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       REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION                    CIVIL APPEAL NO. 5012 OF 2008

Shivaji Yallappa Patil  .... Appellant(s)

Versus

Sri Ranajeet Appasaheb Patil & Others       .... Respondent(s)

                  J U D G M E N T

R.K. Agrawal, J.

1) The above  appeal  has  been filed against  the  judgment

and  order  dated  29.06.2005  passed  by  the  High  Court  of

Karnataka at Bangalore in Regular Second Appeal No. 568 of

2000 whereby learned single Judge of the High Court allowed

the appeal filed by Respondent Nos. 1 and 2 herein (original

plaintiffs) against the judgment and decree dated 25.02.2000

in Regular Appeal No. 29 of 1997 passed by the Court of Civil

Judge (Sr. Division), Hukeri and the order dated 21.07.1992 in

Original Suit No. 123 of 1986.   

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2) Brief facts:

(a) The  suit  property  is  an  agricultural  land  situated  at

Khavanewadi village in Hukeri Taluka bearing Survey No. 77,

measuring  6  acres  8  guntas  wherein  several  persons  were

owners  of  their  defined  shares  and  were  in  cultivation  till

28.05.1981.  Later on, the above suit land was divided into

two parts as Eastern and Western measuring 3 acres 4 guntas

each.  In pursuance to the said partition, the joint owners gave

a joint application to the Survey Department for demarcation

of  boundary  line  between  the  eastern  and  western  land

showing their respective names to their respective parts.  The

land  in  the  ratio  of  1/2,  1/6,  1/6  and  1/6  was  given  to

Ashabai w/o Manohar Kulkarni, Yashwant Kulkarni (Husband

of Respondent no. 3 herein), Dattaraya Kulkarni and Laxmibai

Ganesh Kulkarni respectively in the eastern side.   

(b) It is the case of the plaintiffs (Respondent Nos. 1 and 2

herein)  that  the  above  named  persons  agreed  to  sell  their

share  to  the  plaintiffs  (Respondent  Nos.  1  and  2  herein).

Though the exact division was not ascertained, it was decided

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to  execute  the  sale  deed  only  after  the  division.   After

settlement, the total price of 3 acres 4 guntas was fixed at Rs.

22,000/-  and  Rs.  2,000/-  was  paid  in  advance.   The

measurement  was  finally  carried  out  and  approved  on

30.12.1983.  By that time, Yashwant Kulkarni and Dattaraya

Kulkarni expired.  Sudha, wife of Yashwant Kulkarni got 1/6

share of her husband in the eastern side and got her name

entered in the record of rights for Survey No. 77.

(c) The co-owners (except Sudha, having 1/6th share) of the

eastern side  executed a  sale  deed in favour of  plaintiffs  on

13.02.1984  and  they  were  put  in  actual  possession  of  the

land.   On  21.03.1986,  Respondent  No.  3  herein  (wife  of

Yashwant Kulkarni), the owner of 1/6th share of land in Survey

No. 77, sold her share to Respondent No. 4 herein.

(d) Being aggrieved, the plaintiffs (Respondent Nos. 1 and 2

herein) filed an Original Suit being No. 123 of 1986 for specific

performance against Respondent Nos. 3 and 4 herein before

the Court of the Addl. Munsiff, Hukeri. Learned Addl. Munsiff,

vide  judgment  and  order  dated  21.07.1992,  dismissed  the

suit.

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(e) Aggrieved by the decision dated 21.07.1992, the plaintiffs

filed a Regular Appeal being No. 29 of 1997 before the Court of

Civil  Judge,  (Sr.  Dn.)  Hukeri.   During  the  pendency of  the

appeal,  the  appellant  herein,  purchased  the  suit  property

through a registered sale deed for valuable consideration. It is

also  alleged  by  the  appellant  herein  that  he  was  put  in

possession of the suit property. The appellant purchased the

suit property as he is having his landed property adjacent to

the  suit  property.  Learned  Civil  Judge,  vide  judgment  and

order  dated  25.02.2000,  partly  allowed  the  appeal  while

refusing to grant specific performance of the contract.

(f) Aggrieved by the judgment and order dated 25.02.2000,

the plaintiffs preferred a Regular Second Appeal being No. 568

of 2000 before the High Court.  Learned single Judge of  the

High  Court,  vide  judgment  and  order  dated  29.06.2005,

allowed  the  second  appeal  in  favour  of  the  plaintiffs  and

ordered  the  specific  performance  of  the  contract  provided

plaintiffs  shall  pay  prevailing  market  value  within  6  (six)

months from the date of judgment.

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(g) Aggrieved by the judgment and order dated 29.06.2005,

the  appellant  herein  has  preferred  this  appeal  by  way  of

special leave before this Court.  

3) Heard  Mr.  Shankar  Divate,  learned  counsel  for  the

appellant  and  Mr.  S.N.  Bhat,  learned  counsel  for  the

respondents.

Point(s) for consideration:-

4) Whether in the present facts and circumstances of the

case the High Court was right in granting decree for specific

performance to the original plaintiffs (Respondent Nos. 1 and 2

herein)?   

Rival contentions:-

5) At  the  outset,  learned  counsel  for  the  appellant

contended that the High court erred in law while interfering in

well considered, well reasoned judgments of the courts below

refusing to grant discretionary relief under Section 20 of the

Specific relief Act, 1963 (in short ‘the SR Act’). It was further

contended that  the  appellant  was served with the  notice  of

impleadment only on  02.06.2005 and when the appellant was

making  arrangements  to  enter  and  defend  the  matter,  the

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appeal came to be decided vide judgment dated 29.06.2005.

Hence, the principles of natural justice of the appellant stand

violated.

6) Further,  it  was  contended  that  the  High  court  has

seriously erred in relying upon the judgment dated 24.09.1987

passed by learned Additional Munsiff in Original Suit No. 129

of  1984  for  permanent  injunction  by  the  original  plaintiffs

while upholding that the original plaintiffs were in possession

of  the  entire  extent  of  the  land.  At  this  juncture,  it  was

contended that  the  Respondent  No.  3  herein,  who  was  the

original owner of the suit property, was not the party to the

said case. Hence, the judgment in the said Suit ought not to

be considered for deciding the issue of possession of share of

Respondent No 3.  Learned counsel further contended that two

fact finding courts have found no evidence that the possession

of the suit land was handed over to the original plaintiffs and

the plaintiffs even did not aver in plaint in original suit that

they are ready and willing to perform their part of the contract

before filing the suit.

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7) It  was  further  contended  by  learned  counsel  for  the

appellant that the High Court failed to see that the owner of

1/6th share of the suit property sold the same to Respondent

No. 4 herein with the possession way back in 1986 through a

registered  sale  deed  for  valuable  consideration  and  the

appellant  purchased  the  same  in  1999  for  valuable

consideration through a registered sale deed and he was put

in  possession  of  the  suit  land  also.  Hence,  directing  the

execution of the sale deed in favour of the original plaintiffs

after the lapse of a considerable long period is unjustified and

will  cause  grave  injustice  to  the  appellant  herein.   Learned

counsel finally contended that the ends of justice demand that

decree for specific performance should not have been granted.  

8) Per  contra,  learned  counsel  for  the  respondents

submitted that the courts below had failed to appreciate the

materials on record in proper perspective and their findings

contained  manifest  error  while  refusing  to  grant  decree  for

specific performance to the plaintiffs. The dispute raised is a

matter  of  appreciation of  evidence  and the  High Court  was

right in granting the same.  

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9) Learned counsel for the respondents further submitted

that  the  appellant  herein  was  brought  on  record  and

impleaded  as  a  party  to  the  proceedings  but  the  appellant

herein  never  represented  himself  before  the  High  Court  or

defended the case.  Learned counsel  further submitted that

the trial court and the lower appellate court had proceeded to

arrive  at  the  conclusion  that  there  was  no  delivery  of

possession  in  favour  of  the  original  plaintiffs  as  per  the

agreement to sell dated 28.05.1981 on the ground that there

was  no  mention  of  delivery  of  possession  in  the  exhibits

produced  before  it  whereas  the  High  Court  was  right  in

arriving at the conclusion with regard to the decree for specific

performance while setting aside the erroneous findings arrived

at by the courts below it.  Learned counsel finally submitted

that  in  view  of  the  peculiar  circumstance  of  the  case,  no

interference is sought for by this Court in the matter.     

Discussion:-

10) It is a well settled law that the power to order specific

performance of  contract  is  discretionary  and parties  cannot

claim it  as a matter  of  right although it  is lawful  but such

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discretion  should  be  exercised  judicially  and  prudently.

Section 20 of the SR Act reads as follows:

“20. Discretion as to decreeing specific performance.— (1)  The  jurisdiction  to  decree  specific  performance  is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial  principles and capable  of  correction by a court  of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:— (a)  where the terms of  the contract  or  the conduct  of  the parties at the time of entering into the contract or the other circumstances under  which the contract  was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b)  where  the  performance  of  the  contract  would  involve some hardship on the defendant which he did not foresee, whereas  its  non-performance  would  involve  no  such hardship on the plaintiff; or (c)  where  the  defendant  entered  into  the  contract  under circumstances  which  though  not  rendering  the  contract voidable,  makes  it  inequitable  to  enforce  specific performance.  Explanation  1.—Mere  inadequacy  of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed  to  constitute  an  unfair  advantage  within  the meaning  of  clause  (a)  or  hardship  within  the  meaning  of clause  (b).  Explanation  2.—  The  question  whether  the performance  of  a  contract  would  involve  hardship  on  the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff  subsequent  to  the  contract,  be  determined  with reference to the circumstances existing at  the time of  the contract. (3)  The  court  may  properly  exercise  discretion  to  decree specific performance in any case where the plaintiff has done substantial  acts  or  suffered  losses  in  consequence  of  a contract capable of specific performance. (4)  The  court  shall  not  refuse  to  any  party  specific performance  of  a  contract  merely  on  the  ground that  the contract is not enforceable at the instance of the party.”

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11) The possibility of injury to the interest of third party does

not, by itself, disentitle the plaintiff from specific performance

but it depends upon the facts and circumstances of each case

which will  be considered by the court in the exercise of  its

discretion.  The  court  may  properly  exercise  discretion  to

decree specific  performance,  in any case  where the  plaintiff

has done substantial acts or suffered losses in consequence of

a contract capable of specific performance.  

12)  In the instant case, Respondent Nos. 1 and 2 filed an

original suit for the specific performance of the contract on the

ground that owners of the suit property transferred the entire

possession of property to them after agreement to sell and it

was done in pursuance of part performance. Hence, plaintiffs

are entitled for the benefit of Section 53A of the Transfer of

Property Act, 1882 (In short ‘the TP Act’). Section 53 A which

was added in 1929 and imports into India a modified form of

the  equity  of  part  performance  as  developed in  England  in

Elizabeth Maddison vs. John Alderson (1883) 8 App Cases

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467.  The following postulates are  sine qua non for basing a

claim on Section 53 A of the TP act, 1882:  

 There must be a contract to transfer for consideration

any immovable property.  The contract must be in writing signed by the transferor,

or by someone on his behalf.  The writing must be in such words from which the terms

necessary to construe the transfer can be ascertained.  The  transferee  must  be  in  part  performance  of  the

contract take possession of the property, or of any part

thereof.  The transferee must have done some act in furtherance

of the contract.  The  transferee  must  have  performed  or  be  willing  to

perform his part of the contract.

13) It  is  well  settled  law  that  Section  53A  of  the  TP  Act

confers no right on a party who was not willing to perform his

part of  the contract.  A transferee has to prove that  he was

honestly  ready  and  willing  to  perform  his  part  under  the

contract.  

14)  In the present case, during the course of hearing, it is

brought to our knowledge that both the trial court as well as

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the  lower  appellate  court  had  proceeded  to  arrive  at  the

conclusion that there was no delivery of possession in favour

of the Respondent Nos. 1 and 2 herein as per the agreement to

sell  dated  28.05.1981  on  the  ground  that  there  was  no

mention of delivery of possession.  It is submitted that the said

courts below had failed to appreciate the said judgment and

decree  dated  24.09.1987  of  the  learned  Additional  Munsiff,

Hukkeri in O.S. No. 129 of 1984 in proper prospective which

clearly shows that the said court having found the possession

of Respondent Nos. 1 and 2 herein in respect of the said entire

property including suit property had granted injunction in the

matter  and  restrained  the  third  party  to  interfere  with  the

possession of Respondent Nos. 1 and 2 herein.  Henceforth,

Respondent Nos. 1 and 2 have been in possession of suit land

against  all  other persons and can claim right  of  possession

even against the subsequent purchaser.

15) In the present case, the whole case revolves around the

one  question  whether  Respondent  Nos.  1  and  2  got  the

possession  of  entire  suit  land.  It  is  undisputed  fact  that

deceased  husband  of  Respondent  No.3,  along  with  other

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owners in Survey No. 77, entered into an agreement with the

Respondent  Nos.  1  and  2  but  later  on  Respondent  No.  3

refused to execute the said agreement.  In pursuance of  the

same, it is alleged that the possession of the entire land got

transferred to Respondent Nos. 1 and 2. However, Respondent

No. 3 herein denied this fact and alleged that possession of her

share never transferred to the original plaintiffs. After perusal

of the factual matrix of the entire case and peculiar facts, we

are of the considered view that on the basis of the finding in

OS No.  129 of  1984, it  is  well  established that the present

Respondent  Nos.  1  and  2  were  put  into  the  possession  of

entire land. The decree passes by the Munsiff in the year 1987

regarding possession in an independent suit filed in the year

1984 is  indicative  of  the  fact  that  the  plaintiffs/respondent

Nos. 1 and 2 were in possession.

Conclusion:-

16) In view of the foregoing discussion, we do not find any

reason  for  not  granting  specific  performance  in  favour  of

Respondent Nos. 1 and 2. Hence, in the interest of justice and

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since the Respondent Nos. 1 & 2 are in possession of suit land

for long time, we do not find any illegality with the reasoned

judgment  passed  by  the  High  Court  in  granting  specific

performance  in  their  favour  subject  to  paying  of  the  sale

consideration by them as per the present prevailing market

value within six months from today.  The appeal is dismissed

with no order as to costs.

...…………………………………J.                 (R.K. AGRAWAL)

…………….………………………J.            (ABHAY MANOHAR SAPRE)

NEW DELHI; APRIL 16, 2018.