Supreme Court of India
RUSSI FISHERIES P. LTD. & ANR.versusBHAVNA SETH & ORS.
- Citation
- 2026 INSC 339
- Decided
- 9 April 2026
- Disposal
- Dismissed
- Bench
- PANKAJ MITHAL
Holding
Findings of fact by the first appellate court cannot be disturbed in a second appeal absent a substantial question of law, and the decree of specific performance is upheld, rendering the defendants' subsequent transfers non‑est.
Summary
The case concerns a suit for specific performance of an 1988 agreement to sell agricultural land, where the plaintiff paid Rs.7,75,000 and claimed readiness to execute the sale deed, but the defendants alleged non‑payment of cash and lack of willingness. The trial court dismissed the specific performance claim, but the first appellate court reversed that decision, finding the plaintiff had fulfilled his obligations, a judgment upheld by the High Court in a second appeal. The defendants filed a Special Leave Petition, during which the plaintiffs obtained a sale deed based on the decree, while the defendants transferred the land to third parties, invoking the doctrine of lis pendens. The Supreme Court held that findings of fact, even if erroneous, cannot be reopened in a second appeal unless a substantial question of law exists, and that the High Court erred in re‑appraising evidence. It also affirmed that the adverse presumption arising from the plaintiff’s non‑appearance was rebutted by credible evidence, and that the defendants’ transfers are void as they are pendente lite. Consequently, the decree of specific performance stands and the defendants' later sale deeds are declared non‑est, with the appeal dismissed.
Issues considered
- The validity and enforceability of the 1988 agreement to sell despite being unregistered.
- Whether the plaintiff demonstrated continuous readiness and willingness to perform his part of the contract.
- Whether the High Court could re‑appraise factual findings of the first appellate court in a second appeal.
- The effect of the plaintiff’s non‑appearance as a witness and the applicability of adverse presumption.
- The impact of the doctrine of lis pendens on the defendants’ transfers of the suit land made during pendency of the litigation.
Legislation cited
Headnote
Issue for Consideration Issue arose as regards the correctness of the order passed by the High Court in the Second Appeal filed by the defendants, whereby the judgment passed by the first appellate court was upheld and the decree of the specific performance as passed in first – Relief of – Agreement to sell between the parties – Suit for specific performance of an agreement to sell filed by the plaintiff, dismissed holding that the plaintiff failed to prove his continuous readiness and willingness to perform his part of the contract, but decreed
Subjects
Second AppealDecree of the specific performanceRelief of specific performanceAgreement to sellContinuous readiness and willingness to perform his part of the contractRefund of sale considerationExecution of sale deedSubstantial question of lawExtension of timePayment of cash moneyPresumptionAdverse presumptionRebuttal presumptionDoctrine of lis pendens
Judgment
[2026] 4 S.C.R. 479 : 2026 INSC 339
Russi Fisheries P. Ltd. & Anr.
v.
Bhavna Seth & Ors.
(Civil Appeal No. 109 of 2010)
09 April 2026
[Pankaj Mithal* and Prasanna. B. Varale, JJ.]
Issue for Consideration
Issue arose as regards the correctness of the order passed by the
High Court in the Second Appeal filed by the defendants, whereby
the judgment passed by the first appellate court was upheld and
the decree of the specific performance as passed in first appeal
maintained.
Headnotes†
Specific performance – Relief of – Agreement to sell between the
parties – Suit for specific performance of an agreement to sell
filed by the plaintiff, dismissed holding that the plaintiff failed
to prove his continuous readiness and willingness to perform
his part of the contract, but decreed it for the refund of sale
consideration – Appeal by the heirs of the plaintiff – Allowed
holding that the plaintiff had paid almost half of the amount and
was ready and willing to perform his part of the agreement –
Second Appeal by the defendants – Judgment passed by the
first appellate court upheld and the decree of the specific
performance as passed in first appeal maintained – Thereafter,
Special Leave Petition filed wherein leave was granted and the
same day, heirs of plaintiff got the sale deed executed in their
favour on the strength of the decree of specific performance
passed – However, the defendants sold 60 percent of the suit
land even before the filing of SLP and remaining 40 percent of
the land sold by them during the pendency of the instant appeal:
Held: Findings of fact howsoever erroneous, cannot be reopened
and disturbed in second appeal which is required to be adjudicated
only upon the substantial question of law, if any, arising therein –
Findings as returned by the First Appellate Court on readiness and
willingness, extension of time and payment of cash money not
perverse and illegal, which may warrant any interference – Adverse
presumption, if any, drawn for non-appearing in the witness box by
* Author
480 [2026] 4 S.C.R.
Supreme Court Reports
the plaintiff, is a rebuttal presumption and if the said presumption
is successfully rebutted by the other cogent evidence on record,
the said presumption would not be material and applicable –
PW-4, the Manager of the plaintiff, had appeared as a witness, stated
that he had been working with the plaintiff since 1988 and had the
knowledge of all the transactions in relation to the agreement to
sell – His testimony substantially corroborates the case as set up by
the plaintiff in the plaint, including execution of agreement, payment
of consideration and extension of time – Thus, in the light of the
evidence of the PW-4, the allegations stand corroborated – Adverse
inference drawn on account of non-appearance of the plaintiff stands
rebutted by his evidence and other evidence on record – In these
circumstances, the non-appearance of the plaintiff in the witness
box not fatal – Agreement to sell was executed in 1988 and the
decree of specific performance was passed by the first appellate
court after a gap of 15 years, no evidence whatsoever was brought
on record to establish that within this period the price of property in
the area had escalated, making it inequitable to grant the decree
of specific performance – Sale deeds executed by the defendants
during the pendency of the litigation hit by doctrine of lis pendens
and are non est – At the same time, the plaintiffs have got the
sale deed of the suit land executed in their favour by following
the due process of law on the basis of the decree of specific
performance granted in their favour by the first appellate court – In
such circumstances when the decree has already been executed
and substantive rights have accrued in favour of the heirs of the
plaintiff, it would be inequitable to dislodge them from the benefit
of the sale in exercise of discretionary jurisdiction – Sale deeds
executed by the defendants held to be non est and the decree as
passed by the first appellate court maintained. [Paras 31, 41-46]
Case Law Cited
Thomson Press (India) Ltd. vs Nanak Builders & Investors (P)
Ltd. [2013] 2 SCR 74 : (2013) 5 SCC 397; Bholaram v. Ameerchand
(1981) 2 SCC 414; Madhavan Nair v. Bhaskar Pillai (Dead) by
Lrs. (2005) 10 SCC 553; Kashibai w/o Lachiram and Another v.
Parwatibai w/o Lachiram and Others [1995] Supp. 4 SCR 63 :
(1995) 6 SCC 213; Kulwant Kaur and Others v. Gurdial Singh
Mann (Dead) by Lrs and Others [2001] 2 SCR 525 : (2001) 4 SCC
262; Vidhyadhar v. Manikrao and Another [1999] 1 SCR 1168 :
(1999) 3 SCC 573; Rajesh Kumar v. Anand Kumar and Others
[2024] 5 SCR 612 : (2024) 13 SCC 80; Janki Vashdeo Bhojwani
[2026] 4 S.C.R. 481
Russi Fisheries P. Ltd. & Anr. v. Bhavna Seth & Ors.
and Another v. Indusind Bank Ltd. and Other [2004] Supp. 6 SCR
681 : (2005) 2 SCC 217 – referred to.
List of Acts
Transfer to Property Act, 1882.
List of Keywords
Second Appeal; Decree of the specific performance; Relief of
specific performance; Agreement to sell; Continuous readiness
and willingness to perform his part of the contract; Refund of sale
consideration; Execution of sale deed; Substantial question of law;
Extension of time; Payment of cash money; Presumption; Adverse
presumption; Rebuttal presumption; Doctrine of lis pendens.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 109 of 2010
From the Judgment and Order dated 23.01.2009 of the High Court
of Punjab & Haryana at Chandigarh in RSA No. 3880 of 2003.
Appearances for Parties
Advs. for the Appellant(s):
K. Parameshwar, Sr. Adv., Ms. Nina Nariman, Manish Gandhi, Dhiraj
Abraham Philip, Febin Mathew Varghese, Prasad Hegde,Veda
Singh, Ms. Lija Merin John, N. Sai Kaushal, Soyarchon Khangrah.
Advs. for the Respondent(s):
Pawanjit Singh Bindra, Sr. Adv., Sriharsh Nahush Bundela, Ketan
Madan, Gurmehar Sistani, Naveen Kumar Yadav, Utkarsh Singh.
Judgment / Order of the Supreme Court
Judgment
Pankaj Mithal, J.
1. This is an appeal arising from a suit for specific performance of an
agreement to sell.
2. The said suit for specific performance was dismissed with the
alternative relief of refund of the admitted amount paid in advance
482 [2026] 4 S.C.R.
Supreme Court Reports
with interest. The decree passed by the court of first instance was
reversed in first appeal which judgment and order has been upheld
by the High Court in Second Appeal.
3. One Anil Kishore Seth (since deceased) now represented by his
heirs and legal representatives1 entered into an Agreement dated
18.07.1988 with Russi Fisheries (P) Ltd.2 through its Managing
Director Smt. Surjit Kavaljit Singh3 to purchase agricultural land
admeasuring 79 Kanals 15 Marlas for a total sale consideration of
Rs. 15,41,000/-.
4. The aforesaid agreement to sell was executed by defendant No.1
through its Managing Director, defendant No.2 and was attested
inter alia by her son Sanjit Kumar Singh4. The aforesaid agreement
is an unregistered agreement but as the same was not denied, it
was marked as an Exhibit.
5. Under the agreement, time was the essence of the contract and the
sale deed was to be executed by 15.12.1988. The time for execution
of the sale deed was twice extended and the last extended time was
up to 30.06.1989.
6. It is alleged that on the last date of the extended time i.e. 30.06.1989,
the plaintiff attended the office of the Sub-Registrar with the balance
sale consideration to get the sale deed executed but no one appeared
on behalf of the defendants to execute the sale deed. Accordingly,
after service of notice, the plaintiff instituted Civil Suit No. 985/1989
for specific performance of the agreement to sell dated 18.07.1988
contending inter alia that under the agreement the total sale
consideration agreed was Rs. 15,41,000/- out of which Rs. 75,000/-
was paid by cheque as earnest money; 2,00,000/- by cheque on
11.11.1988 to the defendant Nos. 2 and 3; thereafter, a sum of Rs.
2,00,000/- was paid on 01.12.1988 in cash to the defendant No. 3
and again a sum of Rs. 3,00,000/- on 20.12.1988 to the defendant
No. 3 when the time for execution of sale deed was first extended
to 31.01.1989. In this way, the plaintiff allegedly paid Rs. 2,75,000/-
by cheque and Rs. 5,00,000/- in cash, totaling Rs. 7,75,000/-, and
1 Hereinafter referred to as the ‘plaintiff(s)’
2 Hereinafter referred to as ‘defendant No. 1’
3 Hereinafter referred to as ‘defendant No. 2’
4 Hereinafter referred to as ‘defendant No. 3’
[2026] 4 S.C.R. 483
Russi Fisheries P. Ltd. & Anr. v. Bhavna Seth & Ors.
the balance was payable at the time of execution of the sale deed.
He contended that he was always ready and willing to get the sale
deed executed and to perform his part of the agreement.
7. Defendant Nos.1, 2 and 3 all filed appearance but the suit was
contested by Defendant Nos. 1 & 2 only by filing a joint written
statement. They admitted the agreement to sell and the receipt of
Rs. 2,75,000/- through cheque as part of the sale consideration
but denied receiving the cash payment and that the plaintiffs were
never ready and willing to fulfill their part of the agreement. They
further stated that Defendant No. 3 was not authorized to receive
any payment on behalf of the defendant No. 1 as he was merely an
attesting witness to the agreement.
8. The court of first instance dismissed the suit for specific performance
on 10.12.1999 by holding that the plaintiff failed to prove his
continuous readiness and willingness to perform his part of the
contract, but decreed it for the refund of sale consideration of Rs.
2,75,000/-, admitted to have been paid in cheques with interest @
12% per annum.
9. Aggrieved by the aforesaid judgment and order, the heirs of the
plaintiff preferred an appeal which was allowed on 23.04.2003 holding
that the plaintiff had paid Rs. 7,75,000/- and since he attended the
office of the Sub-Registrar on 30.06.1989, he was ready and willing
to perform his part of the agreement and as such is entitled to a
decree of specific performance.
10. On Second Appeal being preferred on behalf of the defendants, the
judgment passed by the first appellate court was upheld. Thus, the
decree of the specific performance as passed in first appeal was
maintained.
11. The decree of specific performance passed by the first appellate court
and as upheld by the High Court in Second Appeal was challenged
by the defendants by filing a Special Leave Petition on 20.08.2009
before this Court which was duly entertained by granting leave on
08.01.2010 with an interim order, as prayed for. Therefore, this
appeal is before us.
12. Despite the fact that the leave was granted in the SLP and an
interim order was also passed, the heirs of plaintiff through the
process of the Court on the same very day i.e., 08.01.2010 got the
484 [2026] 4 S.C.R.
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sale deed executed in their favour on the strength of the decree of
specific performance passed by the first appellate court as affirmed
in second appeal.
13. It is also pertinent to mention that the defendants sold 60 percent
of the suit land on 12.02.2009 i.e., even before the SLP was filed
but during the pendency of the litigation. The remaining 40 percent
of the land was sold by them during the pendency of this appeal
on 27.02.2025. Therefore, though on the one hand there is a sale
deed in favour of the plaintiffs of the suit land, the same also stands
transferred to third parties by the defendants during the pendency
of the litigation.
14. In the background of the above transfers of the suit land made by the
parties, one of the points before this Court would be as to the effect
and impact of the above transfers on the outcome of the suit itself.
15. We have heard Shri K. Parameshwar, learned senior counsel for the
defendants and Shri Pawanjit Singh Bindra, learned senior counsel
for the substituted plaintiffs.
16. Shri K. Parameshwar, learned senior counsel appearing for the
defendants, at the very outset, tenders unconditional apology for not
disclosing the fact of execution of the sale deeds dated 12.02.2009
and 27.02.2025, transferring the said land to third parties and submits
that such an omission in the pleadings had occurred only on account
of improper advice and the fact that the sale, if any, made would be
subject to the doctrine of lis pendens. There was no oblique motive
or any deliberate concealment on the part of the defendants. Further,
the sale deeds so executed are not void ab initio but are subject to
the decision of this appeal. In this connection, he relied upon.
17. It is worth noting that the aforesaid transfers have been made
during the pendency of the litigation and therefore, the same would
be governed by the principle of lis pendens as enshrined under
Section 52 of the TP Act and the said transfers have to abide by
the ultimate decree to be passed in this appeal. In this connection,
reliance has been placed upon Thomson Press (India) Ltd. vs
Nanak Builders & Investors (P) Ltd5, wherein the Division Bench
held that transfer pendente lite is neither illegal nor void ab initio but
5 (2013) 5 SCC 397
[2026] 4 S.C.R. 485
Russi Fisheries P. Ltd. & Anr. v. Bhavna Seth & Ors.
remains subservient to the rights of the parties eventually determined
by court in the pending litigation. In view of the above, whatever
transfers have been made pending the litigation or this appeal would
follow the decision passed in this appeal. Therefore, in the facts, we
ignore the omission and proceed on the merits.
18. On merits, Shri K. Parameshwar submits that the grant of relief of
specific performance of an agreement to sell is an equitable and
a discretionary relief. The agreement to sell is dated 18.07.1988
and the first appellate court had decreed the suit on 23.04.2003. In
between, there was immense increase of price of the land and as
such it became unequitable with the passage of time to grant the
relief of specific performance of the agreement. In view of the above,
he submits it is not justified to uphold the decree after such a long
distance of time from the date of the agreement. It would be highly
unequitable to the defendants.
19. He next submitted that the plaintiff had not entered into the witness
box to prove the plaint allegations despite the fact that he was alive
until 13.05.1996 and had the opportunity before the court of first
instance to appear and testify. In the absence of any proof of pleadings
contained in the plaint, the suit could not have been decreed on the
basis of the testimony of other witnesses.
20. He further submitted that the plaintiff had only paid a sum of
Rs.2,75,000/- through cheques and thereafter, there was no payment
in favour of the defendant no.1-company. The cash payment of
Rs.2,00,000/- plus Rs.3,00,000/- totaling Rs.5,00,000/- alleged to
have been paid to the defendant no.3 would not enure to the benefit
of defendant nos.1 i.e., the Company inasmuch as defendant no.3
who allegedly accepted the cash payment was never examined as
a witness and also had no authority to receive the same on behalf
of the company.
21. Shri K. Parameshwar further submitted that the plaintiff was never
ready and willing to perform his part of the agreement inasmuch
as under the agreement dated 18.07.1988, time was the essence
of the contract and the sale deed was to be executed on or before
15.12.1988. Further, the defendants have not permitted any
extension of time and even if the last extended period is treated to
be up to 30.06.1989, the plaintiff had not given any notice requiring
the defendants to appear before the office of Sub-Registrar for the
486 [2026] 4 S.C.R.
Supreme Court Reports
execution of the sale deed. The defendants categorically denied
receiving the notices dated 13.06.1989 and 22.06.1989 alleged to
have been issued by the plaintiff in this connection.
22. In addition to the above, he submitted that there is no evidence
to prove that the plaintiff attended the office of the sub-Registrar
on 30.06.1989. The testimony of PW-4 in this connection, is not
admissible as there is no document or pleading to verify PW-4’s
involvement. Further, PW-1, the clerk of the office of the Sub-
Registrar had not and could not have proved the signatures of the
Sub-Registrar as he was not in the office of Sub-Registrar in 1989
and had no personal knowledge of the events. Therefore, there was
no continuous readiness and willingness on part of the plaintiff to
carry out his obligation under the agreement.
23. Lastly, Shri K. Parameshwar submitted that the suit for specific
performance as filed by the plaintiff was dismissed by the court of first
instance which decree was reversed by the first appellate court. As
such, there were two contrary judgments recording conflicting findings
on the facts as regards to the payment of part of the sale consideration
as well as on readiness and willingness of the plaintiff. This being the
position, the High Court was not justified in dismissing the second
appeal only on the ground that it raises no substantial question of
law by simply stating that the findings recorded by the First Appellate
Court are correct in view of the testimony of PW-1 and PW-4 but
without even considering the statements of the said witnesses which
do not actually prove what has been held by the first appellate court.
24. Shri Bindra, learned senior counsel on behalf of the plaintiff has
strongly opposed all the arguments advanced on behalf of the
defendants aforesaid. He contends that the agreement to sell is an
admitted document which bears the signatures of both the parties.
The cash payment receipts are duly signed by the defendant no.3
and stood proved by the handwriting expert. Moreover, the receipts
clearly states that the cash payment is being received on behalf
of the defendant no.1 - company. This sufficiently proves the cash
transactions.
25. Secondly, he submits that even on the letters of extension of time,
there are signatures of the defendant no.2 – the Managing Director of
the Company which have not been denied by her rather accepted in
her cross-examination and further identified and proved by the expert.
[2026] 4 S.C.R. 487
Russi Fisheries P. Ltd. & Anr. v. Bhavna Seth & Ors.
26. Shri Bindra further submits that the plaintiff had given due notice
not one but two, dated 13.06.1989 and 22.06.1989 calling upon the
defendants to attend the office of Sub-Registrar for the execution
of the sale deed. The defendants were actually aware of the last
date fixed for the execution of the sale deed and as such they were
obliged to attend the office of the Sub-Registrar which they failed to
do. The plaintiff has proved his attendance on the said date before
the Sub-registrar by moving an application which was duly accepted,
signed and stamped by the Sub-Registrar. There is no contrary
evidence to belie the said document.
27. Lastly, he submits that non-appearance of the plaintiff in the witness
box is not fatal to the suit as his Manager, PW-4 has appeared as a
witness and has proved the entire transactions as he was working
with him since before the execution of the agreement.
28. In the end, he sums up by saying that the findings of fact recorded
by the First Appellate Court are not perverse and are final. Therefore,
there was no occasion for the Second Appellate Court to re-appraise
the evidence to examine the correctness of the same. He further
contends that once a sale deed dated 08.01.2010 had already been
executed pursuant to the decree of the First Appellate Court which
has been upheld in second appeal, there is no equity in favour of
the defendants to get the said sale deed reversed or set aside,
rather in view of the said sale deed, the sale deeds executed by the
defendants are void and non est.
29. In the instant case, though an issue was raised before the Court
of First Instance as to the valid existence of the agreement to sell
dated 18.07.1988, the said issue upon consideration of the evidence
adduced by the parties was decided in favour of the plaintiffs but the
suit was dismissed for the relief of specific performance. Against the
said finding, the defendants have not filed any cross-objections in
the appeal preferred by the plaintiff. The said finding was accepted
even by the First Appellate Court and the suit for specific performance
was decreed. The defendants preferred second appeal but never
assailed the finding with regard to existence of the agreement. No
argument in this regard was raised, thus, conceding that there exists
a valid agreement to sell. In this view of the matter, the existence of
the valid agreement to sell dated 18.07.1988 is no longer in dispute.
Since, the said agreement is acceptable to both the parties and
488 [2026] 4 S.C.R.
Supreme Court Reports
has been marked as an Exhibit, the question as to whether it was
unenforceable in law for want of registration loses all significance
and need not be gone into by us.
30. No doubt, the relief of specific performance was not granted by the Court
of First Instance and only the alternative relief to refund the cheque
amount of Rs.2,75,000/- paid in advance was granted, nonetheless,
the findings recorded by the First Court were reversed by the Court of
First Appeal and categorical findings were recorded that the plaintiffs
have proved the extension of time for the execution of the sale deed,
the cash payment of Rs.5,00,000/- and that the plaintiff was always
ready and willing to get the sale deed executed within time. These
findings are strictly findings of facts and are not shown to be perverse
in any manner. They have not been returned on the basis of any
inadmissible evidence. Therefore, in such a situation it was not open
for the Second Appellate Court to go into the correctness of those
findings by reappreciating the evidence adduced by the parties.
31. It is settled in law that the findings of fact howsoever erroneous, cannot
be reopened and disturbed in second appeal which is required to be
adjudicated only upon the substantial question of law, if any, arising
therein. Thus, the argument that the High Court in second appeal
ought to have examined the evidence to ensure the correctness of
the findings of the First Appellate Court has no legs to stand and fails.
32. Long back in 1981, three judges of this Court in the case of
Bholaram vs. Ameerchand6 had ruled that even if findings of facts
by courts below are wrong or grossly inexcusable that by itself would
not entitle the High Court to interfere under Section 100 CPC in
the absence of clear error of law. A similar view was reiterated in
Madhavan Nair vs. Bhaskar Pillai (Dead) by Lrs.7, wherein it has
been laid down that even if the First Appellate Court commits an
error in recording a finding of fact, that itself will not be a ground for
the High Court to upset the same.
33. In Kashibai w/o Lachiram and Another vs. Parwatibai w/o
Lachiram and others8, a similar proposition of law was laid down by
6 (1981) 2 SCC 414
7 (2005) 10 SCC 553
8 (1995) 6 SCC 213
[2026] 4 S.C.R. 489
Russi Fisheries P. Ltd. & Anr. v. Bhavna Seth & Ors.
this Court and it was held that the High Court cannot reappreciate the
evidence and interfere with the findings of facts unless a substantial
question of law or a question of law duly formulated is to be decided.
The second appeal does not lie on the ground of erroneous findings
of facts based on appreciation of the relevant evidence.
34. Similar is the situation in the case at hand. The High Court has not
found any substantial question of law or a question of law worth
consideration in the second appeal and, therefore, there was no
occasion for it to have reappreciated the evidence so as to come
to a different conclusion.
35. Again, in Kulwant Kaur and Others vs. Gurdial Singh Mann
(Dead) by Lrs and Others9, it was emphasized that the fact remains
that in a second appeal, a finding of fact, even if erroneous, will
not be disturbed unless it is found that it stands vitiated for want of
perversity. No such case for interference has been made out in the
present case.
36. Even if we examine the evidence on record for the satisfaction of
the defendants, we find that the parties have mutually agreed for the
grant of extension of time to execute the sale deed despite time being
the essence of the agreement. The documents showing extension
of time, two of which bear the signatures of not only the defendant
no.3 but also that of defendant no.2 – the Managing Director of
the Company – defendant no.1. Significantly, defendant no.2, while
appearing as DW-1, has admitted her signatures on the agreement
as well as on other relevant documents, and has also acknowledged
that the last date of execution was extended till 30.06.1989. No
concrete or reliable evidence has been adduced to prove that the
extension of time was granted without taking her consent. Further,
the handwriting expert also corroborated the genuineness of the
disputed signatures. Therefore, the finding of the First Appellate
Court on the above score does not suffer from any material illegality.
37. Secondly, the cash payment was made to the defendant no.3 who is
none other than the son of defendant no.2 - the Managing Director
of the Company – defendant no.1. In the receipts issued by him, he
has categorically stated that he is accepting payment on behalf of the
9 AIR (2001) SC 1273
490 [2026] 4 S.C.R.
Supreme Court Reports
company in the capacity of being its Director and was authorized to
receive the same. The narration in the receipts that he is receiving
payment on behalf of the Company-defendant no.1 as the Director,
has not been denied by him as he never stepped into the witness
box. No evidence was brought on record to establish that he was not
the Director of the Company-defendant no.1. The submission that
the said receipts were in relation to some other transactions does
not stand established by any evidence adduced by the defendants.
Therefore, the finding of the First Appellate Court in this connection
is justified.
38. Lastly, the period of execution of the sale deed as last extended
was expiring on 30.06.1989. Therefore, the defendants were under
an obligation to show that they were also ready and willing to
execute the sale deed on or before the said date. However, there
is no positive evidence from their side to prove discharge of their
obligation. On the other hand, the plaintiffs have issued notices dated
13.06.1989 and 22.06.1989 to the defendants to attend the office
of the Sub-Registrar on 30.06.1989 for the execution of the sale
deed as that was the last day for executing the same. No doubt,
the said notices were sent to the defendants under certificate of
posting, which proves that the notices were dispatched. Although,
that may not be conclusive evidence regarding their service, simply
denying receiving the notices would not mean that the notices were
not served, as it is not the allegation of the defendants that they
were not sent to the proper address. The defendants have not
adduced any evidence to prove that they were not actually served
with the said notices. The allegation in this regard by them is only
a bald allegation.
39. The plaintiff after giving the aforesaid notice had attended the office
of the of the Sub-Registrar on 30.06.1989 which stand proved by
his application submitted to the Sub-Registrar on the said very date.
The application clearly states that he has come prepared and ready
with the balance sale consideration to get the sale deed executed.
The receipt of the said application in the office of Sub-Registrar with
the stamp of the office of the Sub-Registrar is duly proved by the
evidence of the PW-1. The mere fact that he has not proved the
signatures of the Sub-Registrar is not sufficient to belie the above
document when the submission of the application and the stamp
of the Sub-Registrar stand proved. Moreover, there is no denial
[2026] 4 S.C.R. 491
Russi Fisheries P. Ltd. & Anr. v. Bhavna Seth & Ors.
of the fact or evidence by the defendants that the contents of the
application are incorrect and that the plaintiff had not attended
the office with the necessary finances so as to get the sale deed
executed. The submission that no proof of possessing such finance
was produced is not material when the allegation in the application
that the plaintiff has come prepared with the necessary funds is not
sufficiently denied.
40. In view of the aforesaid facts and circumstances, the findings as
returned by the First Appellate Court on readiness and willingness,
extension of time and payment of cash money are not perverse and
illegal, which may warrant any interference.
41. Now, the crucial issue which remains is about the effect of non-
appearance of the plaintiff in the witness box to prove his plaint case.
It is an admitted position that the plaintiff himself has not entered
the witness box and has not offered himself to be cross-examined.
In such a situation, a presumption can always be drawn against him
that the case, as pleaded by him, is not correct. In this connection,
a reference can be made to the decision of this Court in the case
of Vidhyadhar vs Manikrao and Another10, which lays down that
where a party does not appear in the witness box, a presumption
would arise that the case set up by him is not correct. This Court
in laying down as aforesaid has referred to various decisions of the
High Court. The decisions of the High Court are also to the effect
that when a party fails to appear as a witness, it gives rise to an
adverse inference and nothing more.
42. The adverse presumption, if any, drawn for non-appearing in the
witness box by the plaintiff, is a rebuttal presumption and if the
aforesaid presumption is successfully rebutted by the other cogent
evidence on record, the said presumption would not be material
and applicable. In the present case, PW-4, the Manager of the
plaintiff, had appeared as a witness. He has stated that he had been
working with the plaintiff since 1988 and had the knowledge of all the
transactions in relation to the agreement to sell dated 18.07.1988.
His testimony substantially corroborates the case as set up by the
plaintiff in the plaint, including execution of agreement, payment of
consideration and extension of time. Therefore, in the light of the
10 (1999) 3 SCC 573
492 [2026] 4 S.C.R.
Supreme Court Reports
evidence of the PW-4, the plaint allegations stand corroborated.
The adverse inference drawn on account of non-appearance of
the plaintiff stands rebutted by his evidence and other evidence on
record. In these circumstances, the non-appearance of the plaintiff
in the witness box would not be fatal in this case.
43. In the recent case of Rajesh Kumar vs Anand Kumar and Others11
in which one of us (P. Mithal, J) was a party, relying upon Janki
Vashdeo Bhojwani and Another vs Indusind Bank Ltd. and
Other12, it was held that a power of attorney holder may depose on
behalf of the principal in respect of such acts which are within his
personal knowledge but he cannot certainly depose for the principal,
for the acts done by the principal and not known personally by him.
Applying the same analogy, the Manager, PW-4 herein had deposed
about the entire transaction based upon his personal knowledge as he
was attached to the plaintiff as the Manager. In such circumstances,
his evidence cannot be discarded.
44. This takes us to the last limb of the argument of the parties with regard
to the equitable and discretionary jurisdiction of the court to grant the
relief of specific performance. No doubt, the agreement to sell was
executed on 18.07.1988 and the decree of specific performance was
passed by the First Appellate Court on 23.04.2003, after a gap of 15
years, no evidence whatsoever was brought on record to establish
that within this period the price of property in the area had escalated,
making it inequitable to grant the decree of specific performance.
45. The sale deeds executed by the defendants during the pendency
of the litigation are certainly hit by doctrine of lis pendens and are
non est. At the same time, the plaintiffs have got the sale deed of
the suit land executed in their favour by following the due process
of law on the basis of the decree of specific performance granted
in their favour by the First Appellate Court. In such circumstances
when the decree has already been executed and substantive rights
have accrued in favour of the heirs of the plaintiff, it would be
inequitable to dislodge them from the benefit of the sale in exercise
of discretionary jurisdiction.
11 (2024) 13 SCC 80
12 (2005) 2 SCC 217
[2026] 4 S.C.R. 493
Russi Fisheries P. Ltd. & Anr. v. Bhavna Seth & Ors.
46. Accordingly, in the facts and circumstances of the case, we find
no merit in this appeal and the same is dismissed. The sale deeds
executed by the defendants on 12.02.2009 and 27.02.2025 are held
to be non est and the decree as passed by the First Appellate Court
is maintained.
Result of the case: Appeal dismissed.
†
Headnotes prepared by: Nidhi Jain
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