MOOL CHAND Vs. VED PRAKASH

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for specific performance of a contract for sale of a certain area of land situate at Hapur.

(2.) According to the plaintiff's case the defendants agreed to sell the land detailed at the foot of the plaint at Rs. 6 per square yard. The agreement was entered into on 21st April, 1966 and the sale was to be completed within one month. The sum of Rs. 1,000 was paid as advance and a receipt for the same was executed by the defendants, the same day. That receipt is Ext. I on the record. The plaint proceeds on to allege that the defendants had agreed to carve out a 10 feet wide passage on the south of the land to be sold and the land of the passage was to be excluded in calculating the area of the land to be sold and the price to be paid therefor. For this purpose the land to be sold had to be measured and a site plan was to be prepared on scale showing the passage to be so carved out, before the execution of the sale deed. The defendants held the land as Sirdars at the time when the agreement was executed. They had also to become Bhumidhars by depositing 10 times the land revenue, and to obtain a Bhumidhari sanad before the execution of the sale deed. According to the plaintiff, the defendants failed to complete the said requirements, which were required to be performed before the executioion of the sale deed, within the one month's time agreed to between the parties. The plaintiff attended the registration office on 20th May 1966 after previous intimation but the defendants failed to turn up. The defendants did not inform the plaintiff about the deposit of 10 times the land revenue with the Government and the acquisition of Bhumidhari rights and the grant of Sanad even after 20th May, 1966, but the plaintiff had come to know that the defendants had acquired Bhumidhari rights and obtained a Sanad in respect of the land recently but had not got a site plan prepared for carving out the 10 feet wide land for passage in order to work out the exact area of the land to be sold. According to the plaintiff, the entire area of the land was .1 Bigha, 4 biswas, and excluding the area for the 10 feet wide passage on the south, the area of the land to be sold worked out approximately to 3330 sq. yards, of which the price worked out to Rs. 19,980, at the agreed rate of Rs. 6 per sq. yard. The plaint proceeds on to allege that the plaintiff is ready and was ever ready to perform his part of the contract. He is ready to pay and was ever ready to pay the balance sum of Rs. 18,980 or whatever amount of consideration may be found payable on preparation of the site plan and calculation of the area. He is also ready to do all other things and to incur all other necessary expenses on the execution of the sale deed. The plaintiff also requested the defendants to execute the sale deed on receipt of the balance consideration and registration notices were served upon the defendants but they have not only refused to execute the sale deed but have further asserted that the amount of Rs. 1,000 paid by the plaintiff to the defendants had been forfeited. Hence the suit. The receipt which contains the terms of the agreement appears to have been filed on 13th February, 1969 a few days after 27th January, 1969, the date on which the plaint was filed.

(3.) The two defendants filed separate written statements. In the first written statement of Raghubir Saran, defendant No. 1, he admitted the fact of the agreement on 21st April, 1966 between him and the plaintiff to sell the land in suit at Rs. 6/- per sq. yard and the receipt of Rs. 1000/- as 'earnest money' by him and added that it was stipulated that if the plaintiff did not get the sale deed executed within the prescribed tune, the earnest money would be liable to be forfeited. It was then admitted that the plaintiff paid Rs. 1,000 to the first defendant and got his signatures on a typed receipt dated 21st April, 1966 for the same but the plaintiff's case that the amount was paid as part of the sale consideration was false. It was then admitted that the first defendant was to get a scale map prepared showing the 10 feet wide passage which had been carved out by him and for which no price was to be paid so that the amount of the price to be paid may be found out from the scale map. This is followed by the denial of the contents of paragraph 4 of the plaint coupled with the assertion that the first defendant was in fact a Zamindar of the land and believed that he must have been recorded as a Bhumidhar thereof on the abolition of the Zamindari but when he came to know of the wrong entry of some land as Sirdari, he deposited 10 times the land revenue on 24th May, 1966 and having done so he served a notice dated 27th May, 1966 on the plaintiff to have the sale deed executed. In the next paragraph of the written statement the contents of paragraph 5 of the plaint were denied, coupled with the assertion that the plaintiff had got the land measured and the 10 feet wide passage which had been carved out by the defendants was shown in the scale map which was ready on 20th May, 1966 and a ferroprint copy thereof was given by the first defendant to the plaintiff, and that the plaintiff's allegations to the contrary were false. The written statement then proceeds on to acknowlege the receipt of the plaintiff's notice dated 20th May, 1966 by the first defendant on 23rd May, 1966 in which it is said that the plaintiff had dishonestly not mentioned the fact of the measurement of the land and the preparation of the scale map and the receipt of its ferroprint by him. It is then explained that as soon as the first defendant came to know that some of the and was recorded as Sirdari, instead of getting involved in proceeding for correction of papers, he deposited the 10 times of the land revenue on 24th May, 1966 and showed the receipt to the plaintiff, and 1st June, 1966 was fixed for the execution of the sale deed. By way of abundant caution the first defendant also informed the plaintiff by notice dated 26th May, 1966 that he should get the sale deed executed on 1st June, 1966 and if he did not do so, the earnest money could be forfeited. The plaintiff, it was aid, deliberately and dishonestly did not receive that notice and it was accordingly received back by the first defendant on 14th June, 1966. The plaintiff's allegation that the first defendant was not prepared to execute the sale deed within the agreed time, was said to be false and that on the contrary it was the plaintiff who had avoided to do so and his right to have the sale deed executed had come to an end. The contents of paragraph 6 of the plaint were thereafter denied, and, after repeating much that had already been said, it was said that the plaintiff did not get the sale deed executed and he was guilty of dishonesty and falsehood. The contents of paragraph 7 of the plaint were thereafter not admitted with the further assertion that a 10 feet wide passage had already been carved out by the first defendant and had been shown to the plaintiff and also demarcated on the map and the map also showed the area of the land to be sold but the plaintiff was bent upon making wrong statements. The area of the land to be sold was said to be 37701/4 sq. yards and the price thereof Rs. 22,621-50. In paragraph 8 of the written statement, the contents of paragraph 9 of the plaint were denied and it was asserted that the plaintiff raised objections which showed that he was not prepared to take the sale, that the suit was much delayed which also showed that the plaintiff was not ready to take the sale, but since the prices of the land had doubled and trebled, the plaintiff had filed the suit on wrong allegations. In paragraph 9 of the written statement, after denying the contents of paragraph 9 of the plaint, it was asserted that the plaintiff's right to have the sale deed executed came to an end long ago and the earnest money of Rs. 1,000 stood forfeited. The agreement had also come to an end. The plaintiff was falsely trying to revive it. A correct reply was given to the plaintiff's notice. In paragraph 10 of the written statement, after denying the contents of paragraph 10 of the plaint, it was asserted that the plaintiff's right to have the sale deed executed came to an end when he raised objections. The first defendant had fulfilled the terms of the agreement to be performed by him but the plaintiff had not, in spite of the expiry of the period of one month for the execution of the sale deed come forward to have the sale deed executed in spite of fixing of a date for doing so on two occasions. His right to have the sale deed executed has come to an end. He has no right to maintain the suit. After raising technical pleas in paragraphs 11, 12 and 13, the written statement proceeds on to state the additional pleas of the first defendant in paragraph 14 onwards. Much of it is a repetition of what had already been stated in the parawise reply to the plaint, but certain allegations not made earlier must be noticed. It was stated that the plaintiff did not receive the first defendant's notice dated 26th May, 1966. After that, in order to give the plaintiff another chance, the first defendant asked the plaintiff by notice dated 24th June, 1966 that he should get the sale deed executed on 5th July, 1966 failing which the earnest money would stand forfeited and the plaintiff would have no right thereafter to have the sale deed executed. But the plaintiff did not appear in the registration office on that date and did not get the sale deed executed from which it was apparent that the plaintiff was not prepared to have it executed nor did the plaintiff have the necessary funds to pay the sale consideration. It is then stated that by a telegram and a notice dated 6th July, 1866 the first defendant had informed the plaintiff that since he had not come to have the sale deed executed on 5th July, 1966 the earnest money paid by him had bean forfeited and his right to have the sale deed executed had come to an end to which the plaintiff did not send any reply. The plea of estoppel was raised on these facts. The plaintiff's notice dated 28th April, 1967 was said to contain false and incorrect averments. The first defendant sent a reply dated 1st May, 1967 which was also not received by the plaintiff. The first defendant wanted to buy urban property at Hapur after selling the village property. However, since the plaintiff did not buy the land. The defendant No. 1 gave up his intention of selling the land. The plaintiff again kept quiet for about 1 year and 5 months and sent a notice dated 14th November, 1968 to which also a reply was given on 18th November, 1968, but the acknowledgment card not having been received another reply was sent on 13th December, 1968. It was pleaded that the plaintiff's notice was useless, his right to have the sale deed had come to an end long ago and became barred by time. The plaintiff, it was alleged was guilty of breach of contract. Time was of the essence of the contract. The first defendant wanted to sell the land and buy urban property at Hapur and the price of urban property had doubled and trebled in the meanwhile. The plaintiff was well aware of these facts. If the plaintiff had taken the sale on 5th July, 1966, the defendant would have invested the sum of Rs. 21,000 and odd, in urban property at Hapur and would have become owner of the property valued at twice or thrice the amount, and if he had invested the amount at the rate of Rs. 11/2 per cent per mensem, he would have earned more than Rs. 10,000 by then. The plaintiff wanted to take undue advantage of the first defendant's position and was on this ground also not entitled to have the sale deed executed. In paragraph 26 of the written statement, it was stated that the paper with the revenue stamp affixed thereon which had been filed by the plaintiff as the agreement for sale, was forged. The receipt which had been typed, and on which the first defendant had put his signatures, was not the one that had been filed by the plaintiff. It appeared from the receipt filed by the plaintiff that he had transferred the revenue stamp from the receipt, and the portion of the signatures outside the revenue stamp had been forged, and the signatures of the first defendant at another place and of the second defendant also, were forged, and the document was a forgery.