The agreement, in question, between Mohd.
Aslam and the plaintiffs was way back of 28.2.2005. More
than seven years had elapsed since then and the time to
execute the sale deed had also elapsed. Then it was quite
unjustified to assume that Rao Sadaqat Husain and his
brother Mohd. Shoeb must necessarily have notice of the
litigation on questioned property just on the basis that one
of the plaintiffs is the resident of the same village from
where Rao Sadaqat Husain comes. It is pertinent to
mention that the land, in question, is situated around 8-9
kilometres away from the place of residence of the
subsequent purchasers. So, it is not always necessary that
Husain must have knowledge about the pending litigation
of the questioned land. There was no stay order ever
granted by the first appellate court restraining Mohd.
Aslam from alienating the said land. Although the absence
of any such stay order is not the protection from the bar
which has been provided under Section 52 of the Transfer
of Property Act, but at the same time, the rights of bona
fide subsequent purchasers are protected under Section
19(b) of the Specific Relief Act.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SECOND APPEAL NO. 10/2014
Mohd. Aslam
......... Defendant/Appellant
Versus
Rais & two Others
Rao Sadaqat Husain & Mohd. Shoeb
Citation;2015(NOC)31 UTR
September 24, 2014
Hon’ble Servesh Kumar Gupta, J.
Both the above-titled appeals have arisen out of
the common impugned judgment dated 3.12.2013, so are
being adjudicated together herein below.
Before coming to the real issues, it would be
pertinent to remind the backdrop of the controversy
between the parties which was arisen out of the execution
of the registered agreement to sale without possession by
the original owner Mohd. Aslam on 28.2.2005 in favour of
the plaintiffs. The land was of Khata No. 131, Khasra No.
332, area 0.788 hectare situated in Village Mukkarabpur,
Pargana Roorkee. The earnest money rupees one lakh was
2
paid by the purchasers/plaintiffs to Aslm and the total
consideration was Rs. 1,30,000/-. Thus, remaining Rs.
30,000/- had to be paid at the time of execution of sale
deed at any time within two years i.e. till 1.3.2007. The
plaintiffs before the expiry of two years, as aforestated,
issued a notice dated 15.11.2006 asking Mohd. Aslam to
keep himself present in the concerned registry office on
30.11.2006 and to execute the sale deed. That notice was
not even replied by Mohd. Aslam, much less putting his
presence
as
asked.
So,
the
prospective
purchasers
instituted the Original Suit No. 24/2007 on 3.2.2007
seeking specific performance of agreement in question.
The suit was resisted by Mohd. Aslam mainly on
two grounds. The first ground was that the true nature of
the agreement in question was not, in fact, to sell the
property, but it was a mortgage deed and got executed by
the
plaintiffs
from
the
defendant
Aslam
taking
the
advantage of his constraints of the dire need of money.
Otherwise, there was no occasion to keep the execution of
the sale deed postponed for two years just to pay the
meagre rest of the consideration of Rs. 30,000/-. It was
contended that even at the time of execution of agreement
to sale, the actual price of the land concerned was more
than rupees five lakhs a bigha. So, there was no question
for Mohd. Aslam to make the agreement for selling his
precious land at throwaway price. Further, the suit was
pre-mature, as it could have launched only after the expiry
of two years, but the same was instituted almost a month’s
ago from the lapse of two years as the impugned covenant
discloses.
The
learned
Trial
Judge
holding
that
the
agreement, in question, was not in the shape of a mortgage
deed, but its actual shape and spirit was an agreement to
sale, yet the suit was dismissed on 17.11.2008 mainly on
3
the premise that the same was pre-mature as pleaded by
the defendant. It was also the finding of the Trial Judge
that the plaintiffs did not show their readiness and
willingness in the span of two years for getting the sale
deed executed in their favour.
Feeling aggrieved, the plaintiffs filed the First
Appeal No. 30/2008 in December 2008 and during the
pendency of this First Appeal, the plaintiffs moved an
application
on
20.4.2011
seeking
permission
of
the
appellate court for admitting additional evidence on the
record and in this additional evidence, two notices were
filed. One notice was dated 21.6.2006 allegedly issued by
Aslam through his Advocate Mr. Sanjay Sen to the
plaintiffs stating the nature of agreement to sale as a
mortgage deed and his non-inclination to sell his land as
per
terms
of
that
agreement.
Another
notice
dated
24.7.2006 was in reply of the notice of Mr. Aslam issued by
plaintiffs through their Advocate Mr. Gulzar Ahmad. After
accepting these notices on the record, the appellate court
framed the issue no. 8 on 28.5.2012 to the effect whether
by sending notice dated 21.6.2006, defendant Aslam had
refused to make specific performance of his part of the
contract. Opportunity was rendered to adduce the evidence
to either parties and this issue was decided by the first
appellate court in favour of the plaintiffs. Thus, the finding
of the Trial Judge that the suit was pre-mature, as
contemplated under Serial No. 54 of the Limitation Act, was
overturned.
The
suit
was
accepted
within
the
time
limitation of three years because Serial No. 54 of the
Limitation Act envisages that if no particular date is fixed
seeking specific performance of contract, then the time
limitation of three years will run from the date when the
plaintiff has noticed that the performance is refused by the
owner of the land. The finding of the first appellate court
4
was that since Mohd. Aslam had issued a notice to the
plaintiffs on 21.6.2006 through his Advocate Mr. Sanjay
Sen refusing to execute the sale deed, so the time had
started to run since 21.6.2006 and thus the suit launched
on 3.2.2007 was well within the limitation as adumbrated
above.
It was argued by the learned Counsel of Mohd.
Aslam that, in fact, no notice of 21.6.2006 was ever issued
to the plaintiffs and it was filed by Rais and his associates
in order to bring their suit within the time limitation and
this notice was fabricated. It was not got proved by
examining the Advocate Sanjay Sen who allegedly sent this
notice on behalf of Aslam.
Another
development
took
place
during
pendency of first appeal. Mohd. Aslam, the original owner
of the land, executed a sale deed of the same land in favour
of Rao Sadaqat Husain and Mohd. Shoeb (real brothers) on
20.4.2013. When this fact came into the notice of the
plaintiff/first appellant Rais and others, they moved an
application under Order 1 Rule 10 of Civil Procedure Code
on dated 16.7.2013, which was ultimately allowed by the
first appellate court and after impleading the brothers duo,
the learned first appellate court framed the fresh issues no.
9, 10, 11 to the effect whether the subsequent sale deed by
Mohd. Aslam in favour of Rao Sadaqat Husain and his
brother Mohd. Shoeb was barred by Section 52 of the
Transfer of Property Act and whether the brothers duo were
the bona fide purchasers? The matter was remanded back
to the Trial Judge for rendering opportunity to the parties
concerned to adduce evidence on these issues and the
finding was sought thereupon. The learned Trial Judge
decided these issues against the defendant and the
subsequent purchasers and these findings were affirmed by
the learned first appellate court in the impugned judgment
5
with the result now Rao Sadaqat Husain and Mohd. Shoeb
are also before this Court in Second Appeal No. 52/2014.
At the time of admission of Second Appeal No.
10/2014, although certain specific questions, as suggested
by the appellant, were framed by this Court, but having
heard
the
learned
Counsels
of
all
concerned
and
understanding the controversy in question, I think the
crucial points for determination are as under:
(1) Whether the suit was pre-mature and thus
could not be entertained by the learned Trial Judge as
provided under Serial No. 54 of the Limitation Act?
(2) Whether the nature of the deed (agreement to
sale) dated 28.2.2005 was in the spirit of a mortgage deed?
(3) Whether the subsequent purchasers Rao
Sadaqat
Husain
and
Mohd.
Shoeb
were
bona
fide
purchasers of the property in suit for due consideration
and thus provisions of Section 52 of the Transfer of
Property Act do not engross their transaction with Mohd.
Aslam?
I have heard learned Counsels of all concerned
and have perused the evidence adduced by all of them on
the record.
As regards the launching of the original suit pre-
mature, the law is settled in this regard. Lucknow Bench of
Hon’ble Allahabad High Court in case of Harihar Prasad
and Others v. Udaibir Singh & Another, 1978 AWC 79,
relying on certain other judgments inasmuch as the Privy
Council also, held that suit for specific performance of the
contract under Section 9 of the Specific Relief Act could not
have been filed before the expiry of period envisaged by
agreement because the cause of action arises only after the
time for performing the contract expires. So, in the instant
controversy, the plaintiffs could have filed the suit only
after 1.3.2007 and not before.
6
The contention of the learned Counsel of the
plaintiffs is that by way of issuance of notice dated
21.6.2006, Mr. Aslam had expressed his intention for the
cancellation of the agreement to sale dated 28.2.2005, thus
giving rise to a cause of action immediately after receiving
of such notice by the plaintiffs. This contention of the
plaintiffs is not acceptable for the reason that no such
notice was ever brought on the record by the plaintiffs
neither at the stage of trial before the Court of Civil Judge
nor such notice, which was filed after two and half years of
presentation of the first appeal, was got proved by the
plaintiffs. If they genuinely received such a notice from Mr.
Aslam, then there was no reason restraining themselves to
bring that notice on record during the first stage of hearing
before the Court of Civil Judge. If it is accepted for a
moment that they forgot to bring such notice on the record
at the trial stage, then the delay of two and half years
caused by them in filing the same at the appellate stage on
20.4.2011 has further not been explained. Moreover, it was
the onus of the plaintiffs to prove the issuance of such a
notice at the end of Aslam and that could have been done
by calling Mr. Sanjay Sen, Advocate, in the witness box.
The learned lower court has committed an error by shifting
the burden of proof on Aslam that he had not given any
such notice because a fact can be proved in its affirmation,
not in negation.
That apart, simply by calling Mr. Gulzar Ahmad,
Advocate, to prove the drafting of reply of such notice is not
enough to infer the issuance of notice dated 21.6.2006 by
Aslam giving rise to the cause of action to launch the civil
suit earlier than its prescribed limit.
The suit was brought on the basis of the notice
dated 15.11.2006 issued by the plaintiffs to Mr. Aslam
wherein the latter was asked to present himself in the
7
registry office on 30.11.2006, but surprisingly there is no
mention of the notice dated 21.6.2006 in the notice dated
15.11.2006. Had Mr. Aslam issued the notice dated
21.6.2006, then there was no reason for the plaintiffs for
not mentioning the receiving of such notice in the notice
dated 15.11.2006 which was made the basis of launching
the suit against Mr. Aslam. Had this notice dated
21.6.2006 been genuine then there was no reason for the
plaintiffs to wait for next five months to launch the original
suit. This delay of five months indicates the doubt in the
genuineness of the notice dated 21.6.2006.
Argument of the learned Counsel of the plaintiffs
that this notice dated 21.6.2006 bears the postal stamp
does not have any bearing because the seal and particular
date of the post office can be procured having connivance
with the ministerial staff of the post office.
For the reasons stated hereinabove, this Court is
of the view that the suit was the pre-mature and thus
barred by the relevant provisions of the Limitation Act.
Now, as regards the nature of the deed is
concerned, the Court feels that it was not strictly in the
spirit of sale of the questioned property, though a
registered agreement to sale without possession was
executed which was the basis of the suit. The reason is that
the land is almost 12 bighas. So, even in 2005, it was quite
mysterious that postponing the payment of only Rs.
30,000/- for two years, the plaintiffs restrained themselves
from getting their sale deed executed though paying the
consideration of Rs. 1,00,000/- for the same at the time of
agreement. The three plaintiffs who were capable to pay Rs.
1,00,000/- at the time of such an agreement, then it is
quite difficult to understand that all the three could not pay
Rs. 30,000/- in order to get the deed finally executed in
their favour and kept the execution of the same pending for
8
as many as next two years. It indicates the strength in the
version of Mohd. Aslam that the deed in question though
apparently an agreement to sale deed, but in fact, it was in
the spirit of a mortgage deed.
For the reasons as have been highlighted, this
Court decides the issue in favour of defendant Aslam and
against the plaintiff.
Now, the question arises whether the appellants
Rao Sadaqat Husain and Mohd. Shoeb, the subsequent
purchasers could secure any title over the land, in
controversy, on the basis of sale deed dated 20.4.2013
executed by Mohd. Aslam in their favour. Undoubtedly, the
property was under lis and any transaction relating thereto
was barred by Section 52 of the Transfer of Property Act,
but at the same time, this Court has to assess the
truthfulness
in
the
pleadings
of
these
subsequent
purchasers because they have averred that that they did
not have any knowledge regarding the pendency of
litigation over the property, in question, and purchased the
same from its original owner for due consideration as a
bona fide purchaser.
It was argued by their learned Counsel that in
such circumstances the transaction in favour of Rao
Sadaqat Husain and Mohd. Shoeb is protected under
Section 19(b) of the Specific Relief Act, which provides that
specific performance of a contract can be enforced even
against any other person claiming under him by a title
arising subsequently to the contract, except a transferee for
value who has paid his money in good faith and without
notice of the original contract.
The agreement, in question, between Mohd.
Aslam and the plaintiffs was way back of 28.2.2005. More
than seven years had elapsed since then and the time to
execute the sale deed had also elapsed. Then it was quite
9
unjustified to assume that Rao Sadaqat Husain and his
brother Mohd. Shoeb must necessarily have notice of the
litigation on questioned property just on the basis that one
of the plaintiffs is the resident of the same village from
where Rao Sadaqat Husain comes. It is pertinent to
mention that the land, in question, is situated around 8-9
kilometres away from the place of residence of the
subsequent purchasers. So, it is not always necessary that
Husain must have knowledge about the pending litigation
of the questioned land. There was no stay order ever
granted by the first appellate court restraining Mohd.
Aslam from alienating the said land. Although the absence
of any such stay order is not the protection from the bar
which has been provided under Section 52 of the Transfer
of Property Act, but at the same time, the rights of bona
fide subsequent purchasers are protected under Section
19(b) of the Specific Relief Act.
In view of what has been stated above, the issue
is decided accordingly in favour of Rao Sadaqat Husain and
his brother Mohd. Shoeb.
All told, these appeals have force and thus
allowed. Impugned judgment and order of the first
appellate court dated 3.12.2013 is set aside. Lower Court
records be sent back.
It may be added that although the back payment
of earnest money rupees one lakh has been averred by
Mohd. Aslam, but no credible proof is available on the
record. Hence, it is hereby ordered that he will return this
earnest money rupees one lakh along with nine per cent
per annum simple interest calculating from the date of
receiving the money till the date of actual payment.
(Servesh Kumar Gupta, J.)
Prabodh
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