MAHESHWARI, J. - (1.) ORIGINAL Suit No. 17/1977 (2/1972) filed by the respondent Sohanram for specific performance of the contract for sale of agricultural land in the alternative for refund of Rs. 1500/- with interest was decreed for both the reliefs in the alternative by the learned Munsif, Sardarshahar on 5. 10. 1978 with a further decree for injunction. The learned District Judge, Churu, in Appeal No. 67/1978 modified the decree by setting aside the relief of injunction but otherwise maintained the decree passed by the Trial Court and dismissed the appeal filed by the defendant on 24. 8. 1982. The present appeal by the legal representatives of the Original defendant Bhinvaram was admitted by this Court on 2. 2. 1983 while formulating the following substantial questions of law:- (a) Whether the plaintiff's suit for specific performance of the agreement to sale should not be dismissed on the ground that the plaintiff did not express his readiness and willingness to perform his part of the contract upto the date of the suit? (b) Whether in the absence of averments in the plaint about the readiness and willingness of the plaintiff to perform his part of the contract, a decree for specific performance could be maintained in the present case? (c) Whether the appellant could be allowed to raise the question of absence of readiness and willingness on the part of the plaintiff to perform his part of the contract at the stage of second appeal for the first time? (d) Whether the plaintiffs suit for specific performance is maintainable although the plaintiff has not prayed for the complete relief permissible to him, because no prayer for possession has been made in the plaint?''
(2.) DURING the course of hearing of this appeal, another substantial question of law, which directly arose for just and effectual determination of this case, was formulated thus:- `` (e) Whether the decree granting both the reliefs claimed only in the alternative by the plaintiff of specific performance of the contract and refund of the consideration paid, could be maintained in the form granted by the Trial Court and affirmed by the first appellate court?'' Learned counsel for the parties were heard at length in respect of the formulated questions of law and so also in respect of another question on the anvil of Section 20 of the Specific Relief Act, 1963 (hereinafter referred to as `the Act' (`the Act of 1963')) which though proposed by the learned counsel for the appellant was opposed on behalf of the respondent, regarding which reference shall be made at appropriate place. In view of the questions involved in the case, a reference to the pleadings of the parties and findings by the learned courts below may be made at the first. Plaint Respondent Sohan alias Sona Ram filed a suit for specific performance of contract by presentation of plaint on 28. 10. 1971 in the Court of Munsif, Churu. The summary of the plaint averments is that according to the plaintiff, an agricultural field of Khasara No. 681 measuring 52 bighas and 18 biswas situated at Ranasar Pavaran, Tehsil Sardar Shahar was of the defendant who being in need of money, on Sawan Budi 12, Svt. 2027 (= 30. 7. 1970) agreed to sell 27 bighas and 18 biswas of land on the eastern side of this field after retaining 25 bighas for himself for a consideration of Rs. 1500/- which was paid cash on that very day to the defendant and after receiving the amount, the defendant executed an agreement in the `bahi' of the plaintiff and promised that whenever the plaintiff would desire, sale would be executed in his favour. Possession on 27 bighas and 18 biswas of land on eastern side was also delivered on that very day to the plaintiff who was cultivating that portion and continuing in its possession. According to the plaintiff, the defendant was asked for execution of the sale deed but the defendant expressed that after the marriage of his son, he would execute the deed before the Sub-Registrar. After the marriage, he was again asked but on 19. 8. 1971 he flatly refused, therefore, the plaintiff was entitled to get the said agreement specifically performed for which the suit was being filed. The plaintiff prayed for a decree in the manner that the defendant be ordered to execute the sale deed of the land in question in favour of the plaintiff and on his failure to do so, the same be got executed by the court; the plaintiff prayed in the alternative that suit for Rs. 1500/- with in interest at the rate of 1% per month be decreed against the defendant and for this reason full court fees has been paid; the plaintiff further prayed for a perpetual injunction against the defendant for not interfering in the said portion. The salient features directly available from the plaint, which are relevant for the present purposes, remain : (i) There is no averment as such in the plaint that the plaintiff has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him of the contract according to its true construction. (ii) The plaintiff has claimed a decree for entire sale consideration of Rs. 1500/- against the defendant with interest at the rate of 1% per month (i. e. , 12% per annum) in the alternative, that is, in substitution of the relief of specific performance. (iii) The plaintiff has averred that entire sale consideration of Rs. 1500/- was paid by him and the possession of the land agreed to be sold was delivered by the defendant to him and he was in possession of the land and, obviously therefore, the plaintiff did not ask for possession of the property in addition to the specific performance. Written statement The defendant in his written statement admitted having the field in khasara No. 681 but denied receiving any cash amount from the plaintiff or entering into any agreement for sale of 27 bighas 18 biswas of land to the plaintiff and averred that the writing referred by the plaintiff was totally fabricated having no value in law and that the sale agreement for a land cannot be scribed in a `bahi'. Averments regarding delivery of possession were also specifically denied stating that the defendant was continuing in possession of the entire land. The defendant averred that plaintiff was a prosperous person who wanted to dispossess the defendant by way of litigations and, therefore, the defendant has filed a suit for permanent injunction before the SDO, Churu. The plaintiff, his father and brothers also forcibly attempted to take over the field last year and criminal case against them was pending in the court and for pre-empting the two cases, this suit was filed. The averments regarding demand and refusal of performance were also denied with the averments that defendant never stated for sale of the land nor the plaintiff was entitled for any such sale. The defendant raised additional objections that alleged agreement was not a document sufficient for the purpose nor was admissible in evidence nor it could be a basis of the suit; that the plaintiff has claimed the relief alternatively of Rs. 1500/- with interest and therefore, it was clear that neither he had any possession on the land nor had any right, else he would never have taken such a plea; and that recovery of cash with interest amounted to a money transaction for which money lending licence was required which was not available with the plaintiff and, therefore also, the suit was liable to be dismissed. It has also been averred that suit was concerning an agricultural land in which perpetual injunction was also claimed which was of the jurisdiction of the revenue court alone and, therefore also, the suit was not maintainable in civil court. Issues and evidence
(3.) ON the pleadings of the parties, the learned Trial Court framed seven issues: Issue No. 1 on the question as to whether the defendant on Sawan Budi 12, 2027 executed the agreement and after taking Rs. 1500/- cash, agreed to sell 27 bighas and 18 biswas of the agricultural land of Khasara No. 681 to the plaintiff; Issue No. 2 on the question as to whether the plaintiff was entitled to get the sale deed executed through the Court. Issue No. 3 on the alternative prayer that in other event whether the plaintiff was entitled to recover Rs. 1500/- with interest at the rate of 1% per month from the defendant; Issue No. 4 on the question whether the agreement was inadmissible in evidence; Issue No. 5 as to whether the plaintiff was money- lender and could not maintain the suit without license; and Issue No. 6 on the question as to whether the suit was not of the jurisdiction of the Court? In oral evidence, the plaintiff examined himself as PW-1, Peeru Khan, PW-2; Pangeer, PW-3; Sugan Singh, PW-4; Shravan, PW-6 (these witnesses, PW-2, 3, 4 and 6 alleged to be witnesses to the agreement and/or delivery of possession); and Sagarmal PW-5 (the scribe of the disputed document and so also the witness to the delivery of possession). On the other hand, the defendant Bhinvaram examined himself as DW-1, Dhallu Ram DW-2 (son of defendant); Ram Kumar, DW-3; and Beju Ram, DW-4. In the documentary evidence, the plaintiff produced the copy of disputed agreement as Ex. 1. The contents of this document being relevant for the present purpose are quoted in extenso hereunder:- ;