Massar vs Naseem Akhtar
2022 Latest Caselaw 8526 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
              ON THE 15th DAY OF OCTOBER, 2022
                        BEFORE
    HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA




                                                        .
          REGULAR SECOND APPEAL NO. 244 OF 2014





    Between:­
    ABDULLA     BHATIA, S/O LATE SH.
    FAZAL       DIN,   R/O   VILLAGE





    MASSAR,      P.O. BAROR, PARGNA
    GUDIAL,      TEHSIL & DISTRICT
    CHAMBA,     H.P.

                                         ......APPELLANT





    (BY MR. R.K. SHARMA, SR.
    ADVOCATE   WITH  MR. ARUN
    KUMAR, ADVOCATE)
    AND

    1. NASEEM AKHTAR, D/O LATE

    SH. GULAM MOHAMMAD, R/O
    MOHALLA HARDASPURA, CHAMBA
    TOWN,     TEHSIL      CHAMBA,
    DISTRICT CHAMBA, H.P.



                                       ...RESPONDENT
    (BY MR. ANAND SHARMA, SR.
    ADVOCATE WITH MR. KARAN




    SHARMA, ADVOCATE, FOR R­1)





    2. CHAMAN DEVI, WD/O LATE SH.
    TIRATH RAM, R/O MOHALLA
    SEHAR CHINI, CHAMBA TOWN,





    TEHSIL & DISTRICT CHAMBA, H.P.
    3. LALITA DEVI, D/O LATE SH.
    TIRATH RAM, R/O MOHALLA
    SEHAR CHINI, CHAMBA TOWN,
    TEHSIL & DISTRICT CHAMBA, H.P.
    4. KIRAN KUMARI, D/O LATE SH.
    TIRATH RAM, R/O MOHALLA
    SEHAR CHINI, CHAMBA TOWN,
    TEHSIL & DISTRICT CHAMBA, H.P.
    5. KANCHAN KUMARI, D/O LATE
    SH. TIRATH RAM, R/O MOHALLA
    SEHAR CHINI, CHAMBA TOWN,
    TEHSIL & DISTRICT CHAMBA, H.P.




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    6. USHA KUMARI, D/O LATE SH.
    TIRATH RAM, R/O MOHALLA
    BANGOTU,       CHAMBA     TOWN,
    TEHSIL & DISTRICT CHAMBA, H.P.
    7. HARDESH KUMAR, S/O SH.




                                                        .
    RAM, R/O MOHALLA BANGOTU,





    CHAMBA      TOWN,    TEHSIL   &
    DISTRICT CHAMBA, H.P.
    8. SH. JAGDISH CHAND, S/O SH.





    CHAMARU RAM, R/O VILLAGE
    MASSAR,      PARGNA      GUDIAL,
    TEHSIL & DISTRICT CHAMBA, H.P.
    9. ASHWANI KUMAR, S/O SH.
    BALAK    RAM,     R/O   VILLAGE





    ANDREALU,      PARGNA    GUDIAL,
    TEHSIL & DISTRICT CHAMBA, H.P.
    10. SAIF ALI, S/O SH. FAZAL DIN,
    R/O VILLAGE ANDRALU, PARGNA

    GUDIAL, TEHSIL & DISTRICT
    SHIMLA, H.P.

    11. ABDUL GANI, S/O SH. FAZAL
    DIN,   R/O    VILLAGE   MASSAR,
    PARGNA     GUDIAL,    TEHSIL  &
    DISTRICT SHIMLA, H.P.


    12. ALLADITA, S/O SH. FAZAL
    DIN,   R/O    VILLAGE   MASSAR,
    PARGNA     GUDIAL,    TEHSIL  &
    DISTRICT CHAMBA, H.P.




    13. AMAR SINGH,        S/O SH.
    BOHAIYA, R/O VILLAGE SIYUNDI,





    PARGNA     GUDIAL,    TEHSIL  &
    DISTRICT CHAMBA, H.P.
    14. PARKASH CHAND, S/O SH.





    HARDYAL,        R/O     VILLAGE
    CHADIYARA, PARGNA, GUDIAL,
    TEHSIL & DISTRICT CHAMBA, H.P.

                            ...PROFORMA RESPONDENTS

    (NONE FOR PROFORMA RESPONDENTS)

    RESERVED ON: 10.10.2022
    DECIDED ON: 15.10.2022

    WHETHER APPROVED FOR REPORTING? Yes.




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                 This appeal coming on for orders this day, the Court
    delivered the following:­

                                          JUDGMENT

.

The instant regular second appeal has been

maintained by the appellant, who was defendant No. 1 before

the learned Court below (hereinafter to be called as "defendant

No. 1"), laying challenge to the judgment and decree, dated

29.03.2014, passed by learned Additional District Judge,

Chamba, District Chamba, H.P., in Civil Appeal No. 16/13,

whereby findings recorded in judgment and decree, dated

25.04.2013, passed by learned Civil Judge (Junior Division),

Chamba, District Chamba, H.P., in Civil Suit No. 72/2006 were

reversed and defendant No. 1 was directed to get the sale deed

executed qua the suit property in favour of respondent No. 1,

who was the plaintiff before the learned Court below (hereinafter

to be called as "the plaintiff").

2. Briefly the facts, which are necessary for

determination and adjudication of the present appeal, are

that the land comprised in Khata/Khatauni No. 217/259,

Khasra No. 165, 167, 940, 1113/942/1, 1117/959,

1390/1115, 958, 1119/960, 1121/961, 1123/962,

1233/963, 1125/964, 965, 966, 1470/1394, 1463/1401,

kita 16, measuring 19­18­00, situated at Mohal Baror,

Pargna Gudial, Tehsil & District Chamba, H.P. (hereinafter to

be called as the "suit property") is recorded in the name of

defendant No. 1 and proforma defendants No. 2 to 14.

.

Defendant No. 1 is having share of land comprised in Khasra

No. 796/3980, measuring 3­19­18 bighas in the entire land.

He had a pucca house consisting of three rooms, comprised

in Khasra No. 1117/959 and 1173/962, measuring 0­06­00

bighas which is a part of the suit property. Defendant No. 1

sold the aforesaid house alongwith courtyard and kitchen

garden for a total consideration of Rs. 1,30,000/­ vide

agreement dated 14.08.2004 to the plaintiff. Defendant No. 1

is stated to be husband of plaintiff's cousin, being her

maternal aunt's daughter. Taking undue advantage of

relationship the plaintiff claims that she had fallen into trap

of defendant No. 1 in advancing aforesaid amount. Notice was

issued to defendant No. 1 for specific performance of

contract, but while replying the same he denied the same,

whereas possession of the suit property was delivered to the

plaintiff vide agreement dated 14.08.2004. Defendant No. 1

was time and again asked to get the sale deed executed or

registered and sanction mutation in favour of the plaintiff,

but he was adamant. Cause of action accrued to the plaintiff

in the month of July, 2005 when defendant denied execution

of agreement and also in the month of June, 2006, when he

again refused to comply with the same. Therefore, the

plaintiff sought decree for specific performance of contract

.

dated 14.08.2004. The plaintiff also sought permanent

prohibitory injunction to restrain defendant No. 1 from

alienating the suit property.

3. Claim of the plaintiff was resisted and contested

by defendant No. 1 and preliminary objections qua

maintainability, cause of action and suppression of material

facts were taken. On merits, it has been pleaded that agreement

does not reveal total area alongwith the built up portion which

is being claimed to have been sold to the plaintiff and no suit

can be filed on the basis of agreement in question. It has been

further pleaded by defendant No. 1 that he never undertook

to get the sale deed registered and sanction mutation in favour

of the plaintiff. Lastly, a prayer for dismissal of the suit was

made.

4. In replication, averments of the written statement

are denied and that of the plaint are re­affirmed.

5. On 08.05.2008, the learned Court below framed the

following issues for determination and adjudication:

"1. Whether the plaintiff is entitled for the decree of specific performance of contract dated 14.08.2004, as alleged? OPP.

2. Whether the plaintiff is entitled for relief of permanent prohibitory injunction?OPP

3. Whether the suit is not maintainable in

.

the present form? OPD

4. Whether no cause of action accrued to the plaintiff? OPD

5. Whether the plaintiff has suppressed the material facts, if so, its effect? OPD

6. Relief.

6. After deciding issues No. 1 and 5 in negative, issue

No. 2 partly yes and issues No. 3 & 4 in affirmative, suit of the

plaintiff was partly decreed and defendant No. 1 was restrained

from interfering in the peaceful possession of the plaintiff over

the suit property. Subsequently, the plaintiff maintained an

appeal before the learned first Appellate Court, which was

allowed with costs and defendant No. 1 was directed to get the

sale deed executed qua the suit property in favour of the

plaintiff as per Order 21 Rule 34 at her expense within a period

of 30 days. Hence the present regular second appeal, which

was admitted for hearing on the following substantial question

of law:

"Whether agreement Ex. PW­2/B dated 14.08.2004 specifically states that the defendant or his legal representatives have no concern with the property meaning thereby nothing remains to be done by the defendant and further when there is no condition of executing the sale deed in the agreement, whether the

learned Additional District Judge is justified to pass a decree for specific performance and directing the defendant to execute the registered sale deed within thirty days and the findings are perverse?

.

7. The learned Senior counsel appearing on behalf of

the appellant has argued that the learned Fist Appellate Court

has not appreciated the law and facts correctly and the findings

are perverse, as the agreement Ext. PW­2/B was a complete

document and as there is nothing in the agreement that the

appellant had to get the sale deed executed, he cannot be asked

to execute the sale deed. He has further argued that possession

is with the respondent and she is also owner of the same.

8. On the other hand, learned Senior Counsel

appearing on behalf of respondent No. 1 has argued that as per

Section 54 of Transfer of Property Act, 1882, the appellant was

duty bound to get the sale deed registered, as the agreement

itself is a agreement to sale and complete consideration has

been paid. He has further argued that statement of DW­1 makes

it clear that findings as recorded by the learned first Appellate

Court are in accordance with law.

9. In rebuttal, learned Senior Counsel appearing on

behalf of the appellant has argued that suit for specific

performance act only allow to make the other party to perform

the specific act and not to perform the act for which he is not

bound and in these circumstance the instant appeal be allowed.

10. In order to appreciate the rival contentions of the

.

parties, I have gone through the records carefully.

11. In order to prove her case, the plaintiff tendered her

evidence through affidavit and reiterated that she purchased the

house existing over Khasra No. 1117/959, 1173/962 over

00­06­00 bighas land from defendant No. 1 for a consideration

of Rs. 1,30,000/­ and in this regard, an agreement, dated

14.08.2004 was also executed between them, which was scribed

by defendant No. 1 himself and Karam Chand and Amar Singh

were witnesses to the agreement. It has been stated by the

plaintiff that she handed over the whole amount in advance and

also obtained the possession at the time of agreement. However,

defendant No. 1 refused to get the sale deed registered in her

favour. The plaintiff also tendered the copy of jamabandi, Ext.

PB, notice, Ext. PC, postal receipt, Ext. PD, acknowledgment,

Ext. PE and receipt thereof Ext. PF. In her cross­examination,

the plaintiff admitted that the agreement does not bear anything

with regard to the registration or mutation. She also admitted

the suggestion that the agreement does not bear the description

of the land.

12. PW­2, Karam Chand, tendered his evidence through

affidavit, Ext. PW­2/A and deposed that he was witness to

agreement, dated 14.08.2004 between the plaintiff and

defendant No. 1. The agreement was scribed by defendant No. 1.

The parties signed the agreement in his presence and thereafter

.

he alongwith Amar Singh also put their signatures thereon.

13. Defendant No. 1 also tendered his evidence through

affidavit, Ext. DW­1/A and deposed that he handed over the

possession of the house to the plaintiff for a consideration of Rs.

1,30,000/­ on the same day and since then, the plaintiff is in

possession of the house. He further deposed that he never

undertook to get the sale deed registered or to effect the

mutation. In cross­examination, he identified his signatures

over agreement, Ext. PW­2/B. He admitted the suggestion that

he had no concern with the disputed property after the

agreement. He also deposed that he has no objection if the

plaintiff is declared as owner of the disputed property.

14. If the evidence of defendant No. 1 is seen he has

specifically stated in his evidence that consideration amount

was received, possession of the property was transferred and

the plaintiff is exclusive owner of the suit property, but he has

also stated in his affidavit that he is not bound to get the sale

deed registered, as it was not the condition in agreement

(Ikrarnama). It has also come on record that the plaintiff is

sister­in­law of defendant No. 1. In these circumstances, this

Court has to consider the agreement and its effect.

15. The agreement, Ext. PW­2/B is definitely a sale

deed and the money was paid and received as per the evidence

on record, possession was delivered and the plaintiff was

.

acknowledged as owner of the property by defendant No. 1 as

per evidence on record. Thus, defendant No. 1 had an intention

to transfer the ownership of the suit property in favour of the

plaintiff.

16. Section 54 of Transfer of Property Act, 1882,

provides as under:­ r to "54. "Sale" defined­ "Sale" is a transfer of ownership in exchange for a price paid or promised or part­paid and part­promised.

Sale how made. ­ Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a revision or other intangible thing, can be made only by

a registered instrument.

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by

delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person

as he directs, in possession of the property.

Contract for sale. ­ A contract for the sale of immovable property is a contract that a sale of such

property shall take place in terms settled between the parties.

It does not, of itself, create any interest in, or charge on such property."

17. As the value of the property is more than one

hundred rupees, the same was required to be registered and

since the plaintiff being purchaser of the suit property paid the

entire consideration to defendant No. 1, he being seller was

bound to execute the sale deed in favour of the plaintiff and get

the same registered. Even though, the said condition was not

incorporated in the agreement, then also relief can be claimed

.

and granted to the purchaser, whose title has not been

perfected only because of non­registration of sale deed and

execution thereof by taking hold of Section 55 (1) (d) of Transfer

of Property Act.

18. In these circumstances, this Court answers the

substantial question of law, as framed vide order dated

29.05.2018 by holding that the learned first Appellate Court

was justified in passing the decree for specific performance and

directing defendant No. 1 to execute the registered sale deed as

value of the suit property was more than one hundred rupees,

in view of Section 54 of Transfer of Property Act, 1882.

19. In view of the discussion made hereinabove, I find

no merit in the instant appeal and the same is accordingly

dismissed. Pending application(s), if any, also stands disposed

of.

(Chander Bhusan Barowalia) Judge October 15, 2022 (raman)