Allowed

Kashmira Singh v. Atma Singh

Punjab & Haryana HC1 Apr 2009RSA/52/2003

Case brief

AI extract

What is this about?

In a second appeal regarding adjacent sale and agreement to sell deeds, the Supreme Court remitted the matter for framing specific questions of law. This High Court held the earlier agreement validly executed by an attorney and allowed the appeal, restoring the trial court decree and setting aside the first appellate court order based on Section 20 of the Specific Relief Act.

What did the court decide?

The appeal was allowed; the judgment and decree of the first appellate court were set aside; and the judgment and decree of the trial court were restored.

Kashmira Singh Vs Atma Singh — Specific Performance | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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R.S.A. No.52 of 2003 Date of Decision: 01.04.2009

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Kashmira Singh.

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....... Appellant through Shri D.S.Brar,Advocate.

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Versus

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Atma Singh and others.

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....... Respondent no.1 through Shri V.G.Dogra,Advocate. None for other respondents.

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CORAM: HON'BLE MR.JUSTICE MAHESH GROVER

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Whether Reporters of Local Newspapers may be allowed to see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Mahesh Grover,J.

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This Regular Second Appeal was disposed of by a speaking order dated 22.12.2006.

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The matter went up before Hon'ble the Apex Court, who remitted it back for hearing afresh by passing the following order on 18.8.2008:-

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“Leave granted.

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In the present case, the High Court has not framed the substantial question of law as required under Section 100 C.P.C.

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For the aforesaid reason, the impugned order is set aside and

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R.S.A.No.52 of 2003

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the matter is remitted to the High Court for deciding the appeal keeping in view the provisions of Section 100 C.P.C. Accordingly, the Regular Second Appeal No.52 of 2003 is restored to the file of the High Court. The High Court is requested to decide the matter in accordance with law. The Civil Appeal is allowed with no order as to costs.”

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Accordingly, the appeal has come up for re-hearing before me

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once again.

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I have heard the learned counsel for the parties and have perused the record.

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Learned counsel for the appellant has relied in extenso on the reasoning adopted by this Court in the earlier order to contend that the sale deed in favour of the appellant has been validly executed pursuant to the passing of a decree, and the agreement to sell in favour of respondent no.1 was subsequent to the agreement to sell in his favour and executed by Gurdev Singh, attorney of Malkiat Singh, on 26.12.1989. The agreement to sell in favour of respondent no.1 is dated 16.7.1990 allegedly executed by Malkiat Singh.

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I have already reasoned that both the agreements were found to have been validly executed; the one in favour of the appellant which was executed by Gurdev Singh, the attorney of Malkiat Singh and the other by Malkiat Singh himself in favour of respondent no.1. Malkiat Singh while appearing as a Court Witness has testified that the power of attorney in favour of Gurdev Singh had been validly executed by him authorising

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R.S.A.No.52 of 2003

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-3-

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Gurdev Singh to enter into a sale transaction qua the suit land. That being the situation, the agreement to sell in favour of the appellant entered into by a duly authorised person could not have been said to be invalid. The agreement to sell ultimately resulted in a sale deed on 12.11.1991 pursuant to a decree dated 14.9.1991 passed by a Court. In this view of the matter and for other reasons which have already been detailed in judgment dated 22.12.2006, I am of the opinion that the following substantial questions of law arise for consideration of this Court:-

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Whether in the given set of circumstances of the case, agreement to sell dated 16.7.1990 in favour of respondent no.1 was capable of being enforced or the Court ought to have resorted to the grant of discretionary relief under Section 20 of the Specific Relief Act, 1963 (for short, `the Act') ?

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Whether the Court was right in refusing to exercise discretion under Section 20 of the Act in the circumstances of the case or not?

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I have already noticed that the Hon'ble Apex Court in Lourdu Mari David and others Versus Louis Chinnaya Arogiaswamy and others, AIR 1996 S.C. 2814 and Rajeshwari Versus Puran Indoria, (2005) 7 S.C.C. 60, has enumerated the circumstances in which the discretion under Section 20 of the Act can be exercised.

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Because of the detailed reasoning in the earlier order which be read as a part of this order, as also for the reason that this Court

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R.S.A.No.52 of 2003

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categorically opined that agreement to sell dated 16.7.1990 executed by Malkiat Singh was incapable of being translated into a sale deed for the simple reason that pursuant to the earlier valid agreement to sell executed by Gurdev Singh, the legal and validly appointed attorney of Malkiat Singh, which had already fructified into a sale on 12.11.1991, the first Appellate Court ought to have exercised its discretion by resorting to the provisions of Section 20 of the Act. In the opinion of this Court, further, for the reason that it had already been recorded that the findings of the First Appellate Court were clearly perverse, the same were/are set aside because the sale deed in favour of respondent no.1 is currently inexecutable and the discretion under Section 20 of the Act refused by the First Appellate Court, but the same was rightly exercised by the trial Court.

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The substantial questions of law as noted above are answered accordingly and the appeal is allowed, judgment & decree of the first Appellate Court are set aside and those of the trial Court are restored.

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April 01,2009 “SCM”

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( Mahesh Grover ) Judge

Kashmira Singh v. Atma Singh

Case brief

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Kashmira Singh v. Atma Singh

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