Allahabad High Court
Godhan Son Of Pola And Others vs Ram Bilas Son Of Mahesh on 11 April, 1994
Equivalent citations: AIR 1995 All 357
Bench: H Tilhari
1. This second appeal arises out of judgment and decree dated 26-5-1984, passed by the 10th Additional District Judge, Sitapur in Civil Appeal No. 42 of 1984 arising out of judgment and decree dated 25-2-1984, passed by Civil Judge, Sitapur in Regular Suit No. 117 of 1982 whereby the trial Court had decreed the plaintiff-respondent's claim in suit and First Appellate Court had also confirmed the said decree and judgment of the trial Court.
2. The facts of the case in brief are that plaintiff-respondent Ram Bilas filed a suit against the defendants-appellants Godhan and 3 others for specific performance of contract to execute the sale deed in respect of agricultural plots Nos. 116 (area 1 bigha 13 biswan) 117 (area 2 biswa), 118 area 1 biswa),
and plot No. 134 (area 4 bighas and 10 biswas 11 biswansi) situated in village Pooranpur, Pargana Bari, Tahsil Sidhauli, District Sitapur. According to the plaint case on 18-11-1983, the defendant No. 1 has entered into an agreement for sale of plots in dispute to the plaintiff for a sum of Rs. 12,000/- and a sum of Rs. 1000/- was paid by the plaintiff respondent to the defendant-appellant No. 1 on the aforesaid date and it was agreed upon that when the plaintiff will require the defendant No. 1 will execute a sale deed of the above mentioned plots of land in favour of the plaintiff after having received of the balance amount of sale consideration. According to the plaintiff's case the agreement to execute the sale deed was executed on 18-11-1981 in writing and was registered on 19-11-1981 in accordance with the requirements of law. The plaintiff further averred that on 15-3-1982 the defendant No. 1 received a further amount of Rs. 5,000/- from the plaintiff and executed a receipt for the same in favour of the plaintiff-respondent. According to the plaintiff-respondent's case the defendant No. 1 by 15-3-1982 has thus received a total sum of Rs.6,000/- as advanced only. The plaintiff further averred that thereafter the plaintiff required the defendant to execute a sale deed of the land in dispute in pursuance of above agreement in favour of plaintiff-respondent. The plaintiff-respondent served a written notice dated 23-6-1982 on defendant-appellant No. 1 but according to the plaintiff-respondent, he did not pay any heed to that notice. According to plaint case subseqeuntly on 2-8-1982, the defendant-appellant No. I, who is the father of the appellant No. 4 Kallu executed the sale deed of plot No. 134 in favour of Kallu and two others, namely, Parbhu and Rewti and this sale deed in favour of defendants-appellants 2, 3 and 4 by appellant No. 1 was executed on 2-8-1982. The plaintiff's case is that the defendants-appellants 2 to 4 had purchased plot No. 134 which was also the subject matter of the agreement of sale. Defendants-appellants 2 to 4 had the knowledge of agreement which had been entered into Between the plaintiff-respondent and defendant-appellants Nos. 2 to 4 who have been impleaded as defendants. In
Paragraph-4 of the plaint, the plaintiff has averred that he the plaintiff has always been ready and willing to perform his part of contract.
3. The defendant No. 1 denied the plaintiff's allegations to the effect that the defendant No. 1 had entered into an agreement to sell the plots mentioned in the earlier parts of the judgment and in the plaint. The defendant denied the agreement dated 18-11-1981 and receipt of the sums referred to above. The defendants stated and had set up theory in itself vide paragraph 11 of the written statement. The defendant-appellant No, 1 had not entered into an agreement to sale as alleged in the plaint and that he did not know the plaintiff-respondent and correct facts are to the effect that on 18-11-1981 Sri Ganesh Prasad, brother of Tribhuwan Prasad and the appellant-defendant No. 1 had entered into an agreement in writing with him for sale of all his plots referred to above except plot No. 134 for a sum of Rs. 12,000/- and had, received a sum of Rs. 1,000/- from the said Ganesh Prasad brother of Tribhuwan Prasad. It was further pleaded in that pragraph that on 15-3-1982 the defendant-appellant did not receive the amount of Rs. 5,000/- nor did he execute the receipt of the same. He took a plea in paragraph 12 of the written statement to the effect that he has been an uneducated villager of simple habits and on the representation of Ganesh Prasad to the effect that written transaction had been entered into about the plots except plot No. 134, the defendant put thumb impression on the document. It has been further pleaded in paragraph 13 of the written statement that the defendant-appellant No. 1 asked Ganesh Prasad to get the deed executed after having paid the balance of Rs. 11,000/- but Ganesh Prasad had been avoiding and thereafter he got auctioned the plots in the name of the wife of his brother Tribuwan Prasad, but Tribhuwan Prasad refused to get the sale deed executed and it is thereafter on the refusal of Sri Tribhuwan Prasad and Sri Ganesh Prasad the defendant-appellant No. 1 transferred the property after taking the money from defendants 2 and 3 and paid the bank money i.e. Rs. 1000/- to Tribhuwan Prasad and when
receipt was demanded from Sri Tribhuwan Prasad for a sum of Rs. 1000/- then Tribhuwan Prasad said that when Ram Bias will come, the receipt under his signature will be given to him but instead of receipt being given to the defendant, the suit had been filed. It was also pleaded that Tribhuwan Prasad and Ganesh Prasad on the date of agreement got thumb impression of the answering defendant made on certain blank papers and anwering defendant had put his thumb impression on the representation made by Ganesh Prasad and Tribhuwan Prasad that certain applications are to be given in the bank and there is possibility of some of that papers having been used for preparing the receipt also for the sum of Rs. 5,000/-. Thus according to the pleading in the written statement though the defendant no doubt admitted thumb impression on the document but denied the plaint case. Defendants Nos. 2 to 4 denied the plaint case and submitted that they purchased of plot No. 134 on 2-8-1982 for the sum of Rs. 20,000/- and that the answering defendants 2 to 4 are bona fide purchasers of that plot. Their case in nut shell is that they are bona fide purchasers for valuable consideration without notice of any prior agreement between the plaintiff-respondent and the defendant-appellant No. 1. The defendants-appellant further pleaded that in respect of plot No. 134 there had been a transaction and sum of Rs. 2,000/- had been paid by the defendants-appellants 2 to 4 to defendant-appellant No. 1 on 22-5-1981. On the basis of pleading the learned Civil Judge framed 5 issues :--
1. Whether the plaintiff and defendant No. 1 had a contract for sale and purchase of the disputed land for consideration of Rs. 12,000/-. If so its effect?
2. Whether the defendant No. I received a sum of Rs. 1,000/- from the plaintiff and got a document written on 18-11-1981 and got it registered according to the provisions of Registration Act on 19-11-1981 ?
If so its effect ?
3. Where the defendant No. 1 received a further amount of Rs. 5,000/- from the plaintiff on 15-3-1982 against the contract,
referred to above?
4. Whether the defendants Nos. 2 to 4 are the bona fide purchasers for valuable consideration without notice of contract, if any ? If so its effect ?
5. To what relief, if any, is the plaintiff entitled ?
4. Before the trial Court parties led evidence. On behalf of the plaintiff four witnesses had been examined, namely PW 1 Ram Bilas, PW 2 Tribhuwan Prasad, PW 3 Akhilesh Kumar and PW 4 Bachnu, PW 1 is the plaintiff himself, while PW 2 and PW 4 are the witnesses of the deed Exhibit-2 the agreement of sale, PW 3 is the witness of transaction relating to the advance of Rs. 5,000/- and of the receipt exhibit-3. On behalf of the defendants-appellants the defendant Godhan examined himself as DW 1 while Anand Kumar DW 2 is the Pradhan of the village who appears to have been produced as a witness to prove possession on behalf of defendant-appellant No. 2 Parbhu as the heir of the deceased. Parbhu is one of the defendant-appellants that is subsequent purchaser, Kallu defendant No. 4 who is also subsequent purchaser vide transaction dated .2-8-1982 has not appeared in the witness bos to support his case or to get cross-examined himself. Kallu is as mentioned above as the son of defendant-appellant No, 1 Godhan. Documentary evidence has also been filed consiting of the registered agreement and the receipt. On behalf of the defendant certain documents have been filed which are agreement to sale dated 15-6-1982 and dated 25-2-1981 as well as sale deed dated 2-8-1982.
5. That on a consideration of the material and evidence on record, the trial Court recorded the following findings with reference to issues Nos. 1, 2 and 3. The Trial Court held that the defendant-appellant Godhan had agreed to sale the land in dispute vide agreement dated 18-11-1981 in favour of the plaintiff-respondent and he received a sum of Rs. 1,000/ - as advance in connection with the transaction and the agreement to sale was got written and registered. On 15-3-1982, the defendant-appellant Godhan further received
a sum of Rs. 5,000/- (Rupees five thousand only) from the plaintiff-respondent and executed a receipt exhibit-3 on record. The agreement for sale dated 18-11-1981 has been marked as Ext.-2.
6. Dealing with issue No. 4, the trial Court held that defendants-appellants 2 to 4 have failed to prove that they are bona fide purchasers for value without notice of the agreement and that it held that defendants-appellants 2 to 4 have not been bona fide purchasers of the property in dispute without notice of the agreement. The trial Court, which had held evidence of the plaintiff to be reliable, recorded the finding that the plain-tif-respondents were and have always been ready and willing to perform the contract with reference to issue No. 5 and therefore the trial Court decreed the plantiff claim for specefic performance of contract to execute the sale deed and directed that the defendant-respondents will execute the sale deed with reference to the property i.e. plots mentioned above in favour of the plaintiff-respondent and to hand ever the possession of the plot to the plaintiff-respondent.
7. Having felt aggrieved from the judgment and decree dated 25-2-1984, the defendants-appellants 1 to 4 had filed regular Civil Appeal No. 42 of 1984. The learned trial Court (10th Additional District Judge, Sitapur) by his detailed judgment and after consideration of the matter in detail affirmed the finding of the trial Court. The trial as to (sic) Appellate Court held a consideration of the material on record that both documentary and the oral as well as circumstantial evidence on record including the admission of the defendants, proved that defendant-appellant not had entered into agreement to sell the land in dispute to the plaintiff-respondent for a sum of Rs. 12,000/- as held by trial Court and he received a sum of Rs. 1,000/- at the time of registration of the document that is agreement dated 18-11-1981 as advance from the plaintiff-respondent and thereafter defendant-appellant further received a sum of Rs. 5,000/- from the plaintiff-respondent and executed the receipt Exhibit 3. The lower appellate Court further on the consideration
of oral and documentary evidence held that the defendants-appellants 2, 3 and 4 are not bona fide purchasers of the property without notice.
8. Having affirmed to the findings of the Trial Court, lower appellate Court dismissed the defendant's appeal and affirmed the decree of the Trial Court and directed the defendant-appellants to execute the sale in favour of the plaintiff-respondent within a period of three months from the date of decree under the appeal. It also passed the order plaintiff-respondent shall deposit the balance amount i.e. Rs. 6,000/-, if the same has not already been deposited, within a period of two months from the date of the order of the lower appellate Court. It further ordered that the sale deed in favour of the defendants-appellants 2, 3 and 4 having been executed subsequent to agreement between the plaintiff-respondent and defendant-appellant No. 1 the said sale deed dated 2-8-1982 shall have no force and directed that a copy of the judgment of the trial Court be sent to the sub-registrar concerned for due entry being made in the record books and thus maintained the judgment and decree of the Civil Judge.
9. Feeling aggrieved from the judgment and decree of the lower appellate Court, the defendant-appellant i.e. original defendant Godhan as well as subsequent purchaser Parbhu, Rewti and Kallu filed the second appeal in this Hon'ble Court, During the pendency of the second appeal in this Court Godhan defendant-appellant No. 1 died and application for substitution was moved before this Court and this Court by order dated 21-1-1994 ordered that the property being agricultural property and succession having been governed by Section 171 of the U.P.Z.A. & L.R. Act, the defendant-appellant No. 4 Kallu being the son of Godhan inherited that property and interest in property as legal representative of Godhan. That the son of the deceased appellant Godhan, namely, Kallu has already been shown as appellant No. 4 in the array of the parties in the memo of appeal, therefore, there is no question of any abatement.
10. I have heard Sri Hari Shanker Sahai, learned counsel for the appellants assisted by Shri Jai Pal Singh an advocate of this Court and Sri D. C. Mukherjee assisted by Sri Mohd. Arif Khan, Advocate of this Court. It has been submitted that the plaintiff's suit was liable to be dismissed for non-compliance with the requirement of the Section 169 of the Specific Relief Act. The learned counsel submitted that the finding which has been recorded on the question whether the plaintiff-respondent has always been ready to perform his part of contract, is contrary to the pleading and evidence in this regard and the plaintiff-respondent was not and has not been entitled to get the suit decreed. In this view of the matter the respondents further submitted that this appeal should be allowed as on this ground itself the decree of Courts below becomes vitiated by the substantial error of law and juridiction so should be set aside. As regards the submission of the learned counsel for the plaintiff-respondent in this regard, he submitted that the submission of learned counsel for the appellant is not correct, instead it is misconceived in view of leadings and evidence on record and the law applicable. Sri D. C. Mukherjee invited my attention to the pleadings of the plaintiff as well as statement of the plaintiff and submitted that there has been full compliance in this regard and trial Court has accepted the evidence led by the plaintiff as reliable and, therefore, recorded the finding that the plaintiff-respondent has proved his case that the is, as well has been willing to perform his part of the contract and therefore, from the material on the record, the decision cannot be said to be perverse and decree cannot be said to suffer from error of law of substantial nature nor it can be said to be without jurisdiction. I have applied my mind to the contentions of the learned counsel for the parties and find that there is no substance in the contention of the learned counsel for the defendants-appellants in this regard. Section 16 of the Specific Relief Act, the relevant portion thereof reads as under :--
"16. Personal bars to relief. -- Specific performance of a contract cannot be enforced in favour of a person -
(a) .....
(b) .......
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation -- For the purposes of clause (c).
(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually lender to the defendant or to deposit in Court any money except when so directed by the Court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
11. That regards requirements of Section 16(1)(c) Specific Relief Act mentioned above, in paragraph 4 of the plaint there is averment to that effect which reads a under :--
12. The allegations of paragraph 4 of the plaint have been alleged "not to have been admitted". The allegations of paragraph 4 have not been denied nor it has been specifically stated in the written statement that the allegation of paragraph 4 of the plaint are wrong or incorrect. When I peruse the written statement of defendants-appellants 2 to 4 I find it has been staled in paragraph 4 of written statement with reference to allegations of para 4 of the plaint "not admitted". There is no assertion from the side of the defendants-appellants that allegation of paragraph 4 of the plaint to the effect that the plaintiff has always been ready to perform his part of contract and that plaintiff had asked the defendants to take balance of sale consideration and to execute the sale deed, are false and incorrect. Thus from the pleading, it appears that there has been no specific denial of the allegation of paragraph 4. I further find that the defendants did not press specifically any issue challenging this allegation of paragraph 4 and it appears from the perusal of the
pleading that, though not expressly, the defendants did not dare to controvert the allegation of para 4 of plaint but stated that allegations of para 4 of plaint are not admitted. In support of this allegation of paragraph 4 the plaintiff appeared in the witness box and vide paragraph 3 of the deposition of PW 1, it has been stated by the plaintiff PW 1 on oath as under :--
13. The statement of PW 4 Bachnu also indicates that Godhan has been avoiding to execute the sale deed. Bachnu states that Ram Bilas has mentioned to him and has complained to him that Godhan was not executing the sale deed in respect of the land. This conduct of non-performance of agreement by Godhan is proved by Bachnu who stated that Ram Bilas has already been willing to perform his part of contract and to get the sale deed executed. The trial Court had "no doubt by dealing issue No. 5 has observed in the judgment that it is proved that the plaintiff-respondent has always been willing and ready to perform his part of contract though in a cursory manner. It has discussed the matter in detail and in spite of agreement to sell Godhan was not executing the deed, on the basis of evidence which has been ed by parties and considered by the trial. The Courts below were satisfied on the basis of pleading and the evidence of PW 2 that plaintiff-respondent was and has always been ready and willing to perform his part of contract. Thus there is pleading and proof readiness and willingness on the part of plaintiff to perform his part of agreement. Thus considered I find that contention of the learned counsel for the defendants-appellant with reference to Section 16(1)(c) of the Specific Relief Act, has got no force and is without substance.
14. From a perusal of the ground in the memo of first appeal filed before the learned District Judge, it appears that the finding on question of compliance with the requirement of Section 16(1)(c) of the Specific Relief Act has not been challenged before the first Appellate Court nor it appears from the judgment of lower Court that the finding had
been challenged at the time of arguments. A perusal of the judgment of the lower Court also did not indicate that the finding of the trial Court on this point had been challenged. It was only at the stage of second appeal that the finding on the point of readiness and willingness etc. and requisite compliance of Section 16(1)(c) has been agitated in the memo of second appeal as one of the grounds for the first time and thereafter and during the course of arguments in Second Appeal before me. As I have mentioned earlier that the contentions and submission of the learned Counsel for the appellants so far as it relates to compliance or non-compliance of Specific Relief Act and thus challenge to finding on this point is without substance and is being rejected.
15. Learned counsel for the appellants (defendants) Sri H. S. Sahai further submitted that as regards the findings on the question involved in issues I, 2 and 3 to the effect that the plaintiff and defendant had entered into an agreement to sell to the effect that the defendants-appellant No. 1 will sale the land in dispute to the plaintiff for sale consideration of Rs. 12,000/- and the defendant No. 1 received a sum of Rs. 1000/- from the plaintiff as advance on 18-11-1981 and executed the document of agreement in writing on the said date i.e. 18-11-1981 and got it registered in accordance with provision of Registration Act on 19-11-1981 as well as the finding of the Courts below that the defendant-appellant No. 1 had received an amount of Rs.5000/- from the plaintiff-respondent on 15-3-1982 towards a part of consideration, referred to in the agreement for sale and that the defendant No. 1 had agreed while executing the deed of agreement to execute the sale deed with respect of land in dispute after receiving the balance of sale consideration, is a finding which has been arrived at by Courts below but not in accordance with law. Sri Sahai, learned Counsel for the appellants submitted that thumb impression of the defendant-appellant No. 1 itself is insufficient to prove execution and the said thumb impression was not the admission of execution of document unless the contents of the document were proved in accordance with law. He further submitted
that the Courts below did not consider as well as did not apply their mind to the evidence of the defendant-appellant in respect of entering into an agreement to execute the sale deed or regarding the payment of amount of Rs. 1000/- and Rs. 5000/- respectively, so he submitted the finding vitiated by non-consideration of the material of record. The learned Counsel for the respondent Shri D. C. Mukherjee as well as Shri Mohd. Arif challenged the correctness of this contention of the learned Counsel for the appellants and referred to the discussion and finding of Courts on the question involved in the issues 1, 2 and 3 as referred to the judgment as well to the evidence. The plaintiff-respondent examined himself as PW 1 to prove the transaction dated 18-11-1981 and the passing of advanced of Rs. 1000/- from the plaintiff-respondent to defendants-appellants on 18-11-1981 and the execution of that agreement the plaintiff besides examining himself the plaintiff examined the witnesses of the deed, namely, Tribhuwan Prasad as PW 2 and Bachnu another witness of that deed. On the point of passing of the sum of Rs.5000/-subsequently to defendant-appellant as part of the advance of sale consideration, the plaintiff examined PW 3 Akhilesh Kumar. On the points involved in the issues 1 to 3 on behalf of the defendant-appellant only DW-1 i.e. defendant-appellant No. 1 been examined and no other witnesses, DW-2 Anand Kumar is not a witness of the transaction dated 18-11-1981 nor is in relation to the passing of Rs.5000/- from the plaintiff-defendant on 15-3-1982. DW-2 had only been examined by the defendant to prove or in support of defendant's case of the possession of the transferee of plot No. 134. While Parbhu DW-3 has been examined in support of subsequent transaction dated 2-8-1992 i.e. execution of sale deed by defendant-appellant No. 1 of the property in dispute i.e. plot No. 134 in favour of the defendant-appellants Nos. 2 to 4 and in support of the issue No. 4. So the evidence of DW-2 and DW-3 is not material so far as the question relating to transaction dated 18-11-1981 and 15-3-1982 are concerned.
16. I have gone through the judgment of
the Courts below with the assistance of the learned Counsel for the parties to examine whether there has been any substance in the contention of the learned Counsel for the appellant that the finding with reference to issues 1, 2 and 3 i.e. in relation to entering into the transaction of agreement to sell dated 18-11-1981 by parties and payment of advance sums of Rs. 1000/- on that date by the plaintiff-respondent to defendant appellant as well as passing of sum of Rs. 5000; -as part of sale consideration with reference to the transaction involved and in dispute under issues 1 and 2 is at all vitiated by error of law of substantial nature as alleged or submitted by the learned counsel for the appellants that finding has been arrived at after having ignored the evidence of defendant-appellant their witnesses on that point without any rhyme or reason.
17. After having perused the judgment of the trial Court and lower appellate Court I find that the trial Court as well as lower appellate Court have apart from taking into consideration the admission of the defendant that his thumb impression has been taken on certain papers, has considered the evidence of DW-1 in the light of the oral evidence led by the plaintiff-respondent i.e. the statement of PW 1 the plaintiff himself and the statement of P W 2 Tribhuwan Prasad and P W 3 Bachnu who are witnesses of the transaction as well as other circumstantial evidence appearing from the facts of the case and varying stands taken by the defendant-appellant at different stages of the case such as pleading in the written statement and statement under Order X, Rule 2, C.P.C. as well as statement made by the defendant as witness i.e. DW-1 and after having considered the entire material and evidence on record on the point and issue regarding and covered issues 1, 2 and 3, which relates to the question of fact i.e. whether the defendant entered into agreement to sell the property in suit on 18-11-1981 for a sale consideration of Rs. 12,000/- and received a sum of Rs. 1000/- as advance from the plaintiff-respondent and executed the deed of agreement on 18-11-1981 and got the same registered on 19-11-1981 as well as the question as to whether the defendant-appellant received a further sum of Rs. 5000/- as part of sale consideration on 15-3-1982, learned trial Court as well as learned appellate Court have taken a view that the evidence of the DW-1 was not reliable instead the Courts below held that the documentary, oral and circumstantial evidence establish the case of the plaintiff-respondent and the stand taken by the defendant-appellant was not correct. The learned lower appellate Court in his judgment has observed and held as under:-- "The plaintiff has produced himself and the marginal eye-witnesses Tribhuwan Nath and Akhilesh Kumar. Akhilesh Kumar is the scribe of this document and stated that he scribed this document on the saying off Godhan put his thumb mark over it after the receipt of the amount before him. He further stated that this document was read over and explained to Godhan. In support of this document the plaintiff examined Tribhuwan Nath, who also corroborated version of the plaintiff on this document in letter and spirit. The primary evidence as to this document is on record. Thumb impression is admitted. Now legally the burden shifted upon the defendant to prove that this document is a forged document bearing his thumb mark and he was under further obligation to explain the circumstances and prove them under which he was made to put his thumb mark over this document. No satisfactory explanation or proof is available on record from the side of the defendant. As such this document Ex-Ka-3 is fully proved."
18. Dealing with the exhibit No. 2 i.e. agreement dated 18-11-1981, the learned Courts below referred to the change of stand by the defendant-appellant and thereafter mentioned that the stand taken by the defendant in his statement differs from another stand taken as under :--
"There is another stand taken by the defendant-appellant No. 1. In his statement DW-1 has stated that he had sold the land i.e. plot No. 134 to defendants 2 to 4 for Rs. 20,000/ - while he had stated under Order X, Rule 2, C.P.C. the consideration to be Rs.28,000/-. The plaintiff had examined himself to prove the document exhibits 2 and
3. Exhibit-2 is the original agreement entered into between the plaintiff and defendant No. 1. This document is registered document. The plaintiff examined himself as well as Bachnu and Tribhuwan Lal Shukla marginal witnesses. All the three witnesses have stated that this document was executed by Godhan defendant No. 1 in favour of Ram Bilas in their presence and Godhan put his thumb mark on this document before them after hearing and understanding its contents. This document is as such proved,"
19. After having referred to the allegation in paragraph-15 of the written statement the lower appellate Court observed that this averments rather admission of defendant No. 1 in his written statement clarified the entire position to this extent that the defendant No. 1 was fully aware of this document Ex.Ka-2 having been in the name of Ram Bilas. After this admission and the document having been proved, heavy burden lay on the defendant-appellant to prove that the document was procured fraudulently by the plaintiff Ganesh Prasad or Tribhuwan Prasadin the name of Ram Bilas. This burden which lay upon the defendant-appellant was not been discharged. It is no doubt established principles of law that when the parties to a suit had led evidence, the question of burden of proof is loses its importance. The only question remains, how far the onus has been discharged and this question can only be decided by appreciating the good, better and best evidence led by the parties. The courts below have considered the evidence led the plaintiff found it to be much superior in as much as the plaint averments are supported by registered document which is proved.
20. The lower appellate Court has dealt at pages 9 and 10 of the judgment and taken the view that the versions given by the defendants 1 to 4 were false and not reliable and thereafter the lower appellate Court recorded the finding of the fact as under :--
"To sum up, it is proved that there was a contract between the plaintiff and defendant No. 1 and Rs. 6,000/- were received by defendant No. 1 and he declined to perform his part of contract and therefore, the plaintiff
rightly brought a suit for specific performance of the contract.....The findings drawn
by the learned Civil Judge are absolutely correct."
21. The trial Court in its judgment in connection with issues 1 to 3 made a reference to the statement and the deposition of the defendant-appellant Godhan at page-4. The lower Court had discussed the evidence and then recorded the finding that the plaintiff's evidence and defendant's admission completely proved that the defendant No. 1 Godhan agreed to sell the land in dispute and received a sum of Rs. 1,000/- as advance and he executed the agreement, It further held that the defendant Godhan further received a sum of Rs. 5,000/- and then after discussion of the evidence answered issues 1 to 3 in favour of plaintiff-respondent. As evidence of Godhan has been considered and assessed and has been held to be unreliable under the circumstances of the case and no other evidence having been led with reference to issues 1 to 3 by the defendants-appellants and plaintiff's evidence having been held to be superior, that the finding of the facts recorded with reference to issues 1, 2 and 3 in relation to transaction dated 18-11-1981 and the execution of agreement on 18-11-1981 and payment of advance sums of Rs. 1,000/- and 5,000/- respectively on 18-11-1981 and 15-3-1982 cannot be said to be vitiated by any error of law or substantial error of law and as such there is no substance in this contention of the learned counsel for the appellant.
Lastly the learned counsel for the defendants Sri H. S. Sahai submitted that the defendants-appellants 2, 3 and 4 have been bona fide purchasers of the sale. The courts below having considered the matter and particularly the relationship of the subsequent transferees under transaction dated 2-8-1982 held that the defendant-appellant No. 4 is noneelse but he is the son of defendant-appellant No. 1 Godhan. The appellant No. 1 is now dead and whose interest whatsoever in the property has passed to him and it has been inherited by Kallu as legal respresentative, while defendant No. 2 Parbhu and Rewti are close relations of
defendant-appellant No. 1 Godhan, now deceased. The learned courts below disbelieved the version and the statement of DW-1 and DW-3 Parbhu in this regard and held that it cannot be believed that they did not know about the transaction which has been entered into between the defendant No. 1 and plaintiff-respondent on 18-11-1981. The Court took the view that they i.e. defendants-appellants 2 to 4 had full knowledge in the prior agreement to sell dated 18-11-1981. Apart from that I find from the statement of Parbhu that he has stated, in course of cross-examination, that prior to getting the sale deed dated 2-8-1982 executed in favour of defendants 2 to 4, neither Parbhu nor any one made any effort to get the record of the registration office inspected in order to verify, with respect to land of their sale deed i.e. plot No. 134, whether Godhan did and did not enter into any transaction for sale or (sic) execute any deed relating to plot and stated that he did not know about agreement to sale dated 18-11-1981 which has been entered into between the defendant-appellant No. 1 and plaintiff-respondent. This statement per se shows that the defendant-appellants 2 and 3 did not act in accordance with law i.e. they did not act, in accordance with standard of person of ordinary prudence before entering into the transaction of purchase of property and investing huge sums alleged by the defendants 2 to 4, to the tune of Rs. 20,000/-as they did not make enquiries about title or encumbrance own property as well as they did not try to see if property has been transferred earlier or not or that it was subject to any other transaction of prior dated. They did not get the record of registration inspected. As regards the transaction which are required to be made or to be entered into by registered document under the law, it is expected of the person that he would come to know about such transaction by making inspection or by getting the record inspected as persons of ordinary prudence are expected to behave. Section 3 of the Transfer of Property Act defines the expression when the persons is said to have notice. The relevant portion of S. 3 of the Transfer of Property Act provides as under :--
" a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross neligence, he would have known it.
Explanation I.-- Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instruments, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or (where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-sec. (2) of Sec. 30 of the Indian Registration Act, 1908, from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share of interest is being acquired, is situated).
Provided that-
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908, and the rules made thereunder,
(2) the instrument (or memorandum) has been duly entered or filed, as the case may be, in books kept under S. 51 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under S. 55 of that Act."
22. From the reading of this provision along with Explanation-I, it comes out that the person is said to have notice of a fact when he actually knows that fact, or when but for wilful abstention from making such enquiry which a person normally ought to have made he would have known it. In such cases the persons can also be deemed to have notice. According to Explanation-I, where law requires a transaction to be recorded or to be entered in, completed by registered deed then in respect of such transactions which satisfy two conditions i.e. a requirement of law that
transaction is to be entered into by registered instrument only and the same has been completed by registered document, then persons shall be deemed to have knowledge of that instrument from the date of registration. The registration of the document has (sic) taken to complete notice to world at large. The agreement to sale immoveable property of value of more than Rupees One Hundred, under the Transfer of Property Act, is required to be entered into by the registered document.
23. In Section 54 of the Transfer of Property Act with reference to contract to sale, it has been provided as under: --
"A contract for sale of immovable property is a contract that sale of such property shall take place in terms between the parties."
24. Such contract can be made only by registered instrument (U. P. Act 57 of 1976, S. 30--2 of 1977) by U. P. Act, 1976 this provision has been introduced in S. 54 i.e. contract for sale can be made only by registered instrument. The use of expression 'only' here indicates that under law contract to sale has got to be entered into by the registered instrument. This is the position of law since 1-1-1977. In the present case the agreement had been entered into on 18-11-1981 and had also entered into registered instrument and not otherwise as per requirement of law. The presumption under S. 3 of the Transfer of Property Act did naturally arise that the defendants-appellants 2 to 4 who obtained the sale deed of the plot No. 134 that is one of the plot which was subject matter of the agreement dated 18-11-1981, on 15-3-1982 i.e. both the things, namely, the agreement between the appellant and plaintiff-respondent had taken place after 1-1-1977 i.e. on 18-11-1981 and the other that in the transaction between the defendant-appellant No. 1 and defendants-appellants 2 to 4 i.e. sale had been effected by document dated 15-3-1982. Under the provision of law that is S. 3 of the Transfer of Property Act which defined the person is said to have notice. The defendants-appellants Nos. 2 to 4 shall be deemed to have had notice of transaction of the agreement to sale dated 18-11-1981, on 2nd August, 1982 the date on
which from defendants 2 to 4 got sale deed executed in their favour from defendant-appellant No. 1. The defendants-appellants 2 to 4 thus having actual knowledge as well as deemed knowledge in law, cannot be said to be bona fide purchasers for value without notice of the transaction dated 18-11-1981. Thus I find there is nothing wrong or illegal in the finding of the Courts below on this question of sale.
25. Sri H. S. Sahai has further submitted that decree for specific performance of contract being a discretion relief, even if an agreement or contract of sale has been established, the transaction is not equitible since it was for very low price, the courts below should not have granted the relief for specific performance of contract. Merely sale consideration is inadequate, the transaction cannot be said to be void. It is open to the persons to transfer their property even at low price and if sale consideration has been held to be low, it does not render the contract of sale void or illegal. Thus plea regarding the exercise of the jurisdiction by courts below had not been raised before the trial Court. Whether the price agreed is or has been adequate is the question of fact to be determined on a plea being raised and evidence being led before the trial Court and not otherwise. When this plea was not raised before the courts below, nor any issue had been pressed to the effect that the sale consideration was too inadquate to entitle the plaintiff for decree claimed, it is not open to the appellants at this stage to raise this plea in second appeal. That after having held the execution of contract to sale dated 18-11-1981, the passing of part of consideration i.e. Rs. 1,000/- on 18-11-1981 and thereafter a sum of Rs.5,000/- on 15-3-1982 from the plaintiff-respondent to defendant-appellant proved by the plaintiff-respondent, the courts have further found and have also come to the conclusion that the plaintiff is and has always been ready and willing to perform his part of contract and that the defendant No. 4, the subsequent transferees of defendant No. 1 being the son of defendant No. 4 and defendants Nos. 2 and 3 being near relations, had full knowledge of agreement which had
been entered into on 18-11-1981, and after this date these defendants-appellants 2 to 4 had purchased the property in dispute, so they were not bona fide purchasers of the property for value without notice of agreement which had been entered between the defendant-appellant and the plaintiff-respondent to transfer the property for sale consideration of Rs. 12,000/-, I come to the conclusion that above findings are pure findings of fact and to be said findings, do not suffer from any error of law or substantial error of law or of jurisdiction. This appeal is hereby dismissed having been without substance. The costs of this appeal is made easy.
26. Appeal dismissed.
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