Dismissed

Naresh Kumar and Anr. v. Rekha Rani and Ors.

Punjab & Haryana HC8 Feb 2012RSA/4574/2010

Case brief

AI extract

What is this about?

In this second appeal, the learned Single Judge rejected the contention that the sale agreement was limited to the appellant's share and that necessary parties were not impleaded. Finding the appeal devoid of merit and lacking a substantial question of law, the Court dismissed the appeal and affirmed the specific performance decree below.

What did the court decide?

Second appeal dismissed; impugned orders of lower courts affirming specific performance are upheld.

Naresh Kumar and Anr. Vs Rekha Rani and Ors. — Specific Performance | Punjab & Haryana HC (2012)

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RSA No. 4574 of 2010 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No. 4574 of 2010 (O&M) Date of decision:08.02.2012

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Naresh Kumar and another

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......Appellants

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Vs.

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Rekha Rani 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. Sham Lal Bhalla, Advocate for the appellants.

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Tejinder Singh Dhindsa, J.

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CM No.13622-C of 2010:

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This is an application under Section 5 of the Limitation Act, seeking condonation of 30 days delay in filing the present second appeal. The application is supported by an affidavit of Naresh Kumar s/o Piara Lal.

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On account of the reasons stated in para Nos. 4 & 5 of the application, the prayer for condonation of 30 days in filing the regular second appeal is allowed and delay is condoned.

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CM disposed of.

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CM No.13623-C of 2010:

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This is an application seeking condonation of 1 year and 115 days delay in refiling the appeal. The application is duly supported by an affidavit of Naresh Kumar s/o Piara Lal.

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In view of the averments made in para No.6 of the application,

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RSA No. 4574 of 2010 (O&M) -2-

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wherein, it has been stated that appellant No.1 namely Naresh Kumar had met with an accident and had remained admitted in the hospital for a number of months, the prayer for condonation of 1 year and 115 days in refiling the appeal is allowed. Delay of 1 year and 115 days in refiling the appeal is condoned.

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CM disposed of.

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RSA No.4574 of 2010:

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The defendant/appellants is in second appeal before this Court. The plaintiff-Rajinder Kumar instituted a suit for specific performance in respect of the agreement to sell dated 01.05.1994 in terms of pleading that such agreement had been entered into with the defendantBimla Devi to sell her house for a sale consideration of 1,45,000/-. A sum of 50,000/-was paid towards earnest money and the sons of Bimla Devi i.e. Ashok Kumar and Naresh Kumar, defendant Nos.2 & 3 had also signed the agreement. The possession of the suit property had been delivered to the plaintiff towards part performance of the agreement and last date for execution of the sale deed was fixed as on or before 30.05.1995. It was pleaded that the suit property was in a bad condition and accordingly, authority had been given by defendant-Bimla Devi to the plaintiff to raise construction as also to get the water pump situated in the suit property repaired and also to get an electric connection from the Electricity Department. Accordingly, construction plans had been sanctioned from the Municipal Council by the defendant-Bimla Devi and the same had been handed over to the plaintiff for purposes of raising the constructions. The plaintiff had accordingly, spent a sum of 50,000/- on the construction and lateron on 18.06.1994, a further sum of 10,000/- was given to Naresh

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RSA No. 4574 of 2010 (O&M) -3-

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Kumar-defendent No.2 and as such a total earnest money of 60,000/stood paid. In token of the amount of 10,000/- having been paid, Naresh Kumar-defendant No.2 had even signed on the back of the agreement dated 01.05.1994. The plaintiff pleaded that he had received a notice dated 14.08.1995 sent by Sh. R.S. Mehta, Advocate on behalf of the defendant for execution of the sale deed and the same was replied to. The plaintiff had always been ready and willing to get the sale deed executed on payment of balance sale consideration. On the stipulated date i.e. on 30.05.1995, the plaintiff had remained present at the office of Sub-Registrar, Amloh along with balance sale consideration but the defendant did not turn up. For the purposes of marking his presence, the plaintiff had got an affidavit attested from the Executive Magistrate, Amloh on 30.05.1995. On such pleadings the plaintiff prayed that he was entitled for the relief of specific performance or for the alternative relief for recovery of ` 1,40,000/- had been prayed for.

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The suit was contested only by defendant No.1-Bimla Devi whereas, defendant No.2 & 3, her sons despite service, did not appear and were accordingly, proceeded ex-parte. Defendant No.1 filed a written statement taking preliminary objections regarding non-joinder of necessary parties. It was further pleaded that the suit property was infact ancestral and as such, she could not have sold the entire house to the plaintiff on the basis of the agreement to sell dated 01.05.1994. It was also stated that the agreement dated 01.05.1994 was a forged and fabricated document.

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

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Whether defendant entered into an agreement to sell the house

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in suit with plaintiff for a sum of Rs.1,45,000/- on 01.05.94

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RSA No. 4574 of 2010 (O&M)

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receiving sum of Rs.50,000/- as earnest money delivering possession of the house of plaintiff under the agreement?

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Whether the plaintiff has been ready willing to perform his part of agreement?OPP

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Whether Naresh Kumar son of defendant received sum of Rs.10,000/- from plaintiff on 18.06.1997 if so its effect?OPP

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Whether plaintiff is entitled to specific performance of agreement to sell dated 01.05.94 if issue Nos. 1 and 2 are proved? OPP

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5. Whether the plaintiff is entitled to decree for recovery of Rs.1,40,000/- as an alternative relief? OPP

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Whether the plaintiff has spent Rs.50,000/- for raising construction of shop in the suit property if so its effect? OPP

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Whether the suit is not maintainable in the present form? OPD 8. Relief.

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The trial Court decreed the suit of the plaintiff for specific performance of the agreement to sell dated 01.05.1994 and directions were issued to defendant No.1-Bimla Devi to execute a valid registered sale deed regarding the suit property upon the balance sale consideration being paid by the plaintiff. Defendant/appellants represented through her legal representatives filed civil appeal and vide impugned judgment dated 26.02.2008 passed by Additional District Judge, Fatehgarh Sahib, the judgment and decree of the trial court was affirmed and the appeal was dismissed.

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I have heard Mr. Sham Lal Bhalla, Advocate, for the appellants at length.

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RSA No. 4574 of 2010 (O&M) -5-

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The sole contention raised by the learned counsel was that the defendant/appellant-Bimla Devi had only 1/6 share in the suit property and as such, she could not have entered into the agreement to sell regarding the entire house i.e. the suit property.

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Learned counsel would further contend that the suit itself was bad for non-joinder of necessary parties as Suresh Kumar-son, Darshana Devi and Chand Rani-daughters of defendant No.1-Bimla Devi has not been arrayed as parties.

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Having given my thoughtful consideration to the submission made by the learned counsel for the appellants and having perused the impugned judgments and decrees passed by both the Courts below, I find that the present second appeal is wholly devoid of merit and must fail for the reasons recorded hereinafter.

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The agreement to sell dated 01.05.1994 i.e. Ex.P.5. Such agreement has been held by the Courts below to be duly proved in accordance with law. The testimony of Bhagwan Dass-PW3, one of the marginal witness to the agreement has been noticed. It was also seen that such agreement to sell (Ex.P-5) was not only executed by Bimla Devi but even her sons Naresh Kumar and Ashok Kumar had also affixed their signatures on the same. Darshana Devi and Chand Rani-daughters of Bimla Devi had filed an application under Order 1 Rule 10 CPC for impleading them as defendants in the suit and such application had been dismissed by the trial Court on 21.07.2003. Against such order, no appeal or revision was preferred and the same became final. Plaintiff/respondent had on the other hand impleaded both the sons i.e. Naresh Kumar and Ashok Kumar and had clearly asserted that they had signed the agreement not merely attesting the

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RSA No. 4574 of 2010 (O&M)

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same as witnesses but had signed in the capacity of owners of the suit property alongwith Bimla Devi, their mother. In addition to 50,000/- paid towards earnest money, a further sum of 10,000/- was also duly received by Naresh Kumar i.e. one of the sons of Bimla Devi on 18.06.1994. Even the stamp papers scribing the agreement in question i.e. Ex.P-5 has been purchased not only by Bimla Devi or by herself but even purchased by her along with her two sons namely Naresh Kumar and Ashok Kumar. In the totality of the circumstances, both the Courts below have returned a concurrent finding of fact as regards due execution of the agreement to sell dated 01.05.1994 (Ex.P-5).

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As regards the contention raised by the learned counsel for the appellants that Bimla Devi was owner only with respect to 1/6 share in the suit property, the same is wholly devoid of merit. Bimla Devi, DW-1, had herself admitted and conceded in the cross-examination that she had delivered the possession of the entire suit property and she was herself residing in a rented premises. In the absence of any other corroboration by leading of documentary evidence, an inference has rightly been drawn by both the Courts below that the agreement to sell, Ex.P-5 was in respect of the entire suit property. Even the recital of the agreement to sell with regard to permitting the plaintiff/respondent to make him in the suit property, getting a hand pump repaired and to get an electric connection installed in the suit property would itself indicate that the agreement to sell were in respect of the entire suit property, the possession of which had been delivered towards part performance of the agreement to sell.

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The plaintiff/respondents has also been held to be ready and willing to perform his part of the contract. He remain present in the office of

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RSA No. 4574 of 2010 (O&M) -7-

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Sub-Registrar, Amloh on the due date i.e. on 30.05.1995 and had even got his affidavit attested from the Executive Magistrate, Amloh i.e. Ex.P-4 to demonstrate that he had remained ready and willing to perform his part of the contract on the date so stipulated.

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I find that grant of relief of specific performance in respect of the agreement to sell dated 01.05.1994, is based on cogent and valid reasoning and upon due appreciation of evidence.

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The present second appeal does not raise any question of law much less substantial question of law.

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The appeal is accordingly, dismissed.

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February 08, 2012 (TEJINDER SINGH DHINDSA) harjeet JUDGE

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Note: Whether to be reported? No

Naresh Kumar and Anr. v. Rekha Rani and Ors.

Case brief

What is this about?

What did the court decide?

Naresh Kumar and Anr. v. Rekha Rani and Ors.

Case brief

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