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Neutral Citation No. ( 2025:HHC:32553 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
OSA No. 05 of 2019 a/w CO No. 18/2022 Reserved on 13.08.2025 Pronounced on:19.09.2025 Smt. Saroj Bala …..Appellant Vs. Sh. Om Parkash ...Respondent Coram: The Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice. The Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting? For the Appellant : Mr. Neeraj Gupta, Senior Advocate with Mr. Dhananjay Singh, Advocate. For the respondents: Mr. Ajay Kumar, Senior Advocate with Mr. Rohit and Dheeraj Kumar Vashisht, Advocates. G.S. Sandhawalia, Chief Justice. The present Original Side Appeal seeks challenge to the judgment dated 07.08.2019, passed by the learned Single Judge in Civil Suit No. 67 of 2008, whereby the Civil Suit filed by the plaintiff/defendant herein has been partly decreed by passing a decree of specific performance in favour
the
plaintiff/defendant
directing
the defendant/appellant herein to specifically perform the part of the agreement to sell dated 24.04.2004 in respect of 38
2 Kanals of land measuring 2-34-27 hectares i.e. 234427/31099 shares i.e. land 3-10-99 in Khewat No.20, Khatauni No.34 min, 35 min and Khasra No. 2445 (0-69-21), 2448 (0-32-48), 2449 (0-55-32), 2446 (0-74-90) 2544 (0-17- 52), 2545 (0-61-56), kitas-6, situated in village Bharolian Khurd, Tehsil and District Una, entered into inter se the plaintiff for a consideration of ₹73,000/- per Kanal, on payment of 8,83,000/-. 2. Brevity is a necessity, so a brief narration of relevant facts falling within a short compass will unfold the issue with which we would be dealing with in this Appeal. 3. Apparently, the plaintiff had filed a Civil Suit for specific performance of an agreement dated 24.04.2004 by which the parties had agreed to execute the sale deed with respect to the land detailed in the agreement to sell, latest by 31.07.2005, with a prayer to issue directions to the defendant to execute the sale deed qua the land mentioned in the agreement and for a decree of permanent prohibitory injunction, restraining the defendant from interfering with the possession of the plaintiff over the suit land and creating any charge and alienating the suit property. 4. It has been averred that defendant had entered into an agreement to sell on 24.04.2004 with the plaintiff
3 whereby defendant agreed to sell the land measuring 2-34- 27 hectares i.e. 234427/31099 shares, i.e. land 3-10-99 in Khewat No.20, Khatauni No.34 min, 35 min and Khasra Nos. 2445 (0-69-21), 2448 (0-32-48), 2449 (0-55-32), 2446 (0-74- 90) 2544 (0-17-52), 2545 (0-61-56), kitas-6, situated in village Bharolian Khurd, Tehsil and District Una, with the plaintiff for a consideration of ₹73,000/- per Kanal. When the said land is converted into kanals, it comes to 61 Kanals and in this way, the total consideration came to be ₹44,53,000/-. The defendant is stated to have received a sum of 26,00,000/- as an earnest money and receipt in respect of the earnest money was mentioned in the agreement itself. It was stated that another sum of ₹3,00,000/- was received by the defendant in the presence of a person named Tilak Raj. At the time of agreement, the possession of the land was handed over to the plaintiff on 24.04.2004 itself and thereafter the plaintiff is stated to have spent a sum of ₹20,00,000/- for development and levelling the said land which, prior to that was a steep hill. 5. The defendant had agreed to execute and register the sale deed latest by 31.07.2005, failing which she had agreed to pay double the amount as agreed and, in the
4 event of failure on the part of the plaintiff to perform his part of contract, the earnest money was agreed to be forfeited. 6. It has been pleaded in the plaint that the plaintiff made several requests to the defendant to execute the sale deed, but defendant failed to execute the sale deed. The defendant is stated to have delayed the execution of the sale deed saying that there was stay granted by the Civil Court against the execution of the sale deed in the Mohal in which the suit property was situated and when such stay was vacated, as per the defendant herself, again a request was made to the defendant, who then got registered the sale deed of 23 Kanals of land on 11.02.2005, in favour of the plaintiff out of the aforesaid 61 Kanals. At that time, the defendant had stated that the proceedings under Section 47- A of the Indian Stamp Act were going on and as such the sale deed of the land in question was being made with the assurance that if Deed in question is not summoned in the proceedings under Section 47-A, then the sale deed qua the remaining land would also be executed and in the event of summoning the sale deed, remaining sale deed would be executed after a few days. After execution and registration of sale deed with respect to 23 Kanals of land on 11.02.2005, and after receiving a consideration of ₹6.70 lacs, at the time
5 of the sale deed the plaintiff further requested the defendant to execute the sale deed with respect to 38 Kanals of land after receiving balance sale consideration of ₹8,83,000/-. It is averred that the plaintiff was always ready and willing to perform his part of the contract dated 24.04.2004 whereas the defendant was adopting delaying tactics and evading to perform her part of the agreement. 7. It has been further pleaded that on 02.07.2008, the plaintiff came to know from his reliable sources that the defendant was about to sell the land in question to somebody-else as such a telegraphic notice was issued to the defendant to execute the sale deed on 04.07.2008 at 10.00 a.m. and in the event of failure to turn up at 10.00 a.m., the plaintiff would reluctantly be compelled to file a suit for specific performance against the defendant. Since the defendant did not turn up on the scheduled date and time to execute the sale deed, plaintiff was compelled to file the suit for specific performance on 04.07.2008, as noticed above. 8. The defendant contested the suit by filing written statement wherein she had raised number of preliminary objections, one of which was regarding receipt of consideration. In the meantime, defendant filed OMP No. 393
6 of 2016 for amendment of the written statement which was allowed vide order dated 26.07.2017. The said order reads as under: “OMP No. 393 of 2016 In the initial written statement instituted to the plaint by the defendant, he contended that he had received a sum of Rs. 26,00,000/-as part consideration towards performance of agreement to sell executed inter se him and the plaintiff. However, subsequently, the learned counsel for the defendant, through OMP No. 59 of 2009 sought the leave of the Court to incorporate an amendment in respect thereto comprised in the factum of the defendant actually receiving 2,60,000/- than the amount initially averred in the written statement initially instituted by him to the plaint. Subsequently, the learned counsel for the defendant has made an averment/prayer that the aforesaid amendment as sought with the leave of the Court arising from sheer inadvertence, hence it be deleted from the records. Prayer accepted. Application is allowed.” 9. In the amended written statement, preliminary objections regarding suppressio veri and suggestio falsi, estoppel, cause of action, maintainability of the suit, suit being time barred, improper valuation etc. have been raised. On merits, the defendant denied the averments made in the plaint to the effect that she had received another sum of Rs.3,00,000/- in the presence of one Tilak Raj and that the plaintiff had spent 20,00,000/- in levelling the land. It has been further denied that the defendant agreed to execute
7 and register the sale deed latest by 31.07.2005, rather it has been claimed that it was agreed between the parties that the sale deed would be registered before 31.07.2004. It has also been denied that the defendant delayed the execution of the sale deed by pleading that there was stay granted by the Civil Court. Per contra, it is claimed that the sale deed was registered after repeated requests made by the defendant to the plaintiff and at that time, the defendant had impressed upon the plaintiff to get the sale deed registered for the entire land of 61 Kanals, but the plaintiff refused to do so due to shortage of money with him. The fact of proceedings under Section 47-A of the Indian Stamp Act were also denied. It was pleaded that the sale deed of only 23 Kanals which was made in that manner was suggested by the plaintiff himself. It has been specifically averred that the agreement to sell had become un-executable after 31.07.2004. It has been averred that since the plaintiff has in fact failed to perform his part of contract within the time stipulated in the agreement dated 24.04.2004, therefore, he is not entitled to get the agreement enforced through specific performance and dismissal of the suit, was prayed for.
8 10. The plaintiff filed replication to the written statement filed by the defendant wherein the averments made in corresponding paras of the plaint were reiterated and reaffirmed and contrary averments made in the written statement were denied in toto. 11. On the basis of the pleadings of the parties, the learned Single Judge framed the following issues on 26.02.2013. "1) Whether the plaintiff is entitled to the decree for specific performance of the agreement dated 24.4.2004 or in the alternative to damages, if so to what extent? OPP. 2) Whether the plaintiff has improved the suit land, if so, to what extent and to what effect? OPP. 3) Whether the plaintiff is entitled to the decree of permanent prohibitory injunction, as claimed? OPP. 4) Whether the plaintiff has failed to perform his part of the agreement, if so, to what effect? OPD. 5) Whether the plaintiff has made the interpolation in the agreement by changing the cut of date from 31.7.2004 to 31.7.2005 and thereby played fraud with the defendant? OPD. 6) Whether after the cut of date i.e. 31.7.2004, the agreement became un-executable and the suit also barred by limitation? OPD. 7) Whether the suit is not maintainable in the present form? OPD. 8) Whether the plaintiff is estopped from filing the suit, as alleged? OPD. 9) Relief." 12. After giving issue-wise findings, the learned Single Judge partly decreed the suit as noticed above.
9 Reasoning by the learned Single Judge for partly allowing the Suit: 13. The learned Single Judge, while examining the evidence in details and considering the issues, came to the conclusion while deciding issue No. 1 that though the jurisdiction to decree a suit for specific performance is discretionary yet that discretion should not be arbitrary but should be sound and reasonable and has to be guided by judicial principles and the plaintiff is not to be denied the relief of specific performance merely on account of the phenomenal increase of price during the pendency of ligation. It was accordingly held that what has to be seen is that who is the defaulting party and whether the party is taking undue advantage over the other and the hardship that may be caused to either of the parties. 14. It was held that the plaintiff was ready and willing to perform his part of the contract while examining his statement as PW-1 and the notice had been issued on 03.07.2008 to the defendant on account of the fact that it came to the knowledge of the plaintiff that she was going to sell the suit land to someone else. The defendant had not turned up in the office of the Sub-Registrar though plaintiff
10 had remained present. It was noticed that there was no specific suggestion put regarding inability as such of the plaintiff to arrange balance amount and the bank details could have been asked for that the plaintiff had no money. The conduct of the parties was noticed that though the suit had been filed in haste but the fact that the efforts had been made to go back on the admission of receipt of Rs.26 lacs and also the denial of receipt of Rs.3 lacs at the time of filing the written statement, therefore, the findings were recorded in favour of the plaintiff. 15. On issue No. 2 which was decided against the plaintiff, which pertained to improving the suit land and to what extent and the possession of the land with the plaintiff regarding the improvement of the land by spending Rs.20 lacs and installation of tube-well by spending Rs.5,50,000/- by disbelieving the witnesses as such, the learned Single Judge held that there was no written work order for execution of the same, details of khasra number were not known by the owner of the JCB, PW-7 Shashi Pal and the fact that the work had been done in the year 2004, whereas the sale deed had only been executed on 11.02.2005. Similarly, PW-8 K.K. Gupta who is a retired Executive Engineer, as such was not aware of the ownership of the plaintiff and
11 khasra number’s over which the tube-well was dug. Statement of PW-9 Parvinder Singh who dug the tube-well in December, 2007 and charged an amount of Rs.1500/- per feet was not accepted as he had not produced any income tax records as the cost of boring tube-well was Rs.5,25,000/-. Another JCB owner PW-10 Vinay Kumar Rana who had also spent Rs.10.5 lacs for execution of the work between May, 2004 to July, 2005 was disbelieved on the ground that he did not maintain and produce any income tax records. 16. Similarly, issue No. 3, whether the plaintiff is entitled to decree of permanent prohibitory injunction was rejected on the ground that the agreement Ext. PW-1/A did not contain any recital regarding handing over the possession of the suit land at the time of the execution of the agreement and the fact that the attesting witnesses also did not say so. It is pertinent to mention that against the said issues No. 2 and 3, Cross-Objections No. 18/2022, have also been preferred praying that the said findings be set aside and the suit be decided in favour of the plaintiff. 17. On issue No. 4 as to whether the plaintiff had failed to perform his part of the agreement, a finding has been recorded by the learned Single Judge and it was held
12 that the stand of the plaintiff was that he had paid a sum of Rs.3 lacs in cash in September, 2005 while placing reliance on the statement of PW5 Tilak Raj that the said amount had been paid to Kabul Singh husband of the defendant at the plaintiff’s residence and there was no cross-examination regarding this aspect. The defendant having failed to appear in the witness-box also led the learned Single Judge to draw an adverse inference against her while placing reliance upon the judgment in Ishwar Bhai C. Patel alias Bachu Bhai Patel vs. Harihar Behera and another (1999) 3 SCC 457. 18. Regarding issue No. 5 interpolation made and whether the cut-off date was 31.07.2004 and the agreement had become un-executable and the suit was barred by limitation, was decided together and it was noticed that in the reply to the notice dated 03.07.2008, which was given on 10.07.2008, there was no such defence. It was accordingly held that if the cut off date was 31.07.2004 instead of 31.07.2005, there was no occasion to have executed the sale deed on 11.02.2005 for 23 kanals. Thus, while falling back on Article 54 of the Schedule of the Limitation Act, 1963, which provided that the suit can be filed within three years from the date of accrual of the cause
13 of action or within three years from the date of refusal of the defendant, it was held that the suit was very much within limitation having been filed on 04.07.2008 and that no evidence had been led that there was interpolation by changing the date from the year 2004 to 2005. Resultantly, on issue No.7 in the absence of any defect in the form of the suit, the same was held to be maintainable and decided against the defendant. With regard to estoppel as such pleaded and raised as per issue No. 8, it was held that there was nothing to show that plaintiff was estopped from filing the suit once it had been admitted that the agreement was there inter se the parties and once it has been held that it was within time. Arguments by the learned Senior Counsels: 19. Mr. Neeraj Gupta, learned Senior Counsel for the appellant/defendant has submitted that the sale agreement dated 24.04.2004 fructified into sale deed on 11.02.2005 for a part of the land of 23 kanals out of 60 kanals and it was for the plaintiff to explain why this sale deed had not been executed of whole of the land and in the absence of any endorsement made on the sale deed that on the balance payment, the sale deed had to be executed for the balance amount, the suit was not maintainable. The onus was upon
14 the plaintiff in the absence of any other document evidencing that the agreement had to be further carried forwarded. It was accordingly argued that after execution of the sale deed on 11.02.2005, no notice was served for executing the sale deed of the balance land and only at the fag-end when the limitation was to expire in the month of July, notice was sent on 03.07.2008 Ext. PW1/C and the plaint was also prepared at the same time. It is thus contended that the cause of action would arise only when there was refusal while referring to the reply dated 10.07.2008 Ext. PW-1/D. It was accordingly contended that the limitation was to be counted from the date of the agreement for three years on 24.04.2007 which issue had been raised in the reply also and therefore, the suit as such was barred having been filed on 04.07.2008. 20. Reference was made to Section 62 of the Indian Contract Act to contend that the contract now cannot be enforced since the parties had not agreed to substitute a new contract having altered the earlier one, keeping in view the fact that the sale deed was executed for 23 kanals in his favour. 21. Findings on issues No. 2 and 3 were sought to be highlighted that the plaintiff had been disbelieved against
15 the improvement of the land and no injunction had been granted. Readiness and willingness of the plaintiff was missing as he was apparently not present and there was no proof to show his presence before the sub-Registrar on 04.07.2008 the date fixed as per the telegraphic notice only sent on 03.07.2008 from Shimla whereas the property as such was situated in District Una. There was no proof of having balance amount of Rs.8,83,000/- with him and therefore, the learned Single Judge should not have exercised discretion as such to direct the specific performance of the sale of the balance portion of the land, subject to payment of Rs.8,83,000/-. It was accordingly contended that no relief of possession was sought and there was no revenue entry regarding the possession therefore, the amount was liable to be forfeited and the judgment and decree was liable to be reversed. 22. Mr. Ajay Kumar, learned Senior Counsel, for the plaintiff/respondent, on the other hand, has submitted that consideration of Rs.26 lacs at the time of initial agreement and thereafter a sum of Rs.3 lacs and Rs.6.70 lacs had been paid taking a total to Rs.35.70 lacs out of the settled amount of Rs.44,53,000/-. The said amount even at the agreed rate of Rs.73000/- per kanals would take the entitlement to over
16 48 kanals value as per the agreement itself. Therefore, the sale deed had only been executed for 23 kanals the value of which would work out to Rs.16,79,000/-, as per the agreement and the defendant had already been paid over and above the value of the land, which would go on to show that the plaintiff would not have subsequently paid the amount of Rs.6.70 lacs at the time of the execution of the sale deed since the value as per the agreement as such for the sale deed was at the rate fixed Rs.73000/- per kanal. A specific plea had been taken regarding proceedings initiated under Section 47-A of the Stamp Act against the defendant by the State which was a reason to execute the sale deed for a lesser area of land. It was submitted that there was no plea in the written statement regarding paucity of money and the defence that the plaintiff had no money was not even stated in the reply dated 10.07.2008 and therefore, the defendant was estopped as such to take this stand. Reliance was placed upon the judgment rendered by the Apex Court in Ratanlal @ Babulal Chunilal Samsuka vs. Sundarabai Govardhandas Samsuka (2018) 11 SCC 119 and Damodhar Narayan Sawale (D) vs. Tejrao Bajirao Mhaske and others AIR 2023 SC 3319.
17 23. Accordingly, it was argued that the Cross- Objections on issues No. 2 and 3 were liable to be allowed while pointing out that there was improvement of the land which had been levelled which was in the form of hillock and for that separate and independent witnesses have been examined. A tube-well had been bored and there was evidence on record that more than Rs.20 lacs had been invested for the improvement of the land. The defendant had become greedy on account of the fact that the value of the suit land had been improved and the argument was raised that since the amount paid as earnest money was more than 50% of the total value, the learned Single Judge was not justified in disbelieving the witnesses only on account of the fact that income tax record as such had not been produced. It was submitted that it was not on account of the fault of the plaintiff as such that the said persons were not maintaining income tax records and there was no such occasion to the learned Single Judge to have disbelieved the said witnesses regarding the issue of improvement of the land and possession of the plaintiff. It is submitted that the discretion to grant specific performance and the value of the land having gone up and on the sound principles, the suit had been decreed while placing reliance on Parswanath
18 Saha vs. Bandhana Modak (Das) and another, 2024 SCC OnLine SC 3834. 24. The conduct as such of the defendant was highlighted that it was clear that even he had made an effort to reduce the amount of earnest money from Rs.26 lacs to Rs. 2,26,000/- by virtue of filing the amended written statement and therefore, it was held that an adverse inference has been rightly drawn by the learned Single Judge while referring to Section 16 (c) (ii) that the specific performance of contract cannot be enforced in favour of a person only in certain conditions. Having pleaded and proved the readiness and willingness for performance of the contract to its true consideration by the plaintiff, it was held that the appeal is liable to be dismissed and cross- objections are liable to be allowed and the injunction is liable to be granted to protect the possession of the plaintiff. Reasons to uphold the findings and to allow the Cross-Objections of the plaintiff/defendant: 25. The perusal of the pleadings as such would go on to show that it is the categorical case of the plaintiff that the defendant/appellant had received a sum of Rs.26 lacs as an earnest money out of the total payable amount of Rs.44.53 lacs for the 61 kanals of land and the possession had been
19 handed over to him on the date of the agreement. Thereafter he had spent huge amount of Rs.20 lacs for leveling the land which was in the shape of a steep hill and engaged the services of JCB, Bulldozers, Tractors and manual labourers, and after having improved the same, had also put the tube well on the same. The reason as such stated is that the sale deed had not been executed was on account of the fact that the defendant had delayed the execution on account of the fact that there were proceedings pending under Section 47A of the Indian Stamp Act. Reference can also be made to Ext.PW-1/F, which has been brought on record whereby notice was issued to the defendant/appellant and her husband Kabul Singh for holding an inquiry into the execution and registration of the present sale deed dated 11.02.2005, by the Collector, District Una and an order dated 01.04.2005 was passed that no portion of the land falling in khasra number, as mentioned in the sale deed, be transferred. The directions were issued not to sanction mutation till the pendency of the inquiry. 26. The perusal of the statement of DW-2 Maan Singh son of Kabul Singh and also the defendant would go on to show that it was admitted by him that his father had
20 executed sale deeds of other lands during his life time. It is also admitted by him that inquiry was initiated by the District Collector under Section 47A of the Indian Stamp Act because the sale deeds were being undervalued and were not being registered. It is also admitted that local Commissioner had visited the spot, pursuant to the directions of the Court to prove the factum of tube-well installed though it was his case that the tube well had been dug through Jai Parkash by him. But in cross-examination it came out that they had not maintained any account regarding the installation of tube well and Jai Parkash had not given any receipt and he did not remember how much expenditure had been incurred on the tube-well by him. Further, it has come in evidence that his mother had also executed sale deed regarding other lands belonging to her and he had accompanied her. The father was stated to have power of attorney on her behalf and he used to execute the sale deed on her behalf and it was denied that he was ailing. 27. The statement of PW-10 Vinay Kumar Rana would go on to show that being owner of the JCB, he had levelled the land and had been paid Rs.10.5 lacs for executing the work. In cross-examination, he has stated that the plaintiff was dealing with the properties and also dealing with the
21 land. The said witness was not aware as to how many colonies were there in village Bharolian Khurd and one of the colonies named ‘Krishna Colony’ had been made by the plaintiff. Further, he has deposed in cross-examination that he had neither received any written order nor had he maintained any record for the payment received though he was an income tax payee and he had not brought record since it was not summoned. 28. The discussion of this evidence is material to show that apparently the material had come on record in the form of cross-examination of the witnesses of the plaintiff that the plaintiff was dealing with colonization. PW-7 Shashi Pal owner of JCB had stated that the land had been levelled on the asking of the plaintiff at Rakkar Colony in the year 2004 during the rainy season and the plot was about 40-50 kanals. In cross-examination, defendant had elicited that many colonies had been built by the plaintiff in Una District and the said witness had executed another work of the plaintiff near Gagret and that he did not take any written order for executing the work. It is thus apparent that the factum of the plaintiff working as colonizer and leveling lands itself had been brought on record by the defendant himself and in such circumstances, the finding of the learned
22 Single Judge regarding issue No. 2 against which the Cross- Objection had been filed, that whether the plaintiff has improved the suit land and to what extent, is liable to be reversed in favour of the plaintiff. It is also apparent from the report of the Local Commissioner that since the order was passed by this Court appointing Local Commissioner since an application OMP No. 236 of 2009 had been filed that the tube well had depth of 350 feet, was got dug from one Parvinder Singh of Ambala City and huge amount had been spent. The same was likely to be spoiled as the same was for the purpose of supplying water to the residents of Krishna Colony. That application was opposed by filing reply that under the garb of that application, applicant/plaintiff wanted to gain access to the land and he wanted to usurp the tube- well bore dug by the defendant. A specific defence had been taken that tube-well was only four to five inches diameter and there was no possibility of any untoward incident whereas it was the case of the plaintiff that the tube-well being open, there was likely of falling of cattle and also human being. 29. Resultantly, the Local Commissioner, an Advocate of this Court had been appointed to visit the spot on 11.10.2010 to ascertain the diameter of the tube-well.
23 The Deputy Commissioner had been directed to depute an officer, vide order dated 01.10.2010. Resultantly, the report Ext.PW-2/A (Colly) was submitted wherein the Local Commissioner had opined that the depth of tube-well was 312 feet and was having dia of 10 inches. The experts in the office of senior Hydrologist of IPH Department, Una had been deputed by the Senior Hydrologist, who was also present. The tube-well had been found to be covered with cap and was protected by cemented cap and even photographs were taken of the digging of the tube-well bore which are also on record. These factors thus would go on to show that there is substance as such in the pleadings of the plaintiff that he had improved the suit land and also dug the tube-well, the details of which were known to him. It is not disputed that the witnesses also were duly examined for proving the said fact of digging of the tube-well since PW-9 Parvinder Singh has stated that he was owner of boring machine and doing the business of boring tube wells and copy of registration certificate of the boring machine has been exhibited as Ex. PW-9/A under the Motor Vehicles Act. He had stated that he had taken three months to execute the bore well in the year 2007 which was bored at the depth of 350 feet and charged a sum of Rs. 1500/- per feet along
24 with the material. Merely because he was not aware of the khasra numbers and had not brought the income tax record with him, the learned Single Judge had gone on to disbelieve his deposition. He was an independent witness as such belonging to Ambala, Haryana and Exhibit PW9/A would depict that the boring equipment was installed upon vehicle bearing No.HR-37A-4358 of Leyland make and in such circumstances, there is sufficient material to show that tube- well was got dug by the plaintiff therefore, the findings on issue No. 2 by the learned Single Judge are not sustainable . 30. Similarly once, we come to the conclusion that the plaintiff was in possession and he would be necessarily entitled to a decree of permanent prohibitory injunction which would be apparent from the fact that a large amount of money of Rs.26 lacs was paid and as rightly contended by the counsel for the plaintiff/respondent, it was on that account, the possession had been given, in part performance of the agreement. 31. PW-8 K.K. Gupta retired Executive Engineer having 36 years of service, deposed that the plaintiff had got a bore-well dug at village Bharoliyan Khurd under his supervision. He had stated that he had occasionally visited the site and the said work was executed in the month of
25 December, 2007 which is in consonance with the statement of PW-9. He also stated that the said work was executed by Parvinder Singh of Ambala Cantt. and merely because he was not aware of the exact land owned by the plaintiff and the number of bore-wells by the plaintiff at other places and khasra numbers, he has apparently been disbelieved by the learned Single Judge though he was a summoned witness. Keeping in view the fact that the plaintiff is a colonizer and had utilized the services of a retired Executive Engineer and the firm which was independent from Ambala Cantt. whose owner had deposed and also shown the proof of the fact that digging machine was registered under the Motor Vehicles Act, the findings of the learned Single Judge on issues No. 2 and 3 which have been challenged by way of Cross- objections are not liable to be sustained. Resultantly, we reverse the said findings and come to the conclusion that the plaintiff had been apparently put in possession of the land and dug a bore-well and there is substance that he had improved the land by spending money being a colonizer. 32. Keeping in view the fact that the vendor as such was selling similar land has been deposed by his son DW2 Man Singh, apparently there was a dispute regarding the undervaluation of the lands being sold, the sale deed had
26 only been executed for a smaller chunk of 23 kanals with the obvious understanding for executing the balance amount at a later point of time. There was no valid reason as such for the plaintiff to have paid another sum of Rs.6,70,000/- on the execution of the sale deed since the value of the land of 23 kanals at the rate of Rs.73000/- per kanals, would come to Rs. 16,79,000/-. Thus, there is no dispute that a sum of Rs. 26 lacs had already been paid. Therefore, there would have no tangible reason for the plaintiff to have paid an additional amount of Rs. 6,70,000/- which fact is mentioned in the sale deed Ext. PW-1/B even if we discount that Rs.3 lacs has been paid by cash, as contended. Thus, it is apparent that Rs.35.70 having been received by the defendant, the value of which would amount to 48 kanals of land approximately and almost more than 80% of the amount which was to be paid and was Rs.44.53 lacs as per the agreement. The argument thus of the learned Senior Counsel that in the absence of any endorsement made, any fall back on Section 62 of the Indian Contract Act is without any basis. It was his bounden duty also as such to get the agreement cancelled and rescinded to get the benefit of the said provisions on the ground that the original contract need not be performed. Section 62 of the Contract Act reads as under:
27 “62. Effect of novation, rescission, and alteration of contract- If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.” 33. It is not disputed that under Article 54 of the Indian Limitation Act, 1963 the suit can be filed within three years from the date of accrual of the cause of action or within three years from the date of refusal by the defendants. Last date having been fixed on 31.07.2005 and the suit having been filed on 04.07.2008 as such would bring it within the limitation aspect. Apparently, refusal as such was there as information had been received that the defendant wanted to alienate the land and the notice Ext.PW-1/C was sent on 03.07.2008 for executing the sale deed of balance 38 kanals on the next day by way of a telegraphic notice. A specific averment had been made in the said notice that the possession was handed over to the client and he had spent Rs.20 lacs for leveling the land and sale deed had been executed on 11.2.2005 of a part to the extent of 23 kanals. 34. Reply as such Ext. PW1/D admitted the fact that Rs. 26 lacs had been received though it was denied that the delivery of possession had been given but admitted the execution of the sale deed on 11.02.2005 and the factum that
28 possession of 23 kanals of land was delivered but denial of payment of balance money was not admitted. It was also admitted that plaintiff had levelled 23 kanals which has been purchased and regarding the balance, he had no right or title. It is mentioned that when the sale deed was executed on 11.02.2005, plaintiff had been asked to get the sale deed executed as per the terms and conditions mentioned in the agreement, failing which, the earnest money would be forfeited and that the defendant was ready and willing to perform her part but the plaintiff was not ready and willing to perform his part of the agreement as he was not in a position to perform it due to financial problem. Thus, apparently, at that point of time, it was open to the defendant/appellant also to get novation done of the agreement of the balance amount but no effort as such was made and therefore, now she cannot turn around and say that the agreement could not be enforced. In the said reply also, it has been admitted that the limitation for specific contract was only for three years with the plea taken that three years was to be taken from the date of the agreement which thus expired on 25.04.2007. However, Article 54 of the Limitation Act reads as under: For specific performance of a contract. Three years. The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
29 35. The Apex Court in Shyam Kumar Inani vs. Vinod Agrawal and others (2025) 3 SCC 286 has held that under Article 54 of the Indian Limitation Act, the suit is to be filed within three years from the date fixed for the performance and if no such date is fixed then when the plaintiff has notice that the performance has been refused. The date having been fixed as 31.07.2005, as per the terms of the agreement, thus the suit filed on 04.07.2008 is within limitation. 36. The argument thus of the learned Senior Counsel for the appellant/defendant that the suit as such was barred by limitation, is not liable to be accepted as firstly the cut off date had been fixed as 31.07.2005 and part of the agreement as such was acted upon much within the prescribed time on 11.02.2005 by executing the sale deed on the said date for 23 kanals of land for which there is no dispute. Apparently on account of the fact that the land was going to be alienated notice was served on 03.07.2008 approximately a month before the limitation was to expire, asking the defendant to do the needful and to execute the sale deed by sending telegraphic notice and the suit was immediately filed on 04.07.2008, taking the plea that refusal was there. Thus, the contention raised that the defence even
30 taken in the reply to the notice that the limitation was three years from the date of the agreement, does not hold much water. 37. As noticed above, Section 62 does not take the appellant a long way as it was for him to enter into a fresh agreement and to cancel the earlier one in case the agreement was not to be acted further and only part performance was to be done by selling 23 kanals of land out of 60 kanals. Having not done so, the agreement continued to remain in force and was liable to be enforced. Therefore, the learned Single Judge had rightly directed the defendant as such to execute the sale deed for the balance portion on deposit of the outstanding amount of Rs. 8,83,000/-. 38. In the reply also it was admitted that the pendency of the proceedings under Section 47A had no relevant consideration with the agreement since during the pendency of the proceedings, the defendant had executed the sale deed on 11.02.2005, and was not responsible for the delay as alleged. Thus, in a manner it is admission that the proceedings were pending under Section 47A of the Act and as noticed above, apparently it was on that account only part portion of the land was sold to show the consideration for Rs.6.70 lacs which would also come to
31 much below the rate which was agreed to which approximately works out to be Rs. 29,000/- per kanal. As per the reply, agreement dated 24.04.2004, could not be performed at this stage and notice had been sent only to defame the reputation of the defendant. Neither any plea had been taken that the amount was liable to be forfeited and as now has been rightly argued by Mr. Ajay Kumar learned Senior Counsel. In the absence of having taken any plea that the defendant was not ready and willing at the time of demand made and neither any such suggestion was put in cross-examination that he did not have the requisite amount of consideration, therefore, it would not lie in the mouth as such of the defendant/appellant now to put forth this defence as he had to specifically prove this fact. The argument that there is no revenue entry as such regarding the possession also is also to be noticed that apparently, there was stay granted regarding the mutation of this land in the order dated 01.04.2005 (Ext. PW1/T, passed by the District Collector and therefore, this argument is not liable to be accepted. Apparently, on account of the improvement of the land defendant had changed his mind since value of the suit land was also improved and it is in such circumstances, defendant apparently resiled as such from
32 executing the sale deed regarding balance potion of the land. The conduct as such of the defendant to reduce the earnest money from Rs. 26 lacs to 2,26,000 by way of amended written statement has already been adversely commented upon by the learned Single Judge. 39. Section 16 of the Specific Relief Act bars the specific performance in various circumstances and the plaintiff has to prove the performance or readiness and willingness to perform his contract according to its true construction and having already got executed the sale deed in his favour on 11.02.2005, we see no plausible reason as to how it can be said that he was not ready and willing not to follow through with the balance portion of the land having paid the lions share of 80% of the amount agreed inter se the parties already. 40. As we have already reversed the findings on issues No. 2 and 3 after discussing the evidence as such of the parties and found that the plaintiff actually was in possession and had improved the land by digging a bore well and had also resultantly filed an application before this Court for protecting the same and the report of the local Commissioner Ext. PW-2/A had been also received showing the presence of the said bore-well with the diameters of 9
33 inches which had been pleaded. The objections had also been filed in the form of OMP No. 539 of 2010 that the person who had dug the bore well was present at the spot but his statement had not been recorded and that he should be examined and the expert in the field also had been nominated to ascertain the depth of the said bore-well which had been opposed on the ground that the plaintiff would provide and examine the witnesses at the appropriate time and occasion. The said application was disposed of on 16.11.2011 that it pertained to the merits of the case and had to be determined on the evidence led by the parties and no orders would be required to be passed at this stage. As noticed above, necessary witnesses have also been examined regarding digging of the bore-well and the supervision as such by the retired Executive Engineer. Therefore, the report of the Local Commissioner would go on to show the presence of the bore-well with the dia as pleaded by the plaintiff and further would go on to show that the improvement was done on the land only by the plaintiff who is a colonizer as such. Therefore, there are justifiable reasons as such to reverse the findings on issues No. 2 and 3 and to decide the same in favour of the plaintiff regarding the possession and improvement of the land.
34 41. The issue of readiness and willingness of the plaintiff and whether he had necessary and requisite funds as such which is now sought to be argued at this stage, is not liable to be accepted keeping in view the fact that in the reply to the legal notice, it has not been made clear why the plaintiff was not ready and willing to perform his part of the agreement in totality, apart from the bald averment that he was not in a position to perform his part of the agreement and there is reference only to the financial problem. There is no specific mention that he did not have the requisite funds available with him. Even as noticed, in the first written statement filed on 17.09.2008, it was mentioned that he did not not have required money at his disposal to pay to the defendant and that he had failed to get the sale deed registered due to paucity of funds. There is no plea taken that after the service of the notice dated 03.07.2008, the plaintiff had no funds available with him at that point of time. The refusal is apparent from the reply filed on 10.07.2008, since the cut off date as such provided that the agreement can be enforced by 31.07.2005. Limitation as such was for three years from the date fixed. The suit filed on account of the fact that notice had been served and there was refusal, would cover the second part of Clause 54 being the notice of refusal and would give the said leverage.
35 42. There is no specific plea taken that within the period of limitation from 31.07.2005, and when the demand was made whether the plaintiff had requisite amount of money or not. It is to be noticed that there have been various amendments of the written statement on account of the plaint being amended firstly and thereafter application being filed for amendment. Even the second written statement dated 15.02.2009 does not improve the case regarding the pleadings to be taken as to the non-availability of the funds at the time when the notice was served on 03.07.2008 asking the defendant to come present before the Sub-Registrar. The only plea taken is that there was no intention to sell in the month of July, 2008 and the plaintiff had no right to seek execution of the sale deed on account of the time being essence of the contract at that belated stage. 43. Similarly, perusal of the 3rd written statement dated 10.09.2012 whereby by virtue of amendment, an admission had been made that only Rs. 2,60,000/- had been paid on account of cutting in the agreement and the admission earlier was due to lack of knowledge. In such circumstances, the learned Single Judge had also held that the defendant surreptitiously and without the leave of the Court had tried to wriggle out of the admission of receipt of Rs.26 lacs.
36 44. The issues were framed on 26.02.2013 and there is no such issue that the plaintiff was not in a position to execute the sale deed due to non-sufficiency of funds at the time when the notice was issued. Again, the plea was taken that the agreement had become un-executable after 31.07.2004 and that the plaintiff had no right to impress upon the defendant to come and execute the sale deed for the remaining 38 kanals of land. In the 4th amended written statement dated 02.10.2016, after framing of the issues, the defendant again specifically failed to aver to this factual matrix and rather denied that at no point of time he had been approached for the registration of the sale deed. The defendant again took the plea that time was essence of the contract and that the plaintiff had no right to demand specific performance of the agreement. In order to do so, necessary pleadings should have been in place as noticed which are not there. It is time and again being held that without proper pleadings, no amount of evidence can come on record and would be of no consequence and would not come to the rescue of the parties and the onus as such would always lie on the person propagating the same. Counsel for the plaintiff/defendant has thus rightly relied upon the judgment in Ratanlal @ Babulal Chunilal’s case (supra) to this extent.
37 45. Therefore, having pleaded and proved the readiness and willingness for the performance of the contract by having stepped into the witness-box by the plaintiff Om Parkash and by deposing that he was always ready and willing to perform his part of agreement and there is reason as such once the part performance of the agreement had been done. Apparently on account of the proceedings under Section 47A of the Indian Stamp Act by the authorities and keeping in view the fact that plaintiff is a colonizer as such, we do not find any reason to accept the argument that he did not have balance sale consideration available with him. It was always open to the defendant as such to plead and to take such plea, so that, the plaintiff could rebut the same by falling back on his bank record to show that he had the necessary amount available with him at the time when he served the notice and therefore, it cannot be, at this stage, allowed to argue on the plea which was never taken in the successive written statement and the plaintiff cannot be taken by surprise. 46. Reliance can also be placed on Prakash Chandra vs. Angadlal and others (1979) 4 SCC 393, wherein a three Judge Bench of the Apex Court has held that the ordinary Rule is that specific performance should
38 be granted. It is also to be noted that once major part of the consideration has been paid and possession has been delivered in part performance, the equity would shift in favour of the purchaser, who has already properly pleaded that he is ready and willing to perform his part of the contract. Notice was sought to be rebutted only on the ground that limitation had run out and he was not ready and willing at the time when the sale deed had been executed. However, the fact remains that the period as such to execute the sale deed was till 2007 and therefore, the readiness and willingness along with balance consideration at that point of time had never been raised. The purchaser/plaintiff as such has specifically put forth the reasons why only the sale deed had been executed partly and has also brought on record the evidence to show that there were proceedings initiated under Section 47-A of the Indian Stamp Act. Therefore, it cannot be held that the suit was not maintainable as such for getting the agreement as such enforced in the absence of the same having got cancelled by the defendant/appellant. 47. The reasoning given by the learned Single Judge thus on issue No.1 regarding entitlement of decree of specific performance of the agreement cannot be faulted
39 with, in any manner, as it is to be noticed that there was no specific suggestion also put to the witnesses regarding inability to arrange the balance amount and the bank details. Similarly, the finding which has been recorded that the plaintiff has failed to perform his part of the agreement which has been held against the defendant, was also well justified. Though we do not approve as such of the adverse inference drawn against the defendant regarding her non- appearance as a witness since the son had power of attorney and therefore, being a lady and the husband having expired, it is but natural for her to have fallen back on the son being a close relative who could have always deposed regarding the facts of the case having personal knowledge. He has also stated that he had also accompanied his mother when the other sale deeds were executed. Apparently, he had also knowledge of the proceedings under Section 47A having been initiated by the Deputy Commissioner. He also further admitted that he had accompanied his father when the original written statement was being prepared. He denied the suggestion that his mother had intentionally not appeared before the Sub- Registrar.
40 48. Similarly, there are valid reasons as such on issue of interpolation under issue No. 5 given by the learned Single Judge. Apparently, in the notice itself, it was admitted that Rs.26 lacs had been received and therefore, merely on account of over writing as such, the issue of interpolation could not have been raised. The interpolation regarding cut off date was correctly decided that if the cut off date had been 31.07.2004 as put forth then how the sale deed could have been executed and acted on 11.02.2005 after the cut off date, without any litigation having been initiated. Thus, the suit was also rightly held to be maintainable and there was no question of estoppel as alleged under issue No. 2. Therefore, we uphold all the findings of the learned Single Judge. However, one aspect remains since we have gone on to reverse the findings on the Cross-Objections regarding possession of the land that it is his own case that he was put in possession of the whole of the land on 11.02.2005 and therefore, had retained the possession of land and neither paid balance amount for long 20 years. He had also opted to wait for the period of limitation to almost run out and having served notice only in 2008 and filed the suit thereafter on
41 04.07.2008, has also deprived the defendant of the balance amount of Rs. 8,83,000/-. 49. In Parswanath Saha (supra), the Apex Court in similar circumstances held that the enhanced amount be paid towards the balance consideration of Rs. 20 lacs keeping in view the fact that Rs.4 lacs only had been paid towards the earnest money out of Rs.60.20 lacs, as agreed regarding agreement dated 20.05.2016. The Apex Court had allowed the appeal and restored the suit which had been decreed in favour of the plaintiff/appellant by the Trial Court and set aside the order passed by the High Court which had allowed the appeal of the defendant. It was accordingly held that the Court would take into consideration the conduct of the parties and recital in the sale agreement and circumstances out side the contract which had to be seen. It was also noticed that rising prices would not be a hardship and refusal for a decree of specific performance and that the Court would impose some condition to some extent to compensate the defendant/owner while relying upon the earlier judgment in K. Prakash vs. B.R. Sampath Kumar (2015) 1 SCC 597.
42 50. In such circumstances, we are of the considered opinion that a sum of Rs. 8,83,000/- was the balance amount and was payable way back in the year 2004 and it would not be commensurate as such as it was a case of extreme hardship as such and she had not received the said amount and keeping in view the fact that she was also deprived of to use the property as such because the possession was with the plaintiff. In such circumstances, we partly modify the order of the learned Single Judge by allowing the appeal to the extent that the suit for specific performance would be decreed, however, on the payment of Rs. 20 lacs payable by the plaintiff to the defendant within eight weeks from today. 51. Accordingly, we dispose of the appeal while upholding the order of the learned Single Judge by partly modifying it only to the extent of the additional amount to be paid by the plaintiff as noticed above keeping in view the fact that defendant was a lady and her husband had also died during the pendency of the proceedings. 52. Cross-Objections are also allowed, as indicated above, along with pending applications, if any, which shall also stand disposed of.
(G.S. Sandhawalia) Chief Justice (Ranjan Sharma) Judge September 19, 2025. (cm Thakur)