CNR No. HRPP02-000587-2021 CIS No.

CS/476/2021
Ompati Vs. Nand Lal 1

Case no. : RBT/28/2024

Presented on: 07.04.2021 & 22.02.2024

CIS no. : CS/476/2021

Decided on : 28.03.2024

IN THE COURT OF SARU GOYAL, CIVIL JUDGE (JR. DIVN.),

PANIPAT. (UID NO. HR0632)

Ompati wife of Shri Girvar Singh resident of Mauja Nangal Kheri, Abadi
Vikas Nagar, Behind NFL, Panipat.
... Plaintiff.

VERSUS

Nand Lal son of Shri Dei Ram resident of Mauja Nangal Kheri, Abadi Vikas
Nagar, Behind NFL, Panipat.
… Defendant.

SUIT FOR SPECIFIC PERFORMANCE

Present: Sh. Narender Paliwal, Advocate for plaintiff.

Defendant proceeded against exparte vide order dated
15.04.2021.

JUDGMENT:

Present suit has been filed by the plaintiff against the defendant
for specific performance.

2. Succinctly, brief facts of the plaint are that plaintiff is the owner
in possession of land/house measuring approximately 107 sq. yards situated
at Mauja Kheri Nangal, Killa no.29//13, Abadi Vikas Nagar, Panipat
(hereinafter referred to as suit property). Defendant entered into a sale
agreement on 03.10.2003 with plaintiff to sell the above said land or house

(Saru Goyal),
CJ(JD), Panipat,
28.03.2024
CNR No. HRPP02-000587-2021 CIS No. CS/476/2021
Ompati Vs. Nand Lal 2

against a sale consideration of Rs.68,450/- and as per the agreement

defendant has received total sale consideration of Rs.68,450/- on 03.10.2003
in the presence of witnesses. At the time of agreement defendant disclosed
that title of above stated plot cannot be transferred in plaintiff’s name due to
some technical reason and will be transferred in her name shortly. After
taking possession of suit property, plaintiff raised construction over the same
and constructed two rooms, one bathroom, one kitchen and has been residing
peacefully in the suit property without any intervention. He also got installed
one hand-pump for water usage and planted one Neem tree over the said
property. Plaintiff got served legal notice upon the defendant through her
counsel Shri S.C.Saini, Advocate and requested to get the sale deed
executed/transferred in her favour within seven days from the receipt of
notice but defendant did not bother for the same. Defendant never replied
the said registered notice. The plaintiff requested defendant many times to
get sale deed of aforesaid suit property executed in her favour but defendant
kept on refusing the same. Plaintiff has paid Rs.68,450/- is full and final sale
consideration to the defendant and she has been ever ready and willing to
perform her part of the contract and his still ready and willing to perform her
part of agreement and to bear the expenses for same and other expenses to be
incurred on executing the sale deed in her favour, but the defendant is neither
ready nor willing to perform his part of contract. The plaintiff thus prayed
that suit for transfer of suit property along with all rights be decreed in her
favour and against the defendant. She further prayed that defendant be also
directed to get executed and registered the sale deed in her favour and if he
refused to do so then it be got done through some court officials in her
favour. Thus, present suit.

3. Upon notice defendant did not appear and proceeded against

exparte vide order dated 15.04.2021.

4. In order to prove her case, plaintiff examined following

witnesses:-

(Saru Goyal),
CJ(JD), Panipat,
28.03.2024
CNR No. HRPP02-000587-2021 CIS No. CS/476/2021
Ompati Vs. Nand Lal 3

PW1 Ompati stepped into witness box and tendered her affidavit Ex.PW1/A
in her examination-in-chief wherein she reiterated the contents of the plaint
to pray that the suit be decreed. She also relied upon the following
documents:-

Ex.P1 - Agreement to sell dated 03.10.2003

Ex.P2 - Legal Notice dated 19.03.2021

Ex.P3 - Postal receipt

PW2 Naveen Kumar Jain proved site plan Ex.P4.

PW3 Pardeep tendered his affidavit Ex.PW3/A and supported case of

plaintiff.
Thereafter, learned counsel for plaintiff closed plaintiff's
evidence vide his separately recorded statement dated 27.04.2022.

5. Learned counsel for plaintiff tendered following documents in

additional evidence and closed evidence on behalf of plaintiff vide his
separately recorded statement.

Ex.P5 - Copy of jamabandi for the year 2001-2002

Ex.P6 - Copy of jamabandi for the year 2015-2016
Ex.P7 - Copy of jamabandi for the year 2020-2021
Ex.P8 - Copy of mutation no.44

6. Learned counsel for plaintiff argued that suit of plaintiff is duly

proved by oral as well as documentary evidence. He argued that plaintiff is
the owner in possession of the suit property and defendant entered into an
agreement to sell on 03.10.2003 with plaintiff to sell the suit property against
the sale consideration of Rs.68,450/- and as per the agreement plaintiff has
made full and final payment of the sale consideration of Rs.68,450/- to the
defendant. He further argued that plaintiff had even raised construction over
the suit property after taking its possession and is peacefully residing there.
The defendant earlier told plaintiff that due to some technical reasons sale

(Saru Goyal),
CJ(JD), Panipat,
28.03.2024
CNR No. HRPP02-000587-2021 CIS No. CS/476/2021
Ompati Vs. Nand Lal 4

deed regarding the suit property cannot be transferred in her name and the
same may be done shortly but despite serving a legal notice dated
19.03.2021 upon the defendant to get the sale deed executed in her favour,
defendant did not bother for the same. He further argued that plaintiff has
been aver ready and willing to perform her part of the contract and is still
ready to do so but defendant is not willing to perform his part of the contract.
He further argued that the plaint is sufficiently corroborated by the
testimonies of witnesses on behalf of the plaintiff and the site plan clearly
shows that plaintiff is in possession of the suit property without any
interference. Thus, prayed that suit be decreed.

7. I have heard learned counsel for plaintiff and perused case file
carefully.

8. In the present case, plaintiff has set up agreement to sell dated

03.10.2003 Ex.P1 and sought specific performance of aforesaid contract.

9. In Kamal Kumar Vs. Prem Lata Joshi AIR 2019 SCC 459,
Hon’ble Supreme Court held that in a suit for specific performance, material
questions to be considered are:-

(a) Whether there exist a valid and concluded contract between the
parties for sale/purchase of suit property.

(b) Passing of consideration in pursuance to such agreement should

be exclusively established.

(c) Whether the plaintiff has been ready and willing to perform his
part of contract and his still ready to perform his part as mentioned in
the contract.

10. The onus to prove its case is upon the plaintiff. In order to
establish valid contract between the parties, the plaintiff Ompati tendered in

(Saru Goyal),
CJ(JD), Panipat,
28.03.2024
CNR No. HRPP02-000587-2021 CIS No. CS/476/2021
Ompati Vs. Nand Lal 5

evidence the original agreement to sell dated 03.10.2003 Ex.P1.

11. In India, the best evidence rule has been regarded as a

fundamental principle upon which the law of evidence depends and which is
the basis of Sections 91 and 92 of Indian Evidence Act. Section 91 of Indian
Evidence Act provides that when evidence related to contract or grants or
other disposition of the property is reduced as a document, then no evidence
is required to be given for proof of those matters accept document itself.

12. In Roop Kumar Vs. Mohan Thedani (2003) 3 ICC 372, Hon’ble
Supreme Court observed that Section 91 of the Indian Evidence Act prohibits
proof of the contents of any writing in any other mode other than the writing
itself, embodying the best evidence rule declaring a doctrine of substantive
law.

13. Since in the present case, plaintiff has tendered his original
agreement to sell Ex.P1 in the evidence, applying Section 91 of the Indian
Evidence Act, it is considered the best evidence of the said document i.e.
document itself.

14. The agreement to sell dated 03.10.2003 is not registered one.

Section 49 of the Registration Act 1908 provides that no document required
by Section 17 or by Section 19 of the Registration Act or any provision of
the Transfer of Property Act 1882, to be registered shall be received in
evidence of any transaction affecting such property. But proviso to Section
49 of the Registration Act carves out an exception by providing that an
unregistered document effecting immovable property and required to be
registered, may be received as evidence of a contract in a suit for specific
performance under Chapter 2 of Specific Performance Act, 877.

15. In R. Hema Latha Vs. Kasturi 2023 SC, Hon’ble Supreme Court
held that unregistered agreement to sell, which is otherwise required to be
compulsorily registered, shall be admissible in evidence in a suit for specific

(Saru Goyal),
CJ(JD), Panipat,
28.03.2024
CNR No. HRPP02-000587-2021 CIS No. CS/476/2021
Ompati Vs. Nand Lal 6

performance in terms of proviso to Section 49 of the Registration Act 1908.

16. Thus, even though the agreement to sell dated 03.10.2003 is not
registered, by virtue of proviso to Section 49 of Registration Act, the same is
admissible in evidence.

17. Further, there is no requirement of law that an agreement to sell

shall be attested. Section 54 of the Transfer of Property Act 1882 states that a
contract for sale of the property shall take place on the terms settled between
the parties. It does not, of itself, create any interest in or charge on such
property. Thus, it is evidently that the agreement to sell is not required to be
attested by two attesting witnesses. Reliance can also be placed upon the
case titled as Gurmail Singh Vs. Sukhdev Singh, Regular Second Appeal
No.5225 of 2014 (O & M) decided on 20.04.2022 (P & H), wherein it was
held by Punjab and Haryana High Court that agreement to sell is not required
to be attested by two attesting witnesses. An agreement to sell shall be
required to be proved like any other written instruments in accordance with
Section 72 of the Indian Evidence Act 1872, which does not require attesting
witnesses to be examined.

18. Coming to the present case, the plaintiff specifically stated in

her pleadings that defendant entered in a sale agreement on 03.10.2003 with
her to sell the suit property against the sale consideration of Rs.68,450/- and
as per the agreement, defendant has received total sale consideration of
Rs.68,450/- on 03.10.2003 in presence of witnesses. To prove the same, she
examined herself as PW1 and tendered her affidavit Ex.PW1/A reiterating
aforesaid facts. Nothing contrary has appeared which could caste a doubt on
the execution of said agreement to sell between the parties. By virtue of the
aforesaid discussion, it is clear that unregistered agreement to sell is
admissible in evidence and the same can be proved like any other document
under Section 72 of the Indian Evidence Act and does not require attesting
witnesses to be examined. Thus, plaintiff has proved the execution of

(Saru Goyal),
CJ(JD), Panipat,
28.03.2024
CNR No. HRPP02-000587-2021 CIS No. CS/476/2021
Ompati Vs. Nand Lal 7

agreement to sell dated 03.10.2003.

19. Next thing which the plaintiff was required to prove was passing
of consideration in pursuance to such agreement. It was the stand of the
plaintiff that as per the agreement to sell dated 03.10.2003, the defendant has
received a total sale consideration of Rs.68,450/- on 03.10.2003 in the
presence of witnesses, and at that time defendant disclosed that the title of
above stated plot cannot be transferred in her name due to some technical
reasons and the same will be done shortly. In order to prove the same she
examined herself as PW1 and her son as PW3 and both reiterated the
contents mentioned in the plaint. Nothing contrary came from their
statements which could caste a doubt over their versions. Further in order to
prove the ownership of the defendant over the suit property the plaintiff
tendered Ex.P5 copy of jamabandi for the year 2001-2002, Ex.P6 copy of
jamabandi for the year 2015-2016, Ex.P7 copy of jamabandi for the year
2020-2021 and Ex.P8 copy of mutation no.44 by way of additional evidence.
Said jamabandis clearly show that defendant Nand Lal was the co-owner in
possession of Killa no.29//13 to the extent of 47/126 share and further
defendant is also owner of vast amount of other property. Thus, it is proved
that defendant was the owner of the suit property and he executed agreement
to sell Ex.P1 in favour of plaintiff.

20. The third thing which the plaintiff was required to prove was
that whether plaintiff was ready and willing to perform his part of contract
and is still ready and willing to perform the same.

21. Section 16 (c) of the Specific Relief Act makes it mandatory for
the plaintiff to aver and proof that he has already performed or was also
ready and willing to perform the essential terms of the contract which were
to be performed by him. In Uma Bai Vs. Neel Kanth Dhondiba Chavan
(2005) 6 SCC 243, Hon’ble Supreme Court held that it is now settled that the
conduct of the parties, with the view to arrive at a finding as to whether the

(Saru Goyal),
CJ(JD), Panipat,
28.03.2024
CNR No. HRPP02-000587-2021 CIS No. CS/476/2021
Ompati Vs. Nand Lal 8

plaintiff was all along ready and willing to perform his part of contract is
mandatorily required under Section 16 (c) of Specific Relief Act, must be
determined having regard to the entire attending circumstances.

22. In J.P.Builders and another Vs. A. Rama Dass Rao and another,
(2011) 1 SCC 429, Hon’ble Supreme Court held that distinction between
readiness and willingness is that former refers to financial capacity and latter
to the conduct of the plaintiff wanting performance.

23. In Sukhbir Singh and others V. Brijpal Singh AIR 1996 SC

2510, Hon’ble Supreme Court held that it is sufficient for the plaintiff to
establish that he had capacity to pay sale consideration and it is not necessary
that he should always carry money with him from the date of the suit till the
date of decree.

24. The plaintiff has specifically stated that she has paid Rs.68,450/-
to defendant as full and final sale consideration of the suit property. Further
in the agreement to sell Ex.P1 also it is clearly mentioned that defendant has
received full and final sale consideration of Rs.68,450/- in cash from the
plaintiff and handed over the possession of the property to the plaintiff and
nothing more remains to be paid to defendant. This is further proved by the
evidence of PW1 plaintiff herself and PW2 her son, who categorically
testified that Rs.68,450/- was paid to the defendant as full and final sale
consideration on 03.10.2003. To prove her readiness and willingness,
plaintiff also relied upon legal notice Ex.P2 given to the defendant asking
him to transfer the sale deed in her favour within seven days of the receipt of
the same. In Risal Vs. Alam Chand RSA no.1000 of 1999 (O & M), Punjab
& Haryana High Court, it was held that if entire sale consideration amount is
paid, then it can be taken as proved by the plaintiff that he was and is still
ready and willing to perform his contract. Further, in order to prove her
capacity to pay, plaintiff also tendered in evidence agreement to sell dated
07.01.1998 mark A, which was entered into between Kela Devi, sister-in-law

(Saru Goyal),
CJ(JD), Panipat,
28.03.2024
CNR No. HRPP02-000587-2021 CIS No. CS/476/2021
Ompati Vs. Nand Lal 9

of defendant and Girvar Singh, husband of plaintiff vide which Kela Devi
agreed to transferred land measuring 3 Marla 3 Sarsai in killa no.29//8/6 to
Girvar Singh for sale consideration of Rs.20,000/-. It is also mentioned in the
said agreement that Smt. Kela Devi has received full consideration of Rs.
20,000/- from Girvar Singh and handed over the possession of property to
him. Since the plaintiff has already paid full sale consideration of
Rs.68,450/- to the defendant at the time of making of agreement to sell and
nothing remains to be paid at her part, It completely shows that she had
already performed her part of the contract. This shows readiness and
willingness on her part to perform the contract.

25. Also in her plaint, plaintiff specifically stated that after payment
of sale amount, possession of the suit property was handed over to her by the
defendant and she has raised construction over the same and has been
residing peacefully in the suit property and has also got installed one hand
pump for water usage and planted one Neem tree over the suit property. This
fact is proved by the evidence of PW1, PW2 and PW3. PW2 Naveen Kumar
Jain, Draftsman, District Court, Panipat specifically testified that site plan
prepared by him was accurate and that plaintiff is in the possession of suit
property measuring 107 sq. yards marked in the site plan as ‘ABCD’ with red
colour. The perusal of the site plan shows the above mentioned construction
over the suit property. Also the agreement to sell Ex.P1 mentions the fact that
defendant handed over possession of the suit property to plaintiff. Therefore,
the execution of agreement to sell as well as readiness and willingness of the
plaintiff is well proved.

26. After the aforesaid discussion, suit of the plaintiff succeeds and
the same is hereby exparte decreed with costs to the effect that she is entitled
to decree for specific performance of full and final payment agreement to
sell dated 03.10.2003. Defendant is directed to execute and get registered the
sale deed pertaining to suit property in favour of plaintiff within three
months from the date of decree, failing which plaintiff shall be entitled to get

(Saru Goyal),
CJ(JD), Panipat,
28.03.2024
CNR No. HRPP02-000587-2021 CIS No. CS/476/2021
Ompati Vs. Nand Lal 10

the sale deed executed by seeking assistance of the Court. Plaintiff shall be
liable to pay expenses required for the execution and registration of sale
deed. Suit decreed with costs. Decree sheet be prepared and file be
consigned to record room.

Pronounced in open court:

(Saru Goyal),
Civil Judge (Jr. Divn.),
Panipat (UID no. HR0632).

Note: This judgment contains ten (10) pages and all the pages
have been checked and signed by me.

(Saru Goyal),
Civil Judge (Jr. Divn.),
Dated 28.03.2024 Panipat (UID no. HR0632).
Typed by Karun Aneja, Stenographer Gr. III

(Saru Goyal),
CJ(JD), Panipat,
28.03.2024