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1985 Supreme(All) 26
IN THE HIGH COURT OF ALLAHABAD
N. N. SHARMA
HIRA SINGH - Appellant
Versus
BUDH SINGH - Respondents
Second Appeal 673 Of 1974
Decided On : 01/29/1985
A.N.BHARGAWA, G.P.BHARGAWA, K.N.SAXENA, YATINDER SINGH
A suit for specific performance of an unregistered sale deed is not barred by Section 77 of the Registration Act, 1908, if the plaintiff seeks not merely the registration of the sale deed but also recovery of possession and mesne profits, which are outside the purview of an action under Section 77. However, specific performance of an unregistered sale deed cannot be granted if there is no mutuality in the contract and the terms of the sale deed have been varied by a subsequent agreement.
Headnote:
SPECIFIC PERFORMANCE - SALE OF LAND - UNREGISTERED SALE DEED - SUBSEQUENT SALE DEED IN FAVOUR OF THIRD PARTY - SUIT FOR SPECIFIC PERFORMANCE AND POSSESSION - APPLICABILITY OF SECTION 77 OF REGISTRATION ACT, 1908 - COURT'S JURISDICTION - INTERPRETATION OF SECTION 23 OF SPECIFIC RELIEF ACT, 1963 - MUTUALITY OF CONTRACT - VARIATION OF TERMS OF SALE DEED - EQUITABLE RELIEF - COMPENSATION.
Fact of the Case:
Plaintiffs filed a suit for specific performance of an unregistered sale deed executed in their favor by defendant 3, Ram Ratan, and for possession of the disputed land. Defendant 3 subsequently executed a sale deed in favor of defendants 1 and 2, who claimed to be bona fide purchasers for value without notice of the earlier sale deed.
Finding of the Court:
The trial court and the lower appellate court found that the plaintiffs were out of possession and that defendant 3 had executed the impugned sale deed in favor of the plaintiffs for a sum of Rs. 2000/-. However, the courts also found that the plaintiffs had relinquished their rights under the sale deed in favor of defendants 1 and 2, but that plaintiff 2, Gaya Deen, had not received the amount of Rs. 2000/- or any part thereof from Ram Ratan for the execution of the agreement by him in favor of Gaya Deen.
Issues: 1. Whether the suit was barred by Section 77 of the Registration Act, 1908, and whether the civil court had jurisdiction to entertain the suit. 2. Whether the plaintiffs were entitled to specific performance of the unregistered sale deed. 3. Whether the subsequent sale deed in favor of defendants 1 and 2 was valid and binding.
Ratio Decidendi: 1. The court held that the suit was not barred by Section 77 of the Registration Act, 1908, as the plaintiffs were seeking not merely the registration of the sale deed but also recovery of possession and mesne profits, which were outside the purview of an action under Section 77. The court also held that the civil court had jurisdiction to entertain the suit, as the reliefs sought were outside the purview of an action under Section 77 of the Registration Act, 1908. 2. The court held that the plaintiffs were not entitled to specific performance of the unregistered sale deed, as there was no mutuality in the contract and the terms of the sale deed had been varied by the subsequent agreement executed by the plaintiffs in favor of defendants 1 and 2. 3. The court held that the subsequent sale deed in favor of defendants 1 and 2 was valid and binding, as the defendants were bona fide purchasers for value without notice of the earlier sale deed.
Final Decision: The appeal was partly allowed. The plaintiffs' claim was decreed only to the extent that plaintiff Budh Singh could recover Rs. 667/- and interest from defendant No. 3 Ram Ratan along with the costs of the suit, as compensation. All other reliefs, as sought in the suit, failed. Remaining parties, viz. plaintiffs 2 and 3 and defendants-appellants shall bear their own costs throughout.
( 1 ) THIS is an appeal by defendants Hira Singh and Suraj Singh, the alleged vendees from defendant 3 Ram Ratan. Plaintiffs Budh Singh, Gaya Din and Prabhu Dayal were impleaded as respondents.
( 2 ) THE appeal is directed against judgment and decree dt. 19-2-1974 recorded by Sri B. N. Srivastava, learned 1st Temporary Civil and Sessions Judge, Jhansi who dismissed Civil Appeal No. 57 of 1973 with costs and affirmed the judgment and decree of Sri Jag Mohan Paliwal, learned Munsif, Jhansi dt. 8-1-1973 in Original Suit No. 36 of 1967 by which learned Munsif had decreed the suit holding that plaintiff No. 2 Gaya Din was entitled to get Rs. 667/- from defendant 3 Ram Ratan. Plaintiff 1, viz. Budh Singh shall have a right to obtain registration of impugned sale deed dt. 16-8-1966 executed by defendant 3 Ram Ratan, on payment of Rs. 1334/- by him to defendant 3 Ram Ratan. It was further held that Budh Singh shall be entitled to get possession over the disputed plots from appellants : viz. , defendants 1 and 2, Hira Singh and Suraj Singh respectively. It was further held that the sale deed dt. 24-9-1966 executed by Ram Ratan in favour of appellants in this appeal was ineffective, as against the claim of Budh Singh.
( 3 ) IT appears that plaintiffs, who were Gaya Din and Prabhu Dayal, own brothers and Budh Singh, filed a suit for relief ordering defendant 3 Ram Ratan to get the sale deed executed by him in favour of plaintiffs registered in the office of Sub-Registrar, Moth. A relief for injunction was further sought restraining the defendants from interfering with the crops standing over the plots in dispute covered by the sale deed executed in their favour on 16-8-1966 by defendant 3 Ram Ratan for a sum of Rs: 2000/ -. It was further averred that plaintiffs were placed in possession over the disputed holding also but the obstruction was occasioned by the executing of the subsequent sale deed in favour of appellants in this appeal by defendant 3, Ram Ratan.
( 4 ) THE disputed holding is situated in village Peraichha, paragana Moth, district Jhansi and measured 6 acres 82 decimals.
( 5 ) BY a subsequent prayer, plaintiff Prabhu Dayal was transposed in the array of defendants vide order dt. 6-4-1972.
( 6 ) IT was also averred that Ram Ratan, defendant 3, had delivered possession over the disputed land, viz. plots Nos. 76/1 and 181 to plaintiffs on 16-8-1966 but failed to get the sale deed registered and on 24-9-1966 executed the sale deed in favour of appellants in this ! appeal transferring the plots in dispute to them. It was on the strength of that sale deed that defendants 1 and 2 dispossessed the plaintiffs from the land. So, the relief for possession was also subsequently sought by plaintiffs.
( 7 ) DEFENDANTS-APPELLANTS filed separate written statements raising identical pleas. They maintained that defendant 3 Ram Ratan never agreed to sell the disputed plots in favour of plaintiffs. They denied the execution of unregistered sale deed dated 16-8-1966 in favour of plaintiffs. It was further pleaded that defendant 3 Ram Ratan entered into an agreement in July, 1966 to sell the disputed plots to them within a period of three months; in pursuance of that agreement, on 24-9-1966 he executed the sale deed in favour of appellants in this appeal for a sum of Rs. 2200. When they went to the office of Registrar for registration of the sale deed, then it transpired that plaintiffs based themselves on an unregistered sale deed dt. 16-8-1966. A number of persons intervened to adjudge the dispute and it was decided that Ram Ratan must refund the sum of Rs. 2000/- together with expenses to Gaya Deen. In pursuance thereof, defendant 3, Ram Ratan, out of the sale consideration of Rs. 2200/- received by him from the appellants in this appeal, paid Rs. 2000/- to Gaya Din who executed an agreement and undertook to obtain the signatures of Budh Singh and Prabhu Dayal also. However, plaintiff 2 Gaya Deen failed to obtain the signatur
