Dismissed

Ram Singh and Ors. v. Bhikam Chand and Ors.

Rajasthan HC28 Jan 2015CFA/469/2009

Case brief

AI extract

What is this about?

Specific performance of agricultural land sale agreements was upheld against objections concerning litigation expenses, limitation, price escalation and imperfect title. The vendors' appeal was dismissed, subject to additional deposits by the purchasers and reciprocal execution of sale deeds.

What did the court decide?

Specific performance upheld subject to additional deposits; vendors directed to convey within two months, failing which the trial court would execute; purchasers to convey the agreed plot free of cost

Ram Singh and Ors. Vs Bhikam Chand and Ors. — Specific Performance | Rajasthan HC (2015)

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SBC First Appeal No.469/2009 Ram Singh & Ors. vs. Bhikam Chand & Ors. Judgment dt: 28/1/2015

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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J U D G M E N T

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Ram Singh & Ors. vs. Bhikam Chand & Ors.

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S.B.CIVIL FIRST APPEAL NO. 469/2009

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DATE OF JUDGMENT : 28^th January, 2015

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P R E S E N T

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HON'BLE Dr. JUSTICE VINEET KOTHARI

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Mr.Jitendra Chopra, for the appellant-defendants

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Mr. Suresh Shrimali, ] Mr.Sundeep Bhandawat,] for the respondent-plaintiffs. Mr.Ashok Patel, ]

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BY THE COURT:

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REPORTABLE

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The defendants – Ram Singh s/o Ghasi Ram & ors have filed the present first appeal under Section 96 CPC against Bhikam Chand s/o Ram Jeevan & anr. being aggrieved by the judgment and decree dated 12/8/2009 passed learned Addl. District Judge (Fast Track) No.3, Jodhpur in a suit for specific performance being Civil Suit No. 603/2004 (351/2004) – Bhikam Chand & Arun Kumar vs. Ram Singh s/o Ghasi Ram & Ors .

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The said suit for specific performance was filed by the plaintiffs – Bhikam Chand & Ors. on 2/11/2004 in respect of agriculture land belonging to Ghasi Ram, father of the present appellant-defendant Ram Singh, ad-measuring 28 bighas 19 biswas situated of Khasra no.821, 822, 823, 824, 827 & 827/1 in village Baga, Tehsil & District

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Jodhpur, which was agreed to be sold to the plaintiffs under the agreement to sell dated 28/10/1989 at the rate of Rs.51,000/- per bigha and this agreement dated 28/10/1989 was reiterated under the fresh agreement executed by the present defendant-appellant-Ram Singh s/o Ghasi Ram, after the death of his father Ghasi Ram on 25/1/1991, vide new agreement dated 8/4/1992 . Under the agreement dated 28/10/1989, the defendant Ghasi Ram received a sum of Rs.2 lacs towards the consideration and under the new agreement dated 8/4/1992, the defendant Ram Singh received a sum of Rs.1 lac and a further sum of Rs.75,000/- on 28/9/1993 and thus a total sum of Rs.3,75,000/- was paid by the plaintiffs to the defendants under these two agreements. Since, some litigation was pending with respect of the said agriculture land, it was agreed between the parties that upon the title of the defendants being cleared, the plaintiffs would pay the remaining consideration and the registered sale deed would be executed in their favour and it was also agreed that the cost of litigation in respect of the said agriculture land would be borne by the plaintiffs.

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It is case of the plaintiffs that after the dispute with regard to the title of the defendants became clear on mutation in relevant record in their favour on 18/12/2002 against which the State appeal was dismissed by the Divisional Commissioner, Jodhpur only on 20/11/2003 , the plaintiffs served registered notice on the defendants on 16/8/2004 for executing the registered sale deed in their favour as they are ready and willing to pay the balance amount of

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consideration for transfer of said agriculture land and upon refusal on the part of the defendants, the present suit was filed by the plaintiffs on 2/11/2004 .

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The defendants contested the said suit and after recording the evidence of both the parties, the learned trial court decreed the suit by a detailed 70 pages judgment & decree dated 12/8/2009 and directed the defendants to execute the sale deed subject to some conditions. The operative portion of the judgment & decree of learned trial court is quoted below for ready reference:-

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“आद�श

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58पर�ण�मस�रप, ��द�गण क� यह ��द पत��द�गण क� व�रद त�म��स�� सवयय आजप ककय� ज�� ह":-

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1- ��द�गण क� हक म# � पत��द�गण क� व�रद इस आशय क% अ��ब(ध पदश*-2 � 3 क% व�त�रद*ष अ��प�ल�� क% आजतप प�र�� क% ज��. ह/ कक पत��द�गण ��द�गण क� हक म# ��दगस� ख � खस�� स(खय� 821, 822, 823, 824, 827, 827/1 क% क�ल �कब� 28 ब.घ� 19 बबस�� भ6मम ��क� ग�म ब�ग�, पट�� क�त ब�ग�, �हस.ल � जजल� ज<धप � क� व�कय व�ल�ख क� त�षप�द� � प(ज.य� ��द�गण क� खर@ प� द< म�ह म# क��य#ग� औ� उक भ6मम क� र�क कबज� ��द�गण क< सEप�ग#।

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2- पत��द�गण क< जर�य� सG�ई त�ष�ध�ज� प�ब(द ककय� ज�� ह/ कक उक प(ज.य� � कबज� सJप�� क% क�य*��ह� ह<�� क ��दगस� भ6मम क< ककस. पक�� स� अन�र�� ह�( क�#ग� � उस प� क<ई भ�� सLजज� �ह�( क�#ग�।

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3- आद�श 20 त�यम 12 (क) वय�ह�� पककय� स(रह�� क� �ह� ��द�गण क< यह आद�श रदय� ज�� ह/ कक �� एक म�ह म# श�ष पत�फल क% ��मश 11,10,450/- अक�� गय��ह ल�ख एक हज�� र�� सE पर�स रपय�, म�कदम# लड�� क� खर@ क% ��मश

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SBC First Appeal No.469/2009 Ram Singh & Ors. vs. Bhikam Chand & Ors. Judgment dt: 28/1/2015

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1,00,000/- अक�� एक ल�ख रपय� औ� �ह समय क� अन��ल स� जम.� क� भ��Q म# बढE�� ह< ज�� स� बढ� ह�ए पत�फल क% ��मश 5,98,550/- अक�� प�Sर ल�ख अठ�� हज�� प�Sर सE पर�स रपय�, क�ल 18,00,000/- अक�� अट��ह ल�ख रपय� त�यम��स�� नय�य�लय म# जम� क��य#ग� ज< व�कय पत क� त�षप�द� � प(ज.य� ह< ज�� कबज� सJप द � � क� ब�द पत��द�गण नय�य�लय स� त�यम��स�� उठ� सक# ग�।

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4- अ��ब(ध पदश*-2 क% श�* स(खय�-9 क� अ��स�� द�गण पत��द�गण क< एक त�:श�लक भ6खणX आक�� 50X50 फ�ट क� ��ट� र�Sदप<ल G�� <ड प� क� स��ममत� व�ल�ख सरह� आधधपतय एक म�ह म# सJप�ग� औ� इसक% मलखख� �स.द पत��द�गण स� प�प � क� नय�य�लय म# पस� � क�#ग�।

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5- ��द�गण द�� अप�� जजमम� क% उक प�ल�� ककय� ज�� क� उप��न� पत��द�गण द�� व�कय पत क� त�षप�द� � प(ज.य� �ह�( क�� कबज� �ह�( सJप�� प� ��द�गण त�यम��स�� नय�य�लय क� म�धयम स� व�कय पत क� त�षप�द� ए�( प(ज.य� क�� सक# ग� �G� ईज��य क� जर�य� त�यम��स�� कबज� प�प क�� क� हकद�� हQग�।

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6- ��द�गण इस ��द क� खर�* पत��द�गण स� प�प � क�� क� हकद�� हQग�।

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उक अ��स�� डXक% पर�* म�त�*ब ककय� ज��।

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sd/-

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Being aggrieved of the said judgment & decree of specific performance, the present first appeal has been filed and under the directions of the Hon'ble Supreme Court while dismissing the SLP no. 16169/2011 – Ram Singh vs. Bhikam Chand & Anr. On 31/10/2012 to decide the present appeal expeditiously, the said

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appeal was heard and is being disposed of by this judgment.

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The said SLP was filed by the defendants against the interim order passed by this Court on 15/4/2011 rejecting the stay application filed by the appellant-defendants in the present case by the detailed order, which is quoted below for ready reference:-

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“Heard learned counsel for the parties.

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This first appeal filed against the decree dated 12.08.2009 is pending for admission for more than one year. Therefore, since Mr.J.R.Patel filed caveat on behalf of the respondents-plaintiffs, both the learned counsel addressed the court at some length for admission and grant of interim relief in the present appeal. The first appeal deserves to be admitted.

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Admit.

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Fresh notices need not be issued as the respondents-plaintiffs are already represented.

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Learned counsel for the defendants-appellants, Mr. GR Singhvi vehemently submitted that the execution of the decree of specific performance by execution of sale deed in respect of 28 bighas of agricultural land agreed to be sold @ Rs.51,000/- per bigha deserves to be stayed during the pendency of this first appeal of defendants. He submitted that as per clause (5) of the agreement in question dated 28.10.1989(Ex.2) since the respondents-plaintiffs did not meet and pay the expenditure incurred in litigation for perfecting the title of the defendants up to Supreme Court of India, therefore, they cannot be said to have shown readiness and willingness to perform their part of contract and, therefore, the

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decree of specific performance could not have been passed in their favour, which is a discretionary relief as per Section 20 of the Specific Relief Act. He also submitted that the suit itself was barred by limitation and, therefore, the decree has been passed wrongly in their favour.

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On the other hand, Mr. JR Patel, learned counsel appearing for the respondents-plaintiffs submitted that the learned trial court, in the impugned judgment and decree dated 12.08.2009, has directed the balance amount of Rs.11,01,450/- of the consideration to be deposited within one month, as Rs.3,75,000/- had already been paid to the defendants. Out of the said amount of Rs.3,75,000/-, a sum of Rs.2,00,000/- was paid to the original defendant-seller Ghasi Ram, father of the present appellants-defendants on 28.10.1989 at the time of execution of the agreement and remaining Rs.1,00,000/- was paid on 08.04.1992 and Rs.75,000/on 28.09.1993 for confirmation of the said agreement by the present defendants, the legal representatives of said Ghasi Ram. He submitted that the learned trial court, even though no such amount of litigation was ever specified by the defendants-appellants, has directed Rs.1,00,000/- to be paid on this account and further a sum of Rs.5,98,550/- towards the increase in the prices of the land and thus a total sum of Rs.18,00,000/- directed to be deposited within one month has already been deposited by the respondents-plaintiffs with the learned trial court .

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He submitted that the respondents-plaintiffs are also ready to execute the sale-deed for the plot of land of 50'x50' free of cost as per clause (9) of the agreement dated 28.10.1989 as directed in para No.4 of the operative part of the judgment.

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He has further submitted that the respondents- defendants are trying to wriggle out of the agreement only on account of escalation of prices of the land in question , which he submitted is no ground to deny the decree of specific performance to the respondents-plaintiffs. He also submitted that the respondents-plaintiffs have always been ready and willing to perform their part of contract and not only the plaintiffs reimbursed some cost of litigation but since no amount was ever specified by the defendants in terms of Clause (5) of the agreement, he has willingly deposited a sum of Rs.1,00,000/- as directed by the learned trial court.

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He further urged that in the reply filed to the stay application under Order 41 Rule 5 CPC, the respondents-plaintiffs have further undertaken in para No. 4 that the respondents-plaintiffs would deposit a sum of Rs.10,00,000/- every year till the present first appeal filed by the appellantsdefendants is decided by this Court and in case the appellants-defendants succeed in this appeal, the respondents-plaintiffs would not claim refund of the said amount and this undertaking is given to show the bonafides of the respondents-plaintiffs in addition to readiness and willingness established by them before the learned trial court and, therefore, the decree passed by the learned trial court in their favour is not required to be stayed by this Court.

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On the aforesaid conditions, he also submitted that the amount of Rs.18,00,000/- deposited by the respondents-plaintiffs in the trial court may also be disbursed to the appellants-defendants subject to the usual undertaking. He also submitted that the execution of the sale-deed in their favour and handing

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over the possession of the land in question in pursuance of the decree under appeal would obviously remain subject to final decision of this first appeal. However, on equitable consideration, the execution of the sale deed in favour of plaintiffs deserves to be made on the conditions imposed by the learned trial court and further undertaking given by plaintiffs to deposit Rs.10,00,000/- per year during the pendency of this first appeal.

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I have given my thoughtful consideration to the rival submissions made at the Bar of stay application under Order 41 Rule 5 CPC.

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It is true that a decree of specific performance is a discretionary relief but nonetheless mere escalation of prices of land, which happens during the length of litigation is a natural phenomenon and that cannot be a ground to deny the relief to the respondents-plaintiffs of specific performance. This Court in Lahiri Vs. Prem Prakash [AIR 2007 Raj.85], following the Supreme Court decision in P.C.Verghese's case [(2005) 8 SCC 486] and Continental Construction Co.Vs.State of M.P. [(1988) 8 SCC 82] on this aspect, has already held to this effect. In the present case, the respondents-plaintiffs appear to have not only paid the advance against the consideration agreed by them right at the time of execution of the agreement but the learned trial court has even given clear finding in their favour that they were ready and willing to perform their part of contract. The fact that the respondents-plaintiffs have immediately deposited a sum of Rs.18,00,000/- as directed by the learned trial court, which includes not only a sum of Rs.1,00,000/- towards litigation expenditure but also a sum of Rs. 5,98,550/- against

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the escalation of land prices . It appears that the respondents-plaintiffs have not only been ready and willing to perform their part of the contract but have also readily complied with all the conditions imposed by the learned trial court. The further undertaking of the respondents-plaintiffs to deposit a sum of Rs.10,00,000/- per annum during the pendency of this appeal, which of course is subject to final decision of this appeal of the respondents-defendants further shows their bonafides. Even though, the execution of the decree under first appeal is normally stayed where the defendants can be said to have a strong prima facie case for denying the decree of specific performance, in the present case, however, this Court is of the view that the main substance of the arguments of learned counsel for the appellantsdefendants is that since the respondents-plaintiffs failed to reimburse the litigation expenses for perfection of title of the appellants-defendants, therefore, it should be inferred that they were not ready and willing to perform their part of the contract, does not inspire much of the confidence specially when the appellants-defendants never specified any such cost of litigation, which the respondents-plaintiffs refused to failed to reimburse. On the other hand, as noted above, the respondents-plaintiffs have more than once established their bonafides in the matter by not only depositing the decreetal sum as directed by the learned trial court but has also given further undertaking to deposit a sum of Rs.10,00,000/- per annum subject to final decision of this appeal.

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Therefore, in these circumstances, this Court is not inclined to stay the execution of the decree under appeal during the pendency of this appeal .

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In these circumstances, while rejecting the stay application of the appellants-defendants, this court gives liberty to the appellants-defendants to withdraw the said deposited sum of Rs.18,00,000/- by the respondents-plaintiffs upon furnishing of the undertaking that such withdrawal will remain subject to the final decision of this appeal and it is further directed that the respondents-plaintiffs shall also deposit a sum of Rs.10,00,000/- every year commencing from 2011 before the end of June every year with the learned trial court in pursuance of their aforesaid undertaking given in para No.4 of the reply to the stay application under Order 41 rule 5 CPC with the trial court, which deposit shall remain subject to final decision of this Court of the present appeal . The said deposit will, however, not be withdrawn by the appellants-defendants during the pendency of this appeal.

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The stay application of the appellant-defendants is accordingly rejected with the aforesaid directions.

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List the appeal itself for hearing along with the record of the trial court.”

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The Hon'ble Supreme Court had also referred the matter during the pendency of the aforesaid SLP for mediation vide earlier order dated 2/11/2012 to a retired Judge of this Court but mediation also appears to have failed and, therefore, the appeal was contested on merits by both the learned counsels.

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The learned counsel for the appellant-defendants, Mr. Jitendra Chopra mainly urged that the decree of specific performance given

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by the learned trial court against the present appellant-defendants cannot be sustained because the plaintiffs failed to comply with the conditions of the Agreement to Sell dated 28/10/1989 and 8/4/1992, as they failed to support, pursue and finance the litigation for clearing the title of the defendants Ghasi Ram & his son Ram Singh, the present appellant, in respect of the suit land and secondly the plaintiffs also failed to pay the remaining consideration with the stipulated time frame of two months and, therefore, the agreements could not be directed to be specifically performed and that the plaintiffs could be compensated in terms of money by refund of money, even though with interest.

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Mr. Jitendra Chopra also pointed out that actually the father of the appellant-defendant-Ram Singh, Mr. Ghasi Ram had taken loan for marriage of his son from the plaintiff's father Ram Jeevan and the said agreement was got executed by the plaintiffs from Ghasi Ram, who was engaged in the business of sale and purchase of lands only.

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Mr. Jitendra Chopra, relying upon the case laws which are referred to hereinafter, therefore, contended that on the basis of evidence, the plaintiffs were not entitled to the grant of decree of specific performance and the present appeal of the defendants deserves to be allowed.

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On the other hand, Mr. Suresh Shrimali, Mr.Sundeep Bhandawat and Mr. Ashok Patel appearing for the plaintiffrespondents vehemently opposed the submissions made by the learned counsel for the appellants, Mr. Jitendra Chopra, and submitted that the learned trial court painstakingly has appreciated each and every piece of evidence led before it and in the present case the Agreement to Sell twice over entered into by the father and son duo, Ghasi Ram and Ram Singh, proved that the defendants having agreed to sell the agriculture land in question only subject to the condition of clearing of their title and once the same was cleared in 2003, they immediately offered to pay the balance amount of consideration but since the defendants refused to execute the sale deed, the plaintiffs filed the present suit for specific performance. Learned counsels for the plaintiffs also submitted that the plaintiffs had always pursued and supported the defendants in the litigation with regard to this suit land which was pending in the courts of law and drawing attention of the court towards the various orders, they submitted that from time to time the plaintiffs also paid the litigation expenses including lawyers fees in this respect and, therefore, it is wrong to contend that the conditions of Agreement to Sell were not fulfilled by them.

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Learned counsel for the plaintiffs also submitted that if some expenses were incurred by the defendants with respect to same litigation, they never put the plaintiffs to notice and details thereof for claiming reimbursement of expenses, which could also be paid to

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them during the relevant time. Mr. Suresh Shrimali, also submitted that the trial court has specifically allowed a sum of Rs.1 lac to be paid to the defendants towards such litigation expenses, besides giving the increase in the price on account of escalation of cost to the extent of Rs.5,98,550/- in the impugned order, besides transferring a plot of land of 50'x50' situated at Rawti Chandpole, Thana Road free of cost to the defendants and, thus, these additional conditions, which have also been complied by the plaintiffs and/or the plaintiffs are ready and willing to comply with the same, besides the additional conditions imposed in the interim order dated 15/4/2011, imposed by this Court and, therefore, there is no justification in refusing the specific performance of the contract in favour of the plaintiffs which has been given by the court below and present first appeal of the defendants deserves to be dismissed.

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Learned counsels for the plaintiffs also submitted that the intention of the defendants changed because of the escalation of prices over the long period, which is a normal phenomenon over the period of time but that cannot be a ground to refuse the specific performance of the contract and he also relied upon several judgments in this regard in support of their contentions, which are also being referred to hereinafter.

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I have heard the learned counsels at length and perused the record and appreciated the evidence led before the trial court and the judgment under appeal and judgments cited at the bar.

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Before proceeding further, it would be relevant to reproduce both the Agreements to Sell in question, namely; first Agreement to Sell dated 28/10/1989 executed by the father Ghasi Ram and the subsequent Agreement to Sell executed on 8/4/1992 by son Ram Singh, the present appellant-defendant.

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" इक�� म�

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इक�� म� एक म# घ�स.��म प�त श. प��प ज., ज�त� म�ल�, आय� स�ल, त��स. स6�स�ग� �हस.ल � जजल� ज<धप � �ह�� ल�, ज< अब आग� पकक�� मब� (1) क� ��म समब<धध� ककय� ज�य�ग�, ��,

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x बहक x

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श. भ.कमरनद प�त श. ��मज.�� ज., ज�त� मह�श�� ब6ब, आय� 23 स�ल, त��स. ज<धप � रठक�� स�द��प � � ब. �<X, (2)- श. अरण क�म�� प�त श. सतय��यण ज., आय� 30 स�ल, ज�त� ब�हमण हष*, त��स. ज<धप � रठक�� ज�ल<�� ग�ट क� ब�ह� �ह�� ल�, ज< अब आग� पकक�� मब� (2) क� ��म स� समब<धध� ककय� ज�य#ग� क�, ��ह�� कम.ल क� द � � हd6 कक:-

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1)यह कक ग�म स6�स�ग� �हस.ल � जजल� ज<धप � म# त�म� खस�� क% क�श� क% आ��ज. ह" जज� खस�� क� व��ण �.र� द�ज ककय� ज� �ह� ह" जजस खस�� क% आ��ज. क� म � �बबक म�झ पकक�� मब� (1) द�� ख��द�� हक�क ह�मसल क�� क� मलय� एक ��द नय�य�लय उप जजल�ध.श, ज<धप � म� ��जस� ��द स(खय� 168/1964 क� द�य� ककय� गय� G� औ� जजसक% डXक% म�झ पकक�� मब� (1) क� हक म# ख��द�� हक रदय� ज�� ह � � रद��(क 14-2-72 क< प�र�� क% गई G. औ� जजसक% कफ� ��जय स�क�� द�� जस� अप.ल अधधक�� क� समक अप.ल �मब� 43/1972 क� द�य� क% ज�� प� रद��(क 22/11/1972 क< �ह अप.ल ख�र�ज क� द� गई जजसक� कफ� स�ककणX अप.ल ��जस� मणXल अजम � म# ��जय स�क��

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द�� मब� 22/73 ज<धप � द�य� क% गई जजसक� त�णय रद��(क 22/2/1978 क< ��जय स�क�� क� हक म# ह< ज�� प� म�झ पकक�� (1) द�� एस०ब.०मसव�ल र�ट, ��जसG�� उचर नय�य�लय म# �मब� 159/78 क� द�य� क% ज�� प� उसक� त�णय म�झ पकक�� मब� (1) क� हक म# रद��(क 15-7-85 क< क% ज�क� पत��ल� प � : र�म�णX क% गई जजस प� ��जस� मणXल अजम � द�� अप.ल डXक% कम�(क 22/73 ज<धप � म# त�णय रद��(क 27-9-86 क< म�झ पकक�� मब� (1) क� खखल�फ रदय� ज�� प� उसक% र�ट उचर नय�य�लय ज<धप � म# कम�(क 2393/86 क% ज�� प� रद��(क 5-12-1986 क< उक र�ट क� त�णय म�झ पकक�� मब� (1) क� खखल�फ क� रदय� ज�� प� म6� उचर नय�य�लय, ज<धप � म# X.०ब.० म# र�ट कम�(क 297/87 क� द�य� क� �ख. ह" औ� जजस म# असG�ई त�ष�ध�ज� रद��(क 2-5-89 क< ह�मसल क� �ख. ह"।

¶99

2)यह कक यह त�म� व��ण ��ल� क�श� क% आ��ज. म�झ पकक�� मब� (1) क� कद�म. कबज� क�श� क% उप�<क ��क� स� त��न�� ब � <कट<क रल� आ �ह� ह" औ� जजसक� समबनध म# उप�<क ��क� स� क��6�. क�य*��रहयQ भ. वपछल� क�फ% समय स� त��न�� रल �ह� ह"।

¶100

3)यह कक अब इ� खस�� क% क�श� क% आ��ज. म# ��म�� म# म�झ पकक�� मब� (1) क� जजस कद� हक हक6 म स��ममत� दखल � अधधक�� ह" �< म/ आपक< रपय� 51,000/- इकय�� हज�� रपय� पत�ब.घ� क� रहस�ब स� त�म� श��य�< क� आज रद� ब�र�� क�� य क�� हd6 �G� इस आ��ज. क% अजन�म त�णय म�झ पGम पकक�� क� हक म# ह�� प� ब�र�� क� द6Sग�, ओ� आप पकक�� मब� (2) भ. इस त�म� व��ण क% आ��ज. � ब � � क< � उसक� हक6 क< क< ख��द क�� स�.क�� क�� ह" जज�क% श��य�� त�म� पक�� ह" :-

¶101

4)यह कक यह त�म� व��ण क% आ��ज., ब � � � इसक� म � �बबक म � � जजस कद� हक6 म ह" �< रपय� 51,000/- क� बदल पकक�� पत� ब.घ� क% द� स� ल � � � द � � �यह क�� ह" औ� जजसक� फलस�रप पकक�� मब� (2) �� पकक�� मब� (1) क< रपय� 2,00,000/अख�� रपय� द< ल�ख म�त आज रद� अद� क� रदय� ह" ज< पकक�� मब� एक क< प�प ह< ज�� स�.क�� म�नय ह"।

¶102

5)यह कक इ� आ��ज. मजक�� क� समबनध म# उप�<क ��क� स�

¶103

SBC First Appeal No.469/2009 Ram Singh & Ors. vs. Bhikam Chand & Ors. Judgment dt: 28/1/2015

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¶105

ख��द�� हक6 क< क� समबनध म# वपछल� क�फ% लमब� समय स� म�झ पकक�� मब� (1) द�� त��न�� पक य� व�पक म# क% ज��. �ह� ह" औ� आज भ. ��म�� म# उचर नय�य�लय म# उप�<क ��क� स� क��6�. क�य��ह� ज � �ज�.ज ह"। अ�: अब आज स� इस आ��ज. मजक�� क� जजस कद� भ. क��6�. क�य*��ह� रल �ह� ह" �ह क��6�. क�य*��ह� अG�� इस आ��ज. मजक�� क� समबनध म# आज क� ब�द स� भव�षय म� जजस ककस. भ. नय�य�लय म� ककस. भ. स.ग� म# ज< भ. क��6�. क�य*��ह� म�झ प� पकक�� मब� (1) क� पक य� व�पक म# ह<ग. य� क�� क% आ�शयक�� ह�ग. �< �ह �म�म ��म�� क% � भव�षय क% क��6�. क�य��रहय< क< क�� क� मलए उसक� मलय� उधर� � म�क�ल प"��. क�� क� मलय� आप पकक�� मब� (2) प6ण*�य� जजमम � �� ह�ग� औ� अब स� क��6�. क�य*��ह� म# जजस कद� भ. ख�र� लग�ग� �ह भ. �म�म पकक�� मब� (2) द< जजमम� �ह�ग� आप अप�. स�व�ध� अ��स�� क%ल, एX�<क�ट आरद म�क�� क� सक�ग# म/ क��6�. क�य*��रहयQ म/ अप�. ��फ ह�जज� ह<�� क� मलय� � हस��क� क�� क� मलय� ह� �क जजमम � �� ह6ग� अब क��6�. क�य*��ह� म# म/ ककस. पक�� ख�र� क�� क� मलय� जजमम � �� ह�( �हd6ग� �म�म ख�र� क% जजमम � �� पकक�� मब� (2) क% ह� �ह�ग.। 6)यह कक ज< क��6�. क�य*��ह� रल �ह� ह" य� भव�षय म# भ. ज< भ. क��6�. क�य*��ह� ह<ग. उसम� ह<�� ल� अजन�म त�णय स� अप�� द<�< ह� पकक�� जजमम � �� प�बनद �ह�ग�। 7)यह कक रल�� ल� क��6�. क�य��ह� म# ककस. भ. स�� प� ��ज.��म� क�� क� � उसक� मलय� आ��ज. मजक6 � क� क�तफल कम ब�स. क�� क� अधधक�� द<�< क% पकक�� मब� (1) � (2) क< सजमममल� �E� प� �ह�ग� अG��l ��ज. ��म� द<�< ह� पक आपस. सहमत� स� ह� क��ग� ज< द<�< ह� पकक�� क< म�नय ह<ग�। 8)यह कक इस ��ह स� बबल आखख� क��6�. क�य��ह�य� सम�प ह< ज�� प� म�झ� ख��द�� हक6 क प6ण* रप�ण � क��6�. �E� स� ह�मसल ह< ज�� प� आप पकक�� (2) क� हक म# द�ब�� इक�� म� अG�� उधर� ज"स� भ. दस��ज आप पकक�� मब� (2) अप�� म प� अG�� अनय द�ग� ��म� स� भ. क�� र�ह�ग� �"स� क�� सक�ग# जजसक� मलय� म/ पकक�� मब� (1) क<ई ए��ज य� आपवm �ह�( क� सक6( ग�।

¶106

SBC First Appeal No.469/2009 Ram Singh & Ors. vs. Bhikam Chand & Ors. Judgment dt: 28/1/2015

¶107

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¶108

9)यह कक पकक�� मब� (2) पकक�� मब� (1) क< एक भ6खणX स�इज 50x50 क� ��ट� रnदप<ल G�� <ड प� त�:श�लक द�ग�।

¶109

10)यह कक प6ण* रप�ण क��6�. �E� स� पकक�� मब� (1) क< ख��द�� हक�क प�प ह< ज�� औ� उसक� ब�द यरद आ�शयक�� अ��स�� मसमसल(ग क% क� क�य*��ह� क� अ��ज� य� स�.कL त�/पम�ण पत ह�मसल क�� ह< �< ह�मसल ह< ज�� प� उसक� द< म�ह क� अनद�-अनद� पकक�� मब� (2) उप�<क रहस�ब स� बक�य� पत�फल क% र�क�. अद�यग. क� द�ग� औ� अप�. स�व�ध� अ��स�� उधर� दस��ज य� मलख� पढ� आद� भ. त�षप�रद� क�� ल�ग#।

¶110

11)यह कक बबल आखख� जब पकक�� मब� (1) अप�. इस आ��ज. क� ख��द�� घ<वष� क� रदय� ज�य�ग� �ब इस आ��ज. मजक�� क% मEक� प� �प�ई क��ल� ज�य�ग. �G� मEक� क% �प�ई क� अ��स�� G� ��जस� अमभल�खQ क� अ��स�� इ� द<�< म� स� ज< भ. कम क�त�ल क� ह<ग� उसक� अ��स�� ह� पकक�� मब� (2) उप�<क श��य�< क� अ��स�� ब�र�� पत�फल अद� क��ग�।

¶111

12)यह कक यरद आयक� अधधत�यम क� अन�ग*� पम�ण पत ह�मसल क�� क% आ�शयक�� ह�ई �< �ह ह�मसल क�� क% जजमम � �� पकक�� मब� (1) क% ह" � �ह�ग. ओ� उसम# ज< ख�र� लग�ग� �ह पकक�� मब� (1) क� जजमम� �ह�ग� औ� इसक� मस��य ककस. पक�� क% क<ई भ. अ��ज�, आज�, सहमत� आरद ह�मसल क�� क% आ�शयक�� ह�ई �< उसम# लग�� ल� �म�म ख�र� पकक�� मब� (2) क� जजमम� �ह�ग� औ� पकक�� मब� (1) मसफ* हस��क� क�� क� मलय� य� वयडक रप स� ह�जज� ह<�� क� मलय� जजमम � �� ह�ग�।

¶112

13)यह कक रल�� ल� क��6�. क�य*��रहय� म# बबल आखख� ककनह� क��णQ स� यह आ��ज. मजक�� क� ख��द�� क� हक�क म�झ पकक�� मब� (1) क< ह�मसल �ह�( ह< प�� ह" अG�� म क��6�. �E� प� ��जय स�क�� द�� आ��ज. मजक�� प� स� मEक� प� स� ब�दखल क� रदय� ज�� हd6 �< ऐस. जसGत� म# म/ पकक�� मब� (1) आप पकक�� मब� (2) द< क< आपस� आज रद� प�प ककय� ह�ए रपय� 2,00,000/- ��वपस अद� क�� क� मलय� जजमम � �� ह�( �ह�(ग� �G� � ह� म/ पकक�� मब� (1) आज स� आप पकक�� मब� (2) द�� इस आ��ज. क� समबनध म# क��6�. क�य*��रहय� म# ह<�� ल� ख�र� क< ह� ��वपस अद� क�� क� मलय� जजमम � �� ह�(ग�।

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SBC First Appeal No.469/2009 Ram Singh & Ors. vs. Bhikam Chand & Ors. Judgment dt: 28/1/2015

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¶115

14)यह कक आ��ज. मजक�� प� आज रद� मEक� प� कबज� क�श� म�झ पकक�� मब� (1) क� रल� आ �ह� ह" औ� आप पकक�� मब� (2) द< क< भव�षय क% क�� . क�य*��ह� क< क�� म# � कबज� क� समब�ध म# � ब � � आरद क� उपय<ग क� समबनध म# इस आ��ज. मजक�� क� द�खखल ह<�� क% अG�� कबज� क�श� आरद क% पम�खणक�� आरद ब�� क% आ�शयक�� ह�ई �< आप पकक�� मब� (2) अG�� आपक� पत�त�धध अधधकL � वयडक य� �Eक� आरद भ. आ��ज. मजक�� म# प��श आरद क� सक�ग� औ� अप�� कबज� ह<�� आरद ह<�� भ. अG�� म#�� कबज� ह<�� आरद भ. पम�खण� क�� सक�ग�। आ��ज. मजक�� क� कबज� प � � भ�ग�� रद�.य पकक�� द�� पGम पकक�� क< अद� क�� प� स�प�द* ककय�।

¶116

15)यह कक यरद कक�ह� क��णQ स� अजन�म त�णय पकक�� मब� (1) क� खखल�फ ह< ज�� ह" औ� जजसक� ब�द क<ई भ. क��6�. उपर�� ह�( बर�� ह" औ� ऐस. जसGत� म# भ. अग� पकक�� मब� (2) इस जम.� क� उपय<ग क�� र�ह�ग� �< �ह पकक�� मब� (1) क< रपय� 51000 इक�� हज�� रपय� पत� ब.घ� क% द� स� भ�ग�� इस जम.� क� ब�र�� क�� सक�ग� मग� यह आ��ज. उस ह�ल� म# �ख�� य� � �ख�� क� अधधक�� पकक�� मब� (2) क< ह� �ह�ग� पकक�� मब� पकक�� मब� (2) क< ब�धय �ह�( क� सक�ग�। 16)यह कक द<�< पकक�� इस इक�� म� क% श��य�< क% प�ल�� क�� क� मलय� जजमम � �� प�बनद ह" � �ह#ग� औ�क<ई भ. पकक�� इस इक�� म� क% श��य�< क% खखल�फ �जp �ह�( क� सक�ग� औ� खखल�फ �जp क�� प� ह� द6स�� पकक�� क< क�� . क�य��ह� क�� क�, अप�� य�क�� ह�ज� ख�ज� � ��कस�� स�ल क�� क� � द�द�स. ख�स ह�मसल क�� क� अधधक�� ह�ग� जजसक� �म�म ख�र� डXफ�लट�(ग पकक�� क� जजमम� �ह�ग�।

¶117

17)यह कक जजस आ��ज. क� समबनध म# यह इक�� ककय� गय� ह" उसक� व��ण त�म� पक�� ह"।

¶118

ग�म स6�स�ग� �हस.ल � जजल� ज<धप � म# आई ह�ई ह" खस�� मब� 821, 822, 823, 824 � खस�� मब� 827 � खस�� मब� 827/1 क% क�ल लगभग 32 ब.घ� क% आ��ज. � इ�म# ब�� ह�ए �.�Q ह� क�ऍ मग� इस आ��ज. म# स� 3 ब.घ� क% भ6मम ज< व�ध�श�ल सक6 ल क� कबज� म� ह" क< छ<डक�।

¶119

SBC First Appeal No.469/2009 Ram Singh & Ors. vs. Bhikam Chand & Ors. Judgment dt: 28/1/2015

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¶121

मलह�ज� यह इक�� म� द<�Q ह� पकक�� अप�. ��ज. ख�श. स� अ�ल ह<मशय�� ह<श ह��स द � स�. क% ह�ल� म# स<र समझक� मलख रदय� ह" ज< सह� स�द �ह� औ� �क जर�� क� क�म आ��।

¶122

फक� ��ख 28.10.1989

¶123

हस��क� पकक�� मब� (2) हस��क� पकक�� मब� (1)

¶124

I स�ख 1 म# रपमस(ह s/o घ�स.��म रठ. रnदप<ल ब�ह� ��लQ क% छ" घ�स.��म ज. क� क�ण� स� घ�ल� छ"। J

¶125

K रपमस(ह L

¶126

M स�ख 2 द�ग�*ल�ल s/o म�ग.ल�ल ज. रठ. ��ट� �<X स6�स�ग� ज<धप ��ल� क% छ" घ�स.��म ज. क� क�ण� स� घ�ल� छ"। N

¶127

P द�ग�*ल�ल Q

¶128

R स�ख 1 प��स ब<G�� प�त �� म<ह�ल�ल ज. ब<G�� स�कक� त�� क% ह"। ध�स.��म ज. क� कह�� स� X�ल� ह"। S

¶129

T प��स ब<G�� U”

¶130

Second Agreement dated 8/4/1992

¶131

"इक�� म�

¶132

इक�� म एक म# ��ममस(ह प�त श. घ�स.��म ज., ज�त� म�ल� आय� 41 स�ल, बह�मसय� ख�द � बह�मसय� म�खतय�� स�* श.,

¶133

1)श.म�. क�� द � . पमr श. घ�स.��म ज., आय� 86 स�ल, त��स. ज<धप � रठक�� ट�, �<ड स6�स�ग� �ह�� ल�, 2)श.म�. कमल� द � . पमr श. भ<ल��म ज., ट�क, आय� 66 स�ल, त��स. ज<धप � रठक�� अमब� क� ब�ग स6�स�ग�,

¶134

3)श.म�. छ<ट� द � . पमr श. म6ल��म ज., म�ल� आय� 46 स�ल, त��स. ज<धप � रठक�� प<सट ओकफस क� स�म�� स6�स�ग�, 4)श.म�. दमयन�. द � . पमr श. जयल�ल ज., म�ल� आय� 36 स�ल, त��स. ज<धप � रठक�� र�नदप<ल क% ब��, र�नदप<ल, 5)श.म�. आर�क% द � . पमr श. ब�ब6ल�ल ज., म�ल� आय� 33 स�ल, त��स. ज<धप � रठक�� अख � �ज ज. क� ��ल�ब,

¶135

SBC First Appeal No.469/2009 Ram Singh & Ors. vs. Bhikam Chand & Ors. Judgment dt: 28/1/2015

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¶137

6)म(गलमस(ह प�त श. ��ममस(ह ज., आय� 23 स�ल, त��स. ज<धप रठक�� स6�स�ग� म# �ह�� ल�,

¶138

7)श. धम�नs मस(ह प�त ��ममस(ह ज., ज�त� म�ल� आय� 20 स�ल, त��स. ज<धप � रठक�� स6�स�ग� म# �ह�� ल�, ज< आग� पकक�� मब� (1) क� ��म स� समब<धध� ककय� ज�य�ग�, ��,

¶139

x बहक x

¶140

श. भ.कमरनद प�त श. ��मज.�� ज., ज�त� मह�श�� ब6ब आय� 24 स�ल, त��स. ज<धप � रठक�� स�द��प � � ब. �<ड प� �ह�� ल�,

¶141

2)श. अरण क�म�� प�त श. सतय��यण ज., आय� 31 स�ल, ज�त� ब�हमण हष* त��स. ज<धप � रठक�� ज�ल<�� ग�ट क� ब�ह� �ह�� ल� ज< अब आग� पकक�� मब� (2) क� ��म स� समब<धध� ककय ज�य�ग�, क�,

¶142

��ह�� कम.ल क� द � � ह" कक :-

¶143

1)यह कक ग�म स6�स�ग� �हस.ल � जजल� ज<धप � म# खस�� मब� 821/822/823/824 � खस�� म ब� 827/1 क% क�ल लगभग 32 ब.घ� क� क�स� क� आ��ज. � उसम# ब�� ह�� .� क�ऍ आरद स�गpय श. घ�स.��म ज. क% ममलयक�. क% कबज� क�स� क% कज.म. आई ह�ई ��क� G. जजसक� म � �बबक उ�क% ओ� स� ख��द�� हक6 क सकम नय�य�लय म# ��द भ. व�र��ध.� ह" ज< आ��ज. � इसक� हक6 क स�य( श. घ�स.��म ज., द�� आप पकक�� मब� (2) क< ब�र�� क�� क� इक�� ककय� ज�क� एक इक�� म� उ�क� द�� आपक� हक म# ��ह�� कम.ल भ. क� रदय� गय� G�।

¶144

2)यह कक श. घ�स.��म ज. क� स�ग*��स रद��(क 25-1-1991 क< ह< र�क� ह" औ� उ�क� ��र�स�� क�यम म�क�म म# म/ ��ममस(ह उ�क� प�त, श.म�. बख�� द � . उ�क% धमपमr �G� श.म�. कमल�, छ<ट�, दमयन�., आर�क% उ�क% प�बतय�� म(गलमस(ह � धम@नs मस(ह उ�क� प�त ह" औ� उ�क� कबज� क�स� क% आ��ज. प� उ�क� स�ग��स क� ब�द स� हम ह� बह"मसय� म�मलक क� क�बबज रल� आ �ह� ह/ औ� हम# श. घ�स.��म ज. द�� ककय� गय� आपस� इक�� क% प6ण*�य� ज��क�� ह" औ� हम�� भ. उसम# सहमत� � स�.कL त� ह" औ� हम पकक�� (. (1) स�. श. घ�स.��म ज. क� ��र�स�� ह", श. घ�स.��म ज. क� द�� ककय� गय� इक�� क< म(ज6� � स�.क�� क�� ह"

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औ� उसम# दज* श��य�< क� अ��स�� म�म क�य*��ह� आरद क�� क� मलय� हम जजमम � �� भ. ह" औ� उसस� सहम� भ. ह/।

¶148

3)यह कक श. घ�स.��म ज. द�� त�षप�रद� इक�� म� क< ह� अजस�त� म# �ख�� ह�ए आज रद� यह उसक% समप�वष म� यह इक�� म� आप पकक�� (. (2)क� हक म# ��ह�� कम.ल क� रदय� ह" औ� म6ल इक�� क% श��य�Q क< यG�� ख�� ह�ए हम�� आज रद� रपय� 1,00,000/-अख�� रपय� एक ल�ख आप स� औ� प�प क� मलय� ह" ज< हम� प�प ह< ज�� म�नय � स�.क�� भ. ह/।

¶149

4)यह कक म/ ��ममस(ह उप�<क पकक�� (. (1) क� बक�य� सभ. सदसयQ क� म�खतय�� ह6( औ� उनहQ�� अप�� स�* अधधक�� द � � ह�ए एक अधधक�� पत भ. म � � हक म# रद��(क 8-2-91 क< ��ह�� कम.ल क� उस� उप प(ज.यक, ज<धप � स� उस. रद� प(ज.य� क�� क� द� �ख� ह" ज< म�खतय�� म� रद��(क 8-2-91 क< उप-प(ज.यक क�य�लय (रद�.य), ज<धप � म# कम�(क 118 प� दज �जजसट� ककय� गय� G� ज< म�खतय�� म� आज रद� �क क�यम ह" औ� जजसक< कभ. क�नसल, ��म.म � म(स�ख आरद �ह�( ककय� गय� ह" औ� यरद यह ब�� असतय त�कल� �< इसक% जजमम � �� म � � �ह�ग. औ� उस अधधक�� पत द�� रदय� गय� अधधक��Q क% रह स� यह इक�� म� � समप�वष पत म�झ ��ममस(ह �� उ�क� मलय� � उ�क% ओ� स� भ. ��ह�� कम.ल क� रदय� ह" अ�: म6ल इक�� क% हम पकक�� (.(1) कभ. खखल�फ�जp �ह�( क� सक# ग� औ� अज रद� रपय� 1,00,000/- अख�� रपय� एक ल�ख प�प क�� क% समप�वष म# यह इक�� म� सहमत� पत � समप�वष पत �कम प�प ह<�� क% ब�E� �स.द भ. आपक� हक म# ��ह�� कम.ल क� द� ह" ज< सह� स�द �ह� � �क जर�� क�म आ�� ज< हम�� हम�� ह<श ह��स म# द�रस�. क% ह�ल� म# स<र समझ क� मलख द� ह/।

¶150

इत�:- 8-4-92

¶151

(��ममस(ह)

¶152

बह"मसय� ख�द � बह"मसय� म�खतय�� श.म�. बकम��, कमल�, छ<ट�, आर�(क% दमयन�. द � ., म(गलमस(ह, धम@नsमस(ह

¶153

(��ममस(ह()”

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¶156

From the above two agreements, the validity or the execution of which is not even in dispute, it stands out that both the father and son; Ghasi Ram and Ram Singh, had intended to sell the agricultural land in question to the plaintiffs – Bhikam Chand s/o Ram Jeevan. Admittedly, part of consideration was also received by them at the time of execution of agreement. The only contention which is now sought to be raised against the decree of specific performance is that the litigation expenses were not met or paid by the plaintiffs during the contemporary period. From the evidence on record of both the parties, namely; Ram Singh & Bhikam Chand, which was read in extenso before this Court by the learned counsels also, it is clear that the plaintiffs never refused to pay the said litigation expenses but on the other hand, also paid a part of the litigation expenses at their own level even for paying lawyers fees upto Supreme Court, but if some litigation expenses were incurred by the defendants themselves and they never informed the plaintiffs about the payments made by them for this litigation, then the plaintiffs cannot be blamed for the same. There is nothing on record to show that the plaintiffs ever raised any dispute or refused to pay such litigation cost.

¶157

Over the long period for which the litigation continued, though it was not of complex nature and only the mutation entries were to be recorded in favour of the defendants, which were so recorded in the year 2002 only against which the State appeal was dismissed by the Divisional Commissioner on 20/11/2003 , otherwise the suit land in

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question was free from encumbrances and the vacant possession was admittedly with the defendants, but the sheer length of time in the litigation for mutation entries and perfection of title was made upto the Supreme Court also, which all culminated in favour of the defendants only in the year 2003 and the plaintiffs expressed their readiness and willingness to pay the balance amount of consideration also and asked the defendants to get the sale deed registered in their favour, which the defendants did not do, apparently for getting the benefit of the price escalation which took place in the meanwhile since 1989 till 2004, over a period of 15 years and that seems to be at the bottom of the cause of filing the present suit for specific performance by the plaintiffs.

¶161

The readiness and willingness on the part of the plaintiffs to perform their part of the contract is not seriously disputed in the present case and to compensate the defendants in the present case for the litigation expenses, as also for the escalation of prices, the trial court has also compensated the defendants by payment of additional price by the plaintiffs to the defendants. Such bonafides of the plaintiffs are further proved by their undertaking before this Court when the order dated 15/4/2011 was passed, whereby, the plaintiffs undertook to deposit a sum of Rs.10,00,000/- every year from 2011 before the end of June and one such installment of Rs.10,00,000/was deposited by them in the trial court but thereafter on account of SLP filed by the defendants against the said order before the Hon'ble Supreme Court, which was ultimately disposed of by Supreme Court

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on 31/10/2012 directing the High Court to decide the first appeal itself and till then status quo of the property was to be maintained and, therefore, the plaintiffs did not deposit the balance installments of Rs.10,00,000/- for the year 2012, 2013 and 2014, which also upon Court's query, learned counsel for the respondent-plaintiffs submitted that the plaintiffs are ready and willing to even deposit Rs.30,00,000/- before the trial court, if the decree of specific performance is upheld and granted in their favour by this Court. He has also filed an affidavit of plaintiff in this regard.

¶165

Once this Court has come to the conclusion on the basis of evidence on record that there was no lapse on the part of the plaintiffs to pay the litigation expenses and, thus, complied with the conditions of agreements in question, then the question of limitation and belated filing of suit in the year 2004 for the specific performance of the Agreements of the year 1989 and 1992 cannot be decided in favour of the defendant appellants. The tenor of the Agreements to Sell reproduced above clearly show that time was not the essence in the present contract and the performance of the contract itself depended upon the clearance of the title in favour of the defendants, regarding mutation entries in their favour etc.which became final only in the year 2003 with the dismissal of State appeal by the Divisional Commissioner on 20/11/2003 and, thus, after that the plaintiffs admittedly served a notice on the defendants on 16/8/2004 to execute the sale deed and upon their denial to do so, the present suit was filed on 2/11/2004, which cannot be said to be

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time barred being within a period of three years of such denial on the part of the defendants to execute the sale deed. Thus, the issue of limitation also deserves to be decided in favour of the plaintiffs as there is no delay or laches on the part of the plaintiffs in seeking the remedy by way of suit for specific performance in the present case.

¶169

The third limb of the arguments about the escalation of prices, the plaintiffs definitely have a better case than the defendants and the specific performance of the contract cannot be denied, merely on the ground of escalation of prices, which is a normal phenomenon and which happens over the long period for which the plaintiffs cannot be put to blame or any kind of loss or prejudice and that does not vitiate the validity of agreement and readiness and willingness on the part of the plaintiffs, which are the sine qua non factors to be established for the grant of decree of specific performance under Section 20 of the Specific Relief Act, 1963. There are a large number of decisions to support the view of this Court & of the Hon'ble Supreme Court. Some of the judgments are cited below for ready reference.

¶170

One more contention which was feebly raised by the learned counsel for the appellant-defendants, Mr. Jitendra Chopra, may also be dealt with here. Mr. Jitendra Chopra submitted that on the anvil of Section 29 of the Indian Contract Act, 1872, the Agreements, meaning of which is not certain, or capable of being made certain, are void. Mr. Jitendra Chopra submitted that since the title of the land

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in question was not perfect at the time of entering into the Agreement, therefore, there was uncertainty about the Agreement and that renders the contract itself invalid. The said contention is not only unsustainable but is adequately answered by Section 43 of the Transfer of Property Act, 1882, which provides that transfer by unauthorized person, who subsequently acquires interest in property transferred, will also be valid and even if a person fradulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

¶174

Similarly, Section 41 of the Transfer of Property Act, 1882 also permits transfer by ostensible owner and such contracts are not voidable, much less void.

¶175

In the present case, there was no dispute about the title of the defendants nor the validity of the person entering into the contract, Ghasi Ram in the first instance and the defendant son, Ram Singh in the second Agreement and, therefore, the contention raised by the learned counsel for the appellant-defendants is devoid of merit and same is hereby rejected.

¶176

In Nirmala Anand vs. Advent Corporation (P) Ltd. & Ors. - (2002) 8 SCC 146 , the Hon'ble Supreme Court held that grant of

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decree of specific performance lies in the discretion of the Court and it is also well settled that it is not always necessary to grant the specific performance simply for the reason that it is legal or lawful do to so but ordinarily the plaintiff should not be denied relief of specific performance only on account of phenomenal increase in price of land during the pendency of the litigation. That may be, in a given case, one of the considerations besides many others to be taken into account for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for him alone, the entire benefit of such increase in the value of the property during the pendency of the litigation and while balancing the equities, the Court may take into account the undue advantage of one party over the other as also the hardship that may be caused to the defendant by directing specific performance.

¶180

In S.V.R.Mudaliar vs. Mrs. Rajabu F. Buhari – AIR 1995 SC 1607 , the Hon'ble Supreme Court held in para 27 that if merely because prices have risen during the pendency of litigation, the Court was to deny the relief of specific performance if otherwise due, this relief could hardly be granted in any case, because by the time the litigation comes to an end sufficiently long period is likely to elapse in most of the cases. This factor, therefore, should not normally weigh against the suitor in exercise of discretion by a Court in a case of the present nature.

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¶183

In Laxman Tatyaba Kankate & Ors. vs. Taramath

¶184

Harishchandra Dhatrak – (2010) 7 SCC 717 , in para 25 of the judgment, the Hon'ble Supreme Court again reiterated that price increase over the period of time cannot be a ground for denying the decree of specific performance to the respondent and in that case the respondent voluntarily undertook to pay higher price of Rs.1,50,000/- instead of Rs.40,000/- as a total consideration, the Court finding the said offer to be very fair, upheld the decree of specific performance in that case.

¶185

This Court in the case of Lahiri vs. Prem Prakash- AIR 2007 (Raj.) 85 had elaborately dealt with this aspect and categorically held that price escalation cannot be a good ground to deny the specific performance of the contract. Relying upon various precedents from Hon'ble Supreme Court, this Court held as under:-

¶186

“ 7. Shri R.K.Jain, learned opposite counsel however contested its position and relied upon the following judgments in support of his submissions; (i) Continental Construction Co.Ltd. V/s State of Madhya Pradesh (1988) 3 SCC 82, (ii) P.C.Varghese vs. Devaki Amma Balambika Devi and others (2005) 8 SCC 486) and (iii) Rameshwar & Anr. V/s Hakim Mohd. Ibadullah Khan (S.B.Civil First Appeal No.101/1986, decided by this Court on 30.8.2006).

¶187

On the strength of these precedents, the learned counsel contended that mere price increase is no ground to deny the specific performance of the contract by the defendant nor the character of the property being a joint property can sustain such denial.

¶188

8. Having heard learned counsel and upon perusal of the pleadings, evidence and cited case laws, this Court is of the

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opinion that the present appeal has no force and deserves to be dismissed.

¶192

9. This Court while relying on various Supreme Court decisions held in Rameshwar & another v/s Hakim Mohd. Ibdullah Khan's case (surpa) as under:

¶193

“The time elapsing in the litigation in such cases of specific performance is bound to give rise to these kinds of considerations and prices of properties are bound to increase in all towns and cities for a variety of reasons. If the rights of plaintiff were to be defeated only on such considerations under the guise of principles of natural justice, then decree of specific performance cannot be granted in any case. But that is not the law and the law as expounded by the Hon'ble Apex Court in the afore-noted citations is very clear and is contrary to the aforesaid proposition as taken by the learned trial court.”

¶194

10. The Hon'ble Supreme Court in P.C.Varghese's case has held that in view of Section 22(1)(a) of the Specific Relief Act, 1963, the court could grant a decree for partition and separate possession of the property in addition to a decree for specific performance of contract. In the case before the Hon'ble Surpeme Court, the appellant had relinquished his claim in respect of the property belonging to the minor and he also prayed for a decree for partition and such a prayer having been allowed, the Hon'ble Supreme Court held that no exception could be taken to the decree of the learned trial court granting decree for partition and possession besides the decree for specific performance. Relying on this ration, this can be safely held that the defendant Lahiri was entitled to sell his specified and determined 1/4^th share of the property namely agricultural land in question. Therefore, the character of the property to be joint between the four brothers cannot deter this court or even could not have deterred the learned trial court in upholding such decree for specific performance. This is further fortified by the judgment of the Hon'ble Supreme Court in

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Continental Construction's case (supra), wherein the Hon'ble Apex Court observed that a contract is not frustrated merely because the circumstances in which the contract was made stand altered. The Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity. The parties to an executory contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate, a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. There is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous.

¶198

11. In view of this legal position, this court is of the firm opinion that the specific performance of the contract awarded by the learned trial court is neither required to be upset nor reversed merely on the basis of the normal change in the circumstances namely the price difference over the period. So long as the validity and veracity of the Agreement to Sell Ex.1 cannot be successfully assailed on the basis of the principles incorporated in the Contract Act, and which has not been done in the present case, the use of discretion by the courts in favour of the enforcement of valid contract is only fair and is not required to be disturbed.

¶199

12. Consequently, this Court finds no force in this appeal and the same is liable to be dismissed. The defendant shall execute the sale-deed of his 1/4^th share of the agricultural land now within a period of three months from today in favour of plaintiff Prem Prakash who shall pay the remaining amount of consideration of Rs.11,000/- to the defendant at the time of registration of such sale-deed. It is needless to add that if there are bank due against defendant Lahiri with respect to the charge over the said 1/4^th share, still subsisting, the said amount of Rs.11,000/- so paid to the defendant now, will remain under the charge of the bank. The decree be made accordingly.”

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¶202

On the other hand, in Satya Jain vs. Anis Ahmed Rushdie – 2013 DNJ (SC) 127 also the Hon'ble Supreme Court granted the decree of specific performance even though the time period lapsed in obtained the Income Tax Clearance Certificate from the Income Tax Authorities and in that process the time lapsed did not vitiate the Agreement and the specific performance should not be denied on the basis of escalation of prices during the said period.

¶203

The judgment relied upon by the learned counsel for the appellant-defendants in the case of Baldev Raj Chopra vs. Rakesh Kumar – 2013(4) WLC (Raj.) 220 , where, the learned Single Judge of this Court held that the compensation instead of specific performance would be a reasonable relief in favour of the plaintiff was rendered in the context of it being a case of transfer of residential house No.130, `E' Block, Sri Ganganagar, measuring 32'x50' for the consideration of Rs.40,000/- and also the court found that the plaintiff was lacking readiness and willingness to perform his part of the contract and, therefore, instead of specific performance, compensation to the plaintiff would be adequate. The Court also found that the consideration for transfer of property was inadequate.

¶204

No such factors are available in the present case in favour of the appellant-defendants and not only the consideration at the time of Agreements to Sell was adequate but enhanced compensation has also been awarded by the learned trial court and some additional

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enhancement can also be considered by this Court while upholding the said decree of specific performance now, in the light of interim order dated 15/4/2011, upheld by Supreme Court also.

¶208

In the case of Mrs. Saradamani Kandappan vs. Mrs. S.Rajalakshmi & Ors.- 2011 (2) WLC (SC) 632 relied upon by the learned counsel for the appellant-defendants, the Hon'ble Supreme Court held that though suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement and the Courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three years period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.

¶209

This judgment is also of no assistance to the appellantdefendants herein but may rather help the plaintiffs because in the present case the trial court as well as this Court has clearly found that breach or refusal on the part of the defendants took place only after the service of notice by the plaintiffs on 16/8/2004, when the mutation entires were finally recorded in favour of the defendants after the order of the Divisional Commissioner dated 20/11/2003 was

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passed and the suit was filed on 2/11/2004, therefore, there is no delay or breach of limitation on the part of the plaintiffs in the present case.

¶213

In Faquir Chand vs. Sudesh Kumari – 2006(4) Civil Court Cases (SC) 347 , relied upon by the learned counsel for the appellant-defendants, the Hon'ble Supreme Court held that where the plaintiff was also responsible to some extent for delay of decision of suit, while granting specific relief, the plaintiff could be directed to pay additional sum to compensate the defendants.

¶214

Though in the present case, the present plaintiffs was not at all responsible for delay caused in perfecting the title of the defendants and they had also cooperated in the litigation also and they also compensated the defendants by way of meeting the litigation cost, still the trial court has already awarded additional compensation to the defendants by way of rise in price during the said period of litigation and also the litigation costs to the extent of Rs.1,00,000/-. Thus, this judgment also instead of supporting the defendantappellants may support the plaintiff-respondents in the present case.

¶215

Thus, on an over all analysis of the factual and legal spectrum of the present case, this Court is satisfied that the decree given for specific performance in favour of the plaintiff-respondents deserves to be upheld subject to the following directions to the parties:-

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(i) That the plaintiff-respondents shall deposit the remaining sum of Rs.30 lacs, at the rate of Rs.10 lacs for each year, viz. for the year 2012, 2013 and 2014 with the learned trial court within a period of two months from today.

¶219

(ii) That all the deposits already made by the plaintiffs in compliance of the decree of the learned trial court towards the sale consideration, towards escalation of prices and also towards litigation cost, the total amount of Rs.18,00,000/- stated to have been deposited along with the deposit of Rs.40,00,000/- (Rupees Forty lacs) (Rs.10,00,000/- already deposited under the interim order of this Court dated 15/4/2011 and Rs.30,00,000/- now to be deposited), thus, the total sum of Rs.58 lacs shall be paid to the appellantdefendants as the total consideration for the transfer of the agricultural land in question in favour of the respondent-plaintiffs towards balance consideration, compensation to the defendants for escalation of prices, litigation costs so far incurred by them and also interest on the balance of consideration for transfer not so far received by them.

¶220

(iii) The defendant-appellants shall execute the registered sale deed of the agricultural land free from any encumbrances in favour of the plaintiffs within a period of two months from today upon payment of aforesaid sums by the plaintiffs through the trial court and in case the appellant-defendants fail to execute the sale deed, the trial court is directed to execute the sale upon deposit of aforesaid money by the plaintiffs, as directed above.

¶221

(iv) The plaintiff-respondents shall also execute the sale deed in

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favour of the defendants of the plot of land measuring 50'x50', as agreed by them in the Agreements in question and as directed by the trial court in para 4 of its afore-quoted order and decree, free of cost and the registration expenses for the same shall be borne by the plaintiffs.

¶225

The present first appeal of the appellant-defendants is accordingly dismissed. No order as to costs. Copy of this order be sent to the trial court and parties concerned forthwith.

¶226

(DR.VINEET KOTHARI), J.

¶227

item no.1 baweja/-

Ram Singh and Ors. v. Bhikam Chand and Ors.

Case brief

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Ram Singh and Ors. v. Bhikam Chand and Ors.

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