- (1.) THIS is a second appeal by defendants Fatehsingh, Mukand Singh and Ganpatsingh, and has arisen out of a suit for specific performance of an agreement of sale of agricultural land. Plaintiff-respondents Gopi and Moti of Anop Pura filed a suit against the defendant-appellants in the Court of Munsif, Jaipur Districts Jaipur, with the following allegations.
(2.) THE defendant-appellants were Khatedar tenants of holding Khasra No. 241 measuring 5 Bighas 11, Biswas called by the name "bagahali" in village Jhund, Tehsil Sanganer. That on Bhadwa Sudi 6, Samvat 2016 corresponding to 24th of September, 1959, the defendants sold the holding mentioned above to the plaintiffs for a sum of Rs. 1,375/- and executed a writing in their favour. THE purchase money was paid over to the defendants-appellant and they agreed to execute a regular sale-deed and get it registered within a period of one month. It was also agreed between the parties that the defendants would be responsible for the expenses on account of stamps and registration. THE plaintiffs' case was that the defendants failed to execute the sale deed and in the meanwhile they started negotiations for the sale of the holding with one Ganesh. THE plaintiffs thereupon served a notice upon the defendants which was received by the defendants on 5th November, 1950. THE defendants did not care to reply to the notice. THE plaintiffs consequently filed a suit on 19th May, 1960 for specific performance of the contract. In the alternative, they prayed for the refund of the money paid to the defendants with interest together with damages amounting to Rs. 110/- calculated at the rate of Rs. 1/- per cent per mensem on the money paid to the defendants. The defendants contested the plaintiffs' suit. They denied that they entered into any contract with the plaintiff for the sale of any land. They also denied receipt of Rs. 1,375/ -. The defendants further pleaded that they had already sold the land to Ganesh son of Pura for Rs. 2,151/- on 31st March, 1957 and had handed over the possession to him. They further stated that a regular deed of sale was executed and got registered in favour of Ganesh on 27th May, 1960. On the pleadings of the parties, the trial court framed five issues but controversy between the parties having been confined to two issues they need only be reproduced - "1. Whether on 24. 8. 50 the defendants obtained Rs. 1,375/- and agreed to sell the disputed land and executed a writing for the same in favour of the plaintiffs and delivered oral possession? P 2. Whether the defendant failed to execute sale deed and get in registered and now whether the plaintiff is entitled to get decree according to O. 21, R. 34 C. P. C. or to get back in the alternative the amount of Rs. 1,375/ -. P The trial court after recording the evidence of the parties arrived at the following findings - 1. That the execution of the document Ex. I, the passing of the consideration of Rs. 1,375/thereunder and the delivery of the oral (symbolical) possession were proved. 2. That the document Ex. 1 embodied an outright and complete sale of the land and the defendants being khatedars could not effect an absolute transfer of their land and that being so, the agreement was not enforceable at law. The trial court consequently dismissed the plaintiff''s suit for specific performance of the contract but decreed it for damages amounting to Rs. 1,375/- plus interest. The defendants filed an appeal against the decree directing the refund of the amount to the plaintiffs. The plaintiffs filed cross objections claiming specific performance of the contract. The appeal and the cross objections were heard by the Senior Civil Judge, Jaipur District, Jaipur. The Senior Civil Judge agreed with the findings of the trial court with regard to the execution of the document as also with regard to the passing of the consideration and in the result dismissed the defendants' appeal. Considering the cross-objections of the plaintiff-respondents the trial court after referring to the terms of the sale deed concluded as follows - "what is transferred in fact is the Khatedari rights in the land and by mentioning that the land is sold for a particular sum will not amount to saying that there is absolute sale of the land. It is just a form of writing, if it is mentioned that the land is sold and it will not affect the substance the agreement whereby the rights and interest are transferred. " The appellate court also considered the various provisions of the Rajasthan Tenancy Act. Dealing with the transferability of the khatedari rights it held that the Act does not create an absolute bar against the transfer of khatedari rights. Sec. 42 of the Act prescribes certain conditions subject to which a sale or gift of the Khatedari rights can be effected. After considering the various provisions the court came to the conclusion that the defendants had not taken any plea in their written statement that the transfer was hit by the provisions of sec. 42 and this being so, the transfer of the land would not be invalid and unenforceable. On these findings the appellate court accepted the plaintiffs' cross-objections and passed a decree for specific performance of the contract in place of a decree for damages. The defendants have filed this second appeal. The appeal was heard by me in the first instance on 13th March, 1964. The hearing of the appeal was, however, adjourned as the appellants' counsel took some time to take instructions from his clients. However, on 24th March, 1964, when the hearing of the appeal was resumed, Mr. Garg submitted an application on behalf of Ganesh under O. 1 R. 10 (2) and sec. 151, Civil Procedure Code, praying that the applicant Ganesh might be made a party to the second appeal and he might be permitted to appear and support the appeal. I have heard Mr. Garg in support of this application and Mr. Agarwal on behalf of the respondents. Obviously the application was not entertainable under sec. 151, Civil Procedure Code. Mr. Garg thereupon submitted that the application was entertainable under O. 22, R. 10 Civil Procedure Code. In support of his submission, he relied upon principally Dr. Niranjan Nath vs. Sardar Mal (1) and Durga Prasad vs. Deep Chand (2 ). In the Rajasthan case (supra) an assignee pen' dente-lite applied to be added as a party. The trial court rejected his prayer. In revision the Court held that an assignee is bound by the decision against the assignor and therefore leave to substitute the assignee in place of the assignor should not be unreasonably refused, specially where the assignee is the only person who is really interested in conduct of the suit. In Durga Prasad's case (2) the Supreme Court actually considered the form decree which should be passed in a case where the suit is brought against a party agreeing to sell the property and a subsequent transferee from him. According to their Lordships, the proper form of the decree is to direct the specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. On the basis of these observations it was contended by Mr. Garg that the subsequent transferee should properly and reasonably be brought on record in order to pass a proper decree. These two cases, however, do not have much relevance in the facts of the present case. The Rajasthan case (1) is distinguishable on the ground that in the present case an application u/o. 22, R. 10 was not brought at the trial stage. The Supreme Court case (2) is also of not much help inasmuch as in the present case the subsequent transfer was made during the pendency of the litigation. The legal position appears to be concluded by a judgment of the Supreme Court Sm. Saila Bala Dassi vs. Sm. Nirmala Sundari Dassi (3) relied upon by Mr. Garg. In that case the Supreme Court clearly laid down that an application under O. 22, R. 10 Civil Procedure Code cannot be made to an appellate court when the transfer was made prior to the filing of the appeal. Even so, on the basis of the observations made in the Supreme Court case Mr. Garg contended that the applicant should be brought on record to support the appeal with the help of sec. 146, Civil Procedure Code. The facts in the Supreme Court case (3) were that the first respondent obtained a final decree against respondent No. 2 on the basis of a mortgage deed in his favour on April 20, 1936. On May 12, 1952 the second respondent sold the mortgage property to the appellant for a sum of Rs. 60,000/ -. The first respondent had not taken steps under R. 27 of Chapter 16 of the Original Side Rules of the Calcutta High Court. After the sale of the property to the appellant the respondent No. 1 took steps under R. 27 of Chapter 16 of the High Court Rules. The second respondent contested the application and prayed for the disposal of the application on the ground of limitation. The objection on the ground of limitation was overruled by a Single Judge of the Calcutta High Court. The respondent No. 2 then filed an appeal before the Division Bench. It was at that stage that the appellant submitted an application to be substituted as an appellant for the second respondent. This application was dismissed by the Division Bench, On an appeal under special leave, the Supreme Court allowed the appeal and directed the appellant to be added as a party. Considering the implications of sec. 146 Civil Procedure Code their Lordships observed as follows : - "we are not disposed to construe sec. 146 narrowly in the manner contended for by counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. " Their Lordships further observed that right to file an appeal must, therefore, be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims and the petition of the appellant to be brought on record as an appellant in an appeal must be held to be maintainable under sec. 146. Their Lordships further considered the merits of the applicant's claim and after emphasising certain facts considered the claim of the appellant justified on the merits. In the circumstances there can be no doubt that the application of Ganesh could be filed under sec. 146 Civil Procedure Code. 6. In opposing the application Mr. Agarwal contended that in the Supreme Court case (3) the appellant had made certain definite allegations of collusion between the respondent No. 2 and the respondent No. 1 and that the party principally affected was the appellant and it was in those peculiar facts that the appellant was allowed to be impleaded as a party to the appeal before the division Bench of the Calcutta High Court. In the present case, it was submitted by Mr. Agarwal that, there was no allegation of collusion between the appellant and the respondent as against the applicant. In fact, the appellant had been seriously supporting the appeal. Consequently, according to Mr. Agarwal there was no justification to permit Ganesh to be brought on record as an appellant or to intervene and support the appeal. Considering that the applicant might be found bound by the decree to be passed in this appeal, I thought it proper to permit Mr. Garg to address me in support to the appeal and consequently Mr. Garg was also heard by me in support of the appeal in addition to the arguments advanced by Mr. Bhargava on behalf of the appellants. On the merits, I first take up the case as propounded by Mr. Bhargava. Mr. Bhargava did not raise any controversy as to the execution of the sale deed by the appellants and the receipt of consideration by them. His only submission was that the sale deed was in respect of the land as such and was not in respect of the khatedari rights. Consequently, the transaction was illegal and could not be given effect to. He emphasised that the sale deed recited the sale of the land and that the plaintiffs in their own plaint also at many places referred to the sale of the land. Dealing with the statement in the sale deed that whatever rights the sellers had in the land will thereafter pass on to the vendee, Mr. Bhargava contended that that was only a customary expression used in the sale deed to provide for certain assurance and that expression should not be treated to alter the sale of land to one of the sale of khatedari rights only. Mr. Bhargava referred to Chunchan Jha vs. Ebadat Ali (4) where it was observed : "where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. " He also contended that in the case of latent ambiguity the proper course is to find out how the parties themselves treated the instrument. Continuing his argument, he contended that the plaintiffs themselves in the plaint at so many places treated the instrument as to create a sale of the land itself. There can be no controversy whatsoever with the principle laid down by the Supreme Court in connection with the interpretation of documents. Indeed if the language of a document is clear certainly no other extraneous considerations should enter in interpreting the document. But if the language of document is not express and clear and some ambiguity is experienced then it becomes necessary to remember an equally important principle that the courts of law should always labour to construe a document so as to validate it and not to invalidate it and the ambiguity in the language should be resolved in this light. Put in other words, one safe rule relating to interpretation of documents is that if a document is capable of two rival interpretations, one invalidating it and the other validating it, the court should always lean in favour of an interpretation validating the document. Examining the present case in the light of these principles it must be observed that the defendants were merely Khaleda-tenants of the land in dispute. They had no proprietary rights in the land and, therefore, there could be no question of their attempting to sell the land. It is not infrequent that in an instrument of transfer of "interest in land" the term "land is sometimes loosely used for" interest in land" and I think it is in this loose manner that the term "land" has been used in the sale deed Ex. 1. A further recital in the sale deed that whatever rights the vendors had would thereafter pass on to the vendees makes the position perfectly clear and it appears that the defendant-vendors purported to transfer their khatedari rights to the plaintiff-vendees. Now, examining the pleadings of the parties, it may be mentioned that the plaintiffs in the first paragraph very clearly mentioned that the defendants were khatedari-tenants of land. This gives a clear clue of the plaintiff's claim under the sale deed. No doubt, at some places in the plaint there is a reference to the sale of the land but that appears to be an instance of a loose language and cannot be given undue weight. Finally, in the prayer the plaintiffs claimed a decree for land as mentioned in para 1 of the plaint which recites defendants as khatedar-tenants in respect of the land and not absolute owners of the land. Considering the plaint as a whole, I am not prepared to accept the argument of Mr. Bhargava that the plaintiffs themselves interpreted in the pleading the sale deed as creating an absolute transfer of land. This being so the principle that an interpretation put on by the parties themselves should be treated as the best guide has no relevance and importance in the present case. After considering the language of the sale-deed, title and the possession of the defendants and the surrounding circumstances, and considering the language of the plaint I have no hesitation in agreeing with the first appellate court that the defendant-vendees purported to transfer only knatedari rights and not the land as such. The sale deed, therefore, did not suffer from any illegality. It is true that the khatedari rights are transferable by sale only under certain conditions as given in sec. 42 of the Rajas than Tenancy Act. The defendants, however, took no plea whatsoever that the transfer of the khatedari rights was in contravention of any of the provisions of the Rajasthan Tenancy Act and therefore the transfer could not be objected to even on the basis of sec. 42 of the Rajasthan Tenancy Act. There is no force in the contention of Mr. Bhargava. I now deal with the submission made by Mr. Garg. The additional submissions made by Mr. Garg were that since the plaintiff-respondents in spite of having learnt that the land had been sold to Ganesh during the pendency of the litigation, did not take any action to bring on record Ganesh and, therefore, the plaintiff-respondents should not be considered entitled to the relief of specific performance which is in the very nature discretionary. Mr. Garg further submitted that subsequent to the dismissal of the plaintiffs' suit for specific performance by the trial court, the members of the plaintiff-respondents' party took law into their own hands and attempted to forcibly take possession of the land. In that attempt they were alleged to have committed an offence of murder. Some of them were prosecuted for that offence and some of them were convicted for various offences. In view of this subsequent conduct of the plaintiff-respondent they should be held disentitled to the discretionary relief of specific performance. In this connection it was emphasised that the plaintiff-respondents seeking relief in enquiry should have kept their hands clean. The first point submitted by Mr. Garg does not deserve any serious consideration. Under O. 22, Rule 10 Civil Procedure Code the assignee can obtain the leave of the court and get impleaded as a party. It is not applicant Ganesh's case that he never knew of the pendency of the suit in time. He took no steps himself to be brought on record. The transfer having been made by the defendant-appellants during the pendency of the litigation the plaintiffs relying upon the doctrine of lis pendens was under no obligation to bring on record the applicant. The applicant himself having remained inalert cannot now be permitted to come forward and challenge the decree of specific performance on the ground of the omission of the plaintiff-respondents to bring him on record. The second submission does not raise a pure question of law. For a proper decision of the submission made on behalf of the applicant it is necessary to hold an enquiry into the allegations made by the applicant. The offences alleged to have been committed by some members of the plaintiff-respondents' party were committed in the year 1961. More than three years have passed and it will be hardly proper and desirable to launch an enquiry into these allegations only for the purpose of determining whether the plaintiff-respondents conduct should be treated to have disentitled them to the equitable relief of specific performance. There are certain circumstances in the present case which justify the grant of the specific performance. The appellants sold their rights to the respondents and obtained full consideration. They thereafter did not execute a proper deed of sale. At the trial stage they denied the execution of the sale deed as also the receipt of the consideration. The defendant appellants having obtained full consideration and having taken defences which were found wholly unsustainable the plaintiff-respondents are certainly entitled to the equitable relief of specific performance, particularly as the transaction was in respect of immovable property. In connection with immovable property damages are not usually considered adequate relief and specific performance is considered as normal relief. It will be hardly proper in this back ground to enquire and examine the conduct of the plaintiff-respondents with regard to the subsequent purchaser to determine whether the equitable relief was properly granted or not. In all the circumstances of the case, I do not find any good ground for interfering with the decree given by the first appellate court. There is ho force in this appeal and it is consequently dismissed with costs. The prayer for leave to appeal is granted. . ;