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IN THE HIGH COURT OF JUDICATURE AT PATNA
Hon'ble JITENDRA MOHAN SHARMA, J.
Bashishtha Singh & Ors.
Versus
Rajiv Ranjan Trivedi
First Appeal No.218 of 2003. Decided on 16th January, 2018.
(A) General Clauses Act, 1897 – Section 27 – Indian Evidence Act, 1872 – Section 114(e) – Presumption of service of notice – If a letter has been properly addressed and sent under registered post, then, it would be presumed that it had reached its destination – Registration receipt is a public document said to have been prepared in due course of official duty and has got presumption of correctness under Section 114 (e) of Evidence Act. (Para 19)
(B) Civil Procedure Code, 1908 – Order 39, Rules 1 and 2 – Injunction – Rejection of injunction petition during trial is an interlocutory order – Any finding given therein cannot be binding on trial court at the time of final adjudication of suit and same merges with final order – Suit for specific performance of contract is based on agreement to sale – Plaintiffs right / cause of action is a right in personam – Plaintiffs do not acquire right in property in agreement on the basis of agreement and as such in a suit for specific performance of contract, plaintiff is not entitled for injunction – From such rejection, it cannot be presumed that plaintiffs were not in possession over suit land – Plaintiffs have been able to prove that in admitted agreement for sale of land area was 4.01 acres instead of 1.23 acres as claimed by defendants – Defendants are bound to execute sale deed with respect to suit land. (Para 29)
(C) Specific Relief Act, 1963 – Section 20 – Specific performance of contract – Court’s discretion to grant decree for specific performance is discretionary but not arbitrary – Discretion must be exercised with sound and reasonable judicial principle – Under Section 20 of Specific Relief Act a party is not entitled to a decree for specific performance merely because it is lawful to do so – Nevertheless, once an agreement to sale is legal and validly proved and further requirements or getting such a decree are established, then court has to exercise its discretion in favour of granting relief for specific performance. (Para 31)
Jitendra Mohan Sharma, J. – The instant appeal is directed against the judgment and decree dated 29.07.2003 and 05.08.2003 respectively, passed by Shri Shyam Kishore Sah, Sub-Judge Ist, Kaimur at Bhabhua in Title Suit No. 226 of 2000 whereby and whereunder the suit was dismissed on contest but without cost. The plaintiffs are the appellants and the defendants are the respondents in this appeal.
2. The aforesaid Title Suit was filed for part performance of contract for sale with a prayer that the defendants be directed to execute registered sale deed in favour of the plaintiffs with respect to the land detailed in schedule ‘ka’ of the plaint within stipulated period and if the defendants failed to comply the order, in that event, the order may be passed under Order 21 Rule 34 of the C.P.C. Further if the plaintiffs are not entitled to get the aforesaid relief, in that event, the amount of Rs. 2,35,000/- with interest at the rate of 12 % per annum thereon be ordered to be paid to the plaintiffs by the defendants and also the cost of the suit.
3. The case of the plaintiffs, briefly stated, is that the defendants expressed their desire for sale of the land area 4.01 acres which was ultimately agreed to be sold with the plaintiffs for a sum of Rs. 3,35,000/-. The entire consideration amount of Rs. 3,35,000/- was paid to the defendant no. 1, namely, Shri Rajiv Ranjan Trivedi through four bank drafts example Rs. 1,00,000/- through draft dated 16.04.1998, Rs. 85,000/- through draft dated 07.08.1998, Rs.1,00,000/- through draft dated 08.07.1999 and Rs. 50,000/- through draft dated 20.07.1999. The draft dated 16.04.1998 and 07.08.1999 received by defendant no. 1 namely, Rajiv Ranjan Trivedi on 19.04.1998 and 07.08.1998 respectively whereas draft dated 08.07.1999 and 20.07.1999 were received by defendant no. 2 namely, Lokesh Trivedi the son of defendant no. 1 on 09.07.1999 and 25.07.1999 respectively.
4. Further, the case of the plaintiffs is that out of the agreed area of land i.e. 4.01 acres, the defendant no. 1 Rajiv Ranjan Trivedi executed the sale deeds dated 25.10.1999 for an area of 1.23 acres land for consideration of Rs. 1,00,000/- paid to defendant no. 1 namely, Rajiv Ranjan Trivedi through draft dated 08.07.1999 and put them in possession over the entire agreed area of sale i.e. 4.01 acres as purchasers. Out of the said 4.01 acres of land, under contract for sale, 2.78 acres land on consideration money of Rs. 2,35,000/- remained to be executed, more so, when the defendants had put the plaintiffs in possession over the said area. The plaintiffs requested the defendant no. 1 for execution of the sale deed for an area of 2.78 acres for balance consideration money of Rs. 2,35,000/-, already paid to him, whereupon the defendant no. 1 agreed to execute the sale deed on 15.03.2000 but he failed to obey by the promise. The plaintiffs repeatedly requested the defendants for execution of the sale deeds for an area of 2.78 acres of land for which the entire consideration money has already been paid but the defendants put off the issue on one ground or the other and then, the plaintiffs sent legal notice on 30.06.2000 for executing the sale deeds in their favour but in spite of receipt of notice, defendants did not agree to execute the sale deed.
5. The defendants want to grab Rs.2,35,000/-. The plaintiffs had already performed their part obligation for the contract by paying the amount whereas the defendants have been avoiding their part of obligation for completion of contract. The suit land is situated at village Kohari which is native place of the plaintiffs and the same is cultivable land according to the suitability of the plaintiff and as such the plaintiffs arranged the money for the same and paid the same to the defendants through drafts. The defendants having received the money handed over the possession of the land to the plaintiffs but they avoided to execute the sale deed. The defendants finally refused to execute the sale deed o
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