Dismissed

Dharam Pal Singh Alias Sukar & Ors. v. Barik Mohammad

Punjab & Haryana HC11 Apr 2014RSA/3206/2009

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against an order granting specific performance of a sale agreement. The court held that the lower appellate court correctly found the agreement executed and dismissed the appellants' claim that the deceased was of unsound mind due to lack of evidence.

What did the court decide?

The appeal was dismissed with no merit found in the raised questions of law.

Dharam Pal Singh Alias Sukar & Ors. Vs Barik… — Specific Performance | Punjab & Haryana HC (2014)

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�� Date of decision: 11^th April, 2014

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Dharam Pal Singh @ Sukar and others

� Appellants

Versus

Barik Mohammad

� Respondent

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Whether Reporters of Local Newspapers may be allowed to see the judgment?

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Whether to be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Mr. S.S. Dinarpur, Advocate for the appellants.

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Mr. S.K. Panwar, Advocate for the respondent.

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As per the averments made, the land in dispute measuring 8 Kanals was owned and possessed by Mukhtiar Singh, predecessor1 in1interest of the appellants. According to the plaintiff1respondent, said Mukhtiar Singh entered into an agreement dated 20.10.1995 for sale of the land in dispute in his favour for a sum of �1.00 lac and executed an agreement dated 20.10.1995. He received a sum of �25,000 as earnest money and affixed his thumb impressions in the presence of witnesses. The date for registration of the sale deed was fixed as 20.11.1995. The suit land was already under mortgage with possession in the sum of �37,500 with Ilamudeen etc. and the

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Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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mortgage amount was to be left with the plaintiff and after deduction of this mortgage amount and earnest money, the balance sale consideration was to be paid by the plaintiff before the Sub1Registrar. However, the defendant did not turn up on the stipulated date to execute the sale deed in favour of the plaintiff. On 09.12.1995, the defendant further extended the date for execution of the sale deed upto 09.01.2006 and received a further amount of �8,500. The plaintiff again executed a writing to that effect which was thumb marked by the defendant. Thus, the defendant received a total sum of �33,500 but did not turn up on 09.01.2006 for executing the sale deed, whereas the plaintiff has always been ready and willing to perform his part of the contract. Hence, the suit.

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During the pendency of the suit, defendant Mukhtiar Singh died and the appellants were brought on record as his Legal Representatives. In their written statement, they denied that their father Mukhtiar Singh ever entered into an agreement to sell the land in dispute to the plaintiff. Receipt of earnest money, as alleged, was also denied, though it was admitted that the suit land was mortgaged with Ilamudeen. It was further alleged that their father was mentally sick and was of unsound mind and the agreement, if any, was a forged and fabricated document and not binding upon their rights. It was further alleged that the plaintiff might have obtained the thumb impression of Mukhtiar Singh on some blank papers and fabricated such a document. All other averments were denied and dismissal of the suit was prayed for.

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Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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

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Whether the plaintiff is entitled to get the possession of the suit land by way of specific performance of agreement to sell dated 20.10.1995 on payment of sale consideration? OPP

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Whether the suit is not maintainable? OPD

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Whether Mukhtiar Singh was unable to execute the alleged agreement due to unsound mind as alleged? OPD

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Relief.

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After considering the evidence on record and hearing learned counsel for the parties, the trial Court vide its judgment and decree dated 08.02.2008 decreed the suit of the plaintiff1respondent for recovery of an amount of �33,500 along with interest @ 6% per annum from the date of filing of the suit till its realization and declined the specific performance of the agreement to sell in question holding that no such agreement was ever entered into between the parties.

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Aggrieved from the aforesaid judgment and decree of the trial Court, both the parties i.e. the defendants as well as the plaintiff filed appeals before the first appellate Court. Vide judgment and decree dated 09.06.2009 of the lower appellate Court, the appeal filed on behalf of the plaintiff1respondent was allowed with costs holding that he was entitled to get the agreement in question specifically enforced, whereas the appeal filed by the defendants was dismissed.

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Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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Still not satisfied, the defendants have filed the instant appeal challenging the judgment and decree dated 09.06.2009 passed in Civil Appeal No.74 of 2008 titled as ‘Barik Mohammad v. Mukhtiar (since deceased) and represented through LRs’, which was filed on behalf of the plaintiff before the first appellate Court seeking specific performance of the agreement to sell in question.

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It may further be noticed that the defendant1appellants have not filed any appeal challenging dismissal of Civil Appeal No. 47 of 2008 titled as ‘Mukhtiar (since deceased) and represented through LRs v. Barik Mohammad’ filed by them against the judgment and decree of the trial Court whereby suit of the plaintiff1respondent for alternative relief was decreed.

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Challenging the judgment and decree of the lower appellate Court, learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal for consideration:

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Whether the plaintiff has miserably failed to prove the agreement to sell executed by Mukhtiar Singh?

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Whether, once the suit as projected by the plaintiff was found to be false by the trial Court, the reversal of the judgment and decree by the lower appellate Court is justified in the facts and circumstances of the instant case?

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Whether once the plaintiff has not approached the Court with clean hand, he is entitled for the relief of

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Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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specific performance of the alleged agreement to sell?

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Whether once the plaintiff has failed to prove the validity of the agreement executed by deceased Mukhtiar Singh, he is entitled for refund of �33,500/1?

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Whether manifest and grave injustice is caused to the appellants?

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At the outset, learned counsel for the appellants has vehemently argued that the trial Court on appreciation of evidence on record had concluded that no agreement to sell was executed between the parties and the aforesaid finding could not have been interfered by the lower appellate Court, and thus, the lower appellate Court has misdirected itself in reversing the findings of the trial Court.

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No doubt, analysis of the oral evidence and conclusion drawn thereon by the trial Court should ordinarily be accepted by the lower appellate Court, as the trial Court enjoys the privilege of watching and observing demeanour of witnesses and a number of things weigh in the mind of the trial Court at the time of examining oral evidence; however, in the instant case, the situation is different. In fact, while reaching to the conclusion against the plaintiff1respondent, the trial Court has totally ignored the evidence led by him. Execution of the agreement to sell in question and extension thereof stands duly proved from the evidence on record. In fact, the defence taken on behalf of the appellants is of total denial of execution of the agreement to sell in question with a further defence that Mukhtiar Singh was of

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Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

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unsound mind. However, there is absolutely no evidence on record with regard to mental health of Mukhtiar Singh. It was for the appellants to prove that Mukhtiar Singh was of unsound mind, however they have miserably failed to do so. In fact, the appellants have admitted the thumb impressions of Mukhtiar Singh on the agreement to sell in question, as it is their own case that the plaintiff1 respondent might have obtained the thumb impressions of Mukhtiar Singh on some blank papers.

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At this stage, it is useful to refer to the relevant paragraphs of the judgment of lower appellate Court, which read thus:

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Thus, the lower appellate Court, on re1appreciation of evidence, has recorded the findings which are correct and in the facts and circumstances of the case. It cannot be said that the findings of the trial Court should not have been interfered by the lower appellate Court.

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In view thereof, this Court finds no merit in this appeal as the substantial questions of law, as raised, do not arise at all therein.

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Dismissed.

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Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court

Dharam Pal Singh Alias Sukar & Ors. v. Barik Mohammad

Case brief

What is this about?

What did the court decide?

Dharam Pal Singh Alias Sukar & Ors. v. Barik Mohammad

Case brief

What is this about?

What did the court decide?

What the court decided

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Case details

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