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1992 JLJ 635
R.D. Shukla, J.
Harikishan and another v. Jaswant Singh and others
S.A. No. 12 of 1984;, against the judgment and decree passed by Shri B.S.
Chelawat, Additional Judge to the Court of District Judge, Sagar, at Khurai, in Civil Appeal No. 12-A of 1982; arising out of the judgment and decree passed by Shri R.G. Agarwal, Civil Judge, Class I, Khurai, in civil suit No. 20-A of 1982; Decided on 21.10.1991.
(2) Contract Act, 1872 -- S. 29 -land agreed to be sold clear from the contract with other terms -contract is not void for uncertainties. [Para 10
(3) Transfer of Property Act, 1882 - S. 53A -contract to sell immovable property -specific date to execute sale deed mentioned in the deed -time is still not of essence of contract.
The fixation of period during which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which should be sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract. AIR 1977 SC 1005 followed.
[ Para 14
(4) Specific Relief Act, 1963 -- S. 16 – Suit for specific performance – subsequent purchase denying prior notice of contract for sale -- such denial is sufficient to discharge onus of such negative issue. AIR 1929 Lah. 249 reliod on. [Para 14
(5) Land Revenue Code, 1959 (M.P.) -- S. 119 – no evidence to show that acquisition of right was reported to patwari or any other officer – document also not having endorsement of such officer – entry of possession cannot be relied on. [Para 14
(6) Civil P.C. 1908 – O. 6, R. 6 – suit for specific performance – plaintiff averring prior notice of contract of the subsequent purchaser – he should plead the mode of such notice – in absence of pleading evidence cannot be looked into. [Para 14
(7) Civil P.C. 1908 – Ss. 100 and 96 – finding of trail court as to unreliability of oral evidence – cannot be disturbed by appellate Court without disturbing finding of unreliability of witness -- if not so disturbed, it is a perverse finding open to challenge in second appeal. [Para 14
¼1½ laifÙk varj.k vf/kfu;e] 1882 && /kkjk 53&d && foØ; djus dk djkj && vk‘kf;r Øsrk }kjk vfxze /ku fn;k x;k && mlds }kjk gLrk{kfjr ugha gksus ij Hkh ml ij vkc)dj gSA ¿ iSjk 9À
¼2½ laifÙk vf/kfu;e] 1872 && /kkjk 29 && Hkwfe foØ; djus dk djkj gqvk ;g vU; fuca/kuksa ds lkFk lafonk }kjk Li"V && lafonk vfuf‘prrkvksa ds dkj.k ‘kwU; ugha gSA ¿ iSjk 10À
¼3½ laifÙk varj.k vf/kfu;e] 1882 && /kkjk 53&d && LFkkoj laifRr ds foØ; dh lafonk && foØ; foys[k fu"ikfnr djus dh fofufnZ"V rkjh[k foys[k esa mfYyf[kr && le; rc Hkh lafonk dk vifjgk;Z y{k.k ugha gSA
ml dkykof/k dk fu;ru ftlds nkSjku lafonk dk ikyu fd;k tkuk gksrk gS le; ds vuqc/ak dks lafonk dk vifjgk;Z y{k.k ugha cukrkA tc dksbZ lafonk LFkkoj laifÙk ds foØ; la lacaf/kr gksrh gS rc lkekU;r% ;g mi/kkfjr fd;k tk,xk fd le; lafonk dk vifjgk;Z y{k.k ugha gA le; dks lafonk ds vifjgk;Z y{k.k ds :i esa ekuus dk vk‘k; ifjfLFkfr;ksa }kjk lkf{;r fd;k tk ldrk gS tks fd bl lkekU; mi/kkj.kk dks foLFkkfir djus ds fy, i;kZIr :i ls izcy gksuk pkfg, fd Hkwfe ds foØ; dh lafonk esa le; dk vuqca/k lafonk dk vifjgk;Z y{k.k ugha gSA , vkb vkj 1977 ,l lh 1005 vuqlfjrA ¿ iSjk 1À
¼4½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkj 16 && fofufnZ"V ikyu ds fy, okn && i‘pkr~orhZ Øsrk }kjk foØ; dh lafonk dh iwfoZd lwpuk ls bUdkj fd;k x;k && ,slk bUdkj ,sls udkjkRed fook|d dk Hkkj mUeksfpr djus ds fy, i;kZIr gSA , vkb vkj 1929 ykgkSj 249 voyafcrA ¿ iSjk 14À
¼5½ Hkw jktLo lafgrk] 1908 && /kkjk 119 && ;g n‘kkZus ds fy, lk{; ugha fd vf/kdkj dk vtZu iVokjh vFkok vU; fdlh vf/kdkjh dk fjiksVZ fd;k x;k Fkk && nLrkost ij ,sls vf/kdkjh dk i`"Bkadu Hkh ugha && dCts dh izfof"V dk voyac ugha fd;k tk ldrkA ¿ iSjk 14À
¼6½ flfoy izfØ;k lafgrk] 1908 && vk- 6 fu- 6 && fofufnZ"V ikyu ds fy, okn && oknh }kjk i‘pkr~orhZ Øsrk dks lafonk dh iwoZ lwpuk gksuk izdfFkr && mls ,slh lwpuk ds <ax dk vfHkopu djuk pkfg, && vfHkopu ds vHkko esa lk{; ij fopkj ugha fd;k tk ldrkA ¿ iSjk 14À
¼7½ flfoy izfØ;k lafgrk] 1908 && /kkjk 100 rFkk 96 && ekSf[kd lk{; dh vfo‘oluh;rk ds laca/k esa fopkj.k U;k;ky; dk fu"d"kZ && vihy U;k;ky; }kjk lk{kh dh vfo‘oluh;rk ds fu"d"kZ dks fo{kqC/k fd, fcuk fo{kqC/k ugha fd;k tk ldrk && ;fn bl izdkj fo{kqC/k ugha fd;k x;k rc og f}rh; vihy esa vkisf{kr fd, tkus ;ksX; foi;ZLr fu"d"kZ gSA ¿ iSjk 14À
R.D. Shukla, J.-1. This appeal is directed against the judgment and decree dated 9.12.1983 of Additional District Judge, Khurai, passed in Civil Appeal No. 12-A of 1982 (arising out of the judgment and decree dated 1.9.1982 of Civil Judge, Class I, Khurai), whereby, while reversing the decree of Trial Court, plaintiff's suit for specific performance of contract with respect to transfer of suit land, has been decreed.
2. The brief history of the case is that the plaintiff-respondent No.1 filed a suit before the Trial Court on, 30.10.1979, with the assertion that, defendant No. 1 Chatarsingh entered into an agreement of sale on 3.3.1979, regarding the land bearing Khasra No. 202/5, area 6 acres, situated in village Semraghat, for a consideration of Rs. 13,000/-. Rs. 3,000/- were paid by the plaintiff defendant No.1 Chatarsingh and rest of the amount i.e. Rs. 10,000/- was to be paid at the time of registration of the document. It was also agreed that the execution of the sale-deed would be effected on 12.5.1979, i.e. on the full moon day of Baisakh Sudi 15 of Hindu calendar month. The possession over 4 acres of land was with Hanumant singh brother of the plaintiff, and possession of 2 acres of land was to be delivered to the plaintiff on execution of the sale-deed. The agreement was entered by Raghuvir singh son of defendant No.1, on behalf of his father, defendant No. 1. It was further asserted that the defendants 2 and 3 (appellants here) had notice of this agreement, hut, despite notice, defendants 2 and 3, i.e. Harikishan and Bhagwan singh, got the sale-deed executed in their favour in July, 1979. It was further alleged that the plaintiff is ready to perform his part of the contract and, therefore, he sought a relief of specific performance of contract of sale by the defendants. The defendant No.1 Chatarsingh died during pendency of the appeal in this Court and his legal representatives, i.e. respondents 2 (a) and 2 (e) have been substituted thereafter. . .
3. The defendant No.1 denied the execution of agreement and pleaded that the agreement of sale is a forged document. Defendants No.2 and 3 pleaded ignorance regarding the previous agreement of sale between the plaintiff and defendant No. 1. They have further denied possession of plaintiff over any part of the suit land. They claimed themselves to be bona-fide purchasers on payment of sale-consideration.
4. Learned Trial Judge has accepted the fact of execution of document by Chatarsingh and receipt of Rs. 3,000/- from the plaintiff and further found that the defendants No.2 and 3 (appellants ,here) had no notice of prior contract, and they are bona fide purchasers, without notice. As such decree for return of Rs. 3,000/- was granted against the defendant No.1 Chatarsingh (the predecessor of respondent No.2 (a) to 2 (e).
5. On appeal, the learned first appellate Court held that defendants No. 2.and 3, subsequent purchasers, had notice of prior agreement and, therefore, the decree for specific performance of contract of sale of suit land, was granted. Hence, this second appeal.
6. The appeal had been admitted for hearing parties on following substantial questions of law:
(i) Whether on correct interpretation of agreement Ex. P-1 time was an essence of the Contract?
(ii) Whether on evidence on record and with the finding of the trial Court, the finding of lower appellate Court that the appellant" are not bona fide purchasers, without notice, is a legal and sustainable?
(iii) Whether the decree passed by the lower appellate Court is vague and incomplete on the question of balance of consideration?
The following additional questions of law were framed at the instance of counsel for the appellants on 28.8.1991-
(i) Whether the agreement Ex. P-1 which does not seem to bear the signature of the purchaser Jaswant Singh, is an agreement at all binding on the parties?
(ii) Whether the agreement Ex. P-1 is void for vagueness under Sec. 29 of the Contract Act?
7. In this case, Chatarsingh
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