# Smt.Shyama Devi & Ors v. Smt. Chanda Devi

- **Citation:** (2016) 7 ILRA 469
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-29
- **Bench:** Harsh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shyama-devi-ors-v-smt-chanda-devi-44103
- **Pages:** 11

## Headnote

470 INDIAN LAW REPORTS ALLAHABAD SERIES

Civil Law-Second Appeal -Specific performance of contract - Registered agreement for sale - Executed by
Smt. Ram Bitoli - Fraud - Not proved - Ready and willing - Notice by registered post and telegram -
Subsequent purchasers - Bonafide purchasers for value without notice - Not proved - Consolidation
operations - Change of numbers within the same plot (Chak) - Identity of land - Not changed - Section 30 of
U.P. Consolidation of Holdings Act - Section 56 of Indian Contract Act - Impossible of performance - Not
made out - Contingent contract - Apportionment - Splitting the contract - Section 16(C) of Specific Relief Act
- Concurrent findings of fact - Section 100 C.P.C. - Substantial questions of law - Appeal dismissed with
costs - Judgment and decree affirmed.

This second appeal has been filed by the defendants-appellants against the judgment and decree dated
11.12.1998 passed by Ist Additional District Judge, Farrukhabad in Civil Appeal No.5 of 1988 (Smt. Shyama
Devi and others Vs. Smt. Chanda Devi), arising out of judgment and decree dated 11.12.1987 passed by
Additional Civil Judge, Farrukhabad in Civil Suit No.242 of 1984 (Smt. Chanda Devi Vs. Shyama Devi and
others) and the relief sought by this appeal is to allow the appeal and set-aside the judgment and decree
passed by two courts below and dismiss the suit of plaintiff with costs throughout.(Para 1)

The brief facts relating to the case are that Smt. Chanda Devi, widow of Pandit Suraj Prasad filed Civil Suit
No.242 of 1984 on 23.8.1984 for specific performance of contract with the contention that Smt. Bitola Kunwar
@ Ram Bitoli, widow of Raghunandan Prasad was bhoomidhar of the land detailed at the foot of the plaint,
with transferable rights, agreed to sell her land in favour of plaintiff for an agreed consideration of Rs.20,000/-
, executed a registered agreement for sale after receiving Rs.5,000/- as advance sale consideration and sale
deed was agreed to be executed after notification of village under Section 52 of U.P. Consolidation of Holdings
Act or upon obtaining of requisite permission from consolidation authorities; that on death of Smt. Ram Bitoli
@ Bitola Kunwar on 6.9.1982 her real sister Smt. Shyama Devi, the defendant no.1 became owner and
Bhumidhar of the property in suit and plaintiff is entitled to get the sale deed executed by defendant no.1;
that though Smt. Ram Bitoli had only half share in the property in suit and was competent to execute
agreement only in respect of her half share, she pretending herself to be owner of entire property executed
the agreement for sale in respect of entire; that the plaintiff has always been ready and willing to perform her
part of contract and served the defendant no.1 with notice by registered post as well as telegram for
execution of sale deed but she did not turn up; that since the price of entire land was ag

## Text

7 All. Smt. Shyama Devi & Ors. Vs Smt. Chanda Devi
469
 Harassment

34. Harassment or cruelty is a question of fact which is to be proved by examination of witnesses,
but the prosecution had made no effort to examine any witness, who can prove harassment of deceased by
accused persons, contradictory to it the statement of PW-1 Sunder Lal and PW-2 Virendra Kumar , father
and brother of the deceased respectively, so that the deceased was happy in her matrimonial house. She used
to come to her parental house by herself along with her husband and after staying there overnight returned to
her home. PW-1 in his examination-in-chief himself has stated that the deceased came to him along with her
husband and left with him in the next morning. No occasion has been quoted by PW-1 where her husband or
her inlaws had refused to send her. PW-1 Sunder Lal has admitted in his statement that Bal Govind, who was
mediator of marriage, has his Sasural in complainant's neighbourhood, but there is nothing on record to show
that the complainant or the deceased have ever complained of her harassment to Bal Govind. In contradiction
to it, DW-1 Bal Govind has denied any harassment of deceased by accused persons. He has also stated that
the complainant never complained of any demand of dowry or harassment. In view of above it is evident that
the prosecution has miserably failed to prove factum of harassment of the deceased by the accused persons.

35. In these circumstances, the trial Court has rightly held that there was neither any demand of
dowry nor harassment by respondents-accused. Though marriage of deceased was within 7 years of her
death and her death has also occurred in unnatural circumstances, but in absence of any demand of dowry or
harassment for dowry, no presumption under Section 113B Indian Evidence Act can be drawn.

36. Thus, we do not find the judgment passed by the trial Court to be palpably wrong or erroneous,
which may warrant interference by appellate Court.

37. The appeal has no merit and, hence, it is dismissed.
----------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2016

BEFORE

THE HON'BLE HARSH KUMAR, J.

Second Appeal No.- 606 Of 1999

Smt.Shyama Devi & Ors. ...Appellants
Versus
Smt. Chanda Devi ...Respondent

Counsel for the Appellants:
S.K. Jauhary, Kshtij Shailendra, Murtaza Ali, S.C. Verma, Shailendra Kumar

Counsel for the Respondent:
Dinesh Pathak, Rakesh Dwivedi, Rakesh Pathak
470 INDIAN LAW REPORTS ALLAHABAD SERIES

Civil Law-Second Appeal -Specific performance of contract - Registered agreement for sale - Executed by
Smt. Ram Bitoli - Fraud - Not proved - Ready and willing - Notice by registered post and telegram -
Subsequent purchasers - Bonafide purchasers for value without notice - Not proved - Consolidation
operations - Change of numbers within the same plot (Chak) - Identity of land - Not changed - Section 30 of
U.P. Consolidation of Holdings Act - Section 56 of Indian Contract Act - Impossible of performance - Not
made out - Contingent contract - Apportionment - Splitting the contract - Section 16(C) of Specific Relief Act
- Concurrent findings of fact - Section 100 C.P.C. - Substantial questions of law - Appeal dismissed with
costs - Judgment and decree affirmed.

This second appeal has been filed by the defendants-appellants against the judgment and decree dated
11.12.1998 passed by Ist Additional District Judge, Farrukhabad in Civil Appeal No.5 of 1988 (Smt. Shyama
Devi and others Vs. Smt. Chanda Devi), arising out of judgment and decree dated 11.12.1987 passed by
Additional Civil Judge, Farrukhabad in Civil Suit No.242 of 1984 (Smt. Chanda Devi Vs. Shyama Devi and
others) and the relief sought by this appeal is to allow the appeal and set-aside the judgment and decree
passed by two courts below and dismiss the suit of plaintiff with costs throughout.(Para 1)

The brief facts relating to the case are that Smt. Chanda Devi, widow of Pandit Suraj Prasad filed Civil Suit
No.242 of 1984 on 23.8.1984 for specific performance of contract with the contention that Smt. Bitola Kunwar
@ Ram Bitoli, widow of Raghunandan Prasad was bhoomidhar of the land detailed at the foot of the plaint,
with transferable rights, agreed to sell her land in favour of plaintiff for an agreed consideration of Rs.20,000/-
, executed a registered agreement for sale after receiving Rs.5,000/- as advance sale consideration and sale
deed was agreed to be executed after notification of village under Section 52 of U.P. Consolidation of Holdings
Act or upon obtaining of requisite permission from consolidation authorities; that on death of Smt. Ram Bitoli
@ Bitola Kunwar on 6.9.1982 her real sister Smt. Shyama Devi, the defendant no.1 became owner and
Bhumidhar of the property in suit and plaintiff is entitled to get the sale deed executed by defendant no.1;
that though Smt. Ram Bitoli had only half share in the property in suit and was competent to execute
agreement only in respect of her half share, she pretending herself to be owner of entire property executed
the agreement for sale in respect of entire; that the plaintiff has always been ready and willing to perform her
part of contract and served the defendant no.1 with notice by registered post as well as telegram for
execution of sale deed but she did not turn up; that since the price of entire land was agreed to be
Rs.20,000/- and Smt. Ram Bitoli was held owner only to the extent of half share during consolidation, the sale
deed of 1⁄2 share in the land in suit is required to be executed for half consideration Rs.10,000/- and plaintiff
has always been ready and willing to perform her part of contract and get the sale deed executed in her
favour on payment of Rs.5,000/-; that after execution of agreement for sale instead of executing sale deed in
favour of the plaintiff, defendant no.1 in order to delay and defraud the claim of plaintiff, executed sale deeds
of the property in suit in favour of defendant nos.2 & 3, who have also been impleaded as defendants; that
the defendant nos.2 & 3 had full knowledge of the agreement in favour of the plaintiff and are not bonafide
purchasers for value without notice and being subsequent purchasers are bound to execute sale deed in
favour of plaintiff.(Para 2)

Held:(Paras 29-32)

1. It is not the case of defendants-appellants that the two courts below in arriving at above findings, either
failed to consider any material evidence on record or acted wrongly in relying or misreading any inadmissible
evidence. In absence of any such illegality or glaring mistake by the courts below, the learned counsel for the
defendants appellants has failed to show any manifest error of fact and law or any perversity in the above
concurrent findings of fact and there is no sufficient ground for interfering with or setting it aside or displacing
above findings. The learned counsel for defendants-appellants have failed to show that disputed agreement is
a 'Contingent Contract' to do an impossible act within the purview of provisions of Sections 39 & 56 of Indian
Contract Act. Since there was no material change in allotment of plots to the tenure holder during
7 All. Smt. Shyama Devi & Ors. Vs Smt. Chanda Devi
471
consolidation and the land agreed to be sold, remained same. The provisions of Section 30 of U.P.
Consolidation of Holdings Act do not come in the way of granting relief for specific performance of contract
and decreeing suit for such relief.

2. In view of the discussions made above, I have come to the conclusion that learned counsel for the
appellants has failed to show that the courts below have passed the decree for specific performance of
contract by splitting the contract or by way of apportionment, or the specific performance of contract had
become impossible due to any change of property/plots in view of provisions of Section 30 of U.P.
Consolidation of Holdings Act or Section 56 of Indian contract Act or that the plaintiff was not ready and
willing to perform her part of contract and the suit was hit by provisions of Section 16 (C) of Specific Relief
Act.

3. All the three substantial questions of law framed for disposal of this appeal are liable to decided against the
defendants-appellants. The appeal has no merits and is liable to be dismissed with costs.

4. The appeal is dismissed with costs. The impugned judgment and decree are affirmed.

Case Law discussed:

1. Shanker Singh Vs. Narendra Singh, 2012 (90) ALR 698 (SC) (Para 23)
2. Babulli Vs. Hamidul Bibi, 2009 (75) ALR 865 (Para 23)
3. Ghori Lal Vs. Additional District Judge, Agra, 2011 (113) R.D. 430 (Para 25)
4. Mahendra Nath Vs. Baikunthi Devi, 1976 (2) ALR 21 (Para 26)
5. Zarina Sidiqqui Vs. A. Rama Lingam, 2015 (1) SCC 705 (Para 26)
6. K. Prakash Vs. B.R. Sampat Kumar, 2015 (126) Revenue Decisions 563 (Para 27)
7. Alok Bose Vs. Parmatma Devi, 2009 (2) SCC 582 (Para 27)

(Delivered by Hon'ble Harsh Kumar, J.)

1. This second appeal has been filed by the defendants-appellants against the judgment and
decree dated 11.12.1998 passed by Ist Additional District Judge, Farrukhabad in Civil Appeal No.5
of 1988 (Smt. Shyama Devi and others Vs. Smt. Chanda Devi), arising out of judgment and decree
dated 11.12.1987 passed by Additional Civil Judge, Farrukhabad in Civil Suit No.242 of 1984
(Smt. Chanda Devi Vs. Shyama Devi and others) and the relief sought by this appeal is to allow the
appeal and set-aside the judgment and decree passed by two courts below and dismiss the suit of
plaintiff with costs throughout.

2. The brief facts relating to the case are that Smt. Chanda Devi, widow of Pandit Suraj
Prasad filed Civil Suit No.242 of 1984 on 23.8.1984 for specific performance of contract with the
contention that Smt. Bitola Kunwar @ Ram Bitoli, widow of Raghunandan Prasad was bhoomidhar
of the land detailed at the foot of the plaint, with transferable rights, agreed to sell her land in
favour of plaintiff for an agreed consideration of Rs.20,000/-, executed a registered agreement for
sale after receiving Rs.5,000/- as advance sale consideration and sale deed was agreed to be
executed after notification of village under Section 52 of U.P. Consolidation of Holdings Act or
upon obtaining of requisite permission from consolidation authorities; that on death of Smt. Ram
Bitoli @ Bitola Kunwar on 6.9.1982 her real sister Smt. Shyama Devi, the defendant no.1 became
owner and Bhumidhar of the property in suit and plaintiff is entitled to get the sale deed executed
472 INDIAN LAW REPORTS ALLAHABAD SERIES

by defendant no.1; that though Smt. Ram Bitoli had only half share in the property in suit and was
competent to execute agreement only in respect of her half share, she pretending herself to be
owner of entire property executed the agreement for sale in respect of entire; that the plaintiff has
always been ready and willing to perform her part of contract and served the defendant no.1 with
notice by registered post as well as telegram for execution of sale deed but she did not turn up; that
since the price of entire land was agreed to be Rs.20,000/- and Smt. Ram Bitoli was held owner
only to the extent of half share during consolidation, the sale deed of 1⁄2 share in the land in suit is
required to be executed for half consideration Rs.10,000/- and plaintiff has always been ready and
willing to perform her part of contract and get the sale deed executed in her favour on payment of
Rs.5,000/-; that after execution of agreement for sale instead of executing sale deed in favour of the
plaintiff, defendant no.1 in order to delay and defraud the claim of plaintiff, executed sale deeds of
the property in suit in favour of defendant nos.2 & 3, who have also been impleaded as defendants;
that the defendant nos.2 & 3 had full knowledge of the agreement in favour of the plaintiff and are
not bonafide purchasers for value without notice and being subsequent purchasers are bound to
execute sale deed in favour of plaintiff.

3. The defendants filed their respective written statements. The defendant no.1 contended
that it is wrong to say that Smt. Ram Bitoli executed any agreement for sale in favour of plaintiffrespondent or concealed any fact regarding her bhoomidhari rights in respect of half share in the
land in suit; that the sale deed in favour of defendant no.3 was executed after due permission from
the consolidation authorities; that the agreement is void being a 'contingent contract' and specific
performance in piecemeal, in respect of 1⁄2 share of Smt. Bitoli may not be permitted; that since the
nature of property in suit has been changed and major part of the land has been sold to defendant
nos.2 & 3 before filing of the suit, the specific performance of agreement has become impossible;
that the plaintiff was tenant of Smt. Ram Bitoli, and got executed a registered power of attorney
from Smt. Ram Bitoli in favour of her son Ram Sewak, at the office of Sub Registrar and appears
to have obtained the agreement for sale in question by playing fraud on Smt. Ram Bitoli without
her knowledge; that Smt. Ram Bitoli was not aware of the execution of alleged agreement; that
Smt. Ram Bitoli had cancelled the power of attorney dated 20.5.1982 executed in favour of the son
of plaintiff by executing a registered deed of cancellation on 16.7.1982 and also informed through
notice; that the description of property is wrong and vague; that the suit is liable to be dismissed
with costs.

4. The defendant nos.2 & 3 filed their separate written statements claiming themselves to
be bonafide purchasers for value and in actual physical possession over the property purchased by
them.

5. Upon parties' pleadings, the trial court framed as many as 12 issues and after evidence of
parties on the basis of findings of different issues in favour of plaintiff, decreed the suit for specific
performance of contract, directing the defendants to execute the sale deed of the property in suit in
favour of plaintiff on receipt of Rs.5,000/-, the balance sale consideration.
7 All. Smt. Shyama Devi & Ors. Vs Smt. Chanda Devi
473
6. Feeling aggrieved, the defendants filed Civil Appeal No.5 of 1988 and the appellate
court affirming the findings of trial court came to the conclusion that the vendee has to pay entire
consideration agreed between the parties, allowed the appeal partly and maintaining the decree for
specific performance of contract, modified it to the extent that the sale deed shall be executed by
defendants on receipt of Rs.15,000/- as balance sale consideration.

7. Feeling aggrieved, the defendants have preferred this second appeal under section 100 of
Code of Civil Procedure.

8. This second appeal has been admitted on following substantial questions of law:-

"(a) whether the Court below was justified in granting a decree for specific
performance of contract by splitting the contract by appointment (apportionment).

(c) whether the contract has become impossibility of performance dueto section 30
of the Consolidation of Holdings Act and Section 56 of the Contract Act.

(d) whether the plaintiff was ready and willing to perform her part ofthe contract
and the suit is hit by Section 16(C) of the Specific Relief Act."

9. On various issues framed by trial court, upon detailed discussions and analysis of
evidence on record, the trial court has held in its findings on issue nos.5, and 11 that it is proved
from the evidence on record that the disputed agreement for sale was executed by Smt. Ram Bitoli
in favour of plaintiff Smt. Chanda Devi which is not proved to have been obtained by playing fraud
on Smt. Ram Bitoli at the time of execution of power of attorney in favour of Pandit Ram Sewak,
the son of plaintiff-respondent.

10. On issue no.10, it held that it is proved from the evidence on record that during
consolidation due to the change of numbers within the same plot (CHAK), the identity of land in
dispute was not changed and on the ground of change of identity of property in suit, the relief of
specific performance may not be refused.

11. On issue no.8, the trial court has held that the plaintiff has proved that she served notice
on defendants through registered post as well as through telegram and that she was always ready
and willing to perform her part of contract and to get the sale deed executed in her favour on
payment of balance sale consideration.

12. On issue no.7, the trial court upon considering the statements of subsequent purchasers,
defendant no.2 Smt. Saraswati Devi who has stated as D.W.-2 that negotiations for purchase of
property were made by her husband who is Lekhpal and before purchasing the land from
Smt. Shyama Devi necessary enquiry was not made by her from the office of Sub-Registrar, and
defendant no.3 Indresh Singh, who has also stated as D.W.-3 that he did not make any enquiry in
the office of Sub-Registrar, held that the disputed agreement for sale is a registered agreement, of
474 INDIAN LAW REPORTS ALLAHABAD SERIES

which there is a presumption of due notice to subsequent purchasers and since they have not taken
due care and precaution and did not make necessary enquiry, before getting the sale deed executed
in their favour, it is proved from the evidence on record that they are not bonafide purchasers for
value, without notice of the disputed agreement for sale.

13. On above findings, the suit of plaintiff was decreed for specific performance of contract
and defendants were directed to execute sale deed of property in suit in favour of plaintiff on
receipt of Rs.5,000/-, the balance sale consideration from the plaintiff.

14. In first appeal filed under Section 96 of Code of Civil Procedure by defendants against
the judgment and decree passed by the trial court, the appellate court affirmed the findings of court
below on all the above points/issues. However, the first appellate court held that since the
agreement for sale was executed in respect of the entire share of Smt. Ram Bitoli in the plot
numbers in question, so inspite of the fact that she had only half share, the plaintiff is not entitled to
get the sale deed executed in respect of the half share of Smt. Bitoli on payment of proportionately
half sale consideration, rather she has to make payment of entire amount of agreed sale
consideration, even on getting the sale deed executed in her favour, only in respect of half share of
Smt. Bitola Kunwar in the property in suit. It accordingly modified the judgment and decree
passed by trial court, maintaining the decree for specific performance of contract subject to
payment of Rs.15000/- instead of Rs.5000/- towards balance consideration.

15. It is settled principle of law that in second appeal under Section 100 of C.P.C., the
concurrent findings of fact recorded by two courts below may not be set aside or interfered with,
unless there is some manifest error, illegality or perversity and appeal has to be decided only on
substantial questions of law, if any involved.

16. Learned counsel for the defendants-appellants addressing on all the three substantial
questions of law, contended that the disputed agreement for sale was not executed by Smt. Ram
Bitoli and since plaintiff Smt. Chanda Devi was her tenant and Smt. Ram Bitoli had executed a
registered power of attorney in favour of Pandit Ram Sewak, the son of plaintiff, it appears that at
the time of execution of deed of power of attorney on 20.5.1982, the disputed agreement for sale
was obtained by playing fraud on Smt. Ram Bitoli without any knowledge to her; that since the
village was under consolidation operations, so no sale deed could have been executed, till
completion of consolidation proceedings or without permission by the consolidation authorities;
that since the property in suit was changed during consolidation operations and the plots given in
exchange were at different place, so due to change of subject matter of the suit, the specific
performance of contract has became impossible and the decree for specific performance of contract
may not be passed; that while the agreement for sale was executed for entire plots, the trial court
and first appellate court had no jurisdiction to grant decree for specific performance of contract in
respect of half share by apportionment and have acted wrongly in granting decree for specific
performance of contract; that the grant of relief of decree for specific performance of contract upon
apportionment is legally not permissible under law; that the plaintiff/respondent had failed to show
that she was or has been ready and willing to perform her part of contract and to get the sale deed
7 All. Smt. Shyama Devi & Ors. Vs Smt. Chanda Devi
475
executed in her favour on payment of balance sale consideration; that the appellants/defendants
nos.2 & 3 are proved to be bonafide purchasers for value without notice of disputed agreement for
sale and no decree can be passed against them; that due to change of plot numbers during
consolidation specific performance of contract has become impossible and the decree for specific
performance of contract is barred by provisions of Section 30 of U.P. Consolidation of Holdings
Act as well as Section 56 of Indian Contract Act; that both the courts below failed to exercise
discretion correctly and the decree for specific performance is hit by provisions of Section 16(C) of
Specific Relief Act; that the impugned judgments and decrees passed by two courts below are
liable to be set-aside and suit is liable to be dismissed with costs throughout.

17. Learned counsel for the defendants-appellants has relied on following case laws in
support of his arguments:- (1) Shanker Singh Vs. Narendra Singh, 2012 (90) ALR 698 (SC), (2)
Babulli Vs. Hamidul Bibi, 2009 (75) ALR 865, (3) Ghori Lal Vs. Additional District Judge, Agra,
2011 (113) R.D. 430 and (4) Mahendra Nath Vs. Baikunthi Devi, 1976 (2) ALR 21.

18. Per contra, learned counsel for the plaintiff-respondent submitted that there is no
evidence on record to show that the disputed agreement for sale was obtained by fraud and in
absence of any evidence to above effect, the mere contention of defendants-appellants is baseless
and worthless; that there is no evidence on record to show that any fraud was played by plaintiff or
her son in obtaining the disputed agreement for sale from Smt. Ram Bitoli; that undisputedly, Smt.
Ram Bitoli by executing the deed of cancellation of power of attorney on 16.7.1982, cancelled the
power of attorney executed in favour of Pandit Ram Sewak, the son of plaintiff but mere
cancellation of above deed of power of attorney, does not mean that the agreement for sale
executed on 20.5.1982 was also wrong and illegal, particularly when in the deed of cancellation of
power of attorney Paper No.106-A on record, she has not stated of any fraud having been played on
her; that moreover, Smt. Ram Bitoli got it cancelled the deed of power of attorney only and did not
take any action for cancellation of disputed agreement for sale rather allowed it to stand; that
considering all these aspects and evidence on record, the trial court has rightly held on issue nos.5
& 11 that the agreement for sale was executed by Smt. Ram Bitoli, which is not proved to have
been obtained by fraud and these findings were affirmed by the first appellate court; that there is
nothing on record to show that during consolidation proceedings the property in suit was changed
and instead of the property/plots agreed to be sold by Smt. Ram Bitoli, some other plots or land at
some other place was allotted to her or her successor or that the property/land in suit was materially
or completely changed with other plots; that it is proved from the evidence on record that during
consolidation operations, neither the numbers and area of plots nor its location/place was changed
and if some plot no.2406/2 of negligible area did not fell in share of Smt. Ram Bitoli in
consolidation, it does not adversely affect the rights of plaintiff, as the land considerably remained
the same; that in the circumstances Section 30 of U.P. Consolidation of Holdings Act as well as
Section 56 of Indian Contract Act does not come into play and does not adversely affect the
granting the decree for specific performance of contract on the ground of its becoming impossible
of performance; that it is proved from the evidence on record that the plaintiff has always been
ready and willing to perform her part of contract and to get the sale deed executed in her favour on
payment of entire balance consideration despite the fact that Smt. Ram Bitoli was adjudged owner
476 INDIAN LAW REPORTS ALLAHABAD SERIES

of only 1⁄2 share in the property in suit while she agreed to sell full share claiming to be exclusive
owner of all the plot numbers; that the learned courts below have not granted decree for specific
performance of contract by splitting the contract by way of apportionment and so the substantial
question of law in this regard as framed is unwarranted; that the case laws relied by and on behalf
of defendants-appellants are based on different facts wherein plots agreed to be sold were entirely
or considerably changed with some other plots to the vender and so in view of provisions of
Section 30 of U.P. Consolidation of Holdings Act it was held that due to change of property the
decree for specific performance of contract cannot be passed and the alternative relief of money
decree would be appropriate in such cases; that the defendant nos.2 & 3 had full knowledge of the
registered agreement for sale in favour of plaintiff and having full knowledge of the agreement they
have obtained sale deeds in respect of part of disputed property, without payment of sale
consideration; that the defendant-appellant nos.2 & 3 did not produce any evidence to prove their
sale deeds and payment of sale consideration; that the defendant nos.2 & 3 have failed to prove
themselves to be bonafide purchasers of value without notice of the disputed registered agreement
for sale.

19. During hearing, upon noticing that the dispute agreement for sale has been executed by
Smt. Ram Bitoli alone and it is not a bilateral document having also been signed or thumb marked
by the plaintiff, upon query of enforcibility of such an unilateral agreement for sale, learned
counsel for the defendants-appellants did not address the court. However, learned counsel for the
plaintiff-respondent contended that the agreement for sale is a contract between the parties for sale
and purchase of property at agreed price and it may also be oral and if an unilateral document of
agreement for sale has been executed, it is equally enforceable at law as a bilateral document.

20. Learned counsel for the plaintiff-respondent has relied on following case laws:- (1)
Zarina Sidiqqui Vs. A. Rama Lingam, 2015 (1) SCC 705, (2) K. Prakash Vs. B.r. Sampat Kumar,
2015 (126) Revenue Decisions 563 and (3) Alok Bose Vs. Parmatma Devi, 2009
(2) SCC 582.

21. Upon hearing learned counsel for the parties and perusal of record, I find that the two
courts below have given concurrent findings of fact that plaintiff has proved that Smt. Ram Bitoli
executed disputed agreement for sale in her favour and got it registered. The two courts below have
also come to the conclusion that the disputed agreement for sale is not an outcome of fraud and
plaintiff has proved that she has always been ready and willing to perform her part of contract and
to get the sale deed executed in her favour on payment of balance sale consideration. The trial court
on its findings on issue nos.5 & 11 has held that it is proved from the evidence on record that
agreement for sale was executed by Smt. Ram Bitoli and was not obtained by fraud. On issue no.8,
it held that plaintiff served the defendants with notice through registered post as well as telegram
and has always been ready and willing to perform her part of contract. On issue no.10, it held that
during consolidation, as per form C.H.-23 issued on 13.8.1984 the numbers of plot (Chak) allotted
to Smt. Ram Bitoli are the same and only minor changes were made within the same plots so it will
not be correct to say that due to minor changes within the plot (Chak), the land in suit is not
identifiable and execution of sale deed has become impossible. The trial court on issue no.7, held
7 All. Smt. Shyama Devi & Ors. Vs Smt. Chanda Devi
477
that the defendant nos.2 & 3 had full knowledge of the disputed registered agreement for sale and
they are not bonafide purchasers of value without notice. The above findings of fact were affirmed
by the appellate court in Civil Appeal No.5 of 1988 by the impugned judgment and decree.

22. It is settled principle of law that the relief of specific performance is a discretionary
relief and the court should exercise its discretion judicially and not arbitrarily. It is also settled
principle of law that discretion so exercised by the courts in granting or refusing the decree of
specific performance of contract, if has been exercised in accordance with sound and reasonable
judicial principles, the appellate court should not interfere with the discretion so exercised, either
way.

23. In the case laws relied by defendants-appellants, I find that in the case of Shanker
Singh Vs. Narendra Singh, 2012 (90) ALR 698 (SC), the decree for specific performance of
contract was refused on the ground that the vender had agreed to sell entire house property
alongwith half share of his wife and since he had no authority to enter into contract on behalf of his
wife, the decree for specific performance of contract was refused. Similarly, in the case of Babulli
Vs. Hamidul Bibi, 2009 (75) ALR 865, the mother had executed agreement for sale in respect of
the share of her minor children, which was found unenforceable.

24. The above case laws being based on different facts, have no application in this case.

25. In the case of Ghori Lal Vs. Additional District Judge, Agra, 2011 (113) R.D. 430, the
description of property was found to have been completely changed and so the decree for specific
performance was refused in view of provisions of Section 30 of U.P. Consolidation of Holdings
Act.

26. In the case of Mahendra Nath Vs. Baikunthi Devi, 1976 (2) ALR 21, the Full Bench of
this Court upon considering the provisions of Section 30 of U.P. Consolidation of Holdings Act
held that:-

" if after consolidation tenure holder was allotted different plots in Chak then
contracted, the agreement to sale, will not be enforceable in view of the provisions of Section 30 of
U.P. Consolidation of Holdings Act as if the disputed land has gone finally in the Chak of third
person the suit for specific performance has to be dismissed. However, if the decree passed before
finalisation of Chaks or if the land remains with the judgment debtor even on allotment, effect can
be given to the decree under Section 52 (2) of U.P. Consolidation of Holdings Act."

The court in suit for specific performance of a contract for sale, has to specifically
enforce the contract, if possible. The performance of an act may not be literally impossible but it
may be impracticable and useless from the point of view of the object and purpose which the
parties had in view, and if untoward event or change of circumstances totally upsets the very
foundation upon which the parties rested their bargains, it can very well be said that the promiser
finds it impossible to do the act which promised to do."
478 INDIAN LAW REPORTS ALLAHABAD SERIES

27. The case laws relied by plaintiff-respondent are as under:-

28. In the case of Zarina Sidiqqui Vs. A. Rama Lingam, 2015 (1) SCC 705, the Apex
Court has held that:-

"the defendants' plea that execution of agreement was obtained by practicing
fraud not made out and defendants suppressed the material facts to mislead the court, the exercise
of discretion in favour of granting the decree for specific performance was correct."

29. In the case of K. Prakash Vs. B.r. Sampat Kumar, 2015 (126) Revenue Decisions 563,
the court has held that:-

"appellate court not to interfere with the order of trial court unless it is established
that discretion has been exercised perversely, arbitrarily or against the judicial principles, and
subsequent rise in price not to be treated as hardship entailing refusal of decree for specific
performance".

30. In the case of Alok Bose Vs. Parmatma Devi, 2009 (2) SCC 582, the Apex Court has
held that

"an agreement of sale comes into existence when vender agrees to sell and vendee
agrees to purchase for an agreed consideration on agreed terms, may it be by way of
communication signed or unsigned, it may be a single document signed by both parties, it may also
be by a document in two parts, each party signing one part one copy and then exchanging, thus
both may have copies signed by other parties. It may also by vender executing the document and
delivering it to purchaser, who accepts it. Even an oral agreement to sell is valid, then, a written
agreement signed by one of the parties, if it evidences such an oral agreement will also be valid.
Mere form or manner of drafting of an agreement would not be a decisive factor, real intention and
conduct of parties in proceedings in terms of the same would decide, whether an concluded
contract came into existence or not."

28. In view of the above case law, if after consolidation tenure holder gets allotted
substantially the same plots in his Chak, without any material considerable or complete change, as
in this case, the relief for decree for specific performance of contract can be and should be granted
and should not be refused. It is pertinent to mention that there is nothing on record to show that the
plots in the Chak allotted to Smt. Ram Bitoli were different from those which were contracted
under the disputed agreement for sale. Further there is nothing to show that the plots agreed to be
sold under the disputed agreement for sale were allotted to some other persons during
consolidation, making the specific performance of contract impossible on account of its becoming
'contingent contract' or in view of provisions of Section 30 of U.P. Consolidation of Holdings Act
and Section 56 of Indian Contract Act.
7 All. Net Ram Vs State Of U.P.
479
29. It is not the case of defendants-appellants that the two courts below in arriving at above
findings, either failed to consider any material evidence on record or acted wrongly in relying or
misreading any inadmissible evidence. In absence of any such illegality or glaring mistake by the
courts below, the learned counsel for the defendants appellants has failed to show any manifest
error of fact and law or any perversity in the above concurrent findings of fact and there is no
sufficient ground for interfering with or setting it aside or displacing above findings. The learned
counsel for defendants-appellants have failed to show that disputed agreement is a 'Contingent
Contract' to do an impossible act within the purview of provisions of Sections 39 & 56 of Indian
Contract Act. Since there was no material change in allotment of plots to the tenure holder during
consolidation and the land agreed to be sold, remained same. The provisions of Section 30 of U.P.
Consolidation of Holdings Act do not come in the way of granting relief for specific performance
of contract and decreeing suit for such relief.

30. In view of the discussions made above, I have come to the conclusion that learned
counsel for the appellants has failed to show that the courts below have passed the decree for
specific performance of contract by splitting the contract or by way of apportionment, or the
specific performance of contract had become impossible due to any change of property/plots in
view of provisions of Section 30 of U.P. Consolidation of Holdings Act or Section 56 of Indian
contract Act or that the plaintiff was not ready and willing to perform her part of contract and the
suit was hit by provisions of Section 16 (C) of Specific Relief Act.

31. All the three substantial questions of law framed for disposal of this appeal are liable to
decided against the defendants-appellants. The appeal has no merits and is liable to be dismissed
with costs.

32. The appeal is dismissed with costs. The impugned judgment and decree are affirmed.

33. After preparation of decree, let the record be sent to court below at earliest.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.07.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.
THE HON'BLE VIPIN SINHA, J.

Criminal Appeal No.- 613 Of 1983

Net Ram ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant: