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2016 Supreme(Chh) 60
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Navin Sinha & P. Sam Koshy, JJ.
Daya Ram Soni S/o Late Rameshwar Soni – Appellant
Vs.
Smt. Gyarsi Bai Khandelwal wife of Late Radheshyam – Respondent
First Appeal No. 08 of 2008
Decided On : 16-02-2016
For the Appellant :Shri R.N. Jha, Advocate.
For the Respondents:Shri Praful Bharat and Shri Anand Shukla, Advocates.
Headnote:
Specific Relief Act, 1963 - Section 16 - Code of Civil Procedure, 1908 - Section 96 - Order 41 - Rule 27 - Suit for specific performance - Seeking enforcement of agreement to sell - Possession of Go down - Plaintiff filed a suit for specific performance seeking enforcement of agreement to sell executed between Plaintiff and Defendant - Dispute pertains of land situated in Sheet Plot - As per Plaintiff Defendants No. 1 & 2 have around square meters of land at aforementioned location of which Plaintiff and Defendant No. 1 vide Exhibit agreed for a sale of land on a sale consideration and Plaintiff paid towards earnest money - Agreement for sell was notarized - As per agreement Defendant No. 1 on receipt of earnest money had agreed to hand over possession of Godown in suit premises and it was also agreed that balance amount of sale consideration was to be paid by Plaintiff to Defendant No. 1 within a period of days starting – Held, It is well established dictum of Evidence Act that misplacing burden of proof would vitiate judgment - Burden of proof may not be of much consequence after both parties lay evidence but while appreciating question of burden of proof misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiate judgment as it has happened in instant matter - Onus is on Plaintiff to positively establish its case on basis of material available and it cannot rely on weakness or absence of defense to discharge onus - Thus from aforesaid findings what is called out is that Plaintiff has not been able to establish and prove his readiness and willingness to perform his part of contract both by way of pleadings as well as from his evidence - On contrary Defendant No. 1 supported by evidence of DW-2 and DW-3 has been able to prove her stand that as per agreement to sell she was present in court of Sub-Registrar for execution of sale deed with necessary documents but Plaintiff did not turn – Similarly Defendants have also been able to establish before court that Defendants on repeated occasions had requested Plaintiff to take over possession of Godown part of suit premises but Plaintiff refused to accept same - In view of aforesaid facts and circumstances of case and taking note of decisions of Supreme Court referred to in foregoing paragraphs this court is of opinion that no illegality or infirmity has been committed by trial Judge while rejecting Plaintiffs suit for specific performance – Appeal dismissed
P. Sam Koshy, J.
1. This is Plaintiff's First Appeal filed under Section 96 of Code of Civil Procedure, 1908 (for short, CPC) against the judgment and decree dated 24.10.2007 passed by the District Judge, Rajnandgaon in Civil Suit No. 15-A/2005 whereby his suit for specific performance of contract has been rejected.
2. The Plaintiff filed a suit for specific performance seeking enforcement of agreement to sell (Exhibit P/1) executed between the Plaintiff and Defendant No. 1 on 18.05.2005. The dispute pertains to 2000 sq. ft. of land situated in Sheet No. 48, Plot No. 52 in Ramadhin Marg, Rajnandgaon (hereinafter referred to as ‘the suit property’).
3. As per Plaintiff, Defendants No. 1 & 2 have around 400 square meters of land at the aforementioned location, of which the Plaintiff and Defendant No. 1 vide Exhibit P/1 agreed for a sale of 2000 sq. ft. of land on a sale consideration of Rs. 690/- per sq.ft. and the Plaintiff paid a sum of Rs. 2,01,001/- towards earnest money. The agreement for sell was notarized on 20.05.2005. As per agreement, the Defendant No. 1 on receipt of earnest money had agreed to hand over the possession of the Godown in the suit premises and it was also agreed that the balance amount of sale consideration was to be paid by the Plaintiff to the Defendant No. 1 within a period of 91 days starting from 18.05.2005 i.e. till 17.08.2005.
4. As per Plaintiff, after the agreement to sell was entered, he came to know through paper publication that the Defendant No. 3 had also entered into agreement to sell with the Defendant No. 2 for the same property. He immediately sent a legal notice to the Defendant No. 1 for enforcement of agreement and also informed him that he is ever willing and ready to perform his part of contract. It was also informed that he is ready for execution of sale deed on 17.08.2005 and on which date he shall be present before of the Office of Sub Registrar (Stamp) for execution of sale deed. In spite of such clear intimation and notice to the Defendant No. 1, she did not appear before the Office of Sub Registrar and neither did she hand over the possession of the Godown as agreed upon in the agreement for sale.
5. Subsequently, the Plaintiff also sent repeated legal notice to the Defendant No. 1 for enforcement of agreement yet the Defendant did not pay heed to the notice. On the contrary, the Defendant blamed the Plaintiff for breach of the conditions stipulated in the agreement to sell and defaulted from enforcement of sale deed. According to Plaintiff, the Defendants had deliberately and with malafide intention not got the agreement to sell enforced in spite of fact that Plaintiff was ever willing and ready for the enforcement of the agreement to sell leading to filing of the Civil Suit. The Plaintiff had also claimed for damages against the Defendants No. 1 & 2 @ Rs. 200/- per day for not handing over the possession of Godown.
6. It is next submitted that before the Plaintiff had filed a Civil Suit, the Defendant No. 3 had in fact filed a suit for specific performance against the Defendants No. 1&2 which was registered as Civil Suit No. 7-A/2005, in which, the Plaintiff had moved an application for impleadment as a necessary party which got rejected reserving the liberty to file a suit, if he so wishes.
7. After the suit was filed and notices were issued, the Defendants submitted their reply respectively in which the claim/averment made by the Plaintiff was categorically denied. According to Defendant No. 1, in fact it was the Plaintiff who had failed to perform his part of contract, inasmuch as, the Plaintiff never showed any interest in paying the balance amount of Rs. 11,78,999/- within the agreed period of 91 days in spite of repeated request and reminders being sent to him and as such he failed to fulfill his part of the contract. According to Defendants No. 1&2 they had already requested the Plaintiff for taking over possession of the Godown part of the suit premises and yet t
