Dismissed

Shyam Singh and Ors. v. Rajpati and Ors.

Punjab & Haryana HC2 Mar 2012RSA/2878/2010

Case brief

AI extract

What is this about?

In a regular second appeal regarding a dismissed suit for specific performance, the High Court upheld the concurrent findings of Courts below, dismissing the appeal because the appellants failed to produce or prove the original sale agreement dated 26.9.1989, rendering the claim unsustainable under the Indian Evidence Act.

What did the court decide?

The Regular Second Appeal was dismissed in limine; judgments and decrees of Courts below are upheld.

Shyam Singh and Ors. Vs Rajpati… — Contract and Commercial Disputes | Punjab & Haryana HC (2012)

RSA No.2878 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.2878 of 2010(O&M) Date of decision: 2.3.2012

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Dr. Shyam Singh and others ….Appellants

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Vs.

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Rajpati and others ….Respondents

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CORAM: HON’BLE MR.JUSTICE G.S.SANDHAWALIA

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Present: Mr. S.S.Kamboj, Advocate for the appellant.

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G. S. SANDHAWALIA, J, (Oral).

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The present appeal has been filed by the plaintiffs who are aggrieved against the concurrent findings of the Courts below whereby the suit for possession by way of specific performance of the land measuring 1000 sq. yards had been dismissed.

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The case of the plaintiffs was that defendant No.1 Mahender Singh and predecessor in interest of defendants no.1 to 4 had taken money from the father of the plaintiffs by executing pronote and writings. The amount was taken in installments on various dates from 18.10.1982 to 9.6.1988 and total to a sum of Rs.1,20,000/-. It was alleged that the defendant no.1 and Rama Devi, mother of defendants had not paid back a single penny and father of the plaintiffs had died on 29.6.1992 and Rama Devi had died on 9.5.1999. In lieu of the non payment of interest, it was alleged that there was an oral agreement to give 1000 sq. yards of land for cultivation to the father of the plaintiffs. It was further pleaded that plaintiffs' father had constructed boundary wall over the said land which later on had been demolished. It was pleaded that sale agreement dated

RSA No.2878 of 2010

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26.9.1989 was executed for consideration by defendant no.1 on his own behalf and on behalf of his mother for the amount which had already been paid by the plaintiffs' father on several occasions by lending money as loan to the tune of Rs.1,20,000/-. The agreement was relating to the property comprising in Rect. & Killa No.71, Killa No.4/2 (7-17) and 5/1(4-0) bounded as follows:-

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East: 75' land of Mahender West: 75' Road North: 120' land of Mahender and other South: 120' land of Sobha Chand

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Accordingly, it was pleaded that defendants had failed to comply with the agreement and defendant no.5 being well aware of existence of the agreement had purchased the suit land and the sale deed was not legal and not binding on the rights of the plaintiffs. A letter dated 16.12.1999 was sent by the plaintiffs to defendants no.1 to 4 for getting executed and registered sale deed in favour of the plaintiffs and getting cancelled the sale deed in favour of defendant no.5 and thereafter the suit was filed on 14.1.2000.

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The defendants in their written statement denied taking of any money and the alternative plea was that if there was any pronote, the same was bogus and not binding upon the defendants and Rama Devi had taken money from the father of the plaintiffs but the same was returned by her after due acknowledgment. The factum of giving 1000 sq. yards land for cultivation in lieu of interest to the father of the plaintiffs and construction of boundary wall over the said land was also denied. It was alleged that defendants no.1 and 2 were full fledged owners in possession of the land in dispute and they had rightly and legally alienated the same in

RSA No.2878 of 2010

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favour of defendant no.5.

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On the basis of the pleadings, the following issues were framed by the trial Court:-

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1. Whether the plaintiff is entitled for a decree for possession by way of specific performance of agreement to sell dated 26.9.1989 regarding the suit property as well as the pronote as alleged?OPP

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1. Whether the suit is not maintainable in the present form?OPD

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1. Whether the plaintiff has no cause of action to file the present suit?OPD

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1. Whether the plaintiff has no locus standi to file the present suit?OPD

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1. Relief.”

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The trial Court after considering the evidence on record came to the conclusion that the original agreement dated 26.9.1989 had not been produced and oral testimony of the plaintiffs witnesses could not be taken into consideration by placing reliance upon Sections 91 and 92 of the Indian Evidence Act. Accordingly, it was held that in absence of any agreement which had not been proved, the question of specific performance did not arise and the issue no.1 regarding the right of entitlement of a decree was decided against the plaintiffs and accordingly, it was held under issue no.2 that the suit was not maintainable. It was further held that there was no cause of action to file the present suit and the plaintiffs had no locus standi. The suit was dismissed vide judgment and decree dated 26.2.2007.

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The appeal filed by the plaintiffs was dismissed by the Lower

RSA No.2878 of 2010

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Appellate Court vide its judgment and decree dated 27.1.2010. Resultantly the present Regular Second Appeal has been filed.

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8, Counsel for the appellants contends that money had been advanced and in pursuance of that agreement had been entered into. Admittedly, both the Courts below have found that plaintiffs had failed to produce and prove the alleged agreement dated 26.9.1989. The Lower Appellate Court has also noticed the pronote and has held that they were not legally proved. Admittedly, the installments are prior in time and do not have any connection with the alleged agreement. It was of subsequent period and once the plaintiffs had themselves failed to discharge the onus of producing and proving the agreement between the parties, the Courts below had rightly came to conclusion that plaintiffs had failed to discharge the onus of producing and proving the agreement between the parties and dismissed the suit. Accordingly, no fault can be found with the well reasoned concurrent findings of the Courts below.

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Thus, no question of law much less any substantial question of law arises from the records of the present case which would warrant interference in Regular Second Appeal. Accordingly, the present appeal is dismissed in limine and judgments and decrees of the Courts below are upheld.

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(G.S.SANDHAWALIA) JUDGE

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2.3.2012 Pka

Shyam Singh and Ors. v. Rajpati and Ors.

Case brief

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Shyam Singh and Ors. v. Rajpati and Ors.

Case brief

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