Allowed

Swami Shivanand Chela Swami Ved Bharti v. Parminder Kaur

Punjab & Haryana HC16 Mar 2011RSA/3363/2007

Case brief

AI extract

What is this about?

The High Court allowed both second appeals. It held that a clerical error in the prayer paragraphs regarding the Khasra number did not justify non-suit. The court found the plaintiff's evidence cogent and unrebutted, and ownership proved via Jamabandi and admitted in written statements.

What did the court decide?

Judgments and decrees of the lower appellate court are set aside; judgments and decrees of the trial court decreeing both suits are restored with costs.

Swami Shivanand Chela Swami Ved Bharti Vs… — Specific Performance | Punjab & Haryana HC (2011)

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Regular Second Appeal No.3363 of 2007

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.3363 OF 2007 DATE OF DECISION: 16th MARCH, 2011

Swami Shivanand

.... Appellant

Versus

Smt. Parminder Kaur

.... Respondent

CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.

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PRESENT: Mr. Amit Rawal, Advocate for the appellant.

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Mr. Jaideep Verma, Advocate for the respondent.

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L.N. MITTAL, J. (ORAL)

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By this common order, I am disposing of two appeals i.e. RSA No.3364 of 2007 and RSA No.3364 of 2007 both titled Swami Shivanand versus Smt. Parminder Kaur as both these cases raise similar questions of law and facts. RSA No.3363 of 2007 has arisen out of suit relating to agreement dated 29.06.1993 for sale of plot No.1-A measuring 127 square yards, whereas RSA No.3364 of 2007 has arisen out of suit relating to agreement dated 31.03.1993 for sale of plot No.1-B measuring 120 square yards. Parties in both the suits are same. Plaintiff Swami Shivanand who was successful in the trial court but has been non-suited by the lower appellate court has filed both these appeals.

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Plaintiff's case is that Kehar Singh agreed to sell the suit plots to the plaintiff by way of aforesaid agreement for Rs.16,510/- and Rs.16,200/-. Kehar Singh has since died and defendant-respondent

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Regular Second Appeal No.3363 of 2007

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Parminder Kaur who is grand daughter-in-law of Kehar Singh has inherited the suit plots. Entire sale consideration stood paid to Kehar Singh at the time of agreements. The plaintiff has always been ready and willing to perform his part of the contracts but the defendant refused to execute the sale deed of the suit plots in favour of the plaintiff, necessitating the filing of the two suits for possession of the suit plots by specific performance of the agreements to sell and for permanent injunction.

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Defendant did not file any written statement. On the other hand, written statements were filed by defendant's husband Manjinder Pal Singh who is not party to the suits. Plaint allegations were broadly controverted. Some other pleas were also raised.

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Learned Civil Judge (Junior Division), Ludhiana vide separate judgments and decrees dated 08.11.2006 decreed both the suits. However, first appeals preferred by defendant have been allowed by learned Additional District Judge (Adhoc), Fast Track Court, Ludhiana vide separate judgments and decree dated 28.07.2007 and thereby both the suits have been dismissed. Feeling aggrieved, plaintiff has filed the instant second appeals.

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I have heard learned counsel for the parties and perused the

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case files.

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Learned counsel for the appellant vehemently contended that plaintiff's averments and plaintiff's evidence stand unrebutted. Defendant did not file written statement nor led any evidence. It was also contended that lower appellate court non-suited the plaintiff erroneously on the ground that Kehar Singh was not proved to be owner of the suit land, although no such plea was raised in the written statements filed by defendant's husband.

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Regular Second Appeal No.3363 of 2007

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It was also pointed out that in view of Jamabandi produced by way of additional evidence in the instant second appeals, it is proved that Kehar Singh was owner of the suit plots comprised in Khasra No.10//23.

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On the other hand, learned counsel for the respondent pointed out that in the head notes of the plaints as well as in the impugned agreements, suit plots are mentioned to be part of Khasra No.10//23, but in prayer paragraphs of the plaints, suit plots are mentioned to be part of Khasra No.11//23 and thus the plaints are not properly framed. It was also contended that in one suit out of which RSA No.3363 has arisen, no attesting witness of the agreement has been examined and thus the said agreement is not proved.

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I have carefully considered the rival contentions. Perusal of the suit files reveals that the suits were filed on the basis of impugned agreements which categorically recite that both suit plots are part of Khasra No.10//23. This fact is also mentioned in the head notes of both the plaints as also in first paragraphs of the plaints. Consequently, mentioning of Khasra No.11//23 in prayer paragraphs of the plaints is only clerical or typographical error. This fact becomes manifest from perusal of the agreements as well. Consequently, the contention raised by counsel for the respondent on the basis of aforesaid clerical or typographical error in prayer paragraphs of the plaints is not sufficient to non-suit the plaintiff. It is ordered that even in prayer paragraphs of the plaints, the suit plots shall be read to be part of Khasra No.10//23 and not 11//23.

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To prove his cases, the plaintiff himself stepped into the witness box and also examined Telu Ram as witness in both the cases. Both of them stated according to plaint averments. Telu Ram is attesting witness

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Regular Second Appeal No.3363 of 2007

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of agreement dated 31.03.1993 but is not attesting witness of agreement dated 29.06.1993. However, Telu Ram identified the signatures of Kamaljit Singh attesting witness of agreement dated 29.06.1993. As regards agreement dated 31.03.1993, statements of plaintiff and one attesting witness Telu Ram are sufficient to prove due execution of the said agreement. As regards agreement dated 29.06.1993 also, statements of plaintiff and Telu Ram are sufficient to prove the said agreement, because plaitniff himself is party to the said agreement, which was executed in his presence. His statement is corroborated by Telu Ram, who identified the signatures of Kamaljit Singh attesting witness of the agreement. In addition to it, plaintiff's pleadings as well as evidence stand unrebutted. Defendant has not led any evidence. The defendant herself also did not dare to enter the witness box to controvert or rebut the plaintiff's claim. Consequently, adverse presumption arises against the defendant. Plaintiff's evidence is cogent and sufficient to prove his case in both the suits.

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In view of the Jamabandi tendered by additional evidence in the instant second appeals, it is also proved that Kehar Singh was owner of Khasra No.10//23 of which both the suit plots are part. Finding of the lower appellate court that Kehar Singh was not proved to be owner of the suit plots is, therefore, unsustainable. Even otherwise, in the written statements filed by defendant's husband, it was admitted that defendant inherited the suit land from Kehar Singh. In this view of the matter, the plaintiff was not even required to be prove that Kehar Singh was owner of the suit land at the time of the impugned agreements. On the contrary, ownership of Kehar Singh over the suit plots and inheritance thereof by defendant from Kehar Singh stood admitted in the written statements filed by defendant's husband.

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Regular Second Appeal No.3363 of 2007

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Be that as it may, Kehar Singh is proved to be owner of the suit plots at the time of agreements.

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For the reasons aforesaid, both the appeals have to be allowed. Finding of the lower appellate court against the plaintiff-appellant is patently perverse, illegal and unsustainable. Substantial question of law to this effect arises for determination in the instant second appeals and the same is accordingly answered in favour of the plaintiff-appellant. Consequently, both the appeals are accepted. Judgments and decrees of the lower appellate court are set aside and judgments and decrees of the trial court decreeing both the suits are restored with costs throughout.

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(L. N. MITTAL) JUDGE

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16^th March, 2011 'raj'

Swami Shivanand Chela Swami Ved Bharti v. Parminder Kaur

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Swami Shivanand Chela Swami Ved Bharti v. Parminder Kaur

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