Dismissed

Ishak v. Ayyub and Anr.

Punjab & Haryana HC6 May 2014RSA/4607/2012

Case brief

AI extract

What is this about?

The High Court dismissed an appeal filed by a second defendant challenging the decree in a suit for specific performance of an agreement to sell. The court upheld the concurrences of the lower courts rejecting the appellant's claim of a prior bona fide purchase due to suspicion regarding the fabrication of an earlier agreement to defeat the plaintiff's antedated agreement on specific performance.

What did the court decide?

The appeal was dismissed, and the judgment and decree of the courts below were upheld.

Ishak Vs Ayyub and Anr. — Specific Performance | Punjab & Haryana HC (2014)

¶1

vinod kumar 2014.05.20 10:33 I attest to the accuracy and integrity of this document Chandigarh

¶2

RSA No.4607 of 2012 (O&M)

¶3

[ 1 ]

¶4

*********

¶5

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

¶6

RSA No.4607 of 2012 (O&M) Date of decision:06.05.2014

Ishak

...Appellant

Versus

Ayyub and another

...Respondents

CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain

¶13

Present: Mr. Lokesh Sinhal, Advocate, for the appellant. Mr. Sachin Mittal, Advocate, for respondent no.1. *****

¶14

RAKESH KUMAR JAIN, J .

¶15

This appeal is at the instance of defendant no.2 in a suit for possession filed by the plaintiff seeking possession by specific performance of the agreement to sell.

¶16

The case of the plaintiff is that defendant no.1 agreed on 09.02.2005 to sell land measuring 7 kanal 17 marlas, situated in village Raniyala Ferozepur, for a consideration of 1,70,000/-, out of which 85,000/- were paid as advance. The sale deed was to be executed on 07.02.2006. The plaintiff also got the plaint amended because he could not inadvertently mention the fact of his having paid additional amount of `50,000/- to defendant no.1 on 13.05.2005. He has alleged that he had been ready and willing throughout to perform his part of the contract, but

¶17

vinod kumar 2014.05.20 10:33 I attest to the accuracy and integrity of this document Chandigarh RSA No.4607 of 2012 (O&M) [ 2 ]

¶18

¶19

defendant no.1, who became dishonest, postponed the matter on one pretext or the other for the execution and registration of the sale deed. The plaintiff had even appeared before the Sub Registrar, Ferozepur Jhirka on 07.02.2006 with the remaining sale consideration and expenses for stamp and registration charges. It is alleged by the plaintiff that he came to know that defendant no.1 had sold the suit land to defendant no.2 vide sale deed dated 15.12.2006 and alleged that such sale is collusive between the parties in order to defeat his right as the agreement to sell was ante-dated, fake and fabricated document.

¶20

Defendant no.1, in his reply, had alleged that he had obtained loan and executed the document as collateral security. He had returned the said amount of 85,000/- borrowed from the plaintiff along with interest @ 2% per mensem on 13.05.2005. It is submitted that the plaintiff has fraudulently prepared the agreement to sell, otherwise prevailing rate of the land in dispute is 6,00,000/- per acre which could not have been sold to defendant no.1 for a meager amount of `1,70,000/-.

¶21

Defendant no.2 had taken the plea of bona fide purchaser without knowledge and notice of the agreement to sell. He alleged that defendant no.1 entered into an agreement with him on 31.05.2004 for a consideration of 4.5 lacs and received 3.5 lacs as advance and the remaining amount was to be paid on 15.12.2006. It is further alleged that supplementary sale deed was also executed on 25.03.2008 in order to correct wrong killa number and the area stated in the original sale deed.

¶22

The plaintiff filed replication and on the pleadings of the

¶23

RSA No.4607 of 2012 (O&M) [ 3 ]

¶24

vinod kumar 2014.05.20 10:33 I attest to the accuracy and integrity of this document Chandigarh

¶25

¶26

parties, issues were framed by the Trial Court. After the parties led their evidence, the Trial Court decreed the suit vide its judgment and decree dated 24.08.2011, which was upheld by the lower Appellate Court on 15.05.2012 with a modification that sale deed Ex.D2 is null and void to the extent of suit land and not in its entirety.

¶27

Aggrieved against the judgment and decree of both the Courts below, the present appeal has been filed by defendant no.2 alone.

¶28

Counsel for the appellant has submitted that the agreement in his favour has not been believed by the Courts below because it has not been scribed by a regular deed writer; it does not bear photographs of the parties and is not signed by the purchaser, but all these factors are not so substantial that on the basis of which the agreement to sell in favour of the defendant-appellant could be rejected.

¶29

On the other hand, counsel for the respondent no.1 has submitted that the Courts below have not only considered the aforesaid fact, but it has also been found that if the agreement was executed between defendant no.1 and defendant no.2 on 31.05.2004 and out of 4.5 lacs, the defendant no.2 had paid 3.5 lacs to defendant no.1, why a period of 2- ½ years was fixed for the purpose of registration of the sale deed without even taking possession of the land in dispute.

¶30

Moreover, it is also not believable that the plaintiff and defendants belonging to the same village were not aware of the agreement to sell dated 31.05.2004 and 09.02.2005. If defendant no.2 had entered into agreement with defendant no.1 on 31.05.2004 and had paid `3.5 lacs out of

¶31

vinod kumar 2014.05.20 10:33 I attest to the accuracy and integrity of this document Chandigarh

¶32

RSA No.4607 of 2012 (O&M) [ 4 ]

¶33

¶34

`4.5 lacs and had not taken possession, he would not have allowed the plaintiff to enter into another agreement with defendant no.1 on 09.02.2005 and would have definitely filed either a suit for permanent injunction or would have called upon defendant no.1 to execute the sale deed on payment of balance sale consideration. All these facts collectively show that the earlier agreement dated 31.05.2004 was a fabricated document in order to wriggle out of the agreement dated 09.02.2005.

¶35

Thus, there is hardly any scope for interference in this appeal

¶36

wherein a concurrent finding of fact has been recorded by both the Courts below after appreciation of evidence.

¶37

Dismissed.

¶38

May 06, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE

Ishak v. Ayyub and Anr.

Case brief

What is this about?

What did the court decide?

Ishak v. Ayyub and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

(O&M) Hans Raj etc. Vs Union of India

Surinder Pal Singh Vs State of Punjab and Anr.

Raj Singh Vs Ramesh Kumar and Ors.

(O&M) Karan Singh etc. Vs Raghbir Singh etc.

Joga Singh Vs Onkar Nath & Ors.

Baldev Singh Vs Bohar Singh