CM No.8842-C of 2008 &
RSA No.2999 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM No.8842-C of 2008 &
RSA NO.2999 OF 2008
DECIDED ON : 20.10.2009
Pratap Singh & others ...Appellants
versus
Rakam Singh & others ...Respondents
CORAM : HON'BLE MR. JUSTICE AJAY TEWARI
Present : Mr. Ashish Aggarwal, Advocate
for the appellants.
Mr. J.S.Dahiya, Advocate
for the respondents No.1 to 3.
Mr. D.S.Malik, Advocate
for respondent No.4.
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1.Whether Reporters of local newspapers may be allowed to see
the judgment?
2.To be referred to the reporters or not?
3.Whether the judgment should be reported in the Digest?
AJAY TEWARI, J. (ORAL)
This appeal has been filed against the concurrent
judgments of the courts below decreeing the suit of the
respondent for specific performance of a part of the agreement to
sell the 40 kanals of land.
Learned counsel for the respondents states that the
appellant had obtained a sum of Rs.6,50,000/- as advance for
the same. However, even while representing himself to be
owner of 40 kanals, he was actually owner of only 25 kanals
6 marlas of land, the rest having been transferred (i.e. 270/766
share) to his sons by way of a prior relinquishment. In fact, after
CM No.8842-C of 2008 &
RSA No.2999 of 2008 -2-
entering into the agreement to sell, the appellant had made
another relinquishment deed with regard to the remaining land
meansuring 25 kanals 6 marlas. The plea of the appellant was
that in fact no sale agreement had been executed and the whole
transaction was a result of fraud. Both the Courts below found
that the plea regarding fraud was not established and that the
agreement to sell was duly proved. The following questions have
been proposed:
i) Whether a decree for specific performance could be
passed in the matter especially when the agreement
is liable to be declared void as the area of the suit
land sought to be sold is different from the area
mentioned therein and due to the difference in the
area of which admittedly the defendant is not the
owner, the agreement in question is liable to be
declared void in view of the law laid down by the
Hon’ble Supreme Court in Tarsem Singh vs.
Sukhminder Singh, 1998(2) PLJ 62 (SC)?
ii)Whether the suit was liable to be dismissed as not
maintainable as defendant No.1 is admittedly not
the owner of the suit land and even the
Relinquishment Deed executed prior to the filing of
the suit in favour of defendants No.2 & 3 has not
been impugned in the suit by the plaintiffs?
iii)Whether the suit for specific performance was also
liable to be dismissed as the transferor i.e. Appellant
CM No.8842-C of 2008 &
RSA No.2999 of 2008 -3-
No.1 had not valid title in himself and no legal
contract came into existence in view of Section 20 of
the Indian Contract Act and also in view of the law
laid down by this Hon’ble Court in Dalip Singh vs.
Bachan Singh, 2001(1) PLJ 591?
iv)Whether the agreement in question is based on
fraud and misrepresentation and from the statement
of the plaintiff as PW-3, it is apparent that the
writing was executed for giving land on lease and
there was no intention to execute an agreement of
sale and this aspect of the matter has not been
considered and no finding returned in this regard
regarding fraud and thus the courts below have
erred in decree the suit in question?
v)Whether it was incumbent upon the courts below to
have returned the finding regarding fraud and
validity of the agreement in question especially
when the plea of fraud has been raised in the
written statement and the particulars have been
given in the evidence by the defendants-appellants?
vi)Whether in view of the provisions of Section 25 of
the Contract Act, the agreement in question is not
proved as the passing of consideration has not been
proved in the present case?
vii)Whether the plaintiffs-respondents have withheld
the best evidence and have not proved the source
CM No.8842-C of 2008 &
RSA No.2999 of 2008 -4-
from where they paid the amount of Rs.6,50,000/-
especially when all the witnesses show their
ignorance regarding payment of amount and there is
no evidence on the record in the shape of bank entry
etc. to show the source of amount paid?
viii)Whether the entire approach of the ld. Courts
below to the present case is patently illegal, ultra
vires, void and without jurisdiction and the
impugned judgments and decrees are liable to be
set aside?
ix)Whether grave and manifest injustice has been
caused to the appellants in the matter?
Questions No.(iv) to (vii) are pure questions of fact.
Learned counsel has not been able to persuade me that the
findings recorded thereon are either based on no evidence or on
such misreading of evidence, which render them so perverse as
to justify the interference under Section 100 of CPC. Questions
No.(i) to (iii) are related. Learned counsel for the appellant has
relied upon the decision of Hon’ble Supreme Court in
Rachakonda Narayana vs. Ponthala Parvathamma &
another, reported as 2001 volume 8 SSC 173 and
particularly on para No.8 thereto, which is as follows:
“A perusal of sub section (3) of Section 12 shows
that the first part of the said provisions mandates
refusal of specific performance of a contract on certain
conditions. However, the latter part of the provisions
permits a Court to direct the party in default to
CM No.8842-C of 2008 &
RSA No.2999 of 2008 -5-perform specifically so much of his part of the contract
as he can perform if the other party pays or has paid
the agreed consideration for the whole of the contract
and relinquishes all claims to the performance of the
remaining part of the contract and all the rights to
compensation for the loss sustained by him. If a suit
is laid by the other party, the Court may direct the
defaulting party to perform that part of the contract
which is performable on satisfying to pre-conditions
i.e. (i) the plaintiff pays or has already paid the whole
of the consideration amount under the agreement, and
that (ii) the plaintiff relinquishes all claims to the
performance of the other part of the contract which
the defaulting party is incapable to perform and all
rights to compensation for loss sustained by him.
Thus, the ingredients which would attract the specific
performance of the part of the contract, are :(i) if a
party to an agreement is unable to perform a part of
the contract, he is to be treated as defaulting party to
that extent, and (ii) the other party to an agreement
must, in a suit for such specific performance, either
pay or has paid the whole of the agreed amount, for
that part of the contract which is capable of being
performed by the defaulting party and also relinquish
his claim in respect of the other part of the contract
which the defaulting party is not capable to perform
and relinquishes the claim of compensation in respect
of loss sustained by him. If such ingredients are
satisfied the discretionary relief of specific
performance is ordinarily granted unless there is delay
or laches or any other disability on the part of the
other party.”
Section 12 of the Specific Relief Act, 1963 is to the
following effect:
CM No.8842-C of 2008 &
RSA No.2999 of 2008 -6-
1.Except as otherwise hereinafter provided in this
section the court shall not direct the specific
performance of a part of a contract.
2.Where a party to a contract is unable to perform the
whole of his part of it, but the part which must be
left unperformed by only a small proportion to the
whole in value and admits of compensation in
money, the court may, at the suit of either party,
direct the specific performance of so much of the
contract as can be performed, and award
compensation in money for the deficiency.
3.Where a party to a contract is unable to perform the
whole of his part of it, and the part which must be
left unperformed either –
a) forms a considerable part of the whole, though
admitting of compensation in money; or
b) does not admit of compensation in money,
he is not entitled to obtain a decree for specific
performance; but the court may, at the suit of other
party, direct the party in default to perform specifically
so much of his part of the contract as he can perform,
if the other party-
(i) in a case falling under clause (a), pays or
has paid the agreed consideration for the whole
of the contract reduced by the consideration for
the part which must be left unperformed and a
CM No.8842-C of 2008 &
RSA No.2999 of 2008 -7-case falling under clause (b), [pays or had paid]
the consideration for the whole of the contract
without any abatement; and
(ii) in either case, relinquishes all claims to the
performance of the remaining part of the
contract and all right to compensation, either
for the deficiency or for the loss or damage
sustained by him through the default of the
defendant.
4. When a part of a contract which, taken by itself,
can and ought to be specifically performed, stands on
a separate and independent footing from another part
of the same contract which cannot or ought not to be
specifically performed, the court may direct specific
performance of the former part.
Learned counsel has argued that even as per the best
case of the respondent, his claim would be covered by sub
clause B of Clause III of Section 12 and thus, the respondent
could succeeded only if he had offered to pay the entire amount.
Another argument which has been made is that on one of the
khasra no. mentioned in the agreement, the revenue record
shows that a house exists on that land. It is the contention of
the learned counsel for the appellant that it was incumbent upon
the respondent to lead evidence as to the value of the house and
to show what was the proportionate price thereof. As regards the
first argument, learned counsel for the appellant has not been
CM No.8842-C of 2008 &
RSA No.2999 of 2008 -8-
able to persuade me that the part which has been rendered
unperformable does not admit of compensation in money.
As regards the second argument, it may be noticed
that the entire land was agreed to be sold by the appellant at the
rate of Rs.2 lac per acre. The appellant had himself not indicated
anywhere in the agreement to sell that there was some house on
the land in dispute and that the value thereof had been factored
into the price of the land. In any case, even if it is accepted that
the value of the house was factored into the cost of the land, this
fact would actually mitilate against the appellant because then
the price of the land per se would be actually less than Rs.2 lac
per acre and thus, the appellant would not be entitled to
abatement at the rate of Rs.2 lacs per acre (for that portion of
the land which he had relinquished prior to the agreement to
sell).
Yet another argument raised by the learned counsel
for the appellant is that one of the parcels of the land mentioned
in the agreement viz Rec. No.114 Khasra No.1 (6 kanals 18
marlas) was not the ownership of the appellant at all and that the
ld. Courts below have erred in including another parcel of land
owned by the appellant to make up 25 kanals 6 marlas. Learned
counsel for the respondent has countered by arguing that in fact
it was a case of clerical mistake since the land owned by the
appellant was in Rec. No.122 and that it bore the same Khasra
No.1 and the same area (6 kanals 18 marlas). However, there is
no explanation why this alleged mistake in the agreement to sell
CM No.8842-C of 2008 &
RSA No.2999 of 2008 -9-
was never sought to be explained either in the detailed plaint or
at any subsequent stage and in fact this explanation has been
offered for the first time in the appeal.
Consequently, it has to be held that the land
comprised in Rec. No.122 Khasra No.1 (6 kanals 18 marlas) has
to be excluded from that portion of the land for which the
appellant is bound to execute the sale deed. This reduction in
the area to be sold would necessarily mean that the respondent
is entitled to receive some amount from the appellant. It cannot
be disputed that the appellant has utilised illegally and
dishonestly the amount of the respondent since 16.02.2001. In
these circumstances, it is declared that the respondent will be
entitled to refund of his balance amount with interest @ 12% per
annum. The land which has been excluded shall be under lien for
the recovery of the said amount. With these modifications, the
judgments and decrees of the Courts below are upheld and this
appeal and all miscellaneous applications are disposed of.
October 20, 2009 (AJAY TEWARI) sonia JUDGE