Rajasthan High Court

Mohan Lal vs Amar Chand on 19 October, 2022

Bench: Sudesh Bansal

           HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       BENCH AT JAIPUR

                              S.B. Civil Second Appeal No. 71/2014

 Mohanlal S/o Shri Shimru, R/o Village Surawas, Teh. Tijara Distt.
 Alwar
                                                                                     ----Appellant-Defendant
                                                                    Versus
 Amarchand S/o Shri Shimru, R/o Village Surawas, Teh. Tijara
 Distt. Alwar
                                                                                     ----Respondent-Plaintiff

For Appellant(s)                                   :        Mr. Dhruv Atri for
                                                            Mr. Harendra Singh Sinsinwar
For Respondent(s)                                  :        Mr. Anil Agarwal for
                                                            Mr. S.S. Sunda



                      HON'BLE MR. JUSTICE SUDESH BANSAL

                                                              Judgment

19/10/2022

1. Appellant-defendant has filed this second appeal under

Section 100 CPC, aggrieved by the judgment and decree dated

05.12.2013 passed in Civil First Appeal No.12/2009 by the

Additional District Judge, Tijara, District Alwar dismissing the

appeal and affirming the judgment and decree dated 29.11.2008

in Civil Suit No.38/2003 by the Civil Judge (Jr. Division), Alwar

whereby and whereunder the suit for specific performance of

agreement, filed by the respondent-plaintiff, has been decreed on

merits in following terms:-

" परिणामतः वादी का ववरुद्ध प्रवतवादीगण इस आशय कआ साथ वसाथ डि डिकथ डिक्री वकया किया जाता है वक प्रवतवादी म मोहनलाल वववावदत आिाकिया जी खसिा न० 210 िकबा 1 बीघा मजकिया जा सरिावास तहसील वतकिया जािा वकिया जला अलवि क मो द मो माह कआ अन्दि वनयमानरसाि वादी क मो बयनामा किा दआवआ तथा वववावदत संपव्ति क मो वकसी दीगि वयव्यक्ति क मो िहन-बैय वव डिकय ना किआ एवं वादी कआ उपय मोग-उपभो मोग मं बाधा कारित ना किं । उपि मो्यक्ति अनरसाि पपराप वसाथ डि डिकथ डिक्री तैयाि कथ डिक्री किया जावआ ।"

(2 of 7) [CSA-71/2014]

2. Heard learned counsel for both parties and perused the

material available record.

3. The relevant facts of the case, as culled out from the record,

are that plaintiff and defendant both are real brothers and plaintiff

instituted a civil suit seeking specific performance of an agreement

to sell date dated 15.06.1979 executed by the defendant in

respect of land bearing Khasra No.210 measuring 1 bigha situated

at village Surawas, Tehsil Tijara, District Alwar against the sale

consideration of Rs.4,000/-.

4. Plaintiff averred that the entire sale consideration of

Rs.4,000/- was paid to the defendant and the defendant delivered

the physical possession of the land in question to plaintiff. Plaintiff

averred that after execution of agreement, time and again he

asked to execute the sale deed but defendant deferred the matter

for one or another reason, and lastly plaintiff served a legal notice

dated 28.07.2003 and thereafter instituted the present civil suit.

5. Defendant submitted his written statement and contended

that the agreement to sell dated 15.06.1979 is forged document,

which was never executed by him. The defendant did not dispute

that he is the Khatedar of the land in question bearing Khasra

No.210 measuring 1 bigha and the fact that both parties are real

brothers. Defendant raised an objection that the suit was barred

by limitation.

6. The Trial Court, on the basis of rival pleadings of both

parties, permitted both parties to adduce their evidence in

respect of their respective contentions. The plaintiff produced

agreement as well as produced himself as PW-1, Vijay Kumar

(PW-2) the scriber of agreement and Mahendra Kumar (PW-3) the

(3 of 7) [CSA-71/2014]

stamp vendor of agreement. In rebuttal, the defendant did not led

any evidence.

7. The Trial Court, on appreciation of evidence on record,

concluded that the plaintiff has proved the execution of agreement

dated 15.06.1979 by his own evidence as well as by producing its

scriber and the stamp vendor from whom the stamp of agreement

was purchased. Since the defendant has taken a defence that the

agreement is forged and prepared, therefore, placing reliance on

the judgment of Hon'ble Supreme Court in case of Daulatram Vs.

Yog [(2005) DNJ SC 73], it was observed that the burden to

prove the agreement being forged lies upon the defendant, the

trial court held that in absence of defendant's evidence, he could

not discharge his burden. Further the trial court observed that

according to recital indicated in the agreement itself as well as

from the evidence of plaintiff, it stands established that the

plaintiff has paid entire sale consideration of Rs.4,000/- and the

defendant delivered the possession of suit land to the plaintiff.

In respect of the objection as to limitation, the trial court

observed that in the agreement dated 15.06.1979, no limitation

has been provided and only it was indicated that the sale deed

would be executed by Samvat 2037 but the time was not essence

of the contract. The trial court relied upon the provision of Section

54 of the Limitation Act to held that the limitation for the purpose

of suit for specific performance begins from the date when the

plaintiff noticed that the performance of agreement has been

refused by the defendant. Since in this case, no date of

performance was indicated in the agreement and the plaintiff

adduced the evidence that he asked the defendant to execute the

(4 of 7) [CSA-71/2014]

sale deed time and again, thereafter served a legal notice and

then filed the present suit, therefore, the suit was not found to be

barred by limitation.

8. The Trial Court further opined that the plaintiff has paid

entire sale consideration as well as obtained the physical

possession of the suit land, therefore, equity lies in his favour, and

since there is no counter evidence from the side of defendant, the

trial court exercised its discretionary power to decree the suit for

specific performance in favour of plaintiff vide judgment and

decree dated 29.11.2008 in the manner as mentioned

hereinabove.

9. The defendant did not prefer the first appeal within the

prescribed limitation, however a delay of near about more than

three months. The First Appellate Court, considering legal aspects

that the first appeal is a valuable and statutory right, took a liberal

view and condoned the delay and considered the first appeal on

merits. The First Appellate Court re-considered entire material on

record. The First Appellate Court observed that the plaintiff has

concluded his evidence by 01.08.2007 and thereafter several

opportunities were accorded to the defendant to adduce his

evidence. Even opportunity on cost was also accorded, but the

defendant led any evidence, and lastly his evidence was closed

vide order dated 06.11.2008. The said order was not challenged

by way of filing writ petition nor he has assigned sufficient reason

for not adducing any evidence. The First Appellate Court, in

absence of defendant's evidence, concurred with findings of the

trial court that the agreement dated 15.06.1979 was executed by

(5 of 7) [CSA-71/2014]

the defendant and the plaintiff had paid entire sale consideration

as also he received the possession of suit land.

In respect of the limitation, the First Appellate Court too

appreciated that it is true that the suit was filed after immense

delay, however it may not be treated as barred by limitation. The

First Appellate Court held that firstly, the time is not essence of

the contract and secondly, parties are real brothers and when the

plaintiff has paid the entire sale consideration as well as had

obtained the possession, moreover he adduced evidence that he

was ever ready and willing to get the sale deed registered, the suit

may not be held to be barred by limitation. The First Appellate

Court placed reliance upon the judgment of Hon'ble Supreme

Court in P. D' Souza vs. Shondrilo Naidu [(2004)6 SCC 649].

The First Appellate Court also considered the article of Section 54

of the Limitation Act and concurred with fact finding and judgment

of the trial court and dismissed the first appeal on merits vide

judgment and decree dated 05.12.2013.

10. Having considered the fact finding recorded by both courts

below in respect of execution of agreement as well as to the fact

that the plaintiff has paid entire sale consideration and did receive

physical possession, which are based on evidence available on

record, this Court is not inclined to interfere with such fact finding.

It may not be said in given facts and circumstances that two

courts below have committed any jurisdictional error or exercised

their discretion arbitrarily. In totality of facts, it is a case where

the trial court exercised its discretion guided by the judicial

principles of reasonableness and equity, and such discretion has

further been affirmed by the First Appellate Court.

(6 of 7) [CSA-71/2014]

11. The Hon'ble Supreme Court in case of Zarina Siddiqui Vs.

Ramalingam @ R. Amarnathan [(2015)1 SCC 705] has held

as under:-

"33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the Court then such discretion should not be exercised by refusing to grant specific performance."

12. The Hon'ble Supreme Court in case of Ramathal Vs.

Maruthathal and Ors. [(2018)18 SCC 303] while dealing with

the scope of Section 100 CPC to interfere in fact findings of two

courts below in respect of decreeing a suit for specific

performance observed as under:-

"When the intention of the legislature is so clear the

courts have no power to enlarge the scope of Section 100

for whatsoever reasons. Justice has to be administered in

accordance with law. In the case on hand the High Court

has exceeded its jurisdiction by reversing the well

considered judgment of the courts below which is based

on cogent reasoning. The learned judge ought not to have

entered the arena of re appreciation of the evidence,

hence the whole exercise done by the High Court is

beyond the scope and jurisdiction conferred under Section

100 of CPC."