Appellant challenged decree for specific performance of an agreement to sell, arguing the property belonged to his father. Court dismissed appeal as the property ownership plea was never in pleadings or argued below, relying on Supreme Court precedent.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.3440 of 2006(O&M) Date of decision: 21.1.2010
Harvinder Singh
......Appellant(s)
Versus
Ishar Singh
......Respondent(s)
CORAM:HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr. Praveen Bhadu, Advocate for the appellant.
Mr. Ravi Malhotra, Advocate for the respondent.
Rakesh Kumar Garg, J. (Oral)
This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiffrespondent for possession by way of specific performance of agreement to sell dated 6.6.2000 with respect to the suit property has been decreed.
Learned counsel appearing on behalf of the plaintiffrespondent has very fairly submitted that both the Courts below on appreciation of evidence have recorded a finding of fact that the agreement to sell in question stands proved. Learned counsel has further stated that in fact the appellant is not raising any argument against the proving of execution of the agreement to sell in question.
The only argument raised before this Court by the appellant is that the judgment and decrees of the Courts below are liable to be set aside as the suit of the plaintiff-respondent cannot be decreed on the basis of the agreement to sell in question which was alleged to have been signed by him whereas the property in dispute belongs to Balbir Singh his father.
I have heard learned counsel for the appellant.
From the perusal of the impugned judgment and decrees, I find that in fact the argument raised by the learned counsel for the appellant before this Court is not supported from the record of the case as
RSA No.3440 of 2006(O&M)
-2-
the aforesaid plea which has now been raised before this Court, was neither taken in pleadings nor was argued before the Courts below.
Faced with this situation, learned counsel for the appellant has supported his arguments on the basis of grounds of appeal submitted before the Lower Appellate Court wherein he has raised the aforesaid plea. The plea taken by the appellant is without any merit. No doubt, the appellant has mentioned in his grounds of appeal that the suit property does not belong to him and the same belongs to his father. However, it is the fact that the aforesaid argument as raised in the grounds of appeal is not discussed before the Lower Appellate Court.
Even otherwise, the learned counsel for the appellant could not dispute the fact that the aforesaid plea as raised before this Court was not taken by the defendant in his pleadings. Thus, the argument has been raised without any pleadings in this regard and the same is liable to be ignored.
Moreover, the Hon'ble Surpeme Court of India in Bachhaj Nahar v. Nilima Mandal and another JT 2008(13) SC 255 has authoritatively laid down that any substantial question of law based upon an argument, which was not argued before the Courts below, cannot be allowed to be raised in the regular second appeal.
Thus, no substantial question of law arises in this appeal.
I find no merit in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE
January 21, 2010 ps
2 issues framed by the court
Whether a substantial question of law not raised in pleadings or argued below can be raised in a second appeal under Civil Procedure Code.
Whether an agreement to sell executed by the appellant for a property belonging to his father can be the subject of a suit for specific performance.
Colour shows how this judgement treated each authority
Bachhaj Nahar v. Nilima Mandal and anotherApplied¶23
<u>Bachhaj Nahar v. Nilima Mandal and another JT 2008(13) SC 255</u> · Who else cites this
Harvinder Singh
Ishar Singh
Rakesh Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
