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PETITIONER: RAM KUMAR AGARWAL & ANR.

       Vs.

RESPONDENT: THAWAR DAS (DEAD) THROUGH LRS.

DATE OF JUDGMENT:       20/08/1999

BENCH: R.C.Lahoti, S.Rajendra Babu

JUDGMENT:

R.C.  Lahoti,J.

     In  Mauza  Saharanpur  @ Jindapur of  Pargana  Haveli, Tehsil  Sadar, District Gorakhpur there is an open piece  of land  over  a part of which or adjoining to which  there  is some  built-up  property  which is a lime factory  known  as ‘karkhana’.   It  is  not clear whether  the  ‘karkhana’  is situated over the land which is the property forming subject matter of the present proceedings or is situated by the side of  it.   However, as the facts stated  shortly  hereinafter would  show that aspect of the matter is immaterial for  the purpose  of these proceedings.  It is not in dispute that on 18.7.1956,  the  ‘karkhana’ has been transferred by  way  of sale  by Phool Chand to Thawar Das.  On the same day another agreement was entered into between the parties.

     The agreement is reproduced hereunder:-

     "We  are Thawar Das s/o Shri Girdhari Mal r/o  Mohalla Jaya  Shankar  Ka  Pokhra, city of Gorakhpur Ist  party  and Phool  Chand s/o Shri Mukhram r/o Mohalla Kharayya Ka Pokhra city  of  Gorakhpur Second Party.  We the second party  have sold  all  our  business  all kinds of  Karkhana  and  goods including  the  building and quarter, belt and  engine,  two centigator  and  Lahorekhana  which is  situate  inside  the boundary  of the land to the first party for Rs.9000/-.  But the land is joint.  Because we the first party will carry on our  business  on  the land in question,  therefore  we  the executants undertake that we will pay Rs.150/- p.m.  as rent for  the  land in question and will after one year,  make  a sale  deed  of the land in question to the second party  for Rs.7000/- (half of which is Rs.3500/-) and if after one year no  sale deed of the land is made of the land in question on account  of  any thing on the part of the Ist party  or  the second  party we the Ist party will pay rent after one  year for three years at the rate of Rs.200/- per year in advance. If  the  first  party will want to take the land  after  one year, the second party will have to execute the sale deed in any  event.  If the sale deed is not made for four years, we the  first  party  will remove our goods from  the  land  in question and will vacate it and the possession will be given by  the  Ist  party to the 2nd party or its  heirs  and  the

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second  party  will remain in possession for  three  months. Therefore  with  free will and in sound stock of  mind  this rent  deed  is written so, that it may be of use in case  of need.

     Details  of  land  situated  in  Mauza  Saharanpur   @ Jindapur,  and  Qasba Pargana Haveli, Tahsil  Sadar,  Distt. Gorakhpur.

     East :  Garha

     West :  Pucca Govt.  Road

     North :  Garha

     South :  Gola Togan Lal

     Sd/- Thawar Das

     18.7.1956

     In  the year 1969 Phool Chand after serving a  demand- cum-quit  notice  under  Section  106  of  the  Transfer  of Property Act instituted Suit No.240 of 1969 seeking recovery of  arrears of rent and a decree of ejectment for failure of Thawar  Das  to  purchase  the  land  and  consequently  the relationship  of  landlord  and tenant having  continued  to exist  between them under the agreement.  About seven months after  the  institution of suit by Phool Chand,  Thawar  Das instituted Suit No.  137 of 1969 against Phool Chand seeking specific   performance  of  the   agreement  to  sell  dated 18.7.1956.  One of the pleas taken by Thawar Das was that on 19.9.1966  yet  another  agreement   was  entered  into  and executed  between  the  parties whereunder Thawar  Das  paid Rs.2,000/-  to Phool Chand and Phool Chand reviving the  old agreement  of the year 1956 made a fresh promise to sell the land subject to payment of Rs.5,000/- by Thawar Das to Phool Chand.   Phool Chand having expired, his sons were impleaded in  his place.  Inasmuch as there are cross-suits and cross- appeals  preferred subsequently, for the sake of convenience we  will continue to refer to the parties as Thawar Das  and Phool  Chand;   the latter name would include his sons  also upon whom his estate has devolved upon his death.

     The  two  suits were consolidated.  The suit filed  by Thawar  Das  was treated as the lead case and  evidence  was recorded  therein.   By a common judgment dated  23rd  July, 1975  the learned Additional Civil Judge dismissed the  suit filed  by  Thawar  Das and decreed the suit filed  by  Phool Chand.   Two appeals were preferred by Thawar Das which were heard  and  disposed  of by the District Judge by  a  common judgment.  The learned District Judge has dismissed both the appeals.   Upon  an independent evaluation of  the  evidence adduced  by  the  parties, the learned  District  Judge  has affirmed  all  the  findings of fact recorded by  the  Trial Judge.

     It  will  be  useful to briefly set out  the  findings concurrently  arrived  at by the Trial Court and  the  First Appellate  Court.   It has been found that the time  was  of

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essence  of  the contract for sale entered into between  the parties and time for performance was limited upto four years from the date of the agreement.

     During  these four years and even thereafter in  spite of  Phool  Chand having filed the suit for  ejectment  after serving notice of termination of tenancy, Thawar Das made no effort  to  purchase  the  land except  filing  a  suit  for specific  performance  which  was more in the  nature  of  a counterblast  to the suit filed by Phool Chand.  Thawar  Das utterly failed in proving that he was ever ready and willing to perform his part of the contract and to have the purchase materialised.   The  plea  raised  by  Thawar  Das  that  on 19.9.1966  there was a fresh agreement entered into  between the  parties  reviving  the old agreement of  18.7.1956  and thereunder  Thawar  Das had paid an amount of Rs.2,000/-  to Phool  Chand  was  utterly  false and  the  agreement  dated 19.9.1966  propounded by Phool Chand was a false and  forged document.   The  tenancy of Thawar Das was duly and  validly terminated  by  a  notice to quit under Section 106  of  the Transfer of Property Act.

     Thawar  Das  preferred two second appeals  before  the High  Court of Allahabad which have been heard and  disposed of  by  a  learned  Single Judge.   By  the  judgment  dated 21.9.1983  which  is  impugned in these appeals  by  special leave,  both  the appeals have been allowed.  The  judgments and  decrees  of the Trial Court and of the  District  Judge have  been set aside;  instead the suit filed by Phool Chand has  been directed to be dismissed and the suit for specific performance  filed  by  Thawar Das has been directed  to  be decreed.   A  perusal  of  the judgment of  the  High  Court reveals  reasonings, strange to some extent, which have  not at  all appealed to us and which we have found difficult  to sustain.

     The  High Court has held that insofar as the suit land is  concerned  the name of one Kanaihalal, brother of  Phool Chand  was also recorded in the revenue papers.  It is  only on  27.2.1967 when name of Phool Chand came to be mutated in the  revenue  papers, the cloud cast on the title  of  Phool Chand  was  cleared  and  Phool   Chand  became  capable  of transferring  his title in the land.  It is therefore  Phool Chand who alone must bear the blame for delay in performance of  the  agreement until 27.2.1967.  The High Court has  not disturbed  and  rather upheld the finding arrived at by  the two  courts below that the alleged agreement dated 19.9.1966 was  a false and fabricated document and no amount much less an amount of Rs.2,000/- was paid thereunder by Thawar Das to Phool Chand.  However, in the opinion of the High Court this finding  was inconsequential because Thawar Das was prepared to  pay the entire amount of Rs.7,000/- in case his plea  of payment  of  Rs.2,000/- did not find favour with the  Court. The High Court then proceeded to note that rent initially at the  rate of Rs.150/- per annum and subsequently at the rate of Rs.200/- per annum had continued to be paid by Thawar Das to  Phool  Chand  upto 17th July, 1965 and this  conduct  of Phool  Chand in accepting the rent in spite of the expiry of four  years  from 18.7.1956 indicated waiver on the part  of Phool  Chand of consequences flowing from delay on the  part of  Thawar  Das in the performance of the  contract.   Phool Chand  could have insisted on the performance of contract by Thawar  Das  if only he would have proved his own  readiness and willingness and also competence to execute the sale deed within  the  stipulated period of four years.  It is  to  be

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noted  that  though the High Court has tried to  find  fault with Phool Chand, nowhere in its judgment the High Court has recorded  a  finding that Thawar Das (the plaintiff in  suit for  specific  performance) was always ready and willing  to perform  his part of the contract and to have the sale  deed executed  by Phool Chand in accordance with the terms of the agreement  dated 18.7.1956.  Before the High Court on behalf of  Thawar  Das reliance was also placed on a  plea  flowing from  Section  53A of the Transfer of Property Act  and  the High  Court  proceeded to observe that possession of  Thawar Das  was in part performance of the agreement to sell and so also Phool Chand’s suit for Thawar Das’s ejectment could not have  been  decreed and the latter was entitled to  continue and remain in possession of the land.

     In our opinion, the judgment of the High Court suffers from  serious infirmities.  It also suffers from the vice of exercise  of  such jurisdiction as did not vest in the  High Court  under  the  law.  Under Section 100 of  the  CPC  (as amended  in  1976)  the jurisdiction of the  High  Court  to interfere with the judgments of the courts below is confined to  hearing  on substantial question of  law.   Interference with  finding of fact by the High Court is not warranted  if it  involves  reappreciation  of evidence  (see  Panchugopal Barua  &  Ors.  Vs.  Umesh Chandra Goswami & Ors.- 1997  (4) SCC  713  and  Kshitish Chandra Purkait Vs.   Santosh  Kumar Purkait  & Ors.  1997 (5) SCC 438).  The High Court did  not frame  any  substantial questions of law as contemplated  by sub-section  (5) of Section 100 of the CPC.  It has not even discussed  any evidence.  No basic finding of fact  recorded by  the courts below has been reversed much less any  reason assigned for taking a view to the contrary still the finding on  the question of readiness and willingness to perform the contract  which is a mixed question of law and fact has been upset.   Plea under Section 53A of the Transfer of  Property Act  which  again involves a mixed question of law and  fact has  been  allowed to be urged and upheld by the High  Court though  there  is  no foundation for the same  laid  in  the pleadings  of Thawar Das and though the plea was not  raised either  before the Trial Court or before the First Appellate Court  even  at the time of hearing.  Before us also at  the time  of hearing of the appeals the learned counsel for  the respondent  Thawar  Das  found it very difficult  indeed  to demonstrate  availability of material on record whereon  the findings  as to readiness and willingness for performance of his part of the contract on the part of Thawar Das and as to his  possession  being available to be protected  under  the plea  of  part  performance emanating from  Section  53A  of Transfer  of Property Act could be sustained.  The suit  for specific  performance  filed in the year 1969,  i.e,  nearly nine  years  after the expiry of four years from  18.7.1956, the  date  of the agreement, was hopelessly barred by  delay and laches.  We do not propose to enter into the question of limitation  though  the  plea  that the  suit  for  specific performance  was  barred by time was specifically raised  by Phool  Chand  before  the Trial Court.   It  is  statutorily provided  by Section 16(c) of the Specific Relief Act,  1963 that  to  succeed  in a suit for specific performance  of  a contract  the  plaintiff  shall aver and prove that  he  has performed  and has always been ready and willing to  perform the  essential  terms  of  the contract  which  were  to  be performed  by  him other than the terms the  performance  of which has been prevented or waived by the defendant.  In the facts  and circumstances of the case raising of the plea  by Thawar  Das  that on 19.9.1966 there was a  fresh  agreement

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between  the  parties  and he had paid Rs.2,000/-  to  Phool Chand associated with positive finding arrived at by the two courts  below  which finding has not been upset by the  High Court  that  the  plea  was  false  and  was  sought  to  be substantiated  by producing a false and fabricated  document makes  the  situation  worse for Thawar Das.  A  person  who falsely alleges to have paid Rs.2,000/- and also attempts at proving the plea at the stage of the trial cannot be said to have  been  ever ready and willing to pay  Rs.7,000/-  which under  the  contract  it  was his obligation  to  pay.   The present  one  is not a case where a plea as to  payment  was raised  bonafide  but abandoned at or before the  trial  for inability to prove.

     Plea under Section 53A of the Transfer of Property Act raises a mixed question of law and fact and therefore cannot be  permitted to be urged for the first time at the stage of second  appeal.   That apart, performance or willingness  to perform  his  part of the contract is one of  the  essential ingredients  of  the plea of part performance.   Thawar  Das having  failed in proving such willingness protection to his possession  could  not  have been claimed  by  reference  to Section 53A of the Transfer of Property Act.

     For the foregoing reasons, we find the judgment of the High Court wholly unsustainable in law.  The appeals deserve to be allowed, setting aside the judgment of the High Court. During the course of hearing, the learned counsel for Thawar Das  vehemently resisted the appeals by submitting that  the decree under appeal as passed by the High court has been put to  execution and sale deed in terms of the decree has  been executed  and  therefore  the appeals do not deserve  to  be allowed.   We  find no merit in this plea.  The judgment  of the  High Court was pronounced on 21.9.1983.  The sale  deed in compliance with the judgment of the High Court appears to have  been executed on 21.4.1984 through intervention of the court,  that  is,  by taking out execution  of  the  decree. Petition  seeking special leave to appeal along with  prayer for  interim  relief  was  filed in  the  Supreme  Court  on 2.1.1984.   On 30.9.85 leave to appeal was granted and while directing  notices  to  be issued to the  respondents,  this Court had also directed execution of the judgment and decree of  the High Court to remain stayed if not already executed. Merely because the decree under appeal has been executed for want  of stay order from the superior court the right of the judgment  debtor to prosecute the appeal is not lost without there  being something to show that the judgment debtor  had waived  or consciously given up his right of prosecuting the appeal.

     The  appeals  are  allowed.  The judgment  and  decree passed  by  the  High Court are set aside  and  instead  the judgment  and  decree  passed  by the  Trial  Court  and  as affirmed  by the District Judge are restored.  The appellant shall be entitled to costs throughout in both the appeals.