# Padam Singh v. Devi Singh & Anr

- **Citation:** (2024) 7 ILRA 816
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-18
- **Case number:** Second Appeal No. 472 of 2024
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/padam-singh-v-devi-singh-anr-52291
- **Pages:** 7

## Headnote

Civil Law - Specific Relief Act, 1963 -
Section 20 - Evidence Act, 1872 - Sections
91 & 92 - Transfer of Property Act, 1882 -
Section 52 - A registered agreement for
sale
was
executed
in
respect
of
agricultural land in between the plaintiff -
respondent and defendant - appellant -
Another
registered
agreement
was
executed in respect of same property,
defendant agreed to sell in favour of
plaintiff, but when latter didn't adhere to
terms of agreement and, despite notice
issued by plaintiff, sale deed was not
executed
by
defendant
-
Suit
was
instituted by plaintiff no. 1, for specific
7 All. Padam Singh Vs. Devi Singh & Anr.
817
performance - Trial Court ruled in favour
of defendant, Appellate Court reversed the
order by granting specific performance to
plaintiff - Held, transaction was for taking
of loan, defendant failed to prove fraud
had
been
committed
with
him,
no
documentary
evidence
was
filed
as
regards return of money to the plaintiff -
If execution of agreement was fraudulent,
nothing precluded defendant from either
instituting
a
separate
suit
seeking
declaration from Civil Court nor did he
prefer counter claim in suit - Mere filing of
civil appeal/cross appeal by defendant,
Section 92 would not aid to defendant -
Transaction was not a transaction of loan,
rather agreements for sale of agricultural
land - Sale deed is hit by doctrine of lis
pendens covered by Section 52. (Para 2,
14, 15, 16)

Second Appeal Dismissed. (E-13)

List of Cases cited:

## Text

816 INDIAN LAW REPORTS ALLAHABAD SERIES
the land would remain under his title after
acquisition. The submission of Sri Tyagi in
this regard is that since the authorities for
disbursement of compensation are not
competent to examine the validity of the
registered sale deed, the suit was rightly
filed as the civil court only was competent
to deal with the plea of fraud etc.

13. This Court is not in a position to
accept the said submission for the simple reason
that irrespective of execution of sale deed,
whether the plaintiff-appellant is the owner or
the defendant-respondents, the rights in the
agricultural land in dispute vested absolutely in
Avas
Vikas
Parishad
after
acquisition.
Extinction of the interest, either of the plaintiffappellant or of the defendant-respondents
would nullify the entire suit proceedings on this
ground alone and, as aforesaid, U.P. Avas
Vikas Parishad not being party to the litigation
though it was a necessary party to the
proceedings, the suit would fail for all purposes.
The Court may note that prayer No.B in the
plaint was in the nature of decree of permanent
prohibitory
injunction
restraining
the
defendants from receiving compensation from
the office of Additional District Magistrate
(Finance and Revenue), Ghaziabad at the
strength of sale deed of 2001. Neither the said
competent authority nor the acquiring body
being party to the proceedings, the suit was
bound to fail as per proviso attached to Order 1
Rule 9 CPC. The provision reads as under:-

 "9.
Misjoinder
and
nonjoinder.- No suit shall be defeated by
reason of the misjoinder or non-joinder of
parties, and the Court may in every suit
deal with the matter in controversy so far as
regards the rights and interests of the
parties actually before it:

Provided that nothing in this
rule shall be apply to non-joinder of a
necessary party." (emphasis supplied)

14. In view of the findings recorded
by both the courts below dealing with the
case of the plaintiff-appellant coupled with
the effect of Sections 189 and 190 of the
Act, 1950, this Court finds no good ground
to entertain this appeal even on admitted
facts.

15. No substantial question arises for
consideration.

16. The second appeal is dismissed.
----------
(2024) 7 ILRA 816
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 472 of 2024

Padam Singh ...Appellant
Versus
Devi Singh & Anr. ...Respondents

Counsel for the Appellant:
Sri Ashok Kumar Gupta, Sri B.D. Pandey

Counsel for the Respondents:
Ms. Rama Goel Bansal, Ms. Shalini Goel

Civil Law - Specific Relief Act, 1963 -
Section 20 - Evidence Act, 1872 - Sections
91 & 92 - Transfer of Property Act, 1882 -
Section 52 - A registered agreement for
sale
was
executed
in
respect
of
agricultural land in between the plaintiff -
respondent and defendant - appellant -
Another
registered
agreement
was
executed in respect of same property,
defendant agreed to sell in favour of
plaintiff, but when latter didn't adhere to
terms of agreement and, despite notice
issued by plaintiff, sale deed was not
executed
by
defendant
-
Suit
was
instituted by plaintiff no. 1, for specific
7 All. Padam Singh Vs. Devi Singh & Anr.
817
performance - Trial Court ruled in favour
of defendant, Appellate Court reversed the
order by granting specific performance to
plaintiff - Held, transaction was for taking
of loan, defendant failed to prove fraud
had
been
committed
with
him,
no
documentary
evidence
was
filed
as
regards return of money to the plaintiff -
If execution of agreement was fraudulent,
nothing precluded defendant from either
instituting
a
separate
suit
seeking
declaration from Civil Court nor did he
prefer counter claim in suit - Mere filing of
civil appeal/cross appeal by defendant,
Section 92 would not aid to defendant -
Transaction was not a transaction of loan,
rather agreements for sale of agricultural
land - Sale deed is hit by doctrine of lis
pendens covered by Section 52. (Para 2,
14, 15, 16)

Second Appeal Dismissed. (E-13)

List of Cases cited:

1. Smt. Gangabail w/o Rambilas Gilda Vs Smt.
Chhabubai w/o Pukharajji Gandhi (1982) 1 SCC
4

2. Roop Kumar Vs Mohan Thedani (2003) 6 SCC
595

3. Placido Fransisco Pinto (D) by LRs & anr. Vs
Jose Francisco Pinto & anr., 2021 (2) ARC 40
(SC)

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri B.D. Pandey, holding
brief of Shri Ashok Kumar Gupta, learned
counsel for defendant-appellant and Ms.
Rama Goel Bansal, learned counsel for
plaintiff-respondent No. 1.

2. A registered agreement for sale
dated 03.12.1993 was executed in respect
of agricultural land covered by Gata Nos.
547 and 574, measured differently, in
between the plaintiff and the defendant.
The period for executing the sale deed was
agreed upon as one year from the date of
agreement. After the said period expired,
another
registered
agreement
dated
06.12.1994 was executed in respect of the
same property and, thereby too, the
defendant agreed to sell the same in favour
of the plaintiff, but when the latter did not
adhere to the terms of the agreement and,
despite notice issued by the plaintiff, sale
deed was not executed by the defendant,
Original Suit No. 324 of 1996 was
instituted by respondent No. 1 claiming a
decree
for
specific
performance
of
registered agreement(s) with an alternative
relief of refund of earnest money with
interest.

3. The defence of defendant No. 1
(appellant) was that the agreement was not
executed for selling the property, but it was
a transaction of loan and a sum of Rs.
41,000/- was given as loan amount to him,
but the plaintiff fraudulently got the said
agreement executed as an agreement for
sale.

4. The trial court found force in the
defence of the defendant as regards the
nature of transaction and held that it was an
understanding about loan. While reaching
to the said conclusion, the trial court
referred to different portions of crossexamination of PW-1 much emphasising on
that portion of the said cross-examination,
in which the plaintiff had stated that
interest at the rate of Rs. 20/- per Rs.1000/-
was agreed upon between the parties. With
the said finding, coupled with observation
that the plaintiff was not ready and willing
to get the sale deed executed as he was a
labourer and stated in his oral testimony
that he used to earn meagre wages and all
his earnings were deposited by him in the
bank, the trial court arrived at a conclusion
that the plaintiff was not entitled to get a
818 INDIAN LAW REPORTS ALLAHABAD SERIES
decree
for
specific
performance.
It,
however, vide judgment and decree dated
02.05.2009, decreed the suit for alternative
relief directing the defendant to refund a
sum of Rs.75,000/- along with 10% interest
to the plaintiff.

5. Two appeals were preferred
against the judgment and decree of the trial
Court. While Civil Appeal No. 31 of 2009
was filed by the plaintiff being aggrieved
by non-grant of decree for specific
performance of the agreement(s), Civil
Appeal, being Cross Appeal No. 65 of
2015, was filed by the defendant No.
1(appellant) being aggrieved by the decree
of refund of money.

6. The first Appellate Court has
allowed the appeal filed by the plaintiff and
dismissed the cross appeal filed by the
defendant. It has recorded in the judgment
that the defence of defendant No. 1 stating
the agreement as a transaction for loan and
that he had returned the sum taken from the
plaintiff in December, 1995, could not
stand
substantiated
by
any
oral
or
documentary
evidence.
The
Appellate
Court elaborately dealt with the said
defence and also observed that had the
defendant returned the amount taken from
the plaintiff, he would have taken steps to
get the agreement cancelled, but no such
step was taken by him. It also recorded that
though, according to the defendant, there
was a written document executed as
regards refund of money, but the same was
not filed by him. Accordingly, adverse
inference
was
drawn
by
the
lower
Appellate Court against the defendantappellant.

7. The Appellate Court also noted
the defence of the defendant that in the
event of execution of sale deed, he would
suffer hardship. While discussing the said
aspect, the Appellate Court observed that
when the plaintiff, apprehending execution
of a sale deed by the defendant in teeth of
the agreement(s), moved an application and
affidavit during the pendency of appeal and
sought
stay
against
alienation,
the
defendant-appellant filed objections paper
No. 12-C supported by affidavit paper No.
13-C giving an undertaking that he would
never sell the property as the same was the
only means for his livelihood. For this
reason, no injunction was granted by the
Appellate Court against the sale. The
Appellate Court has observed that during
the pendency of the appeal, present
appellant executed a registered sale deed
dated 25.07.2012 in favour of one Guddu
(respondent No.2) in respect of 1/8th share
in Arazi No. 574 and, therefore, the
conduct of the defendant was sufficient to
exercise discretion against him as per
Section 20 of the Specific Relief Act, 1963.

8. Learned counsel for the
appellant has vehemently argued that the
Appellate Court has not reversed the
findings recorded by the trial court as
regards the transaction itself, particularly,
when PW-1 himself stated that interest was
agreed upon between the parties in relation
to the transaction. He, however, admits that
sale deed was executed by the appellant
during the pendency of appeal but contends
that though the agreement was executed in
relation to the properties covered by Gata
Nos. 547 and 574, only part of Gata No.
574 had been sold out. He also submits that
the finding on readiness and willingness
has also not been reversed by the Appellate
Court and decree for specific performance
has been illegally drawn.

9. On the other hand, learned
counsel
for
the
contesting-respondent
7 All. Padam Singh Vs. Devi Singh & Anr.
819
argues that the conduct of the defendant is
apparent on the face of the record. First, he
did not cross-examine the remaining
witnesses produced by the plaintiff's side,
secondly, he did not file any documentary
evidence to establish that amount was ever
returned to the plaintiff, thirdly, he
executed the sale deed violating the
undertaking given by him before the Court
and, lastly, that the Appellate Court has
dealt with the documentary evidence,
whereby the plaintiff had ensured his
attendance in the Sub-Registrar's office
awaiting presence of the defendant as
regards execution of sale deed. She further
submits that only a very tiny part of the
lengthy cross examination of PW-1 has
been referred to by the trial court and the
entire statement has not been considered, in
which, throughout, the transaction in
between the parties was stated to be that of
an agreement for sale.

10. Having heard the learned
counsel for the parties, the Court finds that
in a suit for specific performance of a
registered agreement for sale, mainly three
things are important. First, that the
document has to be a registered one,
secondly, the plaintiff has to establish that
he was ready and willing to get the sale
deed executed and, thirdly, the discretion
under section 20 of Specific Relief Act,
1963 considering conduct of parties and
hardship, if any, to be suffered by the
defendant.

11 . As regards the agreement,
there is no dispute that there were two
agreements and both were registered. As
regards readiness and willingness, the oral
and documentary evidence discussed by the
lower Appellate Court is quite satisfactory
and this Court finds that the trial court
simply, by quoting few lines from the
cross-examination of PW-1, arrived at a
conclusion that the plaintiff was not ready
and willing to get the sale deed executed.
As regards discretion, it has already been
observed that two pleas were raised by the
defendant, one as regards nature of
transaction as a loan agreement, which he
could not prove either by oral or by
documentary evidence and secondly, that
the amount taken from the plaintiff was
ever returned by the defendant which too
he failed to prove. The most important
aspect is the defence of hardship, which the
Appellate Court has dealt with in relation to
execution of sale deed dated 25.07.2012 in
favour of defendant No. 2 despite giving an
undertaking before the Court that the
defendant would never sell the property.

12. Even accepting the submission
of appellant that at one place in the crossexamination, PW-1 had stated that interest
at the rate of Rs.20/- per Rs. 1000/- was
agreed upon between the parties, the said
situation would not go adverse to the
plaintiff for two reasons. First, that the
entire statement has to be read as a whole
and the court is never justified to tear out
one line from the lengthy statement of a
witness to arrive at a conclusion. Secondly,
so far as admissibility of oral evidence as
regards terms of a contract, reference to
Sections 91 and 92 of the Evidence Act,
1872 is required to be made. The
provisions are reproduced as under:

 "91. Evidence of terms of
contracts, grants and other disposition of
property reduced to form of document-
When the terms of a contract, or of a grant,
or of any other disposition of property,
have been reduced to the form of a
document, and in all cases in which any
matter is required by law to be reduced to
the form of a document, no evidence shall
820 INDIAN LAW REPORTS ALLAHABAD SERIES
be given in proof of the terms of such
contract, grant or other disposition of
property, or of such matter, except the
document itself, or secondary evidence of
its contents in cases in which secondary
evidence is admissible under the provisions
herein-before contained."

 .................

 92. Exclusion of evidence of
oral agreement.

 When the terms of any such
contract, grant or other disposition of
property, or any matter required by law to
be reduced to the form of a document, have
been proved according to the last section,
no evidence of any oral agreement or
statement shall be admitted, as between the
parties to any such instrument or their
representatives in interest, for the purpose
of contradicting, varying, adding to or
subtracting from, its terms :

 Proviso (1). - Any fact may be
proved
which
would
invalidate
any
document, or which would entitle any person
to any decree or order relating thereto; such
as fraud, intimidation, illegality, want of due
execution,
want
of
capacity
in
any
contracting party, want or failure of
consideration, or mistake in fact or law.

 Proviso (2). - The existence of
any separate oral agreement as to any
matter on which a document is silent, and
which is not inconsistent with its terms,
may be proved. In considering whether or
not this proviso applies, the Court shall
have regard to the degree of formality of
the document.

 Proviso (3). - The existence of
any separate oral agreement, constituting a
condition precedent to the attaching of any
obligation under any such contract, grant or
disposition of property, may be proved.

 Proviso (4). - The existence of
any distinct subsequent oral agreement to
rescind or modify any such contract, grant
or disposition of property, may be proved
except in cases in which such contract,
grant or disposition of property is by law
required to be in writing, or has been
registered according to the law in force for
the time being as to the registration of
documents.

 Proviso (5). - Any usage or
custom by which incidents not expressly
mentioned in any contract are usually
annexed to contracts of that description,
may be proved :Provided that the annexing
of such incident would not be repugnant to,
or inconsistent with, the express terms of
the contract.

 Proviso (6). - Any fact may be
proved which shows in what manner the
language of a document is related to
existing facts.

13. The question of exclusion of
oral evidence by documentary evidence
came up for consideration before Hon'ble
the Supreme Court in Smt. Gangabail w/o
Rambilas Gilda vs Smt. Chhabubai w/o
Pukharajji Gandhi (1982 ) 1 SCC 4, and
Roop Kumar vs. Mohan Thedani (2003)
6 SCC 595. In Roop Kumar (supra), the
Supreme Court was seized of an appeal
filed by the defendant arising out of a suit
for possession and for rendition of
accounts. The plaintiff claimed that he
entered into an agency- cum-deed of
license with the appellant-defendant on
15.5.1975 and the terms of such agencycum-licensing agreement were incorporated
7 All. Padam Singh Vs. Devi Singh & Anr.
821
in an agreement dated 15.5.1975. The stand
of the defendant was that he was in lawful
possession as a tenant under the plaintiff.
The trial court decreed the suit holding that
the transaction between the respondent and
the appellant evidenced by the agreement
dated 15.5.1975 amounts to license and not
sub- letting. The question was whether
relationship between the parties was that of
a licensor and licensee or that of a lessor
and lessee. The first appeal was dismissed
by the High Court. The Supreme Court
held that it is general and most inflexible
rule that in respect of written instruments,
any other evidence is excluded from being
used either as a substitute for such
instruments, or to contradict or alter them.
It was held that section 91 is concerned
with the mode of proof of a document with
limitation imposed by Section 92 and if
after the document has been produced to
prove its terms under section 91, provisions
of section 92 come into operation for the
purpose of excluding evidence of any oral
agreement or statement for the purpose of
contradicting,
varying,
adding
or
subtracting from its terms. It was further
observed that wherever written instruments
are executed, either by the requirement of
law, or by the contract of the parties, to be
the repositories and memorials of truth, any
other evidence is excluded from being
used either as a substitute for such
instruments, or to contradict or alter them.
This is a matter both of principle and
policy. It is of principle because such
instruments are in their own nature and
origin, entitled to a much higher degree of
credit than oral evidence. It is of policy
because it would be attended with great
mischief if those instruments, upon which
men's rights depended, were liable to be
impeached by loose collateral evidence.
The
aforesaid
judgments have been
reconsidered by the Supreme Court in the
case of Placido Fransisco Pinto (D) by
LRs and another vs Jose Francisco
Pinto and another, 2021 (2) ARC 40
(SC).

14. In the present case, though in
the written statement, the defendant-
appellant took a plea that transaction in
between the parties was with regard to
taking of loan and a case was sought to be
developed as if fraud had been committed
with the defendant about which he came to
know after institution of the suit, there is
nothing on record that such a plea was
sufficiently proved by the defendant by
leading cogent evidence, particularly,
when no documentary evidence was filed
as regards return of money to the plaintiff,
if, at all, his bald assertion as regards
financial assistance is to be accepted.
Further, if execution of the agreement(s)
was
fraudulent
or
a
deceiving
act
rendering
the
documents
as
void/voidable/invalid, nothing precluded
the
defendant-appellant
from
either
instituting a separate suit seeking such
declaration from the Civil Court nor did he
prefer any counter claim in the present
suit. Mere filing of civil appeal/cross
appeal by the defendant being aggrieved
by the decree of refund of money would
not suffice taking aid of proviso attached
to Section 92 of the Evidence Act which,
when read with Sections 92 and 91 in toto
with the material on record of the case in
hand, would not come for rescue of the
defendant appellant.

15. During the course of hearing,
copies of both the agreements were placed
before the Court, from perusal whereof, the
Court does not find even a single word, by
which it can be inferred that transaction
between the parties was a transaction of
loan; rather both the documents, in so many
822 INDIAN LAW REPORTS ALLAHABAD SERIES
words, clearly infer that these were
executed as pure agreements for sale of the
agricultural land.

16. Last submission of learned
counsel for the appellant that entire
property covered by agreements or suit
itself has not been sold, but only part
thereof has been sold, also does not appeal
to the Court for the reason that the
agreement was in relation to 1/8th share in
Gata No. 574 and the entire 1/8th has been
sold to defendant No. 2. Irrespective of the
fact that Gata No. 547 has or has not been
sold, the same would not be read a
circumstance in favour of the defendant or
against the plaintiff. The defence of
hardship stands washed off with execution
of sale deed dated 25.07.2012 by the
appellant in favour of defendant No. 2 and
discretion to pass a decree against him
emerges from the sale that was made in
violation of the undertaking given by him
on oath before the Appellate Court. As far
as sale deed dated 25.07.2012, the same is
clearly hit by the doctrine of lis pendens
covered by Section 52 of the Transfer of
Property Act, 1882.

17. In view of the aforesaid
discussion, this Court does not find any
good ground to interfere with the order of
Appellate Court or to upset the findings of
fact recorded by it. No substantial question
of law arises for consideration by this
Court.

18. Second appeal has no force and
is, accordingly, dismissed.

19. The decree shall be executed
forthwith positively by the end of this year,
i.e. 2024.
----------
(2024) 7 ILRA 822
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal From Order No. 411 of 2024

M/S MMI Tobacco Pvt. Ltd. & Anr.
 ...Appellants
Versus
Iftikhar Alam ...Respondent

Counsel for the Appellants:
Sri Arvind Srivastava, Sri Mohammad
Waseem, Sri T.P. Singh (Sr. Advocate)

Counsel for the Respondent:
Sri Santosh Kumar Tripathi, Sri Udyan
Nandan, Sri Shashi Nandan (Sr. Advocate)

Civil Law _ Code of Civil Procedure, 1908 -
Order XLIII Rule 1(r) - Trade Marks Act,
1999 - Sections 29, 31, 34, 127, 134 & 135
- Copyright Act, 1956 - Section 62 - Trade
Marks Rules, 2017 - Rule 25, 119 - Indian
Contract
Act,
1872
-
Section
62
-
Impugned order challenged, by which
Injunction
application
rejected
-
Appellant was engaged in production and
sale of tooth power, namely, "Musa-KaGul" by wholesale and retail activity -
Appellant company and its predecessors
had been selling product since 04.03.1974
and registered their trade mark, valid upto
15.01.2024 - On 16.08.2022 appellant
came to know that defendant selling the
same product by same name - Suit was
instituted - Claiming decree alongwith
seeking temporary injunction - Defendant
may be restrained from producing, selling
tooth powder "Asli Musa-KaGul" - Held,
the
appellants
have
succeeded
to
establish all the three ingredients existing
in their favour and in case injunction, is
not granted, they would suffer day-to-day
damages
and
losses
on
account
of
continuous infringement of their trade
mark - Sales of the appellants have