Jagdev Pandey Since Deceased and 4 Others v. Shanti Devi (Smt.) Since Deceased and 16 Others

Allahabad HC21 Nov 2024SAPL/700/2024

Case brief

AI extract

What is this about?

In an admitted second appeal regarding specific performance of an unregistered agreement for sale, the Court did not decide the substantive merits. Instead, directing the high-repute counsel to attempt an amicable settlement under Section 89 CPC, the Court issued a stay on the impugned lower order pending settlement negotiations and fixed a subsequent listing date.

What did the court decide?

Stayed respondent to next date; parties directed to effect settlement under Section 89 CPC.

Jagdev Pandey Since Deceased and 4 Others vs Shanti… — Specific Performance | Allahabad HC (2024)

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Court No. - 36

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Case :- SECOND APPEAL No. - 700 of 2024

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Appellant :- Jagdev Pandey Since Deceased And 4 Others Respondent :- Shanti Devi (Smt.) Since Deceased And 16 Others Counsel for Appellant :- Alok Kumar Yadav,Vashistha Dubey Counsel for Respondent :- Siddhartha Baghel

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Hon'ble Kshitij Shailendra,J.

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Heard Shri Alok Kumar Yadav, learned counsel for the appellants and Shri Anil Bhushan, learned Senior Advocate assisted by Shri Siddhartha Baghel, learned counsel for the respondents.

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One B.D. Ojha was owner of the disputed house. Its measurements were 57 X 60 feet and it bore municipal No. 179. He died in 1964 leaving behind Maul Chand Ojha, Sheo Chand Ojha as his two sons and Gauri Devi as the only daughter. A suit for partition of 1/3rd share succeeded by Gauri Devi, being Original Suit No. 337 of 1967 was filed, in which a preliminary decree was drawn. There is nothing on record to show that the said decree has been set aside. Maul Chand Ojha sold 1/3rd share in the property in favour of present appellant Jagdev Pandey (since deceased) on 23.09.1968. It appears that pursuant to certain applications moved by Maul Chand Ojha, Sheo Chand Ojha and Jagdev Pandey before the local body, the property was bifurcated in two separate numbers, i.e. 179 comprising of share of Gauri Devi and Sheo Chand Ojha and purchaser's property as 179-A. The municipal taxes in relation to property bearing municipal No. 179A are stated to be paid by the appellants.

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The lis giving rise to the instant second appeal began on account of execution of an agreement for sale dated 16.03.1967 by Maul Chand Ojha in favour of one Shanti Devi. The agreement

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described measurements of the property as 45 X 35 feet. On the basis of the agreement, Original Suit No. 189 of 1970 was filed claiming a decree for specific performance. Holding the appellant as bona fide purchaser of the property without knowledge of the agreement, the trial court dismissed the suit. Civil Appeal arising therefrom was allowed on 13.08.1975, however the said judgement was set aside by this Court on 11.11.2009 by allowing Second Appeal No. 1625 of 1975 (Jagdeo Pandey vs Smt. Shanti Devi and others). This Court remanded the matter to the first Appellate Court for framing additional issues (a), (b) and (c) and to decide the appeal afresh. It is pursuant to the said order of this Court that the civil appeal has been decided by the impugned judgment dated 30.05.2024 setting aside the trial court's judgment and decreeing the suit for specific performance directing the appellants to execute sale deed.

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Shri Yadav submits that first Appellate Court, on the issue of readiness and willingness framed by this Court, has simply observed that there was a notice dated 23.05.1967 given to the defendant but mere notice is short of requirement to plead and prove readiness and willingness as per Section 16(c) of Specific Relief Act, 1963. As regards knowledge of agreement, he submits that the first Appellate Court entered into discussion with regard to previous partition Suit No. 337 of 1967 and observed that since the said suit had been decreed ex-parte, knowledge of an oral family settlement in between the successors of B.D. Ojha would be deemed to Gauri Devi. Further submission is that finding as regards bona fide purchase recorded by the trial court has not been reversed. He further submits that agreement described extent of property as 45 X 35 feet, which is not only beyond 1/3rd share succeeded by Maul Chand Ojha but also beyond 50% alleged by

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him at the strength of oral family settlement and, therefore, the entire claim of the plaintiff was unsustainable.

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Per contra, Shri Anil Bhushan, learned Senior Advocate submits that though Shanti Devi did not appear in the witness box, which is one of the objections raised by the appellants, her husband appeared as PW-1 and proved readiness and willingness. He also submits that by issuance of notice dated 23.05.1967, i.e. just before the date fixed for performance, which was 31.05.1967 readiness and willingness stood established. He submits that Gauri Devi filed the partition suit after the expiry of time fixed for performance of the agreement.

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As regard possession, learned counsel for both the parties submit that area described in the agreement is lying vacant on the spot and is encovered by the boundary wall.

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7. Prima facie , the Court finds that though this Court, in first round of litigation, had directed the first Appellate Court to frame additional issues, (a), (b) and (c), this in, itself, could not be a ground for the first Appellate Court not to decide the main issues involved in the lis relating to specific performance of an agreement, though un-registered, as there was no requirement of registration at that time. One of the main issues was as to whether in 1968 appellant had bona fidely purchased the property from Maul Chand Ojha. There appears to be no discussion of the said aspect in the impugned judgment. Apart from this, presuming knowledge of oral family settlement as covered by issue No. (b) by discussing the nature of decree drawn in previous Original Suit No. 337 of 1967 appears to be an exercise not directly linked with controversy. The devolution of interest under a decree which has

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not been upset so far and a contrary decree drawn in the suit giving rise to this appeal leads this Court to form an opinion that the instant appeal deserves to be heard after admission.

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At the same time, considering the fact that Shanti Devi and Maul Chand Ojha are no more, Gauri Devi did not contest the proceedings, the lis began 57 years ago and is not likely to end in near future, in order to sub serve the ends of justice, this Court directs the parties to enter into a settlement in terms of the mandate of Section 89 of Code of Civil Procedure, particularly in the light of the property involved, its increased value over a number of decades and rival rights pressed by them. The Court sincerely believes that settlement in monetary terms or otherwise by all legal means can satisfy the interest of both the parties and their family members at this stage of proceedings.

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The instant second appeal is admitted on the following substantial questions of law:-

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"(a) Whether merely unregistered agreement for sale was not challenged in any other proceedings would not establish readiness and willingness on the part of plaintiff-respondent No. 4 therefore, the lower Appellate Court had fell in error in recording said finding thus, decreeing the suit?

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(b) Whether the plaintiff-respondent No. 1 could not seek specific performance of alleged unregistered agreement for sale dated 16.03.1967 whereby Maul Chandra Ojha one of the son of Bam Dev Ojha had sought to sell more than his share in said house?

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of law apparent on the face of record as it omits to decide issue no. (c) as framed by this Hon'ble Court vide judgment and order dated 11.11.2009 passed in Second Appeal No. 1625 of 1975?

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(d) Whether the defendant No. 4-Appellant was bona fide purchaser without notice to allege agreement for sale dated 16.03.1967 therefore, as per Section 19 (b) of the Specific Relief Act, 1963 the suit for specific performance was liable to be dismissed therefore, lower Appellate Court fell in error in taking into consideration Section 19(b) of the Act?"

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Summon the record of the first appellate court as well as trial court within one month.

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Shri Alok Kumar Yadav, learned counsel for the appellants and Shri Anil Bhushan, learned Senior Advocate, both being learned counsel of a very high repute are competent enough to persuade their parties to amicably settle the dispute so as to end the decades old lis. They shall use their good offices for the said purpose and shall inform the Court about the fate of compromise talks on the next date fixed.

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List this appeal before appropriate Bench on 21.11.2024.

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Till the next date of listing, effect, operation and execution of impugned judgment and decree dated 30.05.2024 passed by learned Additional District Judge, Court No. 1, Prayagraj in Civil Appeal No. 112 of 1975 (Smt. Shanti Devi and others vs Smt. Prema Devi and others) shall remain stayed.

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Order Date :- 18.9.2024 Sazia

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Digitally signed by :- SAZIA AQUIL High Court of Judicature at Allahabad

Jagdev Pandey Since Deceased and 4 Others v. Shanti Devi (Smt.) Since Deceased and 16 Others

Case brief

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Jagdev Pandey Since Deceased and 4 Others v. Shanti Devi (Smt.) Since Deceased and 16 Others

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