Himachal Pradesh High Court
Ravinder Pal Singh vs Pankaj Chandel on 14 July, 2026
2026:HHC:28536
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 191 of 2023
Reserved on: 24.06.2026
.
Date of decision:14.07.2206
Ravinder Pal Singh ...Appellant
Versus
Pankaj Chandel ...Respondent
of
Coram:
The Hon’ble Mr. Justice Romesh Verma, Judge.
Whether approved for reporting?1 Yes.
For the appellant
rt : Mr. Deepak Bhasin, Senior Advocate
with Mr. Sambhav Bhasin, Advocate.
For the respondent : Mr. Ajay Kumar, Senior Advocate with
Ms. Vanshika Sharma, Advocate.
Romesh Verma, Judge :
The present appeal arises out of judgment and decree as
passed by learned Additional District Judge, Sundernagar, District
Mandi, H.P., dated 31.12.2022, whereby the appeal filed by the
defendant was dismissed and the judgment and decree as passed by
learned Civil Judge, Court No.2, Sundernagar, District Mandi, H.P.
dated 23.12.2019 was affirmed, whereby the suit for specific
performance of agreement as instituted by the plaintiff was ordered to
be decreed.
2. The facts as emerge in the present case are that the
plaintiff/respondent filed a suit for specific performance of agreement
1
Whether reporters of Local Papers may be allowed to see
the judgment?
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to sell dated 15.10.2007. As per the averments as made in the plaint, it
was stated that the land comprised in Khewat No.259, Khatauni
Nos.428 to 438, measuring 282 Sq meters (to the extent of the share
.
of the defendant), situated at Muhal Pungh Hadbast No.26/7, Tehsil
Sundernagar, District Mandi, H.P., is recorded in the ownership and
possession of the defendant. The defendant intended to sell the suit
property and entered into an agreement for sale on 15.10.2007. It was
of
agreed between the parties that the defendant shall sell the suit
property to the plaintiff for a consideration amount of Rs.3,50,000/- out
rt
of which Rs.2,10,000/- i.e. Rs.1,75,000/- were received at the time of
execution of sale agreement and Rs.35,000/- were received just after
the execution of the agreement on the same day by the defendant.
The possession of the land was delivered to the plaintiff and the
remaining amount was agreed to be received by the defendant on or
before 15.01.2008 on the execution of the sale deed in favour of the
plaintiff.
3. It is the case of the plaintiff that the defendant was
verbally requested by the plaintiff that he is ready and willing to
perform his part of agreement dated 15.10.2007 and the sale deed
should be executed accordingly. However, the defendant did not pay
any heed to the request made by the plaintiff and he delayed the
matter on the one pretext or the other. The plaintiff was constrained to
issue legal notice upon the defendant on 02.08.2010 through
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registered post and UPC, but the defendant neither replied nor
became available to perform his part of the agreement. It was averred
that the cause of action accrued to the plaintiff on 15.10.2007, when
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the defendant executed the sale agreement with the plaintiff qua the
suit property and on 02.08.2010, when the legal notice was served
upon the defendant with the request to execute sale deed. Therefore,
the plaintiff prayed for the passing of decree for specific performance
of
of agreement dated 15.10.2007 in favour of the plaintiff on receiving
the sale consideration amount against the defendant with costs.
rt
4. The suit was contested by the defendant by raising
various preliminary objections such as maintainability, existence of a
valid and enforceable agreement, valuation etc. On merits, it was
stated by the defendant in the written statement that he never intended
to sell the land nor entered into an agreement of sale on the date as
alleged in the plaint. Further, it was denied that the defendant received
any amount of consideration or ever executed any agreement of sale
in favour of the plaintiff. Since no agreement was executed between
the parties, the question of delivering the possession of the suit
property to the plaintiff does not arise. The defendant did not enter
into, execute or get attested any agreement with the plaintiff and the
agreement, if any, produced by the plaintiff is false, frivolous,
manufactured and fraudulently obtained. The defendant prayed for
the dismissal of the plaint as instituted by the plaintiff.
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5. The plaintiff filed replication by reiterating all the
averments as made in the plaint.
6. Learned trial Court framed issues in the matter on
.
05.09.2011 in the following manner:
1. Whether the defendant had entered into an agreement to
sell qua the suit land with the plaintiff on 15-10-2007, as
alleged? OPP.
of
2. Whether the defendant received a part consideration of
Rs. 2,10,000/- in pursuance of the alleged agreement to
sell as alleged? OPP.
3.rt Whether the possession of the suit land was delivered by
the defendant to the plaintiff, as alleged? OPP
4. Whether the plaintiff is entitled to the decree of Specific
Performance of the agreement, as prayed for? OPP
5. Whether the suit is not maintainable in the present form?
OPD
6. Whether this court has no jurisdiction to grant a decree for
Specific Performance? OPD
7. Whether the suit is not properly valued for the purpose of
court fee? OPD
8. Relief.
7. Learned trial Court directed the respective parties to
adduce evidence in support of their contentions and vide its judgment
dated 23.12.2019, decreed the suit as filed by the plaintiff against the
defendant.
8. Feeling dissatisfied, the defendant preferred an appeal in
the Court of learned Additional District Judge, Sundernagar, District
Mandi on 17.02.2022. Learned first appellate Court vide its judgment
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and decree dated 31.12.2022 dismissed the appeal as preferred by
the defendant/appellant.
9. Still feeling aggrieved, the defendant has approached this
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Court by filing the instant regular second appeal.
10. It is contended by Mr. Deepak Bhasin, learned Senior
Counsel, duly assisted by Mr. Sambhav Bhasin, Advocate, that the
impugned judgments and decrees as passed by learned Courts below
of
are erroneous and liable to be quashed and set aside. He submitted
that the learned Courts below have erred by not framing the proper
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and appropriate issues, as a result of which, great prejudice has been
caused to his client. He would submit that the plaintiff has failed to
plead and prove readiness and willingness in order to obtain the
decree of specific performance of agreement to sell dated 15.10.2007.
He further submitted that neither any agreement to sell was entered
into between the parties nor the documents, which have been placed
on record, are the result of misrepresentation, collusion and fraud.
11. On the other hand, Mr. Ajay Kumar, learned Senior
Counsel, duly assisted by Ms. Vanshika Sharma, Advocate, has
defended the impugned judgments and decrees as passed by learned
Courts below. He submitted that there are concurrent findings of facts
as returned by learned Courts below. Therefore, while invoking powers
under Section 100 of CPC, this Court will not interfere in the well
reasoned judgments and decrees as passed by learned Courts below.
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He submitted that the trial Court, after appreciating the oral as well as
documentary evidence placed on record, has rightly decreed the suit
for specific performance and those findings have been affirmed in
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appeal.
12. With the consent of the parties, the appeal is admitted for
final consideration on the following substantial questions of law:
1. Whether the judgments and decrees as passed by
of
learned Courts below are erroneous on account of mis-
appreciation and misconstruction of oral as well as
rtdocumentary evidence placed on record.
2. Whether the learned Courts below have erred by granting
decree of specific performance of contract without framing
of issue of readiness and willingness and in the absence
of any pleading or proof in that regard?
13. I have heard learned counsel for the parties and have also
gone through the case file.
14. The plaintiff/respondent instituted a suit before the learned
trial Court for grant of decree for specific performance of agreement
dated 15.10.2007. It is the case of the plaintiff that the defendant is
owner-in-possession of the suit land comprised in Khewat No.259,
Khatauni Nos.428 to 438, measuring 282 Sq meters ( to the extent of
the share of the defendant), situated at Muhal Pungh, Hadbast
No.26/7, Tehsil Sundernagar, District Mandi, H.P. The defendant
executed an agreement to sell dated 15.10.2007 at Sundernagar for
total sale consideration of Rs.3,50,000/-. The plaintiff has stated that
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out of total sale consideration, a sum of Rs.2,10,000/- i.e.
Rs.1,75,000/- was received by the defendant at the time of execution
of sale agreement and Rs.35,000/- was received just after the
.
execution of agreement on the same day by the defendant. The
defendant was verbally requested by the plaintiff, who stated that he is
ready and willing to perform his part of agreement and that the
necessary sale deed should be executed in that regard. However, the
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defendant did not accede to the request of the plaintiff. The plaintiff
was compelled to issue legal notice for the redressal of his grievances
rt
on 02.08.2010, but the same was never replied by the defendant.
Therefore, it was prayed that the suit as instituted for specific
performance of agreement dated 15.10.2007 be decreed in favour of
plaintiff.
15. The defendant has taken a defence of total denial in the
present case. The execution of agreement to sell, payment of sale
consideration and delivery of possession have been flatly denied by
the defendant in his written statement. It has been stated by the
defendant in his written statement that he never entered into an
agreement with the plaintiff and in case any such agreement is
produced by the plaintiff, the same is false, frivolous, manufactured
and fraudulently obtained. The sum and substance of the defence as
put forward by the defendant is that he neither entered into an
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agreement with the plaintiff nor received any sale consideration or
delivered the possession to the plaintiff in any manner.
16. A copy of agreement to sell has been placed on record as
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Ext.PW-1/A. The said agreement was signed by the respective parties,
namely, Pankaj Chandel and Ravinder Pal Singh. The said agreement
to sell was witnessed by Ram Nath, son of Shri Churu Ram and Daya
Ram, son of Mahi Chand.
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17. In order to corroborate and prove the execution of
agreement, plaintiff, Pankaj Chandel, entered into the witness box as
rt
PW-1. In his deposition, he stated that the defendant had entered into
an agreement with him with respect to land measuring 282 Sq meters
on 15.10.2007. In that regard, Ext. PW-1/A was executed between the
parties. He stated that the said agreement has been duly signed by
him and the defendant. Out of the total sale consideration, a sum of
Rs.1,75,000/- was paid to the defendant at the time of preparation of
agreement to sell and on the very same day Rs.35,000/- was paid to
the defendant. The said amount was paid in the presence of witness
Shri Shiv Singh. He stated that the possession of land pertaining to
agreement was delivered on the spot to the plaintiff even though, the
land is joint. He stated that after the preparation of the agreement, he
made a request to the defendant for the execution of sale deed, but
the defendant never came despite his assurance. In December 2007,
he, along with Shiv Singh, went to the house of defendant, who
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assured them that in one or two days, the sale deed would be
executed. He stated that Shiv Singh had introduced him to the
defendant. Therefore, he made a request to Shiv Singh to accompany
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him to the house of the defendant. On the very same day, the
defendant had executed a power of attorney in his favour. He stated
that when on the oral request of the plaintiff, the defendant did not
execute the sale deed, then on 2nd August, 2010, through his counsel,
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he sent a legal notice to the defendant by registered letter. The receipt
of the UPC is Ext. PW-1/C and the receipt of register letter Ext.PW-
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1/D. Registered letter is Ext. PW-1/E, came back unclaimed, though
UPC was never returned. Despite the issuance of notice, the
defendant failed to execute the sale deed in his favour. He stated that
even today he is ready to execute the sale deed. and in case the
defendant does not acknowledge the receipt of Rs.35,000/-, he is
ready to pay the said amount again.
18. PW-4 is the statement of Shiv Singh Sen. The affidavit, as
placed on record, is Ext. PW-4/A. In his affidavit, he has stated that he
knew the parties and had also seen the suit land situated at Mohal
Pungh, Tehsil Sundernagar, District Mandi, which is recorded in the
ownership of the defendant. Defendant Ravinder Pal told him that he
wanted to sell the suit land measuring 282 Sq meters, situated at
Mohal Pungh, Tehsil Sundernagar, District Mandi, H.P. PW-4 stated
that the defendant had agreed to sell the suit land to the plaintiff
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Pankaj Chandel and both the parties entered into an agreement to sell
on 15.10.2007 for a total sale consideration of Rs.3,50,000/-. He
stated that out of the same, the defendant received Rs.2,10,000/- from
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the plaintiff. The remaining amount was to be received by the
defendant on or before 15.01.2008 on the execution of sale deed in
favour of the plaintiff. In his cross-examination, nothing concrete could
be extracted or elicited by the defendant.
of
19. PW-3 is the statement of R.S. Raghwa, Advocate. He has
stated in his deposition that in May 2000, he was notified as Notary
rt
Public in the Sundernagar Sub Division, District Mandi. On
15.10.2007, Ext. PW-1/A was notarized by him. He stated that the said
document was notarized on the asking of both the parties. He further
stated that before notarizing the agreement to sell, he had read over
the said document to the parties as well the witnesses. With respect to
notarization of Ext. PW-1/A his stamps are marked as Mark 19, Mark
20, Mark 21, Mark 22 Mark 23 and Mark 24. The said notarization was
incorporated at Serial No.2476 of his Register. In his cross-
examination, he stated that he cannot say whether the transaction had
been done in his presence or not. He denied that he is making the
statement falsely. He stated that while notarizing the agreement, he
knew the parties. He denied that, in connivance with the plaintiff, Ext.
PW-1/A had been wrongly notarized by him.
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20. PW-2 is the statement of Ram Nath. In his deposition, he
has stated that the agreement to sell was entered into between the
parties and he was a witness to it. Apart from him, the second witness
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was Daya Ram. He stated that he had duly appended his signatures
on the agreement to sell and he can identify his signatures on it. He
stated that they all had appended their signatures in the presence of
each other and that R.S. Raghwa, Notary, had attested the said
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document. In his cross-examination, he stated that he is client of J.S.
Chandel. Ext. PW-1/A was entered into between the plaintiff and the
rt
defendant near Sharma Photostat. The agreement to sell Ext. PW-1/A
was typed in the afternoon. He also stated that on the said day, he had
come on account of personal work. He stated that Pankaj Chandel, the
plaintiff, had handed over the amount of sale consideration to
defendant, Ravinder Pal, in his presence. He further stated that he did
not know Ravinder Pal prior to the said date. He denied that the
defendant, while executing Ext. PW-1/A and Ext. DA, was not present
at Sundernagar.
21. In order to rebut the case of the plaintiff, defendant
examined DW-1 Khem Chand, Junior Assistant, Municipal Council,
Ghumarwin. In his deposition, he stated that he has brought the
relevant records with respect to the leave application. He stated that
Shiv Singh Sen, the Secretary, had obtained the leave from the office
on 25.05.2007, 13.07.2007, 06.08.2007, 17.08.2007 to 18.08.2007,
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01.09.2007, 06.09.2007, 17.10.2007, 19.10.2007 & 24.10.2007. As per
the record, the said leave was sanctioned by the then President, Sat
Pal. In his cross-examination, he stated that record produced by him in
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the Court was not handwritten by him. He denied that he is making the
statement on the basis of incorrect record.
22. The defendant has examined DW-2 Shri Anil Sood, Stamp
Vendor. He stated that in 2007, he was working as Stamp Vendor.
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With respect to Ext. PW-1/A, stamp papers were purchased from him.
On Ext. PW-1/A, his signatures are appended.
rt
23. DW-3 is the statement of Vinod Kumar Sharma, Executive
Officer, Municipal Council, Ghumarwin, District Bilaspur. He stated that
on 15.10.2007, as per the record, Shiv Singh was on duty. He stated
that Ext. DW-3/C was prepared by him. He further stated that Ext. DW-
3/D, the leave application also contains his signatures. In his cross-
examination, he stated that at the relevant time, Shiv Singh was
working as Secretary, therefore, the register with respect to his
presence is not available. He stated the Secretary never marks his
presence, and only the staff record their presence.
24. Defendant, Ravinder Pal, has filed his affidavit Ext. DW-
4/A. In his affidavit he has stated that agreement dated 15.10.2007
Ext. PW-1/A was never executed by him nor he received the
consideration amount from the plaintiff. He stated that he never
approached the Public Notary to notarize the said agreement. He
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stated that he never delivered any possession of the suit property to
the plaintiff. He stated that he never received any legal notice Ext. PW-
1/B. Ext. PW-1/C, Ext. PW-1/D and Ext. PW-1/E placed on record are
.
false and frivolous and the same had been prepared in connivance
with the postal department. In his cross-examination, he has stated
that he had purchased 80 Sq meters and 202 Sq meters of land in
2002 from Smt. Asha Devi and the copy of the sale deed has been
of
placed on record as Ext. PA. He admitted his signatures on Ext. PW-
1/A, Mark-1, Mark-9, Mark-10, Mark-3, Mark-4, Mark-11 and Mark-17.
rt
He admitted his signatures on Ext. DA, which were encircled as Mark-
1, Mark-2 and Mark-3. In his cross-examination, he stated that his
signatures were obtained on the blank papers. He further stated that
when he inquired as to why signatures were being obtained on the
blank papers, he was told that it was a necessary requirement. He
admitted that power of attorney Ext. DA was registered before the
Tehsildar. Ext. DA was witnessed by Shri Daya Ram and Ram Nath.
He denied that he received the sale consideration amount from the
plaintiff. He duly acknowledged his signatures on Ext. PW-1/A. He
stated that the blank papers on which his signatures were obtained,
the plaintiff has prepared Ext. PW-1/A. He admitted that with respect to
this fraudulent activity, he had not reported the matter to the police. He
denied that as per the terms and conditions as stipulated in Ext. PW-
1/A, he was required to execute the sale deed in favour of the plaintiff.
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25. The defence, as set up by the defendant, in his written
statement, is that he never entered into an agreement to sell with the
plaintiff and the agreement, if any, produced by the plaintiff is false,
.
frivolous and fraudulently obtained. It is vehemently contended by
learned senior counsel for the appellant/defendant that the agreement
to sell, as alleged, is a sham transaction and the same is the outcome
of fraud.
of
26. Coming to this contention of learned senior counsel that
Ext. PW-1/A is result of fraud, misrepresentation and fabrication, it
rt
would be apt to reproduce the relevant provisions of Order 6 Rule 4
CPC, which read as under:-
1. Pleading.–“Pleading” shall mean plaint or written
statement. 1 2. Pleading to state material facts and notevidence–
(1) Every pleading shall contain, and contain only, a
statement in a concise form of the material facts on which
the party pleading relies for his claim or defence, as thecase may be, but not the evidence by which they are to be
proved.
(2) Every pleading shall, when necessary, be divided into
paragraphs, numbered consecutively, each allegation being,
so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a
pleading in figures as well as in words.
4. Particulars to be given where necessary.–In all cases in
which the party pleading relies on any misrepresentation,
fraud, breach of trust, wilful default, or undue influence, and
in all other cases in which particulars may be necessary
beyond such as are exemplified in the forms aforesaid,
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particulars (with dates and items if necessary) shall be
stated in the pleading.”
27. From the perusal of Order VI CPC, it is specifically clear
.
that every pleading shall contain and contain only a statement in a
concise form of all the material facts on which the party pleading relies
for his claim or defence, as the case may be. Order VI Rule 4 CPC
requires parties to state specific particulars to support their claims of
of
fraud and misrepresentation. Failure to do so leads to passing of
adverse order. General allegation that fraud has been committed does
rt
not meet the legal requirement. A party who alleges fraud has the
burden of proving its existence.
28. From the perusal of the written statement, it would be
clear that there is no specific allegations qua fraud. In the written
statement, only ground, which has been taken by the defendant is that
he has not entered or executed any agreement to sell with the plaintiff
and the agreement, if any, produced by the plaintiff is false, frivolous,
manufactured and fraudulently obtained. No specific allegation
pertaining to fraud, misrepresentation and fabrication has been
levelled in the entire written statement. Pleadings to this effect are
cryptic and vague. In case the evidence as led by the defendant is
perused the same is of total denial no necessary ingredients as
required under the law have been set up or established. By merely
levelling general allegation will not prove his case. Therefore, no
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reliance can be placed upon the same. In the present case, the
allegation of fraud is illusory and not specifically pleaded or prayed.
29. It is well settled law that in order to prove plea of fraud,
.
specific material/pleadings and evidence has to be placed on record
and in absence of doing so, adverse inference has to be drawn against
the said party.
30. The Hon’ble Supreme Court in Canara Bank vs. P.
of
Selathal, (2020) 13 SCC 143 has held as under:-
rt “11. Relying upon and following the decision of this Court in
the case of O.C. Krishnan and others (C.O. No. 1305/1997
order dated 6.6.2000 (cal), thereafter the Division Bench ofthe Madras High Court in the case of M/s Cambridge
Solutions Limited (2016) 5 LW 45, has rejected the plaint in
which the order passed by the DRT was challenged, inexercise of powers under Order 7 Rule 11 (d) of the CPC. It
is required to be noted that in the said case also there were
allegations of fraud in the plaint and considering theaverments in the plaint, it was found that the allegations of
fraud are illusory. It is observed by the Division Bench in the
said decision that specific instances and acts of fraud with
evidence have to be pleaded in the plaint. It is furtherobserved that mere statements are not enough. It is further
observed that it is not sufficient if just fraud is pleaded and
there must be material to show that the fraud is committed.
12. Having considered the pleadings and the averments in
the suits, more particularly the allegations of fraud, we find
that the allegations of fraud are with respect to the
partnership deed and there are no allegations at all with
respect to mortgage created by the Guarantor – Shri
Kallikutty and that too with respect to the deed of guarantee
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the judgment and order passed by the learned Magistrate
holding the partners of the firm guilty. However, it is required
to be noted that even in the said judgment passed by the
learned Magistrate there is no reference to the deed of.
guarantee and/or the mortgage created by the Guarantor.
Even the bank is not a party to the said proceedings. It is
reported that against the judgment and order passed by the
learned Magistrate, further appeal is pending. Be that as it
may, considering the pleadings/averments in the suits and
the allegations of fraud, we are of the opinion that the
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allegations of fraud are illusory and only with a view to get
out of the judgment and decree passed by the DRT. We are
rtof the opinion that therefore the suits are vexatious and are
filed with a mala fide intention to get out of the judgment and
decree passed by the DRT.”
31. In H. S. Goutham vs. Rama Murthy (2021) 5 SCC 241,
the Hon’ble Supreme Court has held as under:-
“32. Before the learned Principal City Civil Judge, the
judgment debtors led the evidence in support of their claim
that the judgment and decree was obtained by fraud and
mis-representation, which evidence was not led by them
before the Executing Court when they submitted the
objections and contended that the decree was obtained by
fraud. That, thereafter, the learned Principal City Civil Judge
submitted the report that the decree was obtained by
fraud and on the basis of the report submitted by learned
Principal City Civil Judge mainly, the High Court has set
aside the judgment and decree by the impugned judgment
and order. Thus, from the aforesaid it is crystal clear that all
through-out there was a delay and negligence on the part of
the judgment debtors in not initiating the appropriate
proceedings at appropriate stage.
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35. Now, so far as the procedure adopted by the High Court
calling for the report from the learned Principal City Civil
Judge on whether the decree was obtained by fraud or not is
concerned, at the outset, it is required to be noted that at the
.
time when the High Court passed such an order, there was
already an order passed by the learned Executing Court
dated 03.03.1998 overruling the objections raised by the
judgment debtors that the decree was obtained by fraud and
mis-representation. As observed by the learned Executing
Court in the order dated 03.03.1998, the judgment debtors
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except the averments that the decree was obtained by fraud,
mis-representation, neither any further submissions were
rtmade on that nor even the judgment debtors led any
evidence in support of the same. Therefore, as such,
learned Executing Court was justified in overruling the
objection that the decree was obtained by fraud, mis-
representation etc.
36. As per the settled principle of law, when the fraud is
alleged the same is required to be pleaded and established
by leading evidence. Mere allegation that there was a fraud
is not sufficient. Therefore, subsequent order passed by the
High Court calling for the report from the learned Principal
City Civil Judge on the question whether the decree was
obtained by fraud or not, can be said to be giving an
opportunity to the judgment debtors to fill in the lacuna.
Therefore, the course adopted by the High Court calling for
the report from the learned Principal City Civil Judge cannot
be approved.”
32. The Hon’ble Supreme Court in Electrosteel Castings
Limited vs. UV Asset Reconstruction Company Limited (2022) 2
SCC 573 has observed as under:-
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“7.2 However, it is required to be noted that except the
words used ‘fraud’/’fraudulent’ there are no specific
particulars pleaded with respect to the ‘fraud’. It appears that
by a clever drafting and using the words ‘fraud’/’fraudulent’.
without any specific particulars with respect to the ‘fraud’,
the plaintiff – appellant/defendant herein intends to get out of
the bar under Section 34 of the SARFAESI Act and wants
the suit to be maintainable. As per the settled preposition of
law mere mentioning and using the word ‘fraud’/’fraudulent’
is not sufficient to satisfy the test of ‘fraud’. As per the settled
of
preposition of law such a pleading/using the word ‘fraud’/
‘fraudulent’ without any material particulars would not
tantamount to pleading of ‘fraud’.
rt
8. In case of Bishundeo Narain and Anr, 1951 SCC 447 in
para 28, it is observed and held as under:
“22…. Now if there is one rule which is better established
than any other, it is that in cases of fraud, undue influence
and coercion, the parties pleading it must set forth fullparticulars and the case can only be decided on the
particulars as laid. There can be no departure from them in
evidence. General allegations are insufficient even toamount to an averment of fraud of which any court ought to
take notice however strong the language in which they are
couched may be, and the same applies to undue influence
and coercion. See Order 6, Rule 4, Civil Procedure Code.
8.1 Similar view has been expressed in the case of Ladli
Parshad Jaiswal AIR 1963 SC 1279 and after considering
the decision of the Privy Council in Bharat Dharma
Syndicate vs. Harish Chandra 1937 SCC OnLine PC 24, it is
held that a litigant who prefers allegation of fraud or other
improper conduct must place on record precise and specific
details of these charges. Even as per Order VI Rule 4 in all
cases in which the party pleading relies on any
misrepresentation, fraud, breach of trust, wilful default, or::: Downloaded on – 15/07/2026 20:31:06 :::CIS
-20- 2026:HHC:28536
undue influence, particulars shall be stated in the
pleading. Similarly in the case of K.C Sharma & Company,
(2020) 15 SCC 209, it is held that ‘fraud’ has to be pleaded
with necessary particulars. In Ram Singh and Ors. (1986) 4.
SCC 209 , it is observed and held by this Court that when
the suit is barred by any law, the plaintiff cannot be allowed
to circumvent that provision by means of clever drafting so
as to avoid mention of those circumstances by which the suit
is barred by law of limitation.
8.2 In the case of T. Arivandandam vs. T.V. Satyapal &
of
Anr.(1977) 4 SCC 467, it is observed and held in para 5 as
under: “5. We have not the slightest hesitation in
rtcondemning the petitioner for the gross abuse of the
process of the court repeatedly and unrepentently resorted
to. From the statement of the facts found in the judgment of
the High Court, it is perfectly plain that the suit now pending
before the First Munsif’s Court, Bangalore, is a flagrant
misuse of the mercies of the law in receiving plaints. The
learned Munsif must remember that if on a meaningful —
not formal — reading of the plaint it is manifestly vexatious,
and meritless, in the sense of not disclosing a clear right to
sue, he should exercise his power under Order 7, Rule 11
CPC taking care to see that the ground mentioned therein is
fulfilled. And, if clever drafting has created the illusion of a
cause of action, nip it in the bud at the first hearing by
examining the party searchingly under Order 10, CPC. An
activist Judge is the answer to irresponsible law suits.” 8.3
A similar view has been expressed by this court in the recent
decision in the case of P. Selathal & Ors., (2020) 13 SCC
143.”
33. In view of aforesaid exposition of law, submission of the
learned senior counsel for the appellant/defendant that Ext.PW1/A is
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result of fraud and misrepresentation does not hold good and said
contention is rejected.
34. The next contention as raised by learned senior counsel
.
for the appellant/defendant is that the learned Courts below have failed
to frame proper and appropriate issues arising out of the pleadings of
the parties. Learned Senior counsel for the appellant submitted that
the issue with respect to readiness and willingness has not been
of
framed by the learned Courts below, as a result of which great
prejudice has been caused to the appellant.
rt
35. A perusal of the record shows that the issues were framed
by the learned trial Court on 05.09.2011 and it was ordered by the
learned trial Court that the issues were read over and explained to the
parties through their counsel. No other issue arose or pressed has
been ordered in the same. It has been conceded by learned senior
counsel for the appellant that no application was filed for the framing of
additional issues nor any steps were taken in the Court. Therefore,
since the issues were framed in the presence of learned counsel for
the parties and no other issue was pressed at that stage, now at this
stage, that too at the stage of second appeal, this plea is not available
to the appellant. Even otherwise, the parties went to the trial fully well
knowing their case. The pleadings and evidence as led by the parties
on this aspect shows that parties were well aware about the issue
involved and the case set up by the respective parties. The learned
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counsel for the appellant has failed to establish that any prejudice has
been caused to the appellant in the absence of framing of any issue.
Parties were litigating fully knowing their case therefore, contention of
.
learned Senior Counsel cannot be accepted.
36. Learned senior counsel for the appellant has then
adverted to his next contention that the plaintiff has failed to plead and
prove his readiness and willingness in order to obtain the decree for
of
specific performance of agreement to sell. He submitted that, in view
of the exposition of law as laid down by Hon’ble Apex Court, the
rt
plaintiff has failed to specifically aver in the pleadings and in his
evidence, therefore, no decree could have been passed in the
absence of any pleading qua the readiness and willingness.
37. For that, the Court has to advert to the plaint as filed by
the plaintiff, whereby in para-3 of the same, the plaintiff has averred
that the defendant was verbally requested by him that he is ready and
willing to perform his part of agreement dated 15.10.2007 and that the
sale deed should be executed. It has further been stated in the said
para that the defendant did not pay any heed to the requests of the
plaintiff, therefore, a legal notice was issued and served upon the
defendant on 02.08.2010 through the registered post and UPC. The
defendant neither replied nor became available to perform his part of
the agreement. Therefore, the present suit.
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38. A copy of the legal notice has been placed on record as
Ext. PW-1/B and in the same, it has been stated by the plaintiff that on
15.10.2007, the parties entered into an agreement to sell with respect
.
to the share of the defendant comprised in Khatauni Nos.428 to 438,
total land measuring 282 Sq meters, situated at Muhal Pungh, Tehsil
Sundernagar, District Mandi, H.P. for a total sale consideration of
Rs.3,50,000/-.
of
39. It has been averred in the legal notice that the plaintiff has
been requesting the defendant to execute the sale deed, but the latter
rt
is not paying any heed to the request of the plaintiff. Further, in para-3
it has been stated that the plaintiff is ready and willing to pay the
remaining amount of sale consideration and bear the expenses of the
registration of sale deed, including purchase of stamps etc. for giving
effect to the sale of land under the agreement.
40. In order to substantiate the plea of readiness and
willingness, learned senior counsel for the respondent has drawn the
attention of this Court to the statement of PW-1 Pankaj Chandel, the
plaintiff. In his deposition, he has stated that the agreement to sell was
entered into between the parties on 15.10.2007. As per the
agreement to sell Ext. PW-1/A, the defendant was to execute the sale
deed prior to 15.01.2008. During this period, PW-1 stated that he sent
various messages to the defendant for the execution of sale deed, but
he did not turn up and kept on making promises. In December 2007,
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PW-1, plaintiff, Pankaj Chandel along with Shiv Singh went to the
house of the defendant. Even then, the defendant assured the plaintiff
that in one or two days, the necessary sale deed would be executed.
.
The defendant had also executed a power of attorney in favour of the
plaintiff. He stated that when oral request of the plaintiff was not
accepted by the defendant, he issued legal notice on 02.08.2010
through his counsel. Despite issuance of notice, the defendant did not
of
execute the sale deed, therefore, he was constrained to institute the
present suit. PW-1 stated in his deposition that from the time the
rt
agreement to sell was executed till the time when he was deposing
before the Court, as per the terms and conditions of the agreement,
the plaintiff was ready to execute the sale deed. He stated that he did
not obtain a receipt for the payment of Rs.35,000/- and the defendant
had told him that he need not to worry. The plaintiff further stated that
in case the defendant does not acknowledge the receipt of Rs.35,000/-
he is ready to pay the said amount to the defendant again.
41. Keeping in view the averments as made in the plaint,
notice Ext. PW-1/B and the oral testimony of Pankaj Chandel, plaintiff,
the necessary ingredients of readiness and willingness have been
specifically pleaded and proved by him. Considering the fact that a
sum of Rs.2,10,000/- was paid by the plaintiff to the defendant and in
conjunction with the averments as made in the plaint, legal notice and
the oral testimony, it can be inferred that the plaintiff was always ready
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and willing to perform his part of the agreement to sell. The submission
of learned senior counsel for the appellant that the necessary
pleadings and proof as required under Section 16(C) of Specific Relief
.
Act on readiness and willingness have not been proved by the plaintiff
are not correct.
42. The Hon’ble Apex Court in Syed Dastagir vs T.R.
Gopalakrishasetty, 1999(6) SCC 337 has held that to gather true
of
spirit behind a plea, it should be read as a whole. In construing a plea
in any pleading, Courts must keep in mind that a plea is not an
rt
expression of art and science but an expression through words to
place fact and law of ones case for a relief. Such an expression may
be pointed, precise, sometimes vague but still could be gathered what
he wants to convey through only by reading the whole pleading,
depends on the person drafting a plea. But to test, whether he has
performed his obligations one has to see the pith and substance of a
plea. Where a statute requires any fact to be pleaded then that has to
be pleaded may be in any form. Same plea may be stated by different
persons through different words, then how could it be constricted to be
only in any particular nomenclature or word. Unless a statute
specifically require for a plea to be in any particular form, it can be in
any form. No specific phraseology or language is required to take such
a plea. The language in Section 16(c) does not require any specific
phraseology but only that the plaintiff must aver that he has performed
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-26- 2026:HHC:28536
or has always been and is willing to perform his part of the contract. So
the compliance of readiness and willingness has to be in spirit and
substance and not in letter and form. So to insist for a mechanical
.
production of the exact words of a statute is to insist for the form rather
than essence. So absence of form cannot dissolve an essence if
already pleaded.
43. The overall circumstances and the conduct on the part of
of
the parties are relevant considerations for the purpose of deciding the
issues and the prayer of the plaintiff in whose favour the execution of
rt
the agreement to sell has been held to be proved. Even while proving
the readiness and willingness, the plaintiff is not required to make any
averment that the plaintiff required executant of the agreement to sell
to attend the office of the Sub-Registrar to execute the sale deed
within the time agreed. The Court must take into consideration the
conduct of the plaintiff prior and subsequent to filing of the suit along
with other attending circumstances in a particular case. Whether the
plaintiff was ready and was always ready to perform his part of
contract may be inferred from the facts and circumstances of a
particular case.
44. The Hon’ble Supreme Court in Civil Appeal No.5110 of
2021, titled Sughar Singh vs. Hari Singh (dead) through LRs &
others, has held as follows
“7. Even otherwise it is required to be noted that as such
there were concurrent findings of fact recorded by the
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learned Trial Court as well as the learned First Appellate
Court on readiness and willingness on the part of the
plaintiff, which were on appreciation of evidence on record.
Therefore, in exercise of powers under Section 100 of the
.
CPC the High Court ought not to have interfered with such
findings of fact unless such findings are found to be
perverse. Having gone through the findings recorded by the
learned Trial Court as well as the learned First Appellate
Court on readiness and willingness on the part of the
plaintiff, we are of the opinion that findings recorded cannot
of
be said to be perverse and/or contrary to the evidence on
record. On the contrary High Court has ignored the
necessary aspects on readiness and willingness which are
rt
stated hereinabove including the conduct on the part of the
parties.
8. Even the observations made by the High Court that
Forms 47 and 48 of the Appendix A to the CPC provide for
making an averment that the plaintiff has been “and still is
ready and willing specifically to perform the agreement on
his part” or that “the plaintiff is still ready and willing to pay
the purchase money of the said property to the defendant”
and that “there is non-compliance of Section 16(c) of the
Specific Relief Act and the plaint does not even contain any
averment that the plaintiff ever required defendant no.1 to
attend the office of the Sub-Registrar to execute the saledeed within time agreed are too technical in the facts and
circumstances of the case. The overall circumstances and
the conduct on the part of the parties are relevant
consideration for the purpose of deciding the aforesaid
issues and the prayer of the plaintiff in whose favour the
execution of the agreement to sell has been held to be
proved. The High Court has given unnecessary stress on
the word “still”.
9. Even while proving the readiness and willingness the
plaintiff is not required to make any averment that the
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plaintiff required executant of the agreement to sell to attend
the office of the Sub-Registrar to execute the sale deed
within the time agreed. Even as held by this Court in the
case of C.S. Venkatesh Vs A.S.C. Murthy (Dead) By Lrs.
.
and Ors. reported in (2020) 3 SCC 280 to adjudge whether
the plaintiff is ready and willing to perform his part of
contract, the Court must take into consideration the conduct
of the plaintiff prior and subsequent to filing of the suit
alongwith other attending circumstances in a particular case.
It is also further observed that whether the plaintiff was
of
ready and was always ready to perform his part of contract
may be inferred from the facts and circumstances of a
rt particular case. It is further observed that it is not necessary
for the plaintiff to produce ready money but it is mandatory
on his part to prove that he has means to generate
consideration amount. In the present case even it was not
the case on behalf of the defendants and even there is no
finding by the High Court that the plaintiff was not having
any means to generate consideration amount. It is required
to be noted that as per the last extension and the document
executed the balance amount of sale consideration i.e.
Rs.16,000/- was to be paid at the time of execution of the
sale deed and earlier out of Rs.56,000/- of total sale
consideration, Rs.40,000/- was already paid and there were
two extensions at the instance of the original defendant No.1
who was his father-in-law.
45. In N. Thirugnanam(dead) by LRs vs. Dr. R. Jagan
Mohan Rao & others, (1995) 5 SCC 115, it has been held by the
Hon’ble Apex Court that Section 16(c) of the Specific Relief Act
envisages that plaintiff must plead and prove that he had performed or
has always been ready and willing to perform the essential terms of
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the contract. In order to determine whether the plaintiff was ready and
willing to perform his part of the agreement, it is necessary for the
Court to consider the conduct of the plaintiff prior and subsequent to
.
the filing of the suit for specific performance.
46. Taking into consideration the oral as well as documentary
evidence placed on record, this Court has no hesitation in holding that
the plaintiff was ready and willing to perform his part of the agreement
of
and after payment of a part of sale consideration, this fact was averred
in the plaint and legal notice and the plaintiff’s readiness has been
rt
demonstrated in his evidence. Therefore, the contention of the learned
senior counsel for the appellant/defendant that the plaintiff has failed to
plead and prove his readiness and willingness is rejected.
47. As far as the contention of learned senior counsel for the
appellant that the execution of agreement Ext. PW-1/A has not been
proved is concerned, it cannot be accepted especially in view of the
concession as made by the learned counsel for the appellant before
the learned Additional District Judge, Sundernagar. In para-18 of the
impugned judgment, it was noted by the learned Additional District
Judge that the counsel for the appellant fairly conceded that the
execution of agreement Ext. PW-1/A has been proved on record.
Therefore, in view of the concession, as made by learned counsel
before the learned first appellate Court, now this plea is not available
to the appellant before this Court.
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48. The learned senior counsel for the appellant has raised
another contention that since the agreement to sell was unregistered,
the decree for specific performance of agreement could not have been
.
passed in favour of the plaintiff. To his this submission, it will be apt to
reproduce the relevant provisions of Section 49 of the Registration Act
read as follows:
of
“49. Effect of non-registration of documents required to be
registered.-
rt No document required by section 17 [or by any provision of
the Transfer of Property Act, 1882 (4 of 1882), to be
registered shall
(a)affect any immovable property comprised therein, or
(b)confer any power to adopt, or
(c) be received as evidence of any transaction affecting such
property or conferring such power, unless it has been
registered:[Provided that an unregistered document affecting
immovable property and required by this Act, or the Transfer
of Property Act, 1882 (4 of 1882), to be registered may be
received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act,
1877[3 of 1877] or as evidence of any collateral transaction
not required to be effected by registered instrument.”
49. To rebut the contention of appellant, the learned Senior
Counsel for the respondent has relied on the judgment of the Hon’ble
Supreme Court in S. Kaladevi vs. V.R. Somasundaram and others
(2010) 5 SCC 401, the relevant paras whereof read as under:
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“10. Section 17 of 1908 Act is a disabling section. The documents
defined in clauses (a) to (e) therein require registration
compulsorily. Accordingly, sale of immovable property of the value
of Rs. 100/- and more requires compulsory registration. Part X of
the 1908 Act deals with the effects of registration and non-
.
registration.
11. Section 49 gives teeth to Section 17 by providing effect of
non-registration of documents required to be registered. Section
49 reads thus:
“S.49.- Effect of non-registration of documents required to be
registered.- No document required by section 17 or by any
provision of the Transfer of Property Act, 1882 (4 of 1882), toof
be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such
rtproperty or conferring such power, unless it has been
registered:
Provided that an unregistered document affecting
immovable property and required by this Act or the Transferof Property Act, 1882 (4 of 1882), to be registered may be
received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act, 1877
(3 of 1877), or as evidence of any collateral transaction not
required to be effected by registered instrument.”
12. The main provision in Section 49 provides that any document
which is required to be registered, if not registered, shall not affect
any immovable property comprised therein nor such documentshall be received as evidence of any transaction affecting such
property. Proviso, however, would show that an unregistereddocument affecting immovable property and required by 1908 Act
or the Transfer of Property Act, 1882 to be registered may be
received as an evidence to the contract in a suit for specific
performance or as evidence of any collateral transaction notrequired to be effected by registered instrument. By virtue of
proviso, therefore, an unregistered sale deed of an immovable
property of the value of Rs. 100/- and more could be admitted in
evidence as evidence of a contract in a suit for specific
performance of the contract. Such an unregistered sale deed
can also be admitted in evidence as an evidence of any collateral
transaction not required to be effected by registered document.
When an unregistered sale deed is tendered in evidence, not as
evidence of a completed sale, but as proof of an oral agreement
of sale, the deed can be received in evidence making an
endorsement that it is received only as evidence of an oral
agreement of sale under the proviso to Section 49 of 1908 Act.
13. Recently in the case of K.B. Saha and Sons Private Limited v.
Development Consultant Limited (2008) 8 SCC 564, this Court
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noticed the following statement of Mulla in his Indian Registration
Act, 7th Edition, at page 189:-
“……The High Courts of Calcutta, Bombay, Allahabad,
Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan,.
Orissa, Rangoon and Jammu & Kashmir; the former Chief
Court of Oudh; the Judicial Commissioner’s Court at
Peshawar, Ajmer and Himachal Pradesh and the Supreme
Court have held that a document which requires registration
under Section 17 and which is not admissible for want ofregistration to prove a gift or mortgage or sale or lease is
nevertheless admissible to prove the character of the
possession of the person who holds under it……”
of
This Court then culled out the following principles:-
“1. A document required to be registered, if unregistered is
not admissible into evidence under Section 49 of the
rtRegistration Act.
2. Such unregistered document can however be used as an
evidence of collateral purpose as provided in the proviso
to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible
from, the transaction to effect which the law required
registration.
4. A collateral transaction must be a transaction not itself
required to be effected by a registered document, that is, atransaction creating, etc. any right, title or interest in
immovable property of the value of one hundred rupees and
upwards.
5. If a document is inadmissible in evidence for want of
registration, none of its terms can be admitted in evidence
and that to use a document for the purpose of proving animportant clause would not be using it as a collateral
purpose.”
To the aforesaid principles, one more principle may be added,
namely, that a document required to be registered, if unregistered,
can be admitted in evidence as evidence of a contract in a suit for
specific performance.”
50. To the similar extent, the Hon’ble Supreme Court in
Ameer Minhaj vs. Dierdre Elizabeth (Wright) Issar and others
(2018) 7 SCC 639 has held as follows:
“10. On a plain reading of this provision, it is amply clear that
the document containing contract to transfer the right, title or::: Downloaded on – 15/07/2026 20:31:06 :::CIS
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interest in an immovable property for consideration is
required to be registered, if the party wants to rely on the
same for the purposes of Section 53A of the 1882 Act
to protect its possession over the stated property. If.
it is not a registered document, the only consequence
provided in this provision is to declare that such
document shall have no effect for the purposes ofthe said Section 53A of the 1882 Act. The issue, in our
opinion, is no more res integra. In S. Kaladevi Vs. V.R.
Somasundaram and Ors., this Court has restated the legalof
position that when an unregistered sale deed is tendered
in evidence, not as evidence of a completed sale, but as
rtproof of an oral agreement of sale, the deed can be received
as evidence making an endorsement that it is received only
as evidence of an oral agreement of sale under the provisoto Section 49 of the 1908 Act.”
51. Further, in Civil Appeal No. 6543 of 2025 in case titled
Muruganandam vs. Muniyandi (died) through legal heirs, decided on
08.05.2025 while dealing with the similar proposition, the Hon’ble Apex
court has held as follows:
“9. Having considered the matter in detail, we are of the opinion
that the prayer of the appellant in the interlocutory application falls
under proviso to Section 49 of the Registration Act which provides
that an unregistered document affecting immovable property may
be received as evidence of a contract in a suit for specific
performance. The proviso also enables the said document to be
received in evidence of a collateral transaction. Section 49 reads
as follows:
“49. Effect of non-registration of documents required to be
registered.–No document required by section 17 [or by
any provision of the Transfer of Property Act, 1882, to be
registered shall– (a) affect any immovable property
comprised therein, or (b) confer any power to adopt, or (c)
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property or conferring such power, unless it has been
registered:
Provided that an unregistered document affecting
immovable property and required by this Act or the.
Transfer of Property Act, 1882, to be registered may be
received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act,
1877 or as evidence of any collateral transaction not
required to be effected by registered instrument.”
52. Therefore, as per the exposition of law, as laid down by
of
the Hon’ble Apex Court, an unregistered document affecting
immovable property and required by 1908 Act or the Transfer of
rt
Property Act, 1882 to be registered may be received as an evidence to
the contract in a suit for specific performance or as evidence of any
collateral transaction not required to be effected by registered
instrument. By virtue of proviso, therefore, an unregistered sale deed
of an immovable property of the value of Rs. 100/- and more could be
admitted in evidence as evidence of a contract in a suit for specific
performance of the contract. Such an unregistered sale deed can also
be admitted in evidence as an evidence of any collateral transaction
not required to be effected by registered document. When an
unregistered sale deed is tendered in evidence, not as evidence of a
completed sale, but as proof of an oral agreement of sale, the deed
can be received in evidence making an endorsement that it is received
only as evidence of an oral agreement of sale under the proviso
to Section 49 of 1908 Act.
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53. Therefore, the findings as returned by the learned First
Appellate Court while relying upon the proviso of Section 49 of the
Registration Act that the unregistered agreement to sell is admissible
.
in evidence in a suit for specific performance is strictly in accordance
with law. The learned first Appellate Court while dealing with the point
rightly came to the conclusion that the agreement to sell is required to
be registered for the applicability of the doctrine of part performance
of
under Section 53-A of 1882 Act and there is no bar for the specific
performance of an unregistered document.
rt
54. Even otherwise, this Court is conscious of the fact that
there are concurrent findings of fact as recorded by the learned trial
Court as well as the learned first appellate Court on readiness and
willingness on the part of the plaintiff, which were based on
appreciation of evidence on record. This Court, in exercise of its
powers under Section 100 of CPC, cannot interfere with such findings
of fact unless such findings are found to be perverse. Having gone
through the findings as returned by the learned trial Court and the
learned first appellate Court on readiness and willingness on the part
of the plaintiff, this Court is of the considered opinion that said findings
cannot be said to be perverse or contrary to the evidence on record.
55. The Hon’ble Supreme Court in Navaneethammal vs.
Arjuna Chetty AIR 1996 SC 3521, has enumerated the scope of
Section 100 of CPC, which reads as under:
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“10. This Court, time without number, pointed out that
interference with the concurrent findings of the courts
below by the High Court under Section 100 CPC must be
avoided unless warranted by compelling reasons. In any.
case, the High Court is not expected to re-appreciating the
evidence just to replace the findings for the lower courts.
20. In our considered view the lower Appellate Court
has fairly appreciated the evidence in the above
background and has reached the conclusion that the suit
was not barred by Limitation. Even assuming that another
of
view is possible on a re-appreciation of the same
evidence, that should not have been done by the High
rtCourt as it cannot be said that the view taken by the First
Appellate Court was based on no material.”
56. Similarly, the Hon’ble Apex Court in Kshitish Chandra
Purkait vs. Santosh Kumar Purkait and others (1997) 5 SCC 438
has held as under:
“10. We would only add that (a) it is the duty cast upon
the High Court to formulate the substantial question of law
involved in the case even at the initial stage; and (b) thatin (exceptional) cases, at a later point of time, when the
Court exercises its jurisdiction under the proviso to sub-
section (5) of Section 100 C.P.C in formulating the
substantial question of law, the opposite party should be
put on notice thereon and should be given a fair or proper
opportunity to meet the point. Proceeding to hear the
appeal without formulating the substantial question of law
involved in the appeal is illegal and is an abnegation or
abdication of the duty cast on Court; and even after the
formulation of the substantial question of law, if a fair or
proper opportunity is not afforded to the opposite side, it
will amount to denial of natural justice. The above
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jurisdiction under Section 100 CPC should always be
borne in mind. We are sorry to state that the above
aspects are seldom borne in mind in many cases and
second appeals are entertained and/or disposed of,.
without conforming to the above discipline.
11. The guidelines to determine as to what is a
“substantial question of law” within the meaning of Section100 CPC, have been laid down by this Court in a
Constitution Bench decision in Chunilal V. Mehta and
Sons Ltd. v. Century Spg. and Mfg. Co. Ltd There is alsoof
a later decision of this Court in Mahindra and Mahindra
Ltd. v. Union of India3. It is unnecessary to deal at length
rtwith that aspect any further.”
57. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar
and others, AIR 1999 SC 2213, the Hon’ble Supreme Court has held
as under:
“5. It is not within the domain of the High court to
investigate the grounds on which the findings were arrivedat, by the last court of fact, being the first appellate Court.
It is true that the lower appellate Court should notordinarily reject witnesses accepted by the trial court, in
respect of credibility but even where it has rejected thewitnesses accepted by the trial Court, the same is no
ground for interference in second appeal when it is found
that the appellate Court has given satisfactory reasons for
doing so. In a case where from a given set of
circumstances two inferences are possible, one drawn by
the lower appellate court is binding on the High Court in
second appeal. Adopting any other approach is not
permissible. The High Court cannot substitute its opinion
for the opinion of the first appellate Court unless it is found
that the conclusions drawn by the lower appellate Court
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provisions of law applicable or its settled position on the
basis of pronouncements made by the apex Court, or was
based upon inadmissible evidence or arrived at without
evidence.”
.
58. In Naresh and others vs. Hemant and others, (2022) 18
SCC 802, the Hon’ble Supreme Court held as under:
“10.The High Court invoked the presumption without
of
proper consideration and appreciation of the facts
considered and dealt with by two courts holding by
reasoned conclusions why the presumption stood rebutted
rton the facts. The High Court also committed an error of
record by holding that there was no evidence thatTrimbakrao Ingole alone had constructed the house, a
finding patently contrary to the admission of PW-1 in his
evidence. The fact that mutation also was done in the
name of Trimbakrao Ingole alone which remainunchallenged at any time was also not noticed. The
conclusion of the High Court that improper appreciation ofevidence amounted to perversity is completely
unsustainable. No finding has been arrived at that anyevidence had been admitted contrary to the law or that a
finding was based on no evidence only in whichcircumstance the High Court could have interfered in the
second appeal.
2. The High Court therefore manifestly erred by interfering
with the concurrent findings on facts by two courts below in
exercise of powers under Section 100, Civil Procedure
Code, a jurisdiction confined to substantial questions of
law only. Merely because the High Court may have been
of the opinion that the inferences and conclusions on the
evidence were erroneous, and that another conclusion to
its satisfaction could be drawn, cannot be justification for
the High Court to have interfered.
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12.In Madamanchi Ramappa v. Muthaluru Bojappa, (1964)
2 SCR 673, this court with regard to the scope for
interference in a second appeal with facts under Section
100 of the Civil Procedure Code observed as follows:
.
“12. ….The admissibility of evidence is no doubt a point
of law, but once it is shown that the evidence on which
courts of fact have acted was admissible and relevant,it is not open to a party feeling aggrieved by the
findings recorded by the courts of fact to contendof
before the High Court in second appeal that the said
evidence is not sufficient to justify the findings of fact in
question. It has been always recognised that the
sufficiency or adequacy of evidence to support a finding
rt
of fact is a matter for decision of the court of facts andcannot be agitated in a second appeal. Sometimes, this
position is expressed by saying that like all questions of
fact, sufficiency or adequacy of evidence in support of a
case is also left to the jury for its verdict. This positionhas always been accepted without dissent and it can
be stated without any doubt that it enunciates what canbe properly characterised as an elementary
proposition. Therefore, whenever this Court is satisfiedthat in dealing with a second appeal, the High Court
has, either unwittingly and in a casual manner, ordeliberately as in this case, contravened the limits
prescribed by s. 100, it becomes the duty of this Court
to intervene and give effect to the said provisions. It
may be that in some cases, the High Court dealing with
the second appeal is inclined to take the view that what
it regards to be justice or equity of the case has not
been served by the findings of fact recorded by courts
of fact; but on such occasions it is necessary to
remember that what is administered in courts is justice
according to law and considerations of fair play and
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clear and express provisions of the law. If in reaching
its decisions in second appeals, the High Court
contravenes the express provisions of section 100, it
would inevitably introduce in such decisions an element.
of disconcerting unpredictability which is usually
associated with gambling; and that is a reproach which
judicial process must constantly and scrupulously
endeavour to avoid.”
13.Though precedents abound on this settled principle of
law, we do not consider it necessary to burden our
of
discussion unnecessarily except to rely further on Gurdev
Kaur v. Kaki, (2007) 1 SCC 546, holding as follows:
“71. The fact that, in a series of cases, this Court was
rt
compelled to interfere was because the true legislativeintendment and scope of Section 100 CPC have
neither been appreciated nor applied. A class of judges
while administering law honestly believe that, if they are
satisfied that, in any second appeal brought beforethem evidence has been grossly misappreciated either
by the lower appellate court or by both the courtsbelow, it is their duty to interfere, because they seem to
feel that a decree following upon a grossmisappreciation of evidence involves injustice and it is
the duty of the High Court to redress such injustice. Wewould like to reiterate that the justice has to be
administered in accordance with law.
xxxx
73. The Judicial Committee of the Privy Council as
early as in 1890 stated that there is no jurisdiction to
entertain a second appeal on the ground of an
erroneous finding of fact, however gross or inexcusable
the error may seem to be, and they added a note of
warning that no court in India has power to add to, or
enlarge, the grounds specified in Section 100.
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xxxx
81. Despite repeated declarations of law by the
judgments of this Court and the Privy Council for over a.
century, still the scope of Section 100 has not been
correctly appreciated and applied by the High Courts in
a large number of cases. In the facts and
circumstances of this case the High Court interferedwith the pure findings of fact even after the amendment
of Section 100 CPC in 1976. The High Court would notof
have been justified in interfering with the concurrent
findings of fact in this case even prior to the
amendment of Section 100 CPC. The judgment of the
rt High Court is clearly against the provisions of Section
100 and in no uncertain terms clearly violates the
legislative intention.
82. In view of the clear legislative mandate crystallised
by a series of judgments of the Privy Council and thisCourt ranging from 1890 to 2006, the High Court in law
could not have interfered with pure findings of facts
arrived at by the courts below. Consequently, theimpugned judgment is set aside and this appeal is
allowed with costs.”
14.The order of the High Court interfering with concurrent
findings of facts by two courts is, therefore, held to be
unsustainable in exercise of the powers under Section 100
of the Civil Procedure Code. The order of the High Court is
consequently set aside. The orders dated 06.03.1998 and
13.06.2002 of the Trial Court and the First Appellate Court
are restored. The suit of the plaintiffs is dismissed. The
present appeal is allowed.”
59. In Brij Narayan Shukla (dead) through legal
representatives vs. Sudesh Kumar Alias Suresh Kumar (dead)
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through Legal Representatives and others, (2024) 2 SCC 590, the
Hon’ble Supreme Court held as under:
“10.2 The High Court was hearing the Second Appeal
.
under section 100 of Code of Civil Procedure, 1908 and
it having reappreciated the findings to disturb findings of
fact, committed an error.”
60. In Civil Apepal No.5131 of 2025, titled as R. Nagaraj
of
(dead) through LRs and another vs. Rajmani and others, the
Hon’ble Supreme Court held as under:
rt”7. By the impugned judgment and order and without
answering anything on the substantial questions of lawframed/formulated, absolutely in a casual manner, the
High Court has allowed the Second Appeal and has set
aside the concurrent findings recorded by both the courtsbelow and thereafter has remanded the matter to the
learned trial Court permitting the original plaintiff to amend
the plaint and pray for fixation of the boundary.
9. Having heard learned counsel for the respective parties
and having gone through the impugned judgment andorder passed by the High Court, we are constrained to
observe that the manner in which the High Court has dealtwith the Second Appeal under Section 100 of the CPC is
not appreciable at all. From the impugned judgment and
order passed by the High Court, it appears that the High
Court has exercised the powers as if the High Court was
deciding the Writ Petition under Article 226 of the
Constitution of India. The High Court has not appreciated
at all that the High Court was deciding the Second Appeal
under Section 100 of the CPC and that too against the
concurrent findings of fact by both the courts below, which
were, as such, on appreciation of evidence on record.
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Under the circumstances, the impugned judgment and
order passed by the High Court is unsustainable.11. At
the cost of repetition, it is observed that the High Court
was dealing with the Second Appeal under Section 100
.
CPC and the concurrent findings recorded by both the
courts below which were on appreciation of evidence on
record. Neither at the stage of deciding the suit nor even
before the first Appellate Court even such a prayer was
made to amend the plaint, which is now permitted by the
High Court, despite the fact that earlier in the suit during
of
the course of trial, the plaint was amended. Under the
circumstances also, the impugned judgment and order
rt passed by the High Court is unsustainable.”
61. The learned Courts below have taken into consideration
the oral as well as documentary evidence placed on record and rightly
decreed the suit as filed by the plaintiff for specific performance of
agreement to sell. The learned Courts below have not committed any
error and the same is not an outcome of any illegality or jurisdictional
error.
62. No other point urged by the learned counsel for the
parties.
63. The substantial questions of law are answered
accordingly.
64. In view of above discussions, the present appeal being
devoid of any merit is dismissed. Pending applications, if any, also
stand disposed of.
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65. It is contended by learned senior counsel for the
respondent that the decree as passed by the learned trial Court does
not specify the time for the execution of sale deed, therefore, time
.
bound direction be issued to do the same.
66. Consequently, the respondent is directed to pay the
remaining sale amount along with interest at the rate of 6% per annum
from the date of passing of judgment by the learned trial Court to the
of
appellant/defendant within eight weeks from today and thereafter the
appellant to execute the sale deed in favour of the respondent within
rt
further four weeks.
(Romesh Verma)
Judge
14th July, 2026
(vt)
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