Goutam Bhaduri, J.:— This appeal is filed against the judgment and decree dated 12 February, 2019 passed by Fourth Additional District Judge, Durg (C.G) in Civil Suit No. 1236102-A/2012 whereby the suit filed by the plaintiffs for specific performance of contract and permanent injunction has been rejected. Hence this appeal.

2. The case of the plaintiffs, in short, is that the land bearing Kh. No. 289/2 admeasuring 3.52 hectares situated at village Karhidih, P.H. No. 17/8, Tahsil and District Durg was jointly owned by defendants 1 to 3. According to plaint averments, since 1980-1981 the family of the plaintiffs and defendants were jointly doing the land business, however, the purchase of lands was made in separate names and subsequently as the lands were being sold, the sale consideration was being divided equally. The plaintiff further stated that in the year 1999, the lands which were jointly purchased were agreed to be divided which was accepted by the defendants and accordingly, some of the lands belonging to the plaintiffs situated at village Sankra, Distt. Rajnandgaon were sold in favour of the defendants in 2003-2004 by registered sale deed. Like wise, the landed property of village Jhenjhri were adjacent to the land of Karhidih with the same boarder which was purchased by the plaintiffs and defendants and therefore, in respect of the property of Jhenjhri and Karidih, it was agreed that the defendants would sell it for Rs. 22,58,500/- and an oral agreement was arrived at between the parties. Pursuant to such agreement, on 11.01.2008 a total of 10 stamp papers worth Rs. 3,74,300/- was purchased, out of which 5 stamp papers of Rs. 1,84,600/- were used for execution of registered sale deed on 28.01.2008 and 30.01.2008 in respect of property of village Jhenjhri thereby the sale was done to the plaintiffs in part.

3. The plaintiffs further stated that in respect of village Karhidih, though the property was agreed to be purchased but the defendant stated that because of certain income tax problem, the sale-deed could not be executed, as such, in respect of village Karidih, the property was agreed to be sold for Rs. 10,78,000/- and out of that, Rs. 10 lakhs was already received by the defendant and possession of the land was given to the plaintiffs. The plaintiffs further state that in the month of January, 2011 the revenue documents were also handed over.

4. Subsequently, it is stated that on 25.01.2011 the plaintiffs came to know that defendant no. 1 Sunil Kumar Arora applied for a duplicate Rin Pustika to be issued in respect of suit land of Khasra No. 289/2 of village Karhidih on the pretext that the original Rin Pustika has been lost so that the sale could be made to some-one-else. The plaintiff states that a sale consideration of Rs. 10 lakhs was already paid and only Rs. 78,000/- remains to be paid and claimed that the defendants should not transfer the said land to any third party inasmuch as for village Jhenjhri and Karhidih, the sale consideration of Rs. 21,80,500/- has been received by the defendants and only certain small part is to be paid. Therefore, on these averments, the suit for specific performance was sought for.

5. The defendants denied all the adverse allegations as also the offer and acceptance as alleged by the plaintiffs in respect of distribution and sale of property inter-se was categorically denied. It was further stated that the plaintiffs have fabricated the so-called arrangements without acceptance of offer and the plaintiffs would themselves be held to be liable for the acceptance. The defendants further asserted that plaintiff no. 1 used to look after the properties of defendants and he agreed to purchase the same and since they were residing at a far place i.e., Bhopal, they were not able to frequently come to Durg, as such, on obtaining nominal amount, the property of village Jhenjhri was sold to the plaintiffs and the land of Karhidih was neither offered for sale nor any agreement was arrived at. The payment of sale consideration of Rs. 10 lakhs was also denied.

6. The defendants further stated that they reposed confidence on plaintiffs thereby the plaintiffs were allowed to to take care of the lands of defendants but under guise of confidence, the plaintiffs have resorted to claim property. The defendants further stated that the plaintiffs have surreptitiously removed the property papers of defendants from the possession of defendant no. 1 and with respect to the purchase of stamp papers for sale deed, the plaintiffs themselves are liable to sustain the loss for their own deeds. The defendants further stated that the suit was not properly valued and no action was taken by the plaintiffs within 3 years to file the suit, as such, it is barred by limitation.

7. On the basis of pleadings, the learned Additional District Judge framed six issues and in respect of Issue no. 1 the finding was arrived at that no offer or proposal was ever made on the basis of mutual consent/agreement between the parties regarding the exchange of the land of village Karhidih bearing Kh. No. 289/2 admeasuring 3.52 hectares. In respect of Issue no. 1, the trial Court held that the plaintiffs are not entitled to get the relief from the defendants to get the registered sale deed executed on the basis of proposal letter made in the year 1999 for the above land. In sum and substance, the Court held that neither any offer/acceptance was made to sell the land of Karhidih of Khasra No. 289/2 nor any settlement of partition was ever arrived at in between the parties. The Court further held that the suit was barred by time and eventually held that the plaintiff is not entitled for any decree, therefore, it resulted into dismissal.

8. The submissions of learned counsel for the appellants are as follows:

(a) that the arrangement between the parties was arrived at and there were 4 to 5 properties in the groups of Batwara List and the list of properties is further shown in Ex.P-135 and the land bearing Kh. Nos. 289/2 of 3.52 hectares at village Karhidih, forms part of group Kha.

(b) that the sale deeds which have been filed would show that as per the arrangements of exchange arrived at, the property of village at Jhenjhri was sold vide Ex.P-38, P-39, P-40 and P-141 & P-142 and in respect of property of group Kha, he would submit that group Kha includes the property of Karhidih and Jhenjhri therefore, the sale deeds though were prepared which is consisting of 5 stamp papers in respect of properties of village Karhidih but the defendants did not come-forward to get the sale deeds registered despite the fact that the payment in full was received.

(c ) that purchase of 10 stamp papers would show that it was purchased on the same date ie., 11.1.2008 and out of the total payment sale consideration arrived at Rs. 22,58,500/- of village Jhenjhri and Karhidih, Rs. 11,08,500/- was adjusted towards sale of property of Jhenjhri. But in respect of Karhidih, though the sale deeds were prepared but it was not registered.

(d) that in respect of village Jhenjhri Dadesar, the sale of property was already done and the statement of P.W.3 Raj Kumar Jain, who was working for both the parties would show that in presence of this witness and one Narsingh Choubey, the said arrangements were arrived at. He would further submit that the statement of Raj Kumar Jain really establishes the fact that the said agreement was arrived at in between the parties for exchange of land.

(e) that the statement of D.W.1 Sunil Kumar would show that there exists an admission that in respect of land of Karhidih, the part of the land would be sold in favour of the plaintiffs. Referring to Ex.P-9, P-10 and P-11 which are details of account, it is contended that the amounts of Rs. 10 lakhs, Rs. 1 Lakh and further amount of Rs. 4 lakhs & Rs. 5 lakhs were received by the defendants and the initial-sign was made on them. Therefore, completely disowning the fact that no agreement was arrived at would be a wrong statement.

(f) that perusal of Rinpustikas which are in original would also show the intention of the parties that in respect of land of Karhidih, the entire documents in respect of Rinpustikas were handed over to the plaintiffs. He placed reliance in (2009) 2 SCC 582, and (2016) 1 SCC 762 to submit that in respect of the oral agreement, the conduct of the parties are required to be seen and here in the instant case, the admission of the defendants would show the existence of the agreement.

(g) that since the property includes a large chunk of properties and interse exchange of sale was agreed to be made of different parts of the properties at different places which was being done in passage of time, therefore, the time cannot be held to be essence of the contract.

(h) He further contended that the learned trial Court has completely misdirected to adjudicate the issue as such the suit is liable to be decreed.

9. Per contra, learned counsel for the respondent would submit that -

(a) in order to form a contract, the offer and acceptance should be absolute.

(b) the plaint averments itself would show that the lands belonged to various persons, consequently the meeting of the mind of people to form consensus ad idem is necessary between the parties.

(c) as per the plaint averments itself, one of the defendants acted on behalf of other defendants but it has been denied by them.

(d) that inference cannot be drawn in absence of a clear offer and acceptance.

(e) that as per Section 12(2) of the Specific Relief Act, 1963, when some part of the contract is left unperformed, then in such a case, the compensation could have been granted, but clear distinction is required to establish the same. Referring to Ex.P-134 with respect to suit property, learned counsel submitted that it consists of 21 acres and the plaint map does not indicate that out of which area of Kh. No. 289, the part of land was agreed to be sold.

(f) learned counsel would submit that in the written statement, the said averments of offer have been denied and the learned trial Court has framed the issue on entirety of the property of 3.52 acres, but no issue has been framed on readiness and willingness of performance of contract.

(g) referring to notice Ex.P.36 dated 07.03.2011, he would submit that notices were also not given to the original parties and as against this, Ex.P-44 reply to notice would reflect that the defendants in fact wanted to purchase the land of the plaintiffs since it was adjacent to the land of the defendant.

(h) He would submit that in the statements of amounts, nothing has been proved as to by whom, it was paid, therefore, the same cannot be attached to the sale deed. He placed reliance on a case law reported in K. Nanjappa (dead) by Lrs v. R.A. Hameed alias Ameersab, (2016) 1 SCC 762 and would submit that where a valid and enforceable contract has not been made, the Court will not make a contract for them. He further placed reliance in Shanker Singh v. Narinder Singh, (2014) 16 SCC 662 to submit that in order to get a decree of specific performance, particulars of property and its ownership are required to be established.

(i) He would submit that the judgment and decree of the learned trial Court is therefore well merited which do not call for any interference.

10. We have heard learned counsel for the parties at length and have also perused the evidence and documents.

11. Firstly we would like to deal with the point as to whether the suit was barred by time. A perusal of the document Ex.P-134 & 135 on which the plaintiff has proceeded to claim specific performance would show that it forms a different class of property of different areas though the offer was stated to be made on 03.09.1991 vide Ex.P-134. A perusal of such documents would show that the properties were agreed to be exchanged between the parties in a phase-wise manner, therefore, without going into the validity of the same as to whether the agreement exists or not, the conduct of the parties would show that the time was not the essence of contract. In this regard, we may refer to the judgment of the Supreme Court in Rathnavathi v. Kavita Ganashamdas, (2015) 5 SCC 223 para 35. In that case the Supreme Court referred to a decision rendered in Govind Prasad Chaturvedi v. Hari Dutt Shastri, (1977) 2 SCC 539 wherein the Court placing reliance on the law laid down in Gomathinayagam Pillai v. Palaniswami Nadar, AIR 1967 SC 868 reiterated the principles and held as under (Govind Prasad case) SCC pp 543-44 Paras 5-6):

“5…… It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.

6. Apart from the normal presumption that in the case of an agreement of sale of immovable property time is not the essence of the contract and the fact that the terms of the agreement do not unmistakably state that the time was understood to be the essence of the contract neither in the pleading nor during the trial the respondents contended that time was of the essence of the contract.”

12. Again in Chand Rani v. Kamal Rani, (1993) 1 SCC 519 the Supreme Court placing reliance on law laid down in the aforementioned two cases took the same view. Similar view was taken with more elaboration on the issue in K.S. Vidyanadam v. Vairavan, (1997) 3 SCC 1 : AIR 1997 SC 1751 wherein it was held as under : (SCC pp. 7 & 9, paras 10 & 11) -

“10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both sections 10 & 20. As held by a Constituion Bench of this Court in Chand Rani v. Kamal Rani, (1993) 1 SCC 519 (SCC p.528, para 25).

“25…. It is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?)

(1) from the express terms of the contract;

(2) from the nature of the property; and

(3) from the surrounding circumstances, for example, the object of making the contract.”

In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grants specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973.

11……Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so….”

13. The aforesaid view was upheld in K. Narendra v. Riviera Apartments (P) Ltd. ., (1999) 5 SCC 77.”

(Emphasis supplied)

14. Now coming to the existence and enforceability of oral agreement for sale of immovable property, the plaint primarily proceeded on the document Ex.P-134 dated 03.09.1999 which bears signature of plaintiff K. B. Lal Shrivastava and according to him, the arrangements were arrived at. The parties were doing joint business and they purchased the properties jointly and severally and later they had agreed to partition or separate the properties by execution of sale deeds. The partition list (Batwara Suchi) Ex.P.135 is on record. In Group-Kha of “Batwari Suchi” properties of village Jhenjhri and Dadesar is shown at Serial No. 1, for which, no dispute exists with respect to the fact that the sale deed was executed. In respect of properties of village Karhidih which is at Serial No. 3, it shows that it is an area of 17.60 acres. The plaintiffs claim that this property was agreed to be transferred by the defendants in favour of plaintiffs and stamp papers to execute the sale deed were purchased, which is also shown in agreement Ex.P-134. In respect of properties of village Jhenjhri sale deeds Ex.P 138 to Ex.P-142 were executed. In respect of the property of Karhidih, the plaintiff placed reliance on Ex.P-145 to Ex.P-149 to say that sale deeds though were prepared but were not executed in respect of Kh. No. 289/2 of different area. Thus the proposal for sale of property which was said to have been made, has not been executed. In all the sale deeds, the sellers are shown as Sunil Kumar Arora, Naveen Kumar Arora and Vinod Kumar Arora.

15. In the arrangement of alleged offer Ex.P-134, the defendants are not a party and partition-list (Batwara Suchi) Ex.P-135 also does not contain the signature of defendants except the signature of Rajkumar Jain (P.W.3). The witness P.W.1 says that the agreement was an oral document and in the meeting, the defendants were present. Ex.P-134 which is the offer is silent about the details of ownership of different properties to show as to which property belongs to which person. The defendants had denied the said document in its entirety including the “Batwara Suchi”. The “Batwara Suchi” however shows the property of Karhidih of Total 17.60 acres. The plaintiff claimed that out of that, 3.52 hectares of land was to be purchased. There is no plaint map annexed to the suit. In absence of any plaint map, nothing can be presumed about the fact that for which property the specific offer by whom was made and by whom it was accepted. As the suit was filed by Krishna Bahadurlal Shrivastava and others, by whom the offer was made more specific to say by the plaintiff 1 or 2 or 3 and accepted by which defendant is completely vague. In order to get a decree for specific performance, the plaintiff was required to prove that offer and acceptance was categorically admitted by the defendants and therefore, the burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immovable property. The Supreme Court in K. Nanjappa (dead) by Lrs v. R.A. Hameed alias Ameersab, (2016) 1 SCC 762 (supra) has dealt with the case of an oral/written agreement and held that there is no dispute that even a decree for specific performance can be granted on the basis of oral contract, however, in order to succeed on that, it has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties. At paras 21 & 22 of this judgment, this Court has stated as under:—

“21. There is no dispute that even a decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in case of Shankarlal Narayandas Mundade v. New Mofusil Co. Ltd., 1946 SCC OnLine PC 7 : AIR 1946 PC 97 : (1945-46) 73 IA 98 observed, while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by this Court in Kollipara Sriramulu v. T. Awastha Narayana, AIR 1968 SC 1028 and held that an oral agreement with a reference to future formal contract will not prevent a binding bargain between the parties.

22. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immovable property. Whether there was such a concluded contract or not would be a question of fact to be determined by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties.”

(Emphasis supplied)

16. Further at para 26 of the Nanjappa's case (supra), the Supreme Court reiterated the observations made in Mayawanti v. Kaushalya Devi ., (1990) 3 SCC 1 wherein at para 8 it was held that it is settled law that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Court further held that where a valid and enforceable contract has not been made, the court will not make a contract for them. Para 8 of Mayawanti v. Kaushalya Devi . (supra) reads thus:

“8. In a case of specific performance, it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation, the order of specific performance is to enforce that obligation.”

(Emphasis supplied)

17. Here in the instant case, the contents of documents Ex.P-134 & P-135 on minute perusal categorically show that these documents do not give out a clear-cut picture that a concluded valid agreement was entered between the parties to the suit, therefore, the Court would not create an agreement for that.

18. Further perusal of the documents Exs. P-134 & 135 i.e., offer & “Batwara Suchi” shows the number of properties and the plaintiff claimed that out of which, one of the properties are of village Karhidih, but Khasra No. 289/2 was not shown as agreed upon. That apart, even the identity of the property was also not established. A perusal of the “Batwara Suchi” itself would show that it comprised of large chunk of lands and in absence of any site map attached to the plaint, for want of certainty, the specific performance cannot be granted on a vague grounds when the parties themselves have not established their respective claims to a particular property which were sought to be purchased.

19. In view of the foregoing discussion, we do not find any merit in this appeal warranting interference in the impugned judgment and decree. Accordingly, this appeal fails and is dismissed.

HEAD-NOTES

In case the plaintiff seeks a decree for specific performance of contract of a sale of immovable property on the basis of an oral agreement or a written contract, heavy burden lies on him to prove that there was consensus ad-idem between the parties for the concluded agreement for sale of immovable property.