Beermati Devi v. Chandan Singh & Ors

judgment in the suit filed by respondent/defendant No.1 and his wife and which contempt petition was dismissed holding the construction on the property to be old; the said judgment of dismissal of contempt petition had also attained finality; (xiv) that there was no explanation, as to why the appellant/plaintiff did not sue for specific performance immediately after issues were framed on 6th February, 1981 in the suit filed by the respondent/defendant No.1 and his wife and waited for 20 years to file the suit for specific performance; (xv) that the respondent/defendant No.8 could not pass a better title to the appellant/plaintiff than what she herself had; (xvi) that for all the aforesaid reasons, it was not a fit case for grant of relief of specific performance. However, the First Appellate Court passed a decree in favour of the

appellant/plaintiff and against the respondent/defendant No.8, of recovery of Rs.30,000/- with interest @ 7% per annum.

¶15The judgment of the First Appellate Court is a very well-reasoned judgment and the First Appellate Court has given all possible reasons which could have been given in the facts and circumstances of the case.

¶16The counsel for the appellant/plaintiff, on being asked to show the evidence led of possession, has only drawn attention to page 114 of the paper book, being the affidavit by way of examination-in-chief of the appellant/plaintiff, where certified copies of bills of building material and photographs of the property were tendered in evidence. However, the appellant/plaintiff has not deemed it appropriate to file the said documents on record. Obviously, according to the appellant/plaintiff also, the said documents do not prove possession of the appellant/plaintiff of the property at any point of time.

¶17Rather, I had also enquired from counsel for appellant/plaintiff, whether not the order dated 1st December, 2010 in RSA No.189/2001 reproduced hereinabove does not set aside the judgment against which that Regular Second Appeal was preferred and is a case of withdrawal simpliciter by the appellant/plaintiff of the appeal.

¶18I may also mention that it has been held by this Court in (a) Shikha Misra Vs. S. Krishnamurthy 2014 SCC OnLine Del 1565, appeal whereagainst was dismissed vide judgment reported in Shikha Misra Vs. S. Krishnamurthy (2016) 227 DLT 66 and SLP(C) No.24899/2016 preferred whereagainst was dismissed on 5th September, 2016; (b) Sushila Devi Vs. Adeline D. Lall 2013 SCC OnLine Del 4991, SLP(C) No.5254/2014

preferred whereagainst was dismissed on 14th March, 2014 and Review Petition (Civil) No.1297/2014 preferred whereagainst was also dismissed on 31st July, 2014; (c) Ansal Properties and Industries Pvt. Ltd. Vs. Ratnu 2013 SCC OnLine Del 4532, SLP(C) No.4820/2014 preferred whereagainst was dismissed on 10th March, 2014; and, (d) Surinder Singh Vs. Surbir Singh 2014 SCC OnLine Del 550, that even where under an Agreement to Sell no time for performance is fixed, the purchaser is required to act diligently and seek specific performance within reasonable time and cannot afford to, inspite of such challenges as being made to his possession in pursuance to Agreement to Sell, sit quietly and choose the date for approaching the agreement seller for the first time. For that reason alone, in my opinion, the appellant/plaintiff has rightly been held to be disentitled from claiming the relief of specific performance.

¶19It is also the contention of the counsel for the appellant/plaintiff that the learned First Appellate Court has wrongly applied Section 20 of the Specific Relief Act. It is argued that under Section 20 of the Specific Relief Act, the factors between the agreement purchaser and agreement seller are to be waived and in the present case extraneous factors have been considered.

¶20No merit is found in the aforesaid contention. Clause (a) of Section 20(2) entitles the Court not to decree specific performance where other circumstances in which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant. Similarly, Clause (c) of Section 20(2) also requires the Court not to decree specific performance where the defendant entered into the

contract under circumstances which make it inequitable to enforce specific performance.

¶21Here obviously, there was a title dispute between respondent/defendant No.1 and his wife and the respondent/defendant No.8 with respect to the property of which Agreement to Sell is claimed and as rightly held by the First Appellate Court, it has been conclusively held in the judgment in the suit filed by the respondent/defendant No.1 and his wife that the said respondent/defendant No.1 and his wife were in possession of the property since 1978. The same casts a cloud of doubt over the Agreement to Sell dated of 20th December, 1980 under which the respondent/defendant No.8 has purported to hand over possession of the property to the appellant/plaintiff.

¶22No other argument has been raised.

¶23No substantial question of law arises.

¶24Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J. AUGUST 21, 2018 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 21st August, 2018. + RSA No.117/2018 BEERMATI DEVI ..... Appellant Through: Mr. Mukesh M. Goel and Ms. Arti Rawat, Advs. Versus CHANDAN SINGH & ORS ..... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.33677/2018 (for exemption) 1. Allowed, subject to just exceptions. 2. The application is disposed of. RSA No.117/2018 & CMs No.33678/2018 & 33679/2018 (for condonation of delay of 324 days in filing and 53 days in re-filing the appeal respectively) 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 28th March, 2017 in RCA DJ No.60903/2016 of the Court of Additional District Judge-08 (West)] in First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 4th October, 2013 in Suit Old No.678/2000 and New No.406/2011/02 of the Court of Senior Civil Judge (West)] of dismissal of the suit filed by the appellant/plaintiff against the eight respondents/defendants. 4. The appeal is accompanied with applications for condonation of delay of 324 days in filing thereof and 53 days in re-filing thereof. 5. However, the question of considering the condonation of delay would arise only if there were to be any merit, worth entertaining this Regular Second Appeal which can be entertained only if raises a substantial question of law. Else, if there were to be no merit, notice cannot be issued only to consider the applications for condonation of delay and thereby conduct a fruitless exercise. 6. The counsel for the appellant/plaintiff has thus been heard and the copies of the relevant Trial Court record annexed to the memorandum of appeal perused. 7. The appellant/plaintiff instituted the suit, from which this appeal arises, for specific performance, possession, mesne profits and injunction, pleading (i) that the respondent/defendant No.8, vide Agreement to Sell dated 20th December, 1988, agreed to sell a plot of land admeasuring 250 sq. yds. in Khasra No.599/92 situated in Village Tehkhand Area, Delhi now known as 33-C, Gali No.1, Govindpuri, New Delhi to appellant/plaintiff; (ii) that the respondent/defendant No.8, besides the Agreement to Sell, also executed Will, Affidavit, Receipt, Power of Attorney, Possession Letter etc. in favour of the appellant/plaintiff/ (iii) that the respondent/defendant No.8 was the owner of the aforesaid plot of land vide registered Sale Deed dated 22nd July, 1966 executed in her favour by one Smt. Raj Karni wife of Moti Ram; (iv) that the respondent/defendant No.8, on 20th December, 1980, also put the appellant/plaintiff into vacant, peaceful physical possession of the land agreed to be sold and received the entire sale consideration of Rs.30,000/- from the appellant/plaintiff; (v) that the appellant/plaintiff constructed a boundary wall and a gate around the aforesaid plot of land; (vi) that the respondent/defendant No.1 and his wife, with a mala fide intention to grab the aforesaid property, instituted a suit for permanent injunction against the appellant/plaintiff with respect to the aforesaid property, claiming to be the owner thereof; (vii) that the appellant/plaintiff contested the said suit; (viii) that the said suit was however decided against the appellant/plaintiff on 8th September, 1988; (ix) that the appellant/plaintiff preferred a First Appeal against the aforesaid judgment and which appeal was pending consideration; (x) that the respondent/defendant No.1 and his wife, under the garb of the interim order in the suit filed by them, forcibly dispossessed the appellant/plaintiff from possession of aforesaid property; (xi) that wife of respondent/defendant No.1 had since died leaving respondents/defendants No.1 to 7 as her heirs; (xii) that the respondent/defendant No.8, though earlier had been assuring the appellant/plaintiff that she will, in pursuance to the Agreement to Sell, execute the