Abhay M. Naik, J.@mdashThis appeal has been preferred by the defendant against the judgment and decree for declaration, specific performance of agreement to sell and perpetual injunction passed by the Court of Additional District Judge, Sheopur in Civil Suit No. 07-A/2002. Brief facts relevant for the purpose of this appeal are that the plaintiff/ respondent instituted a suit mainly with the allegations that there situates a shop (suit shop), which is comprised in immovable property in Todi Bazar, Sheopur. The suit shop was obtained by plaintiffs father on rent from defendant''s father. Defendant is brother of wife of plaintiffs elder brother, namely Ram Avtar. After father''s death, defendant disclosed that the suit shop was allotted to his share. He on 22.08.1988 entered into an oral agreement of sale in respect of ground floor premises (i.e. the suit shop) for a consideration of Rs. 1,75,000/-. Plaintiff paid Rs. 20,000/- in cash towards part of consideration. Balance consideration was to be paid up to 22.07.1988 and in case of delay, interest was made payable. It was further agreed that on receipt of payment of entire consideration, the plaintiff would cease to be a tenant in the suit shop and would remain in occupation as its owner. Plaintiff paid in all Rs. 1,71,000/- up to 22.07.1988 on various dates. Balance amount with interest to the tune of Rs. 9,762/- was adjusted by the defendant in his shop''s account. Thus, plaintiff ceased to be a tenant with effect from 11.02.1990 and continued in occupation of the suit shop as its owner. Plaintiff made the payment of house tax thereafter till August, 1999, when the name of the defendant was mutated in the municipal record. However, the plaintiff did not insist for execution of registered sale-deed in view of close relationship with the defendant. Defendant in July, 2000, issued notice through his lawyer for eviction and recovery of arrear of rent. It was duly replied by the plaintiff, mentioning therein about the oral sale agreement as well as demanding execution of the registered sale-deed in his favour. Defendant did not pay any heed to it. Hence, the suit was instituted on 01.03.2002 for the following reliefs: -
(1) It be declared that the defendant having received the entire consideration as per the oral sale agreement, the plaintiff ceased to be a tenant in the suit shop with effect from 12.02.1990 and is in its occupation as owner.
(2) Defendant be directed to execute registered sale-deed in plaintiff''s favour at latter''s expenses.
(3) Defendant be restrained from interfering and/or dispossessing the plaintiff from the suit shop.
2. Defendant submitted his written statement, denying thereby claim of the plaintiff. He, inter alia, stated that Civil Suit No. 68-A/2000 for eviction and recovery of arrears of rent is also pending against the plaintiff in the Court of 2nd Civil Judge, Class-II, Sheopur. According to him, plaintiff is a tenant in the suit shop. However, it has been denied that the defendant entered into an oral or written agreement to sell the suit shop to the plaintiff. It is denied that the defendant received any amount towards consideration. Defendant issued a notice on 22.07.2000 by registered post to the plaintiff for eviction and recovery of arrears of rent. Plaintiff, despite service of notice, did not give any reply and did not take any objection. Defendant, after expiry of the prescribed period, instituted a suit on 14.11.2000 for eviction and recovery of arrears of rent. The suit of the plaintiff is concocted one. This apart, the suit is also barred by limitation.
3. Learned trial Judge recorded the evidence and thereafter granted the decree in plaintiff''s favour vide impugned judgment and decree. Hence the present appeal.
4. Shri Ankur Mody, learned counsel appearing for the appellant and Shri P.C. Chandil, learned counsel appearing for the respondent made their respective submissions, which have been considered in the light of material on record.
5. It has been contended on behalf of the defendant/appellant that the learned trial Judge has not appreciated the evidence in correct perspective and has committed illegality in granting decree on the basis of alleged oral agreement of sale.
Shri P.C. Chandil, on the other hand, supported the impugned judgment and decree.
6. In the case of
The 1st question that arises for decision is whether the agreement pleaded in the plaint is true. The burden of proving that agreement is naturally on the plaintiff. The agreement in question as mentioned earlier is said to be an oral agreement. Therefore the plaintiffs task is all the more difficult.
Thus, it is clear that for grant of decree for specific performance on the basis of oral agreement of sale there must be clear, cogent and definite evidence, leaving no room for doubt in the mind of the Court about existence of ingredients requisite for grant of such performance. Since in a suit for specific performance on the basis of oral agreement burden on the plaintiff is very heavy, the evidence on record must be highly weighty inspiring the confidence as well as conscience of the Court. There must not exist gaps in the pleadings and evidence and the conduct of the plaintiff must be such that the conscience of the Court would compel it to pass a decree for specific performance and the Court must be of the opinion that non- grant of such a decree would lead to injustice.
On the above parameters, now this Court is required to examine the pleadings, evidence, conduct of the parties, reasons assigned by the trial Court and to re-appreciate the evidence, if required.
7. Undisputedly, the father of the plaintiff obtained the suit shop on rent from father of the defendant and after his death, plaintiff continued in its possession. Admittedly further, the defendant claiming himself to be landlord instituted a suit against the father of the defendant and defendant himself for eviction and arrears of rent, which was pending when the plaintiff issued a notice to the defendant, requiring latter to execute a registered sale-deed in former''s favour in respect of the suit shop. In the said notice issued by the plaintiff, there was merely a mention about agreement without specifying it to be oral or written. Defendant vide his reply Ex. P/11 requested the plaintiff to supply a copy of the agreement, which was not further responded to.
8. In the plaint, it has been mentioned that the oral agreement with the defendant was made on 22.02.1988 and a sum of Rs. 20,000/- towards part of consideration was made, in cash. Balance consideration was to be paid up to 22.07.1988, as per the agreement and in case of failure to make payment of entire balance consideration, it was agreed that the plaintiff would pay interest on the amount of deposit. It is important to note that rate of interest was not pleaded at all in the plaint. It was equally not pleaded in the notice Ex. P/8. Since the plaintiff himself has pleaded that he failed to make payment of balance consideration within the stipulated period of five months, it was obligatory on his part to prove that a particular rate of interest was agreed for the balance money under default. For the first time, in the examination-in-chief, plaintiff stated that interest was payable at the rate of 2% per month. Agreed rate of interest was a necessary factor to enable the Court to work out the exact consideration payable by the plaintiff, in the facts and circumstances of the ease in hand. Learned trial Judge, ignoring the present case to be based on oral agreement, has failed to take into consideration the fact of absence of pleadings about rate of interest in relation to the amount of consideration under default. Plaintiffs witnesses, namely, Raghuveer Prasad Bairagi (PW-2), Ram Avtar Mangal (plaintiff''s real brother as PW-4) have claimed to be present, but have not stated in the witness box that interest for the amount of consideration under default was agreed at the rate of 2% per month.
9. It is not only a case based on oral agreement but no money transaction is shown to have been made under the signatures of defendant, although advance money to the tune of Rs. 20,000/- and further seven installments are also shown to have been paid without obtaining any receipt from the defendant. Plaintiff in paragraph 22 of his statement has clearly admitted that it was not agreed that the amount of balance consideration would be paid in installments. Thus, provision for making payment of consideration in installments is not stated to have been agreed by plaintiff and defendant in the plaint or even in the notice Ex. P/8. Not a single receipt was obtained by the plaintiff from the defendant, plaintiff / respondent has not produced any ledger containing entries with regard to payment of installments towards consideration. He has further admitted in paragraph 23 of his statement that no such entries were made in the ledgers pertaining to his business. Ex. P/1, P/2 and P/8 are not the pages of ledger which is usually written and maintained in the ordinary course of business. Learned trial Judge must be conscious of the fact that since the agreement of sale is stated to be oral and plaintiff has claimed to have made payment of the entire consideration, it was obligatory on the part of the plaintiff to prove by cogent definite evidence, the factum of payment of consideration. Further, plaintiff has shown to have made payment of various installments on various dates, which include payment of Rs. 20,000/- on 22.02.1988, Rs. 42,000/- on 05.06.1988, Rs. 25,000/- on 04.08.1988 and Rs. 51,000/- on 27.09.1988, but there is nothing on record that to show that such amounts were withdrawn or debited from the plaintiffs account or was readily available with him in order to make payment to the defendant. As regards Ex. P/l and P/2, they are stated to have been furnished by the defendant to the plaintiff under his own handwriting. Plaintiff has nowhere stated that the said documents were written in his presence or that the plaintiff is acquainted with the handwriting of the defendant. No handwriting expert has been examined about the defendant''s alleged handwriting on these three papers. Contrary to this, defendant himself has appeared in the witness box and has denied to have delivered Ex. P/1, P/2 and P/8 to the plaintiff. He has further denied to have received any money towards consideration from the plaintiff. Witnesses of the plaintiff have also not identified the handwriting of the defendant on these three documents. Thus, Ex.P/1, P/2 and P/8 are not found to have been proved and consequently, learned trial Judge is found to have committed legal error in considering the aforesaid documents and in relying upon them, while passing the impugned judgment. This apart, Ex. P/l is the original document whereas Ex. P/8 is a photocopy of it. On its back side, entries are shown to have been made about payment of consideration to the tune of Rs. 1,71,000/-. It does not bear signatures of the defendant. Thus, the defendant is not proved to have admitted the receipt of the alleged installments mentioned on the back side. This apart, on Ex. P/8 (photocopy of Ex. P/1) there appears an additional line about deposit of Rs. 20,000/-. This has been marked as ''A'' to ''A'' on the back of Ex. P/8, whereas no such line appears on the original Ex. P/1. Apart from this, there is overwriting and cutting on all the three documents, which show that the said documents must have been handled. If the said mark of ''A'' to ''A'' in Ex. P/8 was not available in the original Ex. P/1, there is no justifiable reason to have the same inserted in the photocopy marked as Ex.P/8. Plaintiff has stated in the plaint that he ceased to be a tenant on making payment of the entire consideration (lastly on 12.12.1988) yet in the document Ex. P/2 showing the position of account as per the plaintiff up to 22.01.1990, rent is shown to be due in respect of period subsequent to 12.12.1988. This makes the case of plaintiff doubtful, more so, because alleged agreement of sale as well as all the money transactions are shown to be without receipt/signatures/ acknowledgment of the defendant.
10. Ex. P/8 is virtually a photocopy of Ex. P/1; except that, on the back side an entry of amount of Rs. 20,000/- as deposit is shown to have been made from ''A'' to ''A''. This entry is not present on the original Ex. P/1. If such a photocopied entry is available on the back side of Ex. P/8, it ought to have been present in original marked as Ex. P/1. No explanation is on record that how does there appear photocopied entry of Rs. 20,000/-, when the same is not available on its original marked as Ex. P/1. Besides this, there is apparent overwriting and cuttings on all the three documents Ex. P/1, P/2 and P/8. Aforesaid state of affairs clearly goes to show that the documents have been handled so as to cause prejudice to the opposite party and do not reflect the correct factual position. Learned trial Judge, without taking into consideration the aforesaid aspect, has committed a grave error in relying upon them to pass a decree for specific performance on the basis of oral agreement of sale that, too, on such scanty and shaky evidence.
11. It is true that evidence is not to be pleaded at all yet the plaintiff chose to plead that the oral agreement was entered into in presence of Babulal Khatik, Raghuveer Prasad Bairagi and Ram Avtar. Their names were not earlier mentioned in notice Ex. P/8. It was also equally not mentioned in the notice that the alleged agreement was oral or written. Defendant in his reply vide Ex.P/11 requested the plaintiff to furnish him a copy of the alleged agreement but the same was not responded and defendant was not informed that the agreement was not in writing but was oral.
12. Admittedly, defendant is brother of wife of plaintiff elder brother Ram Avtar. However, they were not having cordial relations, as revealed in the evidence. Plaintiff has admitted that defendant and his family was outcasted from Agrawal society. Eviction proceedings between the parties were going on before the Rent Controlling Authority. Plaintiff has expressed ignorance about non-participation of defendant''s family in the marriage of his nephew. Suggestion was put to him that plaintiff''s father had garlanded defendant''s father by shoes and had burnt his effigy. Similarly, plaintiff and defendant did not participate in family functions of each other. Considering all this, it does not seem probable that the parties would enter in to an oral agreement and that payment of consideration to the tune of Rs. 1,71,000/- in cash would be made in installments, without obtaining receipts or without obtaining acknowledgments. Conduct of the plaintiff in such a situation does not inspire confidence of the Court, especially in a suit like the present one for specific performance based on alleged oral agreement of sale.
13. Plaintiff in paragraph 1 of his statement stated that it was agreed that the defendant would execute registered sale-deed in his favour, on receipt of entire consideration. This agreement is stated to have been made on 22.02.1988. Payment of entire consideration is stated, as per paragraph 6 of the plaint, to have been made up to 12.12.1988. Accordingly, plaintiff could have insisted the defendant to execute the registered sale-deed in his favour. Plaintiff did know very well that he was not having any signed agreement in his favour and /or any document about having received the consideration, yet he did not choose to issue any notice, requiring the defendant to execute the registered sale deed in his favour. It was only that after eviction suit was instituted against him, plaintiff issued notice dated 27.12.2000 Ex. P/8. Defendant obviously did not express his inclination to accede to the plaintiffs demand, as is revealed in the reply Ex. P/11 dated 08.01.2001. Despite this, the plaintiff waited for more than one year and instituted the present suit for specific performance on 01.03.2002. This conduct of the plaintiff also does not inspire confidence, especially in the suit for specific performance based on alleged oral agreement of sale as well as oral evidence. This has been totally overlooked by the learned trial Judge. Defendant has also raised an objection about limitation, despite this, learned trial Judge did not raise any issue about limitation and does not decide it in specific. On account of the aforesaid, learned trial Judge is found to have committed grave error by passing decree in plaintiff''s favour, overlooking the aforesaid important aspects.
14. Learned trial Judge has assigned reasons in paragraph 25 of the impugned judgment, which may now be examined.
Learned trial Judge has relied upon the statement of Ram Avtar Mangal by mentioning that he is brother of defendant''s wife, therefore, his statement is reliable against the defendant. Learned trial Judge has overlooked that he is real brother of the plaintiff and his interest is obviously common with the plaintiff, inasmuch as, the suit property in case of success will be acquired by the plaintiff''s family. Learned trial Judge has further mentioned that the defendant has purchased house and land of lakhs of rupees. He must be maintaining the record. He has denied the existence of such record, so that it may not be compared with Ex. P/1 and Ex. P/2. This approach of the learned trial Court is purely based on surmises and conjectures. Plaintiff in a suit for specific performance based on oral evidence, as per the Apex Court, is required to prove the same by cogent and definite evidence. Despite there being proof about non- cordial relations between the plaintiff and defendant, plaintiff failed to adduce any written document or acknowledgment about the alleged oral agreement as well as about receipt of any of the installments of consideration. This being so, merely on the basis of alleged conduct of the defendant, such type of suit cannot be decreed.
Learned trial Judge has further observed that in view of close relationship, written agreement was not executed and plaintiff might have not felt necessity of written agreement. This reason is also illogical because of strained relationship between the parties, as revealed in the evidence.
Learned trial Judge has further found silence of the plaintiff justified on account of relationship. Learned trial Judge has overlooked that the plaintiff had initiated eviction proceedings earlier before the Rent Controlling Authority and thereafter before the civil Court. Plaintiff has clearly stated in paragraph 23 of his statement that it was agreed that the plaintiff after taking payment of the entire consideration shall have a right to get registered sale deed executed in his favour. Payment of last installment is said to have been made on 12.12.1988 whereas the suit is instituted on 01.03.2002. Such a silence on the part of the plaintiff creates doubt of his claim based on oral transactions.
Other reasons assigned by the learned trial Judge are also found unsustainable in law, in view of the Apex Court observation that rarely a decree for specific performance on the basis of agreement supported solely by oral evidence is granted. It has been further observed that oral agreement can be proved but the evidence must be sufficient to satisfy the conscience of the Court. Learned trial Judge appears to have rendered the judgment in a casual manner overlooking the scanty evidence, which cannot form basis of a decree for specific performance on alleged oral agreement. Even the payment of consideration has not been substantiated by documentary proof like ledgers rarely kept in ordinary course of business or by income tax return or by the receipts under the signatures of the defendant. Thus, the impugned judgment and decree are not found to be sustainable in law, in view of the aforesaid discussion.
Accordingly, appeal deserves to succeed and is hereby allowed. The impugned judgment and decree are set aside. Suit of the plaintiff is hereby dismissed, however, with no order as to costs.
C.C. as per rules
