Point of Law: Whether or not a suit for specific performance could be decreed in the absence of challenge to the sale-deed seeking its cancellation, would depend on the facts of the case especially upon satisfaction of the ingredients of Section 16(c) read with Section 19(b) of the Specific Relief Act, 1963.

ORDER :

1. These matters have been laid before the Division Bench upon a reference made by a learned Single Judge of this Court vide his order, dated 26th December, 2017, for answering the following questions:

(i) Could the learned Court below decree the suit despite the plaintiff having not specifically assailed the sale-deed and sought its cancellation?

(ii) Whether the judgment of this Court in Rajinder Singh vs. Sushil Kumar and Others, 2006 (2) Shim. L.C. 326, having been impliedly overruled or whittled down by the subsequent judgment of the Hon'ble Supreme Court in B. Vijaya Bharathi vs. P. Savitri and Others, AIR 2017 SC 3934, can be said to have laid down the correct law?

2. We have heard Mr. K.D. Sood, learned Senior Counsel, Mr. Arsh Rattan, Mr. Tara Singh Chauhan and Mr. Rishab Chandel, Advocates, appearing for the respective parties.

3. Facts of the case in brief are that the plaintiff (respondent No. 1) filed a suit for possession by way of specific performance of the agreement to sell, dated 19th December, 1997, executed in his favour by defendant No. 1 (appellant in RFA No. 276 of 2003), who agreed to sell his half share in the suit land to plaintiff (respondent No. 1) for a consideration of Rs. 2,50,000/-. A sum of Rs. 10,000/- was paid as an earnest money and rest of the amount was agreed to be paid at the time of execution of the sale-deed. The plaintiff averred that he was ready and willing to perform his part of obligation stipulated in the agreement and cooperate for the execution and registration of the sale-deed, but defendant No. 1 was not inclined to fulfill his part of the obligation and he, in fact, left Kangra for his village without executing the sale-deed. Not only this, defendant No. 1 in collusion with defendants No. 2 to 5 (appellants in RFA No. 272 of 2003 and proforma respondent No. 3), with an intention to defraud the plaintiff, executed the sale-deed dated 23rd December, 1997 in favour of minor defendants No. 2 and 3.

4. In the course of arguments before the learned Single Judge, the question arose as to whether in the absence of specific challenge to the aforementioned sale-deed dated 23rd December, 1997, the learned trial Court could have decreed the suit of the plaintiff. Reliance was placed on the decision of the Supreme Court in B. Vijaya Bharathi's case (supra).

5. In B. Vijaya Bharathi's case (supra), an agreement to sell was entered into between plaintiffB. Vijaya Bharathi and defendant No. 1-P. Savitri. Defendant No. 1-P. Savitri, instead of executing the sale-deed in favour of the plaintiff, sold the property to defendant No. 2, who, in turn, sold the same to defendant No. 3, both by registered conveyances. The plaintiff served notice on defendant No. 1 expressing her readiness and willingness to perform her part of the obligation and pay the balance amount of sale consideration. Defendant No. 1 in reply thereto stated that the agreement was no longer valid. The plaintiff then filed a suit for specific performance. The trial Court decreed the suit with the finding that the agreement in favour of the plaintiff was prior in point of time to both the registered sale-deeds. Defendant No. 3 filed appeal before the High Court challenging the decree passed by the trial Court. The High Court set aside the decree of the trial Court holding that the plaintiff was not ready and willing throughout, as required in terms of Section 16(c) of the Specific Relief Act, 1963 and the suit was filed more than two years after the repudiation of the agreement. One of the arguments raised by the respondent before the Supreme Court was that despite the fact that it came to the plaintiff's knowledge that there were two registered conveyances prior to the filing of the suit, the plaintiff did not amend the suit to ask for a decree of cancellation of the sale-deeds. Apart from others, the Supreme Court upheld the said argument by holding that though aware of two conveyances of the property in question, the plaintif