Full Text
Date of Decision: 29th October, 2015
OMWATI ..... Appellant
Through: Mr. Sarthak Guru, Mr. N. Raja Singh, Advs.
Through: Mr. Mukesh Kumar, Adv.
JUDGMENT
1. This first appeal under Section 96 of the Code of Civil Procedure (CPC) impugns the judgment and decree dated 5th March, 2005 of the Court of Mr. D.S. Bawa, Additional District Judge (ADJ), Delhi in Suit No.736/01/99 instituted on 5th March, 1991 by the respondent No.1 / plaintiff Mr. Ashok Kumar Arora for specific performance of an agreement to sell dated 16th August, 1997 of immovable property against the respondents No. 2 & 3 Mr. Mukesh Kumar and Mr. Vinod Kumar (defendants no.1&2 in the Suit), by directing the respondent No. 1/ plaintiff to pay the balance consideration within one month to the respondents No. 2 and 3 / defendants no.1 & 2 and by directing the respondents No. 2 and 3/ defendants no.1 & 2 to thereafter execute the sale deed in favour of the 2015:DHC:8979 respondent No. 1/ plaintiff. The appellant was defendant no.3 in the said Suit.
2. Notice of the appeal was issued and vide ad-interim order dated 20th April, 2005 the operation of the impugned judgment and decree was stayed. The appeal, on 19th July, 2006 was admitted for hearing and the earlier adinterim order made absolute subject to the condition that the appellant does not alienate or transfer the property in question or otherwise encumber the same. Vide subsequent order dated 7th May, 2007 the said condition earlier imposed only on the appellant was extended to the respondent No. 2 and 3/ defendants also. The appeal, on 3rd September, 2014 was dismissed in default but on application of the appellant was on 23rd April, 2015 restored to its original position and posted for hearing on 12th August, 2015. On 12th August, 2015 the matter was adjourned to today. The counsel for the appellant has completed his arguments.
3. Mr. Mukesh Kumar, Advocate who has been present since the beginning of the hearing, after the counsel for the appellant has completed his arguments states that Mr. A.K. Gupta, Advocate is the main counsel for the respondent No. 1/ plaintiff and is out of station and seeks adjournment. Once this appeal, which is 10 years old, has been posted for hearing today, the same cannot be adjourned on such frivolous grounds. Moreover, if a request for adjournment was to be made, it ought to have been made before the commencement of hearing. Accordingly, I proceed to adjudicate the appeal after perusing the trial court record.
4. The respondent No. 1 plaintiff instituted the suit from which this appeal arises pleading:
(i) that the respondents No. 2 and 3/ defendants no.1 & 2 had entered into an Agreement to Sell (bayana agreement) with the respondent No. 1/ plaintiff and thereby agreed to sell their property bearing No. H-49, Aruna Nagar, Majnu Ka Tila, Delhi – 110 054 measuring 20 sq. yards to the respondent No. 1/ plaintiff for a total consideration of Rs. 4,00,000/- and against which had received Rs. 50,000/- at the time of signing the balance receipt;
(ii) that the respondent No. 1/ plaintiff at the time of entering into the aforesaid agreement was already in occupation of one shop in the said property at a monthly rent of Rs. 500/- under the appellant / defendant No. 3;
(iii) that the appellant / defendant No. 3 is the widow of Sh. Suresh
Kumar, brother of respondents No. 2 and 3 / defendants no.1 & 2 and the respondents No. 2 and 3 / defendants no.1 & 2 had informed the respondent No. 1/ plaintiff that after the death of their father Sh. Gopi Ram the said property was distributed amongst all the three sons in equal shares;
(iv) that however later on the respondent No. 1/ plaintiff came to know that all the legal heirs of Sh. Gopi Ram are the owners of the suit property and the appellant / defendant No. 3 is also the legal heir of Sh. Gopi Ram as her husband was the son of Sh. Gopi Ram;
(v) that the respondent No. 1 plaintiff learnt so when the appellant / defendant no.3 filed a suit for permanent injunction against the respondent No. 1/ plaintiff as well as the respondents No. 2 and 3;
(vi) that the respondent No. 1/ plaintiff approached “the defendants” on 1st November, 1997 for executing the sale deed in terms of the agreement to sell but the „defendants‟ had expressed their inability;
(vii) that when the repeated efforts of the respondent No. 1/ plaintiff failed, the suit was being filed for specific performance of the Agreement to Sell dated 16th August, 1997 and for possession of the property aforesaid admeasuring 20 sq. yards and for restraining the „defendants‟ from encumbering or parting with the possession of the property.
5. The respondents No. 2 and 3/ defendants no.1 & 2 contested the suit by filing a written statement, though admitting the Agreement to Sell but controverting the readiness and willingness of the respondent No. 1/ plaintiff. Qua appellant / defendant No. 3 it was pleaded that the respondent No. 1/ plaintiff since beginning knew that the appellant / defendant no.3 is also a co-sharer in respect of the „shop‟ for which Agreement to Sell was executed and the respondent No. 1/ plaintiff had stated that he would himself settle the matter with the appellant / defendant no.3.
6. The appellant / defendant no.3 also contested the suit by filing a written statement pleading that the property aforesaid belonged to her fatherin-law Sh. Gopi Ram and which had been distributed by Sh. Gopi Ram amongst all the family members in equal share and in the said settlement two shops and a small room forming part of the property were given to the appellant / defendant no.3 and the appellant / defendant no.3 had let out the two shops, with one of the shops being let out to the respondent No. 1/ plaintiff. It was yet further pleaded that the respondents No. 2 and 3/ defendants no.1 & 2 had without the consent of the appellant sold half of the property and feeling threatened wherefrom the suit for permanent injunction aforesaid had been filed by the appellant / defendant no.3. It was yet further pleaded that since the appellant / defendant no.3 was a co-owner, the respondents No. 2 and 3/ defendants no.1 & 2 had no right to agree to sell the property to the respondent No. 1/ plaintiff.
7. The respondent No. 1/ plaintiff is found to have filed replications to the written statements aforesaid and in which he denied that he knew from the beginning that the appellant / defendant no.3 was also a co-sharer in the property.
8. On enquiry, the counsel for the appellant informs that in the suit for permanent injunction afore referred filed by the appellant / defendant no.3, a settlement was arrived at between the appellant / defendant no.3 and the respondents No. 2 & 3/ defendants no.1 & 2 and as per which settlement, two shops and one room was recognized by the respondents No. 2 & 3/ defendants no.1 & 2 as being the share of the appellant / defendant no.3 in the property. A copy of the said settlement deed has been proved on the Trial Court Record as Ex.PW-1/4 and in terms of the said settlement deed the said suit was disposed of on 8th March, 2009. A perusal of the order sheet of the said date in that Suit shows that the respondent No. 1/ plaintiff was present before the Court on that date.
9. Be that as it may, on the pleadings aforesaid of the parties, the following issues were framed in the suit: “1. Has the plaintiff failed to perform his part of the agreement within the stipulated time?
2. Has defendant No. 3 any right, title or interest in the suit property? If so to what effect?
3. Is the plaintiff entitled to the decree prayed for?
4. Relief.”
10. Needless to state the Ld. Additional District Judge has decided all the said issues in favour of the respondent No. 1/ plaintiff and hence decreed the suit.
11. On enquiry it is informed that the respondents No. 2 & 3/ defendants no.1 & 2 have not preferred any appeal against the impugned decree. The appellant / defendant no.3 in this appeal is concerned with the findings of Issue No. 2 supra only.
12. The learned ADJ has under Issue No. 2 held that the appellant/defendant no.3 has no right, title or interest in the suit property for the following reasons:
(i) that the onus to prove the said issue was on the appellant/defendant no.3;
(ii) that though the appellant in her written statement had pleaded a
Will of her father-in-law Sh. Gopi Ram but had not proved the said Will and had merely stated that the same was in possession of the respondents No. 2 & 3/ defendants no.1 &2; that even if that be so, the appellant/ defendant no.3 should have got the same produced from the respondents No. 2 & 3/ defendants no.1 & 2;
(iii) that though the appellant / defendant no.3 in her pleadings had stated that two shops and one room had fallen to her share but in her cross-examination stated that there was no partition before the settlement aforesaid arrived at in the suit for permanent injunction filed by her;
(iv) that the settlement aforesaid was after the institution of the present suit for specific performance and was to defeat the claim of the respondent No. 1/ plaintiff for specific performance;
(v) that though the appellant/defendant no.3 claimed that the respondents No. 2 & 3/ defendants no.1 & 2 sold half of the property without her consent but had not taken any action in that regard;
(vi) that if the appellant/defendant no.3 had any share in the property, she would have certainly agitated the same when half of the property was sold by the respondents No. 2 & 3/ defendants no.1 & 2 without her consent;
(vii) that the stand of the appellant/defendant no.3 varied from, Sh.
Gopi Ram having left a Will to a settlement having been arrived at between herself and the respondents No. 2 & 3/ defendants no.1 & 2;
(viii) that adverse inference had to be drawn against the appellant/defendant no.3 for not producing the Will of Sh. Gopi Ram which was pleaded to have been in existence;
(ix) that had the said Will been shown to the respondent No. 1/
(x) that it was not the case that the property was ancestral; that Sh.
13. The counsel for the appellant/defendant no.3 has drawn attention to the cross-examination recorded on 9th April, 2003 of the respondent No. 1/ plaintiff and has argued therefrom that the title of the appellant/defendant no.3 to the property stood admitted by the respondent No. 1/ plaintiff in the said cross-examination.
14. It is deemed expedient to set out the said cross-examination in toto here under:- “I am tenant in the suit shop for the last 15-16 years. I had taken this shop on rent from Suresh Kumar husband of defendant No. 3. The property belongs to Gopi Chand, father of defendant No. 1 and 2 and father-in-law of defendant No. 3. Gopi Chand has denied and he had 5 or 6 children. But I am not sure. The property was having an area of 40 sq. yds. prior to the agreement. I did not know whether after the death of Gopi Chand all his children became owners of the property. But I knew that husband of defendant No. 3 was son of Gopi Chand. I knew that Om Wati became the owner of the property of the share of her husband Suresh Kumar. I had not made any agreement with Om wati for purchase of this property although this property was let to me by her husband. Fresh agreement of tenancy was made with Om Wati by me 2/3 years after the death of Suresh Kumar. The rent agreement with Omwati was made by me prior to the agreement for sale with defendant No. 1 and 2. I knew that Omwati was owner of the property when I made agreement with defendant No. 1 and 2 for the purchase of this property. This property was not partitioned to my knowledge. I came to know of the partition in the year 1999 in the case which was pending in the court of Sudesh Kumar, Civil Judge. I was also a party to it. I did not file any suit for injunction against the defendants. In fact I did not file any suit. It is correct that I had filed a suit prior to the agreement for biana. It is correct that I have filed a suit even prior to the filing of the suit by Om Wati against me and defendant Nos. 1 and 2. It is correct that I have not filed on record any order or proceedings of the earlier suit filed by me on record. It is correct that half of the property by sold by defendant No. 1 and 2 even prior to my biana agreement. At the time of the agreement, defendant No. 1 and 2 had told me that they are the owner of the property by way of Will but later defendant Nos. 1 and 2 had backed out. I had told my counsel about the Will at the time of drafting of the plaint as stated by defendant No. 1 and 2. I have not seen the Will. I had signed the plaint after understating it. It is wrong to suggest that I am deposing falsely, in order to grab the property of defendant No. 3. xxxx on behalf of defendant No. 1 and 2. Nil (Opp. given). RO & AC 9.4.03.”
15. A bare perusal of the aforesaid cross-examination is enough to hold that the finding and reasoning of the learned ADJ on Issue No.2 is erroneous. The learned ADJ has not only not considered the cross-examination aforesaid but has also not considered: (a) that the respondent No. 1/ plaintiff in the plaint itself had admitted to the appellant who was impleaded as defendant No. 3 having a share in the property; in fact the appellant/defendant no.3 though not a party to the agreement of which specific performance was claimed was impleaded as a defendant to the suit for the said reason only; (b) that the respondent No. 1/ plaintiff in the replication to the written statement of the respondents No. 2 and 3/ defendants no.1 & 2 had also only taken a stand that the respondents No. 2 and 3/ defendants no.1 & 2 had not disclosed to him the share of the appellant/defendant no.3 in the property agreed to be sold to him at the time of entering into the Agreement to Sell and the respondent No. 1/ plaintiff learnt of it subsequently;
(c) that once it was admitted position that Sh. Gopi Ram was the original owner of the property and the appellant/defendant no.3 was a heir of Sh. Gopi Ram, it was the duty of the respondent No. 1/ plaintiff to prove that the respondents No. 2 and 3/ defendants no.1 & 2 alone were entitled to agree to sell the property to the respondents No. 1/ plaintiff; the learned ADJ wrongly placed the onus on the appellant/defendant no.3;
(d) that the fact that the appellant/defendant no.3 did not take any action with respect to the sale by the respondents No. 2 and 3/ defendants no.1 & 2 of half of the property without her consent cannot extinguish the title of the appellant/defendant no.3 to the property; it cannot be forgotten that the appellant/defendant no.3 as a heir of Sh. Gopi Ram had only 1/3rd share in the property and the fact that the appellant/defendant no.3 chose not to object to sale of one half of the property being of the share of respondents No. 2 and 3 / defendants no.1&2 cannot be the basis for any inference of the appellant/defendant no.3 not having a share in the property.
16. I have perused the trial court record and do not find any material contrary to the logic/reasoning aforesaid.
17. Once it is held that the appellant/defendant no.3 also is the owner of the property, for specific performance of an Agreement of Sale of which the suit was filed, the appellant/defendant no.3 being admittedly not a party to the agreement, the agreement would be incapable of enforcement against the appellant/defendant no.3. The respondent No. 1/ plaintiff has not made out any case for specific performance of the agreement against the share of the respondents No. 2 and 3/ defendants only.
18. The only relief which can be granted to the respondent No. 1/ plaintiff is to be of refund of the amount of Rs. 50,000/- admittedly received by the respondents No.2 and 3 / defendants no.1 & 2 and together with interest thereon. Accordingly, the appeal is allowed by setting aside the impugned judgment and decree and by substituting it with a decree in favour of respondent No. 1/ plaintiff against the respondents No. 2 and 3/ defendants no.1 & 2 for recovery of Rs. 50,000/- together with interest thereon 7% p.a. from the date of institution of the suit till realization. The appellant is also awarded costs of the suit against the respondent No.1 / plaintiff. The counsels fee assessed at Rs. 10,000/-. Decree sheet be drawn.
RAJIV SAHAI ENDLAW, J. OCTOBER 29, 2015 sr..