# Ram Sewak Singh & Anr v. Ram Abhilakh Singh & Ors - **Citation:** (2013) 2 ILRA 915 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2013-07-10 - **Case number:** Second Appeal No. 466 of 1979 - **Bench:** Sibhgat Ullah Khan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sewak-singh-anr-v-ram-abhilakh-singh-ors-42646 - **Pages:** 5 ## Headnote CPC-Section-100- Second Appeal suit for specific performance-on based upon Registered agreement to sale-decreed by Trail Court-set-a side by first Appellate court on ground attesting witness of agreement deed not examined where as defendant/respondent on basis of unregistered agreement deed already executed sale deed-shocking that neither sale consideration given before Registrar, nor mentioned about payment made on the fact of execution of agreement-oral evidence Rs. 1000/- given at the time of executor of agreement-contrary to that sale deeddiscloses entire amount already given at the time of execution of agreement-heldafter 01.01.77 registration being compulsory under section 54 of T.P. Act by amendment Act No. 57 of 1976 by virtue of explanation of section 3-suit decreed subject to payment of entire sale consideration within stipulated period. Held: Para-14 Solemn registered transactions cannot be avoided on such flimsy bogus self serving pleas. The findings are not only perverse but shocking to the judicial conscience. Such findings can very well be set aside in second appeal vide Dinesh Kumar Vs. Yusuf Ali, AIR 2010 SC 2679 and Union of India Vs. Ibrahimuddin, 2012 (8) SCC 148. Case Law discussed: 2005 (1) SCC 162; AIR 2010 SC 2679; 2012 (8) SCC 148; AIR 2013 SC 434. ## Text 2 All] Ram Sewak Singh & Anr. Vs. Ram Abhilakh Singh & Ors. 915 1.10.1993 is set aside and the judgment and decree dated 18.11.1989, passed by learned Vth Additional Munsif, Bahraich in Original Suit No.135 of 1985 is confirmed. The respondent is directed to execute the sale deed of the disputed piece of land in favour of the appellants within two months from today, failing which, the plaintiffs shall be entitled to get the sale deed executed through the agency of the Court. In the circumstances of the case the parties shall bear their own costs. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: LUCKNOW 10.07.2013 BEFORE THE HON'BLE SIBHGAT ULLAH KHAN, J. Second Appeal No. 466 of 1979 Ram Sewak Singh & Anr. ...Appellant Versus Ram Abhilakh Singh & Ors...Respondents Counsel for the Petitioner: Sri K.P. Singh, Sri Amit Mukherjee Sri D.C. Mukherjee, Sri N.B.Singh Sri Nagendra Singh Counsel for the Respondents: S.C., Sri S.C. Misra, Sri A.K. Verma Sri Avinash Srivastava CPC-Section-100- Second Appeal suit for specific performance-on based upon Registered agreement to sale-decreed by Trail Court-set-a side by first Appellate court on ground attesting witness of agreement deed not examined where as defendant/respondent on basis of unregistered agreement deed already executed sale deed-shocking that neither sale consideration given before Registrar, nor mentioned about payment made on the fact of execution of agreement-oral evidence Rs. 1000/- given at the time of executor of agreement-contrary to that sale deeddiscloses entire amount already given at the time of execution of agreement-heldafter 01.01.77 registration being compulsory under section 54 of T.P. Act by amendment Act No. 57 of 1976 by virtue of explanation of section 3-suit decreed subject to payment of entire sale consideration within stipulated period. Held: Para-14 Solemn registered transactions cannot be avoided on such flimsy bogus self serving pleas. The findings are not only perverse but shocking to the judicial conscience. Such findings can very well be set aside in second appeal vide Dinesh Kumar Vs. Yusuf Ali, AIR 2010 SC 2679 and Union of India Vs. Ibrahimuddin, 2012 (8) SCC 148. Case Law discussed: 2005 (1) SCC 162; AIR 2010 SC 2679; 2012 (8) SCC 148; AIR 2013 SC 434. (Delivered by Hon'ble Sibghat Ullah Khan, J.) 1. At the time of arguments on 8.4.2013 no one had appeared on behalf of respondents. Accordingly, only the arguments of Sri D.C. Mukherjee, learned counsel for the appellants were heard and judgment was reserved. 2. This is plaintiffs' Second appeal arising out of original suit no.3 of 1978, Ram Sewak Singh and others Vs. Pramod Kumar and others. The suit was filed for specific performance of an agreement for sale and for cancellation of subsequent sale deed dated 30.12.1997. The suit was decreed on 20.7.1978 by Civil Judge Pratapgarh. Against the said decree subsequent purchaser filed Civil appeal no.140 of 1978 Ram Abhilakh Singh & others Vs.Ram Sewak Singh and others, District Judge Pratapgarh 916 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 through judgment and decree dated 8.5.1979 allowed the appeal, set aside the judgment and decree passed by the trial court and dismissed the suit of the plaintiffs for specific performance of agreement for sale dated 21.11.1977 and for cancellation of the subsequent sale deed hence this Second appeal. 3. According to the plaint allegations, Pramod Kumar, defendant no.1 was Bhoomidhar of agricultural land in dispute, total area 3 bigha 17 biswa 11 biswancies, he agreed to sell the said land to the plaintiffs for Rs.12,000/- after receiving Rs.5000/- as earnest money and executed registered agreement for sale on 21.11.1977 and that defendant no.1 afterwards illegally sold the property in dispute to defendant no.2 to 7 on 30.12.1977 who had full knowledge of the agreement. 4. Defendants denied execution of the agreement dated 21.11.1977 and further pleaded that prior to the sale deed dated 30.12.1977 an unregistered agreement for sale had been executed in favour of defendant no.2 to 7 by defendant no.1 on 10.10.1976. Trial court found the registered agreement for sale dated 21.11.1977 to have been executed and held that as the agreement was registered hence defendant nos. 2 to 7 were presumed to have knowledge of the same. It was further found that no unregistered agreement dated 10.10.1976 as alleged by defendants was executed by defendant no.1 in favour of defendant nos. 2 to 7. Lower appellate court reversed all the findings and also held that defendants no. 2 to 7 had no knowledge of the registered agreement dated 21.11.1977. 5. In the sale deed dated 30.12.1977, there is no mention of any earlier unregistered agreement for sale dated 10.10.1976. 6. This Second appeal was admitted on 9.8.1979 on the following substantial questions of law: 1. Whether having held that subsequent transfer had constructive notice of the agreement dated 21.11.1977 in favour of the plaintiffs, was the learned District Judge legally correct in holding that the defendants no. 2 to 7 were transferres in good faith? 2. Whether the District Judge was legally correct in discarding the observation made by the trial court in respect of demeanour of defendant no.1 in the witness box merely on the ground that no note regarding demeanour had been recorded by the trial court at the time the deposition was recorded? 7. In my opinion the following two substantial questions of law are also necessary to be decided in this appeal for its complete adjudication. Learned counsel for the appellant has been heard on these questions also which are as follows: 3. Whether finding of the lower appellate court that defendants no.1 had executed an unregistered agreement for sale in favour of defendant no.2 to 7 on 10.10.1976 is illegal and perverse. 4. Whether the findings of the lower appellate court that defendant no.1 did not execute registered agreement for sale in favour of plaintiffs on 21.11.1977 are erroneous in law and perverse? First Question:- 2 All] Ram Sewak Singh & Anr. Vs. Ram Abhilakh Singh & Ors. 917 8. As far as the first substantial question of law is concerned it has to be decided in favour of the appellant since 1.1.1977 agreement for sale of immovable property in U.P. is compulsorily registrable through amendment made in Section 54 of T.P. Act by U.P. Act no. 57 of 1976. By virtue of explanation 1 of Section 3 of T.P. Act, where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument any person acquiring such property shall be deemed to have notice of such instrument. Question No.3:- 9. As far as question no.3, is concerned it has also to be decided in favour of the appellants as in the sale deed dated 30.12.1977 there is absolutely no mention of alleged earlier unregistered agreement for sale dated 10.10.1976. In this regard learned counsel for the appellant has cited an authority of the Supreme Court reported in Sargunam V. Chidambaran. 2005(1) SCC 162 holding that non-mentioning of the agreement in the sale deed makes the existence of the agreement doubtful. 10. The fantastic explanation of this omission given by the defendants that when they came to the registration office for preparation of the sale deed dated 30.12.1977 they forgot to bring the unregistered agreement for sale with them is concerned it was utterly baseless. Firstly, the execution of the sale deed could be postponed. Secondly, some one could be sent to bring the agreement for sale and thirdly at least it should have been mentioned in the sale deed that there was an earlier agreement for sale. As defendants No.2 to 7 were aware of registered agreement in favour of the plaintiff hence it was impossible for them not to mention in the sale deed about the earlier agreement in their favour, if it had been in existence. In the unregistered agreement an amount of Rs.1000/- was shown to have been paid as earnest money out of total sale consideration of Rs.12,000/-. Under the sale deed no amount was shown to have been paid on the date of sale. The only thing which was mentioned was that the entire sale consideration had earlier been paid. In the agreement no subsequent payment was shown. This disproved execution of the unregistered agreement . 11. Such types of unregistered agreements were being freely manufactured to defeat genuine claims hence in U.P. such agreements were made compulsorily registerable w.e.f. 1.1.1977. Question No.4:- 12. Findings of the lower appellate court that agreement for sale dated 30.12.1977 was not executed by defendant no.1 in favour of the plaintiff is perverse and patently erroneous in law. It was a registered document hence there was a presumption of its correctness. It was for defendants to dislodge the presumption which was not done. 13. Point no.4 framed by the lower appellate court pertained to the validity of the agreement dated 21.12.1977. One of the reasons given by the lower appellate court is that attesting witness or scribe was not examined. This is not necessary. The other reason given is that Mahesh Ptatap Singh, PW 3 did not sign the agreement as attesting witness. Two other 918 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 persons had already signed the agreement as attesting witnesses. Pramod Kumar defendant no.1 categorically admitted his signatures on the agreement dated 21.11.1977, however, he stated that he had been administered intoxicant i.e. Ganja and wine. There was no allegation that it was given against his wishes. D.W. 1 did not state as to whether he was habitually drinking wine and smoking Ganja or not. If a person is habitual to drinking wine and taking ganja he does not lose his senses by consuming them. 14. In any case sub-registrar did not make any endorsement that the executant of the agreement did not appear to be in proper senses. If a person has taken some intoxicant willingly then he can not escape even the consequences of his criminal act (Section 85, I.P.C.) D.W. 1 apart from stating that he had taken Ganja and wine did not say that he had completely lost control over thinking and taking decision. The only thing stated by him was that he was not in his proper sense. Unless he stated and proved that he was unable to understand the consequences of his actions, the plea could not even be considered. Solemn registered transactions cannot be avoided on such flimsy bogus self serving pleas. The findings are not only perverse but shocking to the judicial conscience. Such findings can very well be set aside in second appeal vide Dinesh Kumar Vs. Yusuf Ali, AIR 2010 SC 2679 and Union of India Vs. Ibrahimuddin, 2012 (8) SCC 148. 15. Accordingly, the finding of the lower appellate court is set aside and it is held that registered agreement dated 21.11.1977 is a genuine, valid document. Question of law No.4 is decided in favour of the appellants. 16. In view of the above findings there is absolutely no need to decide the second question of law. 17. Second appeal, therefore, deserve to be allowed. 18. However, 36 years have passed since the execution of the agreement price of land must have escalated a lot during this period. In such a situation the Supreme Court in the following authorities has held that while decreeing the suit for specific performance higher amount may be directed to be paid by the plaintiff. (1) Pratap Lakshman Muchandi vs. Shamlal Uddavadas Wadhwa AIR 2008 SC 1378 (2) Satya Jain (D) Thr. L.Rs. and Ors. vs. Anis Ahmed Rushdie (D) Tr. L.Rs. and Ors. AIR 2013 SC 434. 19. Accordingly, Second appeal is allowed after deciding questions no. 1,3 and 4 in favour of the appellants. 20.Judgment and decree passed by the lower appellate court is set aside. Judgment and decree passed by the trial court decreeing the suit for specific performance of agreement for sale is restored with the condition that instead of Rs.7000/- balance sale consideration, plaintiff shall pay Rs.1,15,000/- as balance sale amount. This amount shall positively be deposited before the trial court within two months failing which this decree as well as the agreement for 2 All] Prem Chandra Srivastava Vs. The State of U.P.and Ors. 919 sale shall stand rescinded in terms of Section 28 of Specific Relief Act. 21. If the aforesaid amount is deposited within two months then notices must immediately be issued to the defendants to execute the sale deed and on their failure to do so, sale deed shall be executed by the executing court. The deposited amount shall be paid to the defendants after the execution of the sale deed and delivery of possession to the plaintiff. Till then, the amount shall be kept by the executing court in some good interest bearing account with some nationalized bank for one year renewable for the same period after every year. When ever it is paid to the defendants; it shall be paid along with accrued interest. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 24.05.2013 BEFORE THE HON'BLE DEVI PRASAD SINGH, J. THE HON'BLE ASHOK PAL SINGH, J. Service Bench No.563 of 2012 Prem Chandra Srivastava ...Petitioner Versus The State of U.P. and Ors. ...Respondents Counsel for the Petitioner: Jagdish Prasad Maurya Counsel for the Respondents: C.S.C. Constitution of India- Art. 14, 226Financial Hand Book Vol. II Part(2 to 4) Para 49- Higher pay scale-petitioner being confirmed employee as passenger tax superintendent-allowed to work on higher post of ARTO-keeping in view of recommendation dated. 08.07.2010 by Transport Commissioner-about 27 similarly situated persons given higher pay excluding the petitioner-held-action of state govt. wholly unjustified-equal can not be treated unequal-petition allowed with cost of Rs. 2 lac. Held: Para-12 Thus, the action of the State Government is not only violative of statutory right of the petitioner to avail the benefit of higher pay-scale in pursuance to the provisions contained in Financial Hand Book but it is also discriminatory since others have been granted benefit of salary of the officiating post, hence hit by Art. 14 of the Constitution of India. Case Law discussed: [2009(27) LCD 1013]; 1993 Vol. 3 SCC 677; 1990 (2) SCC 715; 2003 Vol. 2 SCC 673; AIR 1988 SC 130; AIR 1980 SC 2841; (2005) 6 SCC 344 (Delivered by Hon'ble Devi Prasad Singh, J.) 1. Heard learned counsel for the petitioner and learned Standing Counsel. Since affidavits have been exchanged, with the consent of the parties' counsel, the writ petition is being finally disposed of at admission stage. 2. The petitioner has approached this Court under Art. 226 of the Constitution of India claiming salary of the higher post of A.R.T.O on the ground that he has officiated on the said post for about five years. The petitioner has staked his claim in view of the provisions contained in Financial Hand Book. ` 3. The petitioner has joined on the post of Passenger Tax Superintendent on 27.3.1985. He is a permanent employee duly selected in accordance with rules for the post of Passenger Tax Superintendent. On 13.6.2003, the petitioner was directed to discharge duty of the post of A.R.T.O.