Dismissed

Gurmit Singh & Anr. v. Balbir Kaur & Ors.

Punjab & Haryana HC12 Mar 2014RSA/4612/2012

Case brief

AI extract

What is this about?

In second appeal, the High Court rejected challenges by apppellants regarding dismissal of specific performance suit. Upholding lower appellate court's findings on discrepancies in possession and lack of bona fides, the Court found no substantial question of law under Section 100 CPC warranting interference.

What did the court decide?

Instant appeal stands dismissed with no order as to costs.

Gurmit Singh & Anr. Vs Balbir Kaur & Ors. — Specific Performance | Punjab & Haryana HC (2014)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA-4612-2012 (O&M) Date of Decision: 12.03.2014

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Gurmit Singh & another

...... Appellants

Versus

Balbir Kaur & Ors.

...... Respondents

CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. Sandeep Khunger, Advocate for the appellants.

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1. To be referred to the Reporters or not?

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2. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK, J.

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Plaintiffs are in second appeal, against the judgment of reversal dismissing their suit for possession by way of specific performance.

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Brief facts of the case, as recorded by first appellate court in its impugned judgment, are that the land measuring 03 Kanals 12 Marlas as fully detailed in the head note of the plaint was the ownership and in possession of Anoop Singh (deceased) and he was competent to sell the same. As he expired on 7.8.2006 and thereafter, the mutation No. 894 was sanctioned in favour of the defendants being widow and sons respectively of Anoop Singh. Said Anoop Singh was owner in possession of the suit land and after his death, the present defendants were the symbolic owners. Anoop Singh entered into an agreement to sell dated 9.2.2004 with the plaintiffs @ Rs. 60,000/- per killa on receipt of Rs. 1,30,000/- in the

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-4612-2012

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presence of witnesses. It was mentioned that there was some dispute regarding the suit land and the suit was pending in the court and therefore, the sale deed will be executed and registered after three months of the decision of the suit. It was also agreed that in case of default by the plaintiff, his earnest money shall be forfeited and in case of default by the defendants, he shall be entitled to Rs. 2,60,000/- including earnest money. The possession was delivered by Anoop Singh to the plaintiff at the time of agreement and as such, the plaintiffs are protected U/s. 53-A of the T.P.A. The plaintiffs have always been ready and willing to perform their part of the agreement. It came to the notice of the plaintiffs that the pending suit was decided in favour of plaintiffs but the defendants failed to get the sale deed executed and registered. The plaintiffs served a legal notice upon the defendants on 29.7.2008 vide registered A.D. but the defendants refused to receive the same. The requests of the plaintiffs failed to yield any result. Hence the present suit.

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Upon notice, the defendants appeared and filed their joint written statement raising preliminary objections that the agreement to sell was result of fraud and misrepresentation. Anoop Singh (deceased) never entered into any agreement nor received any earnest money, nor his signatures were there on the agreement. The rate of the land was not less than Rs. 6 lacs per killa. The suit was bad for non-joinder of necessary parties as all the co-sharers have not been made party in the present suit. The plaintiffs suppressed the material facts and no partition has been effected and therefore, Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-4612-2012

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Anoop Singh was not competent to sell the khasra numbers. The suit was not within time as the civil court decided the said suit on 21.2.2007 and the present suit was filed on 7.11.2008. On merits, it is admitted that Anoop Singh expired on 1.8.2006. They reiterated the averments as raised in the preliminary objections and refuted the averments of the plaint and finally prayed that the suit be dismissed.

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On completion of pleadings of parties, the learned trial Court framed the following issues :-

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Whether the plaintiff are entitled for specific performance of agreement to sell dated 9.2.2004?OPP

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Whether the plaintiffs are further entitled for consequential relief of permanent injunction as prayed for ?OPP

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In case, issue No.1 is decided against the plaintiff, whether they are entitled for alternative relief of recovery of Rs. 2,60,000/- as prayed for?OPP

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Whether the suit filed by plaintiff beyond limitation period?OPD

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Whether the agreement dated 9.2.2004 is illegal, null and void, result of fraud, misrepresentation?OPD

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Whether the suit filed by plaintiff is bad for nonjoinder of necessary parties. Hence liable to be dismissed?OPP

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Whether the suit filed by plaintiff beyond limitation period?OPP

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Relief.

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With a view to prove their respective stands taken, both

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the parties led their documentary as well as oral evidence. After

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hearing both the parties and going through the evidence brought on Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-4612-2012

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record, the learned trial Court came to the conclusion that the plaintiffs have duly proved their case. Consequently, their suit for specific performance was decreed vide judgment and decree dated 6.8.2011. Feeling aggrieved, the defendants-respondents filed their first appeal, which came to be allowed by learned Addl. District Judge, Tarn Taran vide impugned judgment and decree dated 20.7.2012. Hence, this appeal.

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Learned counsel for the appellants submits that they have duly proved their case and it was rightly decreed by the learned trial Court. However, the learned lower appellate Court failed to appreciate the true facts of the case as well as the evidence available on record because of which the impugned judgment and decree passed by learned Addl. District Judge, Tarn Taran were not sustainable in law. He further submits that the agreement to sell dated 9.2.2004 was not in dispute. The plaintiffs could not file the suit earlier because of the pendency of the litigation and also in terms of the agreement to sell. The moment they came to know about the conclusion of the earlier litigation they filed the suit. Defendants did not inform the plaintiffs about the decision of the pending litigation, because of which no delay could have been attributed to the appellants. He also submits that the respondents-defendants were trying to take undue advantage of the situation. He prays for setting aside the impugned judgment and decree passed by learned Addl. District Judge, by allowing the present appeal.

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Having heard learned counsel for the appellant at

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-4612-2012

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considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). No question of law much less substantial question of law has been found involved in the present case. To say so, reasons are more than one, which are being recorded herein-after.

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It is a matter of record that agreement to sell Ex. P-1 was dated 9.2.2004. There was a recital in the said agreement that vendor has handed over the possession of the land to the vendees in pursuance to the agreement to sell. However, this recital was factually incorrect. As per jamabandi Ex. P-7, the suit land was in possession of the mortgagees. There was no evidence available on record to show that the prospective vendees ever remained in possession after the agreement to sell. It was also not in dispute that on the day of execution of the agreement, no civil suit was pending qua the suit land. It is so said, because the civil suit regarding the suit land came to be filed by Anoop Singh and Buta Singh on 4.4.2004 i.e. after about two months of the execution of alleged agreement to sell.

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As per the pleaded and argued case of the plaintiffsappellants, it was the civil suit filed by Anoop Singh and Buta Singh, which was pending at the time of execution of alleged agreement to Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-4612-2012

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sell. However, this assertion has been found to be factually wrong, rendering the very execution of the agreement highly doubtful. It seems that such a recital was inserted in the agreement to sell, if any, with a view to bring the suit within limitation, which was otherwise hopelessly time barred. Having said that, this court feels no hesitation to conclude that the learned Addl. District Judge has rightly accepted the appeal of the defendants, while dismissing the suit of the plaintiffs and the impugned judgment passed by learned lower appellate court deserves to be upheld.

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The suit was filed as late as on 18.11.2008 for a decree of specific performance of alleged agreement to sell dated 9.2.2004 i.e. after more than 4½ years. Although, as noticed herein-above, no civil suit was pending at the time of execution of alleged agreement to sell and the same came to be filed after about two months i.e. on 3.4.2004, yet it was decided on 21.2.2007 vide Ex. D-1. In spite of the decision of civil suit on 21.2.2007 plaintiffs issued a notice dated 29.7.2008 i.e. after one year and 5 months and even without disclosing their source of information. In such a situation, it can be safely held that the plaintiffs were not proceeding on a bona-fide approach. They were trying to grab the suit property proceeding on their mala-fide and dishonest intention. Correctly appreciating the true factual aspect of the matter, the learned Addl. District Judge, Tarn Taran dismissed the suit of the plaintiffs, while rightly allowing the appeal of the defendants-respondents, because of which the impugned judgment deserves to be upheld.

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-4612-2012

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Before arriving at a judicious conclusion, the learned Addl. District Judge, Tarn Taran rightly re-appreciated the facts of the case and also the evidence available on record with a view to record his own cogent findings, some of whom are contained in paras 17 to 19 of the impugned judgment and the same read as under :-

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“In this backdrop, the report of the Handwriting Expert examined by the defendants assumes significance. The defendants had got compared the signatures of Anoop Singh on the alleged agreement to sell with his admitted signatures from a Handwriting Expert namely Sukhpreet Kaur who after carrying out detailed comparison came to the conclusion that agreement to sell does not bear the signatures of Anoop Singh. She submitted her report to that effect as DW3/1, when she was examined by the defendants. The plaintiffs did not lead any evidence to falsify the report of said expert. Therefore, I find no reason to disbelieve the opinion of the Handwriting Expert Sukhpreet Kaur examined by the defendants as DW3.

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In can be said that the expert generally gives the report in favour of the person who hires him/her and thus no reliance upon such a report should be placed. It is not a universal rule that the report of the Handwriting Expert should not be relied upon, if he/she submits the report in favour of the party who hired him. There must be some valid reasons to discard the report of handwriting expert, which do not exist in the present case. Rather, I am of the view that the report of the handwriting expert is true because from the perusal of the signatures of Anoop Singh on agreement to sell, it is apparent that the same are different from the signatures of Anoop Singh present

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-4612-2012

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on the entry in the register of the scribe (Ex.P6). The signatures on both the documents are different even to a naked eye and thus it can be safely said that the person who put his signatures as Anoop Singh on the agreement to sell Ex. P1 and the person who signed it in the entry of register of the scribe Ex. P6 as Anoop Singh were different.

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Although, it is not much important, but in view of the peculiar facts and circumstances of the case explained above, the fact that the amount of earnest money was paid in cash also assumes importance. As a matter of general practice, the amount of sale consideration is passed off by cheque or demand draft, but in this case said amount was allegedly paid in cash. There is no evidence from where said amount was arranged by the plaintiffs.”

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Plaintiffs-appellants were seeking decree for specific performance which was a discretionary relief. In such matters, conduct of both the parties to the litigation has always been a relevant factor for consideration by the Courts of law. The plaintiff must reach the court with clean hands. His intention should be bonafide. He must not take the court and the judicial system for granted. Simultaneously, it is the bounden duty of every court of law to reach the truth. It is so said, because truth is the fountain head of our judicial system. Whenever and wherever any litigant is found to be playing smart with a view to mislead and overreach the court, he makes himself dis-entitled for any kind of relief, much less the discretionary relief.

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During the course of hearing, learned counsel for the

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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appellants could not point out any jurisdictional error or patent illegality apparent on the record of the case, in the impugned judgment and decree passed by learned Addl. District Judge. He also failed to press into service any substantive argument so as to convince this Court to take a different view than the one taken in the impugned judgment. Further, no question of law, much less substantial question of law has been found involved in the present case, which is sine qua non for interference by this Court, while exercising its jurisdiction under Section 100 of CPC. Thus, the impugned judgment and decree deserve to be upheld, for this reason also.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the

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case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.

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Resultantly, instant appeal stands dismissed, however, with no order as to costs.

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12.03.2014

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( RAMESHWAR SINGH MALIK ) JUDGE

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‘Satyawan’

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

Gurmit Singh & Anr. v. Balbir Kaur & Ors.

Case brief

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What did the court decide?

Gurmit Singh & Anr. v. Balbir Kaur & Ors.

Case brief

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