Specific performance: Agreement of sale of land – Suit for specific performance of sale agreement in respect of land – On facts, suit for specific performance of sale agreement filed by appellant-society – Dismissed by the courts below since the appellant failed to prove execution of the suit agreement, payment of earnest money in furtherance of those agreements and also being put in possession of the suit property – On appeal, held: Execution of suit agreement was not proved – Appellant cannot be permitted to take the relief sans proof of execution of suit agreements in respect of which the relief of specific performance is sought – There was absence of a valid and subsisting agreement operating between the parties – Neither of the agreement was a registered document – No relinquishment deed has been executed by vendees who were party to the alleged initial agreement – Furthermore, appellant failed to prove the factum of possession – In view thereof, no relief can be granted to the appellant – As regards prayer sought by the appellant for refund the earnest money paid to them in furtherance of the suit agreements, ordinarily it could be considered but in the peculiar facts of the instant case, it may not be possible to entertain the same.
Constitution of India: Art. 136 – Exercise of jurisdiction under – Concurrent finding of fact recorded by the courts below against appellant – Held: Merely because two courts have taken a particular view on the material issues, that by itself would not operate as a fetter on this Court to exercise jurisdiction u/Art.136.
Dismissing the appeals, the Court
HELD: 1. It is incomprehensible as to how the order passed by the High Court disposing of the first appeal without any adjudication can, by any standard, be considered as adverse to the defendant either in the matter of final decree or any finding recorded by the trial court whilst dismissing the suit. As a result, Civil Appeal No.6625 of 2008 is devoid of merit, and is not maintainable. [Para 12] [1240-D]
2.1 In Civil Appeal No.6620 of 2008, the High Court has affirmed the findings of facts and the conclusion recorded by the trial court on material issues against the appellant/plaintiff. In that sense, the subject appeal questions the concurrent finding of fact recorded by the two Courts against the appellant/plaintiff. Merely because two courts have taken a particular view on the material issues, that by itself would not operate as a fetter on this Court to exercise jurisdiction under Article 136 of the Constitution. [Para 13] [1240-E-F]
2.2 The adverse findings recorded by the two courts below against the appellant/plaintiff is based on the indisputable facts, such as neither were the attestors and scribe to the suit agreements examined to prove execution thereof by the real owners of the property nor was any explanation or justification forthcoming for such failure. The suit agreements are unregistered. The defendants have denied having signed any such agreement. No attempt was made by the appellant/plaintiff to confront the defendants and discharge the burden by examining any handwriting expert. The appellant/plaintiff failed to produce any document to show that the nine members in whose favour the initial alleged agreement was executed, have relinquished their possession in favour of the appellant/plaintiff. The co-owner of the property (5th defendant) was neither joined as party in the suit agreement, nor was his authority for execution of such agreement forthcoming. The other two purchasers, along with whom the suit agreement was executed, were also not examined. No proof was forthcoming regarding payment of earnest money amount at the time of execution of the suit agreements or otherwise made to the owners of the suit property. The appellant/plaintiff did not file any document to show that the cheque was encashed and availed by defendant No.4 as payment in respect of the suit agreement. No endorsement was taken on the initial suit agreement, either of the vendors or vendee before or at any time after execution of the second suit agreement. The sole testimony of PW-1 regarding execution of the suit agreement was not enough to prove its execution. No witness was examined to prove that there was any bargain and settlement between PW-1 and defendant Nos.1-4 in respect of the sale transaction prior to execution of suit agreement. There is no recital in the suit agreement to the effect that along with defendant Nos.1-4, defendant No.5 had also agreed to sell the property and to execute the sale deed in favour of the appellant/plaintiff. There was no signature of defendant No.5 on the suit agreements or any reference to her, much less that she agreed to join with defendant Nos.1-4 for sale of the suit property. The suit agreements are executed by the first defendant alone and not by all the co-owners. The trial court, no doubt, did not accept the plea of defendant No.1 being of unsound mind. But the High Court, on analysis of the relevant evidence, accepted the evidence as sufficient in that regard. [Para 14] [1242-E-G; 1243-A-D]
2.3 The trial court made exhaustive analysis of evidence on record in the context of the material issue regarding execution of the suit agreements and answered against the appellant/plaintiff. That finding of the trial court commended to the High Court. The view so taken by the trial court is certainly a possible view and by no stretch of imagination can the finding recorded by the courts below on the material issue against the appellant be said to be manifestly unreasonable and unjust in the context of the evidence on record. [Para 15, 16] [1243-E; 1246-G]
2.4 The appellant/plaintiff cannot be permitted to take the relief claimed in the suit any further sans proof of execution of suit agreements in respect of which the relief of specific performance is sought. The appellant/plaintiff must fail in getting any relief whatsoever in the absence of a valid and subsisting agreement operating between the parties in relation to which relief of specific performance can be granted. Notably, neither of the agreement is a registered document. No relinquishment deed has been executed by the nine vendees who were party to the alleged initial agreement. No endorsement was forthcoming in that regard. If so, the second agreement must stand or fail on its own. But before the execution of the second suit agreement in favour of the appellant/plaintiff, the suit property was purported to be transferred in terms of the agreement dated
22 nd November, 1979 in favour of respondent No.6 (original defendant No.6). During the pendency of the proceedings before the High Court between the parties, a registered sale deed was executed in respect of the suit property in favour of respondent No.6 (defendant No.6) by the owners of the suit property. As a result of the registered sale deed, the heirs and legal representatives of original defendant No.6 claim to have become the owners and in possession of the suit property. [Para 17] [1246-G; 1247-A-E]
2.5 As regards the factum of possession, the trial court found that the appellant failed to prove the same. The view so taken by the trial court that the appellant failed to prove the factum of possession commended to the High Court and has been affirmed by it. There is no reason to deviate from the said conclusion as it is not manifestly unreasonable or unjust in the context of the evidence on record. [Para 18, 19] [1247-F; 1249-E]
2.6 The conclusion arrived at by both the courts below that the suit filed by the appellant/plaintiff deserves to be dismissed is upheld. In the course of arguments, it was submitted by the appellant that if the court was not inclined to grant the prayer for specific performance, then this court may direct the respondents to refund the earnest money paid to them in furtherance of the suit agreements. Ordinarily, such a prayer could be considered but in the peculiar facts of the instant case, it may not be possible to entertain the same, not only because no such express prayer is sought in the plaint filed by the appellant/plaintiff before the trial court, but also because accepting that prayer would result in taking a contradictory approach with the finding of the trial court and affirmed by the High Court and this Court, that the appellant had failed to prove the factum of payment of earnest money amount to the owners of the suit property. In view thereof, no relief can be granted to the appellant. [Para 20] [1249-F, G; 1250-A] Smt. Indira Kaur & Ors. v. Sheo Lal Kapoor (1988) 2 SCC 488 - referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.