# U.P v. Kamal Kishore Saini 1998

- **Citation:** (2001) 2 ILRA 159
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-11-15
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-v-kamal-kishore-saini-1998-39249
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001

159
U.P. Vs. Kamal Kishore Saini 1998
S.C.C. (Crl.) 107 and M. Ahmedkutty vs.
Union of India 1990 S.C.C.. (Crl.) 258
this argument has also to succeed.

10. We need not go into other
arguments of the learned counsel as the
writ petitions succeeds on the above
grounds.

11. The petitions are allowed. The
impugned
detention
orders
dated
15.11.2000 are quashed. The petitioners
shall be released forthwith unless he is
required in some other criminal or
preventive detention case.

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By the Court

1. This Second Appeal has been
directed against the judgement and decree
dated 24.8.1998 passed by 2nd Additional
District
Judge,
Moradabad
in Civil
Appeal No. 70 of 1995 dismissing the
appeal and confirming the judgment and
decree of 1st Additional Civil Judge,
Moradabad dated 25.04.1994 passed in
Original Suit No. 1062 of 1991 decreeing
the suit of respondents for specific
performance of contract.

2. Kunwar Pal Singh and Chandra
Pal Singh respondents (herein after called
plaintiff) jointly filed Original Suit No.
1062 of 1991 against the appellant (here
in after called 'defendant') for specific
performance of contract dated 20.11.1990
after
receiving
remaining
sale
consideration amounting to Rs.5000/- and
in the alternative refund of earnest money
amounting to Rs.35000/- along with
interest at the rate of Rs.17% P.A. The
case of plaintiffs in brief, was that the
defendant was owner Bhumidhar of plot
no. 124/1 area 3.13 acre. He agreed to sell
the above plot in favour of plaintiffs for a
consideration of Rs.40,000/- and in lieu of
it executed a registered agreement to sell
on 20.11.1990 after receiving a sum of
2All] Ratan Pal Singh V. Kunwar Pal Singh and another

160
Rs.35,000/-
as
earnest
money.
He
promised to execute the sale deed by
30.11.1991 after receiving remaining sale
consideration. The plaintiffs reminded the
defendant several times to execute sale
deed by appearing on 30.11.1991 before
the
office
of
the
Sub
Registrar,
Chandausi. But the defendant did not
appear to execute the sale deed in
pursuance of agreement, hence the suit.

3. The defendant filed written
statement and contested the suit. His
defence was that he never executed any
agreement to sell nor received any sale
consideration from the plaintiffs. He also
denied receipt of any notice. He further
contended that the plaintiffs were well
known
to
him
from
before.
They
approached him on 19.11.1990 to become
surety of one of their relative and in that
connection extract of Khatauni relating to
him (defendant) was also required. The
defendant went to Tahsil. Chandausi
alongwith plaintiffs on 20.11.1990. Gajju
Singh and Jodha Singh also met him
there. They got seated him in the Office
of Munsif, Chandausi and after some time
brought a written paper and obtained his
signature on it and also got affixed his
photograph over it. The contents of
document had not been read over and
explained to him. They also took him
before an officer and obtained his thumb
impression there. Thereafter they sent him
to his house saying that the bail had been
granted. The defendant had no necessity
to sell his plot and the price of land in the
area at relevant time was not less than of
Rs. One lac.

4. It was further contended that
defendant had taken loan from UCO Bank
for plantation of Popular plants and had
mortgaged /hypothecated the plot in suit
with the above bank in lieu of the said
loan and therefore, no agreement to sell in
respect of land in suit could be executed.

5. The learned Additional Civil
Judge framed necessary issues arising out
of pleadings of the parties and on
considering the evidence of the parties
held that the plaintiffs has successfully
proved that the defendant agreed to sell
the plot in suit in their favour for a
consideration of Rs.40,000/- and in lieu of
it
executed
agreement
to
sell
on
20.11.1990 after receiving a sum of
Rs.35,000/-
as
earnest
money.
The
plaintiffs were ready and willing to
perform their part of agreement. He
further held that though it had been shown
that the land in suit was hypothecated
with the UCO Bank, but there was no
evidence on record to show that the
plaintiffs had knowledge about it and the
said hypothecation was also not registered
and this fact was concealed from the
plaintiffs. With these findings the Trail
Court decreed the suit for specific
performance of contract.

6. Aggrieved with the above
judgement and decree the defendant
preferred Civil Appeal No. 70 of 1995.
The learned 2nd Additional District Judge,
Moradabad, who decided the appeal,
concurred with findings recorded by the
Trail Court holding that the above
findings were based on evidence on
record. Accordingly, he dismissed the
appeal.

7. The above judgement of the
Appellate Court has been challenged in
this Second Appeal.

8. Heard learned counsel for the
parties and perused the record.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

161
9. The first contention of the learned
counsel for the appellant was that the
agreement ot sell was obtained by fraud
under the pretext that the defendant was
executing a surety bond. In order to prove
the execution of agreement deed the
plaintiffs had examined Kunwar Pal
Singh
plaintiff
(P.W.11)
attesting
witnesses of the deed Gajju Singh (P.W.2)
and Jodha Singh (P.W.3) and also relied
on registered agreement to sell dated
20.11.1990. The Trail Court meticulously
scrutinised
the
evidence
of
above
witnesses as well as the evidence of
defendant Ratan Pal (D.W.3). He had also
taken into consideration the facts and
circumstances of the case. He relied on
the evidence of the plaintiff Kunwar Pal
Singh (P.W. 1) and his witnesses Gajju
Singh (P.W.2) and Jodha Singh (P.W.3)
and also had taken into consideration the
fact that the agreement to sell was
produced before the Sub Registrar who
made enquiry about payment of earnest
money from the defendant who accepted
the same and recorded a finding of fact
that
defendant
executed
deed
dated
20.11.1990
knowing
that
he
was
executing agreement to sell his property
for a consideration of Rs.40,000/- and
received earnest money amounting to
Rs.35,000/-. The First Appellate Court on
reappraisal of the evidence concurred
with the above finding of the evidence
recorded by the Trail Court. Both the
Courts below have disbelieved the case of
the defendant that he had executed only
surety bond. The above findings of fact
recorded by the Courts below are based
on evidence on record and do not suffer
from perversity. Therefore, the above
concurrent findings of fact can not be
interfered with in this Second Appeal.

10. The next contention of the
learned counsel for the appellant was that
the
land
in
suit
was
previously
hypothecated with the UCO Bank in lieu
of loan taken by the defendant for
plantation of Popular plants and this fact
had been proved by his witnesses Tej
Narain Mehrotra (D.W.1) and therefore,
no agreement to sell could be executed as
the property was already under the
mortgage. The Trail Court has held that
the factum of mortgage was not known to
the plaintiffs nor there was any evidence
to show that the defendant disclosed this
fact to them. It further held that mortgage
deed was not registered and therefore,
there could be no presumption of its
notice to the plaintiffs. The first Appellate
court held that the alleged pledge of the
land with the UCO Bank prior to alleged
agreement to sell had no effect on the
agreement to sell.

11. The mortgage has been defined
under Section 58 of the Transfer of
Property Act, which read as under:

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The mortgage may be a simple or by
conditional sale or by deposit of titledeed.

12. According to evidence of Tej
Narain Mehrotra, Manager of UCO Bank
(D.W.1) the defendant had taken loan of
Rs.78650/- on 13.08.1990 and in lieu of it
2All] Ratan Pal Singh V. Kunwar Pal Singh and another

162
hpothecated his plot nos. 115 and 124/1.
There is nothing on record to show that
the plaintiffs had knowledge about the
above mortgage. Assuming that the
property in question was hypothecated or
mortgaged with the UCO Bank in lieu of
loan, the title or property in question was
not transferred to the bank and it
remained with the defendant. The above
hypothecation or mortgage simply created
a charge over the property and it's effect
was that the UCO Bank had 1st charge
over the property for realisaiton of debt
and nothing more that it. The above
hypothecation mortgage in any way did
not create any bar in execution of
agreement to sell or transfer of the
property by the defendant. More over the
plaintiffs had no knowledge of the said
hypothecation and obtained agreement to
sell for consideration. The learned counsel
for the appellant also could not show any
provision
of
law
under
which
the
defendant was debarred from executing
agreement to sell in view of the previous
hypothecation of the property in favour of
UCO Bank. Therefore, hypothecation was
no bar to execute agreement to sell.

13. Lastly, it was contended by the
learned counsel for the appellant that the
plaintiffs had sought an alternative relief
for refund of earnest money and therefore,
the relief for specific performance which
was a discretionary relief should have not
been granted and instead of it the
plaintiffs
would
have
been
granted
alternative relief for refund of earnest
money. In support of the above contention
he placed reliance of Apex Court decision
in "Kanshi Ram Vs. Om Prakash Jawal
and others, 1996 (28) A.L.R. 111".

14. I have gone through the above
decision. It was held in the said case that
the rise in prices of the property during
the pendency of the suit may not be the
sole consideration of refusing to decree
the suit for specific performance. But it is
equally settled law that granting decree
for specific performance of a contract of
immovable property is not automatic. It is
one of discretion to be exercised on sound
principles. When the court gets into
equity jurisdiction, it would be guided by
justice, equity, good conscience and
fairness to both the parties. Considered
from this perspective, in view of the fact
that the defendant had claimed alternative
relief for damages to be thanked. The
Apex Court held that the court would
have been well justified in granting
alternative decree for damages of Rs.10
lacs, while the sale consideration was
Rs.16,000/-. In the above case law no
principle was laid down that the decree
for specific performance should not be
granted and only the relief for damages
will be equitable relief in a suit for
specific performance. In view of peculiar
facts and circumstances of the said case
the Apex Court granted alternative relief
for damages for a sum of Rs.10 Lac,
while
sale
consideration
was
only
Rs.16,000/-. The appellant in this case
could not show any circumstance by
which the relief for specific performance
could be refused and instead of it relief
for refund of earnest money only be
granted. The contention of the learned
counsel for the appellant was that since
alternative relief of refund of earnest
money has been sought therefore, only
that relief could be granted has no force in
view of the facts and circumstances of the
case. No basis of above contention could
be shown and therefore this Court is not
persuaded to accept the above contention.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

163
15. In this way, I find that point in
controversy in this appeal have been
concluded by concurrent findings of the
fact. No substantial question of law is
involved in this appeal. The second
appeal has, therefore,, no force and liable
to be dismissed.

16. The appeal is, accordingly,
dismissed summarily. There is no order as
to costs.

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By the Court

1. This second appeal has been filed
against the judgment and decree dated
29.08.2000 passed by XIIIth Additional
District Judge, Allahabad in Civil Appeal
No. 88 of 1998. The facts giving rise to
this appeal are as follows:

2. The suit was filed by the
respondent no. 1 against the appellant and
other respondents for the relief of
declaration and cancellation of sale deed
dated
20.02.1981
registered
on
05.06.1981 executed by the respondent
no. 4 in favour of the appellant regarding
house no. 262 (New), 247 (Old) situated
in Dondipur, Allahabad. In brief the facts
of the case are as follows:

3. One Abdul Khaliq had two sons,
namely, Abdul Sadiq and Abdul Mazeed.
The respondent no.1 is the wife of Abdul
Mazeed, Maqbool Alam was son of
Abdul Sadiq. It is alleged by the plaintiff
that Abdul Sadiq remained in India during
his life time and died on 03.01.1961.
Maqbool Alam alongwith his family
migrated to Pakistan in the year 1951 and
died in Pakistan in the year 1980. That
Abdul Sadiq was living with his brother