Court No.1
Second Appeal No. 156 of 2010
Hodil Singh (Deceased) represented by Legal Heirs
Legal Representatives.............................................Appellants
Versus
Bhagwant Singh(Deceased) represented by Legal Heirs
Legal Representatives........................................Respondents
________
Hon'ble Rakesh Sharma, J.
Heard Sri Anil Kumar Aditya, learned counsel for the
appellants and Sri Manish Chandra Tiwari, holding brief of Sri A.T.
Kulsreshtha, learned counsel for the respondents as well as perused
the materials on record, including the judgments of the courts
below.
This Second Appeal has been preferred against the judgment
and decree dated 21.11.2009, passed by the Additional District
Judge, Court No.12, Aligarh, in Civil Appeal No.130 of 2004,
Bhagwant Singh Vs. Holdil Singh, allowing the Appeal preferred by
respondent no.1 by which the judgment and decree dated
22.5.2004, passed by the Trial court has been set aside.
It emerges from the record that an agreement to sell (a lease
deed as alleged by the appellant) was executed by one Hodil Singh,
now represented through his legal heirs and legal representatives,
on 27.4.1994 for selling of his Bhumidhari agricultural land
measuring 8 Bigha 13 Biswa and 15 Biswansi, situate in Village
Bajrangpur, Majra Vijay Garh, Pargana Akrabad, Tehsil Sikandra
Rao, now Tehsil Koil, District Aligarh. The said deed was duly
registered in the office of the Sub Registrar Sikandra Rao, District
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Aligarh. Lateron, two Suits were filed in the Civil Court, that is, one
being Suit No. 375 of 1995, preferred by Hodil Singh against
Bhagwant Singh, seeking a relief that the said agreement to sell,
registered on 27.4.1994, be declared null and void. He had
challenged this deed on various grounds as mentioned in the plaint.
According to him, a document which was registered on 27.4.1994,
was, in fact, a lease deed for cultivating the land in dispute.
Neither adequate consideration or price of the land was given to him
nor he ever intended to transfer his agricultural land. Another Suit,
that is, Suit No. 855 of 1998, Bhagwant Singh Vs. Hodil Singh was
filed by Bhagwant Singh, now represented through his legal heirs
and legal representatives, against Holdil Singh seeking specific
performance of the contract entered into between the parties.
It was pleaded by Bhagwant Singh that the said agreed to sell
was executed by Hodil Singh agreeing to sell the aforesaid land for a
total sum of Rs.1,55,000/= for which a written agreement/contract
was prepared, executed and registered on 27.4.1994 in the office of
the Sub Registrar. A sum of Rs.30,000/- was paid as an advance
amount to Hodil Singh. According to him Rs.26,000/- was paid
before to Hodil Singh before registration of the agreement to sell
and Rs.4,000/- was paid at the time of registration of the
agreement to sell in the office of the Sub Registrar. These events
were noted in the agreement to sell. The parties were agreed that
the sale deed would be executed by 27.10.1995. In the meantime,
vendee, that is, Bhagwant Singh, was required to make
arrangements of the remaining amount to be paid to vendor at the
time of execution of the sale deed.
In furtherance of the agreement to sell, Bhagwant Singh, sent
a written notice to Hodil Singh, vendor, on 3.7.1995 for execution of
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the sale deed, indicating therein that he had arranged the money,
but Hodil Singh did not turn up to execute the sale deed.
Thereafter, notices were sent on 25.10.1995 and 27.10.1995 by
Bhagwant Singh for execution of the sale deed in the office of the
Sub Registrar. It was pleaded by Bhagwant Singh in the plaint of
Suit No. 855 of 1998 that through notices he had indicated to Hodil
Singh that he was will to pay the remaining balance amount
towards sale consideration and was ready to get the sale deed
executed to discharge his part of contract. On refusal of Hodil
Singh, he was compelled to file Suit No. 855 of 1998, which was
ultimately decided by the judgment and decree dated 22.5.2004.
The Trial court had decided these two Suits by one and
common judgment. It had dismissed the Suit preferred by Hodil
Singh, declining to hold that the document/deed, which was
registered on 27.4.1994 was a lease deed. It was held by the Trial
court that Hodil Singh had executed an agreement to sell in favour
of Bhagwant Singh, which was registered on 27.4.1994. Following
findings and conclusions have been recorded by the Trial court in its
judgment:-
“……उक तथयो से सपष है िि यिि होडल िसंह दारा पटा ििषपािित ििया
गया तो ििििित रप से समपिि िा िबजा भी भगवंत िसंह िो िे ििया होता और
यिि िबजा िही ििया गया तो वािी होडल िसंह यह सपष िरता िि ििि
पिरिसिितयो मे पटा ििषपािित िरिे िे बाि भी उसिे दारा भगवंत िसंह िा समपिि
पर िबजा िही ििया गया िा। उपरोक पिरििाा से सपष है िि वािी होडल िसंह दारा
िसतावेज िो इिरारिामा समझते हु ए ही ििषपािित ििया गया िा।”
Ultimately, the Trial court had dismissed Suit NO. 375 of 1995,
filed by Hodil Singh and the Suit filed by Bhagwant Singh was partly
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decreed, directing the vendor to return Rs.4,000/- receiving by him
as advance money. This decree was challenged by Bhagwant Singh
by filing a First Appeal, which was registered as Civil Appeal No. 130
of 2004. The lower Appellate court has allowed he appeal preferred
by Bhagwant Singh, represented by his legal heirs and legal
representatives. The judgment and decree passed by the Trial
court, while deciding, Suit no. 855 of 1998, preferred by Bhagwant
Singh was set aside. The lower Appellate court has held that Hodil
Singh could receive the balance amount of sale consideration of
Rs.1,25,000/- and execute sale deed in favour of legal
representatives of Bhagwant Singh. This judgment is under
challenge in this Second Appeal.
Sri Anil Kumar Aditya, learned counsel for the appellants, has
assailed this judgment on various grounds. According to him, the
document registered on 27.4.1994 was merely a lease deed. It was
not an agreement to sell. The total advance amount of Rs.30,000/=
as alleged was not paid to Hodil Singh. The Trial court has rightly
held that he was only paid Rs. 4,000/- at the time of registration of
agreement to sell. Much stress has been laid that there was no
willingness or readiness shown by Bhagwant Singh in arranging the
money and getting the sale deed executed within time. Hodil Singh
was not paid the entire agreed amount within time. Suit N. 855 of
1998 was preferred beyond time of three years of the deed of
execution of agreement to sell. This shows that Bhagwant Singh
never intended to get the sale deed executed within the stipulated
period of time and he was only taking advantage of the situation.
In support of his submissions, he has placed reliance on the
judgments reported in 2009(2) AWC 1546, Azhar Sultana Vs. B.
Rajamani and others, AIR 2003 SC 1391, Manjunath Anandappa Urf
Shivappa Hansi v. Tammanasa and othrs, AIR 2004 SC 3504,
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Pukhraj D. Jain and others v. G. Gopalakrishna and 2008 (105) RD
739, Shambhu Prasad Vs. Smt. Shamim Jahan to strengthen his
submissions as put-forth in the grounds of appeal and during
arguments. He led the Court to chronology of events and facts to
show that the element willingness and readiness was absent in the
present case. The delay in approaching the court itself reflects on
the conduct of the respondent. He has further submitted that there
were two Suits, that is, Suit No. 375 of 1995 and Suit No. 855 of
1998 and it can be said that there were two judgments deciding two
Suits. Therefore, Bhagwant Singh should have filed two Appeals
which has not been done in the present case. Principles of Res
Judicata have also not been followed in the present case. In this
regard, he has placed reliance on the judgments reported in AIR
2009 SC 1819, Harbans Singh and others Vs. Sant HariSingh and
others and 2009(4) AWC 3613, Hradeshwar Nath v. Nandlal and
another. In addition, the other grounds were also highlighted in the
memo of Appeal.
On the other hand, Sri Manish Chandra Tiwari, learned counsel
for the respondents, has opposed the motion. According to him,
Bhagwant Singh, had one and half years’ time to get the sale deed
executed. It was stipulated in the agreement to sell itself that the
sale deed could be executed by 27.10.1995. He had arranged the
money and indicated his intention, willingness and readiness by
sending notice firstly on 3.7.1995 and thereafter on 25.10.1995 and
27.10.1995 requiring Hodil Singh to come in the office of the Sub
Registrar and execute the sale deed. There is also a reference of a
Panchyat being held in the Village which could not yield any result.
In these compelling circumstances, Bhagwant Singh was left no
option but to file Suit No. 855 of 1998 for specific performance of
the contract. Sri Tiwari has supported the judgment rendered by
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the lower Appellate court and drawn attention of the Court on
various findings recorded by the Appellate court and the conclusions
drawn.
Having heard learned counsel for the parties and carefully
gone through the materials available on record as well as the
judgments of the courts below.
In the present case, the Trial court has already dismissed the
Suit No. 375 of 1995, filed by the appellant, Hodil Singh, the
vendor, against Bhagwant Singh, the vendee. It has categorically
recording findings and concluded that there existed an agreement to
sell not a lease deed. The findings recorded by the Trial court, as
mentioned in the foregoing paragraphs, have remained
unchallenged and uncontested. These findings and conclusions
certainly operate against the appellants. Even this Court itself has
perused the findings recorded by the Trial court and the lower
Appellate court. Here is a case where the Trial court itself had held
that Hodil Singh was conversant with the procedure for execution of
the deeds. It was not the case that he was an illiterate person or
insane person having no knowledge of execution of deeds. This fact
finds support from the fact that in the agreement to sell
photographs of both the parties, that is, vendor, Hodil Singh and
Bhagwant Singh were affixed, which were duly identified by the
witnesses, terms and conditions were stipulated in writing and it
was also signed by the vendee, Hodil Singh and as such it cannot be
said that Hodil Singh was not aware of the contents of the
agreement to sell or unware of the execution of the agreement to
sell or that it was a lease deed. He was paid Rs.26,000/- before
registration of the agreement to sell and Rs.4,000/- was paid to him
at the time of registration of the agreement to sell in the office of
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the Sub Registrar. Thus, by no stretch of imagination it can be
presumed that he was not aware that he had executed an
agreement to sell. Therefore, there is no reason to form a different
opinion during the course of hearing of Second Appeal on admission
to take another view in the matter. There is no allegation against
the Sub Registrar or the Deed Writer that incorrect facts were
mentioned in the agreement to sell. The Trial court has already
held agreement to sell to be a valid and legal document and this
Court while examining the matter in the Second Appal is in full
agreement with this finding recorded by the Trial court and the
lower Appellate court as this is a concurrent finding of fact.
As far as the intention to perform the part of the contract by
Bhagwant Singh is concerned, in the present set of circumstances,
this Court has taken note of the fact that the respondent-Bhagwant
Singh had filed 12 documents, which were placed as Paper 7-Ga.
These 12 documents included the registered notice sent by
Bhagwant Singh, requiring Hodil Singh to come to the office of the
Sub Registrar for execution of the sale deed and the receipts issued
by the Sub Registrar that the vendee, Bhagwant Singh, had
appeared before the Sub Registrar. Thus, on the basis of
documentary and oral evidence produced by the vendee, Bhagwant
Singh, the lower Appellate court has formed the opinion that there
was every intention, willingness and readiness available on the part
of Bhagwant Singh to show that he was always prepared to get the
sale deed executed. The notices were sent by Bhagwant Singh to
Hodil Singh within the stipulated period on 3.7.1995, 25.10.1995
and 27.10.1995 for getting the sale deed executed. There was
specific mention in the plaint also that such intention, willingness
and readiness were existed at the time of filing of the Suit.
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It is noteworthy that the appellant had failed to demolish these
12 documents and testimony of the witnesses. No document to the
contrary was produced by Hodil Singh before the courts below. The
lower Appellate court, in the light of these documents and oral
testimony of witnesses has rightly recorded its opinion that these
evidences remained uncontroverted and unchallenged. While
deciding the Suits, the Trial court has ignored all these documents.
It is relevant to mention here that the lower Appellate court has
followed the law laid down in the judgments reported in AIR 1997
SC 463, AIR 2006 SC 2172, Sugani v. Rameshwar Daw and others
and AIR 2009 SC 2408, Moti Lal Jain v. Ramdasi and others while
recording its findings and conclusions. Even this Court, from the
factual matrix of the case, is of the opinion that the vendor,
Bhagwant Singh, had proved his case before the courts below that
he was always willing and ready to get the sale deed executing after
the remaining balance sale consideration. His willingness and
readiness finds support from the notices sent by him on 3.7.1995,
25.10.1995 and 27.10.1995 and from other documentary evidence.
As far as application of principles of Res Judicate and other
arguments of Sri Anil Kumar Aditya, learned counsel for the
appellants, are concerned, both the Suits, that is, Suit Nos. 375 of
1995 and 855 of 1998 were clubbed together by the Trial court and
both were decided by one common judgment and decree dated
22.5.2004, after hearing learned counsel for the parties and with
their consent as the very genesis and the subject matter of both the
Suits were same. By the said judgment and decree, Suit No. 375 of
1995, filed by the vendee, Hodil Singh against the vendor,
Bhagwant Singh, was dismissed and Suit No.855 of 1998, filed by
the vendor, Bhagwant Singh, was partly decreed. The Trial court,
while deciding the Suits, framed separate issues which were dealt
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with, findings and conclusions were recorded and evidence adduced
were appreciated. Both the parties agreed for clubbing of the Suits,
thus, one and common judgment was rendered as the issues and
subject matter of both the Suits were common and same. Thus,
rightly a single Appeal was preferred by Bhagwant Singh, which was
rightly dealt with by the lower Appellate court. It appears that no
serious objection was raised either before the Trial court or before
the lower Appellate court and, therefore, at the Second Appellate
stage it is not permissible to raise this issue. Since there was a
common judgment, the lower Appellate court did not add anything
new, while dealing with the appeal and decided the issues and
concluded the controversy.
While dealing with Second Appeals, this Court is regularly
noticing that the parties entering into agreement to sell or contract
or sale deeds are approaching the Court taking the dishonest pleas
that either they have not executed agreement to sell or contract or
they do not have knowledge about the contents or terms and
conditions of the agreement to sell or the contract entered into just
in order to escape to perform their part of contract and to frustrate
performance of the contract thereby showing extreme dishonesty
and cheating to the sanctity of the agreement or contract or sale
deeds, which, in fact they have entered into and received money in
part performance thereof. In the process of execution of
agreements, contract or sale deed how it could be possible that the
persons executing these documents/deeds was unaware of the
contents or terms and conditions of the documents/deeds on which
he put his signature or thumb impression, as the case may be. In
most of the cases of challenging the documents/deeds, it is the
dishonesty of the person, who has executed the agreement to sell,
contract or sale deed as well as it is high degree of cheating and
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fraud with the other party. In the present days, if it is permitted it
will create a chaos in the Banking, finance and other economic
affairs, which may result irreparable damage to the economy as
well. In the execution of the agreements, contracts or sale deeds, it
is the faith and confidence of the parties which plays the important
role. If this faith and confidence in execution of agreements,
contracts and sale deeds is permitted to be shaken, it will convey
very bad indication for the economy and the promises reduced by
way of these documents. Thus, the sanctity of agreement must be
respected and preserved.
Now a days, it has become a regular tendency that first enter
into an agreement or a contract in respect of immoveable property
or some other contractual affairs or business with an ulterior motive
and thereafter resile from the promise made through the agreement
or contract by entering into litigation. It is a new device invented
just in order to get the execution of terms and conditions contained
in an agreement or contract frustrated. The person, who has paid
the money or consideration on execution of an agreement or
contract feels cheated after getting involved in an unexpected and
unsavoury situation of unwanted litigation so initiated by a
dishonest person. Thus, the primary duty of a Court of law is to
enforce a promise, which the parties have made and to uphold the
sanctity of a contract or an agreement entered into between the
parties, which form the basis of a society, though there may be
exception. The Courts must exercise extreme restraint in holding a
contract or an agreement to be void as it would encourage
dishonesty and cheating.
My this view finds support from the judgment reported in AIR
1959 SC 781, Gherulal Parakh v. Mahadeodas Maiya.
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In view of the discussions made above, no substantial question
arises to be considered in the present Second Appeal. Accordingly,
the Second Appeal is dismissed. The judgment and decree of the
Lower Appellate court is affirmed.
3.2.2010
bgs/-