In second appeal, the High Court dismissed the appellant's claim for a declaration of ownership. The court held that an agreement to sell with possession and payment does not confer title, especially where a registered sale deed had already been executed by the vendor in favor of the respondent.
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 & HARYANA AT CHANDIGARH
RSA No. 3403 of 2011(O&M) Date of Decision: 2.2.2012.
Baraham Parkash
--Appellant
Versus
Vishal Mittal & others
--Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:Mr. Rakesh Gupta, Advocate for the appellant.
TEJINDER SINGH DHINDSA.J
The plaintiff-appellant is in second appeal before this Court.
The plaintiff-appellant filed a suit for declaration to the effect that he is owner in possession of the shop-cum-flat in dispute and the sale deed executed by defendant no.2 in favour of her son defendant no.1 is illegal, null and void, not binding on the rights of the plaintiff-appellant. Plaintiff-appellant further prayed for the relief of permanent injunction restraining the defendants from dispossessing the plaintiff-appellant from the shop-cum-flat as fully described in the head note of the plaint. It was pleaded that defendant no.3 had purchased the suit property i.e. Shop-cumflat no.9 vide registered sale deed dated 3.1.1983. An agreement to sell in respect to the suit property was executed by defendant no.3 in favour of the plaintiff on 27.3.1989 and the total sale consideration of Rs.49,000/- was paid and even the possession of the suit property had been delivered to the plaintiff-appellant. The last date for execution of the sale deed was fixed as on or before 31.3.1991. It was pleaded that defendant no.3 had executed a Power of Attorney in favour of defendant no.2, who is the daughter of the plaintiff-appellant and defendant no.2 had extended the period of execution
RSA No. 3403 of 2011(O&M) -2-
of the sale deed for a period of 5 years. It was further pleaded that defendant no.2 had connived with defendant no.1 and had executed a sale deed pertaining to the suit property on 24.7.1995. The case set up by the plaintiff-appellant was that he had already become owner in possession of the suit property by virtue of the agreement to sell dated 27.3.1989, whereby the full and final sale consideration had already been paid to defendant no.3 and the possession had also been delivered to the plaintiff-appellant. It was also averred that the plaintiff-appellant had always been ready and willing to perform his part of the contract regarding execution of the sale deed but since defendants no1 and 2 were threatening to further alienate the suit property and to dispossess the plaintiff-appellant, accordingly the suit had been filed.
Upon notice, defendant no.1 filed a written statement stating therein that the plaintiff-appellant was neither owner nor in possession of the suit property. Defendant no.1 claimed to be in possession as he had purchased the same. A stand was taken by defendant no.1 that the agreement to sell pertaining to the suit property had been entered into between the defendant no.2 and defendant no.3 and even the sale consideration amount had been paid by defendant no.2. It was also pleaded that defendant no.2 is the daughter of the plaintiff-appellant and on account of such proximity of relationship the signatures of defendant no.2 had been taken on blank papers and accordingly the acknowledgment as regards extension of time had been prepared fraudulently by the plaintiff-appellant. Defendant no.2 filed an independent written statement taking up a similar plea that the agreement to sell had been effected between defendants no.2 and 3. The sale consideration had been paid by defendant no.2. The fact of
RSA No. 3403 of 2011(O&M)
-3-
the plaintiff-appellant being owner as also in possession of the suit property was denied. It was pleaded that the relations between father and daughter i.e. plaintiff-appellant and defendant no.2 had become strained and accordingly the plaintiff-appellant had even filed complaints against her and her husband in the year 1996. Defendant no.3 also filed a written statement denying the plaintiff-appellant to be owner in possession of the suit property. The execution of the agreement to sell pertaining to suit property on 27.3.1989 in favour of plaintiff-appellant was admitted by defendant no.3. Even the date for execution and registration of sale deed i.e. 31.3.1991 was also admitted. Defendant no.3 took up the plea that the plaintiff-appellant had conveyed to him at the time of execution of the agreement to sell that the flat-cum-shop was actually being purchased for his daughter Shimla Rani i.e. defendant no.2 and it was on account of such reason that a Power of Attorney had been executed in favour of her i.e. defendant no.2. As the plaintiff-appellant had failed to get the sale deed executed within the prescribed period in terms of the agreement dated 21.3.1989 as such it was prayed by defendant no.3 that the plaintiffappellant is not entitled to any relief and the suit be dismissed.
Upon the pleadings of the parties, following issues were
struck:-
| “1. | Whether the plaintiff is owner in possession of the property in dispute?OPP |
|---|---|
| 2. | Whether the defendant has no right to alienate the suit property?OPP |
| 3. | Whether the plaintiff is entitled to injunction as prayed for?OPP |
| 4. | Whether the sale deed dated 24.7.1995 executed by defendant no.2 in favour of defendant no.1 is illegal, null and void?OPP |
RSA No. 3403 of 2011(O&M)
-4-
The Trial Court dismissed the suit filed by the plaintiffappellant and aggrieved thereof a civil appeal was preferred and in terms of judgement dated 29.4.2011 passed by the Additional District Judge, Bathinda, the appeal of the plaintiff-appellant has been partly accepted and the judgement and decree of the Trial Court has been partly set aside and the suit of the plaintiff-appellant for permanent injunction restraining the defendants from dispossessing him forcibly except in due process of law, has been decreed. As regards the other relief qua declaration, the judgement of the Trial Court has been affirmed. Under such circumstances the plaintiff-appellant is in second appeal before this Court.
I have heard Mr. Rakesh Gupta, learned counsel appearing for the plaintiff-appellant at length.
Learned counsel has confined his submission regarding the relief of declaration to the effect that the plaintiff-appellant be held to be owner in possession of the suit property and the sale deed executed by defendant no.2 in favour of her son, defendant no.1 be held to be null and void and not binding on the rights of the plaintiff-appellant. Learned counsel submits that the courts below have erred in not granting such declaration in favour of the plaintiff-appellant in the light of the fact that he had become owner on the basis of an agreement to sell upon being
RSA No. 3403 of 2011(O&M)
-5-
made full and final payment of Rs.49,000/-.
I am unable to persuade myself to agree with the contention raised by learned counsel appearing for the appellant. The first appellate court has recorded a finding that the agreement dated 27.3.1989 had been duly executed by defendant no.3 in favour of the plaintiff-appellant after receiving Rs.49,000/- towards earnest money and even the possession of the suit property had been delivered to the plaintiff-appellant. The first appellate court has taken note of a recital qua delivery of possession in the agreement itself. It was upon due appreciation of evidence that such finding was recorded and accordingly the appeal filed by the plaintiff-appellant was partly accepted for the grant of relief of permanent injunction restraining the defendants-respondents from dispossessing the plaintiff-appellant from the suit property except in due process of law. There would be no dispute regarding the proposition of law that merely an agreement to sell would not create a title in favour of the plaintiff-appellant. The concurrent finding of fact by both the courts below is that the defendant no.1 had become owner of the suit property in terms of sale deed no.3654 dated 24.7.1995 executed by defendant no.2 as a Power of Attorney of defendant no.3 in favour of defendant no.1.
I find no infirmity in the conclusion of the first appellate court to hold that the suit of the plaintiff-appellant for declaration to the effect that he had become owner of the suit property on the basis of an agreement to sell dated 27.3.1989 is not maintainable and the same had accordingly been dismissed. Learned counsel for the appellant has not been able to show any perversity in the findings of the courts below as regards denying the relief of declaration.
RSA No. 3403 of 2011(O&M)
-6-
No question of law much less substantial question of law arises
for determination in the present second appeal.
The appeal being wholly devoid of merit is, accordingly,
dismissed.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE
2.2.2012. lucky
Whether to be reported? No.
1 issue framed by the court
Whether Plaintiff is entitled to be declared as owner in possession of the suit property based solely on an agreement to sell.
Baraham Parkash
Vishal Mittal
TEJINDER SINGH DHINDSA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
