Bhagirath And Ors vs Q
2023 Latest Caselaw 4674 Raj

[2023/RJJD/011478]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 65/1988

Bhagirath And Ors.

----Appellant Versus 1/1 Ram Pyari Wife of Late Mani Ram & Ors.

                                                                 ----Respondent



For Appellant(s)           :    Mr. Pritam Solanki
For Respondent(s)          :    Mr. S.G. Ojha



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                 Judgment

Reserved on 21/04/2023
Pronounced on 16/05/2023

1. This appeal has been preferred under Section 96 of the Code

of Civil Procedure (CPC), 1908, against the judgment and decree

dated 07.08.1987 passed by the learned Additional District &

Sessions Judge, Raisinghnagar in Civil Original Suit No.35/81

(Mani Ram Vs. Bhagirath & Ors.), decreeing the suit (instituted by

the plaintiff-Mani Ram - since deceased, represented through his

LRs herein) for specific performance of the contract of sale

against the defendants (appellants herein), while also holding the

plaintiff entitled to receive the costs of litigation from the

defendants (appellants herein).

2. As per the pleaded facts, an agricultural land of Chak no.51

NP bearing murabba no.30 in killa no. 1 to 18 measuring about 14

bighas 6 biswas, was allotted to one Brij Lal (father of appellants/

defendants), since deceased, under the Rajasthan Colonization

(Gang Canal Lands Permanent Allotment and Sale) Rules, 1956

(hereinafter referred as 'Rules of 1956') on 16.02.1970. Late Brij

[2023/RJJD/011478] (2 of 13) [CFA-65/1988]

Lal was required to pay the price of the allotted land according to

the rates which were in force at the time of allotment.

2.1. The provisions of the Rajasthan Colonization (General

Colony) Conditions, 1955 (hereinafter referred as 'Conditions of

1955') were applicable as the General Conditions, on which the

land was to be granted in a colony. According to condition no.9

(Procedure for Acquisition of Rights) of the Conditions of 1955, all

grants made under the allotment rules in Gang Canal Colony area

were to be initially on a Gair Khatedari tenancy only and by way

of a lease for a period of 10 years from the date of the

commencement of the grant or allotment.

2.1.1. Thus, after payment of complete dues to the government,

Late Brij Lal would have become entitled to receive a Sanad from

the appropriate authority of the Government, conferring upon him

a right of a Khatedari Tenancy pertaining to the land. The Sanad,

as per the said condition no.9, was to be issued under the

signature and seal of the Collector and the Sanad was stipulated

to be registered by the grantee (Late Brij Lal - father of the

appellants/defendants - in the present case), according to the

provisions of the Rajasthan Tenancy Act.

2.2. However, since Late Brij Lal was not having sufficient money

to pay the due installments to the State towards the allotment of

the land in question, therefore, prior to making such payments,

an agreement for sale of the said land was entered into between

the grantee-Late Brij Lal (father of the appellants/defendants) and

plaintiff-Mani Ram, since deceased, (father of the respondents

herein) on 09.09.1974 for a consideration of Rs.29,000/-; out of

which Rs.18,200/- was paid (in cash) by plaintiff-Mani Ram to

[2023/RJJD/011478] (3 of 13) [CFA-65/1988]

Late Brij Lal, while the remaining amount of Rs. 10,800/- was to

be paid by plaintiff-Mani Ram to the State Government, towards

the due installments, in pursuance of the allotment of the land in

question (made in favour of Late Brij Lal). It was agreed between

Late Brij Lal and the plaintiff-Mani Ram, under the said

agreement, that the sale deed, in respect of the land in question,

would be registered on 15.11.1978, meaning thereby, by that

date, the complete payment towards allotment of the land in

question in favour of Late Brij Lal, would be duly paid by plaintiff-

Mani Ram to the State Government.

2.2.1. In pursuance of the aforementioned sale agreement,

plaintiff-Mani Ram accordingly, paid, against the remaining

installments to the State Government, Rs.1470/- on 09.09.1974,

Rs. 2530/- on 1.03.1976 and Rs. 8000/-on 15.09.1978; thus, in

all, a sum of Rs.12,000/- was paid in installments to the State

Government by the plaintiff.

2.3. However, before the sale deed in respect of the land in

question between Brij Lal and plaintiff-Mani Ram, could be

registered on the date (15.11.1978) as mentioned in the sale

agreement, Brij Lal passed away in the year 1977; whereupon,

plaintiff-Mani Ram approached the legal representatives

(appellants/defendants herein) of Late Brij Lal to honour the sale

agreement, but the legal representatives refused to register the

sale deed. Thus, in those circumstances, on 16.11.1981, Mani

Ram instituted a suit (bearing no.35/81) for specific performance

of the contract of sale on the basis of the sale agreement dated

09.09.1974 entered into between him and Late Brij Lal (father of

[2023/RJJD/011478] (4 of 13) [CFA-65/1988]

the appellants/defendants), before the learned District Court,

Srigangangar.

2.4. After institution of the said suit, the trial commenced before

the Additional District Judge, Raisinghnagar. The learned Court

below, on the basis of the pleadings of the parties, framed the

following eight issues, for adjudication:-

"¼1½ vk;k izfroknh us okn i= ds iSjk ua- 1 esa of.kZr Hkwfe 14 ch?kk 6 fcLok ds fodz; dk lkSnk 29000 : esa fd;k vksj oknh ds gd esa fn- 9-9-74 dks ,d bdjkjukek rgjhj o rdehy fd;kA ¼2½ vk;k oknh us fookfnr tehu ds lkSns dh dher ds isVs izfroknh ds 18200a :- udn vnk fd;s vkSj tehu dk dCtk oknh dks fn;k x;kA ¼3½ vk;k oknh us fookfnr Hkwfe ds fd'rksa ds dqy 12000 :- ljdkjh [ktkus esa nkos dh en ua- 4 esa vafdr rkjh[kksa esa tek djk;sA ¼4½ vk;k oknh vuqca/k dh vius ftEes dh 'krksZ dh ikyuk djus dks o csukek tehu vius gd esa djkus dks ges'kk rS;kj o rRij Fkk vkSj vc Hkh gSA ¼5½ vk;k fookfnr Hkwfe dks cspus dk vf/kdkjh izfroknhx.k ds firk c`tyky dks ugha FkkA ;fn ,slk gS rks nkos ij D;k vlj ? ¼6½ vk;k nkok oknh E;kn cgkj gSA ¼7½ vk;k nkos esa elyk Mis joinder and Non joinder of necessary parties vk;k gSA

¼8½ nknjlh D;k gksxhA "

2.4.1. For the purpose of deciding the issues, plaintiff-Mani Ram

(since deceased, represented through his LRs-respondents herein)

produced two witnesses for examination, namely, i.e. PW-1 Mani

Ram (plaintiff) himself and PW-2 Sadul Ram, and one document

i.e. sale agreement dated 09.09.1974 was exhibited as EX.P-1.

On behalf of the appellant-defendants (LRs of Late Brij Lal -

grantee), Hanuman son of Late Brij Lal was examined as DW-1.

2.4.2. After hearing the parties in the suit, the learned Court

[2023/RJJD/011478] (5 of 13) [CFA-65/1988]

below, vide the impugned judgment and decree dated

07.08.1987, decided all the issues, so framed, in favour of

plaintiff-Mani Ram and against the appellants/defendants herein

(LRs of deceased-Brij Lal), and decreed the suit of the plaintiff

against the appellants/defendants, as above.

2.5. Thus being aggrieved by the aforementioned judgment and

decree dated 07.08.1987, the appellants/defendants have

preferred the present appeal.

2.6 However, during pendency of the present first appeal

original respondent-plaintiff (Mani Ram) expired on 07.12.2014;

hence, a combined application under Order 22 Rule 4 & Rule 9

CPC was preferred to bring his legal representatives (respondents

herein) on record and for setting aside the abatement; the same

was allowed on 05.05.2018; accordingly, while setting aside the

abatement in the wake of death of original respondent-Mani Ram,

the present respondents, being his LRs, were taken on record.

3. Learned counsel for appellant/defendants, while making

submissions qua the finding of the learned Court below on issue

No.1, in the impugned judgment and decree, submitted that the

learned Court below erred deciding the said issue, with the finding

that as per the statements of PW-1 Mani Ram (plaintiff) and PW-2

Sadul Ram, it was proved that the sale agreement in question was

executed, as claimed in the suit by plaintiff-Mani Ram.

3.1. It was further submitted that as per Section 134 of Indian

Evidence Act, 1872, there exists no requirement that a particular

number of witnesses needs to be examined, to prove or disprove

a particular fact. Thus, as per learned counsel, the learned Court

below committed an error of law, in deciding the issue against the

[2023/RJJD/011478] (6 of 13) [CFA-65/1988]

appellants/defendants, while holding that though DW-1 Hanuman

denied the genuineness of Ex.P-1 (sale agreement dated

09.09.1974), but no other witness to support such version of DW-

1, was produced for examination before the learned Court below.

4. As regards the finding on issue no.2, learned counsel for the

appellants/defendants submitted that the learned Court below

was of the opinion that since execution of EX.P-1 had been

proved, therefore, issue no. 2 was decided in favour of the

plaintiff, whereas in the year 1974, when the sale agreement in

question was stated to be entered, grantee-Late Brijlal (father of

the appellants/defendants) was mentally ill, and thus, plaintiff-

Mani Ram took undue advantage of Late Brij Lal's mental illness,

and got the alleged document in question prepared.

5. Learned counsel for the appellants/defendants further

argued that the due installments to be deposited with the State

Government was Rs. 10,200/-, whereas in the plaint, the amount

of Rs. 12,000/- was stated to have been deposited by plaintiff-

Mani Ram, and no explanation was given in regard to excess

amount being deposited by the plaintiff; also no receipt(s) were

produced before the learned Court below, regarding deposition of

the due installments.

6. Learned counsel for appellants/defendants also, while

vehemently opposing the decision given by the learned Court

below issue No.5, in the impugned judgment and decree,

submitted that Late Brij Lal (father of the appellants/defendants)

was simply holding the Gair Khatedari rights at the time of

entering into the alleged sale agreement, and further, till that

[2023/RJJD/011478] (7 of 13) [CFA-65/1988]

that, Late Briji Lal had not paid the price towards allotment of the

land in question.

6.1 It was argued that it was not proved whether the final

payment towards the price of the land in question was paid by the

grantee (Late Brij Lal in the present case) or any other person on

his behalf and a Sanad was issued in his favour or in favour of his

successor, even at the time of filing of the suit by the plaintiff-

respondent.

6.2 Learned counsel further asserted that according to condition

no.17 (10) of the Conditions of 1955, the grantee was bound not

to enter into any agreement for the transfer of the allotted land in

favour of any other person(s). Further, as per learned counsel, a

bare perusal of the conditions enumerated in Section 13 of

Rajasthan Colonization Act, 1954, (hereinafter referred as 'Act of

1954'), the agreement to sale was hit by the expression

'expressio unius est exclusion alterius' which means that express

mention of one thing implies the exclusion of other as well.

6.3 It was also argued that the learned Court below decided the

issue against the appellants-defendants on the ground that as per

Section 13 of the Act of 1954, there was no bar on agreement to

sale of land but there was a bar on execution of sale-deed.

6.4. In support of such submission, learned counsel for the

appellants/defendants placed reliance on the judgment rendered

by the Hon'ble Apex Court in the case of Bhadar Ram (dead)

through LRs v. Jassa Ram & Ors. (Civil Appeal No.

5933/2021, decided on 05.01.2022), while submitting that in

the said judgment, it was held that transactions in contravention

of Section 13 of the Act of 1954 are void.

[2023/RJJD/011478] (8 of 13) [CFA-65/1988]

7. Learned counsel for the appellants/defendants further

submitted that given the facts and circumstances of the case,

instead of the decree of specific performance, the decree should

have been for return of the price of the disputed land alleged to

have been paid in advance by plaintiff-Mani Ram along with

compensation.

8. Learned counsel for the appellants/defendants, thus,

submitted that the impugned judgment and decree dated

07.08.1987 passed by the learned Court below deserves

interference by this Court.

9. On the other hand, the learned counsel for respondents (LRs

of plaintiff-Mani Ram) submitted that the sale agreement was

entered between the parties on 09.09.1974 in favour of Mani

Ram, and accordingly, in pursuance of the same, the possession

was duly handed over to plaintiff-Mani Ram.

9.1. In furtherance, it was submitted that Rs.18,200/- was paid

in cash to Late Brij Lal (father of the appellants/defendants) and

the remaining amount of Rs.10,200/- (amount of Rs.12,000/-, as

claimed by the respondents) was paid in installments to the State

Government by 15.09.1978.

10. Learned counsel for the respondents further submitted that

under the agreement in question, the sale deed was agreed to be

registered and executed on 15.11.1978 and the map and Sanad

were to be obtained by Late Brij Lal; it was also agreed on the

date of the sale agreement that in case Late Brij Lal fails to

execute the sale deed or violate the terms of the sale agreement,

the plaintiff-Mani Ram (since deceased - represented through his

LRs- respondents herein) would be entitled to seek and obtain the

[2023/RJJD/011478] (9 of 13) [CFA-65/1988]

decree of specific performance of the contract of sale on the basis

of the agreement in question.

10.1. In addition, it was also agreed that in the event of failure on

the part of Late Brij Lal in execution of the agreement in question,

he would pay Rs. 36,400/- as compensation to plaintiff-Mani Ram

or recovery from the property of the defendant; it was also

agreed that the actual possession of the land in question shall be

delivered to plaintiff-Mani Ram on the same day; accordingly, the

actual possession of the land in question was handed over to

plaintiff-Mani Ram, and the respondents being his legal

representatives are in possession thereof; the agreement in

question was attested by witnesses Sadul Ram, Bhura Ram and

Arjeenvish Laxmi Narayan on 09.09.1974 itself. Learned counsel

further submitted that Sadul Ram son of Brij Lal supported the

execution of the agreement during the witness examination

before the learned Court below.

11. Learned counsel for the respondents submitted that plaintiff-

Mani Ram was always willing to perform his part of the contract,

and has accordingly done so by paying the entire due amount to

the State Government in respect of the land in question, and only

thereafter, he, time and again requested Late Brij Lal to get the

execution of contract of sale done.

12. As regards issue No.5, it was submitted by learned counsel

for the respondents that there was no restriction on agreement to

sale, as on account of Section 13 of the Act, 1954, after getting

sanction from the Collector, the same can be executed. Thus, the

sale of the land in question was valid, and on obtaining the

tenancy rights, the sale can be registered and executed.

[2023/RJJD/011478] (10 of 13) [CFA-65/1988]

13. Learned Counsel for the respondents, in support of his

submissions, has placed reliance on the judgments rendered by

the Coordinate Benches of this Hon'ble Court in the cases of LRs

of Surja Ram & Ors. v. LRs. Of Asha Ram & Ors. (2008 (2)

DNJ (Raj.) 818) and Shri Ram & Anr. v. Board of Revenue,

Ajmer & Ors., (S.B. Civil Writ Petition No. 4338 of 2006,

decided on 12.05.2008).

14. Heard learned counsel for the parties as well as perused the

record along with judgments cited at the Bar.

15. This Court observes that Late Brij Lal (father of the

appellants/defendants) and plaintiff-Mani Ram (since deceased,

represented through his LRs-respondents herein) entered into an

agreement for sale of the aforementioned agricultural land on

09.09.1974 for a consideration of Rs.29,000/-, out of which

Rs.18,200/- was paid in cash and the remaining amount was paid

to the State Government in installments by Mani Ram, by the

year 1978. Since Brij Lal expired in the year 1977, plaintiff-Mani

Ram approached the legal representatives of Late Brij Lal (the

grantee), but they refused to execute the sale deed, while

dishonouring the sale agreement in question. Thus, a suit for

specific performance of the contract of sale was instituted by

plaintiff-Mani Ram before the learned District Court,

Sriganganagar; thereafter, the learned Additional District Judge

Raisinghnagar, vide the impugned judgment and decree dated

07.08.1987, decreed the suit in favour of the plaintiff and against

the appellants/defendants.

16. This Court further observes that the entire controversy

revolves around the issue no.5 as framed by the learned Court

[2023/RJJD/011478] (11 of 13) [CFA-65/1988]

below, which was, whether Late Brij Lal (father of appellants-

defendants) was authorized to sell the land in question, on the

basis of the sale agreement in question, or not. It is clear that

Section 13 of the Act of 1954 prohibits transfer of land by way of

sale without previous consent of State Government or an officer

of State Government.

16.1. This Court however, observes that Section 13 of the Act of

1954 only prohibits the execution of a sale deed, and not entering

into the sale agreement. In the present case, only an agreement

to sale (dated 09.09.1974) took place to be executed at a later

date (i.e. 15.11.1978); such execution was stipulated to be made

after due deposition of the complete amount towards the

allotment of the land in question with the State Government by

plaintiff-Mani Ram; whereafter, Brij Lal was to receive the

requisite Sanad from the Collector, so as to become Khatedar

Tenant of the land in question, as observed by the learned Court

below in the impugned judgment and decree.

16.2. Plaintiff-Mani Ram performed his part of the contract, duly

depositing the outstanding installments with the State

Government; however, after the death of Brij Lal, his legal heirs,

who are appellants/defendants herein, refused to honour the

agreement in question, thereby, failing to discharge their

obligation under the agreement in question.

16.3. This Court further observes that as per the findings

recorded by the learned Court below in the impugned judgment

and decree, the appellants/defendants did not qualify with

[2023/RJJD/011478] (12 of 13) [CFA-65/1988]

regard to the rest of the issues either. It was observed that the

sale agreement dated 09.09.1974 was written by one Laxmi

Narayan and registration/execution of the same was to be done

in the year 1978 (on 15.11.1978) and the actual possession of

the land in question was handed over to plaintiff-Mani Ram,

immediately after the agreement itself, and that, the

respondents (LRs of plaintiff-Mani Ram) are still in possession

thereof.

16.4. In furtherance, it was also observed by the learned Court

below in the impugned judgment and decree that only oral

evidence was given by DW 1 Hanuman (son of Late Brij Lal),

who questioned the genuineness of the agreement in question,

and no documentary evidence was placed on record to

substantiate the same. It was further observed that the

remaining amount of consideration (Rs.12,000/-) had also been

paid in installments in the Government treasury as part of his

(plaintiff-Mani Ram's) performance of the contract; thus, it was

evident that Mani Ram was always willing and ready to perform

his part of the contract, which he duly performed.

17. The judgment cited on behalf of the appellants/defendants

does not render any assistance to their case.

18. In light of the aforesaid observations, the present petition is

dismissed, while upholding the impugned judgment and decree

dated 07.08.1987 passed by the learned Additional District &

Sessions Judge, Raisinghnagar. All pending applications stand

[2023/RJJD/011478] (13 of 13) [CFA-65/1988]

disposed of. The record of the learned court below be sent back

forthwith.

(DR. PUSHPENDRA SINGH BHATI), J.

SKant/-

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