Pratap
Lakshman Muchandi & Ors. Vs. Shamlal Uddavadas Wadhwa & Ors. [2008] Insc
55 (18 January 2008)
A.K.Mathur
& Markandey Katju
WITH Civil
Appeal No.728 of 2002 Contempt Petition ) No. 52 of 2006 in C.A.No.728 of 2002
Contempt Petition ) No.58 of 2006 in C.A.No.666 of 2002 A.K.MATHUR, J.
1.
Both the Civil Appeals arise against the order passed by the Karnataka High
Court in RFA Nos.290 & 311 of 1993 dated 17.12.1999. Therefore, both the
appeals are disposed of by a common order.
2. The
brief facts which are necessary for the disposal of these appeals are that a
suit was filed on the basis of an agreement to sell dated 24.4.1982 for a
consideration of Rs.1,20,000/- for property, namely, open space with some
dilapidated room bearing CTS No.4094/1B/2 admeasuring 472 square yards, College
Road, Belgaum. The agreement was executed by the first defendant as the Kartha
of Hindu joint family along with other defendant Nos.2 to 4. A sum of Rs.10,000/-
was paid as advance and the agreement was to be concluded within six months. As
the defendants did not execute the sale deed within the stipulated time, a suit
was filed by the plaintiff after giving notice dated 10.5.1983 for enforcement
of the agreement to sell. The defendant Nos.1 to 5 also filed a suit being O.S.No.236
of 1982 for injunction against defendant Nos.6 to 15 and took a plea that
because of the pendency of their suit, they could not execute the sale deed and
they would execute the sale deed after decree in their favour was passed. The
plaintiff suspected their movements and, therefore, he filed the present suit.
Defendant
Nos.1 to 3 filed a common written statement admitting the joint Hindu family
consisting of defendant Nos.1 to 4. But they denied that the 1st defendant was
the Kartha of the family. They admitted that the suit property was an ancestral
property and they were the absolute owners. They also denied the agreement to
sell and receipt of the advance. They further took a plea that they agreed to
sell the property for a sum of Rs.1,70,000/- at the first instance and the deed
of the agreement was typed and signed by the parties and the earnest money in
sum of Rs.10,000/- was paid and they were willing to sell the property for a
sum of Rs.1,70,000/- and as the plaintiff did not pay the balance sum,
therefore, the sale deed could not be executed. The defendant No.4 was a minor
when the suit was instituted, but became major during the pendency of the suit
and he denied that the defendant No.1 was his natural guardian. The defendant
No.5 also claimed 1/5th share in the property. The defendant No.1 died during
the pendency of the suit and his other daughter was brought on record as
defendant No.1(a). She also filed a written statement denying the agreement of
sale. Defendant No.6 contended that there was no collusion between the
defendant Nos. 6 to 15 and defendant Nos.1 to 4. They also contended that the
agreement cannot be enforced as against them as defendant Nos.1 to 5 were never
in possession of the suit property. Defendant Nos.6 to 15 claimed the ownership
by way of adverse possession and claimed to be in such exclusive possession
from the year 1957 onwards with the knowledge of defendant Nos.1 to 5.
Therefore, it was contended that the agreement of sale was not enforceable
because of the laches on the part of the plaintiff. On the basis of these
pleadings, nine issues were framed and then three more additional issues were
framed. The Trial Court after analyzing the evidence decreed the suit and
directed the defendant Nos. 1(a) to 5 to execute the sale deed in favour of
plaintiff by receiving the balance consideration of Rs.1,10,000/- and hand over
possession, at the same time, a decree was passed evicting the defendant Nos.6
to 15 from the premises in question. The Trial Court further directed defendant
Nos.6 to 15 to hand over the possession to the plaintiff.
Aggrieved
against this judgment and decree passed by the Trial Court, two appeals were
preferred before the High Court. Both the appeals were taken up together. The
grievance of defendant Nos. 1 to 5 was that the agreement of sale was not
proved and appeal by another batch of persons who were directed to be evicted
from the premises in question and to hand over the possession, was filed, i.e.
Appeal No.311 of 1883 and Appeal No.290 of 1993. Both these appeals were tagged
together.
3. The
High Court again reviewed the evidence and while hearing the appeals, it felt
that document executed by P.W.1 contained some corrections or erasure.
Consequently,
the document was sent for the expert opinion and after receipt of the report of
the Assistant Director (questioned document), Forensic Science Laboratory, Bangalore, evidence of erasure was found and
subsequent typing of figures of Rs.1,20,000/- was detected. Both the parties
were directed to file their objection to the report of the Handwriting Expert.
The High Court framed following two questions, viz.;
(i)
Whether the agreement of sale is true and binding on all the defendants ?
(ii)
Whether the defendants 6 to 15 perfected their title over suit property by way
of adverse possession?
4. The
High Court, after review of the evidence came to the conclusion that because of
the legal necessity as admitted by the defendants, an agreement of sale was
executed for the aforesaid property and a sum of Rs.10,000/- was taken as
advance. The High Court also observed that defendant No.1 was the Kartha of the
family, who died and it was not open to his sons to challenge that there was no
family necessity for sale of the property. So far as the agreement to sell was
concerned, the High Court also affirmed the finding of the trial court and did
not find any reason to take a different view of the matter. The High Court also
affirmed that in fact, the agreement of sale was for a sum of Rs.1,20,000/- and
not for Rs.1,70,000/- as alleged. So far as the possession by the defendant
Nos.6 to 15 was concerned, the Trial Court as well as the High Court affirmed
that the plea of adverse possession was very vague and these persons were
carrying on timber business in suit property and it was very difficult to hold
that they perfected their title by way of adverse possession. It was also
observed that these persons were in permissive possession. It was also found by
both the Courts below that there was no evidence to show that the title was
perfected by way of adverse possession.
Consequently,
the High Court confirmed the finding of the Trial Court. Aggrieved against this
judgment, two appeals were filed and they were tagged together, and are being
disposed of by this common order.
5.
Learned counsel for the appellants submitted that the findings given by both
the Courts below cannot be accepted and in support thereof, learned counsel
invited our attention to a number of decisions of this Court i.e. V.Pechimuthu
v. Gowrammal [(2001) 7 SCC 617]; Swarnam Ramachandran (Smt) & Anr. V. Aravacode
Chakungal Jayapalan [(2004) 8 SCC 689]; S.V.R.Mudaliar (Dead) by LRs. &
Ors. V. Rajabu F. Buhari (Mrs.) (Dead) by LRs. & Ors. [ (1995) 4 SCC 15]
& P.C.Varghese v. Devaki Amma Balambika Devi & Ors. [(2005) 8 SCC 486].
Mr. K.Ramamoorthy, learned senior counsel appearing for the appellants in Civil
Appeal No.666 of 2002 submitted that both the Courts below could not have
passed an eviction decree against the appellants in these very proceedings as
they were claiming the property by way of adverse possession, and in support
thereof, he has invited our attention to a decision of Bombay High Court in Mohd.
Hanif (deceased by LRs) & Ors. V. Mariam Begum & Ors. [ AIR 1986 Bom.
15] and an English decision in Tasker v. Small [1824-34 ALL ER 317].
6. We
have heard learned counsel for the parties and perused the record. As per the
findings given by both the Courts below it is clear that the agreement to sell
was entered into for family necessity and the same was agreed by the father of
the defendant though the father died during the course of the pendency of the
suit. Therefore, he could not be examined. Learned counsel has submitted that
the appreciation done by both the Courts below is not correct and in fact the
property was not agreed to be sold for Rs.1,20,000/- but the consideration
money was Rs.1,70,000/- and the appellants themselves were not willing to pay
the remaining amount. Hence he submitted that the agreement to sell cannot be
executed.
7. We
have examined the record and found that as per the evidence on record what is
apparent is that the agreement to sell in question was for the purpose of
family necessity only and it does not lie in the mouth of the sons to deny the
agreement to sell for which a sum of Rs.10,000/- was already received. After
going through the evidence also we are of opinion that the Courts below have
correctly appreciated the testimony and rightly reached the conclusion that the
agreement to sell was for Rs.1,20,000/- only. So far as the allegation of
interpolation in the document in question i.e. agreement to sell was concerned,
it was sent for examination by the Handwriting expert, and the report of the
expert was received and the same was accepted. The opinion of expert was that
there is erasure but not tampering with the document. The document in question
is genuine and has been rightly acted upon by both the Courts below. In this
connection, learned counsel invited our attention to various decisions referred
to above but that does not make any difference in the matter because factually
we are satisfied that the agreement to sell was executed for family necessity.
Therefore, the various decisions referred to by learned counsel for the
appellants do not take the case of the appellants any far.
Hence
we are of opinion that the agreement to sell was executed for family necessity
and the appellants cannot get out of it.
8. But
at the same time it is also true that the agreement to sell was executed way
back in the year 1982.
Since
after 1982 much water has flown under the bridge, the value of the real estate
has shoot up very high, therefore, while exercising our jurisdiction under
Section 20 of the Specific Relief Act, 1963 we would like to be equitable and
would not allow the sale of property to be executed for a sum of Rs.
1,20,000/-. The litigation has prolonged for almost 25 years and now at last
reached at the end of the journey. Therefore, we have to settle the equity
between the parties. We hold that the agreement to sell was genuine and it was
executed for bona fide necessity but because of passage of time we direct that
the respondents shall pay a sum of Rs.5 lacs in addition to Rs.1,10,000/- as
out of Rs.1,20,000/-, Rs.10,000/- has already been paid as advance. On receipt
of Rs.1,10,000/- and Rs.5 lacs [Rs.6,10,000/-] the appellants shall execute the
agreement to sell for the property in question.
9. Mr.
Ramamoorthy, learned senior counsel for the appellants in C.A.No.666 of 2002
submitted that in this appeal an order of eviction cannot be passed and in
support of that invited our attention to a decision of Bombay High Court in Mohd.
Hanif (deceased by Lrs) & Ors. V. Mariam Begum & Ors. [AIR 1986 Bom.
15] and English decision in Tasker v. Small [1824-34 All ER 317]. It is true
that the appellants in this appeal claimed the property in question by way of
adverse possession but neither before the trial court nor before the High Court
the appellants could show any justification for the possession of the property
in question. We also asked Mr.Ramamoorthy under what legal sanction the
appellants are in possession of the premises in question. He has failed to
point out anything except by way of permissible possession by the appellants in
C.A.No.666 of 2002. Therefore, the occupation of these appellants in C.A.No.666
of 2002 was at best a permissible possession and now that we are enforcing the
agreement to sell and direct the appellants in C.A.No.728 of 2002 to execute
the sale deed in respect of the property in question in favour of the
respondent-plaintiff,we cannot permit the appellants to continue in possession
of the property in question. Apart from this in order to put quietus to the
whole litigation it would be just and proper that the appellants in C.A.No.728
of 2002 should be directed to hand over the vacant possession of the property
in question to the respondent-plaintiffs on payment of a sum of Rs.6,10,000/-
[Rs.5,00,000/- + Rs.1,10,000/-] to the appellants. We cannot leave the matter
again for another round of litigation as otherwise the respondent- plaintiff
will have to file another case for taking possession of the property in
question and it will take another decade or so. Therefore, in order to do
complete justice, it is directed that the appellants in C.A.No.728 of 2002
shall hand over the possession of the property in question to the
respondent-plaintiffs in the event of the respondent-plaintiffs paying a sum of
Rs.1,10,000/-, the original amount agreed in the agreement for sale and over
and above a sum of Rs.5,00,000/- i.e. Rs.6,10,000/- within a period of three
months from today and on receipt of the aforesaid amount, the appellants in
C.A.No.728 of 2002 shall hand over the possession of the premises in question.
In
case the appellants fail to hand over the possession of the property in
question, the respondent-plaintiff may resort to the help of the police
authorities for taking vacant possession of the property in question.
10. As
a result of our above discussion, both the appeals are disposed of with no order
as to costs.
11.
Since we have disposed of the civil appeals as indicated above, the contempt
petitions are also disposed of in the light of the above order.
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