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IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 182 of 1991 (R)

1. Naresh Pathak, S/o Late Jugal Kishore, Substituted vide order

dated 21.04.2022

1(a). Mahendra Pathak @ Ram Kinkar Pathak, aged about 58 years

(already appellant no. 5), S/o Late Naresh Pathak, R/o Kokar Chowk,

P.O. – Kokar, P.S. – Sadar, District – Ranchi, Jharkhand.

1(b). Sushma Devi, aged about 55 years, W/o Satrughan Mishra, D/o

Naresh Pathak, R/o Village- Ramdhanpur, Narhan Kothi, P.O. –

Railway Station, P.S. – Kotwali, District – Gaya, Bihar.

1(c). Krishna Kinkar Pathak, aged about 50 years, S/o Late Naresh

Pathak, R/o Village- Karidih @ Mada, P.O. – Kuba, P.S. – Hunterganj,

District- Chatra. (Dead) Substituted vide order dated 29.09.2022

1(c)(i) Upma Devi, W/o Late Krishna Kinkar Pathak, aged about 53

years.

1(c)(ii) Priyanka Mishra, W/o Manoj Mishra, D/o Late Krishna Kinkar

Pathak.

1(c)(iii) Avinash Kumar Pathak, S/o Late Krishna Kinkar Pathak, aged

about 26 years.

1(c)(iv) Abhishek Kumar Pathak, S/o Late Krishna Kinkar Pathak, aged

about 24 years.

1(c)(v) Preeti Kumari Pathak, D/o Late Krishna Kinkar Pathak, aged

about 22 years.

1(c)(vi) Ashish Kumar Pathak, S/o Late Krishna Kinkar Pathak, aged

about 14 years, represented through its natural guardian mother Upma

Devi, W/o Late Krishna Kinkar Pathak.

All R/o Karidih @ Mada P.O. – Kubba, P.S. – Hunterganj, Chatra,

Jharkhand 825401.

1(d). Hari Kinkar Pathak, aged about 46 years, S/o Late Naresh Pathak,

R/o Karidih @Mada P.O. – Kubba, P.S. – Hunterganj, District- Chatra.

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1(e). Ravi Kinkar Pathak, aged about 44 years, S/o Late Naresh Pathak,

R/o Kokar Chowk, P.O. – Kokar, P.S. – Sadar, District – Ranchi,

Jharkhand.

2. Smt. Suraj Kumari Devi, D/o Late Jugal Kishore Pathak. Substituted

vide order dated 21.04.2022.

2(a). Niraj Kumar Pathak, S/o Late Dhirendra Pathak and grandson of

Late Bindeshsari Pathak.

2(b). Suraj Kumar Pathak, S/o Late Dhirendra Pathak and grandson of

Late Bindeshsari Pathak, S/o Late Dhirendra Pathak and grandson of

Late Bindeshsari Pathak.

2(c). Sanjay Kumar Pathak, S/o Late Dhirendra Pathak and grandson of

Late Bindeshsari Pathak.

2(d). Mirtunjay Kumar Pathak, S/o Late Dhirendra Pathak and grandson

of Late Bindeshsari Pathak.

R/o Karidih @ Mada, P. O. Kuba, P.S. – Hunterganj, Chatra.

2(e). Sachi Devi, W/o Late Prakash Mishra, D/o Late Bindeshwari

Pathak, R/o Village- Augila, P.O. – Lakhna, District- Patna, Bihar.

2(f). Sushila Devi, W/o Shri Uday Nath Pathak, D/o Late Bindeshwari

Pathak, R/o Village- Boga Sadam, P. O. – Domal Ichak, District-

Chatra.

2(g). Nirmala Devi, W/o Shri Sudhir Pathak and D/o Late Bindeshwari

Pathak, R/o Village- Sriyama, P.O.- Mohanpur, District Gaya, Bihar.

3. Smt. Bhanu Devi @ Bhanu Mati Devi, D/o Late Jugal Kishore Pathak,

R/o Quarter No. DT 2121, Dhurwa, H.E.C., P.S. – Jagarnathpur,

District- Ranchi. (Wife of Shri Dineshwar Pathak.) (Deleted vide order

dated 16.08.2018)

4. Denesh Pathak, S/o Late Chandrama Pathak, R/o Quarter No. 2121,

Dhurwa, P.S. – Jagarnathpur, Ranchi. (Deleted and substituted vide

order dated 16/ 04/ 1996)

4(a). Debendra Kumar Pathak

4(b). Birendra Kumar Pathak

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4(c). Sheo Kumar Pathak

4(d). Arun Kumar Pathak

All Sons of Denesh Pathak, at present resident of Mohalla of Ranchi

town P.S. District Ranchi

4(e). Smt. Usha Pathak, W/o Shree Hirdyanand Pandey, resident of Qr.

No. B-II 325 Dhurwa, P.S. Jagarnnathpur, District Ranchi

5. Ram Kishore Pathak, S/o Shri Naresh Pathak, R/o Village- Karidih @

Made, P.S. – Hatarganj, District- Hazaribagh

…. Defendants / Appellants / Appellants

-Versus-

1. Shri Narayan Prasad Sharma, S/o Late Murlidhar Sharma, R/o Village-

Kokar, P.S. – Sadar, District- Ranchi. (Dead) Substituted vide order

dated 17/ 03/ 1998

1(a). Urmila Devi, W/o Shree Gopal Prasad Sharma, D/o Late Narayan

Prasad Sharma.

1(b). Nirmala Devi, W/o Shree Bijoy Sharma, D/o Late Narayan Prasad

Sharma. (Dead) Substituted vide order dated 14/ 11/ 2022

1(b)(i) Narendra Joshi, Husband of Late Nirmal Joshi

1(b)(ii) Ashish Joshi, S/o Late Nirmala Joshi

1(b)(iii) Uma Vyas

1(b)(iv) Jaya Dadhich

1(b)(v) Neha Sharma

1(b)(vi) Shital Sharma

1(b)(vii) Swati Mehra

1(b) (iii) to 1(b) (vii) D/o Late Nirmala Joshi,

All are R/o 5 Raj Ballabh Shah Lane, Howrah, Kolkata, W.B – 711101.

1(c). Renu Sharma, W/o Dilip Kumar Sharma, D/o Late Narayan Prasad

Sharma.

Resp. Nos. 1(a) to 1(c) are residents of C/o Late Narayan Prasad Sharma

of village Kokar, H.B. Road, P.S. Sadar, District Ranchi

……Plaintiffs/ Respondents/ Respondents

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2. Smt. Prabha Devi, D/o Late Jugal Kishore Pathak and W/o Shri Naresh

Pathak, R/o Village- Bansbigha, P.S.- Kabiganj, District- Aurangabad.

…. Defendant/ Appellant/ Proforma Respondent

---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

For the Appellants : Mr. Rajeev Kumar, Advocate

Mr. Bhaiya V. Kumar, Advocate

For the Respondents : Mr. Vishal Kumar Tiwary, Advocate

Mr. Manjeet Kumar Choudhary, Advocate

Mr. Imran Beig, Advocate

---

Reserved On: 04.02.2026 Pronounced On:01.06.2026

1. This second appeal has been filed against judgment 09.07.1991 (decree

signed on 29.07.1919) in Title Appeal No. 79 of 1988, T. R. No. 15 of 1989

passed by the learned Additional Judicial Commissioner, Ranchi confirming

the judgment and decree dated 02.08.1988 passed by the learned Sub- Judge

– II, Ranchi in Title Suit No. 297 of 1982.

2. The defendants lost in both the courts and consequently they are the

appellants before this Court.

3. This second appeal was admitted vide order dated 04.09.1992 by

framing substantial question of law No.(i) and thereafter, an additional

substantial question of law was framed on 03.9.2015 i.e. substantial question

of law No.(ii), and thereafter on 16.08.2018 substantial question of law No.

(iii) was framed. Further, vide order dated 23.12.2025, I.A. No. 12912 of 2025

was filed for rectification of the substantial question of law No. (i) and

considering the submission, the substantial question of law No. (i) framed vide

order dated 04.09.1992 was modified. Thus, following are the three

substantial questions of law to be answered in this case: -

(i) Whether the concurrent finding recorded by both

the courts that the plaintiff was ready and willing to

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perform his part of the contract suffers from any

perversity?

(ii) Whether the agreement dated 18.09.1982 (Exhibit-

2) executed by defendant No.1 in favour of plaintiff or

agreement dated 20.08.1982 (Exhibit-B) executed by

defendant No.3 in favour of defendant No.2 shall prevail

and given effect to?

(iii) Whether the receipt cum extension of time of the

agreement for specific performance of contract marked as

Exhibit 2/1 was inadmissible in evidence for the same

being not duly stamped?

4. Case of Plaintiffs: -

(a) Title Suit No. 297 of 1982 was instituted on 11.12.1982.

(b) The sole plaintiff was Sri Narayan Prasad Sharma against the sole

defendant Jugal Kishor Pathak. However, vide order dated

25.03.1983, other defendants, namely, Dinesh Pathak and Ram

Kinkar Pathak were added as defendant nos. 2 and 3 respectively.

(c) The suit was filed for specific performance of contract with respect

to Schedule-B property which was a part of Schedule-A property.

(d) The defendant no. 2 was added on account of the fact that after the

filing of the suit, the grandson of the sole defendant, namely, Ram

Kinkar Pathak executed sale deed in favour of Dinesh Pathak,

defendant no. 2, who was the own son-in-law of the sole defendant

and it was alleged that the transaction was a sham transaction.

(e) The suit was for a direction upon the defendants by a decree of

specific performance to execute and register a deed of sale in

respect of the suit property described in Schedule-B to the plaint

in pursuant to the agreement dated 18.09.1982 and a further prayer

was made that the defendants be perpetually restrained from

making any dealing or agreement in respect of the suit property

with any person other than the plaintiff.

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(f) Schedule-A and Schedule-B of the plaint are quoted as under: -

Schedule ‘A’

The land with house Kuchha and Pucca situated in

village Kokar P.S. Sadar District Ranchi bearing

Khata no. 239 Plot No. 652 Municipal Holding No.

873 an area of 10 decimals.

Schedule ‘B’

All that the land with Kuchha and Pucca house

situated in Mohalla Kokar, P.S. Sadar, District Ranchi

bearing Khata no. 239, Plot no. 652 Municipal

Holding No. 873 (which is the part of the land of

Schedule ‘A’) which is 15 ft east to west in the

southern side and northern side and 50 ft (approx.)

north to south in the eastern and western side

comprising with three rooms one verandah one court

yard (in the middle) and a gali (north to south in the

western side and a latrine. And which is bounded and

butted as follows: -

North :- Jatru Oraon

South: - Hazaribagh Road

East: - Part of the same house of the Vendor

West: - Dineshar Pathak’s house.

Address of the plaintiff: -

At & village Kokar, Hazaribagh Road, Ranchi, Police

Station Sadar, District & Sub-Judge-Ranchi

(g) It was the specific case of the plaintiff that Schedule-A property

was the self-acquired property of the defendant no. 1 who was a

school teacher and the defendant no. 1 had let out different

portions of Schedule-A property to the tenants and the plaintiff

was a month-to-month tenant with respect to portion of the

property and used to pay rent regularly. The portion in occupation

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of the plaintiff as tenant has been described in Schedule-B to the

plaint.

(h) The defendant no. 1 resided at Hazaribagh at the address given in

the plaint and used to regularly visit Ranchi to collect rent and to

do other works relating to management of his properties. All this

was causing inconvenience to defendant no. 1 and therefore he

approached the plaintiff in the month of September 1982 and

represented that he was in urgent need of money and offered to sell

the property to the plaintiff at a consideration amount of Rs.

10,000/- and the plaintiff accepted the offer. The parties decided

to reduce the terms of agreement in writing by executing a formal

agreement and therefore they engaged the services of Sri Kashi

Prasad Sahu, Advocate, who on 18.09.1982, prepared an

agreement in his writing on a proper stamp paper. The agreement

was explained and read over to the parties in presence of the

witnesses where both the parties and witnesses signed the

agreement and a sum of Rs. 2,000/- only was paid by the plaintiff

to the defendant as advance against the agreed consideration

amount. A copy of the agreement was annexed to the plaint.

(i) It was the case of the plaintiff that as per the agreement, the sale

was to be completed within one month. Before expiry of the

stipulated period of one month, the defendant no. 1 came to the

plaintiff and asked for further sum of Rs. 1,000/- as advance

against consideration money and that the period of completion of

sale be extended till 17.11.1982. The plaintiff and the defendant

again went to Sri Kashi Prasad Sahu, Advocate on 11.10.1982 and

on their instruction, the payment of further advance and extension

of time on the back of agreement dated 18.09.1982 was made and

Rs. 1,000/- was paid by the plaintiff to the defendant.

(j) It was the case of the plaintiff that he made it known to the

defendant no. 1 that he was ready and willing to perform his part

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of the agreement by paying the balance consideration amount, but

the defendant avoided to execute the sale deed on one pretext or

the other pretext. On plaintiff’s insistence that the sale deed should

be executed immediately, the defendant started pressing that

period for execution of sale deed be extended up to 30.11.1982 and

ultimately both the plaintiff and the defendant again went to Sri

Kashi Prasad Sahu, Advocate on 16.11.1982 and in his presence,

the parties agreed to extend the period for execution of the sale

deed till 30.11.1982 and a memorandum to that effect was

prepared and signed on 16.11.1982. A photocopy of the

memorandum was annexed to the plaint.

(k) However, the plaintiff on 27.11.1982 received a registered letter

from an Advocate, namely, M. L. Pathak acting on behalf of one

Ram Kinkar Pathak claiming to be the grandson of the defendant

no. 1, whereby Ram Kinkar Pathak sought to enquire whether any

agreement has been entered into between the plaintiff and the

defendant regarding the suit property. In response to such letter,

the plaintiff claimed that a reply was sent through his lawyer on

30.11.1982 and a copy of the same was also served on the

defendant no. 1 on 30.11.1982 itself. However, in spite of receipt

of the said letter, whereby it was categorically made known that

the plaintiff was always and still ready and willing to pay the

consideration balance amount and get the sale deed in respect of

the suit property executed and registered and will wait up to

10.12.1982 and then initiate appropriate legal proceeding if the

defendant no. 1 did not execute the sale deed.

(l) Ultimately, the plaintiff filed the suit seeking specific performance

of agreement dated 18.09.1982 which was the first agreement

entered into between the defendant no. 1 and the plaintiff.

However, the plaintiff came to know that with full knowledge

about filing of the present suit, one Ram Kinkar Pathak, who was

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the grandson of the sole defendant, executed a deed of sale with

respect to the suit property in favour of Dinesh Pathak, who was

the own son-in-law of the defendant no. 1 and therefore it was

alleged that the sale deed executed in favour of Dinesh Pathak was

a sham transaction.

(m) Since the suit property was sold in favour of Dinesh Pathak during

the pendency of the suit and with full knowledge about the

pendency of the suit, the plaintiff sought to amend the plaint which

was allowed vide order dated 25.03.1983 and Dinesh Pathak and

Ram Kinkar Pathak were added as defendant nos. 2 and 3

respectively.

5. It appears from the records of this case that defendant no. 1 did not file

any written statement and as such the case was fixed ex-parte against the

defendant no. 1 on 23.06.84. However, the suit was contested by the defendant

no. 2, namely, Dinesh Pathak, Son of Chandramani Pathak and also by

defendant no. 3, namely, Ram Kinkar Pathak.

6. Case of the Defendant No. 2.

(i) The defendant no. 2, in the written statement, took a plea that the

plaintiff was only a tenant, but payment of monthly rent was

denied. He asserted that he had purchased the property by

registered deed upon payment of consideration amount of Rs.

15,000/-. He also stated that the defendant no 3 Ram Kinkar Pathak

was the grandson of the defendant no. 1 and the defendant no. 1

way back in the year 1977 had executed a power of attorney in

favour of defendant no. 3, which was registered on 13.07.1977 and

the said power of attorney was valid. A photocopy of the power of

attorney was annexed along with the written statement.

(ii) The defendant no. 2 further asserted that on the strength of power

of attorney, the defendant no. 2 and 3 on 20.08.1982 entered into

an agreement with respect to the suit property and the property was

purchased by defendant no. 2 on 20.12.1982 and the remaining

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consideration amount was paid. It was asserted that the defendant

no. 3 had got his name mutated in the municipality and after

hearing the defendant no. 2, the property was mutated in the name

of defendant no. 2. The defendants asserted that they were the valid

owner of the property by virtue of purchase through registered

deed and they have been wrongly made party in the proceedings.

(iii) The defendant no. 2 gave the description of the purchased property

which contained holding no. 873 old and holding no. 868 new.

7. Case of the Defendant No. 3.

I. So far as defendant no. 3 Ram Kinkar Pathak is concerned, he has

also filed a separate written statement stating that the suit was

barred by limitation and other preliminary objections were taken.

The defendant no. 3 admitted that the plaintiff is a tenant in

Schedule-B property and it was defendant no. 3, who was

managing all the tenants and collecting rent by virtue of the

registered general power of attorney. The defendant no. 1 was his

own paternal grandfather, who had solely entrusted the

management and transferred all his legal responsibilities regarding

Schedule-A and Schedule-B property by executing a registered

power of attorney in the year 1977 in favour of defendant no. 3

keeping in view of his old age, mental condition and other factors.

It was asserted that if there was any agreement in the year 1982,

said to have been made by defendant no. 1 in favour of plaintiff,

the same is illegal, void, without consideration, inoperative and

sham transaction. It was asserted that the defendant no. 1 had no

right, title or any power to enter into any such agreement without

revoking the registered power of attorney of 1977 and the said

power of attorney was still valid. The said agreement was tainted

with fraud undue influence and coercion. The defendant no. 1 had

no mental capacity and had no legal right to enter into any such

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agreement in the year 1982. It was asserted that the question of

agreement of sale was false and the consideration amount of Rs.

10,000/- was also too less.

II. It was asserted that the defendant no. 1 never entered into any such

agreement and the plaintiff prevailed over defendant no. 1, took

advantage of his weak state of mind and health and if there be any

signature in any agreement, it has been obtained by the plaintiff by

practicing fraud, coercion and undue influence and by suppressing

materials facts and documents. It was asserted that the defendant

no. 1 had neither any legal right to enter into any such agreement

nor had the right to accept such money. It was also asserted that

the plaintiff had full knowledge of the registered power of attorney

of the year 1977 executed by defendant no. 1 in favour of

defendant no. 3. It was asserted that the plaintiff by introducing

Kashi Prasad Sahu, Advocate had tried to collect evidence from

apprehending to guard his knowledge or ignorance regarding

existence of general power of attorney of the year 1977.

III. The specific case of the defendant no. 3 was that the general power

of attorney of the year 1977 shall prevail and the same having not

been revoked, the alleged agreement of the plaintiff, if any, was

illegal, tainted with fraud and hit by the principles of Indian

Contract Act and the question of part performance of the plaintiff

did not arise and the agreement had no force in the eyes of law.

IV. It was also asserted that the plaintiff had played a trick to gamble

with the money to gain a stake knowing fully well about the

registered general power of attorney of the year 1977 and about

the sale by defendant no. 3 to defendant no. 2 and about the Ranchi

Municipal Mutation in the name of defendant no. 2 and all other

facts of dealing and management of the Schedule-A and B

property of the plaint. The defendant no. 3 reiterated that the

defendant no. 1 had no right, no interest, no status to enter into any

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such agreement on the face of general power of attorney and the

plaintiff had full knowledge of this fact.

V. The defendant no. 3 asserted that the agreement of sale dated

18.09.1982, if any, is void, inoperative and has no force in the eyes

of law. The defendant no. 3 has asserted that he had no knowledge

about the filing of this suit at the time when he sold the property

to defendant no. 2. The plaintiff had full knowledge of the fact that

defendant no. 1 had no right to enter into any agreement for sale

in view of registered general power of attorney and about the sale

by the defendant no. 3 to defendant no. 2. It has been asserted that

the sale by defendant no. 3 to defendant no. 2 is real and legal sale

for consideration and it was not a sham transaction.

VI. Upon perusal of the entire written statement of defendant no. 3, it

is apparent that no statement has been made with respect to any

agreement of sale entered into between the defendant no. 3 and

defendant no.2, though the defendant no.2 had made a specific

reference to an agreement of sale entered into between the

defendant no. 2 and defendant no. 3 on 20.08.1982 and has

asserted that this agreement of sale was ultimately translated into

the sale deed dated 20.12.1982 executed by defendant no. 3 in

favour of defendant no. 2.

8. The learned Trial Court decreed the suit.

9. Being aggrieved by the judgement and decree dated 02.08.88 passed by

the Learned Sub- Judge II in Title Suit No. 297 of 1982 filed by the plaintiff -

respondent, the appellants filed Title Appeal No. 79 of 1988. The learned 1

st

appellate court gave concurrent findings and dismissed the appeal.

10. Arguments on behalf of the appellants representing the heirs of

original defendant no. 1

I. Issue no. 3 relating to cause of action was neither decided by the

trial court nor by the learned 1

st

appellate court.

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II. P.W. 1 was examined, but his examination was expunged and

P.W. 2 had exhibited the agreement for sale dated 18.09.1982

(Exhibit-2) which was marked with objection as is apparent from

paragraph 4 of his examination-in-chief and as per his evidence

the agreement of sale (exhibit-2) had two witnesses, one was

Ram Singh Pandey and other was Raj Kumar Kavya, but P.W. 2

is not the witness to the agreement of sale.

III. The learned counsel for the appellants has submitted that as per

Order 13 Rule 3 and 4 of C.P.C, if a document is marked with

objection, then the admissibility of the document if objected, is

to be decided by the Presiding officer, but the Presiding officer

did not decide on the admissibility of exhibit-2. He has further

submitted that since P.W. 2 is not a witness to exhibit-2, therefore

he could not have exhibited the exhibit-2.

IV. The learned counsel has further referred to the finding of the

learned trial court with respect to exhibit-2 at paragraph 10 and

has submitted that the onus of proof has been wrongly cast upon

the defendants. He submits that once the contesting defendants

asserted that the agreement of sale was obtained by fraud and

misrepresentation, it was for the plaintiff to prove that the

agreement of sale was valid. He submits that the person who

propounds the document has to prove it. He has referred to the

judgment passed by the Hon’ble Supreme Court reported in

(2008) 4 SCC 530 (Thiruvengadam Pillai vs. Navaneethammal

& Ors.) paragraph 19 on this point.

V. The plaintiff pleaded from paragraph 6 to 9 and 13 about his

readiness and willingness to perform his part of the contract but

no particular dates have been mentioned. The learned counsel has

then referred to section 16(c) of the Specific Relief Act to submit

that in case of suit seeking specific performance of contract,

readiness and willingness to perform the agreemen has to be

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shown, right from the date of execution of the agreement till the

date of decree.

VI. He has then referred to Sections 37, 38 and 48 of the Contract

Act and submits that the provision has to be read into the Specific

Relief Act and for this purpose, he has referred to Section 9 of

the Specific Relief Act. He has submitted that as per Section

38(2), the offer to perform the contract has to be made at proper

place and proper time. He submits that paragraph 7 of the plaint

does not provide any specific date and place where the plaintiff

offered to perform his part of the contract. He submits that the

defendant was residing at Hazaribag and therefore the proper

place where the plaintiff could have offered for performance of

his part of the contract was at Hazaribagh only. He submits that

there is no averment in the plaint that the plaintiff went to

Hazaribagh to offer performance of his part of the contract.

However, during the course of argument, it transpired that the

property is located at Ranchi and the plaintiff was the tenant

under defendant no. 1 and the plaintiff has stated that defendant

no.1 used to come to Ranchi to collect rent.

VII. He has further submitted that P.W. 3 in paragraph 14 has stated

that Jugal Kishore Pathak (defendant no.1) resides in Durga

Mandir. He submits that the plaintiff in order to show his

bonafide should have shown that he had visited Hazaribagh or

had sent a letter to Hazaribagh.

VIII. He had then referred to exhibit-3 to submit that at the end it does

not contain the address of defendant no. 1, however, a receipt of

exhibit-3 has been exhibited on the 1

st

page of Exhibit-3. He has

referred to the findings recorded by the learned Trial Court in

paragraph 11 of its judgment and by the learned 1

st

Appellate

Court in paragraphs 9 to 11 thereof on the point of the plaintiff's

readiness and willingness to perform his part of the contract.

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IX. He has also submitted that exhibit 2/2 also shows that address

mentioned is only of Hazaribagh and no address of the defendant

no. 1 has been mentioned at Ranchi. There is no evidence to show

that the plaintiff ever visited Hazaribagh to show his readiness

and willingness to perform his part of the contact.

X. The learned counsel has submitted that no issue was framed by

the learned trial court on the point of readiness and willingness.

XI. The learned counsel has submitted that the learned 1

st

appellate

court has relied upon the judgment reported in AIR 1970 SC 1238

which is equivalent to (1970) 3 SCC 140 and has submitted that

this judgment was subsequently considered by the Hon’ble

Supreme Court in judgment reported in (2003) 10 SCC 390

(Manjunath Anandappa vs. Tamannasa & Others) paragraph

17 to 21. He has submitted that paragraph 13 to 21 would be

relevant for the purposes of the present case.

XII. He has also referred to the judgment with respect to Section 16

of the Specific Relief Act reported in (1995) 5 SCC 115 and has

submitted that factum of readiness and willingness to perform the

part of the contact by the plaintiff was to be considered under the

facts and circumstances of the case. The court may infer from the

facts and circumstances as to whether the plaintiff was ready and

always willing to perform his part of the contract. He submits that

the term used in Section 16(c) is ‘always willing’ and this always

willing has to be demonstrated right from the date of the

agreement till the date of passing of the decree.

XIII. On the point of unstamped exhibit 2/1, he submits that the same

was the receipt and being unstamped was not admissible in

evidence. He has referred to the judgement passed by the Hon’ble

Supreme Court reported in (2009) 2 SCC 532 (Avinash kumar

Chauhan vs. Vijay Krishna Mishra) paragraph 14,17 and 32 and

also judgment reported in (2024) 7 SCC 719 (G.M. Shahul

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Hameed vs. Jayanthi R. Hegde) paragraph 21 to submit that the

admissibility of unstamped document has to be necessarily

examined by the court. The learned counsel has also submitted

that the judgment has also been passed on the point of admission

by the defendant. He has referred to paragraph 10 of the trial

court’s judgment. He then referred to the judgment reported in

(2015) 12 SCC 403 (Gujrat Maritime Board vs. G. C. Pandya)

paragraph 13 and 14 to submit that even if there is admission, it

is for the plaintiff to prove his case. The learned counsel has also

submitted that P.W. 4, who is the plaintiff himself, at paragraph

8 of his examination has stated that he stopped paying rent to the

defendant after agreement and the defendant also gave up the

demand the rent. He submits that the status of the plaintiff was

that of a tenant and his conduct is not bonafide as he was under

an obligation to pay rent till the sale deed is executed.

Apart from the aforesaid, a written notes of arguments have also been

filed by the appellant no. 1 wherein following points have been

mentioned.

Short Summary of arguments

XIV. The learned trial court has held that the plaintiff has proved that

he was always ready and willing to perform his part of the

contract by relying upon Ext.2, 2/1, 2/2, 3 and 3/1, and in para 6

to 9 and 13 of plaint, the plaintiff has made averment about his

readiness and willingness to perform his part of the agreement

and refusal of Defendant No. 1, which has led to the cause of

action. Compliance of Section 16 (c) has been mentioned in Para-

11 of Trial Court’s Judgment, and in Para 9 to 11 of 1

st

Appellate

Court’s Judgement.

XV. So far as Ext. 2 is concerned, it was introduced by P.W. 2 in para

4 with objection, but no such endorsement of objection was made

on Ext. 2. There is neither any such endorsement in the Ext. 2,

2026: JHHC: 15952

17

nor the order sheet dated 03/09/1986 mentions this fact. This is

contrary to Order 13 Rule 3 & 4 of C.P.C. In the entire judgment

of the learned Trial Court, there is no discussion about this aspect

the matter. The trial court has discussed about exhibit-2 while

recording that P.W. 3, Kashi Prasad Sahu, Advocate “Who

prepared the deed of Agreement dated 18.09.1982 Marked Ext-2

in this suit” [in para 8 page 5 in last two lines only] and the other

line is in the same para at page 6 just six lines ahead of para 9

‘P.W. 2 Baleshwar Prasad had also supported the plaintiff’s case

in his evidence’.

XVI. P.W. 2, in para 23 of the deposition, has agreed that he had not

received any summons to depose and he had come on call of

plaintiff. In para 5 of the plaint, there was a mention of

plaintiff/defendant no. 1, his lawyer Kashi Prasad Sahu and

witnesses, who have signed the agreement (Raj Kumar Kabra and

Ramashish Pandey) only those who have signed. There is no

mention about it in the judgment. It was most crucial document

the very basis of the suit suffers with perversity and the finding

based upon it is para 11 of the Trial Court judgment and that of

First Appellate Court approving finding of Trial Court in para 16

was also perverse due to non-consideration of the evidence in

relation to Ext. 2.

XVII. So far as Ext. 2/1 is concerned, that is an unstamped receipt

defined u/s 2(23) of the Stamp Act which cannot be looked into

in evidence in view of Section 36 of Stamp Act as held mandatory

in the decision of (2024) 7 SCC 719, para 21 and 30.

XVIII. Ext. 2/2 is a document which shows that the address of the

defendant no. 1 was of Hazaribagh only. Thus, document read

with para 4 of the plaint shows that the Defendant no. 1 resided

at Hazaribagh. So, there should have been averments and proof

that offer to perform was made at Hazaribagh address, but there

2026: JHHC: 15952

18

is nothing in para 6-9 &13 of the plaint and there is not even a

whisper in the deposition.

XIX. In the plaint, the plaintiff has stated that Defendant No. 1 resided

at Hazaribagh, at the address mentioned in cause title. Therefore,

in terms of Section 38(2) r/w section 48 of Indian Contract Act,

a pleading should have been there in relation to offer of

performance, either orally or in writing, at Hazaribagh, which is

clearly absent in para 6-9 and 13 of the plaint and there is no

whisper in any of the depositions. Thus, the suit for specific

performance ought to have failed on account of non-compliance

of aforementioned law and non-compliance of Appendix A-

Form 47 and 48.

XX. The learned 1

st

Appellate Court relied upon the judgement

reported in AIR 1971 SC 1238, though this decision was per in

curium of earlier decision in Ouseph Varghese v. Joseph Aley

(1969) 2 SCC 539, para 17 &18, where the Hon’ble Apex Court

held that it is mandatory requirement to comply with Form 47 &

48 of the schedule-A to the CPC as held in Manjunath

Anandappa case. Manjunath Anandappa Versus Tammanasa

and Others (2003) 10 SCC 390, para 13-21, 23, 27.

XXI. In nutshell, there is no finding that Ext. 2 was proved and

brought on record, though it was most crucial document. The

very basis of the suit suffers with perversity and the finding based

upon it is para 11 of the Trial Court’s judgment and that of First

Appellate Court approving finding of Trial Court in para 16 is

also perverse due to non-consideration of the evidence in relation

to Ext.2.

XXII. Thus, reliance upon Ext. 2/1 & Ext.2/2 is against the mandate of

law and consequently perverse.

XXIII. In para-11 of the judgement, the learned 1

st

Appellate

Court referred to the evidence of P.W.4, para-18, but failed to

2026: JHHC: 15952

19

discuss that this statement was dehors the pleadings in the plaint

as also this was an abrupt statement bereft of the factual details,

and also hit to order VI Rule-2 of CPC.

XXIV. A point to note would be that 1

st

witness was examined on

02/09/1986 who proved a half page document. The statement of

this witness was expunged. So, there is neither any

whisper/mention about this witness nor any mention about Ext.1.

XXV. In the decision reported in (2024) 11 SCC 351 para to 36,

Ramakant Ambalal Choksi v. Harish Ambalal Choksi & Ors.,

any order made in conscious violation of pleading and law is a

perverse order.

XXVI. A finding which stems out on a complete misreading of

evidence is also perverse. It was further held that safest approach

on perversity is the classic approach on the reasonable man’s

inference on the facts. To him, if the conclusions on the facts in

evidence made by the court is possible, there is no perversity. If

not, the finding is perverse. Inadequacy of evidence or a different

reading of evidence is not perversity the word “perversity” has

been elaborately dealt with. One of it is not arrive at such

conclusion by as arrived out by court. Firstly- Any order made in

conscious violation of pleading and law is a perverse order

Secondly- Showing deliberate determination to behave in a way

that most people think is wrong, unacceptable or unreasonable.

The finding was thus in violation of pleading because judge

found, which were not in pleading/assertion not as per law.

Moreover, though an issue were framed on cause of action but no

finding was given on it. Since the cause of action mentioned in

para 13 specifically mentions that it in 13/09/1982 and on such

subsequent dates when the plaintiff requested for execution of

deed, which was neglected/refused by the Defendant.

2026: JHHC: 15952

20

XXVII. It is true that a hyper-technical view of pleadings should

not be taken; however, it is equally well settled that pleadings

must not be in tautological symmetry with statutory provisions

or consist of mere repetition of legal phrases. Pleadings must

disclose the necessary factual matrix, which is a sine qua non for

establishing continuous readiness and willingness from the

execution of the agreement up to the stage of decree, as mandated

in (1995) 5 SCC 115.

11. The arguments of appellant no. 4 (defendant no.2), the purchaser

of the property during the pendency of the case by virtue of registered

sale deed dated 20.12.1982

A. The appellant no. 4 is claiming the property by virtue of prior

agreement of sale i.e. agreement dated 20.08.1982 (exhibit-B)

executed by defendant no. 3 (power of attorney of defendant no.

1) in favour of defendant no. 2. The agreement of sale of the

plaintiff was dated 18.09.1982 (exhibit-2) and the agreement of

sale of the appellant no. 4 was dated 20.08.1982 (exhibit-B) and

the sale deed was registered on 20.12.1982 (Exhibit-G). The

learned counsel has submitted that P.W. 4, the plaintiff in

paragraph 18 of his evidence, has stated that the defendant no. 1

came to registry office and fled away after getting the deed

drafted on stamp paper and ultimately the stamp paper was

returned. He submits that the sale deed so drafted has not been

exhibited. He has further submitted that from perusal of

paragraph 18 of the evidence, it appears that it was the defendant

no. 1 who had purchased the stamp paper and therefore there was

no occasion for the plaintiff to return the stamp paper and

therefore the story of the plaintiff that he returned the stamp

paper cannot be believed. He has then submitted that the suit was

filed with a court fee of One Rs. fifty paise which was deficient

2026: JHHC: 15952

21

and ultimately the court fees were filed in the year 1983. The

learned counsel submits that the mutation was done in favour of

the appellant no. 4 after purchase and possession was also handed

over. He has submitted that the plaintiff had left the property and

the defendant no. 2 came in possession of the same. However, he

could not substantiate this fact from any of the materials placed

on record.

B. At this, the learned counsel for the appellant no. 4 has submitted

that primarily it has to be seen as to whose agreement would

prevail, whether the agreement of the plaintiff dated 18.09.1982

(exhibit-2) or the agreement of the defendant no. 2 i.e. dated

20.08.1982 (exhibit-B).

12. Apart from the oral arguments, a written notes of arguments have

also been filed on behalf of appellant no. 4 series/defendant no. 2 and

following points have been mentioned: -

C. The case of the defendant No. 2 is that he is a bona fide purchaser

of suit property by virtue of registered sale deed dated

20.12.1982 (Ext. G). He has stated in paragraph 8 & 9 of the

written statement that after going through the contents of power

of attorney (Ext. A) in favour of defendant No. 3, he entered into

an agreement for sale (Ext. B) with respect to the suit property

on 20.08.1982 and after payment of balance consideration

purchased the same by registered sale deed dated 20.12.1982

(Ext. G). After said purchase, the defendant No. 2 has got his

name mutated in the office of Ranchi Municipal Corporation

(Ext. F) and has been paying the rent on proper receipt (Ext. D &

E).

First Substantial Question of Law: -

Whether concurrent finding recorded by both the

courts that the plaintiff was ready and willing to

2026: JHHC: 15952

22

perform his part of the contract suffers from any

perversity?

D. In this connection it is pertinent to point out and refer the

evidence of the plaintiff who deposed as P.W. 4 in the suit. This

witness at paragraph 18 of his deposition has stated, “जुगल

किशोर रकजस्ट्री िार्ाालर् में आर्ा। उसने स्ट्ाम्प िागज़ खरीदा,

किक्रीनामा कलखवार्ा। इसिे िाद वह िहीीं चला गर्ा ।”

He further stated “मैंने वह स्ट्ाम्प पेपर वापस िर कदर्ा और

उसिी राकश मुझे प्राप्त हो गई थी। मुिदमा दार्र होने िे पश्चात

मैंने उस स्ट्ाम्प पेपर िो ट्रेजरी में जमा िर कदर्ा था।”

E. In his entire deposition, P.W-4 has not uttered a word that at the

time of getting the sale deed registered he was having the entire

consideration amount to be paid to the defendant No. 1 before

the District Sub Registrar. Further when the plaintiff has stated

that the stamp paper was purchased by the defendant No. 1, then

as to why and under what circumstances the plaintiff got it

deposited in treasury and received the amount of the stamp paper.

It is quite unbelievable and impossible that if the stamp paper

was purchased by the defendant No. 1, the authority of treasury

will refund the value of a stamp paper to the plaintiff. Since the

plaintiff has failed to bring on record, by exhibiting the said

written stamp paper in the shape of sale deed, the court ought to

have taken adverse inference against the plaintiff.

F. In this connection, it is submitted that actually the stamp paper

was purchased by the plaintiff himself and the sale deed was got

prepared by the plaintiff himself who might have got written in

the sale deed that entire consideration amount has already been

paid and looking to such endorsement the defendant No.1

smelling something fishy, went back from the Registry Office.

2026: JHHC: 15952

23

G. Had the stamp paper for the contemplated sale deed had not been

purchased by the plaintiff in his name, it could not be taken back

by treasury from the plaintiff and the treasury could have not

refunded the amount of the stamp paper to the plaintiff.

H. Readiness and willingness are not one but two separate

elements. Continuous readiness and willingness on the part of

buyer from the date of execution of the agreement to sell till the

date of decree is a condition precedent for grant of relief of

specific performance.

I. The suit was filed on 11.12.1982 and with certainty it can be said

that the plaintiff had not even the court fee amount to be paid on

the value of the suit and the plaintiff had not even rupees two

therefore at the time of filing of the suit, he has paid stamp of Rs.

1.50 on the plaint against the court fee and after long interval

after arranging the amount he filed the deficit court fee on

17.02.1983.

J. The plaintiff was examined in the suit as PW4 on 30.07.1987

wherein on his examination in chief in the last line of paragraph-

6 he has stated that “मैं उसिे कलए मुनाकसि पैसा देने िे कलए तैर्ार

हूँ।”, which shows that the plaintiff was not willing to pay the rest

of the consideration amount. Even on the date of his deposition,

he showed his intention that he was ready to pay the appropriate

amount to get the sale deed registered.

K. This proves that plaintiff had no sufficient fund even to pay the

court fee on 11.12.1982 when the suit was filed and the

contention is that at the time of alleged sale deed at the Registry

Office, the plaintiff had no fund what to speak of entire

consideration amount.

Second Substantial Question of Law: -

Whether the agreement dated 18.09.1982 (Exhibit-2)

executed by defendant No.1 in favour of plaintiff or

2026: JHHC: 15952

24

agreement dated 20.08.1982 (Exhibit-B) executed by

defendant No.3 in favour of defendant No.2 shall prevail

and given effect to?

L. The case of defendant No. 3 is that the defendant No. 3 was

having valid power of attorney (Ext. A) duly executed by

defendant No.1 in favour of defendant No. 3 to deal with the suit

property and the defendant No.3 being the constituted power of

attorney holder by virtue of registered power of attorney dated

13.07.1977 entered into agreement for sale (Ext. B) with

defendant No. 2 on 20.08.1982 and accordingly the sale deed was

executed on 20.12.1982 (Ext. G) in favour of defendant No. 2 by

the defendant No. 3.

M. Now the question arose as to which agreement will prevail and

to meet the above substantial question of law in view of the

reported judgment of Hon’ble Andhra Pradesh High Court

reported in AIR 2004 AP 110 it has been held that the earlier

agreement has to be preferred.

Third Substantial Question of Law

Whether the receipt cum extension of time of the

agreement for specific performance of contract marked

as Exhibit 2/1 was inadmissible in evidence for the same

being not duly stamped?

N. The plaintiff in his plaint has not made any averment as per

Appendix -A, Form 47 & 48 appended to the First Schedule

Forms. In paragraph-7 of the plaint, it is stated “that the plaintiff

categorically made it known to defendant that he is ready and

willing to perform his part of agreement by paying the balance

amount of consideration money. The defendant however went on

avoiding execution of sale deed in respect of the suit property on

one pretext or other. On plaintiff’s insistence that sale deed

should be executed immediately, the defendant started pressing

2026: JHHC: 15952

25

that period for execution of sale deed be extended up to

30.11.1982 and ultimately both the plaintiff and defendant again

went to Shri Kashi Prasad Sahu, Advocate ono 16.11.1982 and

in his presence and on his mediation, the parties agreed to extend

the period for execution of sale deed till 30.11.1982 and a

memorandum to that effect was prepared and signed on

16.11.1982”.

O. However, this fact was not proved by any legal evidence. Thus,

the alleged document dated 16.11.1982 extending the time of the

agreement (Ext.-2), marked as Ext.-2/1, being inadmissible in

evidence and having not been duly proved, cannot be looked into

in support of the plaintiff’s contention.

13. Arguments on behalf of the plaintiff/respondent

I. Important dates of SA/182/1991

a. Suit being Title Suit No. 297/1982 filed on 11.12.1982.

b. Exhibit 2- Agreement by Defendant No. 1 in favour of Plaintiff

-18.09.1982.

c. Exhibit -B- So called Agreement by Defendant No.3 in favour

of Defendant No.2-20.08.1982.

d. Exhibit C- Sale deed in favour of Defendant No. 2-

20.12.1982.

e. The Defendant No. 2 and Defendant No. 3 added as party vide

order dated 25.03.1983.

f. Exhibit 5- Partition Suit No. 278/1982-filed by Defendant No.

3 against Defendant No. 1 (his own grandfather) on

25.11.1982

g. Exhibit 6- Partition Suit withdrawn by Defendant No. 3 on

02.08.1983.

II. Substantial question of Law No. 1

2026: JHHC: 15952

26

Whether the concurrent finding recorded by both the Courts

that the Plaintiff was ready and willing to perform his part of

contract suffers from and perversity?

a. In paragraph Nos. 10, 11 and 16 of the Appellate Court’s

Judgement, there is discussion of readiness and willingness

and the Appellate Court has opined that the Plaintiff was ready

and willing to perform his contract.

b. That there is specific pleading in the plaint in paragraph Nos.

7, 9 and 11 about readiness and willingness of the Plaintiff.

c. In reply to notice dated 30.11.1982 which is Exhibit 3, the

same has been reiterated by the plaintiff in para7.

d. In the deposition of plaintiff (P.W. 4), he has stated about his

readiness and willingness in several paragraphs including 3 to

6.

e. There was no pleading by the Defendants that the plaintiff was

financially incapable.

f. The plea of payment of Rs. 1000 is supported by P.W. 2 and

P.W. 3 as well in Exhibit 2/1 where the signature of defendant

no. 1 is not disputed.

g. The defendant No. 1, who is the land owner as well as executor

of Exhibit -2 i.e. the agreement of sale dated 18.09.1982 in

favour of the plaintiff, has neither appeared in the suit, did not

file Written Statement nor opposed the plaintiff by giving his

deposition in the Trial Court.

h. P.W. 2, who is the witness of the execution of the agreement,

has also supported the plaintiff in paragraph No. 5 of his

deposition.

i. P.W. 3, who is an Advocate Kashi Prasad Sahu, and this

agreement was drafted by him, paragraph No. 5 of his

deposition is relevant.

2026: JHHC: 15952

27

j. The plaintiff was in occupation of the premises in part

performance of the contract which goes to show that he is

always ready and willing to perform his part of contract.

k. From the entire written statement, deposition of Defendant

witness and the Exhibits as a whole, it is very much evident

that defendant Nos. 2 and 3 specially defendant No. 3 never

wanted that his grandfather Jugal Kishore Pathak may sell his

property to the original plaintiff.

l. In view of above, the concurrent finding of the fact by both the

courts that the plaintiff was always ready and willing to

perform his part of the contract and as such no interference by

the Hon’ble Court is required as the judgements of both the

Courts are perfectly legal and valid in the eyes of law.

Judgement: (2019) 3 SCC 520 paragraphs No. 20 &21.

III. Substantial Question of law No. 2

Whether the agreement dated 20.08.1982 (Exhibit. B) executed

by Defendant No. 3 as constituted attorney of Defendant No. 1

shall prevail upon the subsequent agreement dated 18.09.1982

(Exhibit-2) by defendant No.1 himself.

i. The Exhibit-B which is agreement dated 20.08.1982 is

doubtful and same never existed and has been created by

Defendant No. 2 and defendant No. 3 only to defeat the claim

of the plaintiff and to mislead the Court by giving wrongful

facts.

ii. The defendant No. 3 in his written statement has not taken any

plea regarding the existence of any agreement dated

20.08.1982 which is absolutely fatal as no amount of evidence

can be looked into in absence of pleading which is as settled

principle of law.

iii. No such issue was framed by the Trial Court and moreover this

is not a substantial question of law rather it is an issue which is

2026: JHHC: 15952

28

required to be framed by the Trial Court at the instance of the

parties.

iv. The issue could have been decided by the facts of the case by

the Trial Court and Appellate Court and the issue could have

been re-casted even at the Appellate stage but the same was not

done by the Defendants and therefore, when the issue was not

framed, the same was not decided and the same is also hit by

abandonment of issue.

v. For the first time, this plea has been raised in the 2nd Appellate

stage which is impermissible in the eyes of law.

vi. Exhibit 3/1 is the notice by defendant No. 3 dated 20.11.1982,

there is no such mention of the agreement. Rather, Defendant

No.3 says in para 3 that “there is no any urgent need or any

necessities of the family at present for money”. Therefore,

when there was no need for money, how he entered into

agreement with defendant No. 2 on 20.08.1982 which goes to

show that Exhibit-B is a forged and fabricated document

created only to the purpose of suit.

vii. Exhibit-5 which is a partition suit filed by defendant No. 3 and

plaint of partition suit No. 278/1983 has been exhibited and the

same has been filed on 25.11.1982 also doesn’t mention about

the agreement to sale Exhibit-B dated 20.08.1982.

viii. In Paragraph 5 of exhibit-5, which is the plaint of partition suit,

it is stated by defendant No. 3 that there is no any urgent need

of any necessity of the family for money.

ix. Even in the memo of appeal in the appellate court, no such

ground has been taken about the prior agreement that is

exhibit-B.

x. Exhibit-3/2 is a notice issued by Defendant-2 to the Plaintiff

on 20.07.1983, but in this notice also, there is no mention of

2026: JHHC: 15952

29

prior agreement dated 20.08.1982 and it only speaks about the

sale deed dated 20.12.1982.

xi. In the entire deposition of plaintiff there is no suggestion put

by defendant No. 2 to the plaintiff on the point of previous

agreement by defendant no. 3 in favour of defendant No. 2.

xii. That in view of entire facts mentioned here in above goes to

show that there was no previous agreement dated 20.08.1982

(Exhibit-B) which was executed in favour of defendant No. 2

by defendant No. 3 and as such which the defendants have tried

to mislead the court by bringing on record forged, fabricated

and non-existing document to mislead the court, this

substantial question of law is required to be answered in favour

of plaintiff/respondent.

IV. Substantial Question of law No. 3

Whether the receipt cum extension of time of the agreement for

specific performance of contract marked as Exhibit 2/1 was in

admissible in evidence for the same being not duly stamped.

(i) To answer this, the respondent has relied upon the judgement

of Hon’ble Supreme Court of India reported in (2006) 11 SCC

331 paragraphs No. 16 & 19.

(ii) The signature of the defendant No. 1 on the agreement

(Exhibit-2) has not been disputed by the other defendants,

neither the defendant No. 1 filed his written statement, nor he

has deposed in the court against the Plaintiff.

(iii) The conduct of defendant No. 1 goes to show that he had

executed the agreement for sale on his own free will which is

also supported by Naresh Pathak who has deposed as D.W. 2

and happens to be father of defendant No. 1 Jugal Kishor

Pathak and in paragraph No. 6 he has specifically stated about

the physical and mental status of his father who is Defendant

No.1 and how he moves from one place to another and that too

2026: JHHC: 15952

30

on local bus. This goes to show that defendant No. 1 was fully

fit mentally and physically.

(iv) Defendant No. 3 has tried to depose falsely in his

deposition in paragraph 3 that his grandfather was more than

100 years although he retired in 1962 and the age comes to 85

years from the date of deposition that is 04.08.1987.

(v) Defendant No. 3 has specifically stated that he never consulted

his grandfather for filing the written statement.

(vi) On the above background, it is very much evident that

there was a valid agreement and the entire agreement doesn’t

get vitiated because the same is not duly stamped rather the

deed of agreement is itself on a revenue paper which is evident

from exhibit-2 and the same has not been objected by the

defendants and the revenue paper of Rs. 3 and Rs. 2 was

purchased for reducing the agreement in writing and it is

evident that there is no objection over exhibit-2 which is an

agreement and even if exhibit-2/1 is not taken into

consideration, the same will have no bearing in the outcome of

the case and as such this substantial question of law is required

to be decided in favour of the plaintiff/respondent.

14. The Defendants’ case is a classic attempt of “double – selling

“Defendant No.1 took money from a tenant, and then the family (via

Defendant No.3) attempted to sell the same property to another family

member (Defendant No. 2- fufa of Defendant No.3) for a higher price, using a

5-years-old POA as a convenient legal excuse.

15. Equity follows the law, the plaintiff has acted in good faith, paid a

substantial advance, and followed every legal avenue. Therefore, the Plaintiff

is entitled to a decree for Specific Performance. The appeal be dismissed.

Findings of this Court.

2026: JHHC: 15952

31

16. The suit was filed on 11.12.1982 for specific performance of contract

for sale of Schedule-B property (part of Schedule-A property) dated

18.09.1982 (exhibit-2) for total consideration amount of Rs.10,000/- entered

into between the plaintiff and the defendant no.1 in which the plaintiff was the

tenant and defendant no.1 was the landlord. Initially there was only one

plaintiff and one defendant. However, by virtue of amendment in the suit,

further two defendants were also added. The defendant no.2 had purchased

the schedule B property during the pendency of the suit vide registered sale

deed dated 20.12.1982 (exhibit-G) from defendant no.3 (registered power of

attorney of the defendant no.1 executed in the year 1977).

17. It was the case of the defendant no.2 that the sale deed executed in his

favour was preceded by an agreement of sale dated 20.08.1982 (exhibit-B)

executed by the defendant no.3 (power of attorney of the defendant no.1) in

favour of defendant no.2 and for total consideration amount of Rs.15,000/-

and part payment was made at the time of agreement of sale dated 20.08.1982

(exhibit-B) and upon payment of balance consideration, the sale deed was

executed on 20.12.1982 (exhibit-G). However, the defendant no.3 did not

refer to any agreement of sale entered into between the defendant no. 3 and

defendant no.2, much less any agreement of sale dated 20.08.1982 (exhibit-

B), but asserted that the defendant no.1 having executed the power of attorney

in his favour had no right to enter into any agreement with the plaintiff and

further asserted that the defendant no. 1 was not fit mentally and physically to

enter into an agreement of sale with the plaintiff and hence the agreement of

sale dated 18.09.1982 (exhibit-2), if any, was obtained by fraud, coercion,

misrepresentation etc. It was also asserted that the consideration of Rs.

10,000/- was on a much lower side. Defendant no.3 asserted that he has rightly

executed the sale deed in favour of the defendant no.2 in the capacity of power

of attorney of the defendant no.1 for a consideration money of Rs. 15,000/-.

It is important to note that the defendant no.1 did not file written statement

and the proceedings were set ex-parte against the defendant no.1. It is also

important to note that the defendant nos. 2 and 3, who filed separate written

2026: JHHC: 15952

32

statements, neither they questioned the capacity of the plaintiff to pay the

balance consideration amount nor they challenged the readiness and

willingness on the part of the plaintiff to pay the balance consideration amount

to the defendant no.1. The plaintiff has made specific statement in the plaint

that the plaintiff was throughout ready and willing to perform his part of the

agreement of sale, but the defendant no.1 , on account of one reason or the

other, got the extension of time for execution of sale deed executed and lastly

it was extended till 30.11.1982 and inspite of requests, the defendant no.1 did

not execute the sale deed in favour of the plaintiff which lead to filing of the

suit on 11.12.1982.

18. Some of the relevant facts/dates as pleaded by the plaintiff and as

pleaded by the defendant nos. 2 and/or 3 are as under: -

Plaintiff Defendant Nos. 2 and/or

defendant no.3

Defendant no. 1 is the owner of

schedule A property and the suit

property is schedule B property

which is a part of schedule A

property. Defendant no.1 was a

school teacher. The plaintiff was a

tenant in the schedule B property.

Defendant no. 1 is the owner of

schedule A property and the suit

property is schedule B property

which is a part of schedule A

property. Defendant no.1 was a

school teacher.

18.09.1982 (Ext.-2): - agreement of

sale was entered into between the

plaintiff and defendant no. 1 for a

total consideration amount of Rs.

10,000/- and Rs. 2,000/- was paid as

advance as per the agreement. The

sale was required to be completed

within one month, that is by

17.10.1982.

1977 (exhibit-A) - defendant no.1

executed a power of attorney in

favour of the defendant no.3. The

defendant no. 1 is the grandfather of

defendant no. 3 and defendant no.2

is the son-in-law of defendant no.1.

11.10.1982 -At the instance of

defendant no. 1, the plaintiff further

paid Rs. 1,000/- against

consideration and period to execute

the sale deed was extended up to

17.11.1982. The defendant no. 1 and

the plaintiff got noted the payment

of Rs. 1,000/- by Sri Kashi Prasad

Sahu, Advocate on their instructions

at the back side of the agreement

20.08.1982 (exhibit-B)- defendant

no. 3, being the power of attorney of

the defendant no. 1, entered into an

agreement of sale with defendant

no.2 with respect to schedule B

property for a consideration amount

of Rs. 15,000/- and Rs. 500/- was

shown to have been paid at the time

of the agreement. This was stated by

the defendant no.2 in his W.S and

2026: JHHC: 15952

33

dated 18.09.1982 and the defendant

no. 1 signed the same. The noting

was marked as exhibit- 2/1.

not by the defendant no.3 in his

W.S.

16.11.1982 - The plaintiff made the

defendant no. 1 known that the

plaintiff was ready and willing to

perform his part of the agreement by

paying balance consideration

amount, but the defendant further

asked the plaintiff to extent the

period of sale up to 30.11.1982.

Thus, on 16.11.1982, both the

plaintiff and defendant no. 1 went to

Sri Kashi Prasad Sahu, Advocate,

who wrote a note extending the

period of sale till 30.11.1982 and the

same was signed by defendant no. 1

on the same day. This noting was

marked exhibit- 2/2

20.12.1982 (exhibit-G) - defendant

no. 3, being the power of attorney of

the defendant no.1, executed sale

deed in favour of the defendant no. 2

for a consideration amount of Rs.

15,000/- and the consideration

amount was shown to have been paid

in cash before the registrar. The sale

deed mentions about the agreement

of sale dated 20.08.1982 (exhibit- B)

On 27.11.1982 (exhibit-3/1) the

plaintiff received a Pleader notice on

behalf of defendant no. 3 enquiring

from the plaintiff as to whether any

agreement of sale was entered into

between the plaintiff and defendant

no. 1 or not. It was also stated that

the defendant no.1 was medically

and mentally incapable of executing

any agreement for sale and was also

legally incompetent to execute any

agreement of sale and if such an

agreement has been entered, the

same is illegal and void. Defendant

no. 3 also called upon the plaintiff to

settle the matter amicably.

The defendant no. 2 referred to

agreement of sale dated 20.08.1982

entered into between defendant no. 2

on the one hand and defendant no. 3,

being the power of attorney holder of

defendant no.2, on the other hand.

Defendant no. 2 claimed to be the

bonafide purchaser of the suit

property by virtue of registered deed

of sale dated 20.12.1982.

The defendant no. 3 in his written

statement has referred to the

registered power of attorney of

1977, but has not referred to the

agreement of sale dated 20.08.1982.

The specific case was that once the

power of attorney was executed by

the defendant no. 1 in favour of

defendant no.3, defendant no. 1 had

no right to enter into any agreement

of sale and therefore the agreement

of sale entered into between the

plaintiff and defendant no. 1, if any,

is void and non-est.

It was asserted that the defendant no.

1 neither had the mental capacity nor

had the legal right to enter into any

2026: JHHC: 15952

34

agreement once the power of

attorney was executed in the year

1977 in favour of defendant no. 3.

On 30.11.1982, the plaintiff sent a

reply (exhibit-3) with a copy to

defendant no. 1 and in the reply, the

plaintiff narrated the entire fact

about his agreement with defendant

no.1 and the payments made and

extension of time to execute the sale

deed and also stated that he was still

ready and willing to pay rest of the

consideration money and to get the

sale deed executed in his favour. It

was also stated that if no reply is

received by 10

th

of December 1982,

appropriate steps will be taken. A

copy of the reply served upon the

defendant no.1 showing the receipt

of the defendant no.1 has been

marked exhibit- 1/1.

11.12.1982 -suit was filed against

the defendant no.1 seeking specific

performance of contract of sale

asserting that the plaintiff was still

ready and willing to perform his part

of the contract.

1983- suit was amended to make

defendant no. 2 and 3 as party and

an allegation was made that the sale

deed was a sham transaction made

for the purpose of adversely

affecting the plaintiff’s decree in the

suit.

19. The followings issues were framed by the learned trial court: -

1. Is the suit as framed maintainable?

2. Is the suit barred by limitation, waiver, estoppel and

acquiescence?

3. Whether the plaintiff has got valid cause of action for the

suit?

4. Whether there is valid agreement for sale between the

plaintiff and the defendant no. 1?

2026: JHHC: 15952

35

5. Whether the plaintiff is entitled to a decree of specific

performance of contract?

6. To what relief or reliefs, if any, is the plaintiff entitled?

20. Issue nos. 1 and 2 were not pressed and issue nos. 4,5 and 6 were taken

up together and decided in favour of the plaintiff and it was also held in

paragraph no. 12 of the judgement that the plaintiff had a valid cause of action

and the plaintiff was entitled to the relief as prayed for and it was also held

that the sale deed executed by the defendant no.3 in favour of the defendant

no.2 was hit by the doctrine of lis-pendens as provided under Section 52 of

the Transfer of Property Act, 1882.

21. The learned trial court after considering the materials gave a clear

finding that agreement of sale was entered into between the plaintiff and

defendant no. 1 with respect to the suit property, in which the plaintiff was a

tenant, for consideration amount of Rs. 10,000/- and Rs. 2,000/- was

immediately paid as mentioned in the agreement itself and further amount of

Rs. 1,000/- was paid by the plaintiff to the defendant no. 1 on 11.10.1982 and

subsequently endorsement to that effect along with extension of time was

made at the backside of Exhibit-2 itself and the said endorsement was marked

Exhibit-2/1. The defendant no. 1 again asked for further extension of time till

30.11.1982 and this time again, the endorsement was made at the backside of

the agreement marked Exhibit-2/2 and the defendant no. 1 signed the same.

Thus, the agreement of sale dated 18.09.1982 remained valid till 30.11.1982.

22. The suit seeking specific performance of contract was filed on

11.12.1982 and the suit property was sold by registered deed by defendant no.

3 (power of attorney of defendant no.1) in favour of defendant no. 2 on

20.12.1982 immediately after institution of the suit. The defendant no. 3 had

executed the agreement of sale on 20.08.1982 (Ext.-B) in favour of defendant

no. 2 and thereafter the registered sale deed dated 20.12.1982 (Ext.-G) was

executed by the defendant no. 3 in favour of defendant no. 2.

23. The plaintiff was examined as P.W.-4 and the learned trial court has

thoroughly discussed his evidence in the judgement. The learned trial court

2026: JHHC: 15952

36

further recorded that the plaintiff has been cross-examined at length, but the

court did not find any material contradiction to disbelieve his testimony.

24. The learned trial Court recorded that P.W.-3 is Sri Kashi Prasad Sahu,

Advocate, who had prepared the deed of agreement dated 18.09.1982 marked

Exhibit-2 in the suit and he has thoroughly supported the plaintiff’s case in his

evidence and he had written the agreement in presence of both the parties. The

agreement was read over and explained to them and both of them signed the

agreement and the consideration amount was fixed at Rs. 10,000/- and the

plaintiff paid Rs. 2,000/- as advance at the time of execution of agreement. He

has also stated that the defendant no. 1 was quite fit and healthy at the time of

execution of agreement. He has also supported the case of the plaintiff that the

defendant no. 1 and the plaintiff had come to him seeking extension of time

of agreement of sale twice and endorsement was made twice in his writing

and on 11.10.1982, an amount of Rs. 1,000/- was paid and the agreement of

sale was extended for one month and thereafter again on 16.11.1982, the

agreement of sale was extended till 30.11.1982 and endorsement with respect

to that was also made.

25. The learned trial court thereafter referred to the evidence of the

defendants, who had examined altogether six witnesses and in particular

referred to power of attorney of the year 1977 executed in favour of defendant

no. 3 by the defendant no. 1; agreement of sale dated 20.08.1982 between

defendant no. 3 and defendant no. 2 (Exhibit-B) followed by the registered

sale deed dated 20.12.1982 (Exhibit-G).

26. The plea of the defendants taken in the written statement that the

plaintiff got the agreement of sale dated 18.09.1982 (Exhibit-2) executed in

his favour by practicing fraud, coercion and misrepresentation on defendant

no. 1 was rejected by the learned court and the learned court observed that the

defendants had not produced any evidence in support of this fact and no

written statement was filed on behalf of defendant no. 1 and the proceeding

was set ex-parte against defendant no. 1. The learned court observed that

failure on the part of the defendant no. 1 to file written statement clearly goes

2026: JHHC: 15952

37

to show that the defendant no. 1 admitted the assertions made in the plaint and

further the execution for agreement for sale dated 18.09.1982 was not denied

by the defendant no. 1 and under such circumstances, the plea of practicing

fraud, coercion and misrepresentation was not maintainable at all.

27. The plea of the defendants that the plaintiff had not paid Rs. 1,000/- on

11.10.1982 was also rejected taking into consideration that the defendant no.

1, to whom the money was paid, has neither denied this fact nor filed any

written statement nor he had come before the Court to depose. The learned

court observed that the contesting defendants was not at all competent to say

that no payment was made on 11.10.1982 particularly when they did not make

any such statement in their evidence as D.Ws. 1 and 3. On being specifically

asked, these defendants during cross-examination in paragraph 11 denied

having any talk with defendant no. 1 with respect to receipt of money and in

addition to the aforesaid, the learned court also relied upon Exhibit-2/1 and

was of the view that no adverse inference could be drawn on account of non-

production of the receipt with regard to payment of Rs. 1,000/-.

28. The learned court also recorded that the plaint of the Partition Suit No.

278/1982 against defendant no. 1 filed by defendant no. 3 was also exhibited

and marked Exhibit-5, which was subsequently withdrawn on 02.08.1983 and

the plaint goes to show that the defendant no. 3 came to know on 20.09.1982

that the defendant no. 1 had executed agreement for sale in favour of plaintiff

on 18.09.1982 and in paragraph 13 of the plaint, it has been mentioned that

the agreement had taken effect on 18.09.1982. The plea of the contesting

defendants that they had no knowledge about the agreement was falsified by

Exhibit-5 and 6. Exhibit-6 was the order of withdrawal of Partition Suit No.

278/1982. The learned court, upon appreciation of the materials, also recorded

that admittedly the defendant no.3 had knowledge of the agreement of sale

much prior to the filing of the suit and the plea of the defendants that they had

no knowledge of the agreement of sale dated 18.09.1982 was rejected.

29. The learned trial court ultimately recorded that the agreement for sale

dated 18.09.1982 executed by defendant no. 1 in favour of the plaintiff was a

2026: JHHC: 15952

38

valid and genuine document and the plaintiff had paid consideration amount

of Rs. 2,000/- on 18.09.1982 on which day the agreement of sale was executed

and further payment was made on 11.10.1982 to the extent of Rs. 1,000/-.

Further findings of the learned trial court in paragraph 11 and 12 of the

judgment based on the evidences brought on record are quoted as under: -

“11. After consideration of entire oral and documentary evidence

brought on record I find that the plaintiff has paid Rs. 2000/- on

18.9.82 on which date the agreement for sale was executed by

defendant no. 1 in favour of plaintiff and again Rs. 1000/- was paid

on 11.10.82 vide Ext. 2/1, Exts. 2/1, Exts. 2/2 and 3 and 3/1 clearly

show that the plaintiff was always ready and willing to perform his

part of contract. The agreement for sale dated 18.9.82 executed by

defendant no.1 in favour of the plaintiff is quite valid and genuine

document and the plaintiff is entitled to a decree for specific

performance of contract with respect to the suit properties fully

described in Schedule B of the plaint. Thus, these issues are

accordingly disposed of in favour of the plaintiff.

12. Issue no. 6: It has been contended on behalf of the Defendant

no. 2 and 3 that the plaintiff has not sought for any relief against

defendant no. 2 and 3 in the plaint. From record I find that

defendant no. 2 has purchased the suit property from defendant no.

3 during the pendency of the suit vide Ext. C dated 20.12.82. The

suit was filed on 11.12.82. The aforesaid sale is clearly hit by

doctrine of lis pendence as provided in Section 52 of the T.P. Act.

The sale is bad in law and cannot have any legal effect. Under the

circumstances no declaration is necessary for cancellation of the

sale deed dated 20.12.82. Thus, the plaintiff has got valid cause of

action for the suit and he is entitled to the reliefs prayed for against

the defendant no. 1.”

The suit was decreed.

30. The defendants filed 1

st

appeal. The learned 1

st

appellate Court

considered the issues framed by the learned Trial Court and dismissed the 1

st

appeal.

31. Before the learned 1

st

appellate court, the defendants raised only the

following three points: -

(a) the plaintiff has not pleaded and proved readiness and

willingness.

2026: JHHC: 15952

39

(b) the plaintiff did not produce receipt showing payment of

Rs. 1,000/- on 11.10.1982 and therefore adverse inference has

to be drawn.

(c) failure of defendant no. 1 to file written statement does not

mean admission of the assertions in the pliant.

32. The learned 1

st

appellate court recorded in paragraph 10 that it was

incorrect to say that the plaintiff had not pleaded readiness and willingness

and was of the view that readiness and willingness cannot be treated as a strait

jacket formula and it has to be determined on the entirety of the facts and

circumstances of a case.

33. The learned court referred to paragraph 9 and 11 of the plaint and

observed that the plaintiff had made necessary amendments about his

readiness and willingness. Further recorded that in paragraph 7 of exhibit-3

(notice to Ram Kinkar Pathak and Jugal Kishor Pathak), it has been mentioned

that the plaintiff was still ready and willing to complete the sale deed. Further

the learned court recorded that the plaintiff examined as PW-4 and in

paragraph 6 of his evidence stated that he was ready and willing to pay the

reasonable money due from him. The learned court further referred to the

timeline which also demonstrated the conduct of the plaintiff showing his

readiness and willingness: -

(i) 18.09.1982 – Agreement executed and sale was to be

completed within one month i.e. by 17.10.1982 Ext. 2.

(ii) 11.10.1982 – Period extended up to 17.11.1982 at the

request of defendant no. 1. Ext. 2/1

(iii) 16.11.1982 – period extended up to 30.11.1982 at the

request of defendant no. 1. Ext. 2/2.

(iv) 27.11.1982 – plaintiff received letter from Ram Kinkar’s

lawyer M. L. Pathak, Advocate. Ext. 3/1.

(v) 30.11.1982 – plaintiff gives reply to Ext. 3 and copy of

notice served on defendant Ext. 1/1

(vi) 11.12.1982 – suit filed.

2026: JHHC: 15952

40

34. The learned court then referred to the judgment of the Hon’ble Supreme

Court wherein it has been held that for specific performance, the plaintiff has

to prove that throughout he was prepared to do his part of the contract and the

preparedness may not be mere verbal. The learned court also recorded that

there was no pleading or evidence by the defendants that the plaintiff was

financially incapable. The evidence of PW-5 paragraph 18, revealed that a sale

deed was prepared in stamp paper and after coming to registration office, the

defendant no. 1 flew away. The learned court recorded that this intendment

made in cross-examination does not mean that the defendant no. 1 went away

because the plaintiff had no money. The learned court recorded that no

suggestion was given to the effect in cross-examination of P.W.-4 and there is

no pleading to that effect in the written statement. The learned court recorded

that the plaintiff’s readiness and willingness averred in paragraph 11 of the

plaint has been dealt with in written statement in paragraph 15 of the defendant

no. 3 and paragraph 4 of the defendant no. 2 and there is no denial whatsoever,

either expressly or impliedly, that the plaintiff was not ready and willing to

perform his part of the contract.

35. After having observed as aforesaid, the learned 1

st

appellate court dealt

with plea regarding payment of Rs. 1,000/- on 11.10.1982 dealing with failure

to produce the money receipt and further with respect to endorsement Exhibit-

2/1. The learned court observed that a party is required to produce the best

evidence and that the payment of Rs. 2,000/- on 18.09.1982 was proved by

Exhibit-2 and further payment of Rs. 1,000/- was proved by Exhiit-2/1 and

that both the parties had agreed for extension of time till 30.11.1982 on

16.11.1982.

36. The evidence of PWs were discussed by the learned 1

st

appellate court.

The learned court recorded that even after receipt of notice dated 30.11.1982,

the payment was not denied. Further DWs. 1, 2 and 3 admitted that they did

not ever talk with defendant no. 1, therefore, the plea that further Rs. 1,000/-

was not paid is only surmise. The learned court also recorded that DW-1 Ram

Kinkar Pathak had clearly stated that he will examine defendant no. 1 on

2026: JHHC: 15952

41

commission, but even after that neither the defendant no. 1 was examined nor

any steps were taken for his examination. Hence, adverse inference could not

be drawn for non-produce of the receipt. The learned court further recorded

that non-production of money receipt regarding payment of Rs. 1,000/- on

11.10.1982 was explained as the receipt was lost by the plaintiff who was

examined as P.W.-4. The learned court upon appreciation of evidence

recorded that it could not be said that the plea of payment of Rs. 1,000/- was

false.

37. Apart from the aforesaid findings, some of further findings of the

learned 1

st

appellate court are quoted as under: -

13. the receipt granted for payment of Rs. 1000/- on 11.10.1982 was

not filed in court because the same got lost. (PW-4 para 3 end, para

14, para 16). The factum of payment of Rs. 1000 has been proved by

the evidence i.e. Ext.-2/1 and by evidence of eye witness PW-2 and

PW-3. Therefore, it cannot be said that the plea of payment of Rs.

1000/- can be said to be false.

No adverse inference can be drawn for non-filing of separate receipt

as the same is not in possession of the plaintiff. I am of the opinion

that the learned court below has rightly recorded that there is

written document (Ext.-2/1) showing payment of Rs. 1000/- by the

plaintiff to the defendant no. 1. The defendant no. 1 has signed the

same making endorsement. The decision reported in AIR 1968 SC

1413 does not apply. For drawing adverse inference, it has to be on

record that the document is in custody of the person and he

deliberately failed to produce it. In the decision reported in AIR

1961 SC 1277, it has been held “non-production of important

document-presumption-document not in possession or power of

party – No adverse inference. Where in the course of trial, the court

is satisfied that a document having an important bearing as the

dispute which is pending trial is withheld by a party, an inference

adverse to the party with holding the document that if produced, the

document would not support that party’s case, may properly arise.

But where there is no evidence on the record to show that the

document was with the plaintiff or within their power and that it was

withheld from the court, the court would refuse to raise an adverse

inference against the plaintiff.

2026: JHHC: 15952

42

14. The plaintiff/respondent has proved that he paid Rs. 2000/- on

18.09.1982 and Rs. 1000/- on 11.10.1982. Above all, plaintiff has

stated in his evidence that he is ready to pay reasonable money (PW

4 para 6 end). Under the circumstances, no adverse inference can

be drawn for non-production of the receipt.

15. The defendants have taken a plea in the written statement that

the plaintiff got agreement for sale dated 18.09.1982 (Ext.-2)

executed in his favour by practicing fraud, coercion and

misrepresentation on defendant no. 1.

The plea about the agreement of sale dated 18.09.1982 between

plaintiff and defendant no. 1 (Ext.-2) being a sham and collusive

document was not supported by defendant no. 3 (as DW-1) and

defendant no. 2 (as DW-3) in their evidence in court.

The defendant no. 3 did not give any detail as to how, when and

under what circumstances, fraud, undue influence or coercion was

practiced. In para 4 of his deposition as DW-1, defendant no. 3

stated that he came to know later on that plaintiff got executed some

rent properties. There is no evidence about fraud, undue influence

etc. and the plea raised in written statement of defendant no. 3 is to

be ignored. According to defendant no. 3 himself, it was on

20.09.1982 that he came to know about agreement for sale dated

18.09.1982 between plaintiff and defendant no. 1.

Exhibit-3/1 (notice dated 20.11.1982) para 2.

Exhibit-5 (plaint in partition suit) para 5

The material witnesses examined by defendants are DW1 (Ram

Kinkar Pathak) DW (Ram Kinkar’s father Naresh) and DW-3

(Jugal’s son-in-law Dineshwar). All of them stated that they did not

talk to Jugal Kishor Pathak about his agreement with plaintiff.

16. In written statement of defendant no. 3, it has been pleaded that

(i) because of old age and ill health, Jugal Kishor Pathak was not

mentally competent to enter into contract; (ii) because of having

executed power of attorney in 1977 in favour of defendant no. 3,

Jugal Kishor Pathak was not legally competent to enter into any

contract without revoking the power. The defendant no. 3 as DW-1

stated in paragraph 3 of his evidence that being about 100 years in

age, Jugal Kishor Pathak cannot walk and hence he cannot come to

court and his eye sight is also poor. This claim is falsified by

admission in paragraph 18 that Jugal Kishor Pathak can talk, move

around in his house and can be examined as a witness on

commission. DW-3 has stated in paragraph 8 that in April 1982

2026: JHHC: 15952

43

Jugal Kishor Pathak was mentally fit. DW-2 stated in his evidence

that Jugal Kishor Pathak moves around between Chatra and Gaya

by bus. Hence, plea of mental incompetence has no basis. As regards

legal incompetence, in memo of appeal and in the submissions

during arguments in the appeal, this court is not perused. The plea

of legal incompetence as raised in the written statement is restrict

to the effect of power of attorney in 1977 and non-revocation

thereof. By merely executing power of attorney, defendant no. 1 did

not divest himself of his right to deal with his property. In a Full

Bench decision reported in AIR 1981 (NOC) All, it has been held

that while delegating power, a person does not divest himself of his

powers but only creates a concurrent authority with himself for the

exercise of power.

16. On consideration of oral and documentary evidence discussed

above, I find that the plaintiff has paid Rs. 2,000/- on 18.09.1982 on

which date the agreement for sale was executed by defendant no. 1

in favour of plaintiff and again Rs. 1000/- was paid on 11.10.1982

vide Ext.-2/1. Exts. 2/1, 2/2 and 3 and 3/1 clearly show that the

plaintiff was always ready and willing to perform his part of

contract. Hence, I fully agree with the issue expressed by the learned

court below that the agreement for sale dated 18.09.1982 executed

by defendant no. 1 in favour of the plaintiff is valid and genuine

document. I also find that the learned court below rightly hold that

the plaintiff is entitled to a decree for specific performance of

contract with respect to the suit properties fully described in

Schedule-B of the plaint.

17. Issue no. 6. It has been contended on behalf of defendant nos. 2

and 3 that the plaintiff has not sought for any relief against

defendant nos. 2 and 3 in the plaint. The plaint was amended after

the defendant no. 3 sold the suit property to defendant no. 2 during

the pendency of the suit. The suit was filed on 11.12.1982 and the

sale was made on 20.12.1982 (Ext.-G). This sale is hit by the

doctrine of lis-pendens as provided in Section 52 of the Transfer of

Property Act. This position of law will appear from the decision

reported in AIR 1964 Mysore (Full Bench). The sale is bad in law

and cannot have any legal effect. The plaintiff has amended the

plaint and prayed in the relief that all the defendants be directed to

specifically perform the agreement dated 18.09.1982 (Ext.-2). It

cannot therefore be said that no relief has been sought against

defendant nos. 2 and 3. The plaintiff has in paragraph 17 and 18 in

2026: JHHC: 15952

44

the amended plaint clearly mentioned as to how defendant nos. 2

and 3 have got involved in the suit. Therefore, it cannot be said that

there is no cause of action against defendant nos. 2 and 3. So, the

learned court below rightly held that the plaintiff has got valid cause

of action for the suit and he is entitled to the reliefs prayed for

against defendant no. 1.

18. In the light of the discussions made above, I find that the learned

court below has rightly decreed the suit ex-parte against defendant

no. 1 and decided in presence of and on contest against defendant

nos. 2 and 3 with cost and directed defendant no. 1 to execute the

sale deed in favour of the plaintiff with respect to the suit property

fully described in Schedule-B of the plaint within two months, failing

which the plaintiff is at liberty to get the same executed by the

process of the court. Accordingly, I find no merit in the appeal and

it fails. In the result, this appeal is dismissed with cost.”

1

st

substantial question of law

Whether the concurrent finding recorded by both the courts that

the plaintiff was ready and willing to perform his part of the

contract suffers from any perversity?

38. The learned counsels for the appellants have argued that the agreement

of sale dated 18.09.1982 (Ext.-2) has not been properly proved. This Court is

of the view that such plea is not available to the appellants considering the

scope of the substantial question of law to be decided in the appeal. Otherwise

also, the learned courts have discussed the pleadings and evidences in details

with respect to Exhibit-2 entered into between the plaintiff and the defendant

no. 1 and has recorded concurrent findings that there was an agreement of sale

dated 18.09.1982 (Exhibit-2) entered into between the plaintiff and defendant

no. 1 with respect to Schedule-B property for consideration of Rs. 10,000/-

and Rs. 2,000/- was shown to have been paid as per the agreement of sale

itself. This is over and above the fact that neither the defendant no. 1 filed

written statement nor contested the suit nor was examined as a witness. The

records reveal that the defendant nos. 2 and 3, who are the close relatives of

the defendant no.1, were to get defendant no. 1 examined through appointment

of commissioner, but for that no steps were taken by the contesting

2026: JHHC: 15952

45

defendants. The contesting defendants asserted that the agreement of sale was

forged and fabricated and was obtained by coercion and misrepresentation as

defendant no. 1 was not mentally and physically fit, but no evidence was led

by the contesting defendants, who were close relative of defendant no. 1 to

substantiate such allegation. The plaintiff through oral and documentary

evidences has proved Exhibit-2 and exhibit-2 has been accepted to have been

duly proved by both the courts. All arguments relating to legality, validity and

proof of Exhibit-2 are beyond the substantial question of law and hence cannot

be entertained.

39. The learned counsels for the appellants have also submitted that

necessary pleadings with respect to specific performance of contract in terms

of Form 47 and 48 of Appendix A of CPC have not been made and such

omission is fatal to the case of the plaintiff. For this, reliance has been placed

on the judgment passed by the Hon’ble Supreme Court reported in (2003) 10

SCC 390 (supra). In the said judgment reported in (2003) 10 SCC 390

(supra), Section 16(c) of Specific Relief Act has been quoted in paragraph 13

and it has been observed that in terms of Section 16(c), it is incumbent upon

the plaintiff both to aver and prove that he had all along been ready and willing

to perform the essential terms of the contract which was required to be

performed by him. It has been observed in paragraph 15 of the judgment that

Form 47 and 48 of Appendix-A of CPC prescribes the manner in which such

averments are required to be made by the plaintiff and in the facts of the said

case, it was not disputed that the plaintiff had not made the necessary

averments as required by law. The Hon’ble Supreme Court referred to the

earlier judgment reported in (1969) 2 SCC 539 (Ouseph Varghese vs. Joseph

Aley) in paragraph 17 of the aforesaid judgment, which is quoted as under: -

“17. The requirement to comply with the mandatory provisions

of Section 16(c) of the Specific Relief Act came up for consideration

of this Court in Ouseph Varghese vs. Joseph Aley & Ors. [(1969) 2

SCC 539] wherein it was held:

"The plaintiff did not plead either in the plaint or at any

subsequent stage that he was ready and willing to perform the

2026: JHHC: 15952

46

agreement pleaded in the written statement of defendant. A suit

for specific performance has to conform to the requirements

prescribed in Forms 47 and 48 of the 1st Schedule in the Civil

Procedure Code. In a suit for specific performance it is

incumbent on the plaintiff not only to set out agreement on the

basis of which he sues in all its details, he must go further and

plead that he has applied to the defendant specifically to

perform the agreement pleaded by him but the defendant has

not done so. He must further plead that he has been and is still

ready and willing to specifically perform his part of the

agreement. Neither in the plaint nor at any subsequent stage of

the suit the plaintiff has taken those pleas. As observed by this

Court in Pt. Prem Raj v. D.L.F. Housing and Construction (P)

Ltd [AIR 1968 SC 1355] it is well settled that in a suit for

specific performance the plaintiff should allege that he is ready

and willing to perform his part of the contract and in the

absence of such an allegation the suit is not

maintainable.”(emphasis supplied)

40. So far as the present case is concerned, this Court, upon perusal of the

plaint right from paragraph 5 to paragraph 11, finds that it has been clearly

averred that agreement of sale dated 18.09.1982 was entered into between the

plaintiff and the defendant no. 1 for consideration amount of Rs. 10,000/- out

of which Rs. 2000/- was paid and sale was to be executed within one month,

but it was extended twice at the instance of the defendant no. 1, firstly on

11.10.1982 upon payment of Rs. 1000/- it was extended till 17.11.1982 and

secondly on 16.11.1982 the agreement of sale was extended till 30.11.1982.

It has been asserted that prior to 30.11.1982, on 27.11.1982, the plaintiff

received a Pleader notice from defendant no. 3, grandson of defendant no.1,

who sought to enquire whether any agreement has been entered into between

the plaintiff and the defendant no. 1 and in response, the plaintiff, on

30.11.1982 itself, sent reply through advocate referring to the agreement of

sale and it was categorically made known that the plaintiff was always and

still ready and willing to pay the balance consideration amount and get the

sale deed executed and that he would wait up to 10.12.1982 for a response

failing which legal action will be initiated. It has been asserted that the reply

2026: JHHC: 15952

47

was also served upon the defendant no. 1 on 30.11.1982 itself and having no

response, the suit was immediately filed on 11.12.1982. All the events till

30.11.1982 happened during the subsistence of the agreement as the time

period of agreement dated 18.09.1982 was extended till 30.11.1982 vide

Exhibit-2/2.

41. This Court is of the considered view that the required averments for

seeking specific performance of agreement of sale dated 18.09.1982 (Ext.-2)

was duly pleaded in the plaint and the same was in consonance with the law

laid down by the Hon’ble Supreme Court in the judgment reported in (2003)

10 SCC 390 (supra) which in turn had relied upon earlier judgment reported

in (1969) 2 SCC 539 (supra).

42. The argument of the learned counsel for the appellants that,

necessary averments to seek specific performance of contract have not been

made when seen in the light of Forms 47 and 48 of Appendix-A of CPC, is

devoid of any merits, hence rejected.

43. The plaintiff has pleaded readiness and willingness to perform his part

of the contract including readiness and willingness even on the last date of

the agreement on 30.11.1982 by way of reply dated 30.11.1982 (exhibit-3) to

legal notice dated 20.11.1982 served on 27.11.1982 (exhibit-3/1) and it was

also personally served upon the defendant no. 1 on 30.11.1982 which was

within the subsistence of the agreement dated 18.09.1982 (exhibit-2) read with

exhibit 2/2. The plaintiff has also proved that the agreement of sale was

extended at the instance of the defendant no. 1 twice. The defendant no. 1 did

not even file his written statement to refute the averments of the plaintiff and

did not participate in the trial to refute or question the averments and evidences

of the plaintiff.

44. This Court finds that the evidences placed on record and as discussed

by the learned courts reveal that the learned courts have appreciated the

materials on record and have duly come to a finding that the plaintiff was

throughout ready and willing to perform his part of the contract and the offer

to perform was made even in writing vide exhibit- 3 which was personally

2026: JHHC: 15952

48

served upon the defendant no.1 who duly received and signed exhibit-3 and

his signature was marked as exhibit- 1/C . This happened when the agreement

was subsisting on the last day that is on 30.11.1982 (exhibit-3), to which the

plaintiff did not receive any response and filed the suit on 11.12.1982. The

argument of the learned counsel for the appellants that the offer to perform

was not made by the plaintiff at proper place and time at Hazaribagh has no

relevance as the offer to perform and get the sale deed executed was made in

writing by the plaintiff to the defendant no.1 and personally served during the

subsistence of the agreement, but the defendant no. 1 did not respond.

45. This Court is of the considered view that the readiness and willingness

to perform his part of the contract throughout was duly pleaded and duly

proved by the plaintiff who was examined as P.W-4 and also by the other

witnesses examined by the plaintiff. This is over and above the fact that the

defendant no.1, with whom the plaintiff had entered into agreement for sale

and who was the owner of the suit property, never filed written statement and

never appeared as witness in the suit and never participated in the suit

proceedings and the suit was set ex-parte against him. The power of attorney,

defendant no.3, contested the suit in his individual capacity as he had entered

into another agreement of sale with defendant no.2 and ultimately sold the suit

property to the defendant no.2. The defendant nos. 2 and 3 filed their separate

written statement and neither the financial capacity of the plaintiff was in

dispute nor the plea of readiness and willingness on the part of the plaintiff to

perform his part of the contract was in dispute. This Court is of the considered

view that the learned courts have considered the pleadings and materials on

record to come to finding that the plaintiff was ready and willing to perform

his part of the contract throughout and this court does not find any perversity

in the matter of such findings arrived at by the learned courts in favour of the

plaintiff. The totality of the evidence reveal that the plaintiff was ready and

willing to perform his part of the contract throughout.

46. The 1

st

substantial question of law is accordingly decided in favour of

the plaintiff and against the appellants (defendants) and it is held that the

2026: JHHC: 15952

49

concurrent findings recorded by both the courts that the plaintiff was ready

and willing to perform his part of the contract does not suffer from any

perversity.

3

rd

substantial question of law.

Whether the receipt cum extension of time of the agreement

for specific performance of contract marked as Exhibit 2/1

was inadmissible in evidence for the same being not duly

stamped.

47. Considering the arguments of the respective parties, this Court finds

that exhibit-2/1 is the endorsement regarding extension of time by one month

and also endorses receipt of Rs.1000/- and was made at the back side of the

exhibit-2 (the agreement of sale dated 18.09.1982). In view of the judgement

relied upon by the learned counsel for the appellants, the same was required

to be stamped and in the absence of being stamped the same could not be taken

into evidence. However, as per both the courts, the agreement as contained in

exhibit-2 was duly proved and the 2

nd

extension by which the period of the

agreement was extended till 30.11.1982 (exhibit-2/2) was also duly proved

which has neither been disputed by the other defendants nor the defendant

No. 1 filed his written statement, nor he has deposed in the court against the

plaintiff. Moreover, the evidence on record show that a separate money receipt

was prepared with respect to payment of Rs.1000/- but the plaintiff failed to

produce the same as he had stated in his evidence that the same was lost.

Defendant No. 3 has specifically stated that he never consulted his grandfather

(defendant no.1) for filing the written statement. This Court finds that from

the materials on record it is very much evident that there was a valid agreement

and the entire agreement doesn’t get vitiated because the exhibit-2/1 (1

st

extension) is not duly stamped. The deed of agreement is itself on a revenue

paper which is evident from exhibit-2 and the same has not been objected by

the defendants and the revenue paper of Rs. 3 and Rs. 2 was purchased for

reducing the agreement in writing and it is evident that there is no objection

2026: JHHC: 15952

50

over exhibit-2 which is an agreement and even if exhibit-2/1 is not taken into

consideration the same will have no bearing in the outcome of the case.

48. Thus, while answering the 3

rd

substantial question of law it is held

that the receipt cum extension of time of the agreement for specific

performance of contract marked as Exhibit 2/1 was inadmissible in evidence

for the same being not duly stamped. However, as discussed above, the

agreement of sale and its validity till 30.11.1982 was duly proved on the basis

of other materials on record and hence the answer to 3

rd

substantial question

of law, though decided in favour of the appellants (defendants), has no

bearing the matter and does not help the appellants in any manner.

2

nd

substantial question of law

Whether the agreement dated 18.09.1982 (Exhibit-2) executed by

defendant No.1 in favour of plaintiff or agreement dated

20.08.1982 (Exhibit-B) executed by defendant No.3 in favour of

defendant No.2 shall prevail and given effect to?

49. So far as the 2

nd

substantial question of law is concerned, it is not in

dispute that the agreement of sale dated 20.08.1982 (Ext.-B) executed by

defendant no. 3, as constituted attorney of defendant no. 1, was prior in point

of time as compared to the agreement of sale dated 18.09.1982 (exhibit-2)

executed by defendant no. 1 in favour of the plaintiff. It is further not in

dispute that no such issue was framed either before the learned trial court or

before the learned 1

st

appellate court as to whether the agreement of sale dated

20.08.1982 (Ext.-B) would prevail upon the agreement of sale dated

18.09.1982 (Ext.-2). However, both the parties were thoroughly cross-

examined in connection with their respective agreement of sale. It is important

to note that Exhibit-2 as well as Exhibit-B both were duly proved before the

learned court and no substantial question of law has been framed with respect

to proof of Exhibit-2 and/or proof of Exhibit-B. There can be no doubt that

even if no specific issue was framed as to which of the two agreements of sale

would prevail but there was appropriate materials before the courts which led

to a finding about existence of both the agreements of sale, that is, exhibit-2

and exhibit-B and the substantial question of law no.2 is essentially relating

2026: JHHC: 15952

51

to impact of existence of two agreements of sale and which one would prevail.

Thus, there is no legal impediment to decide the substantial question of law

no.2 even if no specific issue in this connection was ever framed by the learned

trial court or by the learned 1

st

appellate court but the existence of two

agreements of sale, that is exhibit- 2 and exhibit-B, were duly pleaded and

proved by the concerned parties.

50. The fact remains that the title suit was filed by the plaintiff on

11.12.1982 seeking specific performance of contract with respect to

agreement of sale dated 18.09.1982 (Exhibit-2) making the defendant no. 1 as

the sole defendant and subsequently when the sale deed was executed by

defendant no. 3 (power of attorney of defendant no.1) in favour of defendant

no. 2 on 20.12.1982 (exhibit-G) the plaintiff filed petition seeking amendment

of the plaint. The registered sale deed dated 20.12.1982 (exhibit-G) also

referred to the agreement of sale between the defendant no. 3 and defendant

no. 2 dated 20.08.1982 (exhibit-B). The plaintiff filed petition seeking

amendment in the suit to make the defendant nos. 2 and 3 as a party in the suit

and also to introduce certain averments with respect to execution of sale deed

dated 20.12.1982 (exhibit-G) by the defendant no. 3 in favour of defendant

no. 2. The amendment was allowed vide order dated 25.03.1983 and the

defendant nos. 2 and 3 were added as party and following averments were

inserted from the side of the plaintiff as paragraph 16, 17 and 18: -

“16. That the plaintiff has filed the present suit for specific

performance of agreement dated 18.09.1982 executed by and

between the plaintiff and the defendant. The suit was filed on

11.12.1982.

17. That with full knowledge about the filing of the present suit one

Ram Kinkar Pathak who is the grandson of the defendant executed

a deed of sale as respect to suit property in favour of Dinesh

Pathak, S/o not known, resident of Qr. No. DT 2121, near Pani

Tanki, (Water Tower), Dhurwa, Ranchi-4.

18. That Dinesh Pathak is the own son-in-law of the defendant and

therefore the sale deed executed in his favour is a sham transaction

2026: JHHC: 15952

52

made for the purpose of adversely affecting the plaintiff’s decree

in suit.

51. The prayer in the suit was also adequately amended to include relief

against all the defendants.

52. It is important to note that though the plaint was amended after

execution of the sale deed dated 20.12.1982 and the sale deed itself referred

to the previous agreement of sale between defendant nos. 2 and 3 dated

20.08.1982, but there was no assertion introduced in the plaint through

amendment making any allegation of wrongfully preparing the agreement of

sale dated 20.08.1982 for the purpose to defeat the relief of the plaintiff based

on subsequent agreement of sale dated 18.09.1982 (exhibit-2) . It is equally

important to note that the defendant no. 2 while filing the written statement

had specifically referred to the agreement of sale dated 20.08.1982 entered

into between defendant nos. 2 and 3 followed by the execution of registered

sale deed dated 20.12.1982. Still the plaintiff did not take any steps to

amendment to plaint so as to assail the agreement of sale dated 20.08.1982.

53. It is further important to note that so far as the defendant no. 3 is

concerned, he did not refer to the agreement of sale dated 20.08.1982 in his

written statement, but certainly this agreement of sale was referred to in the

registered sale deed dated 20.12.1982 executed by defendant no. 3 in favour

of defendant no. 2. The defendant no. 3 in his written statement took a specific

plea that once the power of attorney was given to the defendant no. 3 way

back in the year 1977 by the defendant no. 1, the defendant no. 1 had no legal

right to enter into any agreement of sale with anybody whomsoever including

the plaintiff. This was in furtherance to the assertion that the agreement of sale

entered into between the plaintiff and the defendant no. 1 was fraudulently

obtained through misrepresentation by the plaintiff and therefore such

agreement, if any, was void.

54. The learned courts by concurrent finding have held that the defendant

no. 1 had entered into agreement of sale with the plaintiff dated 18.09.1982

and the agreement of sale dated 18.09.1982 was a valid agreement between

2026: JHHC: 15952

53

the plaintiff and the defendant no. 1. The learned courts have rejected the plea

of the defendant no. 3 that once the power of attorney was executed by

defendant no. 1 in favour of defendant no. 3, the defendant no. 1 completely

lost his right to deal with the property. The learned court have taken note of

the fact that the defendant no. 2 had proved the agreement of sale entered into

between the defendant no. 3 and defendant no. 2 dated 20.08.1982 which was

prior in point of time as compared to the agreement of sale entered into

between the plaintiff and the defendant no. 1 dated 18.09.1982, but have not

considered the impact of such a prior agreement entered into between the

defendant no. 2 and defendant no. 3 (power of attorney of defendant no.1).

The records of the case reveal that there is no substantial cross-examination

with respect to the agreement of sale dated 20.08.1982 except the fact that

stamp paper with respect to the agreement of sale dated 20.08.1982 was

purchased in the month of March 1982 and the agreement was entered on

20.08.1982, to which the defendant no. 2 in his cross-examination had tried to

explain that though the negotiations were on, but the necessary finances were

not available with the defendant no. 2 and the agreement of sale was entered

only on 20.08.1982 upon payment of part consideration of Rs. 500/-.

55. The learned counsel for the plaintiff has tried to allege by referring to

the evidences on record that the agreement of sale dated 20.08.1982 (Exhibit-

B) was itself doubtful and it never existed and the same was created by

defendant nos. 2 and 3 only to defeat the claim of the plaintiff and to mislead

the court by giving wrongful facts and for that they have also pointed out that

the defendant no. 3 in his written statement had not taken any such plea

regarding the existence of agreement of sale dated 20.08.1982 and such

omission was absolutely fatal as no amount of evidence could be looked into

in absence of pleading which was as settled principle of law. It has also been

sought to be argued that in the notice issued by the defendant no. 3 dated

20.11.1982, there was no such mention of the agreement of sale dated

20.08.1982. Rather in the notice, the defendant no. 3 had stated that there was

no any urgent or any necessity of the family for money at that time. A

2026: JHHC: 15952

54

reference has also been made to Exhibit-5, which is a plaint of partition suit

filed by the defendant no. 3 on 25.11.1982 and the same also does not mention

the agreement of sale dated 20.08.1982 (Ext.-B).

56. The learned counsel for the plaintiff has tried to suggest that the

agreement of sale dated 20.08.1982 (Ext.-B) was a forged and fabricated

document. However, this court is of the considered view that such plea cannot

be entertained in view of the fact that in spite of the defendant no. 2 having

taken specific plea with regard to existence of agreement of sale dated

20.08.1982 (Ext.-B), no attempt was made by the plaintiff to amend the plaint

so as to challenge/assail that the agreement of sale dated 20.08.1982 (Ext.-B)

to be a forged and fabricated document or was created by collusion of

defendant nos. 2 and 3 only to defeat the claim of specific performance of

contract by the plaintiff. It is also important to note that no such substantial

question of law has been framed even by this Court as to whether the

agreement of sale dated 20.08.1982 (Ext.-B) was a forged and fabricated

document.

57. The argument of the plaintiff that the agreement of sale dated

20.08.1982 (Ext.-B) was a forged and fabricated document is not only beyond

the pleadings of the parties, but is also beyond the substantial question of law

as framed by this Court and therefore such a plea is not tenable. This Court

has to only examine the impact of a prior agreement of sale dated 20.08.1982

(Ext.-B) entered into between defendant no. 3 [in the capacity of power of

attorney holder of defendant no. 1] and defendant no. 2 vis-à-vis the

agreement of sale entered into directly between defendant no. 1 and the

plaintiff on 18.09.1982 (exhibit-2).

58. The perusal of Exhibit-B reveals that no specific timeline has been

mentioned for the purposes of execution of the sale deed. However, the sale

deed was executed on 20.12.1982 within a span of four months from the date

of agreement of sale dated 20.08.1982.

59. In the aforesaid factual scenario, this Court is of the considered view

that once there was already an agreement of sale entered into by the power of

2026: JHHC: 15952

55

attorney holder (defendant no. 3) in favour of defendant no. 2 on 20.08.1982,

such agreement of sale was certainly binding upon the defendant no. 1, who

had executed the registered power of attorney in favour of defendant no. 3

way back in the year 1977 which was still subsisting and under such

circumstances, the subsequent agreement of sale, entered into by the

defendant no. 1 directly in favour of the plaintiff on 18.09.1982, has to give

way to the prior agreement of sale dated 20.08.1982 and it was this agreement

of sale dated 20.08.1982 which ultimately culminated in execution of

registered sale deed by defendant no. 3 in favour of defendant no. 2 on

20.12.1982 (Ext.-G).

60. In view of the aforesaid facts and circumstances, the 2

nd

substantial

question of law is hereby decided in favour of the appellants and this Court

is of the considered view that the agreement of sale dated 20.08.1982 (Ext.-

B) executed by defendant no. 3, as constituted attorney of defendant no. 1,

shall prevail upon the subsequent agreement of sale dated 18.09.1982 (Ext.-

2) executed by the defendant no. 1 himself in favour of the plaintiff. This

crucial aspect of the matter, that is, impact of exhibit- B, was not taken care

of by both the learned courts, although both the learned courts have taken note

of the fact that there was previous agreement of sale dated 20.08.1982, but did

not record any finding that the same was a collusive or a fraudulent document

and rightly so, in view of the fact that no such plea was raised by the plaintiff

with respect to agreement of sale dated 20.08.1982. Merely taking a plea that

the sale deed executed in favour of defendant no. 2 was a sham transaction

made for the purposes of adversely affecting the plaintiff’s decree in the suit

does not amount to taking a plea that the agreement of sale dated 20.08.1982

was collusive or a fraudulent document.

61. Accordingly, it is held that the agreement of sale dated 20.08.1982

(Ext.-B) executed by defendant no. 3 [as constituted attorney of defendant no.

1] in favour of the defendant no.2, shall prevail upon the subsequent

agreement of sale dated 18.09.1982 (Ext.-2) executed by the defendant no. 1

himself in favour of the plaintiff. Thus, the learned courts were not justified

2026: JHHC: 15952

56

in decreeing the suit on the strength of agreement of sale dated 18.09.1982

(Ext.-2) executed by the defendant no.1 in favour of the plaintiff once it was

brought on record that there was a previous agreement of sale dated

20.08.1982 (Ext.-B) executed by defendant no. 3 [as constituted attorney of

defendant no. 1] in favour of the defendant no.2 and it was this agreement of

sale dated 20.08.1982 which culminated into sale deed dated 20.12.1982

(exhibit- G) executed by the defendant no.3 (power of attorney of defendant

no.1) in favour of the defendant no.2 and thus , the sale deed dated 20.12.1982

(exhibit- G) was not hit by lis pendens.

62. Consequently, the decree for specific performance of agreement of sale

dated 18.09.1982 (Ext.-2) granted by the learned trial court and upheld by the

learned 1

st

appellate court cannot be sustained in law and are accordingly set-

aside.

63. Summary: -

Substantial question of law Answer/findings of this court

(i) Whether the concurrent

finding recorded by both the

courts that the plaintiff was

ready and willing to perform

his part of the contract suffers

from any perversity?

The concurrent findings recorded

by both the courts that the plaintiff

(respondent) was ready and

willing to perform his part of the

contract does not suffer from any

perversity.

(ii) Whether the agreement dated

18.09.1982 (Exhibit-2) executed

by defendant No.1 in favour of

plaintiff or agreement dated

20.08.1982 (Exhibit-B) executed

by defendant No.3 in favour of

defendant No.2 shall prevail and

given effect to?

The agreement of sale dated

20.08.1982 (Ext.-B) executed by

defendant no. 3 [as constituted

attorney of defendant no. 1] in

favour of the defendant no.2, shall

prevail upon the subsequent

agreement of sale dated

18.09.1982 (Ext.-2) executed by

the defendant no. 1 himself in

favour of the plaintiff.

Consequently, the decree for

specific performance of

2026: JHHC: 15952

57

subsequent agreement of sale

dated 18.09.1982 (Ext.-2) granted

by the learned trial court and

upheld by the learned 1

st

appellate

court cannot be sustained in law

and are accordingly set-aside.

As a result, the suit seeking

specific performance of

agreement dated 18.09.1982

(Ext.-2), being subsequent in point

of time as compared to the

agreement of sale dated

20.08.1982 (exhibit-B), is

dismissed.

It is important to note that

registered sale deed dated

20.12.1982 (exhibit-G) as a sequel

to agreement of sale dated

20.08.1982 (exhibit-B) has been

executed.

(iii) Whether the receipt cum

extension of time of the agreement

for specific performance of

contract marked as Exhibit 2/1

was inadmissible in evidence for

the same being not duly stamped?

The receipt cum extension of time

of the agreement for specific

performance of contract marked

as Exhibit 2/1 was inadmissible in

evidence for the same being not

duly stamped. However, the

agreement of sale and its validity

till 30.11.1982 was duly proved on

the basis of other materials on

record and hence the answer to 3

rd

substantial question of law,

though in favour of the appellants

(defendants) has no bearing the

matter and does not help the

appellants in any manner.

64. In view of the answer to the 2

nd

substantial question of law against the

plaintiff (respondent) and in favour of the defendants (appellants), this 2nd

appeal is allowed and the suit seeking specific performance of the agreement

dated 18.09.1982 (Ext.-2) is dismissed.

65. Pending interlocutory application, if any, is closed.

2026: JHHC: 15952

58

66. Let the records be immediately sent back to the court concerned.

67. Let a copy of this order be communicated to the court concerned

through ‘e-mail/FAX’.

(Anubha Rawat Choudhary, J.)

Dated: 01.06.2026

Uploaded On: 02.06.2026

Mukul/-