2019 Supreme(Bom) 832

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
VIBHA KANKANWADI, J.
Kerba S/o Ambadas Dhengle & Ors. - Petitioners
Versus
Digambar S/o Ishwara Chavan - Respondents
Second Appeal No.289 of 1994
Decided On : 06-06-2019

Headnote:

Code of Civil Procedure, 1908 – Order 41 – Specific Relief Act – Section 20 – Indian Evidence Act – Section 91 and 92 – Specific Performance Of The Contract – Present appeal has been filed by the original plaintiff challenging the Judgment and decree passed by learned II Additional District Judge, in Regular Civil Appeal whereby the appeal filed by the present respondent came to be allowed and the Judgment and decree passed by the Trial Court was set aside. – Present appellant had filed Regular Civil Suit for specific performance of the contract against the present respondent before learned Civil Judge, Junior Division, Tuljapur Dist. Osmanabad. Present respondent – Original defendant is the owner of agricultural land bearing Survey No.55 admeasuring 5 Acres 12 Gunthas situated at village Kati Tq. Tuljapur Dist. Osmanabad. – Specific boundary of the suit property has been described. – It is stated that, it is a self acquired property of the defendant. Defendant had agreed to sell the said land for a consideration of Rs.3000/- to the plaintiff. – On the same day defendant had received amount of Rs.2000/- as earnest amount. – The agreement to sell was a registered document. It was agreed that the defendant would deliver the possession of the suit land on the same day. – Plaintiff was ready and willing to perform his part of the contract, pay balance of amount of Rs.1000/- and get the sale deed executed in his favour. – However, defendant avoided to do so. – Plaintiff specifically asked defendant to execute the sale deed however defendant refused, and therefore suit was filed for specific performance of the contract. – Alternatively it was also stated that, if it was found that plaintiff is not in possession of the property then he be put in possession in pursuant to the specific performance. – Further alternatively another prayer was made that, if the relief of specific performance cannot be granted to him then earnest amount be refunded to him. – Held, It is to be noted that, First Appellate Court has refused to grant the discretionary relief on the ground of inadequacy of consideration also. – In fact he had come to the conclusion that, plaintiff has failed to prove that, defendant had agreed to sell the suit land. – That means, he considered that plaintiff has failed to prove agreement Exhibit 31. – Then the other points for consideration, that is points No.2, 3 and 4 in the Judgment of the learned First Appellate Court had in fact did not survive; but still it appears that, there is discussion regarding the same. – As regards inadequacy of price what is observed is that there is no contention raised by the defendant in respect of inadequacy of price; but, then it is stated that a Judge should not ignore this aspect. – First and the foremost fact is that, when that point did not fell for consideration, he was considering it alternatively and while taking into consideration the said fact, the set principles ought to have been considered first. – In the written statement of the defendant there is absolutely no whisper about inadequacy of consideration – What court cannot ignore is the fact that, the date of agreement is 18-05-1977 and at that time the amount of Rs.3000/- was a considerable one. – Merely because the First Appellate Court was considering that dispute in the year 1994, we cannot take then prevailing rates into consideration to hold that what was fixed was inadequate. – Evidence has not been led by the defendant to show that, the price of 5 Acres 12 Gunthas land was not equivalent to Rs.3000/- in 1977. – First Appellate Court though justified in re-appreciating the evidence which is permissible under Section 96 read with Order 41 of the Code of Civil Procedure, yet on the basis of evidence that was adduced and when the fact which ought to have been considered as to whether after about two years when the defendant was executing the document, was justified in linking that loan transaction which had taken place two years prior to Exhibit 31, was the basic question which was not considered by First Appellate Court. – Trial Court has considered and appreciated the evidence properly, and therefore, the substantial question of law as framed by this Court while admitting the matter deserves to be answer as “Exhibit 31 is an agreement to sell executed by defendant in favour of plaintiff. – Plaintiff has proved that, he is ready and willing to perform his part of the contract”. – Trial Court had exercised its discretion under Section 20 of the Specific Relief Act properly, and therefore decreed the suit. – First Appellate Court was not justified in allowing the appeal and setting aside the decree by the learned Trial Court. – Under such circumstance, the appeal deserves to be allowed – Second Appeal Allowed