Ghanshyam S/O Kanaram Bairwa Vs Ramesh S/O Kesarlal

The instant second appeal is preferred by appellantdefendant after dismissal of civil regular appeal No.8/2023 by learned District Judge, Sawai Madhopur on 30.05.2024 affirming the judgment and decree dated 31.05.2023 in Civil Suit No.7/2017 passed by learned Civil Judge, Khandar, District Sawai Madhopur.

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Learned counsel appearing on behalf of appellant-defendant No.2 while relying upon grounds of appeal submitted that the respondent No.1-plaintiff has filed a suit for specific performance and declaration of sale deed in favour of present appellant as null and void and same was decreed by the trial Court without considering that present appellant is a bona fide purchaser and with all due diligence, he cannot track an unregistered agreement to sell allegedly executed by respondent No.2 in favour of respondent No.1. He referred the findings of the Courts below and submitted that no evidence is led about knowledge of present appellant but the defence of present appellant was discarded on the ground that a purchaser is required to remain vigilant. He also submitted that the trial Court has not framed proper issues and which include readiness and willingness of plaintiff while seeking performance of agreement to sell. He submitted that the trial Court and the Appellate Court have relied upon the judgment in case of Jugraj Singh and Another vs Labh Singh and Others : (1995) 2 SCC 31 which was overruled by a Larger Bench of Hon’ble Supreme Court in case of Ram Awadh (Dead) By Lrs. & Ors vs Achbalbar Dubey & Anr : AIR 2000 SC 860 . Learned counsel has further placed reliance upon judgment in case of

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[CSA-307/2024]

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(3 of 9)

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Kadupugotla Varalalkshmi Vs. Vudagiri Venkata Rao & Ors. : 2021(2) Civil Court Cases 219 (S.C.) and Chief Administrator Puda And Another vs Mrs. Shabnam Virk : AIR 2006 SC 1758 . He submitted that the defence of readiness and willingness is also available not only to original vendor but also to subsequent purchaser. He submitted that in a suit for specific performance, subsequent purchaser can plead a defence that a plaintiff was not ready and willing to perform his part of agreement at all material time. He also referred evidence and findings recorded by both the Courts below and submitted that the judgment passed by the Courts below is not only perverse but it has been passed against settled proposition of law. He further referred the judgment in case of Channayya & Anr. Vs. Annapurna : 2006(2) Civil Court Cases 621 (Karnataka) and submitted that in a suit where a specific issue of readiness and willingness is not framed then decree passed by the trial Court is erroneous and the matter is required to be remitted back. Learned counsel has submitted that now the respondent No.1 has filed an execution petition before the trial Court.

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Aforesaid contentions were opposed by learned counsel appearing for respondent No.1-plaintiff and he submitted that the issue of readiness and willingness was discussed by both the trial Court and the Appellate Court but in case, a specific issue is not framed then the appellant may point out during trial but he has failed to point out during trial and necessity to frame issue does not give him a ground to raise this issue. He further referred the para No.17 of judgment of trial Court and submitted that the trial Court has not failed in its duty to consider Ex.1 agreement to sell

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[CSA-307/2024]

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(4 of 9)

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dated 09.01.2017 and readiness and willingness on part of plaintiff. He submitted that the trial Court has concluded that the plaintiff was ready and willing to perform his part of contract, therefore, this issue was decided in favour of plaintiff. He also referred the findings of Appellate Court and submitted that even if the issue is not framed even then discussion on issue Nos.1, 2 and 4 by the Appellate Court makes it clear that readiness and willingness on part of plaintiff was discussed in detail. He also pointed out that respondent No.2-defendant No.1 who was executor of the agreement has not been examined himself to contradict the claim of plaintiff. He also pointed out that the defence of defendant No.1 was only denial and not more than bare denial. He further submitted that there is a concurrent finding of fact recorded by both the Courts below and there is no ground to interfere in order passed by the trial Court and the Appellate Court, therefore, the second appeal is liable to be dismissed.

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Heard learned counsel for the parties and perused the record of the case. 5. The respondent No.1-plaintiff-Ramesh has filed a suit for specific performance on basis of agreement to sell dated 09.01.2017 with the averment that the defendant No.1 has failed to execute registered sale deed on 11.01.2017 but later on intimation by defendant No.2, plaintiff came to know about execution of registered sale deed in favour of present appellant (defendant No.2) on 12.01.2017. The plaintiff has filed a suit for specific performance and declaration. After completing the pleadings, the trial Court has famed 4 material issues and 1 issue for relief. Admittedly, no specific issue was framed about readiness

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[CSA-307/2024]

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(5 of 9)

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and willingness of plaintiff in performance of agreement to sell dated 09.01.2017. Issue No.1 is general in nature but about entitlement of plaintiff for registration of sale deed in pursuant to agreement dated 09.11.2017. Issue No.2 pertains to cancellation of sale deed in favour of defendant No.2 whereas issue No.3 with regard to permanent injunction, issue No.4 was framed on basis of written statement filed by present appellant that whether he is a bona fide purchaser.

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A perusal of findings of issue Nos.1, 2 and 4 clearly reflect that in para No.17, the trial Court has decided this issue plaintiff viz-a-viz defendant No.1. The trial Court has only considered evidence and defence of defendant No.1. The defendant No.1 has not turned up in evidence box. The trial Court has further referred the principle of “caveat emptor and” decided the issue of bonafideness against the present appellant-defendant No.2. 7. The Appellate Court has also decided issue Nos.1, 2 and 4 collectively and again relying upon the same analogy affirmed the findings of trial Court. 8. The analogy adopted by learned trial Court that the issue relating to readiness and willingness is between plaintiff and original executor (defendant No.1-herein) was based on judgment in case of Jugraj Singh and Another vs Labh Singh and Others (supra) which was overruled by a Larger Bench of Hon’ble Supreme Court in case of Ram Awadh (Dead) By Lrs. & Ors vs Achbalbar Dubey & Anr (supra). After judgment of Larger Bench and followed by Hon’ble Supreme Court in several cases including in case of Chief Administrator Puda And Another vs Mrs. Shabnam Virk (supra). The issue raised by present appellant that

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[CSA-307/2024]

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(6 of 9)

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he has a right to raise defence of readiness and willingness is a questionable issue.

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The legal position settled till date indicate that a Court dealing with a case of specific performance is under an obligation not to grant a decree of specific performance to a plaintiff who has not met the requirement of clause (a), (b) and (c) of Section 16 of the Specific Relief Act, 1963.

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In view of the material and grounds raised by learned counsel for the appellant, following substantial questions of law arise for consideration:-

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(i) Whether both the Courts below have committed serious error while passing a decree without ensuring compliance of the conditions as mandated under Section 16 of the Specific Relief Act, 1963? (ii) Whether both the Courts below have failed to consider the defence of present appellant-defendant that he was a bona fide purchaser to the value and he has no option to know about unregistered agreement to sell dated 09.01.2017, before registration of sale deed on 12.01.2017?

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(iii) Whether both the Courts below have failed to realize that readiness and willingness on part of plaintiff was an issue required to be framed and non-framing of issue is sufficient to set aside the decree passed by the trial Court?

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(iv) Whether the respondent No.1-plaintiff has withhold the best evidence available to him and non-submission of best evidence is sufficient to presume that the plaintiff has not approached the Court with clean hands?

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Admit.

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[CSA-307/2024]

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(7 of 9)

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Considered the stay application.

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Learned counsel has referred that execution application No.1/2025 is filed by respondent No.1-plaintiff to execute sale deed in his favour. He also mentioned the matter in open Court by submitting order sheet dated 17.04.2025 and submitted that without approval of draft sale deed, the trial Court has directed Nazir to execute sale deed.

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As the second appeal has been admitted and substantial questions of law have been framed, therefore, it is appropriate to stay the execution of any document in pursuant to decree dated 31.05.2023 and further direct the parties to maintain status quo.

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The stay application No.2550/2024 is hereby allowed and the trial Court is restrained from executing any sale deed in favour of respondent No.1-plaintiff in pursuant to judgment and decree dated 31.05.2023 in Civil Suit No.7/2017. Both the parties are directed to maintain status quo till disposal of the second appeal. 16. Stay application stands disposed of.

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List the appeal for hearing in the month of September, 2025.

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In S.B. Cross Objection (Civil) No. 33/2024:-

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The cross objection was filed by respondent-defendant No.1.

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When asked about maintainability of these cross-objections then the counsels submitted that the issue of maintainability may be decided.

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Learned counsel for the cross-objector submitted that under Order 41 Rule 22 CPC, he has a right to file cross-objection and same is supported by Hon’ble Supreme Court judgment in case of

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Saurav Jain and Another vs. A.B.P. Design and Another : 2021 SCC OnLine SC 552 . He submitted that the suit has been

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[CSA-307/2024]

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(8 of 9)

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filed against him and present appellant but the Appellate Court has not passed a decree against him. He submitted that aggrieved from the orders of Courts below, one of the defendants has challenged the decree passed by the trial Court and affirmed by the Appellate Court. In view of pendency of this appeal, he has a right to file and challenge the judgment and decree of the trial Court and the Appellate Court by filing cross-objection.

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Aforesaid contentions were opposed by learned counsel for the respondent No.1-plaintiff on ground that defendant No.1 has not challenged the judgment and decree of trial Court and defendant No.1 remained almost ex-parte before the trial Court so he has no right to challenge the decree and order of First Appellate Court during second appeal. 5. Heard learned counsel for the parties and perused the judgment of Hon’ble Supreme Court as referred by learned counsel for the petitioner. 6. The respondent No.1-plaintiff has filed a civil suit for specific performance against the present appellant and the respondent No.2 (both defendants). After decree dated 31.05.2023 by learned trial Court, the judgment of trial Court was challenged only by present appellant by filing an appeal under Section 96 of CPC. The appeal was also dismissed. The findings of trial Court were affirmed in toto without any change. A perusal of proceedings indicate that defendant No.1, who is respondent No.2 herein, has not turned up even to examine himself as witness to contest the civil suit filed by respondent No.1. The defendant No.1 has not filed any cross-objection before the Appellate Court when civil regular appeal No.8/2023 was filed by present appellant. The

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[CSA-307/2024]

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(9 of 9)

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proceeding recorded by the Appellate Court indicate that the defendant No.1 has not advanced any argument and same was noticed in para No.11 of judgment of the Appellate Court.

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Hon’ble Supreme Court while considering provision of Order 41 Rule 22 CPC in case of Saurav Jain and Another vs. A.B.P. Design and Another (supra) has held that a cross-objection can be filed in a circumstance wherein a decree can be partially supported but may be partially opposed. Similarly, in case of opposition to a decree, the cross-objection can still be filed.

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Here in this case, the cross-objector is in same boat as the present appellant. If the cross-objector want to challenge the judgment and decree passed by the trial Court then it has an option to file a separate appeal but he has no right to file a crossobjection under Order 41 Rule 22 CPC as there is no observation against him.

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In view of aforesaid, the instant cross-objection is not maintainable on behalf of defendant No.1 who has not contested the original suit before the trial Court and judgment and decree before the First Appellate Court.

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In view of aforesaid, the cross-objection is hereby dismissed as non-maintainable.

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Misc. application, if any, also stands disposed of.

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(ASHOK KUMAR JAIN),J

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MR/81-82 supp.

Ghanshyam S/O Kanaram Bairwa v. Ramesh S/O Kesarlal

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Ghanshyam S/O Kanaram Bairwa v. Ramesh S/O Kesarlal

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