[Cites 5, Cited by 0]
Jharkhand High Court
Krishnanand Rai vs Meena Singh on 9 December, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:36974
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S. A. No. 122 of 2025
1. Krishnanand Rai, aged about 57 years.
2. Yogeshwar Pd. Rai, aged about 56 years.
3. Deo Das Pd. Rai, aged about 54 years.
All sons of late Nawal Kishore Rai, resident of Village Dakai,
P.O. Manigarhi, P.S. Sarwan, Sub-Division and District-Deoghar.
Late Nawal Kishore Rai (Defendant No.1 in Title Suit No.2 of
2013) died on 01.02.2023 therefore, he has not been made
party in the instant appeal.
... ... Defendant 1st party/Appellants/Appellants
Versus
1. Meena Singh, wife of Dharmendra Singh and daughter of Late
Mahavir Singh, resident of Karnibad, Jhousagarhi Sahid Ashram
Road, Deoghar, P.O. +P.S. + Sub-Division and District Deoghar.
... ... Plaintiff/Respondent 1st Party/Respondent
2. Vivekanand Rai, S/o Lakhan Lal Rai, R/o Karnibad, P.O.
Naulakha Ashram Deoghar, P.S. Kunda, Sub-Division and
District-Deoghar
3. Monaj Kr. Tiwary, S/o Nilkanth Tiwary, R/o Baghmara, P.O.
Daburgram, P.S. Jasidih, Sub-Division and District-Deoghar
... ... Defendant 2nd party/Respondent 2nd Party/
Performa Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Ankur Anand Advocate
For the Respondents :
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Lastly heard on, 19.11.2025 Pronounced on 09th December, 2025
1. This second appeal has been filed against the Judgment and
Decree dated 22.03.2025 (Decree sealed and signed on 03.04.2025)
passed by the learned District Judge-III, Deoghar in Civil Appeal
No.20 of 2023 affirming the Judgment and Decree dated 24.01.2023
(Decree sealed and signed on 04.02.2023) passed by the learned Civil
Judge (Senior Division)-III, Deoghar whereby Title Suit No.28 of
2013 seeking specific performance of contract was partly decreed by
directing the defendant no.1 to execute the sale deed for 1/3rd share
(829 sq. ft.) out of the area of 4978 sq.ft. as described in schedule 'A'
of the plaint in favour of the plaintiff on receiving rest of the balance
consideration amount as per the agreement dated 12.08.2009 within 2
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months failing which the plaintiff will be at liberty to get the sale deed
executed through the agency of the court.
2. The defendant 1st party having lost in 1st appellate stage has
filed this second appeal.
3. The suit was filed for the following reliefs:-
(i) That the decree of specific performance directing the
defendant 1st party to execute the sale deed for the 1/3rd share
(829 Sq. ft.) property out of agreement area 2489 Sq. ft. out of
total area of 678 plot number is 4978 Sq. ft. described in
Schedule-A of this plaint to the plaintiff and 1/3 share to the
defendant No. 2 and 1/3 share to the defendant No. 3, on receipt
of the balance consideration amount and in case the defendant 1 st
party will not find ready for executing the sale deed through the
process of court.
4. The learned counsel for the appellants while assailing the
impugned judgments has submitted that the learned trial court did not
frame any specific issue in connection with readiness and willingness
on the part of the plaintiff to perform his part of the contract. The
learned counsel for the appellants has relied upon the judgment of the
Hon'ble Supreme Court passed in Civil Appeal Nos. 8050-8051 of
2022 [V.S. Ramakrishnan vs. P.M. Muhammed Ali] decided on 09th
November, 2022 and has referred paragraph 4.1 of the said judgment
to submit that no finding can be recorded with respect to readiness and
willingness in absence of specific issue framed to that effect. He
submits that the Hon'ble Supreme Court in the said case had
remanded the matter by framing that issue for consideration by the
learned trial court.
5. He has also submitted that the learned courts have failed to
consider that the father of the plaintiff was contesting a case against
the defendant in a proceeding under Section 144 Cr.P.C. which was
initiated on 17.07.2009 and was ultimately dropped on 04.09.2009 and
in the meantime the agreement of sale was entered on 12.08.2009. He
submits that it is almost an impossibility that in the midst of a
proceeding under Section 144 Cr.P.C. the agreement of sale will be
entered into between the parties. He submits that this aspect of the
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matter has not been considered by the learned courts while upholding
the validity of the agreement.
6. Learned counsel has also submitted that the specific
performance has been allowed with respect to undivided portion of the
property inasmuch as there has been no partition with respect to the
suit property which stood recorded in the name of the defendant and
his brother. He submits that the brother of the defendant was not even
a party in the suit for specific performance of contract and even in the
agreement the brother of the defendant was not a party. The learned
counsel for the appellants has submitted that there cannot be any suit
for specific performance of contract with respect to undivided share in
the property.
7. Learned counsel for the appellants has further submitted that
one title suit being T.S. No. 147 of 2009 was pending challenging the
sale deed which was executed in favour of the defendant with respect
to the property which is involved in the present case and though the
suit was dismissed but Civil Appeal No. 10 of 2023 is pending before
the learned 1st appellate court. He submits that the present suit was
barred under Section 10 of the CPC.
8. During the course of hearing, a specific query was put to the
learned counsel for the appellants as to whether any petition seeking to
keep the adjudication of the suit in abeyance under Section 10 was
filed by the appellants. He has submitted that no such petition was
filed, but still the court should have Suo Motto kept the matter pending
awaiting the decision of Title Suit No. 147 of 2009/ Civil Appeal No.
10 of 2023.
9. The learned counsel for the appellants has referred to the
proposed substantial question of law Nos. (i), (ii), (iv) & (v) which are
as follows: -
I. Whether the decree for specific performance is legally tenable
when the execution and validity of the sale agreement are
doubtful and not conclusively proved, especially in light of
inconsistencies in evidence or suspicious circumstances
surrounding the alleged agreement?
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II. Whether the courts below erred in law by granting specific
performance of an agreement executed by one co-owner in
respect of the entire undivided property, without partition or
identification of his share?
III. Whether the decree for specific performance is legally
sustainable when the suit property is already sub judice in a
prior pending litigating involving ownership, thereby
attracting the bar under Section 10 of the Code of Civil
Procedure, 1908?
IV. Whether the court below erred in law in granting specific
performance despite the plaintiff failure to prove readiness
and willingness to perform his part of the contract as
mandated under Section 16(c) of the Specific Relief Act, 1963?
10. The impugned judgements reveal that the suit was filed by one
plaintiff seeking specific performance of contract and stating that the
registered agreement of sale dated 12.08.2009 was valid and
enforceable and the agreement was entered into between the plaintiff
along with defendant No.2 and 3 with the defendant No.1 and
maximum payment of Rs.1,22,000/- out of total consideration amount
of Rs.1,42,000/- was paid to the defendant No.1. Admittedly, the
learned trial court did not frame any issue with regard to readiness and
willingness on the part of the plaintiff to perform her part of the
contract. Since, the agreement was entered into between the plaintiff
along with defendant No.2 and 3 on one hand and the defendant No.1
on the other hand an issue was framed by the learned trial court being
issue No.(iv) i.e "Whether the plaintiff is entitled for decree of
specific performance of contract alongwith defendant numbers 2
and 3 against defendant 1st party on the basis of registered
agreement dated 12.08.2009?"
11. Since the defendant Nos. 2 and 3 did not continue with the suit
after filing of the written statement, the learned trial court was of the
view that the plaintiff could not suffer on account of their absence and
held that the plaintiff was entitled to specific performance of contract
to the extent of her share as per agreement dated 12.08.2009 and the
defendant No.1 was directed to execute a sale deed for 1/3rd share (829
Sq.ft.) property out of the agreement area 2489 Sq.ft. out of total area
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of 4978 Sq.ft., plot No. 678 as described in schedule 'A' of the plaint
in favour of the plaintiff on receiving the balance consideration
amount as per the registered agreement dated 12.08.2009 within two
months.
12. Thus, specific performance of contract was allowed with
respect to only 1/3rd share as defendant Nos. 2 and 3 who were also
party in the agreement along with the plaintiff did not participate in
the suit and the plaintiff was asked to give the balance consideration
amount in terms of the agreement dated 12.08.2009.
13. The learned trial court observed that after passing of the
judgment in Title Suit No. 147 of 2009 there was no dispute that the
defendant No.1 had title over the property and it had come in the
evidence of DW-3 that the contesting defendant i.e. defendant No.1
had not filed any suit to cancel the alleged agreement dated
12.08.2009. Admittedly, the plaintiff was not a party to the Title Suit
No. 147 of 2009.
14. The learned 1st appellate court referred to the judgment passed
by the Hon'ble Supreme Court in the case of Maharaja Singh &
Others vs. Karan Singh (Dead) Thr. Lrs. & Others in Civil Appeal
No.6782 of 2013 decided on 09th July, 2024 wherein the suit for
specific performance of contract was confined to only 1st plaintiff out
of two by directing execution of specific performance of contract only
with respect to the extent of half share of the suit property in favour of
the plaintiff as the 2nd plaintiff was not interested. The suit for specific
performance of contract was granted with respect to the extent of one-
half undivided share of the suit property.
15. In the present case also the learned trial court has granted
specific performance of contract with regard to 1/3 rd undivided share
of the suit property in which the defendant Nos. 2 and 3 were not
interested although, they were party to the agreement of sale which
was sought to be enforced in the suit. This Court is of the view that
the learned 1st appellate court has not committed any illegality while
sustaining the judgment of the learned trial court who had restricted
2025:JHHC:36974
the transfer of suit property only to the extent of 1/3 rd of the suit
property.
16. A plea of non joinder of necessary party was raised by the
defendant no.1 on the ground that widow of Sachhidanand Roy was
not made party to the suit and admittedly the suit property was
purchased by the defendant no. 1 and his brother Sachhidanand Roy.
The suit was filed seeking specific performance of a registered
agreement of sale entered into between the original plaintiff and
defendant 2nd party on one side and defendant 1st party on the other.
The learned trial court while considering the point of non-joinder of
necessary parties under issue no. (vi) has recorded a finding that in the
suit for specific performance of contract involved in the suit all the
necessary parties were on record. The court observed that the
defendant no.1 has raised his objection that the suit land was
purchased jointly by the defendant no.1 along with his deceased
brother Sacchidanand Roy who died issue-less leaving behind his
widow and in absence of any partition between this defendant no.1
and widow of Sachhidanand Roy, namely, Premlata Devi, the question
of selling out the suit land does not arise at all. The plea of non-joinder
of necessary party raised by the defendant no.1 was rejected by
observing that on perusal of the registered agreement dated
12/08/2009 as executed by the defendant no.1 alone without
mentioning that defendant no.1 was also representing the widow of
Sachhidanand Roy and it was an admitted fact that Sacchidanand Roy
died issue less and no legal heir, if any, had come forward to challenge
the same. The learned 1st appellate court has recorded that in the
registered agreement, the defendant no.1 had mentioned that after
death of Sachhidanand Roy, he was the sole owner of the property
having area of 4978 sq.ft. This Court also finds that the suit property
was its half, that is, 2489 sq.ft. This Court also finds that the defendant
no.1 claimed in the written statement that there was a co-sharer of the
suit property as widow of Sachhidanand Roy was alive, but she did
not come forward to substantiate the stand taken in the written
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statement. Further, the registered agreement dated 12.08.2009 as
executed by the defendant no.1 revealed that defendant no.1 was the
sole owner of the suit property. The defendant no.1 himself declared
in the registered agreement to be the sole owner and himself stated in
the written statement that there was co-owner, namely the widow of
Sachhidanand Roy but the defendant 1st party could not substantiate
this fact as is apparent from the judgement passed by the learned trial
court and upheld by the learned 1st appellate court. No material as
such has been pointed out by the learned counsel for the appellants to
show that there was any material on record to substantiate that
Sachhidanand Roy, who admittedly died issueless had a living widow
on his death, much less on the date of execution of the registered
agreement by the defendant no.1 declaring himself as the sole owner
of the property whose half portion only was the subject matter of the
suit. Thus, the plea of non-joinder of necessary party was rejected by
the learned trial court by citing good reasons and no substantial
question of law arises in this regard.
17. This Court finds that the learned trial court though has not
framed any specific issue in connection with readiness and willingness
on the part of the plaintiff to perform her part of the contract which
was essentially relating to payment of balance consideration amount,
but has recorded finding in connection with readiness and willingness
on the part of the plaintiff to pay the balance consideration amount
and ultimately partly decreed the suit in her favour confined only to
the extent of 1/3rd share of the suit property and rejected the prayer
with respect to specific performance of contract in favour of defendant
2nd party with respect to balance 2/3rd of the suit property. There can
be no dispute that the consideration amount to the extent of 1/3rd of the
suit property was already paid, but the specific performance was
subject to payment of the entire balance consideration amount which
was balance with respect to the entire suit property. Thus, the plaintiff
could get relief of specific performance regarding only 1/3 rd of the suit
property upon payment of entire balance consideration amount of the
2025:JHHC:36974
whole property and there is no dispute that consideration amount to
the extent of 1/3rd portion of the suit property was already paid.
Further, the learned 1st appellate court has recorded a finding that on
perusal of Exhibit 1 it appeared that the plaintiff has send a pleader
notice through registered post Exhibit 3, and she requested the original
defendant no 1 to execute registered deed in her favour as per
agreement dated 12.08.2009 after receiving the outstanding dues
amount Rs 20,000/- from her and again, she had sent legal notice on
29.01.2013 regarding the same which showed that the plaintiff was
always ready and willing to purchase the suit land as per agreement
dated 12/08/2009. This Court finds that the learned courts have
recorded findings with regards to readiness and willingness on the part
of the plaintiff and recorded specific finding that no relief could be
granted to the defendant 2nd party as they were not interested although
they were also party to the agreement along with the plaintiff while
entering into registered agreement with the defendant 1st party
(defendant no.1).
18. The bone of contention between the parties was validity of the
agreement which by the defendant 1st party was alleged to forged and
fabricated. However, the courts after scrutinizing the materials have
found that the agreement of sale was valid. No perversity with regards
to the said finding has been pointed out by the learned counsel for the
appellants.
19. So far as the point of readiness and willingness to perform the
part of the contract on the part of the plaintiff is concerned,
Rs.1,22,000/- was already paid against the total consideration amount
of Rs.1,42,000/- for the entire suit property and remaining to be paid
by the plaintiff and the defendant 2nd party was Rs.20,000/- only. The
learned trial court though decreed the suit only in connection with
1/3rd of the suit property, but still directed the plaintiff to pay the
balance consideration amount which was for the entire suit property.
Thus, the plaintiff could get only 1/3rd of the suit property upon
payment of entire consideration amount for the entire suit property
2025:JHHC:36974
although the total consideration of 1/3rd portion would be only Rs.
47,334/-and total of Rs.1,22,000/- was already paid. In view of the
aforesaid facts and circumstances, the judgment relied upon by the
learned counsel for the appellants passed in Civil Appeal Nos. 8050-
8051 of 2022 (Supra) does not help the appellants in any manner
whatsoever.
20. In view of the aforesaid facts and circumstances, this Court is
of the considered view that no substantial question of law, much less
the substantial questions of law as suggested by the learned counsel
for the appellants, is involved in this case.
21. This 2nd appeal is accordingly dismissed.
22. Pending interlocutory application, if any, is dismissed as not
pressed.
23. Let a copy of this order be communicated to the concerned
courts through "Fax/e-mail".
(Anubha Rawat Choudhary, J.)
09.12.2025
Rakesh/-
Uploaded on 09.12.2025
