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2021 Supreme(UK) 675
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Ravindramaithani, J.
Smt. Indra & Ors. - Appellants
Versus
Dharam Pal Singh - Respondent
Second Appeal No. 17 of 2004
Decided On : 07-05-2021
Mr. Siddhartha Singh, Advocate, for the Appellant, Mr. Mahavir Singh Tyagi, Senior Advocate, for the Respondent.
Headnote:
Civil Procedure Code, 1908, Sec. 100 – Specific Relief Act, 1963, Secs. 18 and 20 – Second appeal – Judgment and decree passed in suit was challenged appellants – Determination of —Late 'R’ was examined as DW2 – He has categorically stated that post agreement in the instant case, he sold land to various persons – He was having huge chunk of land – Factum of hardship etc. has neither been pleaded nor proved by appellants – High Court does not see hardship to appellants – Specific performance is ordered – It would give unfail advantage to respondent – High Court is of the view that instant is not a case in which specific performance may not be granted in view of Sections 18 and 20 of the S.R. Act – No merit in second appeal – Appeal dismissed.
(Paras 32, 33 and 34)
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JUDGMENT
Ravindra Maithani, J. - The instant Second Appeal is preferred against judgment and decree dated 15.01.2004 passed in the First Appeal No. 356 of 1983,Smt. Indra Vs. DharamPal Singh, by the Court of First Additional District Judge, Haridwar (in short "the appeal"), by which the judgment and decree dated 26.08.1983 passed in Original Suit No. 83 of 1982, Dharampal Vs. Raja Ram by the Court of First Additional Civil Judge, Roorkee (Shaharanpur)(for short "the suit") has been confirmed.
2. Facts necessary for the disposal of the instant appeal, briefly stated, are as follows; The respondent filed the suit against Raja Ram for specific performance. During the pendency of the suit, Raja Ram died, therefore, his daughter Smt. Indra was substituted. Initially, the appeal was filed by Smt. Indra Devi in this Court, but, after her death, her legal representatives have now been substituted as appellants. It is the case of the respondent that Late Raja Ram agreed to sale his half share admeasuring 7 Bigha, 10 biswa 17 biswansi,17 KachvansiPukhta situated in Khasra No.184 Village MaujaSethpur, ParganaManglore, Tehsil Roorkee, ZilaShaharnpur(for short "the suit land") to him for a consideration of Rs.23,000.An agreement of sale was executed on 4.7.1980 (for short 'the agreement') and Rs. 4,500 as advance were paid by the respondent to Late Raja Ram. The remaining amount was to be paid at the time of execution of the sale deed. It was agreed between the parties that the sale deed would be executed within two years since then. Late Raja Ram did not execute the sale deed. A notice was given on 27.04.1981 by the respondent to him but he gave a wrong reply on 01.05.1981. Again, a notice dated 16.6.1982 was given to Late Raja Ram by the respondent requiring him to appear for execution of the sale deed but despite service, he did not appear on 3.7.1982, the date fixed in the notice, for execution of the sale deed. On these grounds the suit was filed seeking specific performance of the agreement and related reliefs.
3. Late Raja Ram filed written statement in the suit. According to him, he never executed any agreement of sale in favour of the respondent; in the month of July, 1980, the wife of Raja Ram, namely, Smt. Atari was seriously ill and for her treatment, Raja Ram was short of money, therefore, he took Rs. 3,000 as loan from the respondent. The respondent agreed to advance the loan of Rs. 3,000 on the condition that in the next two years, Raja Ram would return him Rs. 4,500 and as a security of the loan, a mortgage deed was executed. It is the case of Raja Ram that after advancing loan, respondent took him to court where certain documents were executed. He was asked to sign those documents and if by playing fraud, an agreement of sale has been executed by the respondent, Raja Ram is not bound by it.
4. After exchange of pleadings, the following issues were framed in the suit:
"1. Whether defendant has executed the disputed agreement deed in favour of plaintiff dated 4.7.80 for Rs. 23000/-?
2. Whether defendant had received Rs. 4500/- as advance?
3. Whether defendant has taken a loan of Rs. 3000/- by execution Rahnnama?
4. Whether the suit is barred by Sections 14& 20 of Specific Relief Act?
5. Whether defendant was not owner of disputed property dated 4.07.80?
6. Whether plaintiff is entitled for any other relief?"
5. Parties led evidence in the suit. On issue Nos. 1 and 2, the Court concluded that Late Raja Ram executed the agreement of sale infavour of the respondent for Rs.23000/- and received Rs.45000/- as an advance. The Court also held that the appellants could not prove that Rs.3000 was taken as a loan from the respondent. On issue No. 4, it was held that the suit is not barred by Sections 14 and 20 of the Specific Relief Act, 1963 (for short 'SR Act'). On issue No. 5, the Court held that it is not open to Raja Ramto take the plea that he was not owner of the suit land at the time of the agreement. In view of the findings recorded, the
