Back
IN THE HIGH OF MADHYA PRADESH
A.K. Shrivastava, J.
Kashiram v. Mitthulal and another
First Appeal No.334 of 1996 (Jabalpur) : against judgment and decree dated 15.5.1996, passed by 2nd Additional District Judge, East Nimar, Khandwa in Civil Suit No.85-A/1995;
Decided on 5.9.2012.
(2) Contract Act, 1872 -- S.29 -- agreement of sale -- suit for specific performance of contract -- execution of agreement and receiving amount of Rs.3,000/- in advance admitted -- description of land shown in map attached with agreement -- denied from -- land shown also did not belong to seller -- agreement having incorrect description of land -- such agreement is uncertain -- suit cannot be decreed.
Held : Before passing a decree of specific performance of contract the Court should give effect to the terms of agreement but at the same time if an agreement is read as a whole in order to ascertain true intention of the parties and if it is carved out that description of the property is not certain, the suit of specific performance of contract cannot be decreed in favour of plaintiffs in regard to property which does not exist and particularly when in the present case which is not owned by the defendant.
[Paras 18 to 22
On account of the uncertainty and the incorrect description of the suit property made in the document of agreement of sale,the same is void in terms of section 29 and as such void document cannot be specifically enforced in a suit for specific performance of contract. 2008(2) JLJ 1 (SC) followed. 1979(I) MPWN 306, AIR 1951 Cal. 10, AIR 1945 Mad. 10, Halsbury’s Laws of England 4th edition Vol.9, paras 441 and 442, 2nd edition Vol.7, para 458 and Corpus Juris Secundum Vol.17A, para 147 relied on. AIR 1958 SC 448, (2006)1 SCC 697, AIR 2003 SC 2418 and AIR 1974 SC 873 distinguished.
(3) Evidence Act, 1872 -- S.93 -- applicability of -- agreement of sale -- language used therein ambiguous -- in evidence if plaintiff is saying by describing some other property of defendant -- such evidence cannot be accepted -- provisions of section 93 will be applicable. [Para 23
¼1½ fofufnZ”V vuqrks”k vf/kfu;e] 1963 & /kkjk 20] 21 rFkk 22 & lafonk vf/kfu;e] 1872 & /kkjk 29 & fodz; dk djkj & lafonk ds fofufnZ”V ikyu ds fy, okn & djkj dk fu”iknu rFkk vfxze :-3]000@& dh jde izkIr djuk Lohd`r & djkj ds lkFk layXu ekufp= esa n’kkZ;k x;k Hkwfe dk fooj.k & ls badkj fd;k & n’kkZbZ xbZ Hkwfe Hkh fodzsrk dh ugha & djkj esa Hkwfe dk xyr fooj.k & ,slk djkj vfuf’pr gS & okn fMdzh ugha fd;k tk ldrkA ¼2½ lafonk vf/kfu;e] 1872 & /kkjk 29 & fodz; dk djkj & lafonk ds fofufnZ”V ikyu ds fy, okn & djkj dk fu”iknu rFkk vfxze :- 3]000@& dh jde izkIr djuk Lohd`r & djkj ds lkFk layXu ekufp= esa n’kkZ;k x;k Hkwfe dk fooj.k & ls bUdkj fd;k & n’kkZbZ xbZ Hkwfe Hkh fodzsrk dh ugha & djkj esa Hkwfe dk xyr fooj.k & ,slk djkj vfuf’pr gS & okn fMdzh ugha fd;k tk ldrkA vfHkfu/kkZfjr % U;k;ky; dks lafonk ds fofufnZ”V ikyu djus dh fMdzh ikfjr djus ds iwoZ djkj dh ‘krksZ dks izHkkoh fd;k tkuk pkfg, fdarq mlh le; i{kdkjksa ds okLrfod vk’k; dks vfHkfuf’pr djus ds fy, ;fn laiw.kZ djkj i<+k tkrk gS vkSj ;fn ;g ik;k tkrk gS fd laifr dk fooj.k fu’pr ugha gS] laifr tks fo|eku ugha gS mlds laca/k esa oknh ds i{k esa lafonk ds fofufnZ”V ikyu dk okn fMdzh ugha fd;k tk ldrk rFkk fof’k”Vr% tcfd orZeku izdj.k esa izfroknh Lokeh ugha FkkA vfuf’prrk rFkk fodz; ds djkj ds nLrkost esa okn laifr dk fd;k x;k xyr fooj.k ds dkj.k] og /kkjk 29 dh ‘kCnkoyh esa ‘kwU; gS rFkk ,slk ‘kwU; nLrkost lafonk ds fofufnZ”V ikyu ds okn esa fof’k”Vr% izorZuh; ugha fd;k tk ldrkA 2008¼2½ ts ,y ts 1 ¼mPpre U;k;ky;½ vuqlfjrA 1979¼1½ e-iz- ohDyh uksV~l 306] , vkb vkj 1951 dy- 10] , vkb vkj 1945 enzkl 10] gkWYlcjh t ykW vkWQ baXySaM prqFkZ laLdj.k Hkkx 9 iSjk 441 rFkk 442] f)rh; laLdj.k Hkkx 7 iSjk 458 rFkk dkWiZl T;wfjl lsdaMe Hkkx 17, iSjk 147 voyafcrA , vkb vkj 1958 ,l lh 448] ¼2006½1 ,l lh lh 697] , vkb vkj 2003 ,l lh 2418 rFkk , vkb vkj 1974 ,l lh 873 izHksfnrA ¼3½ lk{; vf/kfu;e] 1872 & /kkjk 93 & dk ykxw gksuk & fodz; dk djkj & mlesa iz;qDr Hkk”kk lafnX/kkFkZ & lk{; esa oknh ;fn izfroknh dh vU; laifr dk o.kZu dj dFku djrk gS & ,slh lk{; Lohdkj ugha dh tk ldrh & /kkjk 93 ds mica/k ykxw gksaxsA ¼iSjk 23½
1. Feeling aggrieved by the judgment and decree dated 15.5.1996 passed by learned 2nd Additional Judge to District Judge, East Nimar, Khandwa in Civil Suit No.85-A/1995 whereby the suit of specific performance of contract has been decreed, this appeal under section 96 of CPC has been filed by the appellant-defendant.
2. Shorn of unnecessary detail, the facts of the case lie in a narrow compass. Suffice it to say that a suit for specific performance of contract has been filed by plaintiffs-respondents against the present appellant-defendant on the averments that he (defendant) is having open land, the description whereof has been mentioned in the Schedule attached to the plaint and which is also the part of the plaint. As per the plaint averments the parties entered into an agreement of sale on 1.12.1991 and it was agreed by the defendant to sell the suit land in favour of plaintiffs for a consideration of Rs.24,000/- and in advance a sum of Rs.3,000/- was paid by the plaintiffs to him. A document of agreement of sale on the same day was also executed mentioning the factum of receipt of Rs.3,000/ as advance. In the same agreement it has been further mentioned that on 1.1.1992 the plaintiffs shall also pay a further sum of Rs.7,000/- and the balance amount of Rs.14,000/- shall be paid by them on or before 5.4.1992 and thereafter the land in question mentioned in the Schedule to the plaint shall be sold by the defendant by executing a registered sale-deed.
3. It is the further case of the plaintiffs that in terms of the agreement dated 1.12.1991, the plaintiffs came to the residence of defendant on 1.1.1992 with Rs.7,000/- but at that juncture he was going to graze his she buffaloes and told the plaintiffs that he will obtain Rs.7,000/- in Court where he shall also pass on the receipt. At that juncture, Gyarsilal was also with the plaintiffs. The plaintiffs throughout remained in the Court upto 4:00 p.m. but when the defendant did not come on that day they sent a notice through their counsel by registered AD post to the defendant stating therein that in terms of the agreement of sale they tried to pay Rs.7,000/- and were also present in the Court as directed by the defendant but he did not come and therefore it appears that he is avoiding to perform his part of contract. Thus, by the said notice the defendant was asked to get the sale-deed executed. According to the plaintiffs, a wrong reply of the said notice was sent by the defendant in which it has been stated that the four boundaries mentioned in the document of agreement of sale are not correct and therefore he (defendant) is unable to perform his part of contract by executing the sale-deed. But, according to plaintiffs the said plea which has been taken in reply is not correct.
4. Thereafter before the agreed date i.e. 5.4.1992 on or before which the sale-deed was to be executed, when the defendant did not execute the sale-deed another notice dated 10.2.1992 was sent by plaintiffs through their counsel by registered AD post to defendant and further he was asked to get the sale-deed executed. But, again a wrong reply was sent by him stating the same stand which he took in his earlier reply. It has also been pleaded by the plaintiffs that they always remained ready to perform their part of contract but the defendant avoided to get the sale-deed executed. Hence, present suit is being filed.
5. The defendant by filing written statement specifically admitted the factum of execution of agreement of sale on 1.12.1991 for a consideration of Rs.24,000/- and also admitted that he obtained a sum of Rs.3,000/- on that date as advance, but, specifically he has pleaded denying the factum that land in question was agreed to be sold for the simple reason that defendant does not own land, the description whereof has been mentioned in the document of agreement of sale and the land of such a description does exist at the spot and therefore said agreement on account of its uncertainty is n
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
