Case Note & Summary
The respondent (original plaintiff) and his five sisters were co-owners of agricultural land bearing Gat No.122 admeasuring 27 Ares at Village Marnewadi, Taluka Mulshi, Dist. Pune. On 6th January 2004, the appellant (original defendant) and the respondent entered into an agreement to sell the suit property for a total consideration of Rs.1,08,000/- (at Rs.4,000/- per Ares). The respondent handed over possession of the suit land to the appellant, and the appellant paid Rs.98,000/- out of the agreed consideration. The agreement provided that the excess land would be measured and purchased at the same rate. The respondent appointed a private surveyor for measurement, which revealed the land to be 34 Ares. The appellant objected, insisting on measurement by a government demarcation officer and refused to pay the balance consideration. The respondent filed a suit for possession and recovery of the balance amount. The trial court partly decreed the suit, directing the respondent to deposit Rs.1,08,000/- in court and the appellant to hand over vacant possession. The first appellate court dismissed the appellant's appeal. In the second appeal under Section 100 CPC, the High Court held that the respondent had demonstrated readiness and willingness to perform his part, as he had taken steps for measurement and was willing to accept the balance. The appellant's objection to private survey was not a valid ground to deny specific performance. The concurrent findings of fact did not raise any substantial question of law, and the appeal was dismissed.
Headnote
A) Specific Performance - Readiness and Willingness - Agreement to Sell - The respondent-plaintiff, co-owner of suit land, entered into an agreement to sell with the appellant-defendant for Rs.1,08,000/- and received Rs.98,000/- as part payment. The respondent filed a suit for possession and balance consideration after the appellant failed to pay the remaining amount and objected to measurement by a private surveyor. The trial court decreed the suit directing the respondent to deposit Rs.1,08,000/- and the appellant to hand over possession. The first appellate court confirmed the decree. The High Court held that the respondent was always ready and willing to perform his part, as he had taken steps for measurement and was willing to accept the balance amount. The appellant's objection to private survey was not a valid ground to deny specific performance. (Paras 1-10)
B) Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court found that the concurrent findings of fact by the courts below were based on proper appreciation of evidence and did not give rise to any substantial question of law. The appeal was dismissed at the admission stage. (Paras 11-14)
Issue of Consideration
Whether the appellant (defendant) has made out any substantial question of law under Section 100 of the Code of Civil Procedure, 1908 to interfere with the concurrent findings of the courts below regarding readiness and willingness of the respondent (plaintiff) to perform his part of the contract.
Final Decision
The High Court dismissed the second appeal, holding that no substantial question of law arose. The concurrent findings of the courts below were upheld. The appellant was directed to hand over possession of the suit land to the respondent upon the respondent depositing Rs.1,08,000/- in the trial court.
Law Points
- Specific performance
- readiness and willingness
- agreement to sell
- part performance
- measurement of land
- private surveyor
- balance consideration
- concurrent findings
- second appeal
- substantial question of law
Case Details
2016 LawText (BOM) (08) 143
Second Appeal No. 223 of 2015 with Civil Application No.460 of 2015
Mr.Pramod Pawar for the Appellant, Mr.Avinash Avhad for the Respondent
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Nature of Litigation
Second appeal under Section 100 of the Code of Civil Procedure, 1908 against concurrent decrees for possession and balance consideration in a suit for specific performance of an agreement to sell agricultural land.
Remedy Sought
The appellant (original defendant) sought to set aside the judgment and decree of the first appellate court and the trial court which directed him to hand over possession of the suit land to the respondent upon deposit of Rs.1,08,000/- by the respondent.
Filing Reason
The appellant challenged the concurrent findings of the courts below on the ground that the respondent was not ready and willing to perform his part of the contract, and that the measurement of land by a private surveyor was not valid.
Previous Decisions
The trial court (4th Joint Civil Judge, Senior Division, Pune) partly decreed the suit on 31st March 2011, directing the respondent to deposit Rs.1,08,000/- and the appellant to hand over possession. The first appellate court (District Judge-2, Pune) dismissed the appellant's appeal on 21st February 2015.
Issues
Whether the respondent (plaintiff) was ready and willing to perform his part of the agreement to sell?
Whether the appellant's objection to measurement by a private surveyor was a valid ground to deny specific performance?
Whether the concurrent findings of fact give rise to any substantial question of law under Section 100 CPC?
Submissions/Arguments
Appellant argued that the respondent failed to sign the application for measurement by a government demarcation officer, and thus the respondent was not ready and willing to perform his part.
Appellant contended that the measurement by a private surveyor was not binding and the respondent had not paid the balance consideration.
Respondent argued that he was always ready and willing, had taken steps for measurement, and was willing to accept the balance amount. The appellant's objection to private survey was unreasonable.
Ratio Decidendi
In a suit for specific performance, the plaintiff must demonstrate readiness and willingness to perform his part of the contract. The plaintiff's willingness to get the land measured and to accept the balance consideration, coupled with the defendant's failure to pay the balance and unreasonable objection to measurement, establishes the plaintiff's readiness and willingness. Concurrent findings of fact on such issues do not give rise to a substantial question of law under Section 100 CPC.
Judgment Excerpts
By this appeal filed under section 100 of the Code of Civil Procedure, 1908, the appellant (original defendant) has impugned the judgment and decree dated 21st February, 2015 passed by the learned District Judge -2, Pune dismissing the Civil Appeal (322 of 2014) filed by the appellant.
The respondent and his five sisters are admittedly the co-owners of the suit land bearing Gat No.122 admeasuring 27 Ares situated at Village Marnewadi, Taluka Mulshi, Dist. Pune.
It was the case of the appellant that unless the respondent would have signed on an application for taking measures by the demarcation measurement officer, the said property could not have been measured.
Procedural History
The respondent filed a suit for possession and balance consideration in the court of 4th Joint Civil Judge, Senior Division, Pune. The trial court partly decreed the suit on 31st March 2011. The appellant appealed to the District Judge-2, Pune, who dismissed the appeal on 21st February 2015. The appellant then filed the present second appeal under Section 100 CPC in the Bombay High Court, which was heard and dismissed on 16th August 2016.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
