DHEERAJ DEVELOPERS P.LTD Vs. DR.OM PRAKASH GUPTA AND ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1672 of 2016, Judgment Date: Feb 23, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1672 OF 2016
(Arising out of S.L.P.(C) No.38616 of 2012)
DHEERAJ DEVELOPERS PRIVATE LIMITED Appellant(s)
Versus
DR. OM PRAKASH GUPTA AND OTHERS Respondent(s)
W I T H
CIVIL APPEAL NO.1673 OF 2016
(Arising out of S.L.P.(C) No.39155 of 2012)
KAILASH AGARWAL AND OTHERS Appellant(s)
Versus
OM PRAKASH GUPTA AND OTHERS Respondent(s)
CIVIL APPEAL NOS.1674-1675 OF 2016
(Arising out of S.L.P.(C) Nos.34813-34814 of 2014)
ANURADHA AGRAWAL Appellant(s)
Versus
OM PRAKASH AND OTHERS Respondent(s)
J U D G M E N T
KURIAN, J.
1. We have heard learned counsel for the parties.
2. Delay condoned.
3. Leave granted.
4. By the impugned judgment, the High Court in First Appeal, against the
judgment dated 8th April, 2005 in Civil Suit No. 93A/1996 (renumbered Civil
Suit No. 20A/2001; 6A/2003) on the file of the VIII Additional District
Judge, Gwalior, reversed the decree for specific performance.
5. The Trial Court had framed the following issues :-
|S.No | ISSUE | CONCLUSION |
|1. |Whether defendant No.1 executed agreement to |Unproved |
| |sell of suit land in favour of plaintiffs in the| |
| |year 1975? | |
|2. |Whether defendant No.1 had executed fresh |Unproved |
| |agreement to sell of suit land in favour of | |
| |plaintiffs on 15.1.1989 as prices of suit land | |
| |had risen and a mutual compromise had arrived | |
| |between plaintiffs and defendant No.1? | |
|3. |Whether plaintiffs are entitled to get the sale |No |
| |deed of suitland 5 Bigha having satiated the sum| |
| |of Rs. Two lakh Eighteen thousand to defendant | |
| |No.1 according to the agreement to sell dated | |
| |15.01.1989 and to get the vacant possession of | |
| |suit land? | |
|4. |Whether suitland is government land due to which|Unproved |
| |plaintiffs have not got the right to | |
| |sell/transfer the same? | |
|5. |Whether plaintiffs did not issue notice under |Suit was instituted |
| |Section CPC to defendant No.2? If yes, then its |having obtained |
| |effect? |permission from the |
| | |Court. |
|6. |Whether defendants Nos. 3 to 11 are bonafide |Proved. |
| |purchasers of suitland? If yes, then its effect?|Plaintiffs are not |
| | |entitled to get the |
| | |relief sought. |
|7. |Whether plaintiffs have undervalued the suit |No |
| |land have satiated deficient court fee? If yes, | |
| |then its effect? | |
|8. |Relief and cost? |Suit dismissed. |
Additional issue :
|9. |Whether an order dated 24.01.1996 passed in the |No |
| |suit No. 41A/95 bears the effect of res judicata| |
| |in this case? If yes, then its effect? | |
All the issues were answered against the plaintiffs.
6. On re-appraisal of the evidence, the High Court took the view that
Exhibit P-1 was genuine and therefore, decreed the suit. It will be
appropriate to incorporate herein the following paragraph as also the
decreetal portion of the impugned judgment passed by the High Court :-
“21. Learned counsel for the respondents have pointed during argument that
agreement Exhibit P-1 is a suspicious document looking to the other
agreement Exhibit D-13 in which rate of suit land has been mentioned as
2.50 rupees per square ft. But this agreement has been written on plain
paper that put on 15.01.1989 and not signed by consenting parties who have
signed the agreement Exhibit P-1 on the same day. Therefore, in the
absence of signatures of any witness or consenting party agreement Exhibit
D-13 cannot be relied, even the agreement Exhibit P-1 which is signed not
only by the parties but also by the witnesses and family members of
defendant No.1 who have given their consent for the agreement. Learned
counsel appearing for the respondents have also raised certain objections
for disbelieving the agreement Exhibit P-1 but considering the fact that by
Exhibit D-10, defendant No.1 Harcharan Singh has admitted the execution of
agreement Exhibit P-1 and even after admission and having knowledge about
document Exhibit P-1 he has not taken any step against the appellants for
fabrication of document Exhibit P-1. This fact along with admission of
defendant No.1 shows that agreement Exhibit P-1 is a genuine document. It
cannot be disbelieved on the ground that notice in the paper regarding
agreement mentioning different date of agreement as the execution and
contents of agreement Exhibit P-1 has been admitted by defendant No.1 in
Exhibit D-10, therefore, evidence against such admission before the trial
Court which contained detailed postmortem of agreement Exhibit P-1 on
several grounds cannot be confirmed looking to the admission of defendant
No.1 in Exhibit D-10 which has not been considered by learned trial Court
while doing microscope surgery of the agreement Exhibit P-1.”
“24. Therefore, the judgment passed by the learned trial Court is hereby
set-aside and the appeal filed by the appellant is hereby allowed. The
suit filed before the learned trial Court is allowed in favour of sole
appellant Dr. Om Prakash Gupta as under :-
(A) Respondent/defendant No.1 is directed to execute the sale-deed of 5
bighas of land Survey No. 792/3-4 according to agreement dated 15.01.1989
after taking consideration of Rs.2,18,000/- @ Rs.2/- per swuare ft.
(according to agreement) and hand over the vacant possession of the above
land to the plaintiff/appellant Dr. Om Prakash Gupta. If the defendant
No.1 fails to execute the sale deed within 30 days after deposit of payment
of consideration amount to him or to deposit in the trial Court, the trial
Court shall execute the sale deed in favour of appellant/plaintiff Dr. O.P.
Gupta.
(B) Since sale deed of above mentioned suit land have been executed by
defendant No.1 during pendency of the suit and purchasers are not bonafide
purchasers, therefore, the sale deed by law executed by defendant No.1 in
favour of respondent Nos. 2, 3 to 11 are hereby declared null and void.
(C) The respondent No.1 shall pay the cost of appellant and the
respondents shall bear their own cost.
(D) Counsel fee be calculated according to the rules if pre-certified.”
7. We have referred to the factual matrix only to a very limited extent
for the reason that the High Court apparently has gone wrong in decreeing
the suit only on the basis of the finding on genuineness of Exhibit P-1
document. It should have been borne in mind that suit was for specific
performance and obviously there were also several other aspects of the
matter including the aspect of readiness and willingness which required
consideration by the High Court.
8. In that view of the matter, we allow these appeals, set aside the
impugned judgment and remit the First Appeal No. 174 of 2005 to the High
Court.
9. Needless to say that the appeal(s) are to be heard afresh. The
parties are free to urge all available contentions under law, before the
High Court.
10. It is made clear that we have not expressed any opinion on the merits
of the case including the validity or genuineness of documents as also on
the readiness and willingness aspect and it is for the High Court to
consider all those aspects.
11. No order as to costs.
........................J.
(KURIAN JOSEPH)
........................J.
(ROHINTON FALI NARIMAN)
New Delhi,
February 23, 2016
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