Raghunath Rao Bhagwat v. Vidhyabhanu Prakash And Others

of suit property shown with red colour in plaint map, the possession of rest of property was given to plaintiff. The plaintiff also claims that Rs.5000/- was waived by defendant for obtaining possession of red colour property. It is the plaintiff's case that the defendant no.1 assured him to execute the sale deed after plaintiff obtains permission from competent authority.

4. The plaintiff further averred that a separate deed was also executed by defendant no.1 in his favour on 10.07.1979 for removing small rooms (pators) situated towards north side of the property. The plaintiff removed these pators and included the space with open space used as cycle stand of Yadav Talkies. He thus claimed that, except one shop at ground floor included in red colour property, the possession of rest of the property was taken by him.

5. The plaintiff has also averred that, at the time of execution of agreement, the defendant no.2 was his tenant in red colour property at ground floor and as told by defendant no.1, the defendant no.2 illegally gave possession of the property to defendant no.3 in early 1979.

6. It is the case of plaintiff that he requested the defendant no.1 several times to execute the sale deed for which he also purchased stamp papers, wrote letters to defendant no.1. Looking to the behavior of defendant no.1, he also served a legal notice in January' 1983 and thereafter served another notice through certificate of posting on 04.07.1983 of which the reply was given by defendant no.1 on 02.08.1983 informing that he would be coming to Lashkar. Later on, the defendant came to Lashkar, however, he did not met plaintiff. The plaintiff thus apprehended certain conspiracy on the part of defendant no.1.

7. The plaintiff averred that he has already purchased the stamp papers and was and is always ready and willing for execution of sale deed.

8. The plaintiff also averred that, after filing of suit, he came to know that in March' 1984, a forged agreement to sell, dated 06.05.1974 is prepared by defendants

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and based on this, a sale deed has been executed by defendant no.1 in favour of defendant no.3 on 12.10.1983. The plaintiff averred that the defendant no.3 was also aware about the plaintiff's agreement with defendant no.1 and still he got the sale deed executed in his favour, in order to cause loss to the plaintiff. It is alleged that the entire action is taken by defendants only to frustrate plaintiff's present suit for specific performance of agreement.

9. The present suit was thus filed by plaintiff seeking a direction to defendant no.1 to execute sale deed of suit property in plaintiff's favour. He also sought for a direction for execution of sale deed by Court, if defendant no.1 fails to do so. The plaintiff sought a further declaration that the sale deed dated 12.10.1983 executed by defendant no.1 in favour of defendant no.3 is null & void. He also sought a decree of possession of property shown with BCEF in red colour in plaint map. A decree of permanent injunction was also claimed restraining the defendants from interfering with plaintiff's possession over the suit land. He also claimed mesne profit at the rate of Rs.200/- per month.

10. Refuting the plaintiff's case, the written statement was filed by defendant no.1. He averred that the property number has changed from 24/434 to 33/289 and further to 30/274. He denied that Yadav Talkies is situated towards east of suit property. He further denied that Yadav Talkies property is situated towards north of suit property, the said property was stated to be public open space. The defendant also denied execution of any agreement in plaintiff's favour for sale of entire property.

11. The defendant further averred that he executed an agreement on 06.05.1974 in favour of defendant no.3 in respect of portion of suit property consisting of Chabutara, tin shed, room double story and one room adjacent to the house of Prem Kumar, for a sale consideration of Rs.10,000/-. He received Rs.1500/- towards earnest money. The intimation of this agreement was duly given to plaintiff. The negotiation with plaintiff was in respect of property excluding this property agreed to be sold to

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defendant no.3. The plaintiff agreed to the same and also stated that he would deal with defendant no.3 separately.

12. It is thus the defendant's case that he never intended to and agreed to sell the entire suit property to plaintiff and the transaction with plaintiff was excluding property of defendant no.3. The plaintiff was well aware about the agreement of defendant no.1 with defendant no.3. The defendant no.1 accepted that the plaintiff paid Rs.10,000/- through Bank draft and paid Rs.5000/- twice in cash. He thus admitted payment of Rs.20,000/- only and Rs.5000/- remained to be paid.

13. The defendant no.1 denied having executed any deed for removal of pators towards north side nor any authority was given to plaintiff for removal of these pators. The defendant also denied having received any notice through plaintiff's counsel. He averred that, when he did not hear anything from plaintiff for execution of sale deed, the defendant of his own informed the plaintiff on 28.08.1983 that he would be coming to Lashkar. The defendant denied allegation of conspiracy by him and rather averred that the plaintiff himself did not get the sale deed executed on 28.08.1983. He averred that he came to Lashkar on 28.08.1983 and met Shri Shahastrabuddhe Advocate (plaintiff's counsel). Shri Shahastrabuddhe Advocate told that he would be coming to Govardhan with balance of Rs.5000/- and Rs.2000/- towards value of goods and shall get the draft of sale deed signed from him. The defendant was asking for Rs.5000/- towards value of goods apart from balance sale consideration. However, Shri Shahastrabuddhe Advocate did not come and sent a letter on 19.09.1983 and told that he would come to Govardhan in first week of October. The defendant averred that the plaintiff never intended to get the sale deed executed and therefore, he did not come to Govardhan. He denied readiness and willingness on the part of plaintiff.

14. The defendant no.1 further averred by way of special objections that the plaintiff himself did not get the sale deed executed. He averred that the plaintiff removed the pator without permission and authority and took away defendant's goods

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amounting to Rs.5000/-. He also alleged that the plaintiff has let out the open space on monthly rent. He also alleged that plaintiff damaged the portion of suit property and, therefore, not entitled for specific performance of agreement. The defendant also averred that he has executed sale deed on 12.10.1983 in favour of defendant no.3 in furtherance of agreement for sale dated 06.05.1974. He also averred that the time to executed sale deed was extended by defendant no.1 on 10.12.1978. The defendant no.1 thus denied plaintiff's entitlement to get any decree as claimed by him in suit.

15. The defendant no.3 filed his separate written statement denying plaintiff's claim. In substance, he supported the defense taken by defendant no.1 and also asserted that he has purchased portion of property shown with red colour in plaint map from defendant no.1 vide sale deed dated 12.10.1983 in furtherance of sale agreement dated 06.05.1974. He also asserted his possession over the property purchased by him. In addition, the defendant no.3 also alleged that the plaintiff unlawfully damaged part of property and also obstructed the way by constructing wall. The case in this regard was registered by SDM under Section 145 Cr.P.C. and the property in question was attached. The matter travelled to this Court twice and ultimately pursuant to order dated 21.02.1992 passed by SDM, Gwalior, the possession of the property was given to defendant no.3 on 22.02.1992.

16. The defendant no.3 also took objection that the suit filed by plaintiff is barred by limitation and further that the defendant no.2 has been unnecessarily impleaded as party in the suit.

17. The defendant no.2 did not appear before the Trial Court and was proceeded ex-parte.

18. The plaintiff and defendants led oral and documentary evidence before the Trial Court in support of their respective cases. The learned Trial Court vide impugned judgment and decree dated 09.01.2001 dismissed the suit holding that the plaintiff is not entitled for declaration that the sale deed dated 12.10.1983 is null and void nor he

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is entitled to get the possession of property purchased by defendant no.3. Being aggrieved by the judgment and decree passed by Trial Court, the present appeal has been filed by plaintiff.

19. Before the Trial Court, Sadanand Raghunath Rao Bhagwat (plaintiff's son) was examined as PW-1 as special power attorney holder of plaintiff. He proved documents which have been marked as Ex. P/1 to P/30. The defendant no.1 was examined as DW-1 alongwith two more witnesses. Further, from the pleadings and evidence available on record, the title of defendant no.1 over the suit property is not in dispute. The execution of agreement on 10.07.1979 (Ex. P/4) is also no more in dispute.

20. In the plaint map, a portion of property is shown with blue colour while remaining portion is shown with red colour. The plaintiff claims that his agreement with defendant no.1 is in respect of whole property comprising with blue and red colour while the defendants allege that the agreement with plaintiff was only with regard to property shown in blue colour while the property shown in red colour was agreed to be sold by defendant no.1 to defendant no.3 which is sold to him on 12.10.1983. Thus, there is no dispute between the parties with regard to property shown with blue colour and the dispute is only with regard to property shown in red colour.

21. The agreement dated 10.07.1979 has been marked as Ex. P/4. This has been signed by defendant no.1 alone. It does not bear signature of either the plaintiff or any attesting witnesses. This agreement has been proved by Sadanand Raghunath Rao Bhagwat (PW-1) who happens to be the plaintiff's son and gave his statement on the strength of special power attorney executed in his favour by plaintiff. The power of attorney is marked as Ex. P/1.

22. The law with regard to competence of a power of attorney holder to give evidence in court is well settled by Apex Court in the case of Janki Vashdeo Bhojwani

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vs. Indusind Bank Ltd. reported in (2005)2 SCC 217, wherein the Court held as under:

"13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts"

employed in Order 3 Rules 1 and 2 CPC confines only to in respect of

"acts" done by the power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."

23. Admittedly, Sadanand has not acted on behalf of plaintiff for execution of agreement in question. It does not bear signature of plaintiff even. Even though Sadanand stated in his testimony that he was present at the time of execution of agreement, however, this fact has not been proved by any other witness, even though Advocate Shahastrabuddhe and Bhagwandasji Sharma also stated to be present. In para 25, Sadanand first stated that he was present at the time of writing of the agreement. Immediately, thereafter he stated that the agreement was brought alongwith them by defendant no.1, Advocate Shahastrabuddhe and Bhagwandasji Sharma and thus accepted that agreement was not written before him. In para 28, he admitted that agreement does not bear plaintiff's signature. In next para, he admits that the map (Ex. P/7) allegedly accompanied with agreement, does not bear anybody's signature.

24. Thus, merely on the basis of oral statement of Sadanand, it cannot be

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accepted that he was present at the time of writing of and execution of agreement (Ex. P/4). Therefore, it cannot be believed that he has personal knowledge of facts which he deposed in Court. His statement therefore, cannot be relied upon for purposes of proving the agreement. Moreso, it has come in the statement of Sadanand that his father is alive and he came to Court for execution of power of attorney. No document was produced before Court to prove his incapacity to come to Court for giving evidence. Further, he could have been examined on Commission for which also no efforts were made. The learned Trial Court therefore, erred in accepting the statement of Sadanand for proving of plaintiff's case including execution of agreement dated 10.07.1979 (Ex. P/4).

25. The agreement dated 10.07.1979 (Ex. P/4) does not give dimensions of property and further does not describe its boundaries. The plaintiff claims the entire property including the property shown with red colour on the basis of a map marked as Ex. P/7 which is stated to be attached with the agreement. However, as admitted by Sadanand in para 29, this map does not bear anybody's signature, not even signature of defendant no.1. In para 50 of his statement, Sadanand accepted that nothing is attached with the agreement. He then states that he produced the map (Ex. P/7) when he filed the suit. He then admits that the map relates to the date of filing of suit. Thus, the map marked as Ex. P/7 cannot be accepted to be a part of agreement as it does not even bear defendant's signature.

26. The defendant- Vidyabhanu Prakash is examined as DW-1. In para 3, he narrates the story of executing agreement in favour of defendant no.3 on 06.05.1974, receiving Rs.1500/- as earnest money and bringing stamp paper etc. This agreement has been brought on record as Ex. D/5. In para 6, he stated that the negotiation for sale of property commenced in the year 1977 when Advocate Shahastrabuddhe took him to plaintiff alongwith Bhagwandas Sharma Advocate. He told plaintiff about the agreement already executed by him in favour of defendant no.3 and agreed to sell

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remaining property to plaintiff. In para 7, again when Advocate Shahastrabuddhe expressed plaintiff's willingness to purchase the entire property, the defendant stated about his agreement of part of property with defendant no.3. In para 9 again, he reiterates that the property was agreed to be sold to plaintiff excluding the property of defendant no.3 and possession of property shown with blue portion was accordingly given to plaintiff.

27. In para 12, he stated that on 11.07.1979 (next day of agreement), Advocate Shahastrabuddhe brought a letter addressed to CMO, Municipal Council, written in defendant's name for removal of pator and tin shed. He stated to have signed when Shahastrabuddhe assured him that they only want to repair pator and tin shed. In para 13, the defendant stated about his visit to Gwalior on 28.08.1983 and meeting with Shahastrabuddhe who told him that they have convinced defendant no.3 and he is coming to Govardhan (where the defendant resided) on 19.09.1983 where he would show all the documents to him and shall also obtain power of attorney. Later, Shahastrabuddhe informed defendant through letter that he could not come on 19.09.1983 because of demise in his family. He told him that he would come in October. Alongwith his letter, dated 26.09.1983, Shahastrabuddhe sent draft of sale deed to defendant for his approval. However, before that the present suit was filed on

21.09.1983.

28. There was some dispute and displeasure on the part of defendant on account of demolition of entire house under the garb of letter written in his name to Municipal Council. This is reflected from correspondence made by Shahastrabuddhe with defendant on 02.06.1983 (Ex. D/8). He house hold goods kept in one room was also removed by plaintiff of which no accounts was given.

29. Pertinently, in para 16 of his statement, defendant complaint to Shahastrabuddhe that they were talking peacefully then why the suit is filed. To this, Shahastrabuddhe told that plaintiff of his own filed the suit. He also told defendant

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that he can execute the sale deed in favour of defendant no.3. Thereafter the sale deed of property shown in red colour was executed by defendant no.1 in favour of defendant no.3 on 12.10.1983 (Ex. D/10). The map of sold property is marked as Ex. D/11. This sale deed makes a mention of agreement dated 06.05.1974.

30. This witness has been extensively cross-examined from para 20 onwards. However, he remained firm to his version about his agreement with defendant no.3 and further the information about this given to plaintiff and Shahastrabuddhe Advocate. From reading the entire statement of defendant no.1, it comes out that he was not willing to sell property shown in red colour to plaintiff as the same was already agreed to be sold to defendant no.3. However, the plaintiff was bent upon to purchase the entire property for which he assured the defendant that he would convince the defendant no.3. Therefore, the learned Trial Court rightly appreciated the facts and evidence and recorded a conclusion in this regard.

31. Interestingly, in the entire evidence, the defendant was not asked any question about presence of Sadanand at the time of execution of agreement. From the evidence of Sadanand and defendant, it comes out that Advocate Shahastrabuddhe, took active and vital role in the transactions between the plaintiff and the defendant. Therefore, he would have been the best person to state about the actual transaction between the two. However, he was not examined for reasons not brought on record by plaintiff.

32. It is settled in law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion is required to be exercised according to settled principles of law and not arbitrarily. Under Section 20 of the Specific Relief Act, 1963 (for short "the Act"), the court is not bound to grant the relief just because there was a valid agreement of sale. The conduct of the parties and the actual transaction between them needs to be seen based upon the evidence collected during trial. In this regard, the Apex Court in the case of Darshan Singh vs.

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Brij Bhushan Chaudhary reported in (2024)3 SCC 489, made following pertinent observations:

"12. Under Section 20 of the 1963 Act, the grant of a decree for specific performance is always discretionary. The exercise of discretion depends on several factors. One of the factors is the conduct of the plaintiff. The reason is that relief of a decree of specific performance is an equitable relief. A person who seeks equity must do equity."

33. As discussed above, from the evidence led, the plaintiff could not prove the actual intention of defendant to sell the entire property to him including the property shown in red colour which has been sold to defendant no.3. The learned senior counsel for plaintiff invoked Section 91 & 92 of Evidence Act to say that the oral evidence contrary to terms of agreement could not have been accepted by Trial Court. In this regard, firstly it is to be observed that the details of property agreed to be sold to plaintiff is not clear from the agreement and the map Ex. P/7 is not found to be acceptable for the reasons stated above. Secondly, the oral evidence can also be looked into to gather the real intention of parties at the time of entering into the transaction. In Krishnabai Bhritar Ganpatrao Deshmukh vs. Appasaheb Tuljaramarao Nimbalkar reported in (1979)4 SCC 60, the Apex Court held that:

"27. Secondly, there is ample authority for the proposition that when there is a dispute in regard to the true character of a writing, evidence de hors the document can be led to show that the writing was not the real nature of the transaction, but was only an illusory, fictitious and colourable device which cloaked something else, and that the apparent state of affairs was not the real state of affairs. [See Chandi Prasad Singh v. Piari Bibi [ CA 75 of 1964, decided on March 16, 1966] and Bhagwan Dayal v. Reoti Devi.]"

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34. The learned Trial Court has appreciated the evidence of both the parties, particularly the evidence of defendants, and has recorded a finding that the agreement was already entered into between the defendant no.1 & 3 in the year 1974. Further, the learned Trial Court has not only taken into account their statement but has also examined their demeanour while giving evidence. Therefore, the view taken by the learned Trial Court should prevail particularly when the view taken is not shown to be perverse or otherwise contrary to law. It be noted that the impugned judgment is passed by the same presiding officer who had an occasion to record deposition of witnesses.

35. This Court is exercising powers under Section 96 of CPC. It cannot be disputed that, being a first appeal, this Court can examine not only the law but also the facts of the case. Even re-appreciation of evidence is also permissible. However, the interference can be made only when the findings recorded by learned Trial Court are shown to be perverse. The Apex Court defined the jurisdiction of first appellate court in the case of Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs. reported in (2001)3 SCC 179, wherein the Court held as under:

"15. …..While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere

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with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is — and it is nothing more than a rule of practice — that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714 : AIR 1951 SC

120] ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."

36. Therefore, in absence of any perversity shown, the findings of learned Trial Court with regard to execution of agreement dated 06.05.1974, the intention of

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(ASHISH SHROTI)

JUDGE

defendant to sell property shown in blue colour only etc. deserves to be retained.

37. The learned senior counsel submitted that the sale deed was executed by defendant no.1 in favour of defendant no.3 on 12.10.1983 i.e. during pendency of suit. It is his submission that the sale deed is hit by the doctrine of lis pendence and is liable to be declared as null and void. In support of his submission, he placed reliance upon Apex Court judgment in the case of Usha Sinha v. Dina Ram, (2008) 7 SCC 144 and also in the case of Guruswamy Nadar v. P. Lakshmi Ammal reported in (2008)5

SCC 796.

38. The ratio laid down by Apex Court in the aforesaid two cases cannot be disputed. However, the same is not applicable in the facts and circumstances of the case wherein the plaintiff has not established purchase of entire property by leading cogent any definite evidence. Further, the property sold to defendant no.3 during pendency of suit has been found in furtherance of the agreement of sell executed much before the plaintiff's agreement. The plaintiff therefore, does not get any benefit of the aforesaid judgments of the Apex Court.

39. Consequently, the judgment and decree dated 09.01.2001, passed by Fifth Additional District Judge, Gwalior, in C.S. No.42-A of 1983, is upheld. The appeal fails and is dismissed accordingly.

Anil*

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