Hirdya Nand Bharti Vs Shashi Kumar Verma

2025:JHHC:18605

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S. A. No. 244 of 2023

Hirdya Nand Bharti, aged about 47 years, son of Shri Ram Deo Bharti, resident of: Egarcoor, P.O.-Kumardhubi, P.S.- Chirkunda, District-Dhanbad.

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… … Defendant No.1/Appellant/Appellant Versus

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Shashi Kumar Verma, Son of Late Rajendra Kumar Verma;

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Rajesh Kumar Verma, Son of Raj Kumar Verma; Both residents of Village-Seolibari, P.O. Kumardhubi, P.S. Chirkunda, District Dhanbad

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Chandan Chakaraborty, son of H.W. Chakarborty, resident of Village-Upchuria, P.O. & P.S. Nirsa, District Dhanbad

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Janardan Prasad, son of Late Balrup Ram, resident of VillageSeolibari, P.O. Kumardhubi, P.S. Chirkunda, District Dhanbad

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… … Plaintiffs/Respondents/Respondents ---

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant : Mr. A.K. Sahani, Advocate : Ms. Trishna Sagar, Advocate For the Resp. No. 3 : Mr. Prabhas Chandra Jha, Advocate For the Respondents : Mr. Kundan Kumar Ambastha, Advocate : Mr. Md. Abdul Wahab, Advocate : Mr. Anurag Chandra, Advocate ---

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10 /10^th July, 2025

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1. Heard the learned counsel appearing on behalf of the parties.

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2. This appeal has been filed against the judgment dated 11.08.2023 (decree signed on 22.08.2023) passed by learned District Judge-I, Dhanbad in Civil Appeal No. 27 of 2020 affirming the judgment dated 29.11.2017 (decree signed on 08.12.2017) passed by learned Civil Judge (Senior Division)-III, Dhanbad in Title Suit No. 70 of 2008.

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3. The suit was filed for Specific Performance of Contract. The prayer in the suit is quoted as under:-

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“(a) A decree for Specific Performance the agreement for sale dated 27-04-06 in so far as defendant no. 1’s untransferred share of 38.5 decimals of land of schedule A is concerned directing defendant no. 1 to transfer 38.8 decimal of untransferred land being the residue share of defendant no. 1 in schedule A in favour of plaintiffs or their nominee Janardan

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1

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Prasad in terms of agreement dated 27.04.06 read with agreement dated 01-04-08.

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OR

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In case this learned court is of the opinion that agreement dated 01-04-08 is not supplement to/part or extension of agreement dated 27.04.06 rather a separate agreement, then decree for specific performance of agreement dated 01.04.08 may kindly be passed in favour of Janardan Prasad, Proforma defendant no. 1 by their transporting him as plaintiff or otherwise.

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AND

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On the refusal or failure of the defendant no. 1 to execute sale deed transferring residue 38.8 decimal lands in favour of plaintiff and/ or proforma defendant, such deed may kindly be executed by this learned court in accordance with the law. (b) A decree for any other or further relief or reliefs to which plaintiffs may be found entitled to, be passed in favour of the plaintiffs.

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(c) A decree for the cost of the suit.”

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4. This appeal was admitted vide order dated 15^th January, 2025 by taking care of the fact that the suit was filed in connection with agreement dated 27.04.2006 read with agreement dated 01.04.2008, but no issue was framed with regard to the agreement dated 01.04.2008. The case was admitted by framing the following substantial question of law:-

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“Whether the learned courts could have decreed the suit without framing any issue in connection with agreement dated 01.04.2008.”

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5. While giving the factual background of the case, the learned counsel for the appellant has submitted that about 98.8 decimals of land was put for auction by Debt Recovery Tribunal in R.P. Case No. 170 of 2002 and Defendant No.1 and Defendant No.2 participated in the auction process and the property was sold for consideration amount of Rs.10,75,000/- in which Rs.2,50,000/- was already paid by Defendant No.1 and Defendant No.2 and for payment of the remaining amount of Rs.8,25,000/-, the Defendant No.1 and Defendant No.2 were looking for financial help.

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6. The plaintiffs agreed to help the Defendant No. 1 and Defendant No.2 to purchase the property in the auction process by

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lending money and consequently an agreement of sale dated 27.04.2006 (Exhibit-1) was entered into between the plaintiffs and the Defendant No. 1 and Defendant No.2 for entire 98.8 decimals land and the consideration amount of the property was Rs.19,50,000/-. It is an admitted fact that an amount of Rs.8,25,000/- was already paid by the plaintiffs to Defendant No.1 and Defendant No.2 and the balance was outstanding .

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7. He submits that it is not in dispute that 23 decimals out of 98.8 decimals was jointly sold by Defendant No.1 and Defendant No.2 to the plaintiffs by four registered sale deed during the period from 18.09.2006 to 06.10.2006 and the remaining property was to the extent of 75.8 decimals and the Defendant No.1 and Defendant No.2 had equal share with respect to 75.8 decimal.

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8. The learned counsel submit that it is further not in dispute that ultimately, an amount Rs.15,21,000/- was already paid to Defendant No.1 and Defendant No.2 by the plaintiffs and the remaining due was Rs.4,29,000/-. The dispute arose when the plaintiffs paid an amount of Rs.4,29,000/- only to Defendant No.2 who executed a sale deed in favour of the plaintiffs on 04.10.2007 and 04.12.2007 with respect to the entire remaining property after deducted 23 decimal of land already sold out of the entire land of 98.8 decimal.

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9. The learned counsel submits that being faced with the situation, the entire remaining consideration amount so far as Rs.4,29,000/- was paid to Defendant No.2 and nothing was paid to Defendant No.1 therefore, there was a panchayati was held in which the plaintiffs as well as the defendants participated and it was agreed that Defendant No.2 would pay 50% of Rs.4,29,000/- to Defendant No.1 and Defendant No.1 would execute a deed in favour of the plaintiffs. On the date of the execution of such deed the Defendant No.2 would pay the 50% of Rs.4,29,000/- to Defendant No. 1. Such arrangement was made so that the property which was transferred to the plaintiffs ultimately get transferred jointly both by Defendant No.1 and Defendant No.2.

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10. The learned counsel for the appellant submits that the relinquishment deed dated 01.04.2008 by way of deed of disclaimer was also executed which was marked as Exhibit-3 and then there was an agreement dated 01.04.2008 between Defendant No.1 and Proforma Defendant No.3 which was marked as Exhibit-1/1.

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11. The learned counsel for the appellant has submitted that in view of the subsequent agreement dated 01.04.2008, the plaintiffs had prayed in the suit for enforcement of the agreement dated 27.04.2006 read with agreement dated 01.04.2008.

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12. The learned counsel then submitted that the learned trial court framed the issues as issue No. 4, 5 and 6 by only referring to the agreement dated 27.04.2006 but no issue was framed in connection with the subsequent agreement dated 01.04.2008 entered into between Defendant No. 1 and Proforma Defendant No.3. He has submitted that Proforma Defendant No.3 was the nominee/representative of the plaintiffs in whose favour the sale deed was to be executed.

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13. The learned counsel submits that the relief in the plaint was exfacie in connection with the agreement dated 27.04.2006 read with agreement dated 01.04.2008 and the learned courts have completely omitted to frame any issue in connection with the agreement dated 01.04.2008. The learned counsel has submitted that in absence of any issue relatable to the agreement dated 01.04.2008, the impugned judgment cannot be sustained, even as per the case of the plaintiffs both the agreements i.e. agreement dated 27.04.2006 (Exhibit-1) and agreement dated 01.04.2008 (Exhibit-1/1) were required to be read together.

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14. In furtherance to the aforesaid argument, the learned counsel has submitted that no relief as such was claimed against Defendant No.2, but the learned court has directed the Defendant No.1 as well as Defendant No.2 to execute sale deed in favour of the plaintiffs. He has also submitted that no relief was prayed for with regard to cancellation of sale deeds which was already executed by Defendant No.2 in favour of the plaintiffs bearing No. 9366 dated 04.10.2007 in favour of Jawardhan Prasad, agreement deed No. 9367 dated 04.10.2007 in

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favour of Janardan Prasad and agreement deed No. 9368 dated 04.10.2007 in favour of Indu Devi and Janardan Prasad and agreement deed No. 10906 dated 04.12.2007 in favour of Sashi Verma and Ravi Verma and those sale deeds have been directed to be cancelled and there is a direction for execution of a fresh sale deeds by Defendant No.1 and Defendant No.2 in favour of the plaintiffs. He submits that neither the persons in whose favour the aforesaid sale deeds were executed were party in the proceedings except Sashi Verma and Ravi Verma who were the purchaser in connection with sale deed No. 10906 dated 04.12.2007 nor any relief was prayed for before the court as against Defendant No.2, the entire relief was only against the Defendant No.1.

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15. The learned counsel has also submitted that the learned court while granting the relief has completely ignored the impact of the subsequent agreement dated 01.04.2008, although there are discussions in connection with agreement dated 01.04.2008 but no issue having been framed in connection with the agreement dated 01.04.2008.

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16. The learned counsel has also submitted that as the consequence of the aforesaid facts and circumstances, the amount of Rs.2,45,000/which was to be paid by Defendant No.2 to Defendant No.1 at the time of execution of sale deed in terms of agreement dated 01.04.2008 i.e. deed of disclaimer (Exhibit-3) the same has also not been taken care of and the sale deeds executed by Defendant No.2 in favour of the plaintiffs/their nominee have been set aside and there is a direction for execution of fresh sale deed. The learned counsel has submitted that had the court taken into consideration the impact of the subsequent deed dated 01.04.2008 and had framed adequate issue in connection therewith. This kind of order could not have been passed by the learned court.

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17. The learned counsel appearing on behalf of the Defendant No.2 who is respondent No.3 in the present proceeding has opposed the prayer of the appellant and he has submitted that money was not received by him.

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18. Learned counsel appearing on behalf of the respondent No.1 and 2 representing the plaintiffs has opposed the prayer of the appellant and has referred to Order 14 Rule 5 of CPC to submit that the court has the power at any time before passing a decree to amend the issue or frame additional issue on such terms as it thinks feet and court has also the power to strike out any issue that appears to have been wrongly framed or introduced. He submits that no prayer was made by the Defendant No.1 (the appellant herein) at any stage to amend the issue and even before the learned 1^st appellate court, no such prayer was made and consequently, such grievance cannot be permitted to be raised for the first time in the second appeal.

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19. The learned counsel has also submitted that as per the deed of disclaimer, the amount was to be paid to the extent of Rs.2,45,000/- by the Defendant No.2 in favour of Defendant No.1 at the time of execution of the sale deed in terms of deed of disclaimer read with the agreement dated 01.04.2008. He submits in the deed of disclaimer, the Defendant No.2 had agreed that the remaining consideration amount i.e. Rs.4,29,000/- was paid to him by the plaintiffs and consequently, the plaintiffs have paid the entire consideration amount.

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20. Learned counsel has also submitted that in paragraph 39 of the cross examination, the Defendant No. 1 had admitted the deed of disclaimer which was Exhibit-3 before the learned trial court. 21. He submits that there was only a defect with regard to the execution of the sale deed inasmuch as the Defendant No.1 could not join at the time of execution of sale deed and the sale deed was executed only by the Defendant No.2 in favour of the plaintiffs or their nominees. In order to take care of this aspect of the matter, the learned trial court has cancelled those deeds which were executed by Defendant No.2 in favour of the plaintiffs or their nominee and has directed the Defendant No.1 and Defendant No.2 to join together and execute fresh sale deeds. The learned counsel has submitted that the court has ample power to mould the relief and such equitable relief has been granted by the court to the plaintiffs. He submits that under such circumstances the impugned judgments do not call for any

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interference and the non-framing of issue in connection with the agreement dated 01.04.2008 is not fatal to the impugned judgments.

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22. However, it is not in dispute from the side of the respondent No. 1 and 2 representing the plaintiffs that in the suit no relief was prayed to cancel the sale deeds executed by Defendant No. 2 in favour of the plaintiffs/their nominees and also the fact that the purchaser arising from such sale deed were not party before the proceeding except one sale deed which was in favour of the plaintiffs. It is further not in dispute that no relief was claimed by the plaintiffs as against Defendant No.2.

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23. After hearing the learned counsel for the parties and having gone through the materials on record, this Court finds that on the face of the relief as prayed for by the plaintiffs before the Court, the plaintiffs were seeking specific performance of agreement of sale dated 27.04.2006 (Exhibit-1) read with the agreement dated 01.04.2008 (Exhibit-1/1), the entire relief was claimed only against Defendant No.1 and no relief was claimed so far as Defendant No.2 is concerned. This Court further finds that no relief was prayed regarding cancellation of any sale deed and the vendors of the sale deeds which were executed by Defendant No.2 in favour of the plaintiffs and their nominee were also not party in the proceedings.

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24. It is further not in dispute that the property was purchased by Defendant No.1 and Defendant No.2 in auction sale conducted by Debt Recovery in R.P. Case No. 170 of 2002 for consideration amount of Rs.10,75,000/- and the Defendant No.1 and Defendant No.2 purchased the said property by providing money to the extent of more than Rs.8 lacs and Rs.2,50,000/- was already paid to Defendant No.1 and Defendant No.2. The plaintiffs and Defendant No.1 & Defendant No.2 entered into agreement for sale dated 27.04.2006 for the entire 98.8 decimals of land for a consideration amount of Rs.19,50,000/-.

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25. It is further not in dispute that 23 decimal of land was jointly sold by Defendant No.1 and Defendant No.2 to the plaintiffs/their nominee by virtue of four sale deeds executed during the period from 18.09.2006 to 06.10.2006.

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26. The entire dispute arose in relation to the remaining area of the property.

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27. It has not been disputed that plaintiffs had paid Rs.15,21,000/and the balance amount was Rs.4,29,000/- only. However, the Defendant No.2 alone executed a sale deed in the year 2007 in favour of plaintiffs/their nominees in the year 2007 and took the entire balance consideration amount of Rs.4,29,000/- as a result of which the half of Rs.4,29,000/- which was the portion of the Defendant No.1 was not given to Defendant No.1. Consequently, a panchayati was held and an arrangement was made so that the amount of Rs.2,45,000/- is paid to Defendant No.1 by Defendant No.2 and Defendant No.1 would execute sale deed with respect to his share of the remaining property i.e. 38.45 decimals of land. Exhibit-3 is a deed of disclaimer, which was executed by Defendant No.1.

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28. In the aforesaid background, the relief was only prayed against Defendant No.1 in the suit. However, the learned trial court while framing the issue has completely ignored the fact that the plaintiffs were seeking enforcement of agreement dated 27.04.2006 read with agreement dated 01.04.2008 and the agreement dated 27.04.2006 could not be seen in isolation.

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29. This Court finds that the learned trial court while deciding issue No. 4 has held that there was concluded contract between the parties dated 27.04.2006 with respect to the schedule-A property. However, as no issue was framed in connection with agreement dated 01.04.2008 read with the agreement dated 27.04.2006. No finding was recorded in connection with the agreement dated 01.04.2008.

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30. However, the learned trial court has discussed that there was a panchayati held on 30.03.2008 and in panchayati the defendant No. 1 signed a deed of disclaimer wherein he admitted that the balance consideration amount of Rs.4,29,000/- was duly received by the Defendant No.2 on behalf of both the vendors i.e. Defendant No. 1 and Defendant No.2 and also admitted that owing to some problem he could not join in the execution of the sale deeds and then the Defendant No.1 by separated agreement for sale dated 01.04.2008 has

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agreed to sell his share of 38.5 decimal of land in favour of the plaintiffs’ nominee Janardan Prasad but later on he refused to honour the agreement.

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31. The learned trial court after hearing the learned counsel for the parties and on perusal of documents and oral evidence came to the finding that the Defendant No.1 has not disputed the execution of the agreement dated 27.04.2006, the deed of disclaimer dated 31.03.2008 and the agreement of sale deed 01.04.2008. The learned court also considered the documentary evidences on record and found that as per the deed of disclaimer dated 31.03.2008 (Exhibit-3) the Defendant No.1 had acknowledged that he along with Defendant No.2 had jointly received Rs.15,21,000/- out of total consideration amount of Rs. 19,50,000/- and the rest amount of Rs.4,29,000/- was duly received and acknowledged by his partner defendant No.2 on 04.10.2007.

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32. The learned court recorded a finding that it is crystal clear that a valid sale agreement was entered into by and between the plaintiffs and the Defendant No.1 and Defendant No.2 on 27.04.2006 and full consideration amount stipulated therein was already paid by the plaintiffs and Rs.15,21,000/- was received by both the Defendant No.1 and Defendant No.2 and the remaining Rs.4,29,000/- was received by Defendant No.2 which has duly been acknowledged by the Defendant No.1 in the deed of disclaimer (Exhibit-3).

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33. The findings of the learned trial court is quoted as under:-

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“ Issue No. 5 & 6.

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7. ………………………………………….

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Thus, from the above it is crystal clear that a valid sale agreement was entered into by and between the plaintiffs and the defendant no. 1 & 2 on 27.04.06 and the full consideration amount stipulated therein has already been paid by the plaintiffs- Rs. 15,21,000/-was received by both the defendant no. 1 & 2 and the remaining Rs. 4,29,000/- was received by the defendant no. 2 which has duly been acknowledged by the defendant no. 1 in the Deed of Disclaimer (Ext. 3).

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Having agreed to receive his share of money and promised to execute the sale deed in such explicit terms, the defendant no.1

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can not be permitted to take a u-turn and is estopped from doing so in view of Section 115 of the Evidence Act.

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Thus, from the above it is crystal clear that the plaintiffs were ready and willing to perform their part of contract. In fact, they have already performed their part of contract and the defendant no. 1 has not been willing and ready to perform his part of contract. Therefore, the plaintiffs are entitled for a decree of Specific Performance of Contract dated 28.04.2006.

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Now a question may arise as to when the sale deeds with regard to the land of the share of defendant no. 1 has already been executed by the defendant no. 2 and the same is still in existence, how the defendant no. 1 may be directed to execute a fresh sale deed in favour of the plaintiffs or their nominee, i.e., the defendant no. 3 with regard to the same land unless those sale deeds are cancelled and, that too, when no relief for the cancellation of those sale deeds has been sought for? In my opinion, even in absence of any relief sought for the cancellation of the sale deeds (Ext. 5 series) the order for cancellation of those sale deeds can very well be passed by this Court by way of equitable relief as prayed for by the plaintiffs.

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Thus, on the basis of discussions made herein above, these issues are decided in favour of the plaintiffs and against the defendants.

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ISSUE NO. 4

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8. In view of the findings of this Court on issue no. 5 and 6 it must be held that there is a concluded contract between the parties dated 27.04.2006 with respect to the schedule A property and this issue is also decided in favour of the plaintiffs.

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34. Thus, the learned court recorded that after having agreed to receive the share of money, the Defendant No.1 cannot be permitted to take a U-turn and the reference was made to Section 115 of the Evidence Act. The learned court held that it was crystal clear that the plaintiffs were ready and willing to perform their part of contract and in fact they have already performed their part of the contract and Defendant No.1 has not been willing and ready to perform his part of the contract and therefore, the plaintiffs were entitled for a decree of Specific Performance of Contract of the year 2006. While recording this finding the court again has not given any finding with respect to the agreement dated 01.04.2008 (Exhibit-1/1), which was included in the relief portion of the plaint.

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35. After having recorded that the plaintiffs were entitled for decree of Specific Performance of Contract of the year 2006, the learned trial court proceeded to give the relief by posing a question as to when the sale deeds with regard to the land of the share of the Defendant No.1 was already executed by Defendant No.2 and the same was still in existence then how the Defendant No.1 may be directed to execute a fresh sale deed in favour of the plaintiffs or their nominee i.e. defendant No. 3 with regard to the same land unless those sale deed are cancelled and that too when no relief for cancellation of said sale deed was sought for in the plaint.

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36. Learned trial court was of the opinion that even in absence of any relief sought for the cancellation of the sale deeds (Exhibit-5 series) the order of cancellation of those sale deeds can very well be passed by the court by way of equitable relief as prayed for by the plaintiffs and ultimately suo-motto cancelled the sale deeds as contained in Exhibit-5 series and directed the Defendant No.1 as well as Defendant No.2 to execute fresh sale deeds in favour of the plaintiffs or their nominees.

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37. This Court is of the view that had the learned trial court framed an issue with respect to the impact/enforcement of the agreement dated 27.04.2006 (Exhibit-1) read with agreement dated 01.04.2008 (Exhibit-1/1) and the learned court if found that these two agreements when read together were still enforceable and was binding on the parties then appropriate relief could have been granted, but having not framed any issue in connection with the agreement dated 27.04.2006 read with the agreement dated 01.04.2008, the learned trial court has committed a grave error and has travelled beyond the scope of the suit. 38. The learned 1^st appellate court has also omitted to consider these aspects of the matter although before the learned 1^st appellate court none of the parties had pointed out that the core issue was relating to agreement dated 27.04.2006 read with agreement dated 01.04.2008 and the agreement dated 27.04.2006 could not be seen in isolation as per the frame of the suit also.

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39. The objection raised by the learned counsel for the respondents that the appellant did not raise any objection with regard to the framing of the issues and hence such plea cannot be raised is not acceptable to this Court. This Court is of the considered view that it is not only the responsibility of the court, but it is also the responsibility of both the parties before the Court particularly when it comes to the plaintiffs to ensure that proper issues are framed so that not only the issues are decided, but consequential relief flowing out of such decision is also granted.

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40. This Court is of the view that the relief which has been granted by the learned trial court is primarily on account of the reason that court has completely ignored the impact of the agreement dated 01.04.2008 while holding that the plaintiffs were entitled for a decree of specific performance of contract/agreement dated 27.04.2006 and no such finding has been recorded by the learned trial court with regard to the entitlement of the plaintiffs regarding enforcement of agreement dated 27.04.2006 read with the agreement dated 01.04.2008 .

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41. The aforesaid substantial question of law is answered in favour of the appellant by holding that the learned courts could not have decreed the suit without framing any issue in connection with agreement dated 01.04.2008. Consequently, the impugned judgments passed by the learned trial court and upheld by the learned 1^st appellate court are hereby set aside and the matter is remanded to the learned trial court to adequately modify the issue/frame additional issue as to-

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Whether the plaintiffs are entitled for decree of specific performance of contract as against defendant No.1 in terms of the contract dated 27.04.2006 read with the contract dated 01.04.2008?

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42. The parties are directed to appear before the learned trial court or the successor court on 22^nd September 2025 at 11.00 am. 43. As the Title Suit is of the year 2008, the learned trial court shall make all endeavor to dispose of the title suit expeditiously. Parties to cooperate.

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44. This second appeal is accordingly disposed of.

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45. Pending I.A., if any, is dismissed as not pressed.

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46. Let a copy of this order be communicated to the concerned

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