Smt. Ambika Devi vs Smt. Sita Devi
2023 Latest Caselaw 845 Jhar

                                                  1              Second Appeal No. 193 of 2012


                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          Second Appeal No. 193 of 2012

                 Smt. Ambika Devi                                ... Appellant
                                        -Versus-
            1. Smt. Sita Devi
            2. Kamal Gope
            3(a). Sangita Devi
            3(b).Om Gope, minor represented through her mother and natural
                 guardian namely Sangita Devi
            4. Rajesh Gope
            5. Vijay Gope
            6. Shanti Devi
            7. Punam Devi
            8. Soni Devi
            9. Chhotki Kumari
            10. Kusum Kumari
            11. Smt. Maharani Devi                      ... Respondents

                                          -----

            CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                          -----

            For the Appellant       : Mr. Kundan Kumar Ambastha, Advocate
            For Respondent No.11    : Mr. Pandey Neeraj Rai, Advocate
                                      Mr. Rohit Ranjan Sinha, Advocate
                                      Mr. Akchansh Kishore, Advocate
                                      Mr. Piyush, Advocate
                                          -----

14/22.02.2023     Heard Mr. Kundan Kumar Ambastha, learned counsel for the appellant

and Mr. Pandey Neeraj Rai, learned counsel for respondent no.11.

2. This second appeal has been filed being aggrieved and dissatisfied

with the judgment and decree dated 12.09.2012 (decree signed on

22.09.2012) passed by the learned District and Additional Sessions Judge

III, Ranchi allowing the Title Appeal No.75 of 2007 with modification and

setting aside the judgment and decree dated 11.05.2007 (decree signed on

25.05.2007) passed by the learned Sub-Judge-VI, Ranchi in Title Suit No.68

of 1991.

3. Title Suit No.68 of 1991 was instituted by the appellant/plaintiff

seeking relief against all defendants that a decree for specific performance

of agreement dated 17.09.1990 be passed in favour of the

appellant/plaintiff and against the defendants and the defendants be

directed to execute the registered deed of sale with respect to the property

in suit within a time to be fixed by the court failing which the same may be

executed and registered in favour of the appellant/plaintiff through the

process of the court. The said suit was dismissed on contest vide judgment

dated 11.05.2007. Aggrieved with that judgment, the appellant/plaintiff has

preferred Title Appeal No.75 of 2007, which was decided vide judgment

dated 12.09.2012 and the learned appellate court found that the

appellant/plaintiff has been fully able to prove her case in her favour, but

since the property in question has been sold to the defendant no.3 by

defendant no.2 through registered deed after receiving the entire

consideration amount and it has been proved that defendant no.3 is

bonafide purchaser and she is on the possession of the suit property, so the

appellant/plaintiff is only entitle for refund of the entire consideration

amount along with Rs.7,000/- for stamp paper with interest @ 6% per

annum from the institution of the suit till the realization. The appellate court

further held that the substituted defendant no.1(A) to 1(E) are jointly liable

to pay the entire amount of Rs.47,000/- with interest as stated in the

judgment within three months from the date of that order, failing which, the

appellant/plaintiff is at liberty to realize the amount through the process of

the court and the learned appellate court set aside the judgment of the

learned trial court with modification and the appeal was allowed. Aggrieved

with that judgment, the appellant/plaintiff has filed this second appeal.

4. The appellant/plaintiff instituted the said title suit stating therein that

the defendant no. 1 being the owner of the suit property has executed a

registered agreement for sell dated 17.09.1990 in favour of the plaintiff with

respect to 5 kathas of land out of R.S. Plot no. 552 of Khata No. 37 situated

at village - Gari, P.S. Sadar, Thana No. 194, District - Ranchi more fully

described in the schedule of the plaint for a consideration of Rs. 8,000/-

only per katha and in pursuance of the agreement the defendant no. 1

received a sum of Rs. 20,000/- only as advance from the plaintiff on the

date of execution and registration of the said agreement itself. It was

further stated that according to the terms of the agreement the defendant

no. 1 was required to execute and register the deed of sale in favour of the

plaintiff within a period of three months from the date of execution and

registration of the agreement after obtaining necessary permission from the

competent authority i.e. Urban Land Ceiling and Regulation Act, 1976. The

defendant no. 1 received a further advance of Rs. 20,000/- from the plaintiff

on 26.10.1990 and made an endorsement on the back of the certified copy

of the registered agreement aforesaid and thus the defendant no. 1

received the entire consideration money amounting to Rs. 40,000/- from the

plaintiff and defendant no. 1 promised to execute and registered the deed

of sale after obtaining necessary permission of the competent authority

under the Urban Land (Ceiling and Regulation) Act, 1976 but despite the

repeated request made by the plaintiff defendant no. 1 did not take care to

seek permission of the competent authority and to execute and get the

registered deed of sale in favour of the plaintiff in pursuance to said

agreement. It was also stated that the defendant no. 1 persuaded the

plaintiff to pay a sum of Rs. 7,000/- for the purpose of purchase of non

judicial stamp paper for getting the deed of sale executed and registered

after obtaining permission of the competent authority and to meet the

necessary registration fees and other expenses of registration and the

plaintiff believing on the representation of defendant no. 1 paid a sum of

Rs. 7,000/- only on 11.12.1990 and defendant no. 1 made an endorsement

on back of the certified copy of the registered agreement to this effect.

Despite the above facts the defendant no. 1 neither took any steps for the

grant of the permission of the competent authority under the Urban Land

(Ceiling and Regulation) Act, 1976 nor executed and registered the deed of

sale in favour of the plaintiff though the plaintiff was and is always willing

and ready to purchase the property as per agreement. It was also stated

that the plaintiff has learnt that defendant no. 2 with connivance of

defendant no. 1 has sold the suit property in favour of defendant no. 3 by

virtue of a registered deed of sale dated 04.10.1990 though the defendant

no. 2 and 3 had full knowledge and notice of the plaintiff's agreement of

sale of the suit property. The plaintiff has also learnt that in the said

registered deed of sale the defendant no. 2 has falsely described the suit

property being comprised within holding no. 2228/I within ward no. VII

although there is no holding with respect to the aforementioned land.

Moreover the said holding stands in the name of a different person namely

Sri Babu Lal Mahto. It is apparent that the defendant no. 1 with ulterior

motive and malafide designed and with a view to defeat the agreement in

collusion and connivance with defendant no. 2 and defendant no. 3, the

defendant no. 1 has cheated and deceived the plaintiff and extracted the

sum of Rs. 47,000/- only hence all the defendants are equally bound under

the agreement aforesaid as the contents of the agreement are within the

knowledge and notice of all the defendants. The conduct of the defendants

have clearly established and proved that their intention is to cheat the

plaintiff and the defendant no. 1 is not willing and ready to perform his part

of the contract and thus they have violated the terms of the agreement.

Accordingly, the plaintiff gave an advocate's notice through registered post

with A/D to the defendant no. 1 on 11.03.1991 which has been sent on

12.03.1991 which was duly received by the defendant no. 1 on 22.03.1991

and the same notice on the other postal address of the defendant no. 1 at

village -Bandhgari, District - Ranchi was also sent to the defendant no. 1 on

23.03.1991 through registered post requesting him to execute and

registered the deed of sale in his favour within a period of one month from

the date of receipt of the notice. Despite service of the notice the defendant

did not take step to get the permission from the competent authority and

also failed to execute and registered the deed of sale in favour of the

plaintiff. It was also stated that the plaintiff was always ready and willing

and is still ready and willing to perform his part of the agreement and to get

the deed of sale executed and registered in her favour but the defendant

no. 1 has failed to perform his part under agreement though he has

received more than the entire consideration money. The cause of action for

the suit arose on 17.09.1990 when the defendant no. 1 executed the

agreement for sale of the property in suit and on various date on which the

plaintiff requested the defendant no. 1 for execution and registration of the

deed of sale and on 26.10.1990 when the defendant no. 1 received further

advance amounting to Rs. 20,000/- and Rs. 7,000/- for the purpose of

purchase of non judicial stamp papers and on the date when the plaintiff

gave advocate's notice by registered post to defendant no. 1 and on expiry

of the period for non complying the request of the plaintiff by the

defendants.

5. The defendant no.3 appeared in the suit and filed written statement

stating therein that the suit is not maintainable and is liable to be dismissed

as it is barred by law of limitation, waiver and acquiescence. The suit is also

bad for mis-joinder and non-joinder of the necessary parties. There is no

cause of action for the suit and the plaint is false and fabricated for the

purpose of the suit. It was also stated that the suit is not maintainable for

specific performance of contract against the persons who are not bound by

any such contract or agreement and who are not the parties to the same

and hence the suit is liable to be dismissed so far the defendant no. 3 is

concerned. It was also stated that the suit is collusive and the plaintiff with

the defendant no. 1 has managed to file the present suit for declaration of

the title of the defendant no. 1 in the garb of the suit for specific

performance and by cheating a false and forged document purported to the

agreement for sale for which the defendant no. 1 has got neither any right

nor title or possession with respect to the property concerned therein as per

agreement between them for valid consideration paid to the defendant no.

2 subsequent to which alienation by the registered deed of sale dated

04.10.1990 was made and since then defendant no. 3 is coming in

possession of the same by paying the rent and taxes for the same. It was

also stated that the entire document alleged to be an agreement for sale is

collusive and executed without any valid right and title. The payment of

entire consideration money is also false and so far the statement that the

permission under provision of the Urban Land Ceiling Regulation Act, 1976

was required to be obtained was also false as from the alleged agreement it

is clear that the suit property is not the vacant land but consist of house and

hence no permission is required for transfer of any such property. It was

also stated that that nobody will pay the entire consideration money of the

land which will not be put in possession of the purchaser and without

drafting of deed no purchaser will pay the cost of stamp and other

expenditure to any such seller who is avoiding to execute the sale deed and

the allegation of making endorsement on 11.12.1990 on the payment of

Rs.7,000/- in the agreement separately is also unbelievable and denied. It

was further stated that there was neither any notice of the alleged

agreement nor there was any necessity or occasion as the defendant no. 1

was or is neither the owner of the suit property nor has got any right to

execute any such agreement to sale the suit property and as such this

defendant is not bound by such illegal and false agreement.

6. The defendant no. 2 has also appeared in the suit and filed his

written statement separately denying the entire contents of the plaint and

has stated that the suit is not maintainable for specific performance of

contract who are not bound by such contract or agreement and who are not

the parties to the same and hence the suit is liable to be dismissed. It was

also stated that suit is collusive and is of result of collusion of the plaintiff

with the defendant no. 1 who has filed the suit for declaration of title of the

defendant no. 1 in the garb of suit for specific performance of contract by

creating a false document purported to be an agreement. It was further

stated that the suit is not maintainable as the agreement in question is no

longer in existence by virtue of the execution of deed of cancellation dated

31.12.1990 which has been executed by the defendant no. 1 and registered

on 31.12.1990 being deed no. 12548 dated 31.12.1990 by which the

registered agreement of sale executed in favour of the plaintiff has been

cancelled by stating that the plaintiff fail to perform the commitments of the

agreement during the stipulated time made therein. It was also stated that

the allegation of making payment of entire consideration money is false and

not liable to be believed and the suit property is not the vacant land rather

it consist of house hence no permission is required for transfer of any such

property. It was also stated that the alleged agreement is false and

fabricated and collusive and the question of execution of false deed does

not arise by the defendant no. 1 who has got no right to make any such

sale rather the plaintiff was knowing from the very beginning that the suit

property is exclusively belong to this defendant and this defendant is going

to transfer the suit land to the defendant no. 3 and in order to put

obstruction the defendant no. 1 first of all tried to stop the said transaction

by this defendant no. 2 in favour of the defendant no. 3 and having failed to

achieve evil intention has managed to create the present agreement for sale

concerning in the suit in collusion with the plaintiff. It was further stated

that there was neither any notice of the alleged agreement nor there was

any necessity or occasion as the defendant no. 1 was or is neither the

owner of the suit property nor has got any right to execute any such

agreement to sale the same and even there was any notice, thus this

defendant was not bound by such illegal and false agreement. It was also

stated that suit plot consist of house and within the municipal area and as

such previously the holding number which was allotted to the said plot is in

the name of Sri Babu Lal Mahto and others who are nobody else but co-

sharers of the said plot which was subsequently divided among themselves

and out of which portion of the same being the suit property was allotted to

this defendant exclusively by mentioning that the suit property is a part of

the holding allotted to the entire plot earlier the deed has been registered.

It was also stated that the defendant no. 1 has got no title or right to

execute any such agreement or contract to sale the land which exclusively

belongs to this defendant and as such the plaintiff is not entitle for any

decree or any relief as prayed for.

7. The defendant no. 1 has also appeared in the suit and filed his

written statement admitting the entire contents of the plaint. He has stated

that he is the sole exclusive owner by virtue of memorandum of partition

dated 15.05.1990 of the suit property which has been allotted to him by his

father Bisheshwar Mahto and he is in possession over the same. He has

admitted that he entered into an agreement of sale with respect to suit

property with the plaintiff vide registered agreement dated 17.09.1990 and

the defendant has received the entire consideration money as stated by the

plaintiff. He also admitted that he has received a sum of Rs. 7,000/- only as

cost of stamp for registration of the sale deed on 11.12.1990 and the

defendant no. 2 has no right, title or interest over the suit land and thus any

deed of sale executed by him to the defendant no. 3 is totally invalid under

the law and the defendant no. 3 has not acquired any interest over the

same. It was also stated that this defendant is still willing and ready to sale

the property in suit in favour of the plaintiff and the defendant no. 2 has no

right to sale the suit lands in favour of the defendant no. 3 as such the suit

of the plaintiff may be decreed in his favour.

8. In the aforesaid background, the learned trial court as well as the

appellate court held, which has been recorded herein above.

9. Mr. Ambastha, learned counsel appearing for the appellant submits

that the learned appellate court has committed error of law in granting a

decree for realization of the amount of advance worth Rs.40,000/- i.e. the

entire consideration money paid by the appellant/plaintiff to the original

defendant no.1 Falindra Gope besides a sum of Rs.7,000/- paid by the

appellant/plaintiff to the said Falindra Gope with interest @ 6% per annum

from the date of institution of the suit till realization instead of granting a

decree for specific performance of agreement dated 17.09.1990 in favour of

the appellant/plaintiff. He further elaborates his argument by way of

submitting that Falindra Gope had executed registered agreement for sale of

the suit land to the appellant/plaintiff on 17.09.1990 and had received the

entire consideration money amounting to Rs.40,000/- besides a sum of

Rs.7,000/- for meeting necessary expenses towards registration of the sale

deed and the appellant/plaintiff was all along ready and willing to get the

deed of sale executed and registered in her favour and the learned

appellate court has committed error of law in not granting a decree for

specific performance of the agreement. He further submits that both the

learned courts have failed to appreciate the evidence led on behalf of the

appellant/plaintiff and in that view of the matter, there is substantial

question of law and this second appeal may kindly be admitted.

10. On the other hand, Mr. Rai, learned counsel appearing for respondent

no.11 submits that respondent no.11 is purchaser of the land in question

and she was not party in the agreement and that is why the learned trial

court has held that the suit is not maintainable under Section 19(b) of the

Specific Relief Act, 1963. He submits that there is no illegality in the

judgment of the learned trial court. He further submits that considering this

aspect of the matter, the learned appellate court has also held that

respondent no.11 has purchased the land in question bonafidely and no

relief can be extended to the appellant/plaintiff, however the learned

appellate court has been pleased to grant some relief by way of granting

refund of the entire consideration amount along with Rs.7,000/- for stamp

paper with interest @ 6% per annum from the institution of the suit till the

realization in favour of the appellant/plaintiff by substituted defendant nos.

1(A) to 1(E). He also submits that there is no illegality in the judgment of

the learned appellate court. Apart from that, there is no perversity also and

there is no substantial question of law involved in this second appeal and

this second appeal may be dismissed.

11. In view of the above submissions of the learned counsel appearing for

the parties, the Court has gone through the judgments of the learned trial

court as well as the appellate court and finds that the learned trial court has

framed 9 issues to decide the suit. Issue nos. (v) and (vi) were with regard

to specific performance of agreement and about the terms of the

agreement for sale and while deciding these issues, the learned trial court

found that it is the admitted case of the plaintiff and overwhelmingly

evident from Ext.5, which is the registered agreement that it was only

defendant no.1-Falindra Gope and plaintiff who have entered the agreement

and if it is so, the learned trial court held that the agreement entered into

between the plaintiff and defendant no.1 cannot create any legal

responsibility, liability or obligation upon defendant nos. 2 and 3 to

discharge anything out of that contract because defendant nos. 2 and 3 are

totally stranger to the said agreement. The learned trial court has further

gone into the documents and provisions under the Specific Relief Act and

held that defendant nos. 2 and 3 are not party to the agreement and that is

why the said issues were decided against the appellant/plaintiff.

12. Aggrieved with the judgment of the learned trial court, the

appellant/plaintiff preferred the said title appeal. The learned appellate

court while deciding issue nos. 5 and 6 found that in view of general rule,

Specific Performance of a Contract/agreement can only be obtained if it can

be found to be capable of mutual enforcement i.e. at the time it was

entered into, it could have been enforced by either party to it against the

other. Section 19(b) of the said Act lays down that a contract may be

specifically enforced against either party thereto and not against a stranger

and in the case in hand, defendant no.2 and defendant no.3 are not the

party to the agreement, so they are not bound by the said agreement and

that is why, that issue has been decided by the learned appellate court

against the appellant/plaintiff. Thus, both the courts have given concurrent

finding on the issue that defendant no.2 and defendant no.3 were not party

to the agreement. While deciding issue no.4, the learned appellate court

has held that the suit is hit by Section 34 of the Specific Relief Act and that

was also decided against the appellant/plaintiff. While deciding issue no.7,

the learned appellate court held that defendant no.3 is the bonafide

purchaser and she has no knowledge about execution of the agreement and

after purchase of the land, she is in possession of the land in question and it

has been further held by the learned appellate court that defendant no.3

was not bound by the agreement executed by defendant no.1 in favour of

the appellant/plaintiff and that issue was also decided against the

appellant/plaintiff. While deciding issue no. 8, the learned appellate court

has considered the agreement (Ext.5) and after discussing the law points

under the said Act, held that the appellant/plaintiff is entitled for refund of

entire consideration amount along with Rs.7,000/- for stamp paper with

interest and, accordingly, the appeal was allowed with certain modification.

Thus, this Court finds that the learned trial court as well as the appellate

court, which are two fact finding courts, have concurrently held that

defendant no.2 and defendant no.3 are not party to the agreement and

defendant no.3 is the bonafide purchaser. Moreover in the suit, alternative

prayer was not made and merely title has been prayed, which is barred

under Section 34 of the Specific Relief Act and in this regard, a reference

may be made to the judgment passed by the Hon'ble Supreme Court in

Union of India v. Ibrahim Uddin and another; [(2012) 8 SCC 148] .

Paragraphs 55 to 57 of the said judgment are quoted herein below:

"55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.

56. In Ram Saran v. Ganga Devi [(1973) 2 SCC 60 : AIR 1972 SC 2685] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 (hereinafter called "the Specific Relief Act") and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC 129 : AIR 1993 SC 957] this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [(2011) 4 SCC 567 : (2011) 2 SCC (Civ) 366] .)

57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief."

13. In view of the above facts, reasons and analysis, this Court comes to

the conclusion that there is no perversity in the judgments of the learned

trial court as well as the appellate court particularly considering that no

substantial question of law is involved in this second appeal. This Court is

not required to interfere with the judgments of two fact finding courts

sitting under Section 100 of the Code of Civil Procedure.

14. Accordingly, this second appeal is dismissed.

15. Consequently, I.A. No.450 of 2016 is also dismissed.

(Sanjay Kumar Dwivedi, J.) Ajay/