Dismissed

Karamjit Singh and Ors. v. Naresh Kumar and Ors.

Punjab & Haryana HC12 Mar 2012RSA/1167/2012

Case brief

AI extract

What is this about?

A Single Judge of the Punjab and Haryana High Court dismissed two second appeals challenging the lower courts' decree for specific performance of a land sale agreement. The Court found concurrent findings of fact supported by evidence and held the statutory bar under Order 2 Rule 2 CPC did not apply as the earlier suit was dismissed without merits.

What did the court decide?

The second appeals were dismissed; the decree for specific performance and injunction stands affirmed.

Karamjit Singh and Ors. Vs Naresh Kumar and Ors. — Specific Performance | Punjab & Haryana HC (2012)

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RSA No.1167 of 2012 (O&M) RSA No.1172 of 2012 (O&M) -1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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1. RSA No.1167 of 2012 (O&M) Date of decision:12.03.2012

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Karamjit Singh and others

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......Appellants

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Vs.

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Naresh Kumar and others

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...Respondents

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2. RSA No.1172 of 2012 (O&M)

Karamjit Singh

.....Appellant

Vs.

Naresh Kumar and others

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.....Respondents

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CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.

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Present: Mr. Abhishek Arora, Advocate for the appellants.

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Tejinder Singh Dhindsa, J.

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This order shall decide two Regular Second Appeals bearing No.1167 of 2012 and RSA No.1172 of 2012 as the controversy involved in both the appeals is identical and between the same parties. For the sake of brevity, the facts are being extracted from RSA No.1167 of 2012.

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The plaintiffs/respondents filed a suit for specific performance and permanent injunction in terms of pleading that the defendants had agreed to sell the suit land and some other land i.e. total measuring 30 kanals, 9 ½ Marlas to the plaintiffs at the rate of 1,65,000/- per acre and earnest money of Rs.4,50,000/- was paid to the defendants on 23.05.2002.

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RSA No.1167 of 2012 (O&M) RSA No.1172 of 2012 (O&M) -2-

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The agreement to sell in favour of the plaintiffs had been executed on 23.05.2002 itself and the sale deed was to be executed and registered till 15.05.2003. It was pleaded that on 19.05.2003, the defendants executed the sale deed in favour of the plaintiffs with regard to the land measuring 16 kanals, 14 ½ marlas and defendants No.2 executed a sale deed with regard to the land measuring 3 kanals for a total sum of Rs.3,44,953/- in favour of the plaintiffs. Such consideration amount of Rs.3,44,953/- was adjusted against the earnest money already paid by the plaintiffs to the defendants at the time of execution of the agreement to sell dated 23.05.2002. As such, it was pleaded that the entire consideration amount stood already paid to the defendants pertaining to the suit land. On the same date i.e. 19.05.2003, defendants No.2 also executed another sale deed with regard to the remaining land measuring 13 kanals 15 marlas in favour of the plaintiffs as per terms and conditions of the agreement dated 23.05.2002. The remaining balance amount of Rs.1,78,547/- was received by the defendants prior to the execution of both the sale deeds and the total amount as such paid by the plaintiffs to the defendants was Rs.6,28,547/-. It was further pleaded that at the time of presentation of the sale deed for registration before the concerned Sub Registrar, the defendants left the Tehsil premises on some pretext and thereafter, inspite of the plaintiffs being ready and willing to perform their part of the contract, the defendants refused to present themselves before the Registring Authority. It was further pleaded that on 19.05.2003, the plaintiffs submitted an application before the Sub Registrar for registration of the sale deed but such application was declined. An Appeal was preferred before the District Registrar and the same was dismissed on 05.08.2003. Accordingly, the suit for specific performance for

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RSA No.1167 of 2012 (O&M) RSA No.1172 of 2012 (O&M) -3-

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getting the sale deed registered along with prayer for grant of injunction restraining the defendants from alienating the suit property had been filed.

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The suit was contested by the defendants taking a preliminary objection that the suit itself was barred under Order 2 Rule 2 of the Code of the Civil Procedure. On merits, the execution of the agreement to sell on 23.05.2002 for sale of suit land at the rate of Rs.1,65,000/- per acre was denied. Even the receipt of earnest money of Rs.4,50,000/- was denied. Stand taken by the defendants was that they had agreed to sell the land at the rate of Rs.2,35,000/- per acre. The defendants stated that the agreement to sell at the rate of Rs.1,65,000/- per acre has been got scribed by the plaintiffs in connivance with the witness and scribed. Such agreement is a result of fraud. The defendants also took a stand that they had infact executed an affidavit in the form of agreement to sell on 23.05.2002, wherein on account of an inadvertent mistake 15.05.2002 has been mentioned and as per such affidavit, the suit land was to be sold at the rate of Rs.2,35,000/- per acre.

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Upon the pleadings of the parties, the following issues were struck by the trial Court:

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Whether the defendants executed an agreement to sell the suit land in favour of plaintiffs on 23.05.2002 @ s.1,65,000/per acre, after receiving a sum of Rs.4,50,000/-? OPP

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Whether the defendants executed sale deed regarding sale of suit land in favour of plaintiffs on 19.05.2003 as per the agreement to sell dated 23.05.2002, after receiving the remaining balance sale consideration amount? OPP

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Whether the plaintiffs were and are still ready and willing to perform their part of the contract? OPP

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Whether plaintiffs are entitled to get the relief of specific

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RSA No.1167 of 2012 (O&M) RSA No.1172 of 2012 (O&M) -4-

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performance of sale deed dated 19.05.2003 and agreement to sell dated 23.05.2002? OPD

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Whether plaintiff are entitled to permanent injunction as prayed for? OPP

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Whether defendants executed an agreement to sell for the sale of suit land in favour of plaintiffs @ Rs.2,35,000/- per acre on 23.05.2002? OPD

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Whether the suit of plaintiff is barred under Order 2 Rule 2 CPC?

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Whether the plaintiffs have no locus standi and cause of action to file the present suit? OPD

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Whether the plaintiffs are stopped from filing the present suit by their own act and conduct? OPD

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10.Relief.

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The trial Court vide judgment and decree dated 20.08.2009, decreed the suit of the plaintiffs for specific performance and issued directions to the defendants to get the sale deed registered in favour of the plaintiffs pertaining to the suit land within a period of three months. A civil appeal preferred by the defendant/appellants has been dismissed by the Additional District Judge, Sangrur vide impugned judgment dated 11.11.2011. Resultantly, the defendant/appellants are in second appeal before this Court.

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I have heard Mr. Abhishek Arora, Advocate for the appellant at length.

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Learned counsel would vehemently argue that the relief of specific performance could not have been granted to the plaintiff/respondents as the suit itself was barred under Order 2 Rule 2 of the Code of Civil Procedure as the cause of action had accrued to file the suit for specific performance on the date when the earlier suit had been filed

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RSA No.1167 of 2012 (O&M) RSA No.1172 of 2012 (O&M) -5-

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for a relief of permanent injunction. Learned counsel would further submit that there has been a mis-appreciation and mis-reading of evidence by the trial Court in relation to the alleged agreement to sell.

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I have given my thoughtful consideration to the submissions raised by the learned counsel and have perused the case file minutely.

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By way of due appreciation of evidence, concurrent findings have been recorded by the Courts below to hold the agreement to sell Ex.P-1 and sale deed, Ex.P-2 to be duly proved. In this regard, apart from the testimony of plaintiff- Naresh Kumar himself, the attesting witness to the agreement to sell namely Amrik Singh, PW-2 was examined as also the deed writer, Rajinder Parshad, PW-3. It has been noticed by the trial Court that the defendants have admitted their signatures/thumb impressions on the sale deed, Ex.P-2. The bald assertion has been raised by the defendants claiming that the agreed rate for sale of the suit land was 2,35,000/- per acre and not Rs.1,65,000/- per acre. In support of such plea, a photocopy of the alleged agreement to sell had been produced on record by the defendants. However, such document was not duly proved and the same was not substantiated by any witness to such alleged agreement. PW-2, Amrik Singh, Numberdar, i.e. the marginal witness to the agreement to sell dated 23.05.2002 clearly testified that the appellant/defendant -Karamjit Singh had entered into the agreement for sale of land at the rate of Rs.1,65,000/per acre. He had further testified that a sum of Rs.4,50,000/- had been received by the appellant/defendants in his presence and in the presence of the deed writer. He further submitted that the contents of the agreement had been admitted to be correct and thereafter, the appellant/defendants had appended their signatures/thumb impressions thereupon. Rajinder Parshad,

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RSA No.1167 of 2012 (O&M) RSA No.1172 of 2012 (O&M) -6-

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PW-3, the deed writer, who had typed the sale deed, Ex.P-2 and agreement to sell, Ex.P-1 had categorically deposed that on 19.05.2003, the appellant/defendants had executed the sale deed and he had typed the same at the instance of appellant/defendants. He further deposed that after the contents were read over, the appellant/defendants had appended their signatures/thumb impressions and the same was witnessed by Amrik Singh, Numberdar and Mithu Singh. He even proved the entry in his register pertaining to the sale deed as Ex.P-3. As such, the findings in relation to execution of the agreement to sell and the sale deed Ex.P-2 pertaining to the suit land at the rate of Rs.1,65,000/- per acre and payment of Rs.4,50,000/towards earnest money has been held to be duly proved by way of concurrent findings by the Courts below. Learned counsel has not been able to demonstrate any perversity in such findings.

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As regards the submission made by the learned counsel that the present suit was not maintainable and the same was barred under Order 2 Rule 2 of the Code of Civil Procedure is concerned, suffice it to notice that the earlier suit for permanent injunction filed by the plaintiff/respondents had not been decided on merits. Rather, it had been dismissed under Order 9 Rule 3 of the Code of the Civil Procedure. Even otherwise, the earlier suit for relief of permanent injunction had been filed on the basis of different cause of action and at that point of time, when the cause of action for instituting the suit for specific performance had not even ripened. In any case, there was no decision on merits inter se the earlier suit was concerned. Accordingly, I find that issue No.7 framed by the trial Court has been correctly decided in favour of the plaintiff/respondents by the Courts below.

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For the reasons recorded above, the present second appeal must

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RSA No.1167 of 2012 (O&M) RSA No.1172 of 2012 (O&M) -7-

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fail as it does not raise any question of law much less substantial question of

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law.

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The appeal is accordingly, dismissed.

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For the same reasons RSA No.1172 of 2012 is also dismissed.

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A photocopy of this order be placed on the connected file of

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this case.

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March 12, 2012 (TEJINDER SINGH DHINDSA)

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harjeet JUDGE

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Note: Whether to be reported? Yes/No

Karamjit Singh and Ors. v. Naresh Kumar and Ors.

Case brief

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Karamjit Singh and Ors. v. Naresh Kumar and Ors.

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