Appeals against concurrent findings denying specific performance of agreements to sell land. The High Court held callers failed to prove genuine intent or payment, treating documents as security. Courts below correctly found no substantial question of law.
Regular second appeal stood dismissed with no order as to costs.
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.
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RSA No. 4788 of 2012 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 4788 of 2012 (O&M) Date of Decision 10.02.2014
Harjeet Kumar and others
....Appellants
Versus
Kaushalya Bai and others
....Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Ashok Singla, Advocate for the appellants.
1. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest?
RAMESHWAR SINGH MALIK J.
Plaintiffs are in appeal, against the concurrent findings recorded by both the learned courts below, in their suit for possession by way of specific performance.
Facts first.
Succinctly put, facts of the case are that Ram Chanddefendant was recorded as owner in possession of approximately 79 kanals 11 marlas of land, out of which 55 kanals 8 malras of land was situated in village Phoolkan, whereas, 24 kanals 2½ marlas was within the revenue estate of village Moriwala. Plaintiffs filed suit for
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possession by way of specific performance of agreement to sell dated 30.11.2000 @ 1,30,000/- per acre, allegedly executed by defendant No.2. In fact, two suits were filed. Civil suit No.469-C of 2002 was instituted on 20.3.2009 by Gurdayal Chand against Ram Chand and others whereas second civil suit No. 169-C of 2002 was instituted by Dona Ram against Ram Chand and others on 26.4.2002. Plaintiff-Gurdayal Chand sought specific performance of agreement to sell dated 30.11.2000 Ex.P1 whereas plaintiffs Dona Ram and Chand Lal sought specific performance of later agreement to sell dated 27.3.2001 Ex.D6 @ 1,20,000/- per acre. Both these agreements were qua same property. It was pleaded case of the plaintiffs that agreements to sell were duly executed. They remained ready and willing to perform their part of contract but defendant-Ram Chand failed to perform his part of contract, forcing the plaintiffs to approach the Court by filing present civil suits.
Having been served in the suits filed by the plaintiffs, defendants appeared and filed written statement taking more than one preliminary objections alleging that no such agreement to sell was ever executed. There was no question of getting the sale deed registered. Suit was filed concealing the material facts. Denying the other averments of the plaint, dismissal of the suits were prayed for. Learned trial court consolidated both the suits.
On completion of pleadings of the parties, learned trial court framed the following issues:-
“ 1. Whether defendant No.1 Ram Chand entered
into an agreement to sell the suit land on
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30.11.2000 with the plaintiff for a consideration of Rs. 1,30,000/- per acre?OPP
3. Whether plaintiff was and is still ready and willing to perform his part of contract ?OPP.
4. Whether plaintiff is entitled to possession of the suit land by way of specific performance of the agreement dated 30.11.2000? OPP.
5. Whether defendant No.1 Ram Chand has entered into an agreement to sell the suit land in favour of Dona Ram and Chand Lal, i.e. defendants No. 3 and 4 on 27.3.2001? OPD 3 & 4
6. Whether defendants No. 3 and 4 had paid a sum of Rs. 8,00,000/- as earnest money to defendant No.1?OPD 3 &4.
7. Whether defendants No.3 and 4 were ready and willing and are still ready and willing to perform their rent of contract?OPD 3 &4
8. Whether the suit is hit by order 2 Rule 2 of CPC?OPD 1&2
9. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct?OPD 1 &2.
10. Whether the suit is not maintainable in the
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present form?OPD 1 &2.
11. Relief”
With a view to substantiate their respective stands taken, parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that Gurdayal Chandplaintiff failed to prove his case and suit was dismissed. In the second suit filed by Dona Ram and Chand Lal, it was held that plaintiffs failed to establish their plea of specific performance. However, their suit was partly decreed, holding them entitled for the alternative relief of recovery of amount of earnest money. DefendantRam Chand was directed to pay the decretal amount within a period of one month from the date of decree, failing which plaintiffs would be at liberty to recover the same through process of the court.
Feeling aggrieved against the judgment and decree dated 11.12.2009 passed by the learned trial court, three first appeals were filed before the learned lower appellate court. First appeal was Civil appeal No. 111 of 2010 (Dona Ram since deceased through LRs Vs. Ram Chand since deceased through LRs and others), second appeal was civil appeal No. 113 of 2010 (Ram Chand since deceased through LRs. and others Vs. Dona Ram since deceased through his LRs) and third appeal was civil appeal No. 112 of 2010 ( Gurdayal Chand Vs.Ram Chand since deceased through LRs. and others). All these three appeals were decided together by the learned lower appellate court vide impugned judgment and decree dated 5.10.2002, dismissing all the three appeals. Hence this appeal, at Kumar Amit 2014.04.29 17:23 I attest to the accuracy and integrity of this document
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the hands of legal representatives of original plaintiffs-Dona Ram and Chand Lal.
Learned counsel for the appellants submits that agreement to sell dated 27.3.2001 Ex.D6 was executed by Ram Chanddefendant in favour of present appellants-plaintiffs. While suit of Gurdayal Chand seeking enforcement of agreement to sell dated 30.11.2000 was rightly dismissed by the learned courts below, but relief of specific performance was illegally denied to the present appellants, because due execution of agreement to sell dated 27.3.2001 Ex.D6 was proved by leading cogent evidence. He further submits that plaintiffs-appellants were ready and willing to perform their part of the contract. He next contended that since the learned courts below failed to appreciate the true facts of the case as well as sufficient evidence available on record, the impugned judgments and decrees were not sustainable in law. Relying upon a judgment of the Hon'ble Supreme Court in Narinderjit Singh Vs. North Star Estate Promoters Limited, 2012 (5) SCC 712 , he prays for setting aside the impugned judgments and decrees, by allowing the present appeal.
Having heard the learned counsel for the appellants at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Kumar AmitCode of Civil Procedure ('CPC' for short). Learned courts below have 2014.04.29 17:23 I attest to the accuracy and integrity of this document
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recorded cogent and concurrent findings of facts, which have not been found suffering from any infirmity. To say so, reasons are more than one, which are being recorded hereinafter.
The crucial issue that falls for consideration of this Court is whether the agreement to sell Ex.D6 was duly executed between the parties, for the purpose of sale of the suit land. So far as signatures of defendant No.1-Ram Chand on the said agreement to sell were concerned, it was not denied by him. However, he came up with a plea that this document was never intended to be executed for the purpose of selling his land. On the other hand, the said document was executed as a security for payment of money, as he had a money transaction with firm of Chand Lal namely M/s Fateh Chand and company.
Pleaded case of the plaintiffs-appellants, on the other hand, was that agreement to sell Ex.D6 was executed for the purpose of selling the suit land, for a sale consideration of 11,92,500/- out of which an amount of 8 lacs was given to the defendant as earnest money. Defendant-Ram Chand asserted that he was having fiduciary relationship with Chand Lal. It has come on record in the form of testimony of witness Kuldeep Singh, clerk as DW 17, that Chand Lal was having a commission agency with the firm M/s Fateh Chand and company. There was sufficient evidence on record to establish that defendant-Ram Chand was having fiduciary relationship with Chand Lal and learned trial court has recorded its cogent findings in para 34 of the impugned judgment.
It was also established on record from the testimony of
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DW17, who produced numerous documents including Ex.DW17/2 to DW17/28 and copies of auction register which revealed the name of commission agent and name of seller, specifically the name of Ram Chand. Thus, sufficient, cogent and voluminous evidence were available before the learned courts below, to arrive at a judicious conclusion that Ram Chand never intended to sell the suit property. Plaintiffs-appellants miserably failed to prove due execution of agreement to sell Ex.D6, which was not found to be a genuine document and, in fact, was the result of misuse of fiduciary relationship of Chand Lal.
Numerous other litigations were also pending between the parties, as disclosed by the learned trial court in para 37 of its impugned judgment. Having said that, this Court feels no hesitation to conclude that learned trial court proceeded on a judicious approach, correctly appreciating the facts as well as evidence available on record before recording its cogent findings, which have been affirmed by the learned lower appellate court, leaving hardly any scope for interference at the hands of this Court.
Learned Additional District Judge re-appreciated the factual as well as legal aspect of the matter, being final court of facts as well as law. In para Nos. 26 and 29 to 31 of the impugned judgment, learned Additional District Judge, recorded his cogent findings, while affirming the findings recorded by learned trial court, before dismissing the first appeals of the appellants. The findings recorded by the learned Additional District Judge in para Nos. 26 and 29 to 31,
read as under:-
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“26. Further, Ex.DW17/10 and
Ex.Dw17/13 show the sale of wheat crop by Ram Chand to M/s Fateh Chand and Co. Thus, it is abundantly clear that Dona Ram and Chand Lal, both sons of Fateh Chand and having close relation with Balbir Chand as a partner of firm, had fiduciary relationship with ram Chand who used to sell his crop to their company. Thus, the learned trial court very rightly held that the agreement of Dona Ram Ex.D6 was in all probability executed for the security purposes to safeguard the payment/loan amount being advanced to Ram Chand in anticipation of his crop being sold to the M/s Fateh Chand and Company.
29. The learned trial court, in order to justify its decision of grant money decree, has categorically mentioned in para No.38 of the impugned judgment held that while the appellants Dona Ram and Chand Lal used to purchase crop from Ram Chand through their commission Agency M/s Fateh Chand and Co., on the other hand Ram Chand was marginal farmer dependent upon his agricultural land for maintenance of his family which included his wife and four children out of which two daughters were of marriageable age as was
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evident from his affidavit Ex.DW18/A. Thus, the learned trial court had rightly sympathized that Ram Chand who had been made to execute an agreement to sell in respect of his entire agricultural land in lieu of just Rs. 8,00,000/purported to have been paid to him as earned money. Although, the payment of said money had been tried to be proved through DW10 Sh. Pukhraj Singh, Advocate vide Ex.Dw12/A (page No. 329 of the main file) which is certified copy of his statement in a criminal case titled as Chand Lal Vs. Ram Chand etc. wherein he had categorically stated that no payment of consideration took place in his presence.
30. Further reliance may be placed upon Ex.Dw13/A and Ex.Dw13/B sale deeds executed by Dona Ram but both the sale deeds had been executed after the execution of agreement to sell with Ram Chad. Thus, it could not be said that sale consideration of those sale deeds was available at the time of payment of earnest money to Ram Chand. Thus, I am of the considered view that the learned trial court had very rightly passed a money decree, so that undue hardship is not caused to Ram Chand and at the same time any money which might have been paid by Dona and Chand
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Lal to Ram Chand, is also secured by way of passing a money decree.
31. My views find support from the observations made by the Hon'ble Supreme Court in case titled as Ajaib Singh Vs. Smt. Tusli Devi reported as 2000 (4) RCR (civil), S.C. 239 wherein it has been held that if the plaintiff fails to prove that he had made the payment in accordance with the terms and agreement and thus had performed his part of the contract, he is not entitled to the relief of specific performance. It has further been held that mere vague and contradictory averments made regarding payments made cannot be believed to hold the vendee to be ready and willing.”
A bare reading of the abovesaid findings recorded by the learned Additional District Judge, would show that approach adopted by the learned lower appellate court cannot be said to be illegal by any stretch of imagination. In fact, findings recorded by both the learned courts below have been found to be based on correct appreciation of facts as well as evidence available on record. Since both the impugned judgments have been found to be based on sound reasons, therefore, the same deserve to be upheld for this reasons also.
Based on the abovesaid findings, it is unhesitatingly held that learned courts below were fully justified on facts as well as in law to deny the discretionary relief to the plaintiffs-appellants. Further, on Kumar Amit 2014.04.29 17:23 I attest to the accuracy and integrity of this document
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due appreciation of evidence led by both the parties, learned courts below came to the definite conclusion that plaintiffs were not found ready and willing to perform their part of the contract. Thus, both the abovesaid strong reasons were sufficient to deny the discretionary relief of specific performance. That is what has been done by the learned courts below. In this view of the matter, it is unhesitatingly held that impugned judgments deserve to be upheld for this reason, as well.
So far as the judgment relied upon by the learned counsel for the appellants is concerned, there is no dispute about the law laid down therein. However, the cited judgment is of no help to the appellants, being distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.
During the course of hearing, learned counsel for the appellants failed to point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments and decrees passed by the learned courts below. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by both the learned courts below. Further, no question of law much less Kumar Amitsubstantial question of law has been found involved in the present 2014.04.29 17:23 I attest to the accuracy and integrity of this document
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case, which is sine qua non for interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 CPC. Thus, the impugned judgments and decrees passed by the learned courts below deserve to be upheld.
No other argument was raised.
Considering the peculiar facts and circumstances of the 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.
Resultantly, the instant regular second appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE
10.2.2014 AK Sharma
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3 issues framed by the court
Whether the appellants are entitled to specific performance of an alleged agreement to sell dated 27.3.2001 given lack of payment and intent to sell?
Whether the lower courts erred in finding the agreement was a security document rather than a genuine sale agreement?
Whether Section 100 of CPC requires a substantial question of law for this second appeal?
Colour shows how this judgement treated each authority
Narinderjit Singh Vs. North Star Estate Promoters LimitedDistinguished¶49
Narinderjit Singh Vs. North Star Estate Promoters Limited, 2012 (5) SCC 712 · Who else cites this
Padmausundra Rao and another Vs. State of Tamil Nadu and othersDistinguished¶85
Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533 · Who else cites this
Harjeet Kumar and others
Kaushalya Bai and others
Rameshwar Singh Malik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
