Allowed

Mihi Lal Since Dead and Now Rep.by. Bhikam Singh v. Shyam Lal Since Dead and Now Rep. by.Shri Chhattarmal and Oth.

Allahabad HC13 Apr 2022SAPL/29/2005

Case brief

AI extract

What is this about?

This second appeal addressed a dispute over specific performance of a registered agreement to sell land. The High Court held that the lower appellate court erred in disbelieving the agreement and reversing the trial court's decree. The Court found that the defendants failed to plead fraud with particulars under Order VI Rule 4 CPC and that the burden of proving execution did not lie with the plain

What did the court decide?

The judgment and decree of the first appellate court dated 2.11.2004 were set aside, and the judgment and decree of the trial court dated 15.3.2003 were confirmed with costs.

Mihi Lal Since Dead and Now Rep.by. Bhikam Singh Vs… — Specific Performance | Allahabad HC (2022)

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RESERVED ON 10.3.2022 DELIVERED ON 13.4 2022

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Case :- SECOND APPEAL No. - 29 of 2005

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Appellant :- Mihi Lal Since Dead And Now Rep.By. Bhikam Singh Respondent :- Shyam Lal Since Dead And Now Rep. By.Shri Chhattarmal And Oth. Counsel for Appellant :- M.K. Gupta,Pramod Kumar Singh,S.C. Counsel for Respondent :- .,Vikash Budhwar

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Hon'ble Siddharth,J.

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Heard Sri Pramod Kumar Singh, learned counsel for the appellant and perused the lower court record.

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Despite resort to all modes of service to effect service of notices of this appeal on the respondents no one has appeared.

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This second appeal has been preferred against the judgement and decree dated 2.11.2004 passed by Additional District Judge,Court No.7, Aligarh in Civil Appeal No. 33 of 2003 arising out of judgement and decree dated 15.3.2003 passed by Civil Judge (Junior Division), Havali, Aligarh in Original Suit No. 391 of 1986.

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The plaintiff-appellant instituted the Original Suit no. 391of 1986 before the trial court praying for a decree for specific performance of agreement to sale dated 1.7.1976, executed by defendant no.1, Shyam Lal and deceased, Kalyan Singh, predecessor- in- interest of defendant nos. 2 to 7, in favour of the original plaintiff, Mihi Lal, mandating the defendant to execute registered sale deed in favour of the plaintiff in respect of land detailed at the foot of the plaint, after receiving Rs. 16,000/- as sale consideration and to deliver the possession of the land within such time as the court may fix. In case they fail to do so execution of registered sale deed in favour of plaintiff by the defendants by the order

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of the court and possession of the land in dispute was prayed to be delivered to the plaintiff.

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The plaint averments are that the original plaintiff, Mihi Lal sold his agricultural land for an amount of Rs. 20,000/- to defendant no.1, Shyam Lal and Kalayan Singh vide registered sale deed dated 1.7.1976. The sale deed was executed by the plaintiff in favour of aforesaid persons since he needed money for payment of government debt and also for meeting house hold requirements of money. The original plaintiff expected that he would be able to return the money to the defendant no.1, Shyam Lal and Kalayan Singh after five years after adjusting the value of usufructs derived from the the land against the interest of Rs. 20,000/-Hence it was agreed in the agreement to sale executed on the same day i.e, 1.7.1976, that the land in dispute shall be sold back to the plaintiff after five years after payment Rs. 16,000/- only by the defendant no.1, Shyam Lal and Kalayan Singh. On the above understanding the sale deed dated 1.7.1976 was duly executed by the original plaintiff in favour of defendant no.1, Shyam Lal and Kalayan Singh . The period of five years in the agreement to sale was from 1.7.1976 to 30.7.1981 and thereafter five years period was provided as the time for execution of return sale deed. After expiry of five years on 30.7.1981, the original plaintiff requested the defendant no.1 Shyam Lal and Kalayan Singh to take Rs. 16,000/- from him and execute return sale deed in his favour but they failed. The plaintiff sent registered notices dated 25.10.1985 and 15.11.1985 to the defendant no.1, and legal heirs of

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Kalayn Singh to execute sale deed in favour of original plaintiff as per agreement by appearing before the SubRegistrar, Iglas , Aligarh on 26.12.1985 but the defendants did not turned up and their conduct proved that they were unwillingly to fulfil their part of obligation, as the agreement to sale dated 1.7.1976 hence suit was instituted. During the pendency of the suit original plaintiff, Mihi Lal, died on 4.12.1987 and his legal heir, Bhikam Singh, were substituted.

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The defendant nos. 1 and 3 namely, Shyam Lal and Hirdaya Singh sons of Kalyan Singh filed their written statements and denied most of the plaint allegations. They clearly denied that defendant No.1 Shyam Lal and late Kalyan Singh ever executed the agreement to sale on 1.7.1976 or on any other date or it was agreed between the parties to execute return sale deed of the land in suit for an amount of Rs.16,000/- after lapse of five years. They only admitted that the property was purchased by aforesaid Shyam Lal and Kalyan Singh for sale consideration of Rs. 20,000/- from Mihi Lal. Shyam Lal and Kalyan Singh were illiterate and they never executed any agreement for execution of return sale deed.The contents of agreement were never readover and explained to themThe defendants are duly recorded over the land in dispute and the original plaintiff, Mihilal had given his no objection regarding mutation of the names of defendant no.1, Shyam Lal and Kalayan Singh before the consolidation court. Only in November, 1985 original plaintiff Mihi Lal, claimed existence of such an agreement to sale dated 1.7.1976 in notice dated 15.11.1985 which

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was duly replied by the defendants. The original plaintiff, Mihi Lal, was never willingly to get sale deed executed in his favour and suit of the plaintiff is barred by section 16(c) of the Specific Relief Act .The suit of the plaintiff was instituted prior to the period agreed in the agreement and hence it is premature. The original plaintiff, Mihilal, did not had financial capacity of getting sale deed executed in his favour after payment of Rs. 16,000/-.

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On the basis of pleadings of the parties trial court framed following issues:-

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1.Whether defendants were ready to transfer the disputed property to the plaintiffs as per agreement to sale dated 1.7.1976 after accepting Rs. 16,000/-?

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2.Whether the plaintiff was ready and willing to comply the condition in the agreement to sale?

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3.Whether the suit is premature?

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Whether the plaintiff is entitled to any relief?

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The trial court decided the issue no.1 in favour of the plaintiff holding that the agreement dated 1.7.1976 is a registered document and it is not proved to be fabricated document. Since the agreement was for ten years and during the period of ten years it was expected that the land would fetch profits of Rs. 4000/-accruing from the cultivation over the land, therefore it was agreed that return sale deed would be executed by the defendantno.1, Shyam Lal and Kalayan Singh for sale consideration of Rs. 16,000/- only but the defendants have not executed the sale deed as per agreement dated 01.07.1976.

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The issue no.2 was decided holding that plaintiff gave notice to the defendants to appear before the SubRegistrar for execution of sale deed as per agreement to sale dated 1.7.1976 but they failed to appear. The plaintiff got his presence noted before Sub-Registrar and, therefore, it was proved that plaintiff was ready and willingly to perform his part of contract.

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Regarding issue no.3, the trial court found that defendants have not led any evidence to prove that suit was premature hence this issue was decided against them.

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Regarding issue no.4, trial court reached the conclusion that plaintiff is entitled to get the sale deed executed from the defendants as per agreement to sale dated 1-7.1976 after paying Rs. 16,000/- and defendants were accordingly directed to execute the sale deed within one month and deliver possession of the disputed property to the plaintiff.

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Aggrieved by the judgement of the trial court the defendants preferred Civil Appeal No. 33 of 2003. The first appellate court did not framed any point of determination in appeal as per Order 41, Rule 31 C.P.C. and decided the four issues framed by the trial court, again reversing the findings recoded by the trial court with regard to issue nos. 1 and 4. Finding regarding issue nos. 2 and 3 recorded by the trial court were upheld by the first appellate court.

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Regarding issue no.1, First Appellate Court held that defendant no.1, Shyam Lal and Kalayan Singh were illiterate, as admitted by P.W.1 in his statement before the trial court. P.W.1 also further stated that Mihi Lal, the

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original plaintiff, was also illiterate but P.W.1 has passed intermediate in 1972.He went with his father, Mihi Lal, to the Tehsil on 1.7.1976 when the sale deed dated 1.7.1976 was executed .He was aged about 21-22 years at that time. The first appellate court has recorded finding that since P.W.1 was having qualification of intermediate at the time of execution of sale deed dated 1.7.1976, therefore, burden of proof was on him to prove that sale deed was read over and explained to Kalyan Singh and Shyam Lal.The appellate court found contradiction in the statement of P.W.1 and P.W.2, regarding the number of pages of the disputed agreement and also the place where the deliberation regarding execution of agreement took place between the parties .The first appellate court also did not agreed with finding of the trial court for the reason that sale deed of the property sold was for sale consideration Rs. 20,000/- while sale consideration of Rs. 16,000/- was agreed for execution of return sale deed when it was proved that Rs. 800-900 was only earned per year for the land in dispute by the defendant. Statement of P.W.3, son of deceased scribe of the disputed agreement to sale was read against the plaintiff by the trial court since he could not prove that his father read over and explained the contents of agreement to sale to the defendant no.1, Shyam Lal and Kalayan Singh.He also did not proved the signature of his father over the disputed agreement to sale dated 1.7.1976

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Regarding issue nos.2 and 3 the lower appellate court agreed with the findings of the trial court that the plaintiff was ready and willing to comply his part of agreement

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and suit was not premature However the issue no.4, regarding relief ,the trial court, on the basis of findings recorded regarding issue no.1, allowed the civil appeal and set aside the judgement and decree of the trial court hence this second appeal.

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This second appeal was admitted on 27.7.2010 on the following substantial questions of law:-

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Whether in absence of material particulars regarding alleged fraud in the written statement as contemplated by Order VI, Rule 4, C.P.C. the lower appellate court committed manifest error of law in holding that the agreement does not appears to have been executed by Kalyan Singh and Shyam Lal ?

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Whether the lower appellate court wrongly relied on the statement of P.W.3, the son of the scribe who was not an eyewitness to the agreement to sell in question, in holding that the agreement was read over to the executants?

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Learned counsel for the appellant has submitted that First Appellate court committed manifest error in holding that agreement does not appears to have been executed by defendant no.1, Shyam Lal and Kalyan Singh.

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P.W.3, son of scribe, was not an eyewitness to the execution of the agreement to sale dated 1.7.1976 and, therefore, his statement was not relevant which has been relied upon by the first appellate court.He has further submitted that the finding of the first appellate court that parties have not mentioned about the agreement to sale dated 1.7.1976 in the sale deed dated 1.7.1976 which makes its execution doubtful is not warranted under law.

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D.W.1, Hardayal Singh, admitted that Kalayan Singh was illiterate and he was present on the date of execution of sale deed therefore the burden of proof never shifted to the plaintiff to prove due to execution of agreement to sale dated 1.7.1976.The agreement to sale dated 1.7.1976 was registered document and it was proved by P.W.1, son of the original plaintiff, Mihi Lal and also by P.W.2, Yogveer Singh, who was the attesting witness of the registered agreement dated 1.7.1976 and he proved due execution of the same.

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P.W.3,Anil Kumar, son of Mahendra Singh, the scribe of the agreement, did not proved the signature on the agreement of his father. The First Appellate Court misconstrued the same.

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None of the defendants have responded in the second appeal despite all efforts made by the plaintiffs-appellants for service of notice on them repeatedly and finally by way of publication , hence the second appeal is being decided after hearing the learned counsel for appellant.

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A perusal of the registered agreement to sale dated 1.7.76 is imperative before proceeding further with this case. The original agreement executed by defendant No.1 Shyam Lal and Kalayan Singh, in favour of the original plaintiff, Mihi Lal, shows that for a sale consideration of Rs. 20,000/- sale deed dated 1.7.1976 was executed by the original plaintiff, Mihi Lal, in favour Shyam Lal and Kalayan Singh.It was agreed that after returning Rs. 16,000/- after five years from 1.7.1976 return sale deed shall be executed by the defendant No.1 and Kalayan Singh in favour of plaintiff after 30.7.1981 upto 30.7.1986. The

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original plaintiff would be entitled to get return sale deed executed from defendant no.1 Shyam Lal and Kalayan Singh. It was agreed between them that after expiry of ten years, the original plaintiff, Mihi Lal, would not have any right to get return sale deed executed. It was agreed that if Shyam Lal and Kalayan Singh fail to execute return sale deed in favour of the original plaintiff, Mihi Lal, within ten years, the plaintiff, Mihi Lal, would be entitled to get return sale deed executed from Shyam Lal and Kalayan Singh through court.The expenses incurred for execution of return sale deed executed by Shyam and Kalayn Singh would be paid by them to Mihi Lal. It was finally agreed that in case original plaintiff, Mihi Lal, failed to return Rs. 16,000/-, the defendant no.1, Shyam Lal and Kalayan Singh would never execute return sale deed in his favour.

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The aforesaid document was registered before the Sub-Registrar , Iglas, District Aligarh on 1.7.1976. However, original agreement dated 1.7.1976 shows affxiation of thumb impressions of original plaintiff, Mihi Lal and defendant No.1 Shyam Lal and Kalayn Singh. The witnesses of sale deed have been mentioned as Yogveer Singh son of Mahendra Singh, and Shri Megh Singh son of Tej Singh .The scribe of the deed is named as Mahendra Kumar in the agreement dated 1.7.1976.

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P.W.1, Bhikam Singh son of original plaintiff, Mihi Lal, has admitted that he passed the intermediate examination in 1973.He stated in his cross examination that Mahendra Singh, scribe of the agreement dated 1.7.1976, has died. Yogveer Singh altering within the same was produced as P.W.2. He admitted that plaintiff, Mihi Lal was also

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illiterate. He admitted that his father executed sale deed dated 1.7.1976 in favour of defendant no.1, Shyam Lal and Kalyan Singh after taking Rs. 20,000/- as sale consideration. He further stated that sale deed dated 1.7.1976 as well as agreement in dispute dated 1.7.1976 were prepared by same scribe,namely, Mahendra Singh. His father sold his land to the defendant no.1 Shyam Lal and Kalayan Singh because he needed money to repay government debt. He admitted that his age was 22 years.The land of his father was to be auctioned Rs. 25,000/- His father had Rs.4000-5000 at that time. He admitted that original plaintiff, Mihi Lal, used to live with him at Delhi since 1979. He stated that his earning and his father’s earnings after 1976 was Rs. 20,000-25,000. He admitted that Rs. 20,000/- was paid by the defendant No.1, Shyam Lal and Kalayan Singh at the time of execution of sale deed dated 1.7.1976 to his father. He stated that firstly rough draft of the sale deed and the agreement in dispute was made by the scribe and thereafter signatures were affixed on the agreement printed on stamp paper. He then stated that agreement was not typed whereon thumb impressions were affixed by the parties. He proved that agreement to sale dated 1.7.1976 was for five years and after payment of Rs. 16,000/- to the defendants return sale deed was required to be executed in favour of his father.He admitted that the discussion regarding agreement took place on ‘ Charpai’ in the veranadah.He proved that period of sale agreement was 1.7.1976 to 30.7.1981 which comes to five years,

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thereafter return sale deed was to be executed within next five years.

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P.W.1 further proved the notices sent by the original plaintiff to the defendants to appear before the SubRegistrar to honour the agreement .He proved that in the year 1985 his father had Rs. 20,000-25,000 in his possession. He denied that on the date of sale deed , the disputed agreement was got fraudulently executed.

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P.W.,2, Yogveer Singh son of Mahendra Singh in his cross examination proved that sale deed and the agreement in dispute dated 1.7.1976 were executed of the same date.He was not made the witnesses in the sale deed by the original plaintiff , Mihi Lal, but in the agreement in dispute he was one of the witness.He further proved that Mihi Lal was under government debt, therefore he sold his land to the defendant Shyam Lal and Kalayan Singh.There is contradiction in his statement regarding place where deliberation took place between original plaintiff and defendant Shyam Lal and Kalayan Singh regarding execution of disputed agreement to sale and number of pages of the disputed agreement but he proved due execution of documents by his statement before the court. There is nothing which may compel this court to disbelieve testimony of P.W.2.

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P.W.3, Amit Kumar, son of Mahendra Kumar was not able to prove that disputed agreement dated 1.7.1976 was executed in his presence nor it was expected from him. Mahendra Kumar, father of P.W.3, was scribe of the deed and had died at the time of the evidence in the suit. His

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son P.W.3, could not prove signature of his father on the agreement in dispute.

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D.W.,1,Hardayal, son of defendant, Kalayan Singh, proved that he was present at the time of execution of sale deed dated 1.7.1976. He denied that alongwith sale deed any other document was executed by his father and uncle namely, Kalayan Singh and Shyam Lal. He stated that disputed agreement is fabricated document executed by fraud. He stated that his father and uncle , Kalayan Singh and Shyam Lal were illiterate. He admitted in his cross- examination that he went with his father and uncle ,namely, Kalayn and Shyam Lal and he admitted in his cross examination that they affixed thumb impressions on sale deed dated 1.7.1976 on the seat of the scribe.He stated that he came to know about the disputed agreement in the year 1985 and when he received notice from the original plaintiff, his uncle Shyam lal and Kalayn and he replied to the same. He denied thumb impressions of his father and uncle on the disputed agreement.

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D.W.2, Hari Singh stated that he was witness of sale deed dated 1.7.1976 and proved the thumb impressions of original plaintiff, Mihi Lal and defendant no.1, Shyam Lal and Kalayan. He further stated that he was present after Shyam Lal and Kalayan executed sale deed on the seat of scribe and Shyam Lal and Kalyan never executed any agreement to sale on that day, till he was present upto 3 P.M.He stated that after he left registry office what happened he is not aware .

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From the above consideration of agreement to sale dated 1.7.76 and the oral evidence on record it is clear that plaintiff produced Yogveer Singh, one of the two witnesses of sale deed, to prove the due execution of sale as per section 68 of the Evidence Act, 1872.

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The first appellate court disbelieved the statement of P.W.1 and P.W.2 on the consideration that there is contradiction in their statements regarding number of pages and also place where deliberations took place between the parties regarding disputed agreement. In case P.W.3, Anil Kumar, son of scribe of the disputed agreement, Mahendra Singh did not proved the signatures of his father on the disputed agreement ,it could not be considered to be fatal for proving plaintiff's case once witness of the sale deed, P.W.2 Yogveer Singh, proved due execution of agreement .The defendants’ case was simply of ignorance of execution of agreement in dispute.The agreement in dispute is a registered document and it was duly proved by the plaintiff by producing one attesting witness of the same before trial court.

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In civil cases standard of proof required is of preponderance of probability and not proof beyond doubt. The finding of the first appellate court is that son of the original plaintiff, P.W.1, was having qualification of intermediate therefore he was required to prove the due execution of document after reading and explaining the same to the defendant No.1, Shyam Lal and Kalayan Singh is not correct. The original plaintiff as well as defendant no.1 Shyam Lal and Kalayan Singh, all of them were illiterate and the sale deed executed on the same

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day by them has not been denied by the witnesses .It is settled law that where a party to suit parties alleges fraud , the initial burden is on that party to prove its allegation.

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In the present case defendants have not been able to prove that the, the registered agreement to sale dated 1.7.1976 was result of fraud. The registered document duly registered as per provisions of Registration Act was duly proved before the court of law and it cannot be disbelieved only on the basis unsubstantiated allegations of fraud levelled by the defendants.

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As per Order VI, Rule 4 C.P.c. the defendants were required to give particulars of the fraud,misrepresentation etc., alleged against the plaintiff in execution of disputed sale deed dated 1.7.1976.In the written statement of the defendants they simply denied the knowledge of the agreement in dispute .In the absence of adequate pleadings it would not open for the first appellate court to hold that plaintiff failed to prove the due execution of documents in his favour when defendant no.1 Shyam Lal and Kalyan were illiterate. In the written statement of defendant nos, 1 and 3 there is no pleading that burden of proof was on the plaintiff, who was also illiterate, to prove due execution of document since defendant no.1 Shyam Lal and Kalayan Singh were also illiterate .In the written statement of the aforesaid defendants it is not pleaded that defendant no.1, Shyam Lal and Kalyan were illiterate .It was only pleaded that contents of the agreement were never read over and explained to them.

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Hence the first substantial question of law is decided holding the first appellate court committed manifest error

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of law in holding that agreement in dispute does not appears to be executed by Shyam Lal and Kalayan Singh.

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Second substantial question required to be answered in this appeal is as to whether P.W.3, son of scribe, was required to prove that agreement to sale dated 1.7.1976 was read over to executants. Admittedly P.W.3 was not present at the time of execution of agreement. He was only son of scribe, Late Mahendra Singh and at the most he could have proved the signature of his father on the disputed agreement to sale. He was not required to prove that contents of deed were read over to the excutants. P.W2 Yogveer Singh, attesting witness of the disputed agreement to sale proved the due execution of the document as per section 68 of Evidence Act and therefore finding of the lower appellate court in this regard is vitiated in law. The substantial question no.2 is decided accordingly.

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In view of the above answers two substantial questions of law framed in this appeal judgement and decree of first appellate court dated 2.11.2004 deserves to be set aside and judgment and decree of the trial court dated 15.3.2003 deserves to be confirmed.

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The second appeal is allowed with costs.

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Order Date :- 13.4.2022 Atul kr. sri.

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Digitally signed by ATUL KUMAR SRIVASTAVA Date: 2022.04.19 16:51:46 IST Reason: Location: High Court of Judicature at Allahabad

Mihi Lal Since Dead and Now Rep.by. Bhikam Singh v. Shyam Lal Since Dead and Now Rep. by.Shri Chhattarmal and Oth.

Case brief

What is this about?

What did the court decide?

Mihi Lal Since Dead and Now Rep.by. Bhikam Singh v. Shyam Lal Since Dead and Now Rep. by.Shri Chhattarmal and Oth.

Case brief

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What did the court decide?

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