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RAJASTHAN HIGH COURT
Alok Sharma, J.
Brij Mohan Divedi and Ors. —Appellants
versus
Shikhar Chand and Ors. —Respondents
S.B. Civil Second Appeal No.56 of 1995
Decided on 1.2.2018
Counsel for the Parties:
For the Appellants:Mr. M.M. Ranjan, Sr. Counsel with Mr. Rohan Agarwal, Advocate
For the Respondents:Mr. Shashi Kant Saini, Advocate
IMPORTANT POINT
Money lender having an unfair advantage over borrower and having entered into an agreement to sell qua immovable property with him, cannot be entitled to a decree of specific performance.
Headnote:Agreement to Sell—Specific performance of contract—Second appeal at instance of subsequent purchaser impleaded as defendant in underlying suit for specific performance is maintainable—On merits, money lender having an unfair advantage over borrower and having entered into an agreement to sell qua immovable property with him cannot in discretion of court be entitled to a decree of specific performance—Agreement to sell was under distress executed for partly discharging debt of defendant vendor to plaintiff vendee—Neither readiness and willingness having been averred in plaint, nor plaint stating that defendant had notice of tenant’s readiness and willingness nor plaintiff entering witness box to prove his state of mind as to his readiness and willingness nor being available to be cross-examined thereon—Suit for specific performance was liable to be dismissed. [Specific Relief Act, 1963—Section 16(c)] (Paras 15 to 18)
Result: Appeal disposed of.
Alok Sharma, J.—Under challenge in this second appeal at the instance of the petitioner-defendant-subsequent purchaser (hereafter the ‘defendant-subsequent purchaser’) is the judgment and decree dated 26.9.1994 passed by Civil Judge (Sr. Division), Sawai Madhopur in Civil Regular Appeal No. 5/1991 (64/1980) affirming the judgment and decree dated 22.5.1980 passed by Munsiff, Sawai Madhopur in Civil Suit No. (186/71) 24/1980 by which the suit for specific performance of the agreement to sell dated 8.6.1968 executed by Kalyanmal and Chhitar Mal the respondents-defendants (hereafter ‘defendant-vendor’) in favour of Shikhar Chand, the respondent–plaintiff-vendee (hereafter ‘the plaintiff – vendee’) was decreed.
2. The facts of the case are that the plaintiff as the vendee under the agreement to sell dated 8.6.1968 on 8.9.1971 filed a suit for specific performance of the agreement to sell allegedly executed by the defendant-vendor in respect of agricultural land in khasra no. 1183, 1370 and 1372 agreegating to 7 bighas 19 biswas for a consideration of Rs. 3000/-. The plaintiff’s case was that he was a money lender and an amount of Rs. 4,000/- under pro-note dated 20.8.1968 and a further amount of Rs. 1730/- under pro-note dated 21.8.1968 were due and owing against the defendant-vendor. It was stated that as against the aforesaid outstanding amount of Rs. 5730/-, the defendant had agreed to sell by a registered sale deed his 7 bighas 19 biswas of land under the agreement to sell dated 8.6.1968 and also share the standing crop in equal measure or pay the plaintiff a sum of Rs. 500/- in lieu thereof. It was stated by the plaintiff-vendee that the defendant-vendor however despite the agreement to sell dated 8.6.1968 refused to execute the requisite registered sale deed. Hence the suit for specific performance which be decreed.
3. The defendants-vendors Kalyan and Chhitar Mal filed their written statement of denial. It was stated that purported agreement to sell dated 8.6.1968 was deceptively obtained as Kalyan had only signed certain documents pertaining to a loan transaction with the plaintiff-vendee admittedly a money lender.
4. It appears that during the pendency of the suit, one Brijmohan Divedi (now appellant before this Court) purchased the said land and was impleaded as a party defendant in the suit. Kalyan expired during the pendency of the suit and was substituted by his legal heirs, albeit his son Chhitar was already on record as defendant no.2 in the suit.
5. The trial court framed 10 issues and considering the competing evidence of the plaintiff and the defendants vide its judgment and decree dated 22.5.1980, decreed the suit for specific performance of the agreement to sell dated 8.6.1968. It held that the agreement to sell dated 8.6.1968 had been signed by Kalyan in the capacity as Karta and was also binding on his son Chhitar and his other children.
6. Aggrieved of the judgment and decree dated 22.5.1980 passed by Munsiff, Sawai Madhopur in Civil Suit No. (186/71) 24/1980, three appeals were filed. One by Chhitarmal & Ors; the other by Shikhar Chand and the third by the appellant Brij Mohan as the subsequent purchaser. The LRs of Kalyan including Chhitar were impleaded as proforma-respondents in the appeal of the subsequent purchaser. The first appellate court vide its judgment and decree dated 22.5.1980 has affirmed the judgment passed by the Munsiff, Sawai Madhopur but holding that even though Chhitar had not signed the agreement to sell dated 8.6.1968, yet it was of no consequence as in the khasra girdawari, the sole possession was of Kalyan and having been impleaded in the proceedings as Kalyan’s LR following his death, Chhitar was bound to execute the sale deed and have it registered in terms of the agreement to sell dated 8.6.1968, as had been decreed by the trial court.
7. Hence this second appeal under Section 100 CPC at the instance of Brij Mohan, the subsequent purchaser.
8. On 24.3.2006, the appeal wa
