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2017 Supreme(Pat) 838
IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, J.
Smt. Dhira Mishra @ Dhira Devi, Wife of Murlidhar Mishra, Daughter of Late Shyama Devi - Appellants
Versus
Md. Laique Ahmad, Son of Late S.K. Tajuddin - Respondent
Second Appeal No.171 of 2015
Decided On : 03-10-2017
For the Appellant : Mr. Dhanendra Chaubey, Mr. Rakesh Tiwary.
For the Respondent: Mr Kamal Nayan Choubey, Sr. Adv, Mr. Shobha Nath Jha, Mr. Akash Chaturvedi.
The plaintiffs' readiness and willingness to perform their part of the contract, as required under Section 16 (c) of the Specific Performance of Contract Act, 1963, remained uncontroverted throughout the trial.
Headnote:
Specific Performance - Contract - Civil Procedure Code, 1908 - Section 100 - Issues 5, 6, 7, 8 - The court analyzed the genuineness of the zarbayanamas, dated 22.09.1990 and 06.06.1990, and the readiness and willingness of the plaintiffs to perform their part of the contract. The lower appellate court reversed the trial court's finding on the genuineness of the zarbayanamas and decreed the suit in favor of the plaintiffs.
Fact of the Case:
The plaintiffs filed a suit for specific performance of contract for the sale of land. The defendant no. 1 received earnest money from the plaintiffs but sold the land to defendant no. 2. The plaintiffs alleged that they were always ready and willing to perform their part of the contract, but defendant no. 1 refused to execute the sale deed.
Finding of the Court:
The trial court held the zarbayanama, dated 22.09.1990, to be genuine and valid, and the defendant no. 2 had knowledge of it at the time of executing the sale deeds. The lower appellate court reversed the trial court's finding on the genuineness of the zarbayanamas and decreed the suit in favor of the plaintiffs.
Issues: The issues revolved around the genuineness of the zarbayanamas, the knowledge of defendant no. 2 about the zarbayanama, and the validity of the kewala executed in favor of defendant no. 3.
Ratio Decidendi: The court held that in the absence of denial by the defendants of the plaintiffs' readiness and willingness to perform their part of the contract, no distinct issue was required to be framed. The lower appellate court's finding on the genuineness of the zarbayanamas was upheld.
Final Decision: The court dismissed the second appeal and upheld the lower appellate court's decree in favor of the plaintiffs.
1. In the present second appeal, under Section 100 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘the Code’), the appellants are aggrieved by the judgment and decree, dated 19.06.2015/06.07.2015, passed by learned Additional District Judge II, Purnea, in Title Appeal No. 49 of 2007 (Tr. No. 14 of 2015), whereby he has reversed the judgment and decree, dated 25.06.2001/07.07.2001, passed in Title Suit No. 479 of 1990, by learned Munsif, Sadar, Purnea, and has decreed the suit in favour of plaintiffs/respondents 1st set.
2. The appellants are the contesting defendants. The suit was filed by the plaintiffs for specific performance of contract with a direction to the defendant No. 1/respondent No. 4 herein to execute sale deed with respect to the suit land in favour of the plaintiffs on receipt of balance consideration money, asserting his right, based on execution of a registered agreement to sell the suit land, dated 22.09.1990, by the Defendant No.1 in favour of the plaintiffs.
3. The land has been described as R.S. Plot No. 2606, area 33 decimals, R. S. Plot No. 7328, area 1.03 acres, R. S. Plot No. 2726, area 1.56 acres (total area 2.92 acres) under Khata No. 503, Mouza Khokha, thana no. 156/1, Police Station K. Nagar, District Purnea. In the present judgment, parties have been generally described as per the party-position in the suit, for convenience and clarity.
CASE OF THE PLAINTIFFS
4. It is the plaintiffs’ case that upon an agreement having been reached between the plaintiffs and defendant no. 1, a contract to sell was finalized between them on 21.09.1990 on consideration amount of Rs. 28,000/-. The defendant no. 1 received the amount of Rs. 2100/-, in cash, as earnest money from the plaintiffs on 22.09.1990 and executed a registered zarbayanama (Agreement to sell on payment of earnest money) in favour of the plaintiffs on 22.09.1990 and promised to execute the sale deed with respect to the suit land in favour of the plaintiffs, on receipt of balance consideration money, by December, 1990. The defendant no. 1, however, avoided to execute the sale deed on one pretext or the other when the plaintiffs requested him to execute the sale deed. On 18.12.1990, the plaintiffs learnt that the defendant no.1 had sold the suit land to one Shyama Devi, defendant no. 2, who appears to have died during the pendency of the proceedings and is being represented by her legal heirs, who are the appellants herein. When the plaintiffs enquired from the defendant no. 1 as to whether she had sold the suit land to defendant no. 2, she did not give any definite answer, whereafter upon enquiry from the Registry Office, the plaintiffs learnt that defendant no. 1 had executed the two sale deeds on 31.10.1990/01.11.1990 in respect of the same suit land in favour of defendant no. 2. The plaintiffs pleaded that defendant no. 2 had full knowledge about the contract to sell the suit land by the defendant no. 1 to the plaintiffs and about receiving of earnest money of Rs. 2100/- from the plaintiffs on execution of zarbayanama, dated 22.09.1990. The plaintiffs also pleaded that defendant no. 1 did not ever make any agreement to sell the suit land in favour of defendant no. 2 prior to execution of the sale deed, dated 31.10.1990/01.11.1990 in favour of defendant no. 2 nor she had executed any zarbayanama in favour of defendant no. 2. The plaintiffs also took specific plea in their plaint that the defendant no. 1 wrongly recited in the sale deed, dated 31.10.1990/01.11.1990 that she had finalized to sell the suit land to defendant no. 2 in the month of June, 1990 and she executed a zarbayanama, dated 06.06.1990, in favour of defendant no. 2. The plaintiffs also pleaded that if there be any such zarbayanama, the same must be ante dated, collusive and fraudulent act of defendant no. 1. The plaintiffs term the sale deeds, dated 31.10.1990/01.11.1990, to be sham and collusive transactions, without any consideration.
5. There is spe
