Sri. Gayasuddin J. Vs Sri. M Aditya Dutt

SRI. GAYASUDDIN J., S/O MOHAMMAD JAMALUDDIN, AGED ABOUT 53 YEARS, PRESENTLY RESIDING AT No. 62, ROCK ROSE RESIDENCY , B-1, 1^ST CROSS, BHEL OFFICERS LAYOUT, BANNERGHATTA ROAD, BENGALURU 560041.

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…APPELLANT

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(BY SRI RAVINDRA V. S., ADVOCATE)

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AND:

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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SRI. M. ADITYA DUTT, S/O M. V. RAMANA RAO, AGED ABOUT 57 YEARS, RESIDING AT No.401, SHIVA SAI RESIDENCY, 6^TH PHASE, KPHB COLONY, KUTTAPALLI, HYDRABAD 560085.

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…RESPONDENT

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(SERVED AND UNREPRESENTED)

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THIS RFA FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.06.2023 PASSED IN OS No. 604/2020 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ANEKAL,

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DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT OF SALE.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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Captioned appeal is by the unsuccessful plaintiff, who has questioned the judgment and decree rendered in O.S. 604/2020 wherein plaintiff suit seeking relief of specific performance of contract based on the sale agreement dated 04.08.2016 is dismissed.

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For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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Facts leading to the case are as under,

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Plaintiff filed a suit for specific performance of

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contract in O.S. No. 604/2020. Plaintiff claimed that defendant is the owner of the suit land bearing Sy.No.156/45 measuring 38 guntas. Plaintiff claimed that defendant purchased the suit schedule property under

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registered sale deed dated 04.08.2016. Plaintiff further claimed that the defendant having acquired the property under registered sale deed, offered to sell 16 guntas, out of 38 guntas in Sy. No.156/45 and accordingly executed a registered agreement to sell on 04.08.2016 in favour of plaintiff. Plaintiff contended that, defendant received an advance amount of ₹14,00,000/- out of total sale consideration of ₹15,00,000/-. As per the plaintiff's version, defendant was required to receive the balance sale consideration of `1,00,000/- after getting the land transferred to his name in the revenue records. Plaintiff specifically asserted that since defendant was required to get the property transferred in his name, time was not the essence of the contract. Plaintiff specifically pleaded that he is willing to pay the balance sale consideration and is ever ready and willing to perform his part of contract.

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The plaintiff's grievance is that although the

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defendant succeeded in getting the property records mutated in his name on the strength of a registered sale

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deed dated 04.08.2016, he did not evince any interest in concluding the transaction pursuant to the agreement to sell executed in favour of the plaintiff. Despite several requests made by the plaintiff, the defendant continued to postpone the execution of the sale deed in favour of the plaintiff. When contacted telephonically, the defendant informed the plaintiff that his name was yet to be reflected in the revenue records based on the sale deed, and therefore, he sought additional time to complete the transaction in favour of the plaintiff.

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The plaintiff has further averred that upon

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verifying the revenue records, he discovered that the defendant had in fact secured an order from the Assistant Commissioner, and the mutation in the defendant's name had been effected as early as 20.02.2019. Despite this, the defendant failed to honour his commitment and continued to delay execution of the sale deed. Left with no other option, the plaintiff issued a legal notice dated 17.06.2020, calling upon the defendant to complete the

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sale transaction. However, the said notice was returned unserved with the postal endorsement “unclaimed” dated 27.06.2020. Consequently, the plaintiff was constrained to file the present suit seeking specific performance of the agreement to sell.

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Since the defendant did not appear before the trial Court despite service of summons, he was placed ex parte. In order to establish his claim, the plaintiff entered the witness box and produced the original agreement to sell, which was marked as Ex.P1. He also produced the copy of the legal notice and other supporting documents. Additionally, the plaintiff placed on record a certified copy

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of the registered sale deed executed in favour of the defendant, marked as Ex.P7. The trial Court, in the absence of any written statement or defence, framed four issues for consideration. However, while answering Issue No.1, the trial Court held that the plaintiff had failed to prove the execution of the agreement to sell dated 04.08.2016 or that an advance consideration of

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`14,00,000/- had been paid. Consequently, Issues Nos. 2

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and 3 were also answered in the negative, and the suit came to be dismissed.

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Even before this Court, the defendant has not chosen to appear or contest the appeal, though notice has been duly served upon him.

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The learned counsel appearing for the appellant reiterated the grounds urged in the appeal memorandum and contended that the trial Court, despite there being no contest or defence, has erroneously proceeded to doubt the transaction in question. The trial Court, according to him, was unduly influenced by the fact that both the registered sale deed in favour of the defendant and the plaintiff’s suit agreement bear the same date, i.e., 04.08.2016. On that basis, the trial Court concluded that there was no obstacle for the plaintiff to obtain either an agreement or a registered sale deed directly from the original owner. It is his submission that such a finding, in

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the absence of any rebuttal or denial by the defendant, is wholly unsustainable. He further submitted that the plaintiff has discharged his burden by producing the registered agreement and supporting documents, and in the absence of any contest, the trial Court ought to have granted the relief of specific performance. The learned counsel also challenged the reasoning of the trial Court regarding non-examination of attesting witnesses, contending that such a requirement is not absolute and cannot be made a ground to disbelieve the plaintiff’s evidence, especially when the agreement is a registered document. He urged this Court to set aside the erroneous findings of the trial Court and allow the appeal.

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Heard the counsel for plaintiff. This Court has carefully examined the pleadings in the plaint and this Court has also meticulously examined the suit agreement marked at Ex.P1.

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Following points would arise for consideration:

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1. Whether the trial Court was justified in holding that the plaintiff failed to prove the execution of the suit agreement dated 04.08.2016, and whether such a finding is perverse, contrary to the material on record, and warrants interference by this Court?

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2. Whether the trial Court committed a serious error in

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disbelieving the plaintiff’s case, particularly in the absence of any contest by the defendant, by solely relying on the fact that the suit agreement by plaintiff and the registered sale deed in favour of the defendant are of the same date, and further, in placing undue emphasis on the non-examination of attesting witnesses?

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Finding on point Nos.1 and 2 .

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The plaintiff has instituted the present suit seeking specific performance of the agreement to sell dated 04.08.2016, purportedly executed by the defendant in his favour. In support of his claim, the plaintiff has produced the original registered agreement to sell, which

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is marked as Ex.P1. A careful perusal of Ex.P1 reveals that

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it is a registered document, executed before the jurisdictional Sub-Registrar, and it bears the photographs and signatures of both the plaintiff and the defendant on the reverse side of the second page of the non-judicial stamp paper. The registration of the document before the Sub-Registrar, coupled with the identification of the parties through their photographs and thumb impressions, lends authenticity and evidentiary weight to the agreement.

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It is not in dispute that prior to institution of the suit, the plaintiff issued a legal notice dated 17.06.2020, calling upon the defendant to execute the sale deed. The said notice, marked as Ex.P2, was returned with the postal endorsement “unclaimed” dated 27.06.2020. The core issue for determination in this appeal is whether the genuineness of the suit agreement can be doubted merely because the defendant acquired title to the property under a registered sale deed on the same day, i.e., 04.08.2016, when he executed the agreement to sell a portion of the

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property (16 guntas out of 38 guntas) in favour of the plaintiff. While it is a well-settled principle that even in the absence of contest, the plaintiff carries the initial burden of establishing the execution and validity of the agreement, the fact that the suit agreement is a registered document assumes critical importance. Under Section 114(e) of the Indian Evidence Act, 1872, there is a presumption that official acts have been regularly performed. This includes the registration of documents by a public authority, such as the Sub-Registrar. Consequently, Ex.P1, being a registered agreement to sell, is entitled to a statutory presumption of genuineness, unless rebutted by cogent evidence.

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The trial Court, however, erroneously

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proceeded to doubt the transaction solely on the basis that the agreement was executed on the same day as the registered sale deed obtained by the defendant. This approach, in the absence of any contest or plea of fraud, coercion, or misrepresentation from the defendant, is

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unsustainable. There can be several legitimate reasons why the defendant, upon acquiring title to the property, chose to enter into an agreement to sell a portion of it on the same day. Merely because the transaction took place on the same date does not, ipso facto, render it suspicious. Importantly, the defendant, who alone could have explained the circumstances or raised any objection to the transaction, has chosen not to contest either the suit or the appeal. In such circumstances, the trial Court’s conclusion that the transaction is doubtful is speculative and unsupported by any evidence or legal basis.

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The trial Court has also taken exception to the fact that the plaintiff did not examine any of the attesting witnesses to the suit agreement. This finding, too, is clearly flawed. Under Section 68 of the Indian Evidence Act, the requirement to examine at least one attesting witness applies only to documents required by law to be attested, such as wills and gift deeds of immovable property under Section 123 of the Transfer of Property

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Act, 1882. An agreement to sell immovable property is not a document which, under law, is mandatorily required to be attested. Therefore, the provisions of Section 68 are not attracted to the present transaction. The mere absence of examination of an attesting witness does not, in law, vitiate the proof of a registered agreement to sell, particularly when the defendant has neither denied the execution nor appeared to contest the same. In such circumstances, no adverse inference can be drawn against the plaintiff.

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Further, the plaintiff has placed reliance on Ex.P7, the certified copy of the registered sale deed executed in favour of the defendant, which evidences that the defendant acquired title to the suit property on 04.08.2016. This corroborates the plaintiff’s case that the defendant had the legal authority and competence to execute the agreement to sell in his favour on the very same date. Ex.P1 also recites that a sum of `14,00,000/was paid as advance consideration, a recital which carries

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evidentiary weight under Section 91 and 92 of the Evidence Act, and in the absence of contest or rebuttal, the same stands uncontroverted.

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The Hon’ble Supreme Court, in a catena of judgments, has consistently held that although the relief of specific performance is discretionary in nature under Section 20 of the Specific Relief Act, 1963, such discretion must be exercised judiciously and not arbitrarily or capriciously. Once the plaintiff establishes the execution of a valid and enforceable agreement, and there is no inequity or hardship demonstrated by the defendant, the Court must ordinarily decree specific performance. In the present case, the plaintiff has discharged the initial burden of proof by producing the registered agreement, and the defendant has not appeared to rebut the same or to demonstrate any hardship or inequity that would justify denial of relief.

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In the absence of any defence, rebuttal, or explanation by the defendant, the equities clearly weigh in favour of the plaintiff. His consistent assertion that the defendant executed the agreement to sell and received a substantial advance consideration has remained unchallenged. The trial Court, in venturing to disbelieve the transaction on its own assumptions, without any supporting material or pleading, has clearly committed a manifest error. This Court, therefore, finds that the findings recorded by the trial Court while answering Issue No.1 are perverse, unsupported by the record, and contrary to settled principles of law. The approach of the trial Court in casting doubts on a registered transaction in the absence of any contest is wholly unsustainable and warrants interference. Accordingly, the judgment and decree passed by the trial Court is liable to be set aside, and the suit for specific performance deserves to be decreed in favour of the plaintiff.

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18. CONCLUSIONS

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I. The trial Court has committed a serious error in disbelieving the plaintiff's case despite the production of a registered agreement to sell (Ex.P1), which enjoys a statutory presumption of authenticity under Section 114(e) of the Indian Evidence Act, 1872. The Court failed to appreciate that registration before a public authority, coupled with the parties' photographs and signatures, adds considerable evidentiary weight to the document.

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II. The trial Court has erroneously cast doubt on the transaction solely on the ground that the suit agreement and the registered sale deed in favour of the defendant were executed on the same date. Such reasoning is purely speculative and unsupported by any evidence or legal prohibition. The defendant, who could have clarified the nature of the transaction, chose not to contest the suit or the appeal. In the absence of any rebuttal, the Court’s suspicion is misplaced.

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III. The finding of the trial Court that the plaintiff failed to examine attesting witnesses is legally unsustainable. An agreement to sell is not a document that is required by law to be attested, and

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therefore, Section 68 of the Evidence Act has no application. The Court’s reliance on this ground to discard the plaintiff’s evidence reflects a clear misapplication of law.

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IV. The trial Court misdirected itself by applying a standard of proof higher than what the law requires in civil proceedings. Once the plaintiff had discharged his initial burden by producing a registered agreement and leading uncontroverted evidence, the Court ought to have drawn a presumption in his favour, especially when the defendant failed to enter appearance or file any written statement.

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V. The trial Court ignored well-settled principles

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governing the grant of specific performance, particularly the settled law that in the absence of contest, and where no inequity or hardship is demonstrated, the relief ought

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not to be denied arbitrarily. The discretionary relief under Section 20 of the Specific Relief Act, 1963 was wrongly refused based on conjectures and surmises.

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VI. In totality, the findings recorded by the trial

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Court are perverse, contrary to the evidence on record, and vitiated by legal error. The judgment and decree passed by the trial Court is therefore liable to be interfered with and set aside.

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