment does not meet the requirements of section
2(9) or Order 20 Rules 2 and 5 CPC is rejected.
46. The submission of Mr. Bhatia that late Sh.Bhagat Ram did not
comply with the demands of EICPL contained in their letters of 14.03.1961,
02.08.1961, 02.11.1961 and that the bargain stood cancelled by the letter
dated 17.05.1965 were rightly not accepted by the learned Single Judge,
since none of these communications were proved by defendant no.1 in its
evidence. Exh. P-7, i.e., the letter dated 14.03.1991 issued by the appellant
EICPL shows that, admittedly, the entire sale consideration of Rs.1375/- had
been received by them. So far as the charges of Rs.131/- are concerned, the
same were required to be deposited along with the form enclosed with the
said communication Ex. P-7, duly attested by a gazetted officer. The
plaintiffs had produced PW-5 Sh. M.C. Sharma, a neighbour of late Sh.
Bhagat Ram who stated that he had attested the said document in March
1961 and later on Sh. Bhagat Ram had informed him that the said attested
document had served its purpose - meaning thereby that the attested
document had been submitted with the appellant EICPL. The question of
the said form being submitted, and being accepted by the appellant EICPL,
would arise only if it were accompanied by payment of Rs.131/- towards
charges. Moreover, the appellant EICPL could not prove on record any
document to show that it ever claimed that late Sh. Bhagat Ram had failed to
pay the amount of Rs.131/- towards expenses. On the contrary, the evidence
brought on record by the plaintiffs conclusively established that late Shri
Bhagat Ram had been placed in possession of the plot by the EICPL - which
could happen only after they had realized the entire sale consideration along
with the charges of Rs.131/-. It is also conclusively established that EICPL
recognized the plaintiffs as well as late Sh. Bhagat Ram as the owners of the
suit property.
47. This is evident from, firstly, Exh. PW1/A - being the objections filed
under section 5A of the Land Acquisition Act in the name of late Sh. Bhagat
Ram describing him as "the owner in possession" of the suit property
having purchased the same from EICPL. Pertinently, these objections were
submitted as per the form prepared by EICPL. The admissions made in this
communication would, therefore, certainly bind EICPL.
48. Secondly, Sh. Prem Narain Dutt, the Director of EICPL submitted his
affidavit with the Governmental authorities dated 23.02.1982 (Exh. PW2/2)
admitting that the suit plot is vacant and "sold to Sh. Bhagat Ram Sharma
by an agreement to sell/receipt". This affidavit was prepared to make up
the deficiency in the returns already filed by EICPL under section 6 of the
Urban Lands (Ceiling and Regulations) Act („ULCR Act‟).
49. Thirdly, the appellant EICPL sent a communication on 31.08.1978
(Exh. PW-2/3) to the Lt. Governor - the exempting authority under section
20 of the ULCR Act, acknowledging that there are people who have made
full payment but, in respect of whom sale deeds/transfers have not taken
place, though some of them are in possession of the plots "and it shall be
deemed to be their holdings". The aforesaid document fortifies the stand of
the plaintiffs that upon payment of the entire consideration, they were placed
in possession of the suit plot.
50. Fourthly, Sh. Prem Narain Dutt made a solemn declaration in his
affidavit dated 22.05.1979 (Exh. PW-1/2) before the Land and Building
Department with regard to the plots owned by EICPL in Delhi. While
making the said declaration, EICPL stated that it "owns no other plot or
building in any other place in India where the provisions of the Urban Land
Ceiling and Regulations Act are applicable or otherwise". It is noteworthy
that the suit plot bearing No.A-12 does not form part of the list of
plots/properties declared to be owned by EICPL in this declaration of
22.05.1979. Therefore, EICPL did not even consider the suit plot as a
property belonging to them, obviously on account of the fact that they had
pocketed the entire sale consideration and expenses in respect of the said
plot from late Sh. Bhagat Ram and has also parted with possession of the
same to late Sh. Bhagat Ram.
51. The falsity of the defence set up by EICPL that they terminated the
agreement by letter dated 17.05.1965 (Exhibit D1W1/3) on account of the
failure of Late Sh. Bhagat Ram to complete the transaction is established -
not only from the aforesaid documents, but also from the fact that Sh.A.K.
Vaid, a close relative of Sh. P.N. Dutt - the Director of EICPL, sent a
communication as late on 28.02.1984 (Exhibit P-4/1) asking Sh.C.M.
Sharma, son of Late Sh. Bhagat Ram and respondent No.2 to meet him at
the earliest "in connection with your property at Inderpuri, New Delhi"
(emphasis supplied). If the transaction stood terminated, as claimed by
EICPL in the year 1965, there was no occasion for EICPL to repeatedly file
documents before the Urban Land Ceiling Authorities and the Land &
Building Department again and again acknowledging Late Sh. Bhagat Ram
as the virtual owner of the suit plot and also acknowledging that he had
made the entire payment and taken possession of the plot. There was also
no occasion for Sh.A.K. Vaid to send the communication dated 28.02.1984,
wherein the suit plot was referred to as "your property at Inderpuri, New
Delhi".
52. From the aforesaid, it is clear that, at least, till the said communication
(Exhibit P4-1) was issued on 28.02.1984 the plaintiffs were acknowledged
as the owners of the suit plot in pursuance of the agreement entered into
between EICPL and Late Sh. Bhagat Ram. Consequently, in our view, the
purported cancellation of the transaction by EICPL on 17.05.1965 was
rightly not accepted by the Learned Single Judge.
53. The submission of Mr. Bhatia that the suit of the plaintiffs were
barred by limitation also does not impress us. Mr. Bhatia has sought to
place reliance on the averments made in paras 15-16 of the plaint, which we
have extracted hereinabove. From the averments made in paras 15-16 of the
plaint, seen in conjunction with the fact that even till the year 1984 the
appellant EICPL continued to recognize Late Sh. Bhagat Ram/ the plaintiffs
as the owners of the suit plot, it cannot be said that the EICPL evinced an
unequivocal intention to terminate the agreement or to stake a claim in the
suit plot adverse to the rights of the plaintiffs. The averments made in paras
15-16 do not, in terms, show that the plaintiffs understood the vacillation on
the part of the appellant EICPL in executing the conveyance deed as an act
of repudiation of the agreement. That act of repudiation, for the first time
came to the notice of the plaintiffs only when they learnt of the stand taken
by the EICPL in their plaint in Suit No.1546/84 in 1987, and that is then that
the cause of action arose in favour of the plaintiffs to enforce their rights
under agreement to sell. Till then, the appellant EICPL kept the respondents-
plaintiffs under the influence that they had filed a suit - being the recorded
owners, against the defendants No.2 to 5 - the trespassers, to protect the
rights of the plaintiffs. It is in that suit that the EICPL claimed that they had
cancelled the transaction with Late Sh. Bhagat Ram on account of his
neglect and failure to complete the sale deed and that the suit plot was in
their possession.
54. The limitation prescribed in respect of the suit for specific
performance of a contract by Article 54 of the Schedule to the Limitation
Act 1963 is three years. The said period begins to run from "the date fixed
for the performance, or, if no such date is fixed, when the plaintiff has
noticed that the performance is refused". In the present case, it is clear from
the evidence brought on record that the parties did not stipulate any specific
time period within which the sale deed would be registered after the full
payment had been made by the purchaser, namely Late Sh. Bhagat Ram. In
any event, it is evident from the evidence brought on record that the parties
did not consider the time for execution and registration of the conveyance
deed as of the essence. Inter alia, the plot in question was notified for
acquisition under the Land Acquisition Act. In that background, the case of
the plaintiffs that the conveyance deed was not executed on account of the
said development appears to be completely believable. The plaintiffs as
well as EICPL then started to make all out efforts for denotification of, inter
alia, the plot in question. Not only objections dated 21.03.1964 under
Section 5A of the Land Acquisition Act were preferred in the name of Late
Sh. Bhagat Ram - though on the form provided by EICPL, EICPL also made
representations to the Lt. Governor of Delhi in this respect. AICPL also
took steps to save the suit plot from the purview of the Urban Land (Ceiling
& Regulation) Act and in those proceedings as well, repeatedly stated that
Late Sh. Bhagat Ram was the owner in possession of the suit plot.
55. These developments took place till much later after the entire
payments had been made by Late Sh. Bhagat Ram. Consequently, the
present cannot be said to be a case falling in the category of cases in which
the date for performance is fixed under the agreement. Since the present is a
case which did not fix a date for performance of its obligations by the
vendor, the limitation for preferring a suit for specific performance of the
agreement to sell would begin to run only when the plaintiffs had noticed
that performance is refused. The unequivocal refusal on the part of the
EICPL to perform the contract/agreement to sell came to notice of the
plaintiffs only when the plaintiffs learnt of EICPL setting up a title adverse
to them in their suit No. 1546/84. The appellant EICPL has not been able to
establish on record that the plaintiffs had noticed of refusal on their part to
perform the agreement at any earlier point of time.
56. Mr. Bhatia has placed reliance on Narain Das (supra) to contend that
the demand of money made by Sh.P.N. Dutt on behalf of the appellant
EICPL over and above is cost of the plot already paid by Late Sh. Bhagat
Ram, itself tantamounted to a refusal on the part of the appellant EICPL to
perform the agreement in December 1980. We do not agree with this
submission of Mr. Bhatia. We have already indicated hereinabove that till
the year 1984, the appellant continued to recognize the plaintiffs as the
owners of the suit plot. It could be that the appellants made an attempt to
raise a demand for additional money by trying to take advantage of the fact
that the conveyance deed had not been executed over the years. However,
the plaintiffs did not agree to the said demand and the matter stood thus.
Admittedly, the appellant EICPL did not take any precipitative action when
their demand for additional money did not bring forth the desired result.
Narain Das (supra) merely states that where a tender is accompanied by a
condition which prevented it being a perfect and complete tender, the
opposite party was under no obligation to accept it. This is what happened
in the present case. The plaintiffs did not accept the tender made by the
appellant EICPL for executing the conveyance deed as it was accompanied
by a condition de hors the contract. This case, therefore, does not advance
the submission of Mr. Bhatia.
57. Narinjan (supra) relied upon by Mr. Bhatia is also of no avail. This
was a case where the plaintiff, while suing for specific performance, was
insisting on the performance of obligations by the defendant vender which
went beyond the contractual terms. The Court held that such conduct of the
plaintiff demonstrates his lack of willingness and readiness to perform his
part of the contract as the contract stood and that he was, therefore, barred
from obtaining the specific performance of the contract. In the present case,
the plaintiffs did not insist on any additional or different conditions to be
met by the vendor EICPL than those which existed in their agreement. It is
the defendant vendor EICPL which, it appears, sought to assert additional
conditions by requiring additional payment, though they did not take any
precipitative action upon those conditions not being met. The attempt of
EICPL - vendor to derive additional benefits cannot non-suit the plaintiffs,
who are only insisting that the parties abide by the agreement.
58. Mr. Bhatia‟s reliance placed on ManickLal Seal (supra) is also of no
avail. This was a case where the plaintiff was desirous of taking on lease the
premises from the defendant landlord. The plaintiff demanded the execution
of the lease by the defendant, which was not responded to for a long time.
The Court held that the only inference in the mind of an ordinary prudent
man of the world would be that the defendant was not willing to execute the
deed, or that he refused to execute the deed and the suit for specific
performance - which was brought more than three years after such notice,
would be barred by limitation under Article 113. In this case, the
transaction was still at the initial stage. The contract itself had not been
executed, let alone possession delivered, or consideration paid. In contrast,
in the present case, the entire consideration stood paid some time after the
execution of the agreement; the possession delivered, and; various actions
taken by the appellant EICPL to project late Shri Bhagat Ram to plaintiffs -
their recognition of the plaintiffs as the owners of the said plot. Viewed in
this light, the assessment of the plaintiffs that their title to the said plot is
secured cannot be grudged. This case, therefore, has no application in the
facts of the present case.
59. In Puroshottam Sava (supra), the High Court held that the refusal to
perform a contract may be gathered from the circumstances of the case and
notice thereof need not be actual. There can be no quarrel with this
proposition. However, it is in the facts of each case that the Court would
have to assess whether the plaintiff had notice of refusal of performance of
the agreement by the defendant. When examined in the background of the
facts of this case, as we have already observed, we cannot infer a clear and
unequivocal refusal of notice on the part of the appellant EICPL to perform
the agreement. This decision also is of no avail to Mr. Bhatia.
60. Shriman Shamrao Suryavanshi (supra) is a case wherein the
Supreme Court was dealing with Section 53A of the Transfer of Property
Act, 1882. The Supreme Court observed that where the defendant transferee
had obtained possession of the property in part performance of the contract,
its possession is protected even if the limitation for bringing the suit for
specific performance of an agreement to sell has expired. However, the
transferee defendant should have fulfilled all the necessary conditions of the
agreement in order to defend or protect his possession. The Court also noted
that the Limitation Act does not extinguish the right but only the remedy.
The aforesaid propositions are well-settled. However, we fail to appreciate
how Mr. Bhatia seeks to apply the same in the facts of the present case.
61. The statement of PW-4 Sh. C.M. Sharma to the effect that after the
death of his father Late Sh. Bhagat Ram, when he contacted the defendant
EICPL, they were avoiding to execute the sale deed on one or the other
pretext, has to be read in the context of his further evidence that Mr.A.K.
Vaid sent him the letter dated 28.02.1984 (Exhibit PW-4/1) requesting him
to meet him in relation to "your" plot, and the appellant EICPL then
informed him that they had instituted a suit against defendants No. 2 to 5 to
protect the interest of the plaintiffs. Pertinently, in his cross-examination
held on 27.09.1993, PW-4 states that he came to know for the first time
about the refusal of the defendant EICPL to execute the sale deed in his
favour on 30.01.1987. Pertinently, PW-4 was not cross-examined by the
appellant EICPL on the aspect of his acquiring knowledge for the first time
on 30.01.1987 with regard to the stand of the appellant EICPL in the Suit
No. 1546/84.
62. Mr. Bhatia has placed reliance on Lakshminarayana Reddiar (supra)
in support of his submission that once the cause of action was complete and
effective remedy was available for the party who relied upon the cause of
action, suspension of the cause of action during any period after the cause of
action had arisen could only be justified under the various exemptions
specified in the sections of the Limitation Act. He submits that the cause of
action had arisen at the latest in December 1980, if not earlier.
63. We have already expressed our disagreement with the argument of
Mr. Bhatia with regard to the date when the cause of action arose. We do
not agree that the cause of action arose in December 1980 as contended by
the appellant EICPL. In any event, the plaintiffs did not base their suit on
the cause of action arising in December 1980. They have based their suit on
the cause of action which arose on 30.01.1987. Computed from 30.01.1987,
the suit filed by the plaintiffs in March 1988 was well within the period of
limitation.
64. Hutchegowda (supra) relied upon by Mr. Bhatia, is a case where the
Court was concerned with the issue whether, on the terms of the contract, it
could be said that the date for performance of the contract was fixed. It was
held that even if the time of performance cannot be ascertained at the time of
the agreement itself, but can be ascertained subsequently, it may be a case of
fixed date for performance of the contract. A contract which provides that
the sale deed would be executed after the happening of a particular event is a
contract in which the date of performance is fixed. The submission of Mr.
Bhatia is that in the present case the date for performance was fixed, since
the agreement provided that the sale would be registered after full payment.
65. Once again, we cannot accept the submission of Mr. Bhatia in the
facts of the present case since the performance of the contract by the
appellant EICPL was interdictated by the issuance of the notification under
Section 4 of the Land Acquisition Act and also because the appellant itself
kept the contract alive - as evident from the evidence brought on record, for
decades together.
66. R. MuniswaniGoundar (supra) is on the same lines as Hutchegowda
(supra) and does not call for any further discussion in the facts of the present
case.
67. We may at this stage itself take note of the judgment of the Supreme
Court relied upon by the respondents-plaintiffs in Ahmmadsahab Abdul
Mulla (supra), wherein the Supreme Court has construed the expression
"date" in Article 54 of the Limitation Act, 1963 to mean a specific date. It
has observed in para 7 as follows:
"The inevitable conclusion is that the expression `date fixed for
the performance' is a crystallized notion. This is clear from the
fact that the second part "time from which period begins to run"
refers to a case where no such date is fixed. To put it
differently, when date is fixed it means that there is a definite
date fixed for doing a particular act. Even in the second part
the stress is on `when the plaintiff has notice that performance
is refused'. Here again, there is a definite point of time, when
the plaintiff notices the refusal. In that sense both the parts
refer to definite dates. So, there is no question of finding out an
intention from other circumstances. Whether the date was fixed
or not the plaintiff had notice that performance is refused and
the date thereof are to be established with reference to
materials and evidence to be brought on record. The
expression `date' used in Article 54 of the Schedule to the Act
definitely is suggestive of a specified date in the calendar. We
answer the reference accordingly. The matter shall now be
placed before the Division Bench for deciding the issue on
merits." (emphasis supplied)
68. The submission of Mr. Bhatia that the date fixed for performance was
30.03.1961 - by when the memo form and the payment of Rs.131/- were to
be submitted (see Exhibit P-7) cannot be accepted for the reason that even if
one were to proceed on the basis of the said document Exhibit P-7, in
isolation of the subsequent developments, it would only show that a definite
date was fixed only for making payment of the charges of Rs.131/- and for
submission of the memo form. There was no specific date, or an outer date,
fixed for execution and registration of sale deed in favour of vendee.
69. A Division Bench of this Court has held in Shri K. Narendra (supra)
that where the agreement between the parties does not vest a time within
which the transaction should be completed, one party in law could not fix
the time for performance unilaterally de hors the contract. Consequently,
the appellant EICPL could not claim that they had fixed an outer time limit
within which the transaction should have been completed by Late Sh.
Bhagat Ram. Even otherwise, we do not find any evidence on record to
suggest that any such time limit was ever fixed by the appellant EICPL.
70. In Brahmanand & Ors. (supra), the Supreme Court was dealing with
a case where the original agreement dated 10.03.1989 had a fixed date for
performance. However, at the behest of the defendants, that date was
postponed without fixing any future date for performance. The issue raised
by the defendant/vendor was that the suit was barred by limitation under
Article 54 on the premise that there was a fixed date in the agreement, and
that the suit had not been filed within three years from the said fixed date, as
it was on that date the cause of action had arisen. The Court rejected the
defence of the defendant founded upon limitation by holding that since the
date for performance had been postponed to a future date without fixing any
future date for performance, it could not be said that there is a fixed date in
the agreement. The Court held that there was nothing strange in time for
performance being extended, even though originally the agreement had a
fixed date. In our view, this proposition would be even more relevant in a
case where the vendor has realised the entire consideration and charges, and
the remaining obligation to conclude the transaction lies at the door of the
vendor. After extending the date of performance open endedly, the vendor
cannot subsequently turn around and say that the suit for specific
performance is barred by limitation because the original prescribed fixed
date expired more than three years prior to the date of filing of the suit. The
suit could be filed within three years from the date when the plaintiff
realised that there was refusal to perform on the part of the
defendant/vendor.
71. In Gunwantibhai Mulchand Shah (supra), the suit of the
plaintiff/purchaser to seek specific performance of the agreement to sell,
filed 29 years after the execution of the agreement, was held to be barred by
limitation on a preliminary issue. The Supreme Court set aside the said
judgment since no date was fixed for performance in the agreement. The
plaintiffs had pleaded that they had paid the entire consideration and had
been put in possession. The Supreme Court observed that the case would be
covered by the second limb of Article 54 of the Limitation Act. It was held
that the cause of action for the relief of specific performance had arisen
when the right to sue accrued and the said issue could be decided only upon
the leading of evidence and not as a preliminary issue.
72. In the present case, the plaintiffs have led the evidence to show that
the cause of action arose only in the year 1987 when they learnt of the stand
taken by EICPL in their suit, thereby denying the rights of the plaintiffs in
the suit property and claiming that the agreement with late Sh. Bhagat Ram
had been cancelled. It is then the cause of action arose. The suit filed by the
plaintiff in the year 1988 was, therefore, well within the period of limitation.
73. The submission that the plaintiffs have not come to the Court with
clean hands, since they have claimed that they were in possession of the suit
plot, whereas they were never put in possession, cannot be accepted. In our
view, the finding returned by the Learned Single Judge, that the plaintiffs
were indeed put in possession of the suit plot is unassailable in view of the
evidence already discussed above. It was the case of the appellant EICPL
itself before the concerned authorities that they had delivered possession of
the suit plot to Late Sh. Bhagat Ram. They cannot be permitted to now take
a u-turn. They are bound by their own statements in this regard. Therefore,
there was no mis-statement made by the plaintiffs, which would disentitle
them from seeking the discretionary relief of specific performance of the
agreement to sell from this Court. We are not satisfied that the respondent
plaintiffs did not approach the Court with clean hands, therefore, the reliance
placed by the appellants on Lourdu Mari David (supra) is misplaced.
74. Reliance placed by Mr. Bhatia on Ma. Shwe Mya (supra) appears to
be completely misplaced. This was a case where the plaintiff had sued for
specific performance of a verbal agreement made in the year 1912. When
the Court found that the verbal agreement was not found proved, the
plaintiff applied for amendment of the plaint by claiming damages for
breach of the contract of 1903. The amendment was not allowed by the
Court on the ground that it was not open to the plaintiff to set up a new case
by way of amendment. It was observed that equitable rights are given to
people who are vigilant and not to those who sleep, and unless there can be
established some reason which threw upon the defendant the entire blame
for the delay, the lapse of time would be fatal to any action for specific
performance of the contract.
75. In the present case, we are of the view that equity is entirely in favour
of the plaintiffs and against the appellant EICPL. The plaintiff‟s
predecessor-in-interest Late Sh. Bhagat Ram paid the entire consideration
including the registration charges to the appellant EICPL and there was no
other financial obligation left for him to discharge qua the appellant. He had
even been put in possession of the suit plot. It is not that the appellants were
put to any prejudice on account of the non-registration of the sale deed since
they had already pocketed the entire consideration with charges. Their
reason for not executing the sale deed was the issuance of notification under
Section 4 of the Land Acquisition Act in the year 1964. Therefore, the
principle laid down in Ma. Shwe Mya (supra) does not come in the way of
the respondents - plaintiffs in the present case. The argument that over a
period of time a sea change have taken place in respect of the price of suit
plot does not impress us for the reason that the appellant EICPL had
pocketed the entire consideration and charges payable to it
contemporaneously with the agreement and also parted with possession of
the plot to the respondents plaintiffs. For all practical purposes, they had
lost beneficial enjoyment of the suit plot and their title to the suit plot was
only on paper. The delay in the transfer of the plot in favour of the
respondents- plaintiffs; if at all, caused prejudice to the plaintiffs who have
not been able to develop and use the same over the years, firstly, on account
of the appellant EICPL not completing the transaction and, secondly, on
account of the encroachment of the plot by the defendants No.2 to 5.
76. Mr. Bhatia has also placed reliance on the Supreme Court judgment in
support of his aforesaid submission in K.S. Vidyanadam (supra). The facts
of this case are materially different inasmuch, as, though the sale
consideration agreed between the parties in that case was Rs.60,000/- only
an amount of Rs.5,000/- had been paid by the plaintiff vendee as advance.
The plaintiff was found guilty of in-action for more than 2½ years from the
time when the cause of action arose. It is in this background that the Court
held that the plaintiff is not entitled to the relief of specific performance. It
was held that the delay had brought about a situation where it was
inequitable to grant specific relief of specific performance to the plaintiff.
Even where time is not of the essence of a contract, the plaintiff must
perform his part of the contract within a reasonable time, and reasonable
time should be construed by looking at all the surrounding circumstances,
including the express terms of the contract and the nature of the property.
As we have already observed above, the fact situation in the present case is
entirely different. Since the plaintiffs had made payment of the entire
consideration, including charges, contemporaneously, and had even been
placed in possession of the suit property, we see no reason to deny the relief
of specific performance to the plaintiffs.
77. The readiness and willingness of the respondents plaintiffs to
complete the transaction as is evident from the fact that Late Sh. Bhagat
Ram had paid the entire consideration and the registration charges and had
also submitted the signed form required by appellant EICPL thereby putting
the ball in the appellant‟s Court. It was for the appellant thereafter to call
Late Sh. Bhagat Ram and after his demise, the plaintiffs for execution and
registration of the sale deed. In any event, there is nothing to suggest that
Late Sh. Bhagat Ram and the plaintiffs ever exhibited lack of readiness or
willingness on their part to proceed with and complete the transaction.
78. In our view, the principle laid down by the Supreme Court in
Devalsab (Dead) by LR's (supra) is squarely applicable in the facts of this
case. Since late Sh. Bhagat Ram made payment of the entire consideration
along with the charges and there was nothing left for him to do, the ball was
in the court of the vendor EICPL. It was for them to execute and register the
conveyance deed. As held by the Supreme Court in this case, we are also of
the view that it would be unfair and inequitable not to grant a decree for
specific performance in favour of the respondents/plaintiffs since late Sh.
Bhagat Ram was a bonafide purchaser and he did everything it was possible
for him to do. The readiness and willingness of the plaintiffs stand
established from the aforesaid fact. Late Sh. Bhagat Ram, with the
blessings and consent of the appellant EICPL, continued to exert his rights
over the suit plot by claiming himself to be the "owner" before the
concerned authorities. EICPL also, of their own, asserted that late Sh.
Bhagat Ram was the "owner" of the suit plot.
79. As far as the appellants in R.F.A (OS) 26/1996 are concerned, from
the evidence of DW-2 Kranti Devi it is clear that they have no interest in the
suit property. The discussion in the impugned judgment on the aspect of the
rights claimed by defendants No.2 to 5 is found in paragraphs 14 to 20.
Pertinently, Mr. Kohli did not make any submission on the aspect of title
claimed by respondents No. 2 to 5. Since we find ourselves in complete
agreement with the finding returned by the Learned Single Judge on the said
aspect, we reproduce hereinbelow paragraphs 14 to 20 of the impugned
judgment.
"14. On behalf of defendants 2 to 5, D2W1 Shri Vijay Singh
was examined. He claims to be the owner of the plot. He states
in the examination-in-chief he purchased it from Shri Sadhu
Ram, who was the owner of the property. According to this
witness, he was in possession of the property from 1965 to
1982. According to him, he had constructed a small room and
was keeping two buffaloes. According to him, he sold the
property to 5th defendant Smt. Kranti Devi for Rs.55,000/-. In
the cross-examination by the plaintiffs, a question was asked to
him whether he saw any documents in favour of Sadhu Ram to
satisfy himself about the ownership of Sadhu Ram. He frankly
admitted that he did not see any such document. When he was
asked whether he made any attempt to identify the title of Sadhu
Ram he admitted that he did not do. When he was asked
whether he has got any documentary evidence to prove his
purchase from Sadhu Ram, without any hesitation he would
state that he got the sale deed registered in the office of the Sub
Registrar at Kashmere Gate, Delhi but it is not traceable at
present and it is available he would produce it. He could not
give the date and the month of the presentation of the document
for registration. When asked, what did he construct in 1965 in
the property, the answer as "I just developed the previous
chhappar. What I constructed also did not contain any walls
but it was a chhappar only." He states that he was living along
in A-12. When he was asked whether did he get his ration card
at this address A-12, he said, no. when he was asked about the
electricity from 1965 to 1982 in the property, he said no. He
frankly admitted that he did not get his name mutated in the
Government records. The following questions and answers
would show that he has nothing to do with the property:-
"Q.30. Can you tell as to how many sides the plot was
opened?
Ans. On two sides.
Q.31. Can you give the directions on which the plot was
opened?
Ans. It was in open on east and west side.
Q.32. Can you give the names of the owners of the
properties on the north and south of property No.A-12?
Ans. I know the name of only one person namely,
Mr.Mansukh on the north side. I do not know the name
of the owner of the property on the south.
Q.33. Whether the properties on the north and south
were built up properties or were only plots?
Ans. They were only plots and were having no
boundary.
Q.34. Was there electricity in those plots also?
Ans. No."
15. When he was asked whether he asked Sadhu Ram to hand
over the documents of title in his possession, the witness
answered yes. Later on, he admitted that he did not ask Sadhu
Ram about any documents of title except asking him executing
of the sale deed in his favour. He stated that he purchased the
property for Rs.5,000/-. When he was asked about how much
money he spent for stamp paper he said he did not remember.
When he was asked about the name of the scribe he said that he
did not remember. He said the scribe was sitting at Kashmere
Gate. He stated that his thumb impressions were taken in the
Sub Registrar's office. When he was asked whether did he
execute any document at the time of selling the property to Smt.
Kranti Devi, defendant No.5, he said an agreement was
executed, sale deed was executed, that agreement is with him at
his office. When he asked why he did not execute any sale deed,
he replied that as the Colonizer (first defendant) had filed a
suit, he did not execute the sale deed. When he was asked what
was the impediment for not executing sale deed in favour of
Smt. Kranti Devi, he replied there was no particular reason for
that. When asked whether he could give the name of the
Colonizer who filed the suit, he said no. He said Rs.55,000/-
was paid to him in cash. He said Smt. Kranti Devi approached
him for purchasing the property. He would also state that Smt.
Kranti Devi came to know about his idea to sell the property as
she used to purchase milk from him. He stated that his native
place is Bulandshahar. He came to Delhi from his place in
1964. He stated that he stayed at Durgapuri Chowk in 1984
and continued living till he shifted to A-12. According to him,
the distance between Durgapuri Chowk and A-12 is about 40
Kms. When asked whether there was any broker in the deal
between him and Sadhu Ram, he replied saying he just had a
talk with him by chance. When asked whether he received any
correspondence from 1965 to 1982 at the address of A-12, he
said no.
16. I watched the demeanour of this witness and he did not at
all impress me from the evidence given by him. I have no
hesitation in coming to the conclusion that he is uttering
falsehood. His answers are imaginary. His attitude is very
unsatisfactory and he speaks to facts which are totally non-
existent.
17. D2W2 Smt. Kranti Devi was examined. According to
her, she occupied the property in 1982. It is here the learned
counsel Mr. Kohli sought to file an agreement to sell from the
case file suit No.1546/84. The witness sought to tender in
evidence Ex. D2W2/1 which cannot at all be admitted in
evidence. According to her, she put up construction on the plot
after purchasing. She constructed a hall on the plot and they
are above on the first floor a tin shed. She would state that
Vijay Singh was the owner of the property. In cross
examination by the plaintiffs, when asked whether did she
purchase stamp papers for Ex. D2W2/1, she answered that she
purchased it from Kashmere Gate. She would admit that she
signed the stamp paper at the time of the purchase and she
signed it in the office of the Registrar. When further asked did
she put any signatures at the time of the purchase of the stamp
paper on its back, she would state yes. The following question
and answer would show, apart from other plaintiffs, how the
witness has nothing to do with the transaction:-
"Q.24. I put it to you that the stamp paper on which
the document Ex. D2W2/1 is typed is not that stamp
paper which you purchased.
Ans. Yes.
(The witness was shown the back of the first page of this
document and she has answered that it does not bear her
signatures.)
18. When asked whether anybody else signed the document,
she stated that she did not remember. When question was
asked how many people in all had signed the document, she
replied that about 10 or 12 persons signed the document. She
would also state that all of them signed simultaneously in the
presence of the Sub Registrar, Kashmere Gate, Delhi. She
would state that Vijay Singh was present when 10 persons
signed the document. She would also state that the document
was presented before the Sub Registrar after two days. When
she was asked whether the document after typing was given in
the office of Sub Registrar by her or by Vijay Singh she would
state that it was given by her. She would also state that Vijay
Singh had told her Sadhu Ram executed a document in his
favour. She would state that after the purchase in 1982 she
gave an application for mutation in 1983 or 1984 at Kashmere
Gate. She would add that she did not know the name of the
office where the application for mutation was made. She would
also state that mutation was ordered in her favour. She would
also state that she obtained an order from the office and she
obtained a document and it is in her possession. It may be
noticed that no such document is produced. When asked
whether she obtained sanction of the M.C.D. for making the
construction of the hall and other constructions, she said yes.
She also admitted that it is in her possession and she can
produce it. She would also state that she had paid house tax.
The receipt is in her possession and she can produce it. But it
may be noticed that no such receipts have been produced. She
would also claim that she is in possession of the Income Tax
Returns in respect of the business carried on by her or by her
husband and she can produce them into Court. No such
applications are produced. A question was put to her "can you
tell us with whom the document executed on the stamp paper
purchased by you remained from the date of the execution?
The answer is that the said document is still in my possession".
She would state that electricity is available since 1986 and the
electricity meter is in her name. When asked about the fate of
the suit filed by the first defendant against her husband and
others, she state she did not remember.
19. This witness also is not speaking the truth. She was not
able to answer the questions and she had nothing to do with the
property.
20. From a reading of the evidence of these witnesses, I am
very clear in my mind that defendants 2 to 5 have absolutely no
interest in the property and they are rank trespassers."
80. Mr. Kohli submits that the plaintiffs had never been put in possession
of the suit property and this is evident from the fact that they had not stated
as to when they were dispossessed. Had they been put in possession, they
would have been aware of the time when they were dispossessed.
81. We cannot agree with the submission of Mr. Kohli because the factum
of Late Sh. Bhagat Ram being put in possession is established from the
evidence led by the plaintiffs. The title holder, namely, EICPL in its various
affidavits and communications admitted that late Sh. Bhagat Ram had been
placed in possession of the suit plot. Merely because a person in possession
of vacant & unconstructed immoveable property may not be in a position to
give the exact date & time when the same was trespassed upon, would not
mean that he was not in possession before the trespass took place. A person
may learn of the trespass on his property much later because he may not
visit his property which is lying vacant.
82. As far as the contention of the appellants that they have not been able
to cross-examine the witnesses of the Respondents is concerned, we find no
merit in the same for the reason that defendant nos.2 to 5/appellants did not
appear to cross examine the plaintiffs witnesses despite being granted
opportunity for the said purpose. There is no inherent right in a party to
remain absent from the proceedings and yet claim that he should not suffer
the consequences which arise on account of such non-appearance. Non
appearance of a party is at his own risk and peril. There is no explanation
furnished by Mr. Kohli as to why his clients were not represented to cross
examine the plaintiff witnesses on the relevant date.
83. We have examined the judgments relied upon by Mr. Kohli, and we
find that they are of no avail.
84. Purshottam Vishindas Raheja (supra) has been relied upon by Mr.
Kohli to submit that since the relief of specific performance of an agreement
to sell is discretionary, the plaintiff does not get the right of possession
unless he gets a decree. Therefore, he cannot dispossess anybody at the
interlocutory stage. The submission is that since the decree was passed by
the learned Single Judge only on 23.05.1996, there was no question of any
damages being awarded for the period prior to that date. A perusal of the
impugned judgment shows that the damages have been awarded for the
period covering three years prior to the date of filing of the suit, the period
during which the suit was pending, and till vacant possession is delivered to
the plaintiffs. For the past period i.e. prior to the filing of the suit and for the
period during which the suit remained pending, damages have been awarded
at the rate of Rs.1,500/- per month. However, damages at the rate of
Rs.5,000/- per month have been awarded from 01.06.1996 i.e. after the
passing of the decree. Regarding this last aspect, we shall discuss a little
later.
85. The right of the plaintiffs to claim damages, once they are held
entitled to the relief of specific performance, would relate back to the period
of three years prior to the date of filing of the suit. Therefore, the said
decision is of no avail to defendant nos.2 to 5.
86. Reliance placed by Mr. Kohli on Babu Lal (supra) also appears to be
misplaced. The observations made in para 21 relied upon by Mr. Kohli has
to be read in the context of the facts of that case. In that case, the vendor
under the agreement, in defiance of the first agreement to sell made in
favour of the plaintiff, entered into a subsequent agreement. The plaintiff
obtained a decree for specific performance. However, a specific prayer for
possession was not made in the suit. In execution proceedings, the objection
taken was, inter alia, that the decree was inexecutable as the decree
holder/plaintiff did not claim the relief for possession of the suit property.
Reliance was placed by the petitioner/subsequent purchaser on section 22 of
the Specific Relief Act. The executing court did not grant relief to the
plaintiff/decree holder. However, the High Court allowed the decree
holder‟s appeal holding that the decree holder shall be entitled to possession
also. The argument of the petitioner before the Supreme Court founded
upon section 22 was rejected. While doing so, the Supreme Court dealt with
the petitioners argument of limitation vis-a-vis the relief of possession in
para 21 in the following words:
"21. If once we accept the legal position that neither a contract
for sale nor a decree passed on that basis for specific
performance of the contract gives any right or title to the
decree-holder and the right and the title possession to him only
on the execution of the deed of sale either by the judgment-
debtor himself or by the Court itself in case he fails to execute
the sale deed, it is idle to contend that a valuable right had
accrued to the petitioner merely because a decree has been
passed for the specific performance of the contract. The
limitation would start against the decree-holders only after they
had obtained a sale in respect of the disputed property. It is,
therefore, difficult to accept that a valuable right had accrued
to the judgment debtor by lapse of time. Section 22 has been
enacted only for the purpose of avoiding multiplicity of
proceedings which the law courts always abhor."
87. The aforesaid cannot be understood as a proposition to mean that the
plaintiff, who sues for specific performance, would not be entitled to claim
damages for deprivation of possession of the suit property for the period
prior to the filing of the suit and during the pendency of the suit.
88. Delhi Motor Company (supra) has no application in the facts of the
present case. That decision was dealing with, inter alia, section 53A of the
Transfer of Property Act, which enacts the doctrine of part performance. In
the present case, the plaintiff had been put in possession of the suit plot by
EICPL. It is only thereafter that defendant nos.2 to 5 trespassed upon the
same. Therefore, the right of the plaintiff to claim damages against
defendant nos.2 to 5 cannot be doubted.
89. For the same reason, the decision of the Privy Council in Probodh
Kumar Das (supra) has no application in the facts of this case.
90. The submission of Mr. Kohli that the plaintiff did not lead any
evidence to substantiate their claim for damages against defendant nos.2 to 5
also cannot be accepted. A perusal of the examination in chief of PW-4 Sh.
C.M. Sharma shows that he made a statement that "for use and occupation
of plot No.A-12, which is 110 sq. yds. I would get Rs.5,000/- per month. I
claimed this amount from defendants 2 to 5 from March 1985. I am not
aware of the rents and charges which are being fetched by neighbouring
properties". The said statement of PW-4 went unrebutted as PW-4 was not
cross examined by defendant nos.2 to 5. Since defendant nos.2 to 5 have
been found to be trespassing on the suit property, their liability to pay
damages in law to the plaintiffs cannot be disputed.
91. The learned Single Judge has also taken into account the evidence led
by PW-4 regarding the claim for damages in para 26 of the impugned
judgment. He has also observed that in his assessment, the rate of damages
claimed by the plaintiffs in the plaint @ Rs.1,500/- p.m. is reasonable and
the same has been awarded for the period 01.03.1995 to 31.05.1996 (i.e.
from the date the claim for damages was made till, about, the date of
decree). Consequently, Rs.2,02,500/- has been awarded as arrears of
damages. However, for the post-decretal period, i.e., from 01.06.1996
onwards damages have been awarded @ Rs.5,000/- per month. Here we
may observe that the relief No. (iv) prayed for in the suit by the
defendants/respondents confined the relief of damages till actual physical
vacant possession of the suit plot is delivered to the plaintiffs @ Rs.1,500/-
per month. As the plaintiffs did not lead any independent evidence to
establish the higher claim for damages @ Rs.5,000/- per month, in our view,
without a specific pleadings or supporting affidavit in respect thereof the
Learned Single Judge could not have awarded damages at a rate higher than
what was claimed. To the aforesaid extent, the judgment and decree of the
Learned Single Judge calls for modification. We, therefore, substitute the
relief of grant of damages from 01.06.1996 onwards till realization of actual
physical and vacant possession of the suit plot by the plaintiffs respondents
to Rs.1,500/- per month.
92. To us, it appears that the suit filed by EICPL against the appellants in
RFA (OS) 26/96 was a collusive suit, or they colluded after the filing of the
said suit to defeat the rights of the Respondents/plaintiffs. The same is clear
from the fact that the appellants EICPL first filed a suit for possession
against the appellants in RFA(OS) 26/1996/defendant nos.2 to 5, which was
subsequently withdrawn by them.
93. In view of the aforesaid, we find no merit in RFA (OS) No.23/1996
and dismiss the same. RFA (OS) No.26/1996 is partly allowed as per para
91 herein above. Costs are quantified at Rs.25,000/- in each of the appeals
to be paid to the original plaintiffs by the respective appellants within four
weeks.
(VIPIN SANGHI)
JUDGE
(SANJAY KISHAN KAUL)
JUDGE
FEBRUARY 28, 2013
sr/BSR
