Dinesh Kumar Paswan Vs MD Sarif

2025: JHHC:10491

IN THE HIGH COURT OF JHARKHAND AT RANCHI

F.A. No. 25 of 2024

Dinesh Kumar Paswan, aged about 56 years, son of late Lutan Paswan, resident of village Kudhkala, House No.227, R.O. Mugal Sarai (Naya Pandit Dindayal Upadhyay), P.O. Ali Nagar, P.S. Ali Nagar, District Chandoli (U.P.). Hazaribagh

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… … Plaintiff/Appellant

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Versus

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Md. Sarif, son of late Md. Ibrahim, resident of Village Sirka, Bada Bazar Ekpatia Mohalla, P.O. and P.S. Sadar, District Hazaribagh, presently residing at House No.81, Mohalla Maina Tali, Mugal Sarai, Naya Pandit Dindayal Upadhyay, P.O. Ali Nagar, P.S. Ali Nagar, District Chandoli (U.P.)

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant For the Respondent For the Intervenor	--- : Mr. Bibhash Sinha, Advocate : None : Mr. Jitesh Kumar, Advocate : Ms. Supriya Kumari, Advocate ---

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14 /02.04.2025 Heard the learned counsel for the appellant.

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2. This 1^st appeal arises out of judgment dated 05.10.2023 (decree signed on 13.10.2023) by learned Civil Judge, Senior Division V, Hazaribagh in Title Suit No.31 of 2019 whereby the suit has been dismissed although the defendant did not appear to contest the suit and the suit was decided ex parte .

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3. As recorded in order dated 15.01.2025, as per office note, the sole respondent has refused to accept notice and on the submission of the learned counsel for the appellant, the notice has been accepted to have been served. Nobody has entered appearance on behalf of the sole defendant/respondent.

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4. However, one intervention application has been filed being I.A. No.831 of 2025 wherein the intervenors claim that the person with whom the plaintiff-appellant had entered into agreement of sale did not have the title with respect to the property and the title of the property actually belongs to the intervenors. The learned counsel for the intervenors has also submitted that the petition seeking intervention was rejected by the learned trial court against which,

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intervenors had filed CMP No.393 of 2022 before this Court and during the pendency of the CMP, the learned trial court dismissed the suit. The learned counsel has also submitted that the present appeal is continuation of the suit, and therefore, the intervention petition being I.A. No.831 of 2025 may be allowed.

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5. The said intervention being I.A. No.831 of 2025 was pressed by the learned counsel for the intervenors on 05.02.2025 and this Court observed that the question of any intervention would arise only if this Court is inclined to interfere with the impugned judgement refusing to grant specific performance of contract. On that day it was submitted by the learned counsel for the appellant that the suit for specific performance of contract filed by the appellant-plaintiff was dismissed primarily on the ground that the plaintiff failed to show his readiness and willingness to perform the contract and pay the balance amount of the consideration.

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6. However, the learned counsel for the intervenors has remained present during the court proceedings.

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7. The learned counsel for the appellant has submitted that the judgment dated 05.10.2023 (the decree signed on 13.10.2023) passed in Title Suit No. 31 of 2019 is bad in law and, therefore, liable to be set aside. It has been further submitted that the judgment passed by the learned trial court is contrary to the facts and circumstances of the case as well as the settled legal position, and hence, the same is not sustainable in the eyes of law.

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8. The learned counsel has contended that the trial court has passed the impugned judgment without properly considering the oral and documentary evidence brought on record by the plaintiff, leading to a wrongful conclusion. It has also been submitted that the learned trial court failed to appreciate the documentary evidence exhibited as Exhibits 1 to 4, and non-consideration of these evidences makes the judgment dated 05.10.2023 liable to be set aside.

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9. The counsel for the appellant has argued that the trial court posed the wrong legal question while deciding the matter and misinterpreted the law laid down by the Hon'ble Supreme Court, thus

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vitiating the entire judgment. It has further been submitted that the plaintiff had brought sufficient evidence on record to show that he was always ready and willing to perform his part of the obligation under the contract. However, the defendant failed to perform their obligations, making it a fit case for granting specific performance.

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10. The learned counsel has also pointed out that the trial court has overlooked the provisions of Section 16(c), Explanation (i) and (ii) of the Specific Relief Act, 1963, and thereby erroneously dismissed the plaintiff’s suit. It has been submitted that there are specific pleadings and evidence on record indicating the continuous readiness and willingness of the plaintiff to fulfill his contractual obligations. The learned counsel emphasized that the plaintiff not only asserted but also proved his readiness and willingness to perform the contract, which the trial court failed to appreciate.

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11. It has been submitted that the trial court ought to have granted the relief of specific performance in favour of the plaintiff, as there exists a valid and binding agreement of sale between the parties, and the plaintiff has shown his readiness and willingness for compliance with the requirements under Section 16(c) of the Specific Relief Act, 1963.

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12. The learned counsel has submitted that the plaintiff has sufficiently proved that Rs. 9 lakhs were duly paid and payment of this amount has been mentioned in the agreement itself supported by oral evidence and therefore without prejudice to the argument that the plaintiff is entitled to specific performance of agreement, the plaintiff is entitled to refund of Rs.9 lakhs with interest. He has referred to Order VII Rule 7 of C.P.C. to submit that such a relief would be covered by the relief as prayed “that any other relief or reliefs to which the plaintiff found entitled be passed.”

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13. Considering the arguments of the plaintiff/appellant and the materials available on record, the points for determination in this first appeal are as under: -

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(i) Whether the plaintiff has proved the readiness and willingness on his part to perform the remaining part of contract?

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(ii) Whether the plaintiff is entitled for refund of Rs. 9,00,000/- being the amount paid in connection with the contract/agreement of sale(exhibit-1)?

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14. All the points of determination are taken up together for consideration.

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15. The Title Suit No.31 of 2019 was filed by the plaintiff /appellant against the sole defendant (respondent herein) inter alia seeking to adjudicate and direct the defendant to receive the balance consideration amount and execute sale deed in favour of the plaintiff for his 1/3rd share in Schedule A land. The suit was filed on 05.02.2019 seeking specific performance of contract and for the relief as follows: -

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I. That after adjudication the defendant be directed to receive the balance consideration amount and execute sale deed in favour of the plaintiff for his 1/3^rd share in schedule A lands.

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II. that in case the defendant fails to execute the sale deed in favour of the plaintiff the same be executed through process of the court.

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III. that the defendant be restrained to sale the suit lands with other person by grant of injunction.

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IV. That cost of the suit be awarded to the plaintiff.

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V. that any other relief or reliefs to which the plaintiff found entitled be passed.

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16. The case of the plaintiff as per the plaint was that the defendant had approached the plaintiff and disclosed that he was in possession of an ancestral property situated in village - Sirka P.S. Hazaribagh under Khata No.6 and stated that the said property had total area of 8.52 acres recorded in the name of Chhedi Saudagar. After his death, his only son Abdul Hafiz came in possession and after death of Abdul Hafiz, the property came in possession of his two sons namely Saburan and Md. Hanif and one daughter Munnu (the mother of the defendant).

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17. It was the case of the plaintiff that after death of father and mother of the defendant, the defendant came in possession of 1/3rd share of the land. The defendant approached the plaintiff and after negotiation, the plaintiff agreed to sell his land on fixed consideration of Rs.6,28,571/- per katha and both the parties agreed and defendant’s share of 1/3rd was 2.84 acres and the total consideration came to Rs.4,46,28,541/-. The defendant took Rs.9,00,000/- as advance money for executing the agreement of sale in favour of the plaintiff and assured that he would execute the sale deed in favour of the plaintiff after obtaining required papers like land possession certificate and other documents.

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18. It was the case of the plaintiff that the plaintiff approached the defendant several times and the requested the defendant to receive the balance consideration amount and to execute the sale deed but the defendant kept on delaying the matter on one pretext or the other.

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19. It was also stated in the plaint that the advance money was paid and the agreement was executed in the presence of witnesses at Hazaribagh on 12.09.2018. The plaintiff could know that the defendant had obtained the required paper on 20.12.2018 and on 20.12.2018 itself, the plaintiff asked the defendant to receive the consideration money and execute the sale deed, but the defendant deferred the matter. Ultimately the plaintiff sent a legal notice requesting the defendant to receive the balance consideration money and to execute the sale deed, but the defendant refused to receive the legal notice. It is further case of the plaintiff that on 01.02.2019, he went to the house of the defendant, met and asked the defendant to receive the balance money and execute the sale deed, but the defendant finally refused to execute the sale deed and proclaimed that he will sell the land to another person. As per the plaint, the cause of action arose on 12.09.2018 when the defendant executed the agreement for sale and on 01.02.2019 when the defendant finally refused to execute the sale deed in favour of the plaintiff.

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20. It is not in dispute that in spite of service of notice, the defendant did not appear to contest the suit and accordingly no written

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statement was filed nor the defendant appeared to cross-examine the witnesses; the proceeding was set ex parte vide order dated 27.02.2020.

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21. On behalf of the plaintiff, altogether three witnesses were examined and the plaintiff was himself examined as P.W. 3.

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22. So far as plaintiff witness no.1 is concerned, he has claimed that he knows both the parties and the defendant is a resident of Hazaribagh and for last 15 years has been living in Mugalsarai, Chandauli district. The plaintiff wanted to live in Hazaribagh after his retirement and wanted to buy land. The defendant had offered to sell the aforesaid property and an agreement was prepared on 12.09.2018. P.W. – 1 also deposed that the defendant took Rs.9,00,000/- in cash and read the agreement and put his signature; the plaintiff had repeatedly asked the defendant to execute the sale deed pursuant to the agreement, but the defendant did not agree. To the court question, he has responded vide paragraphs 15 and 16 that the agreement was prepared in his presence and the transaction in connection with the property had also taken in his presence. He has also stated that the parties knew each other for last 20 to 25 years.

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23. So far as plaintiff witness no.2 is concerned, he has also deposed in the same line as that of P.W. 1 and to the court question vide paragraphs 11 and 12, he has stated that he was present at the time of transaction of Rs.9 lakhs between the parties. He has stated that however he has not signed on the agreement but the agreement was executed on 12.09.2018. To the court’s question, he has stated that he has been working in Mugalsarai and he knew the plaintiff and the defendant since last 7 to 8 years; the agreement was executed but the defendant did not do the registry; at the time of transaction between the parties, he was present and at the time of transaction of money, he was present. However, he did not sign on the agreement. He has been working in Mugalsarai since last 16 years and he was born in Mugalsarai and does not have a house in Hazaribagh. He could not give the details of the boundary of the property. He has given the

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name of other persons who were present at the time of agreement: Dinesh, Dilip, Md. Sharif and his grandson.

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24. So far as plaintiff witness no.3 is concerned, he is the plaintiff himself. He has stated that he is a resident of Mugalsarai and the defendant is permanent resident of Hazaribagh and the defendant has been living in Chandauli, Mugalsarai for last 20 years. The defendant expressed his desire to sell the property at Hazaribagh and said that the Schedule A property of the plaint was his khatiyani land which is falling in Khata No.6, total 8.52 decimals recorded in the name of Chedi Saudagar and Chedi Saudagar died living behind his only son namely Abdul Hafiz who came in possession of the property. Abdul Hafiz had one son namely Md. Hanif and two daughters namely Munnu and Saburan. After death of Abdul Hafiz, there was family partition and the schedule A property fell in the share of Munnu who died leaving behind only one son namely Md. Sharif and Md. Sharif was the sole defendant, who came in possession of the property. It was stated that the proposal of the defendant was accepted by the plaintiff and both the parties agreed that the rate of land would be Rs.6,28,571/- per katha and accordingly the value of the schedule A property came to Rs.4,46,28,541/-. He also stated that Rs.9 lakhs in cash was given as advance to the defendant without any pressure and on 12.09.2018, the agreement was executed in presence of the witnesses. He has further stated that the defendant got the agreement typed and he read and understood the agreement and put his fingerprint in presence of Dilip Kumar and the plaintiff also put his signature and the agreement was notorized; the agreement was produced and marked Exhibit 1. He further stated that the defendant assured him that after obtaining land possessing certificate, the registry will be done. The plaintiff stated that in spite of repeated request and offer of the remaining amount, the defendant did not agree to execute the sale deed and ultimately a legal notice was sent. He exhibited the legal notice and the postal receipt dated 01.01.2019 as Exhibits 2 and 3. He further stated that no response was received to the legal notice and consequently he met the defendant on 01.02.2019

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and offered the remaining amount but the defendant did not agree to execute the sale deed and gave evasive reply and has also stated that he was ready and willing to perform his part of the contract. In response to the question, he has stated that at the time of the talks about sale-purchase of the property Dilip Kumar and D.K. Singh Rathore and Md. Sharif were present. He has reiterated that the rate of land per katha was decided to Rs.6,28,571/- per katha and Rs.9 lakhs was paid in cash and at the time of payment, they were all present. He has further stated that the property has not been partitioned. Another document has been exhibited before the learned court that is Exhibit 4 which is order of Land Reforms Deputy Collector dated 31.01.2019 in Mutation Appeal Case No.11 of 2013-2014. 25. The evidence of all the witnesses reveals that there was an agreement of sale dated 12.09.2018 (Exhibit-1) between the plaintiff and in their presence an amount of Rs.9,00,000/- was also paid as advance money. Further, the agreement of sale also reveals about payment of Rs.9,00,000/-.

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26. Apart from the aforesaid documents, the plaintiff has also exhibited the order of Land Reforms Deputy Collector bearing Mutation Appeal Case No.11 of 2013-2014 dated 31.01.2019 wherein it has been recorded that the name of Munnu, the granddaughter of Chhedi Saudagar, was not entered into the revenue records and the same was sought to be rectified by the order and since Munnu had already expired, the name of the defendant was entered in the revenue register. The records of the case further reveal that the defendant claimed the property through his mother, Munnu. The agreement of sale reveals the name of the persons, who were descendants of Chhedi Saudagar, who had expired. The agreement also reveals the name of the mother of the defendant, but it does not reflect from the agreement that the mother of the defendant had expired.

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27. During the evidence also and during the course of argument, the learned counsel for the appellant has not been able to show any material from the records with respect to the date of death of the mother of the defendant nor any of the witnesses have deposed

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regarding the date of death of the mother of the defendant. In such circumstances, when the mother of the defendant had not expired, it cannot be said that the entire 1/3^rd of the property devolved upon the sole defendant as claimed by the defendant and in the absence of date of death of the mother, the title of the defendant is not clear from the records of the case.

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28. The foundational fact regarding the date of death of mother being absent and the proceeding being ex-parte, this Court is of the view that the claim of the plaintiff that defendant could have executed agreement of sale with regards to 1/3^rd share having devolved upon him through his mother is also not established. Admittedly, in the agreement, neither the mother is a party nor there is anything to show that the mother had authorized the defendant to execute the sale deed on her behalf.

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29. This Court also finds that apart from the aforesaid, the learned court has considered one of the basic ingredients for granting specific performance of contact i.e. readiness and willingness to perform the agreement.

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30. Though the learned court has not framed any issues as such, but certainly the court has considered one of the prime ingredients of readiness and willingness to perform the agreement. The learned court, while considering the aforesaid aspect of the matter, has referred to the provisions of law and also various judgments of the Hon’ble Supreme Court particularly with respect to Section 16 (c) of the Specific Performance Act and has recorded the following findings:

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“Herein the plaintiff has filed for Specific performance of contract of Sale agreement. where the defendant approached plaintiff to sell his share of land. The defendant took the amount of Rs. 9 Lacs. They both entered into agreement dt. 12/09/2018 of sale and purchase of land. The defendant assured to that he shall execute the sale deed in favour of the plaintiff after obtaining the required papers like L.P.C and others. The plaintiff has several times requested the defendant to execute the same and that they are ready and willing to pay the balance consideration amount. But even after repeated requests the defendants did not execute the sale deed and deffered the matter. Thereafter the plaintiff sent a legal notice and thereafter this suit for specific performance of contract Act. The plaintiff in support of his claim has examined 03 witnesses including himself. Plaintiff has exhibited Agreement, Legal Notice, Postal receipts

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and order of LRDC dt. 31.09.2019. the witnesses including the plaintiff has mentioned that the defendant approached the plaintiff with the proposal of sale of a land which belonged to him. The witnesses apart from the plaintiff were present at the time of execution of the sale agreement however non of them are witness in the agreement. They claim to be present during the talks of agreement, execution of agreement and payment of advance consideration money. The witnesses further stated That the plaintiff is ready and willing to give the remaining balance amount but the defendant is not ready to execute the sale agreement. The plaintiff himself has stated the same facts and exhibited the agreement, notice and postal receipts. But apart from the fact that the plaintiff is ready and willing to make payment of the remaining balance amount the plaintiff has not lead any further evidence.

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The Plaintiff has only relied upon the notice dated 01/01/2019 and evidences of PW1 -PW3 to prove that he was always ready and willing to perform his part of the contract. Even though it may be true that the Plaintiff had Paid the balance sale consideration to the plaintiff but it cannot be ignored that neither the plaint, the witnesses examined or the plaintiff himself as witness and even the agreement mentions the date on which such payment was done. Rather agreement dated 12/09/2018 states the advance amount of Rs. 9 lac has already been received by the defendant. Whereby it cannot be ascertain was it done on same day of days before the execution of the agreement. No evidence has been adduced on behalf of the Plaintiff as to how the Plaintiff was in a position to pay or make arrangements for payment of the balance sale consideration.

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It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.

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In this case, the Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. The Plaintiff had not adduced cogent evidence to prove his readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract.

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Thus plaintiff was not entitled to the relief of specific performance. Hence this relief is decided negative and against the plaintiff.”

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31. The Hon'ble Supreme Court in the judgement reported in (1995) 5 SCC 115 [ N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr)] has held at paragraph 5 as under:

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“5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short “the Act”). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.”

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32. This Court finds that the plaintiff has miserably failed to plead much less prove the availability of fund to the extent of balance consideration amount of Rs.4,37,28,541/- and mere statement and oral evidence that that the plaintiff is ready and willing to perform his part of the contract is not sufficient. The impugned judgement is in consonance with the aforesaid judgement passed by the Hon’ble Supreme Court.

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33. This Court is of the view that the learned trial court has rightly held that the plaintiff has failed to prove readiness and willingness on

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the part of the plaintiff to perform his part of the contract. Consequently, in view of the aforesaid findings, the plaintiff/appellant is not entitled for decree of specific performance of contract and impugned judgement refusing to grant specific performance of contract does not call for any interference. The point of determination no.(i) is accordingly decided against the plaintiff/appellant and in favour of the defendant/respondent.

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34. This Court also finds that there were sufficient materials on record to show that the plaintiff had paid Rs.9,00,000/-. Such evidence was supported by the witnesses as discussed above and such evidence was sustained by all the witnesses even when specific questions were put by the learned trial court. In view of the aforesaid materials placed on record and when the proceeding was ex parte and the defendant neither filed the written statement to oppose such pleading nor took part in the proceedings to cross-examine the witnesses, this Court is of the considered view that the execution of the agreement and the payment of Rs.9,00,000/- which was duly mentioned in the agreement of sale (Exhibit-1) and also supported by witnesses and mentioned in the plaint, stood duly proved and therefore, the observation/finding of the learned court that it could not be ascertained as to when the payment of Rs.9,00,000/- was made, is not sustainable in the eyes of law.

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35. Having found that an amount of Rs. 9,00,000/- was paid by the plaintiff to the defendant in connection with the agreement of sale (Exhibit-1) and considering the nature of relief sought for in the plaint and the arguments advanced by the learned counsel for the appellant, this Court is of the considered view that the plaintiff is entitled for refund of Rs.9,00,000/- which was paid by the plaintiff to the defendant. The point of determination no.(ii) is accordingly decided against the defendant/respondent and in favour of the plaintiff /appellant.

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36. Accordingly, this Court directs the defendant to deposit Rs.9,00,000/- before the court along with interest of 6% per annum from 12.09.2018 latest by 02.09.2025 for payment to the

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plaintiff/appellant upon due identification. In case, the amount is not deposited, it will be open to the appellant to realize that amount through the process of law.

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37. Office is directed to prepare appropriate decree for refund of Rs.9,00,000/- with interest @ 6% as indicated.

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38. This appeal is disposed of in the aforesaid terms.

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39. Since, this Court has upheld the judgement of the learned trial court to the extent it has refused to grant specific performance of contract to the plaintiff-appellant, there is no further need to allow the intervention and hear the intervenors in this case, who is claiming title over the property and this Court is of the considered view that there is no question of entering into the title of the one or the other person and any observation made in this judgement has no bearing on the title with respect to the suit property. I.A No. 831 of 2025 seeking intervention is dismissed.

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(Anubha Rawat Choudhary, J.)

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Saurav/

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Dinesh Kumar Paswan v. MD Sarif

Case brief

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Dinesh Kumar Paswan v. MD Sarif

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