Back
RAJASTHAN HIGH COURT
Sudesh Bansal, J.
Umar Khan (Deceased) – Appellant
versus
Sumer Khan (Now deceased) – Respondent
S.B. Civil First Appeal No.54 of 1983
Decided on 31.5.2023
(A) Civil Procedure Code, 1908 – Section 96 – First appeal – First appeal is always treated as continuation of civil suit – Virtually, first appeal is a re-hearing of civil suit and whole case is open for reconsideration – At the stage of first appeal, being in continuation of suit, subsequent events occurred during course of first appeal may also be not left out of consideration. (Paras 10 and 13.9)
(B) Agreement to Sell – Suit for Specific Performance – When direct evidence of parties, witnesses of agreement in question and deed writer as also evidence of executor of agreement himself, are available on record, in such circumstances, it is not required for Court to exercise its powers under Section 73 of Evidence Act, 1872, to compare disputed signature – Readiness and willingness of plaintiffs, conduct of parties, comparative hardships, equity and factum of possession are required to be considered – Though trial Court has discussed factum of possession but has not discussed point of readiness and willingness, conduct of parties, comparative hardships and equity between parties – Point of readiness and willingness can be considered as per material available on record, even though no specific issue in this regard has been framed. [Section 73 of Evidence Act, 1872] (Paras 12.7, 12.10, 13 and 13.1)
(C) Agreement to Sell – Suit for Specific Performance – Appeal by unsuccessful defendant – In written statements of defendants, there is no plea in respect of pleadings of plaintiffs about their readiness and willingness, except denial – Plaintiffs have pleaded and proved to be ready and willing for execution of registry in their favour pursuant to agreement in question – Out of total sale consideration of Rs.23000/-, plaintiffs have paid Rs.12000/- in installments before filing of suit – Presumption of possession over an open peace of land always is deemed to be that of owner – Factor of readiness and willingness deserves to be decided in favour of plaintiffs. [Section 16(c) of Specific Relief Act, 1963] (Paras 13.2, 13.3, 13.4 and 13.7)
(D) Specific Relief Act, 1963 – Sections 16(c) and 20 – Agreement to Sell – Suit for Specific Performance – Appeal by unsuccessful defendant – Remedy for specific performance is an equitable remedy and is in discretion of Court – Court is not bound to grant relief just because there was a valid agreement to sell – It would be inequitable and unjust to disturb possession of plaintiffs who have not committed any default nor have any undue advantage on their part – Trial Court has not committed any illegality in passing decree for specific performance in favour of plaintiffs and same does not warrant any interference. (Paras 13.10, 13.13 and 13.14)
Result: First Appeal disposed of with observations.
JUDGMENT
By way of instant first appeal filed under Section 96 of the Code of Civil Procedure, a challenge has been made to judgment and decree dated 25.03.1983 passed in Civil Suit No.9/1982 titled Sumer Khan Vs Hakim Singh by the Court of Additional District Judge, Deeg, Bharatpur, whereby and whereunder a civil suit for specific performance filed by plaintiffs/respondents No.1 to 3 on the basis of an agreement to sale dated 20.08.1981 has been decreed in their favour and against defendant No.1/respondent No.4-Hakim Singh and simultaneously, by the same judgment, two registered sale deeds dated 29.04.1982, executed by defendant No.1-Hakim Singh in favour of appellants/defendants No.2 & 3 namely Umar khan and Amar Singh, have been declared as null and void qua plaintiffs.
2.1 The first appeal has been preferred by defendants No.2 & 3, original purchasers of agricultural lands in question bearing Khasra No.771 (3 bigha 7 biswa) and Khasra No.773 (1 bigha 3 biswa) total measuring 4 bigha 10 biswa, situated at Village Pathroli, Tehsil Kama, District Bharatpur from recorded Khatedar of land in question namely Hakim Singh, who was defendant No.1 before the trial Court and respondent No.4 here in the present appeal. Both defendants No.2 & 3 were real brothers and land of Khasra No.771 (3 bigha 7 biswa) was purchased in the name of defendant No.2-Umar Khan against sale consideration of Rs.15,000/- through registered sale deed dated 29.04.1982 and land of Khasra No.773 (1 bigha 3 biswa) was purchased in the name of defendant No.3-Amar Singh against sale consideration of Rs.5,000/- through registered sale deed dated 29.04.1982. As per sale deeds, Khatedari rights and possession of agricultural lands in question were transferred by defendant No.1 to defendants No.2 & 3 and execution of both registered sale deeds in favour of defendants No. 2 & 3, is not in dispute.
2.2 As per admission of plaintiffs and their witnesses as also according to the evidence of defendants, it was undisputed position before the trial Court that lands in question were in cultivation and in actual possession of defendants No. 2 & 3. Therefore, in absence of possession of plaintiffs over the agricultural lands in question, prayer for issuance of decree for permanent injunction was declined by the trial Court, however, execution of agreement to sale dated 20.08.1981 by defendant No.1 in favour of plaintiffs in respect of lands in question was held proved and it was observed by the trial Court that the civil suit for specific performance without asking for prayer of possession is maintainable, therefore, learned trial Court decreed the suit for specific performance of agreement to sale in favour of plaintiffs and declared two sale deeds of defendants No.2 & 3 as null and void treating both sale deeds as subsequent to the agreement to sale and observing that defendants No.2 & 3 are not bona fide purchasers for value without notice of the agreement to sale, accordingly passed the judgment and decree dated 25.03.1983 in following terms:—
(Matter in Other Language)
3. Since indisputably, the cultivation and actual possession of agricultural lands in question was found with defendants No.2 & 3, who are purchasers of lands in question through registered sale deeds, but because their sale deeds dated 29.04.1982 were declared as null and void by the trial Court vide impugned judgment, hence on filing of the present first appeal there against, this Court admitted the first appeal for hearing and protected the physical possession of appellants/defendants No.2 & 3 by passing an interim stay order dated 25.10.1983 in their favour. The interim stay order dated 25.10.1983 was passed after hearing counsel for both parties and whereby it was held that appellants should pay/deposit a sum of Rs.900/- in every 6 months in the month of November and April of every year during pendency of the appeal; this amount is payable to respondents No.1 to 3 on furnishing a security that this amoun
SupremeToday
(1) At the stage of first appeal, being in continuation of suit, subsequent events occurred during course of first appeal may also be not left out of consideration. (2) Agreement to Sell – Presumptio....
The court ruled that a suit for specific performance was not barred by Order 2, Rule 2 CPC as the appellants were permitted to withdraw a prior suit and file a new one.
An unregistered agreement to sell does not confer rights for specific performance; plaintiffs failed to show readiness and willingness to perform contractual obligations.
The court held that specific performance of an agreement for sale is unenforceable without consent from co-parceners and proof of legal necessity, emphasizing the court's discretion in granting such ....
The grant of specific performance is discretionary, considering undue hardship to subsequent bona fide purchasers, outweighing the plaintiff's claim based on a disputed agreement.
Court emphasized that once agreements are executed and earnest money paid, specific performance can be enforced unless clear evidence of coercion or duress is presented.
The court upheld the agreement to sell's execution and the plaintiff's readiness to perform the contract. Specific performance granted with enhanced consideration due to market changes reflecting the....
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
