1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11070 OF 2018
[Arising out of SLP (C) No. 22667 of 2016]
Rakesh Malhotra .. Appellant
Versus
Kamaljit Singh Sandhu & Ors. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment and
order dated 29.2.2016 passed in R.S.A. No. 4015 of 2011 by the High Court of
Punjab and Haryana at Chandigarh, by which the High Court has allowed the
said appeal preferred by the original defendant Nos. 2 and 3 by setting aside
the judgment and order dated 10.8.2011 passed by the Additional District
Judge, Gurgaon and, consequently, has dismissed the suit preferred by the
appellant herein (original plaintiff). The original plaintiff (appellant herein)
has preferred the present appeal.
3. The facts leading to this appeal in nutshell are as follows:
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That the appellant herein (hereinafter referred to as ‘the original plaintiff’)
instituted Civil Suit No. 159 of 2004 against the respondents herein (original
defendants) seeking a declaration that the plaintiff is the owner and in
possession of the suit property – Plot No. 336 (old) 548 (new), measuring 420
square meters at Block B in the residential colony known as Sushant Lok,
Guugaon. It was also prayed to declare the sale deed dated 28.1.2002
executed in favour of the original defendant nos. 2 and 3 by original defendant
no. 1 as illegal, null and void. In the alternate, it was also prayed for decree of
possession of the suit property by directing the original defendant no. 1 to get
the sale deed executed and registered in favour of the plaintiff in respect of the
suit property, with consequential relief of permanent injunction restraining the
original defendant nos. 2 and 3 from further selling/alienating/transferring the
suit property in question to anyone else, except the plaintiff, in any manner
whatsoever.
3.1 It was the case on behalf of the original plaintiff that the suit property
was booked by the original defendant no. 1 with the developers - M/s Ansal
Properties and Industries Pvt. Ltd. (hereinafter referred to as ‘M/s Ansal
Properties’) However, by an Agreement to Sell dated 20.4.1987 executed by
the original defendant no. 1 being the original allottee from M/s Ansal
Properties in favour of the plaintiff, original defendant no. 1 sold/agreed to sell
the suit property in favour of the plaintiff. It was the case on behalf of the
original plaintiff that at the time of execution of the said written agreement
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dated 20.4.1987, the plaintiff paid the sale consideration. However, it was
agreed to execute the sale deed as and when the developers M/s Ansal
Properties fulfills its obligation and complete the formalities. It was further
the case on behalf of the original plaintiff that simultaneously one General
Power of Attorney was also executed in favour of the plaintiff by the original
defendant no. 1 empowering the plaintiff to get the transfer in his favour as and
when the plaintiff will deposit all installments of M/s Ansal Properties and
desires to get transferred the suit property in his favour or in favour of his
nominee. It was also the case on behalf of the original plaintiff that the
plaintiff was also put in possession. It was also the case of the original plaintiff
that thereafter the plaintiff paid the stamp duty. It was further the case on
behalf of the original plaintiff that, despite the above fact, when the developers
M/s Ansal Properties allotted the plot in question and executed the title deed in
favour of original defendant no. 1 (being the original allottee), the original
defendant no. 1 did not transfer the plot in question in his name and, in fact,
illegally transferred the suit property in favour of defendant nos. 2 and 3 on a
meagre amount of sale consideration by executing the sale deed dated
28.1.2002. With the above averments and prayers, the plaintiff instituted the
aforesaid suit in the Court of the learned Additional Civil Judge (Senior
Division), Gurgaon.
3.2 The suit was resisted to by the original defendant nos. 2 and 3 by filing
the written statement. It was the case of original defendant nos. 2 & 3 that
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they are the bona fide purchasers of the suit property for consideration. It was
also the case on behalf of the original defendant nos. 2 and 3 that the suit filed
by the plaintiff seeking a decree of possession and permanent injunction shall
not be maintainable unless there is a prayer for decree for specific
performance. It was the case on behalf of defendant nos. 2 and 3 that unless
the plaintiff renounces the plea of his title, he cannot seek decree of specific
performance. It was further the case on behalf of defendant nos. 2 and 3 that
the suit is collusive between the plaintiff and original defendant no. 1. It was
further case on behalf of the defendant nos. 2 and 3 that the suit is not within
the limitation. That, thereafter, original defendant nos. 2 and 3 also filed the
written statement denying the allegations and averments in the plaint.
3.3 It appears that, thereafter, the original plaintiff submitted an application
to amend the plaint by seeking the prayer of specific performance of the
agreement to sell dated 20.4.1987 submitted under Section 6 Rule 17 CPC.
However, the same came to be dismissed by the learned trial Court and attained
the finality.
3.4 On the basis of the averments in the plaint and the written statement, the
learned trial Court framed the following issues:
“1. Whether the plaintiff is owner in possession of the suit
property?
2. Whether the sale deed dated 28.1.2002 executed by
defendant no. 1 in favour of defendant no. 2 and 3 is illegal,
null and void on the ground alleged in plaint?
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3. Whether the plaintiff is entitled to decree for possession
in the alternative with consequential relief of permanent
injunction as prayed for?
4. Whether the suit is within limitation?
4A. Whether the defendant no. 2 and 3 are bonafide
purchasers as alleged?
5. Whether the plaintiff has no locus-standi to file the
present suit?
6. Whether the suit has not been properly valued for the
purpose of jurisdiction of court fee?”
3.5 Thereafter, both the parties adduced the evidence, both oral as well as the
documentary. That, thereafter, on appreciation of evidence and considering the
submissions made on behalf of the respective parties, by the judgment and
decree dated 19.10.2010 the learned trial Court partly decreed the suit in favour
of the original plaintiff. The learned trial Court passed the decree for recovery
of Rs.2,46,645.50 with 9% interest throughout its realization. That the learned
trial Court passed the aforesaid decree dated 19.10.2010 in favour of defendant
no. 1 only. The suit and other reliefs came to be dismissed by the learned trial
Court.
4. Feeling aggrieved and dissatisfied with the judgment and decree dated
19.10.2010 passed by the learned trial Court in Civil Suit No. 159 of 2004, the
original plaintiff preferred Civil Appeal No. 109 of 2010 in the Court of
learned District Judge, Gurgaon.
4.1 That the first Appellate Court allowed the said appeal by quashing and
setting aside the judgment and decree passed by the learned trial Court and,
consequently, decreed the suit by holding that the original plaintiff is entitled to
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decree of declaration to the effect that the sale deed dated 28.1.2002 executed
by the original defendant no. 1 in favour of original defendant nos. 2 and 3 is
illegal, null and void and that the original plaintiff is entitled to decree of
specific performance of agreement to sell to execute the sale deed as per the
agreement to sell dated 20.4.1987.
4.2 Feeling aggrieved and dissatisfied with the judgment and order of the
learned first Appellate Court setting aside the order of the learned trial Court,
original defendant nos. 2 and 3 preferred R.S.A. No. 4015 of 2011 before the
High Court. By the impugned judgment and order dated 29.2.2016, the High
Court has allowed the said appeal and consequently set aside the judgment and
decree of the first Appellate Court and dismissing the suit qua other reliefs and
has restored the judgment and decree passed by the learned trial Court.
4.3 Feeling aggrieved and dissatisfied with the impugned judgment and
order of the High Court, the original plaintiff has preferred the present appeal.
5. Heard Mr. Shyam Divan, learned senior counsel appearing on behalf of
the appellant and Mr. Dhruv Mehta, learned senior counsel appearing on behalf
of the respondents at length.
5.1 Learned counsel appearing on behalf of the appellant herein vehemently
submitted that, in the facts and circumstances of the case, the High Court has
committed a grave error in quashing and setting aside a well reasoned
judgment passed by the first Appellate Court and, that too, in the second
appeal. It is further submitted that, as such, the plaintiff paid the entire
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consideration at the time of execution of the agreement/agreement to sell dated
20.4.1987 and, even thereafter, the entire stamp duty was paid by the plaintiff
and, therefore, as such, nothing further was pending to be done, except
executing the deed in favour of the original plaintiff by original defendant no.
1. It is submitted that even the plaintiff was also put in possession at the time
of execution of the agreement to sell dated 20.4.1987 and the General Power of
Attorney by original defendant no. 1 in favour of the original plaintiff. It is
submitted that, therefore, the sale was complete in favour of the plaintiff and,
hence, the learned trial Court ought to have decreed the suit in toto and the
learned first Appellate Court, therefore, rightly decreed the suit, which ought
not to have been quashed and set aside by the High Court.
5.2 It is vehemently submitted by the learned counsel appearing on behalf of
the appellant herein that the aforesaid vital/material aspects have not been
considered in true spirit by the High Court and that the High Court has
materially erred in quashing and setting aside a well reasoned judgment and
order passed by the first Appellate Court.
5.3 It is further submitted that the High Court has materially erred in
quashing and setting aside the judgment and order passed by the first Appellate
Court on the ground that there was no prayer for specific performance of the
agreement to sell dated 20.4.1987 and, therefore, the plaintiff was not entitled
to any decree for specific performance which was granted by the learned first
Appellate Court. It is submitted that, as such, there were necessary averments
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in the plaint and even the reliefs sought in the plaint can be said to be the relief
for specific performance and even the issue no. 3 would cover the relief with
respect to specific performance. It is submitted that, therefore, the High Court
has committed a grave error in quashing and setting aside the order passed by
the first Appellate Court and, consequently, dismissing the suit.
5.4 It is further submitted by the learned counsel for the appellant that the
High Court has not properly appreciated the facts that not only the substantial
amount was paid at the time of execution of the agreement/agreement to sell
dated 20.4.1987, even the subsequent installments were also paid by the
plaintiff and all the notices of demand of installments and other expenses were
directly between the plaintiff and the developer M/s Ansal Properties and that
the plaintiff paid the entire installments up to 20.4.1990.
5.5 It is further submitted that the High Court has not properly appreciated
the fact that after the title deed/sale deed was executed by the developers M/s
Ansal Properties in favour of defendant no. 1 by the sale deed dated 31.3.1994,
the original defendant no. 1 assured the plaintiff that he will get the sale deed
executed in his favour. However, subsequently, the original defendant no. 1
did not execute the sale deed in favour of the original plaintiff and, on the
contrary, superciliously sold the suit property in favour of the original
defendant nos. 2 and 3 and, therefore, the plaintiff was constrained to file the
suit. It is submitted that, therefore, the sale deed executed by original
defendant no. 1 in favour of defendant nos. 2 and 3 was illegal, null and void
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and, therefore, the same was rightly declared to be illegal, null and void ab
initio by the first Appellate Court.
5.6 By making the above submissions, it is requested to allow the present
appeal and quash the impugned judgment and order passed by the High Court
and consequently restoring the judgment and order passed by the first
Appellate Court and to decree the suit.
6. The present appeal has been vehemently opposed by the learned counsel
appearing for the original defendant nos. 2 and 3. It is vehemently submitted
on behalf of the original defendant nos. 2 and 3 that the High Court has rightly
allowed the appeal preferred by the original defendant nos. 2 and 3 and rightly
quashed and set aside the judgment and order passed by the learned first
Appellate Court granting relief for specific performance of agreement to sell
dated 20.4.1987. It is submitted that in absence of any specific prayer in the
plaint/suit asking the decree of specific performance of Agreement to Sell, as
rightly observed by the High Court, the first Appellate Court was not justified
in granting the relief of specific performance of agreement to sell dated
20.4.1987.
6.1 It is further submitted on behalf of the defendant nos. 2 and 3 that, even
otherwise, the suit was barred by limitation. It is submitted that the original
plaintiff claimed the reliefs on the basis of the agreement to sell dated
20.4.1987, however, the suit was instituted in the year 2004. It is further
submitted that even the title deed/sale deed in favour of defendant no. 1 by the
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developers M/s Ansal Properties was executed in the year 1994 and that the
original plaintiff was in knowledge of the same since the year 1994, still he
instituted the suit in the year 2004 only, i.e. after a period of 10 years. It is
submitted that, in the meantime, the original plaintiff did nothing to get the sale
deed executed in his favour and/or in favour of his nominee. It is submitted
that thereafter even the sale deed in favour of original defendant nos. 2 and 3
was executed by the original defendant no. 1 in the year 2002, which was a
registered sale deed with value and on payment of full sale consideration and
the original plaintiff instituted the suit in the year 2004 only. It is submitted
that, therefore, on consideration of evidence and in the circumstances of the
case, the High Court has rightly interfered with the judgment and order passed
by the first Appellate Court and, consequently, has rightly dismissed the suit.
6.2 Learned counsel appearing on behalf of defendant nos. 2 and 3 has
submitted that, in the facts and circumstances of the case, and to buy the peace
and to put an end to the entire litigation, they are even ready and willing to pay
Rs.10,00,000/- to the original plaintiff as ex-gratia, which may be over and
above the decreetal to be paid by the original defendant no. 1 pursuant to the
judgment and decree passed by the learned trial Court.
7. Heard the learned counsel for both the parties at length and perused the
judgment and decree passed by the learned trial Court and the judgment and
orders passed by the Courts below.
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7.1 At the outset, it is required to be noted that in the suit the original
plaintiff sought the relief of declaration and permanent injunction only and
there was no specific prayer of specific performance of the agreement to sell
dated 20.4.1987. It is also required to be noted that even the original plaintiff
submitted the application under Order 6 Rule 17 CPC to amend the plaint by
seeking relief of specific performance of the agreement to sell dated
20.4.1987. However, the same came to be dismissed and the same has attained
the finality. Even there was no specific issue framed by the learned trial Court
for specific performance with respect to the agreement to sell dated 20.4.1987.
Nothing is on record that, at any point of time, the original plaintiff made any
grievance with respect to the non-framing of the issue with respect to specific
performance of the agreement to sell dated 20.4.1987. Even no effort was
made before the learned trial Court to re-frame the issue. Therefore, as such,
there was no specific prayer for specific performance of the agreement to sell
dated 20.4.1987. Despite the above, the first Appellate Court granted relief of
specific performance of he agreement to sell dated 20.4.1987 for which there
was no prayer in the plaint. Therefore, the High Court was justified in
reversing the judgment and order passed by the first Appellate Court granting
relief for specific performance of the agreement to sell dated 20.4.1987.
7.2 Even the High Court is justified in not granting the other reliefs prayed
in the suit, namely, the declaration that the original plaintiff is the owner and in
possession of the suit property and even the suit for permanent injunction. It
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is also required to be noted that the original plaintiff claimed reliefs on the
basis of the agreement to sell dated 20.4.1987 and the general power of
attorney executed in the year 1987. The agreement dated 20.4.1987 is rightly
considered to be the agreement to sell only. The case on behalf of the original
plaintiff that the agreement to sell dated 20.4.1987 was a complete sale and it
was a sale deed cannot be accepted for the simple reason that the said
agreement/agreement to sell dated 20.4.1987 was not a registered one and even
the same was not on the proper stamp duty and, therefore, as such, the same is
not admitted in evidence and the same can be used only for the collateral
purpose. Therefore, the agreement to sell dated 20.4.1987 is rightly
considered to be the agreement to sell only. Even considering the submissions
made by the learned counsel appearing on behalf of the plaintiff and even
considering the averments made in the agreement to sell dated 20.4.1987, the
same can be said to be an agreement to sell only, as even the title deed/sale
deed in favour of the original defendant no. 1 was executed in the year 1994.
Therefore, both the learned trial Court and the High Court are justified in
refusing to grant of declaration as sought in the plaint.
7.3 Even otherwise, the plaintiff is not entitled to the reliefs sought in the
plaint even on the ground of limitation also. It is required to be noted that the
agreement/agreement to sell and the general power of attorney were executed
in the year 1987, on the basis of which the plaintiff had sought for the reliefs in
the year 2004. Even, according to the plaintiff also, the title deed/sale deed in
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favour of the original defendant no.1 executed by the developers M/s Ansal
Properties was in the year 1994. Considering the evidence on record and even
considering the case on behalf of the plaintiff, it appears that throughout the
plaintiff was aware of the execution of the title deed/sale deed in favour of the
original defendant no. 1 executed in the year 1994, still the suit has been
instituted in the year 2004 only, i.e. after a period of 10 years. Nothing is on
record that any steps were taken by the original plaintiff to get the sale deed
executed in his favour and/or in favour of his nominee. Therefore, the suit has
been instituted after a period of 17 years after the execution of the
agreement/agreement to sell dated 20.4.1987 and after a period of 10 years
from the date of the title deed/sale deed in favour of the original defendant no.
1. Considering the aforementioned facts and circumstances of the case, the
plaintiff is not entitled such reliefs, except of decree of recovery of amount
paid to the original defendant no. 1.
7.4 In the aforesaid facts and circumstances of the case, we are in complete
agreement with the view taken by the learned trial Court as well as that of the
High Court, in not granting the other reliefs and granting the decree of
recovery of the amount paid by the original plaintiff to the original defendant
no. 1 only. In view of the reasons stated above, we see no reason to interfere
with the judgment and order passed by the High Court and, consequently, the
present appeal deserves to be dismissed and is accordingly dismissed.
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8. However, as agreed, the original defendant nos. 2 and 3 are directed to
pay a sum of Rs.10,00,000/- to the original plaintiff ex-gratia, which they have
agreed to pay to put an end to the litigation and to buy a peace, to be paid to the
original plaintiff within a period of six weeks from today. On payment of the
aforesaid amount of Rs.10,00,000/- to the original plaintiff by original
defendant nos. 2 and 3, any proceedings pending between the parties, if any,
shall stand terminated.
9. With the above observations and directions, the present appeal stands
dismissed, however, with no costs. I.A., if any, stands disposed of.
………………………………..J.
(UDAY UMESH LALIT)
………………………………..J.
(M. R. SHAH)
New Delhi,
November 16, 2018
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11070 OF 2018
[Arising out of SLP (C) No. 22667 of 2016]
Rakesh Malhotra .. Appellant
Versus
Kamaljit Singh Sandhu & Ors. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment and
order dated 29.2.2016 passed in R.S.A. No. 4015 of 2011 by the High Court of
Punjab and Haryana at Chandigarh, by which the High Court has allowed the
said appeal preferred by the original defendant Nos. 2 and 3 by setting aside
the judgment and order dated 10.8.2011 passed by the Additional District
Judge, Gurgaon and, consequently, has dismissed the suit preferred by the
appellant herein (original plaintiff). The original plaintiff (appellant herein)
has preferred the present appeal.
3. The facts leading to this appeal in nutshell are as follows:
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That the appellant herein (hereinafter referred to as ‘the original plaintiff’)
instituted Civil Suit No. 159 of 2004 against the respondents herein (original
defendants) seeking a declaration that the plaintiff is the owner and in
possession of the suit property – Plot No. 336 (old) 548 (new), measuring 420
square meters at Block B in the residential colony known as Sushant Lok,
Guugaon. It was also prayed to declare the sale deed dated 28.1.2002
executed in favour of the original defendant nos. 2 and 3 by original defendant
no. 1 as illegal, null and void. In the alternate, it was also prayed for decree of
possession of the suit property by directing the original defendant no. 1 to get
the sale deed executed and registered in favour of the plaintiff in respect of the
suit property, with consequential relief of permanent injunction restraining the
original defendant nos. 2 and 3 from further selling/alienating/transferring the
suit property in question to anyone else, except the plaintiff, in any manner
whatsoever.
3.1 It was the case on behalf of the original plaintiff that the suit property
was booked by the original defendant no. 1 with the developers - M/s Ansal
Properties and Industries Pvt. Ltd. (hereinafter referred to as ‘M/s Ansal
Properties’) However, by an Agreement to Sell dated 20.4.1987 executed by
the original defendant no. 1 being the original allottee from M/s Ansal
Properties in favour of the plaintiff, original defendant no. 1 sold/agreed to sell
the suit property in favour of the plaintiff. It was the case on behalf of the
original plaintiff that at the time of execution of the said written agreement
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dated 20.4.1987, the plaintiff paid the sale consideration. However, it was
agreed to execute the sale deed as and when the developers M/s Ansal
Properties fulfills its obligation and complete the formalities. It was further
the case on behalf of the original plaintiff that simultaneously one General
Power of Attorney was also executed in favour of the plaintiff by the original
defendant no. 1 empowering the plaintiff to get the transfer in his favour as and
when the plaintiff will deposit all installments of M/s Ansal Properties and
desires to get transferred the suit property in his favour or in favour of his
nominee. It was also the case on behalf of the original plaintiff that the
plaintiff was also put in possession. It was also the case of the original plaintiff
that thereafter the plaintiff paid the stamp duty. It was further the case on
behalf of the original plaintiff that, despite the above fact, when the developers
M/s Ansal Properties allotted the plot in question and executed the title deed in
favour of original defendant no. 1 (being the original allottee), the original
defendant no. 1 did not transfer the plot in question in his name and, in fact,
illegally transferred the suit property in favour of defendant nos. 2 and 3 on a
meagre amount of sale consideration by executing the sale deed dated
28.1.2002. With the above averments and prayers, the plaintiff instituted the
aforesaid suit in the Court of the learned Additional Civil Judge (Senior
Division), Gurgaon.
3.2 The suit was resisted to by the original defendant nos. 2 and 3 by filing
the written statement. It was the case of original defendant nos. 2 & 3 that
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they are the bona fide purchasers of the suit property for consideration. It was
also the case on behalf of the original defendant nos. 2 and 3 that the suit filed
by the plaintiff seeking a decree of possession and permanent injunction shall
not be maintainable unless there is a prayer for decree for specific
performance. It was the case on behalf of defendant nos. 2 and 3 that unless
the plaintiff renounces the plea of his title, he cannot seek decree of specific
performance. It was further the case on behalf of defendant nos. 2 and 3 that
the suit is collusive between the plaintiff and original defendant no. 1. It was
further case on behalf of the defendant nos. 2 and 3 that the suit is not within
the limitation. That, thereafter, original defendant nos. 2 and 3 also filed the
written statement denying the allegations and averments in the plaint.
3.3 It appears that, thereafter, the original plaintiff submitted an application
to amend the plaint by seeking the prayer of specific performance of the
agreement to sell dated 20.4.1987 submitted under Section 6 Rule 17 CPC.
However, the same came to be dismissed by the learned trial Court and attained
the finality.
3.4 On the basis of the averments in the plaint and the written statement, the
learned trial Court framed the following issues:
“1. Whether the plaintiff is owner in possession of the suit
property?
2. Whether the sale deed dated 28.1.2002 executed by
defendant no. 1 in favour of defendant no. 2 and 3 is illegal,
null and void on the ground alleged in plaint?
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3. Whether the plaintiff is entitled to decree for possession
in the alternative with consequential relief of permanent
injunction as prayed for?
4. Whether the suit is within limitation?
4A. Whether the defendant no. 2 and 3 are bonafide
purchasers as alleged?
5. Whether the plaintiff has no locus-standi to file the
present suit?
6. Whether the suit has not been properly valued for the
purpose of jurisdiction of court fee?”
3.5 Thereafter, both the parties adduced the evidence, both oral as well as the
documentary. That, thereafter, on appreciation of evidence and considering the
submissions made on behalf of the respective parties, by the judgment and
decree dated 19.10.2010 the learned trial Court partly decreed the suit in favour
of the original plaintiff. The learned trial Court passed the decree for recovery
of Rs.2,46,645.50 with 9% interest throughout its realization. That the learned
trial Court passed the aforesaid decree dated 19.10.2010 in favour of defendant
no. 1 only. The suit and other reliefs came to be dismissed by the learned trial
Court.
4. Feeling aggrieved and dissatisfied with the judgment and decree dated
19.10.2010 passed by the learned trial Court in Civil Suit No. 159 of 2004, the
original plaintiff preferred Civil Appeal No. 109 of 2010 in the Court of
learned District Judge, Gurgaon.
4.1 That the first Appellate Court allowed the said appeal by quashing and
setting aside the judgment and decree passed by the learned trial Court and,
consequently, decreed the suit by holding that the original plaintiff is entitled to
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decree of declaration to the effect that the sale deed dated 28.1.2002 executed
by the original defendant no. 1 in favour of original defendant nos. 2 and 3 is
illegal, null and void and that the original plaintiff is entitled to decree of
specific performance of agreement to sell to execute the sale deed as per the
agreement to sell dated 20.4.1987.
4.2 Feeling aggrieved and dissatisfied with the judgment and order of the
learned first Appellate Court setting aside the order of the learned trial Court,
original defendant nos. 2 and 3 preferred R.S.A. No. 4015 of 2011 before the
High Court. By the impugned judgment and order dated 29.2.2016, the High
Court has allowed the said appeal and consequently set aside the judgment and
decree of the first Appellate Court and dismissing the suit qua other reliefs and
has restored the judgment and decree passed by the learned trial Court.
4.3 Feeling aggrieved and dissatisfied with the impugned judgment and
order of the High Court, the original plaintiff has preferred the present appeal.
5. Heard Mr. Shyam Divan, learned senior counsel appearing on behalf of
the appellant and Mr. Dhruv Mehta, learned senior counsel appearing on behalf
of the respondents at length.
5.1 Learned counsel appearing on behalf of the appellant herein vehemently
submitted that, in the facts and circumstances of the case, the High Court has
committed a grave error in quashing and setting aside a well reasoned
judgment passed by the first Appellate Court and, that too, in the second
appeal. It is further submitted that, as such, the plaintiff paid the entire
7
consideration at the time of execution of the agreement/agreement to sell dated
20.4.1987 and, even thereafter, the entire stamp duty was paid by the plaintiff
and, therefore, as such, nothing further was pending to be done, except
executing the deed in favour of the original plaintiff by original defendant no.
1. It is submitted that even the plaintiff was also put in possession at the time
of execution of the agreement to sell dated 20.4.1987 and the General Power of
Attorney by original defendant no. 1 in favour of the original plaintiff. It is
submitted that, therefore, the sale was complete in favour of the plaintiff and,
hence, the learned trial Court ought to have decreed the suit in toto and the
learned first Appellate Court, therefore, rightly decreed the suit, which ought
not to have been quashed and set aside by the High Court.
5.2 It is vehemently submitted by the learned counsel appearing on behalf of
the appellant herein that the aforesaid vital/material aspects have not been
considered in true spirit by the High Court and that the High Court has
materially erred in quashing and setting aside a well reasoned judgment and
order passed by the first Appellate Court.
5.3 It is further submitted that the High Court has materially erred in
quashing and setting aside the judgment and order passed by the first Appellate
Court on the ground that there was no prayer for specific performance of the
agreement to sell dated 20.4.1987 and, therefore, the plaintiff was not entitled
to any decree for specific performance which was granted by the learned first
Appellate Court. It is submitted that, as such, there were necessary averments
8
in the plaint and even the reliefs sought in the plaint can be said to be the relief
for specific performance and even the issue no. 3 would cover the relief with
respect to specific performance. It is submitted that, therefore, the High Court
has committed a grave error in quashing and setting aside the order passed by
the first Appellate Court and, consequently, dismissing the suit.
5.4 It is further submitted by the learned counsel for the appellant that the
High Court has not properly appreciated the facts that not only the substantial
amount was paid at the time of execution of the agreement/agreement to sell
dated 20.4.1987, even the subsequent installments were also paid by the
plaintiff and all the notices of demand of installments and other expenses were
directly between the plaintiff and the developer M/s Ansal Properties and that
the plaintiff paid the entire installments up to 20.4.1990.
5.5 It is further submitted that the High Court has not properly appreciated
the fact that after the title deed/sale deed was executed by the developers M/s
Ansal Properties in favour of defendant no. 1 by the sale deed dated 31.3.1994,
the original defendant no. 1 assured the plaintiff that he will get the sale deed
executed in his favour. However, subsequently, the original defendant no. 1
did not execute the sale deed in favour of the original plaintiff and, on the
contrary, superciliously sold the suit property in favour of the original
defendant nos. 2 and 3 and, therefore, the plaintiff was constrained to file the
suit. It is submitted that, therefore, the sale deed executed by original
defendant no. 1 in favour of defendant nos. 2 and 3 was illegal, null and void
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and, therefore, the same was rightly declared to be illegal, null and void ab
initio by the first Appellate Court.
5.6 By making the above submissions, it is requested to allow the present
appeal and quash the impugned judgment and order passed by the High Court
and consequently restoring the judgment and order passed by the first
Appellate Court and to decree the suit.
6. The present appeal has been vehemently opposed by the learned counsel
appearing for the original defendant nos. 2 and 3. It is vehemently submitted
on behalf of the original defendant nos. 2 and 3 that the High Court has rightly
allowed the appeal preferred by the original defendant nos. 2 and 3 and rightly
quashed and set aside the judgment and order passed by the learned first
Appellate Court granting relief for specific performance of agreement to sell
dated 20.4.1987. It is submitted that in absence of any specific prayer in the
plaint/suit asking the decree of specific performance of Agreement to Sell, as
rightly observed by the High Court, the first Appellate Court was not justified
in granting the relief of specific performance of agreement to sell dated
20.4.1987.
6.1 It is further submitted on behalf of the defendant nos. 2 and 3 that, even
otherwise, the suit was barred by limitation. It is submitted that the original
plaintiff claimed the reliefs on the basis of the agreement to sell dated
20.4.1987, however, the suit was instituted in the year 2004. It is further
submitted that even the title deed/sale deed in favour of defendant no. 1 by the
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developers M/s Ansal Properties was executed in the year 1994 and that the
original plaintiff was in knowledge of the same since the year 1994, still he
instituted the suit in the year 2004 only, i.e. after a period of 10 years. It is
submitted that, in the meantime, the original plaintiff did nothing to get the sale
deed executed in his favour and/or in favour of his nominee. It is submitted
that thereafter even the sale deed in favour of original defendant nos. 2 and 3
was executed by the original defendant no. 1 in the year 2002, which was a
registered sale deed with value and on payment of full sale consideration and
the original plaintiff instituted the suit in the year 2004 only. It is submitted
that, therefore, on consideration of evidence and in the circumstances of the
case, the High Court has rightly interfered with the judgment and order passed
by the first Appellate Court and, consequently, has rightly dismissed the suit.
6.2 Learned counsel appearing on behalf of defendant nos. 2 and 3 has
submitted that, in the facts and circumstances of the case, and to buy the peace
and to put an end to the entire litigation, they are even ready and willing to pay
Rs.10,00,000/- to the original plaintiff as ex-gratia, which may be over and
above the decreetal to be paid by the original defendant no. 1 pursuant to the
judgment and decree passed by the learned trial Court.
7. Heard the learned counsel for both the parties at length and perused the
judgment and decree passed by the learned trial Court and the judgment and
orders passed by the Courts below.
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7.1 At the outset, it is required to be noted that in the suit the original
plaintiff sought the relief of declaration and permanent injunction only and
there was no specific prayer of specific performance of the agreement to sell
dated 20.4.1987. It is also required to be noted that even the original plaintiff
submitted the application under Order 6 Rule 17 CPC to amend the plaint by
seeking relief of specific performance of the agreement to sell dated
20.4.1987. However, the same came to be dismissed and the same has attained
the finality. Even there was no specific issue framed by the learned trial Court
for specific performance with respect to the agreement to sell dated 20.4.1987.
Nothing is on record that, at any point of time, the original plaintiff made any
grievance with respect to the non-framing of the issue with respect to specific
performance of the agreement to sell dated 20.4.1987. Even no effort was
made before the learned trial Court to re-frame the issue. Therefore, as such,
there was no specific prayer for specific performance of the agreement to sell
dated 20.4.1987. Despite the above, the first Appellate Court granted relief of
specific performance of he agreement to sell dated 20.4.1987 for which there
was no prayer in the plaint. Therefore, the High Court was justified in
reversing the judgment and order passed by the first Appellate Court granting
relief for specific performance of the agreement to sell dated 20.4.1987.
7.2 Even the High Court is justified in not granting the other reliefs prayed
in the suit, namely, the declaration that the original plaintiff is the owner and in
possession of the suit property and even the suit for permanent injunction. It
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is also required to be noted that the original plaintiff claimed reliefs on the
basis of the agreement to sell dated 20.4.1987 and the general power of
attorney executed in the year 1987. The agreement dated 20.4.1987 is rightly
considered to be the agreement to sell only. The case on behalf of the original
plaintiff that the agreement to sell dated 20.4.1987 was a complete sale and it
was a sale deed cannot be accepted for the simple reason that the said
agreement/agreement to sell dated 20.4.1987 was not a registered one and even
the same was not on the proper stamp duty and, therefore, as such, the same is
not admitted in evidence and the same can be used only for the collateral
purpose. Therefore, the agreement to sell dated 20.4.1987 is rightly
considered to be the agreement to sell only. Even considering the submissions
made by the learned counsel appearing on behalf of the plaintiff and even
considering the averments made in the agreement to sell dated 20.4.1987, the
same can be said to be an agreement to sell only, as even the title deed/sale
deed in favour of the original defendant no. 1 was executed in the year 1994.
Therefore, both the learned trial Court and the High Court are justified in
refusing to grant of declaration as sought in the plaint.
7.3 Even otherwise, the plaintiff is not entitled to the reliefs sought in the
plaint even on the ground of limitation also. It is required to be noted that the
agreement/agreement to sell and the general power of attorney were executed
in the year 1987, on the basis of which the plaintiff had sought for the reliefs in
the year 2004. Even, according to the plaintiff also, the title deed/sale deed in
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favour of the original defendant no.1 executed by the developers M/s Ansal
Properties was in the year 1994. Considering the evidence on record and even
considering the case on behalf of the plaintiff, it appears that throughout the
plaintiff was aware of the execution of the title deed/sale deed in favour of the
original defendant no. 1 executed in the year 1994, still the suit has been
instituted in the year 2004 only, i.e. after a period of 10 years. Nothing is on
record that any steps were taken by the original plaintiff to get the sale deed
executed in his favour and/or in favour of his nominee. Therefore, the suit has
been instituted after a period of 17 years after the execution of the
agreement/agreement to sell dated 20.4.1987 and after a period of 10 years
from the date of the title deed/sale deed in favour of the original defendant no.
1. Considering the aforementioned facts and circumstances of the case, the
plaintiff is not entitled such reliefs, except of decree of recovery of amount
paid to the original defendant no. 1.
7.4 In the aforesaid facts and circumstances of the case, we are in complete
agreement with the view taken by the learned trial Court as well as that of the
High Court, in not granting the other reliefs and granting the decree of
recovery of the amount paid by the original plaintiff to the original defendant
no. 1 only. In view of the reasons stated above, we see no reason to interfere
with the judgment and order passed by the High Court and, consequently, the
present appeal deserves to be dismissed and is accordingly dismissed.
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8. However, as agreed, the original defendant nos. 2 and 3 are directed to
pay a sum of Rs.10,00,000/- to the original plaintiff ex-gratia, which they have
agreed to pay to put an end to the litigation and to buy a peace, to be paid to the
original plaintiff within a period of six weeks from today. On payment of the
aforesaid amount of Rs.10,00,000/- to the original plaintiff by original
defendant nos. 2 and 3, any proceedings pending between the parties, if any,
shall stand terminated.
9. With the above observations and directions, the present appeal stands
dismissed, however, with no costs. I.A., if any, stands disposed of.
………………………………..J.
(UDAY UMESH LALIT)
………………………………..J.
(M. R. SHAH)
New Delhi,
November 16, 2018
