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Rajasthan High Court
C.M. Lodha, C.J. & Kanta Bhatnagar J.
Kirpal Singh - Appellant
Versus
Mst. Kartaro - Respondents
D.B. Civil Special Appeal No. 100 of 1972
Decided On : March 28, 1980
We may bere add that the learned Single Judge after discussion of the relevant evidence has come to a firm finding that the plaintiff was ready and willing to perform his part of the contract. This finding is essentially a finding of fact. No doubt, it is open to us in a special appeal to examine even findings of fact but unless there are glaring circumstances to warrant an interference with a finding of fact arrived at by the learned Single Judge, we would ordinarily be not justified sitting as a court of special appeal under section 18 of the High Court Ordinance to re-appreciate the evidence. (Para 15)
We have, therefore, to see whether the sum named in the contract as the amount to be paid in case Of breach of the contract is only for the purpose of securing performance of the contract or it gives an option to the party in default of paying money in lieu of specific performance. In this connection the learned Single Judge has pressed into service two circumstances. He has observed, in the first instance, that the contract provides that besides refunding the amount of Rs. 2000/- paid to the defendant at the time of execution of Ex. 1 an equivalent sum would be paid to the plaintiff in case of breach by the defendant by way of compensation. So far as this circumstance is concerned, it is trite that a condition in the agreement to pay a sum by way of compensation cannot be considered as an alternative contract. Reference in this connection may be made to Explanation to section 10 of the Act, which provides that unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immoveable property cannot be adequately relieved by compensation in money. It is not refuted even by Mr. Hastimal, learned counsel for the respondents that such a condition by itself cannot be construed as an alternative contract. (Para 17)
2. The suit was instituted against Gujar Singh but he died during the pendency of this appeal and is now represented by his widow Shrimati Kartro-respondent No. 1. It appears that after the decision by the learned Single Judge Gujar Singh sold away the land in question by a registered sale deed dated 31. 3. 1978 to Sukhmindra Singh, Balvindra Singh and Veer Singh, who have been also impleaded as respondents Nos. 2, 3 and 4 in this appeal, as transferees during the pendency of this appeal.
3. The plaintiffs case as set out in the plaint is that on 2. 9. 1967 the defendant agreed to sell the agricultural land in question-measuring 10 Bighas and 10 Biswas, situated in Chak 24z, District Ganganagar to the plaintiff at the rate of Rs. 1200/- per Bigha and executed agreement Ex. 1 in his favour. The plaintiff paid Rs. 2000/-to the defendant at the time of execution of the agreement, and agreed to pay the balance of the sale price, at the time of registration of the sale for which the date fixed was 15.1.1968. As regards delivery of possession of the land, it was agreed that possession of a portion of the land under kharif cultivation would be handed over to the plaintiff on 13. 1. 1968 and possession of the other portion under rabi cultivation would be delivered to the plaintiff on 13.4.1968. The plaintiff averred that he was always ready and willing to perform his part of the contract, inasmuch as he had kept the money ready for payment to wards sale price and had asked the defendant several times to execute the sale-deed and hand over the possession of the land as stipulated in the document, but the defendant went on evading the issue. The plaintiff goes on to state that he went to the office of Sub-Registrar on the appointed date, that is, 15. 1. 1968 to pay the price of the land and to get the sale deed registered, but the defendant did not turn up. Consequently, the plaintiff filed the present suit in the Court of Senior Civil Judge, Ganganagar on 22.1.1968 praying that a decree for specific performance of the contract of sate of land in question may be granted in his favour. The defendant resisted the plaintiffs suit and while admitting execution of the document Ex. 1 dented the receipt of Rs. 2000/- as part of the purchase price. He also pleaded that the agreement Ex. 1 had been interpolated and thus his plea was that the document being without consideration and forgery having been committed with respect to it the plaintiff was not entitled to any relief. The trial court framed the following issues on the pleadings of the parties :
1. Whether the agreement dated 2.9.1967 is without consideration?
2. Whether the agreement is void and ineffective in law?
3. Whether the last three lines have been added in the agreement after execution without the knowledge of the defendant?
4. Relief?
4. Since the burden of all the three issues was on the defendant, he led evidence first and examined himself as D.W. 1, D W. 2 Charandass, and D.W. 3 Shriram He also produced a copy of the agreement alleged to have been handed over to him by the scribe Ramchander (P.W. 1), and the same has been marked as Ex. A. 1. In rebuttal the plaintiff examined P. W. 1 Ramchander, scribe of the document Ex. 1, P. W. 2 himself (Kirpal Singh-plaintiff) and also got exhibited the copy of the agreement contained in the register of the scribe P. W. 1 Ramchander, which is marked as Ex. 2. The learned Additional District Judge, Ganganagar before whom the suit came up for decision, by his judgment dated 27.2.1969 decreed
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