Assumption and Presumtions carries no value = where the defendant No.2 had contested the suit and had put forth the contention that he was a bonafide purchaser without notice and through his evidence had deposed that he had no knowledge of agreement entered into between the defendant No.1 and defendant No.2, that aspect required appropriate consideration. However, the Courts below have on the contrary concluded that the defendants No.1 and 2 being of the same village, the defendant No.2 would have knowledge of the agreement entered into by the defendant No.1 in favour of the plaintiff. Such conclusion is only an assumption and there is no evidence with regard to the knowledge of defendant No.2 even if he was from the same village. In addition, the Lower Appellate Court has concluded that since the defendant No.1 has not caused appearance in spite of notice having been issued and he not being examined as a witness it could be gathered that there is connivance amongst the defendants to defeat the rights of the plaintiff. Such assumption is also not justified since the defendant No.2 had purchased the property for a consideration under a registered document and the defendant No.2 was also put in possession of the property. In that circumstance the defendant No.1 who had lost interest in the property, if had not chosen to appear and defend the suit the same cannot be a presumption of connivance in the absence of evidence to that effect. Wrong Appreciation of Evidence – Readiness and Willingness must be plead and must be proved even in the absence of defence = In the absence of denial by the defendant No.1, even if the payment of Rs.69,500/­ and the claim by the plaintiff of having gone to the office of Sub­Registrar on 15.06.2004 is accepted, the fact as to whether the plaintiff had notified the defendant No.1 about he being ready with the balance sale consideration and calling upon the plaintiff to appear before the Sub­Registrar and execute the Sale Deed was required to be proved. From among the documents produced and marked as Exhibit P1 to P9 there is no document to that effect, more particularly to indicate the availability of the balance sale consideration as on 15.06.2004 and as on the date of filing the suit. Despite the same, merely based on the oral testimony of PW1, the Courts below have accepted the case put forth by the plaintiff to be ready and willing to complete the transaction. Instead of arriving at an appropriate conclusion on that aspect, the Trial Court while answering the issues No.1 and 2 has concluded that the amount of sale consideration has already been paid and the fact that the Civil Suit has been filed by the plaintiff are sufficient to establish that the plaintiff remained ready and willing to perform his part of the contract. On the other hand, it is noticed that what had been paid as on the date of filing the suit was only the earnest money and the balance amount was deposited only on 03.08.2007 after the suit was decreed at the first instance on 14.06.2007 and not as on the date of filing the suit. Hence the concurrent conclusion reached by all the three Courts is an apparent error, the correction of which is necessary. It is no doubt true that as on the date of decision for the second time after restoration, the amount had been deposited which is not the same as having deposited or paid prior to or at the time of filing the suit. Even if the amount had been deposited as on the date of filing the suit, the readiness and willingness with possession of the sale consideration as on 15.06.2004 was necessary to be proved, which has not been done. Hence, in our opinion the Courts below have not appropriately considered this aspect of the matter.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 760 OF 2020
(Arising out of SLP (Civil) No.10949 of 2019)
Sukhwinder Singh .…Appellant(s)
Versus
Jagroop Singh & Anr. …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.

   Leave granted.     
  1. The appellant herein was the defendant No.2 in Case
    No.915 of 16.11.2004/17.04.2015. The respondent No.1
    herein was the plaintiff in the suit. The respondent No.2
    herein was the defendant No.1 therein. The parties will
    be referred to in the rank assigned to them in the suit for
    the purpose of convenience and clarity. The plaintiff
    instituted the suit seeking for decree of possession by
    way of specific performance of the Agreement of Sale
    Page 1 of 17
    dated 03.01.2004 executed by defendant No.1 in favour
    of the plaintiff agreeing to sell the land measuring 3
    Kanals 4 Marlas comprised of Khewat No.36/35
    Khatauni No.91, Rect. No.63 Killa No.2/2 (3­4), situated
    in village Dulla Singh Wala, Tehsil and District Ferozpur.
  2. The case of the plaintiff was that the property was
    agreed to be sold for the total consideration of
    Rs.1,40,000/­. Towards the said amount the plaintiff
    had paid the sum of Rs.69,500/­ as earnest money. The
    plaintiff had further prayed in the suit to set aside the
    Sale Deed dated 11.06.2004 executed by the defendant
    No.1 in favour of the defendant No.2 since according to
    the plaintiff the same was null and void and did not bind
    the plaintiff. In the alternative, the plaintiff had sought
    for a decree to recover a sum of Rs.1,40,000/­ of which
    Rs.69,500/­ had been paid as earnest money while the
    remaining sum of Rs.70,500/­ was sought as damages.
    The defendants at the first instance had failed to appear
    and contest the suit. Accordingly, the Trial Court by its
    judgment dated 14.06.2007 had decreed the suit.
    Page 2 of 17
  3. Though the defendant No.1 did not make out any
    grievance thereafter, the defendant No.2 who was the
    purchaser of the property filed a petition under Order 9
    Rule 13 of the Civil Procedure Code in Misc. Application
    No.46 of 23.02.2011 seeking that the ex parte decree be
    set aside and the suit be restored for consideration.
    Since the said petition was filed with delay, an
    application under Section 5 of the Limitation Act was
    filed seeking condonation of delay. The Trial Court
    having considered the same through its decision dated
    07.08.2012 dismissed the application seeking
    condonation of delay, consequently the petition under
    Order 9 Rule 13 of Civil Procedure Code was also
    dismissed as barred by Limitation. The defendant No.2
    claiming to be aggrieved preferred Civil Revision
    No.5332/2012 (O&M) before the High Court of Punjab
    and Haryana at Chandigarh. In the said Revision
    Petition filed under Section 115 of Civil Procedure Code
    read with Article 227 of the Constitution of India, the
    High Court had concurred with the decision of the Trial
    Court and dismissed the Revision Petition through its
    Page 3 of 17
    decision dated 12.09.2012. The defendant No.2 had
    carried the same before this Court in Civil Appeal
    No.1406/2015. This Court on taking into consideration
    that the defendant No.2 who was the appellant in the
    said Civil Appeal is to be provided an opportunity to
    contest the suit, had allowed the appeal by order dated
    02.02.2015 subject to payment of Rs.1,50,000/­ as cost.
    Leave to file the written statement in the suit was also
    granted. Pursuant thereto the defendant No.2 having
    paid the cost, filed the written statement and the suit was
    proceeded in accordance with law. Pursuant thereto the
    impugned judgments are passed which are assailed
    herein.
  4. Mr. Rahul Gupta, the learned counsel for the
    appellant contends that the defendant No.2 is the
    bonafide purchaser without notice of the alleged
    agreement between the plaintiff and defendant No.1. He
    contends that the entire transaction was entered into in a
    bonafide manner and the Sale Deed having been
    registered, the defendant No.2 was put in possession of
    Page 4 of 17
    the suit schedule property as far back as on 11.06.2004.
    Nearly 16 years have passed by and the defendant No.2
    has carried out considerable improvement to the property
    and is residing in the house constructed therein. In that
    view, at this juncture if the specific performance as
    sought by the plaintiff is ordered, greater hardship will be
    caused to the defendant No.2. It is pointed out that the
    plaintiff had made the alternate prayer for refund of the
    earnest money and damages which if considered would
    serve the ends of justice. The learned counsel contends
    that even to secure leave to file the written statement and
    defend the suit the defendant No.2 has already parted
    with the sum of Rs.1,50,000/­ in addition to the sale
    consideration that was paid to defendant No.1. In that
    circumstance, the compensation if any, is a matter to be
    considered by this Court as the grant of specific
    performance is not a rule and this Court has the
    discretion to decline specific performance in view of the
    provisions contained under Section 20 of the Specific
    Relief Act. It is also his contention that though the
    defendant No.1 has not contested the suit, there was an
    Page 5 of 17
    obligation on the plaintiff to establish his case which has
    not been effectively done by proving the readiness and
    willingness. The learned counsel would contend that
    though all the three Courts have held against the
    defendants, the non­consideration of the relevant facts
    would amount to a concurrent error committed by the
    Courts. It is, therefore, contended that the judgment and
    decree be set aside and the right accrued to the
    defendant No.2 under the Sale Deed dated 11.06.2004 be
    protected.
  5. Shri Mahendra Kumar, learned counsel for the
    plaintiff/respondent No.1 would seek to sustain the
    judgment passed by the Courts below. It is contended
    that all the three Courts have concurrently held against
    the defendants and the reversal of the same is not
    warranted. It is his case that the plaintiff had entered
    into an agreement of sale and had also paid the part sale
    consideration of Rs.69,500/­. The suit at the first
    instance was decreed on 14.06.2007 and the plaintiff had
    pursuant to the decree deposited the balance sale
    Page 6 of 17
    consideration of Rs.70,500/­ on 03.08.2007. The learned
    counsel contends that though the date for execution of
    the Sale Deed was stipulated as 15.06.2004, the Sale
    Deed was executed by the defendant No.1 in favour of
    defendant No.2 on 11.06.2004 so as to defeat the right of
    the plaintiff. It is contended that the defendant had
    connived with each other in that regard and, therefore,
    the same cannot be considered as a bonafide transaction.
    The learned counsel further contends that though an
    alternate prayer was made in the suit for the payment of
    damages as indicated therein, the property in question is
    highly valuable and as such the plaintiff should have the
    benefit of the appreciation as well. It is, therefore,
    contended that the appeal is liable to be dismissed.
  6. In the above background, it is seen that the
    contention of the plaintiff in the suit was that the
    defendant No.1 had agreed to sell the suit schedule
    property through the Agreement dated 03.01.2004 and
    the plaintiff had paid a sum of Rs.50,000/­ on the said
    date and a further sum of Rs.19,500/­ on 29.02.2004.
    Page 7 of 17
    Thus, in all a sum of Rs.69,500/­ was paid as earnest
    money. The date for execution of the Sale Deed was
    stipulated as 15.06.2004 on which date the balance sale
    consideration of Rs.70,500/­ was to be paid. The plaintiff
    contended that he was ready and willing to complete the
    transaction and as such on 15.06.2004 i.e. the stipulated
    date, the plaintiff appeared in the office of Sub­Registrar
    with the balance sale consideration and other expenses.
    According to the plaintiff the defendant did not turn up
    but the plaintiff got his presence marked by moving an
    application. It is only subsequently the plaintiff came to
    know that the defendant No.1 had executed a Sale Deed
    dated 11.06.2004 in favour of the defendant No.2 in
    respect of the very suit property. It is in that light the
    plaintiff had sought further relief as noted above.
  7. The defendant No.2 who had availed the
    opportunity granted by this Court and filed written
    statement on payment of cost had denied the execution of
    the agreement to sell and the receipt of earnest money.
    The defendant No.2 relying on the Sale Deed dated
    Page 8 of 17
    11.06.2004 contended that having purchased the
    property he is in possession and enjoyment of the same.
    The defendant No.2, therefore, sought for dismissal of the
    suit. The Trial Court framed as many as seven issues for
    its consideration based on the pleadings. The plaintiff
    examined himself as PW1 and also examined the
    witnesses as PW2 to PW4. The documents at Exhibits P1
    to P9 were marked. The defendant No.2 examined
    himself as DW1 and examined two witnesses as DW2 and
    DW3. The Trial Court with reference to the said evidence
    has decreed the suit. The Lower Appellate Court has reappreciated the material on record and concurred with
    the Trial Court. The High Court though was examining
    the Second Appeal where limited scope for reappreciation
    of the evidence is available, it is noticed that the High
    Court has not even adverted to the basic requirements to
    arrive at its conclusion. Be that as it may, considering
    that the suit in question was filed seeking for specific
    performance, the consideration to that effect as made by
    the Trial Court and endorsed by the Lower Appellate
    Page 9 of 17
    Court as also the High Court will have to be noticed
    cumulatively.
  8. The suit being the one for specific performance of
    the contract on payment of the balance sale
    consideration, the readiness and willingness was required
    to be proved by the plaintiff and was to be considered by
    the Courts below as a basic requirement if a decree for
    specific performance is to be granted. In the instant case
    though the defendant No.2 had denied the agreement as
    also the receipt of the earnest money, the same would not
    be of consequence as the agreement claimed by the
    plaintiff is with the defendant No.1 and the contention of
    the defendant No.2 to deny the same is without personal
    knowledge on that aspect. However, even in the absence
    of the defence put forth, the plaintiff was required to
    prove his readiness and willingness and that aspect of
    the matter was to be considered by the Courts below. In
    the present case though the plaintiff examined himself as
    PW1, as also PW2 and PW3, the document writer, and
    the witness to the agreement who stated with regard to
    Page 10 of 17
    the execution of the agreement, the evidence to prove the
    readiness and willingness with regard to the resources to
    pay the balance sale consideration is insufficient. In the
    absence of denial by the defendant No.1, even if the
    payment of Rs.69,500/­ and the claim by the plaintiff of
    having gone to the office of Sub­Registrar on 15.06.2004
    is accepted, the fact as to whether the plaintiff had
    notified the defendant No.1 about he being ready with the
    balance sale consideration and calling upon the plaintiff
    to appear before the Sub­Registrar and execute the Sale
    Deed was required to be proved. From among the
    documents produced and marked as Exhibit P1 to P9
    there is no document to that effect, more particularly to
    indicate the availability of the balance sale consideration
    as on 15.06.2004 and as on the date of filing the suit.
    Despite the same, merely based on the oral testimony of
    PW1, the Courts below have accepted the case put forth
    by the plaintiff to be ready and willing to complete the
    transaction.
    Page 11 of 17
  9. Instead of arriving at an appropriate conclusion on
    that aspect, the Trial Court while answering the issues
    No.1 and 2 has concluded that the amount of sale
    consideration has already been paid and the fact that the
    Civil Suit has been filed by the plaintiff are sufficient to
    establish that the plaintiff remained ready and willing to
    perform his part of the contract. On the other hand, it is
    noticed that what had been paid as on the date of filing
    the suit was only the earnest money and the balance
    amount was deposited only on 03.08.2007 after the suit
    was decreed at the first instance on 14.06.2007 and not
    as on the date of filing the suit. Hence the concurrent
    conclusion reached by all the three Courts is an apparent
    error, the correction of which is necessary. It is no doubt
    true that as on the date of decision for the second time
    after restoration, the amount had been deposited which
    is not the same as having deposited or paid prior to or at
    the time of filing the suit. Even if the amount had been
    deposited as on the date of filing the suit, the readiness
    and willingness with possession of the sale consideration
    as on 15.06.2004 was necessary to be proved, which has
    Page 12 of 17
    not been done. Hence, in our opinion the Courts below
    have not appropriately considered this aspect of the
    matter.
  10. Further, in a circumstance where the defendant
    No.2 had contested the suit and had put forth the
    contention that he was a bonafide purchaser without
    notice and through his evidence had deposed that he
    had no knowledge of agreement entered into between the
    defendant No.1 and defendant No.2, that aspect required
    appropriate consideration. However, the Courts below
    have on the contrary concluded that the defendants No.1
    and 2 being of the same village, the defendant No.2 would
    have knowledge of the agreement entered into by the
    defendant No.1 in favour of the plaintiff. Such
    conclusion is only an assumption and there is no
    evidence with regard to the knowledge of defendant No.2
    even if he was from the same village. In addition, the
    Lower Appellate Court has concluded that since the
    defendant No.1 has not caused appearance in spite of
    notice having been issued and he not being examined as
    Page 13 of 17
    a witness it could be gathered that there is connivance
    amongst the defendants to defeat the rights of the
    plaintiff. Such assumption is also not justified since the
    defendant No.2 had purchased the property for a
    consideration under a registered document and the
    defendant No.2 was also put in possession of the
    property. In that circumstance the defendant No.1 who
    had lost interest in the property, if had not chosen to
    appear and defend the suit the same cannot be a
    presumption of connivance in the absence of evidence to
    that effect.
  11. In the background of the above consideration, the
    plaintiff in any event was not entitled to a decree for
    specific performance and possession of the property
    against the defendant No.1. In the circumstance the
    declaration of the Sale Deed dated 11.06.2004 executed
    by the defendant No.1 in favour of the defendant No.2 to
    term the same as null and void as claimed by the plaintiff
    also did not arise. Despite the said position what is
    necessary to be taken note is that the sale in favour of
    Page 14 of 17
    the defendant No.2 was on 11.06.2004 i.e. subsequent to
    the date of the suit agreement dated 03.01.2004. Despite
    holding that the defendant No.2 is a bonafide purchaser,
    what cannot be lost sight is that the defendant No.1 had
    received a sum of Rs.69,500/­ from the plaintiff as far
    back as on 03.01.2004. That apart if the transaction was
    concluded at that stage the plaintiff would have been
    entitled to the benefit of the land. Even as per the
    ground at (Para x) raised by the defendant No.2 in this
    appeal, it would indicate that there has been
    considerable appreciation in the market price. Though in
    the normal circumstance the return of the advance
    received and the compensation for denial of the property
    was to be paid by the defendant No.1, as noted, the
    defendant No.1 having lost interest in the property has
    not appeared in the instant proceedings nor is there any
    material to indicate that he has benefited from the
    appreciation since even as per the contention of the
    plaintiff he has sold the property for a lesser price. In
    that situation the plaintiff cannot be left ‘high and dry’. If
    that be the position the defendant No.2 who has
    Page 15 of 17
    benefited from the property will have to repay the
    advance and compensate the plaintiff in the peculiar
    facts of the instant case. In that circumstance the
    defendant No.2 (the appellant herein) is required to be
    directed to pay a sum of Rs.3,50,000/­ only which is
    inclusive of the advance amount of Rs.69,500/­ to the
    plaintiff (the respondent No.1 herein) in full quit of all
    claims. The said amount is also to be directed to be paid
    by the defendant No.2 to the plaintiff within a period of
    three months failing which the same should carry
    interest at 12% per annum till payment. The plaintiff
    should also be entitled to withdraw the amount of
    Rs.70,500/­ stated to have been deposited by him before
    the Trial Court.
  12. In view of the above, the following order:
    i) The appeal is allowed in part. The judgment
    and decree dated 24.07.2015 passed in Case No.
    915 of 16.11.2004/17.04.2015 and affirmed by the
    Lower Appellate Court as also the High Court to
    the extent of granting the relief of specific
    performance is set aside.
    Page 16 of 17
    ii) The judgment and decree dated 17.04.2015 in
    Case No. 915 shall stand modified, and the
    appellant ­ defendant No. 2 is directed to pay a
    sum of Rs.3,50,000/­ only to the plaintiff within
    three months.
    iii) If the amount is not paid within the time
    stipulated the same shall carry interest at 12% per
    annum thereafter.
    iv) The plaintiff shall be entitled to withdraw the
    amount of Rs.70,500/­ lying in deposit before the
    Trial Court with the interest accrued, if any.
    v) In the facts and circumstances, the parties to
    bear their own costs.
    Pending application, if any, shall stand disposed of.
    ……………………….J.
    (R. BANUMATHI)
    ……………………….J.
    (A.S. BOPANNA)
    New Delhi,
    January 28, 2020
    Page 17 of 17