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CASE NO.:

Appeal (civil) 238-239 of 1997

PETITIONER:

RAM KHILONA & ORS.

Vs.

RESPONDENT:

SARDAR & ORS.

DATE OF JUDGMENT: 16/07/2002

BENCH:

D.P.Mohapatra, K.G.Balakrishnan.

JUDGMENT:

D.P.MOHAPATRA,J.

The judgment dated 24.9.1996 passed by the High

Court of Allahabad in Second Appeal Nos. 1974/78 and

1975/78, is under challenge in these appeals filed by Ram

Khilona, Charni, Smt.Kishni W/o Ratni, Hari Ram @

Harbans s/o Ratni, Smt. Mukhtary w/o Buddhi, Sher

Singh s/o Buddhi, Shyam Lal s/o Buddhi and Praye Lal

s/o Het Ram, against Sardar and Sher Singh, sons of

Kanha Jaat, Nehal Singh s/o Todar and Ram Khilari

s/o.Todar (deceased) by his Legal Representatives Veerpal

and Khemo.

In the impugned judgment the High Court allowed

the appeals and set aside the judgment and decree passed

by the Courts below. The operative portion of the judgment

reads :

"In the result, both the appeals

succeed and are accordingly allowed.

The judgment and decree passed by

the courts below in both the suits are

accordingly set aside. Suit No.58 of 69

which was filed by covenators for

specific performance of the agreement

deed (Ext.12) is dismissed with costs

throughout whereas suit No.58 of 71

which had been filed for declaration of

the rights of the vendees over the land

in suit is decreed with costs

throughout. The vendees are

accordingly declared owners of the land

in suit by virtue of the sale deed which

was executed by the vendors

transferring the land in suit in their

favour on 7.5.69."

The factual back drop of the case leading to the

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present proceeding may be stated thus :

The appellants herein filed suit no. 58/1969 in the

Court of the Civil Judge, Mathura against the respondents

herein seeking the following main relief :

"(A) That the suit of the plaintiffs for

specific performance of the contract

for sale on the basis of agreement for

sale dated 19.4.1969 be declared in

favour of the plaintiffs and against the

defendants, and it be directed in the

decree that all the defendants shall

execute the sale deed in favour of the

petitioners after taking Rs.2,000/-

(balance), in respect of the land details

whereof have been given at the foot of

this plaint, and in case, they do not

execute the sale deed within the time

given by the Court, the court may

executed the sale deed, in favour of the

plaintiffs.

(B) That the defendants be ordered by

means of injunction that they shall not

interfere in the possession of the

plaintiffs over the land details whereof

are given at the foot of this plaint and

shall not take the land in their own

possession after dispossessing the

plaintiffs."

The case pleaded by the plaintiffs was that

defendants 1 & 2 entered into an agreement for sale of the

suit land measuring 23.83 acres situated in village

Khitawata, Tehsil Chhata, District Mathura, U.P. on

19.4.1969 for a consideration of Rs.14,000/-. The

plaintiffs paid Rs. 12,000/- to the defendants 1 and 2 at

the time of the execution of the agreement for sale. In

pursuance of the said agreement the defendants 1 and 2

put the plaintiffs in possession of the suit property and

they continued with the possession by carrying on

agricultural activities on the land. Despite several

reminders defendants 1 and 2 did not execute the sale

deed in favour of the plaintiffs. Subsequently, the

plaintiffs came to know that defendants 3 and 4 had got a

sale deed executed in their favour from defendants 1 and

2 in respect of the same property in a clandestine manner

on 7.5.1969 without the knowledge of the plaintiffs. The

plaintiffs asserted in para 7 of the plaint that they had

been and were ready and willing to get the sale deed

executed from the defendants 1 and 2 after paying the

balance amount of sale consideration.

Since the defendants 1 and 2 failed to keep their

promise for sale of the suit land to the plaintiffs the later

had to file the suit seeking reliefs noted above. The

defendants 1 and 2 filed their written statement refuting

averments made by the plaintiffs in the plaint. It was their

case that they had sold the suit land to defendants 3 and 4

on 7.5.1969 for Rs.15,000/-. It was their further case that

on that date they were in possession of the land and

delivered possession of the same to defendants 3 and 4 in

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pursuance of the sale deed. Thereafter the defendants 3

and 4 possessed the land and made certain improvements

thereon. In para 7 of the written statement it was averred,

inter alia, that defendants 1 and 2 did not execute any

sale deed in favour of the plaintiffs nor did they take any

amount as advance money. It was the further case of the

said defendants that they had executed the sale deed in

favour of defendants 3 and 4 openly and to the knowledge

of the plaintiffs; that the so called agreement was forged

and fictitious and the thumb impressions therein were

obtained by fraud and defendants 1 and 2 did not receive

any amount towards consideration.

Defendants 3 and 4 filed separate written statements

countering the averments made in the plaint. They also

took the stand that the so called agreement for sale said to

have been executed by the defendants 1 and 2 was a

forged and fictitious document and it was doubtful that

they bore the signature and thumb impressions of

defendants 1 and 2. It was also averred in the written

statement that the plaintiff by exerting influence on

defendants 1 and 2 and by playing fraud on them got the

thumb impression on blank stamp paper after the sale

deed was executed in their (defendants 3 and 4) favour.

Defendants 3 and 4 asserted in para 9 of the statement

that one of the witnesses of the so called agreement i.e.

Harchandi happens to be father in law in distant

relationship and they are very intimate to each other, the

other witness hails from the plaintiff's party and bears

malice for the defendants. All the defendants prayed for

dismissal of the suit. Respondents 1 and 2 herein filed

original suit no. 58 of 1971 against the appellants and

respondents 3 and 4 herein and against one Dharam Lal in

the Court of Civil Judge, Mathura seeking the following

main reliefs:

" That it may be declared that the land

in suit described at the foot of this

plaint has been in possession of the

plaintiffs and is held in custodia legis

by the Sub-Divisional Magistrate

Chhata in the proceedings u/s 145 of

the Criminal Procedure Code Ram

Khilona Versus Sardar and others for

the benefit of the plaintiff and is liable

to be released in their favour and is

not liable to be released in favour of the

defendants no. 1 to 5 as observed by

the learned Munsif Mathura in

Criminal Reference No.41 of 1970

under section 146 Cr.P.C. on

12.5.1971."

Subsequently, the plaint was amended to include the

prayer for recovery of possession of the suit land in favour

of the plaintiffs. The gist of the case pleaded by the

plaintiffs in that suit is that on 7.5.1969 defendants 6 and

7 executed a sale deed of the suit land, having an area of

23.83 acres under Chhak No.92 of village Khitawata,

Pargana Chhata, District Mathura in favour of the

plaintiffs for a sum of Rs.15000 and delivered possession

of the land to them. Immediately after getting the

possession of the land on 7.5.1969 the plaintiffs irrigated a

portion of said chak from tubewell situated in chak no.99

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belonging to one Lekhi s/o Hiralal and his brothers

Dharam Lal and Ramlal, and sowed the sugarcane crop in

the said portion. The plaintiffs applied for mutation of

their names in the revenue records which was duly made

on 13th June, 1969. The plaintiff asserted that defendants

1 to 5 were personally aware of the execution of sale

deed; of the possession of the plaintiffs over the said

chak and also of the mutation proceedings. The further

case of the plaintiffs was that in order to deprive them of

the property the defendants 1 to 5 made some

manipulations and got a document manufactured which is

alleged to be an agreement of sale in their favour. In para

12 of the plaint the plaintiffs averred that on 10.7.69 the

defendants 1 to 5 filed civil suit no.58 of 1969 in the

Court of Civil Judge, Mathura for specific performance of

the alleged agreement of sale and obtained an ad-interim

injunction. The injunction order was vacated by the civil

Judge on 29.7.1969. In appeal the District Judge by the

order dated 2.8.1969 issued direction for maintenance of

status quo. In paragraphs 18 to 24 the plaintiffs made

averments regarding injunction against the proceeding

under section 145 Cr. P.C. on the basis of the police report

dated 23.12.1969 of the apprehended breach of peace; the

preliminary order passed by the Sub-Divisional Magistrate,

Chhata on 30.12.1969 and the order dated 21.3.1970

attaching the land, and the order passed by the learned

Magistrate on 9.11.1970 referring the dispute to the Civil

Court under Section 146 of the Criminal Procedure Code.

In para 23 of the plaint it is stated that on 12.5.1971

learned Munsif, Mathura gave his finding holding that

defendants 1 to 5 were in possession of the land in dispute

on 13.12.1969 and within two months before the said date.

The plaintiff apprehending that on the basis of the finding

of the Munsif the Sub-Divisional Magistrate is likely to

deliver the possession of the land in dispute to defendants

1 to 5 by 3.6.1971, filed a suit for declaration and

injunction.

In the written statement filed by the appellants

herein the averments and the allegations made in the

plaint were denied. The case pleaded by the said

defendants in the plaint or original suit No.58/1969 was

reiterated in the written statement filed by them. The

learned Additional Civil Judge, Mathura in the judgment

dated 21.12.1974 decreed suit no.58 of 1969 and

dismissed suit no.58/1971. The operative portion of the

judgment reads as follows:

"The suit no.58/1971 is dismissed with

costs payable to the covenantees who

are defendants no. 1 to 5. The other

defendants would get no costs. The

suit no. 58 of 1969 is decreed with

costs payable by all the defendants of

that suit. The 5 covenantees Ram

Khilona and others who are plaintiffs of

suit no.58/1969 will deposit Rs.2000/-

in 45 days from the date of this order.

In default their suit is to stand

dismissed with costs to the defendants

of that suit. Upon the deposit of the

amount within the time allowed the

original owners and vendees who are

the defendants of suit no.58/1969

would execute the sale deed in favour

of the covenantees on a date notified by

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the latter by registered mail. If the

original owners and vendees do not

comply with the covenantees notice

appointing the date for the execution of

the sale deed the deed would be

executed by the court at the instance

of the covenantees and at the expenses

of the owners and the vendees.

Let a copy of this judgment be placed

upon the record of the original suit

no.58 of 1971."

The respondents 1 and 2 herein filed civil appeal Nos.

3 and 4 of 1975 challenging the judgment of the learned

Additional Civil Judge. The appeals were dismissed by the

learned Additional District Judge, Mathura by the

judgment rendered on 6.5.1978 and decrees of the trial

court in both the suits were confirmed. Being dissatisfied

with the decision of the Courts below respondents 1 and 2

herein filed second appeal Nos. 1974/78 and 1975/78 in

the High Court which were decided by the Judgment

dated 24.9.1996 of the single Judge allowing both the

appeals, as noted earlier. The said judgment is assailed by

the appellants in the present appeals.

At the time of admission of the appeal, the High

Court formulated the question of law for examination in

following terms :

"Whether the transfer in favour of the

defendant-appellants (vendee for this

judgment) was protected by Section 41

of Transfer of Property Act and/or

Section 19 of the Specific Relief Act"?

In the impugned judgment the learned Judge has observed

that : "Shri Murlidhar, learned Senior Advocate who

appeared for appellants (vendees) in both the appeals has

not given emphasis to challenge the finding of fact which

have been recorded by the courts below for decreeing the

suit No.58 of 69 and for dismissing Suit No.58 of 71

against which review can be legally sought by the

appellants in substantial question of law having been

either wrongly decided or left undecided though it was

required to be decided for having arisen in the case." It

has been further observed in the judgment that "Shri

Murlidhar also did not press the appeal on the question of

law on which the appeal was admitted for hearing by this

court at the stage of Order 41 Rule 11 of the Code of Civil

Procedure." After discussing the merit of the question of

applicability of Section 41 of the Transfer of Property Act,

the High Court observed "On the findings of fact finally

settled by the courts below, concedes Mr.Murlidhar also,

vendees cannot invoke the provisions of Section 41 of the

Transfer of Property Act. Protection of the said provision

for saving the transfer of the land in suit in their favour

therefore cannot be availed of by the vendees on the facts

finally settled by the courts below Section 41 is not

attracted."

Regarding Section 19 of the Specific Relief Act,

the High Court observed that the said section has no

application to the case at all. The resultant position after

discussion of the substantial question of law framed was:

"the result of the above discussion therefore is that this

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appeal cannot succeed on the points raised in its support

in the memo of appeal". Thereafter the High Court

proceeded to consider the contention raised by Shri

Murlidhar, learned counsel for the appellant, that in view

of the observations made by the lower appellate Court

which has been quoted in the impugned judgment the

position was clear that previously the witnesses in the

document were Harchandi and Tuhi Ram but

subsequently by making some over-writings the names of

Mool Chand and Ram Swarup were made witnesses in the

document. The relevant observation stated to have been

made by the lower appellate Court to this effect reads :

"A mere look to this stamp reveals

that previously the witnesses were

somebody else and by doing

overwriting Mool Chand and Ram

Swarup were made witnesses. If really

Mool Chand and Ram Swarup were the

attesting witnesses of the deed, their

thumb impression and signatures

respectively should also have been on

the first stamp paper. It appears that

originally Harchandi and Tahi Ram

were the witnesses even on the second

stamp paper, but subsequently the

names of Mool Chand and Ram

Swarup were introduced by doing

overwriting. This raises a strong

suspicion against the genuineness of

the fact that Mool Chand and Ram

Swarup were really the attesting

witnesses originally and in their

presence the deed was executed.

Keeping this fact in view, the evidence

of Mool Chand and Ram Swarup will

be judged."

From the observations of the lower appellate Court the

High Court inferred that the case of the appellants that

alterations had been made by the covenantors in the

agreement of sale (Ext.12) for introducing Ram Swarup

and Mool Chand, two independent persons, as marginal

witnesses of the said agreement. The High Court took the

view that the interpolation for introducing the two

independent marginal witnesses in the agreement of sale

was made so as to give authenticity to the said agreement

of sale. Then the High Court considered the question

whether the interpolation made in the document was a

material alteration or not? The High Court took note of the

decisions of this Court in the case of M.S.Anirudhan vs.

Thomco's Bank Ltd., AIR 1963 SC 746 which was cited by

the learned counsel for appellants before the Court and the

case of Kaliana Gounder vs. Palani Gounder & Anr., AIR

1970 SC 1942 which was cited by the learned counsel for

the respondent. The High Court also took note of the rule

laid by the Supreme Court to the effect :

"The Supreme Court, however,

proceeded to lay down the law on the

subject presuming that the change

complained of by the defendant was

made subsequently by an unilateral

act of the plaintiff or on his behalf.

The Supreme Court held that since the

additions made in the instrument were

inconsequential as it merely expresses

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that which was implied by law in the

deed as originally written, or which

carries out the intention of the parties

to the agreement already apparent on

the face of the deed and that the

alteration does not otherwise prejudice

the party who is liable under the

agreement deed. The alteration was

not a material alteration."

Testing the case on hand in the light of the principles

noted by him, the learned Judge observed : "In this

background if we test the alteration in question there

should be no iota of doubt left to conclude that by the said

alteration the covenantors tried to add sanctity to the

instrument (Ext.12) which in their opinion, with the

signatures of their relatives and enemies of vendees who

were originally projected as witnesses of the execution of

that instrument, was not likely to pass the test of

genuineness with the tough scrutiny of the law courts

therefore, they thought it necessary to introduce new

names of other two marginal witnesses in place of the

original one's to rule out any doubt about its genuineness."

The learned Judge further observed in the judgment : "the

alteration made by the covenantors in the agreement deed

was thus a material alteration as it was to the prejudice of

the vendors who, in view of the testimony of those two

witnesses, whose names were subsequently introduced in

it, were faced with a difficult situation of failing in their

endeavour to prove that the said agreement deed was

fraudulently manufactured by covenantors on a document

and their signatures were obtained on the pretext of

transfer of some other property". The learned Judge

summed up his findings in the following words :

"On the facts, circumstances and the

legal position already discussed in

detail herein above I am of the view

that the alteration which was made in

the agreement deed by the covenantors

must be held to be a material

alteration which had the result of

avoiding the agreement at the option of

the vendors and was rendered void ab

initio having no binding effect on the

vendors. The agreement, therefore,

cannot be enforced against the vendors

for the reason of its having been

altered without their knowledge and

consent."

From the discussions in the impugned

judgment the sole question that arises for consideration in

these appeals is whether the High Court was right in

setting aside the concurrent decision of the courts below

on recording a finding that the alterations found to have

been made in the agreement of sale by introducing two

more marginal witnesses was a material alteration of the

document?

In Halsbury's Laws of England, 4th Edition at

page 552 para 1378 it is observed :

"A material alteration is one which

varies the rights, liabilities, or legal

position of the parties as ascertained

by the deed in its original state, or

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otherwise varies the legal effect of the

instrument as originally expressed, or

reduces to certainty some provision

which was originally unascertained

and as such void, or which may

otherwise prejudice the party bound by

the deed as originally executed.

The effect of making such an

alteration without the consent of the

party bound is exactly the same as that

of canceling the deed."

In paragraph 1383 at page 555 it is observed :

"An alteration made in a deed, after its

execution, in some particular which is

not material does not in any way affect

the validity of the deed; and this is

equally the case whether the alteration

was made by a stranger or by a party

to the deed. Thus the date of a deed

may well be filled in after execution; for

a deed takes effect from the date of

execution, and is quite good though it

is undated. So, also, the names of the

occupiers of land conveyed may be

inserted in a deed after its execution,

where the property assured was

sufficiently ascertained without them.

It appears that an alteration is not

material which does not vary the legal

effect of the deed in its original state,

but merely expresses that which was

implied by law in the deed as originally

written, or which carries out the

intention of the parties already

apparent on the face of the deed,

provided that the alteration does not

otherwise prejudice the party liable

under it."

It has not been held by the High Court and indeed it was

also not contended before us that the agreement of sale, as

it stood originally, was invalid for any reason. Indeed the

position is accepted that the document did not require any

marginal witnesses for validity in law. All that has been

observed by the High Court is that the covenantees,

appellants herein, might have had an apprehension that as

the marginal witnesses in the original document were

persons closely related to them the Court may not readily

accept the case of the plaintiffs regarding the agreement of

sale; therefore, they subsequently introduced two

independent persons as marginal witnesses in the

document which amounted to interpolating with the

documents. We find from the discussions in the judgment

of the trial Court and the first appellate Court that the

question of addition of marginal witnesses in the document

after its execution was considered by the Courts and was

not believed. The observations of the first appellate Court

quoted by the High Court in the impugned judgment were

mere observations which, as the judgment shows, was not

taken as a substantial matter against the credibility and

acceptability of the case of the plaintiffs in Civil Suit No.58

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of 69. As noted earlier, the trial Court and the first

appellate Court had concurrently accepted the case of the

plaintiffs in C.S.No.58 of 69 and had rejected the case of

the plaintiffs in C.S.No.58 of 71. The Courts in exercise of

the discretionary jurisdiction vested in them under Section

20 of the Specific Relief Act had decreed the suit for

specific performance of the agreement of sale. The High

Court in the impugned judgment has not discussed any

legality by the courts below in taking the decision. It

appears that the High Court has decided the second

appeal on a question neither taken in the memorandum of

appeal nor taken in that form before the courts below and

has upset the concurrent decisions of the courts on a

finding recorded by it. The approach of the High Court in

the second appeal was clearly against the law and spirit of

Section 100 of the Code of Civil Procedure. Further, as

discussed earlier, the view taken by the High Court that

the interpolation said to have been made by the

covenantees in the agreement of sale does not stand

scrutiny under law. As observed earlier such alteration,

assuming that it was made subsequently, did not bring

about any change in the validity and enforceability of the

agreement of sale. We are constrained to observe that the

finding recorded by the High Court appears to be based on

surmise. Therefore, the judgment is clearly unsustainable.

Accordingly, the appeals are allowed with costs.

The common judgment and decree passed by the High

Court on 24th September, 1996 in Second Appeal

Nos.1974 of 1978 and 1975 of 1978 is set aside and the

judgment and decree passed by the First Additional

District Judge, Mathura in Appeal Nos.3-4 of 1975

confirming the judgment and decree in Suit Nos.58 of 1969

and 58 of 1971 is restored. The appellants shall be

entitled to a sum of Rs.20,000/- as hearing fee from the

respondents.