Judgment:
J.S. Narang, J.
1. Surjit Singh and Gurnam Singh plaintiff-appellants (hereinafter referred to as 'the vendees') filed a suit for specific performance on the premises of an agreement to sell dated December 3, 1977 executed with one Chanan Ram defendant-respondent No. l, who had agreed to sell the land defined in the agreement measuring 52 Kanals 18 Marias situated at village Salana Jeon Singhwala for a consideration of Rs. 19,000/- per acre. The aforestated agreement was duly signed by Chanan Ram in token of acceptance of the averments contained therein and that the same has also been attested by the witnesses. Pursuant to the agreement, the sale deed was to be executed on or before 15.6.1978. The earnest money of Rs. 10,000/- had been paid at the time of execution of the agreement and that the remaining sale consideration was to be paid at the time of registration of the sale deed before the Sub Registrar. A stipulation is also contained in the afoiestated agreement that the possession of the land, subject matter of the agreement, shall be delivered after harvesting the Rabi crop of the year 1978. It may be mentioned that the aforestated land, at that time, was under the cultivation of one Gurnam Singh son of Nikka Singh (this person is different from Gurnam Singh who has been defined as plaintiff-appellant No. 2) as a tenant and that he surrendered possession of the same to the plaintiff-appellants in accordance with the terms of the aforestated facts, that the plaintiff-appellants had always been ready and willing to perform their part of the contract.
2. It has been noticed by the Courts below that the plaintiff-appellants had also filed a suit for permanent injunction for restraining defendant No. 1 from alienating the afor estated property during the pendency of the suit. Another fact which has been noticed is that defendant Nos.2 to 5 got the aforestated property attached by initiating the proceedings under Section 145/146 of Cr.P.C. and pursuant thereto got a Receiver appointed accordingly.
3. A notice had been issued to the vendor requiring him to execute the sale deed pursuant to the aforestated agreement and also get the same registered accordingly. The vendor did not respond to the notice, therefore, he never performed his part of the contract. The vendees came present before the Competent Authority on the appointed date i.e. 5.6.1978 along with necessary funds for the purpose of execution of the sale deed and registration thereof but the vendor did not turn up. The vendee got their attendance noted down by way of filing an application before the Competent Authority. The plaintiffs have also asked for alternative relief for the refund of the earnest money, besides, the payment of Rs. 1,05,000/- as damages. The defendant-respondent Nos. 2 to 5 have been impleaded as parties as it has been alleged that the aforestated property fell to their lot on the premises of some family agreement, which is stated to have been executed amongst the defendants. However, the plea set up is that the alleged agreement is nothing but a result of collusion and fraud.
4. The suit has been contested by defendant-respondents by way of filing two separate written statements i.e. vendor has filed a separate written statement and so also defendant-respondents the plea set up by them is that the vendor had disowned his ownership of the aforestated land as the same had fallen to the share of the aforestated defendants on the premises of some family agreement which came into existence much prior to the agreement to sell dated December 3, 1977. They have also denied the knowledge of the agreement and have also pleaded that the vendor did not have any locus or any right to execute such kind of agreement. They have further pleaded that pursuant to the family arrangement the partition proceedings had been initiated which came into being on August 15, 1971 amongst all the said defendant-respondents. The pleas contained in the plaint relating to the aforestated facts have been categorically denied. However, the factum of initiation of proceedings under Sections 145/146 Cr.P.C. in respect of the aforestated land has been admitted, thus, the cause of action has been seriously disputed.
5. So far as defendant-respondent Nos.2 to 5 are concerned, the same stand has been taken by them. The stand of both the set of replication has been controverted by way of filing replication. Upon the pleading of the parties, the issues had been framed and the parties have led documentary as well as occular evidence in support thereof. The trial Court has given a tacit finding that the suit land was the coparcenary property of Chanan Ram and his sons and that a family partition did taken place prior to the execution of the agreement to sell Ex. Pl. Pursuant to the family partition the requisite share fell to the lot of defendant Nos.2 to 5, resultantly Chanan Ram left with no interest therein, and, therefore, could not execute an agreement to sell in regard to the share which fell to the lot of defendant-respondent Nos.2 to 5. It has also been held that the plaintiff-appellant had not obtained possession of the suit land pursuant to the agreement to sell, therefore, the question of Receiver having taken possession from the occupier did not arise. The cumulative effect is that the suit of the plaintiff-appellant has been dismissed by the trial Court vide judgment and decree dated November 29, 1980, which was challenged before the Lower Appellate Court, by the plaintiff-appellant. The lower-appellate court has affirmed the findings of the trial Court and resultantly dismissed the appeal vide judgment and decree dated 10.12.1983, The cross-objections have also been dismissed by the lower appellate Court. The court below have categorically held that in fact no agreement can be said to have been executed between the parties as the said agreement is vague and upon the basis of the same no sale deed can be executed.
6. The plaintiff-appellant, being dissatisfied, has filed the present appeal. It has been. canvassed that the Courts below have fallen into error in holding that the agreement is vague and in fact this point could not have been allowed to be raised as no such plea has been taken. The reasoning given by the trial Court is not sustanable and that the lower appellate Court by allowing the defendant-respondents to raise the plea way of filing an application under Order 41 Rule 22 of CPC, is incrrect and that such indulgence is not grantable under law. It has been further contend' that if such right was to be granted, the opportunity to controvert the same shout have been gianted to the plaintiff-appellants. It has been incorrectly held that' the plea raised is purely a question of law and that the same could be raised even at the stage of appeal before the lower appellate Court. It has also been contended that the lower appellate Court further fell into error in holding that the agreement in question is void being uncertain and that the said opinion cannot be formed on the basis of the construes ion of the agreement Ex. P.l.
7. Learned counsel for the appellant has further argued that the defendant-respondent was not entitled to raise such plea and that pursuant to the provisions of CPC the appellant alone could raise any kind of plea and that the defendant-respondent cannot be allowed to step into the shoes of the appellant. Admittedly, the cross-objections had been filed and the perusal of the same shows that such plea has been taken, which is contained in para 5 of the cross-objections. This plea has been rejected while dismissing the cross-objections. Therefore, the lower appellate Court fell into error in allowing the application under Order 41 Rule 22 of CPC, which finding would be contrary to the one which has been returned by way of dismissing the cross-objections. Reliance has been placed upon a judgment of this Court rendered in Re: Sham Singh v. Waryam Singh, (1994-2)107 P.L.R. 93. A reference has also been made to the provision contained in Order 41 Rule 22 C.P.C., which reads as under:-
'Order XLI : Appeals from original decree:
Rules (1) to (21) xxx xxx xxx xxx
22. Upon hearing respondent may object to decree as if he had preferred separate appeal:(l) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation:- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
(2) Form of objection and provisions applicable thereto:- Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such part or his pleader at the expense of the respondent. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the defendant thinks fit.'
8. It is contended that in the appeal, the appellant alone is entitled to be heard in support of any grounds of objections set forth in the memorandum of appeal and that too with the leave of the Court. However the power of the appellate Court cannot be curbed to confine itself to the grounds of objections set forth in the memorandum of appeal or additionally taken by leave of the Court. It has been further argued that by granting indulgence to the defendant, the lower appellate Court has exceeded its jurisdiction, alternatively, if the indulgence was to be granted, an issue was required to be framed and the parties should have been granted the opportunity to lead evidence in support of their pleadings in respect of the issue which may have been framed. In this manner, the plaintiff-appellant has not been given the opportunity to controvert that the agreement is not vague and that the same is enforceable.
9. On the other hand, learned counsel Shri J.S. Wasu, Senior Advocate, appearing on behalf of the defendant-respondents has argued that the perusal' of the agreement Ex.Pl shows that the same is vague and that on the basis of the same no enforceable decree can be granted. He has contended that even if for argument sake the application filed under Order 41 Rule 22 CPC, is ignored, could the Court grant the decree of specific performance on the basis of the agreement wherein it has not been specified as to how much land is available which had been agreed to be sold between the parties. It is the settled law that if the agreement is not enforceable and that the measure of the land is not determinable to be sold, the vague decree cannot be granted. Learned counsel has drawn my attention to Ex.Pl, the agreement to sell, the perusal of which shows that the quantity of land which is alleged to have been agreed to be sold has not been defined. It has been averred in the agreement that the land measuring 52 Kanals 18 Marias is the area which is defined in the khasra numbers mentioned in the agreement to sell and that the same is situated at village Jeon Singhwala out of which some area has been sold by the vendor and that the remaining area is agreeable to be sold at the rate of Rs. 19,000/- per acre and that the measure of the acre shall be 8 kanals. It has been further said that after consulting the revenue record and on the basis of the same whatever measure of land is available the same shall be sold. The agreement does not disclose how much land has been sold out of the aforestated land and how much is available as per the revenue record. Thus, the agreement is absolutely vague and no relief is grantable pursuant to the said agreement.
10. Learned counsel has further argued that in view of the dicta of the apex court even if no objection has been taken in respect of the incorrect reasoning adopted by the trial Court while returning the finding, the defendant is entitled to argue against such reasoning without filing any cross-objections. The cross-objections are sustainable against a decree and not against a judgment. If the decree is silent in this regard, while supporting the decree, the arguments can be addressed accordingly. Reliance has been placed upon a judgment of the Apex Court rendered in re: Banarsi and Ors. v. Ram Phal, A.I.R. 2003 S.C. 1989, it has been held as under
'9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the Court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek support of the decree by challenging finding on ground (B) and persuade the appellate Court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of defendant-appellant the decree still be sustained by reversing the finding on ground (B) though the plaintiff-respondent has neither preferred an appeal of his own nor taken any cross-objection. A right to file cross-objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar and Anr., 1971(1) S.C.R. 146, that the right given to a respondent in an appeal to file cross-objection is a right given to the some extent as a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross-objection is the exercise of right of appeal and takes the place of cross-appeal though the form differs. Thus, it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appear nor take any cross-objection though certain finding may be against him. Appeal and cross-objection-both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was well settled position of law under the unamended CPC.'
Thus, in view of the law settled by the apex Court, the right of the defendant-respondent cannot be effected even if the cross-objections filed by the defendant-respondent have been dismissed. The decree passed by the lower appellate Court specifically refers that the appeal be and the same is hereby dismissed without any orders as to costs. Resultantly, the decree of the trial Court has been affirmed, the perusal of which shows that the decree has been passed to the extent; 'It is ordered that the plaintiff cannot be granted the relief of specific performance of the agreement of sale. However, as held on issue No. l the plaintiffs paid a sum of Rs. 10,000/- to Chanan Ram as earnest money at the time of execution of the agreement to sell Ex.P. l. The plaintiffs are, therefore, entitled to refund of this amount and consequently the plaintiffs are granted the decree for the recovery of Rs. 10,000/- with costs against Chanan Ram defendant No.l only.' It has been further argued that once the trial Court has chosen to grant the alternative relief after giving a tacit finding that the agreement is not enforceable, the same should not be interfered with. The Apex Court has categorically held that in a given case where the agreement is vague or is not executable on account of any circumstances which have emerged therefrom, the alternative relief is grantable and that the finding of facts returned in respect of the enforceability of the agreement should not be interfered with. Reliance has been placed upon a judgment of the apex court rendered in Banarsi and others case (supra).
11. After hearing learned counsel for the parties and perusal of the pleadings and the evidence and also the documents produced by way of evidence, I am of the view that the Courts below have correctly declined to grant the relief of specific performance of the contract of sale and that have correctly granted the alternative relief by way of passing decree of Rs. 10,000/- in favour of the plaintiff and against defendant No.l only. The perusal of the agreement Ex.Pl shows that the vendor was not clear as to how much land is available to be sold out of the land measuring 52 Kanals 18 Marias, the agreement also does not specify as to how much land out of the aforestated total land stood sold and what was the remaining land available for execution of the sale deed. It is also not recorded as 1o from which revenue record the aforestated factum would be determinable, again a vague averment that upon elucidation of the revenue jecord whatever land is available to be sold the same shall be sold by way of execution of the sale deed. The vendee obviously was also not aware as to how much land is being bought by him,
12. The defendant-respondent field application under Order 41 Rule 22 CPC by raising the categoric objection with regard to the vagueness of the aforestated agreement and that the said application had been filed before the lower appellate Court, which has been dealt with in the judgment itself. Admittedly, in the cross objection as well the said plea has been taken as contained in para 5, there is no doubt the cross-objections have been dismissed and that the application has been allowed and the plea raised has been considered accordingly. De hors of this, even if this plea had not been set up or taken by way of filing the application under the aforestated provision, the agreement itself could be subjected to scrutiny as to whether the same is executable and that if the answer is in the negative the suit could not have been decreed and, therefore, has rightly not been decreed. The principle that the judgment debtor is entitled to argue against a finding rendered in the judgment but not incorporated in the decree as the appeal is maintainable against the decree and so also the cross-objections has become res integrapursuant to the judgment of the Apex Court rendered in re: Banarsi and Ors. case (supra). Thus, arguments in this regard and the indulgence is grantable accordingly. Resultantly, the plea of the appellant in this regard is not sustainable and the same deserves to be rejected.
13. Learned counsel for the appellant has further argued that the agreement Ex.Pl cannot be termed as vague because the right to seek execution of the sale deed pursuant to the area mentioned in the agreement had been duly converged as no plea had been set up before the trial Court in this regard. Thus, in the absence of such plea the plaintiff-appellant was not required to lead any affirmative evidence. I am afraid this argument is without any substance as the document executed between the parties is required to be interpreted in accordance with the applicable provisions of law. In the case at hand, the document has been produced by the plaintiff-appellant on the basis of which the specific performance has been asked for. However, the question arises as to with regard to what subject-matter the document i.e. the sale deed can be executed. The plain reading of the document in question does not spell out as to how much area is saleable and how much consideration would be payable accordingly. There is no doubt the rate per acre has been defined in the agreement but it shall be applicable to what area is not reflected. Thus, the argument that the agreement is not vague deserves to be rejected.
14. In view of the settled law, the Courts below have granted the relief alternative prayed for by the plaintiff-appellant i.e. the decree for payment of Rs. 10,000/- stated to have been paid as earnest money, has become payable. In view of the fact that the agreement is not enforceable by way of execution of sale deed, the alternative relief has been correctly granted.
15. Further, it has been argued by the learned counsel for the plaintiff-appellant that in regard to agreement being vague, no issue had been frarhed. Thus, acceptance of the application under Order 41 Rule 22 of the CPC without the opportunity having been granted to the plaintiff-appellant to plead his case by way of leading evidence and dispelling the plea of the agreement being vague, is not sustainable. I am afraid this argument is also not sustainable as has been observed above that even if the application under Order 41 Rule 22, had not been filed by the defendant-respondents and that no plea and been taken in this regard by way of cross-objection, even then the interpretation of the document could have been objected to and the Courts would be well within their rights to opine accordingly. In such a situation, where the agreement to sell has been executed, it becomes imperative that the ultimately effect of the document should also be determined. In any case, determination as to whether the effect thereof can be taken to a logical conclusion i.e. execution of a sale deed and that such document would be creatable with regard to how much land and what amount shall be payable, would be the ingredient to be satisfied for ultimately accepting the agreement to sell in accordance with law. It is the settled law that if by reading the agreement and relying thereon to the best advantage of the vendee if the ultimate document i.e. the sale deed is not executable, the relief grantable as specific performance would not be decreed. Thus, I find no infirmity in the judgment and decree of the trial Court dated 29.11.1980, which has been further affirmed by the lower appellate Court vide judgment and decree dated 10.12.1980, though the reasoning may be different. As a sequel thereto, the present appeal is not sustainable. The cumulative effect is that no question of law arises for determination and none can be said to have been substantiated by the appellant accordingly. Resultantly, the appeal is dismissed with no order as to costs.