Dismissed

Gurpreet Singh and Anr. v. Pargat Singh and Ors.

Punjab & Haryana HC25 Feb 2014RSA/4892/2011

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Punjab and Haryana dismissed a challenge to a decree for specific performance of an agreement to sell land. The Court held the appellants failed to prove they were prior owners of the property and found no error of law or substantial question of law in the lower courts' decision.

What did the court decide?

The instant second appeal was dismissed with no order as to costs.

Gurpreet Singh and Anr. Vs Pargat… — Contract and Commercial Disputes | Punjab & Haryana HC (2014)

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RSA No. 4892 of 2011(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH AT CHANDIGARH

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RSA No. 4892 of 2011(O&M) Date of Decision: 25.2.2014

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Gurpreet Singh and another

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.....Appellants

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Versus

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Pargat Singh and others

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.....Respondents

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CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. Ashok Khunger, Advocate for the appellant.

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Mr. B.R.Gupta, Advocate for the respondent.

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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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Feeling aggrieved against the concurrent findings of facts recorded by both the learned courts below, in a suit for possession by way of specific performance, appellants have approached this Court by way of instant second appeal.

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In order to avoid repetition, facts of the case as recorded by the learned Additional District Judge, in para 3 and 4 of the impugned judgment, read as under:-

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“ In nutshell, the case of the respondents

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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No.1 and 2/ plaintiffs Pargat Singh and Mohinder Singh are that they filed suit against the respondent/defendant Dalbir Kaur for possession by way of specific performance of agreement dated 9.5.2003 executed by the defendant in favour of the plaintiffs with regard to sale of land measuring 11 kanals 16 marlas comprised of Rect No.53 killa No.12 (8-0) 13 min (3-16) situated in the area of village Arafke Tehsil and District Ferozepur and directing the defendant to execute and get registered the sale deed of the suit land in favour of the plaintiff on receipt of balance sale consideration of Rs.9500/- with consequential relief of injunction restraining the defendant from alienating the suit land in any manner in favour of any other person or in the alternative suit for the recovery of Rs.3,00,000/- i.e. Rs.2,90,000/- paid by the plaintiffs to the defendant as earnest money and remaining as damages and interest along with future interest at the rate of Rs.2%^, per month from the date of the suit. It is alleged that the defendant being the owner in possession of the suit land entered into an agreement to sell dated 9.5.2003 in favour of the plaintiffs with regard to sale of the suit Imo for a total consideration of Rs. three lacs in the presence of marginal witnesses and the defendant

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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received Rs.2,90,000/- from the plaintiffs as earnest money and the remaining sale consideration was to be paid by the plaintiffs to the defendant at the time of the execution and registration of sale deed. The stipulated date for executed and registration of the sale deed was fixed on or before 10.11.2003. The agreement was got scribed by the defendant which was thumb marketed the same in token of its correctness in the presence of marginal witnesses,namely, Satnam Singh son of Bachan Singh and Mukhtiar Lambardar. It is further alleged that the possession of the suit land was delivered by the defendant to the plaintiff at the time of the execution of the agreement on 9.5.2003. It is further alleged that at the time of the execution of the agreement in dispute, suit land was standing as mortgaged in the name of one Nazar Singh and the defendant assured that she has already paid the mortgage amount to Nazar Singh and she will get corrected the revenue record before the stipulated date but the defendant could not get corrected the revenue record, therefore, the stipulated was extended from 10.11.2003 to 10.5.2004 and a writing to this effect was made on .7.11.2003 at the back of the agreement in question, which was

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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attested by the same witnesses. It is further alleged that as the defendant again failed to get corrected the revenue record, therefore, the stipulated date was again extended from 10.5.2004 to 11.11.2004 and again from 11.11.2004 to 10.12.2004 and again from 10.12.2004 to 20.4.2005 and all these writings were made on the back of the agreement in question. It is further alleged that on 20.4.2005 the plaintiffs presented the agreement in question to the defendant to execute the sale deed in favour of the plaintiffs on 20.4.2005 but the defendant prolonged the matter on one pretext or the other. It is further alleged that on 20.4.2005 the defendants went to Tehsil office at Ferozepur to perform their part of the contract with balance sale consideration and other expenses and waited the defendant but she did not turn up to perform her part of the contract. Then in the evening the plaintiffs got their presence marked before Sub Registrar, Ferozepur by moving an application. It is further alleged that the plaintiffs had always been ready and willing and are still ready and willing to perform their part of the contract. It is further alleged that now the defendants started making efforts to alienate the suit land in favour of some other person with malafide intention to usurp the earnest money of

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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the plaintiffs. Hence the plaintiffs have filed the present suit.

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Notice of the suit was issued to the defendant who appeared and contested the same by filing written statement in . which she took preliminary objection to the effect that the plaintiffs have not come to the court with clean hand and have suppressed the material facts from the court. On merits she has alleged that she never executed any agreement to sell her land in favour of the plaintiff nor she received any earnest money from them. She further alleged that she never delivered the possession of the suit land to the plaintiffs and she is still in possession over the suit land. She further alleged that the alleged agreement to sell was only for the purpose of security of the old amount which accumulated by calculating the interest on the previous amount of Rs.60,000/-. The real facts are that both the plaintiffs are money lenders and the husband of the defendant was in need of money and for the first time on 7.5.2000 the defendant received Rs.7500/- from Mohinder Singh son of Teja Singh and executed an agreement of mortgage regarding land comprised of Rect no.53 killa No.12 (8-0) for a total mortgaged amount of Rs.7500/-. Then on

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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13.12.2000 both the plaintiffs advanced Rs. 52,500/- by including Rs.7000/- of agreement of mortgage dated 7.5.2000 which came to Rs.7500/-. Thereafter on 14.5.2001 further interest was calculated and a new agreement of mortgage was got executed from the defendant regarding land comprised of killa No.12 and by calculating the interest the earnest money paid was shown to be 101,400/-. Again on 15.11.2001 a fresh agreement of mortgage regarding land comprised of killa No.12 was got executed from the defendant and the earnest money was shown Rs.1,31,800/which was never paid to the defendant but the interest was calculated on the previous amount of Rs.1,01,400/- which turned out to be Rs.1,31,800/-. Thereafter on 15.5.2002 another agreement of mortgage was got executed regarding land measuring 11 kanals 16 marlas and earnest money paid was shown to be Rs.1,71,300/-. Again on 13.11.2002 an agreement to sell was got executed from the defendant regarding the land in dispute for a total sale consideration of Rs.2,30,000/- and earnest money was shown Rs.2,23,000/- and the date for execution of the sale deed was fixed to be 13.5.2003. Similarly the alleged agreement to sell was got prepared by the plaintiffs on 9.5.2003 and

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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the earnest money was shown Rs.2,90,500/- which was never paid by the plaintiffs to the defendant. In fact the defendant took only Rs.60,000/- from the plaintiff. She denied all other averments made in the plaint and prayed for the dismissal of the same

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with costs ”

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

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“1. Whether the defendant executed an agreement to sell dated 9.5.2003 in favour of the plaintiffs?OPP.

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2. Whether the plaintiffs remained ready and willing to perform their part of agreement?OPP

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3. Whether the plaintiffs are entitled to specific relief of specific performance of the agreement dated 9.5.2003 or in the alternative they are entitled to decree for recovery of Rs. three lacs as prayed for?OPD

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4. Whether the plaintiffs have not come to the court with clean hands?OPD.”

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Whether the suit is not maintainable?OPD

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Relief

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In order to prove their respective stands taken, both the

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parties led their evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to

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the conclusion that plaintiffs have proved their case. Accordingly, suit Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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was decreed vide impugned judgment and decree dated 14.5.2010. It is pertinent to note here that present appellants were not defendants. Claiming themselves to be owners of the suit property on the basis of a sale deed dated 4.8.2009, i.e. during pendency of the suit, they filed first appeal, which was dismissed by the learned Additional District Judge. Hence this second appeal.

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Learned counsel for the appellants submits that appellants were bonafide purchasers for due consideration. In such a situation, learned courts below have committed serious error of law, while decreeing the suit of the plaintiffs-respondents. He further submits that even the mutation of the suit land had been sanctioned in favour of the appellants, because they were in possession thereof. Since the learned courts below have failed to appreciate the true facts of the case as well as evidence available on record in the correct perspective, the impugned judgments and decrees were not sustainable in law. He prays for setting aside the impugned judgments and decrees , by allowing the present appeal.

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Having heard the learned counsel for the appellants at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the arguments raised, this Court is of the considered opinion that in the given fact situation of the case, no interference is warranted at the hands of the Court, while exercising its jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.

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It is a matter of record that present appellants were not the

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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defendants. Respondent No.3 was the only defendant in the suit for possession by way of specific performance filed by plaintiffsrespondents No. 1 and 2. Appellants never moved an application under Order 1 Rule 10 CPC before the learned trial court for becoming party. Further, while filing their appeal against the impugned judgment dated 14.5.2010 passed by the learned trial court, appellants did not move any application under Order 41 Rule 27 CPC. In fact, they failed to make out any case for interference by the learned Additional District Judge, because of which their appeal was rightly dismissed and the impugned judgment passed by the learned Additional District Judge, Ferozepur deserves to be upheld.

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Before arriving at a judicious conclusion, learned Additional District Judge recorded cogent findings in para 17 of the impugned judgment and the same read as under:-

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“ In nutshell the case of the appellants is that they have become owners of the suit property vide registered sale deed executed by Nazar Singh to whom respondent no.3 original owner of the suit property had disposed of. It is thus prayed that suit for specific performance of the agreement to sell dated 9.5.2003 could not be decreed by the trial court as the suit. property stood already sold to the appellants. In order to claim ownership over the suit property , the appellants are claiming that the: have purchased the suit property through registered sale deed dated 4.8.2009 executed by Nazar Singh and

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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it is stated that Nazar Singh had purchased the suit property from respondent no.3. Once it is the case of the appellants is that respondent no.3 had sold the suit property to Nazar Singh through registered sale deed, it was incumbent upon the appellants to prove on the file that sale deed through which Nazar Singh purchased the suit property from respondent no.3. A perusal of the file shows that no such sale deed had been brought on file by the appellants to prove that in fact respondent no.3 had already sold the suit property to Nazar Singh. Once it is not proved on file that Nazar Singh became owner of the suit property or that suit property was sold by respondent no.3 to Nazar Singh prior to the agreement to sell dated 9.5.2003 regarding which specific performance had been ordered, the plea of the appellants that they have purchased the suit property front Nazar Sinth cannot be accepted. In other words the appellants have failed to prove on file that Nazar Singh through whom they are said to have purchased the suit property himself ever became owner of the suit property. Once it is not established on file that any such sale deed was executed by respondent^. no.3 that too prior to the execution of the agreement to sell in question in favour of respondents No.1 and 2, it cannot be held

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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that the specific performance of the said agreement to sell could not have been ordered by the trial court. Thus tile only plea taken by the appellants that they have become owners of the suit property on the basis of the sale deed executed by Nazar Singh in their favour is not proved to be correct as the appellants have failed to prove on file as to when Nazar Singh became owner of the suit property. Rather it is not at all established that Nazar Singh ever himself purchased the suit property from respondent no.3, so the question of admitting the , sale deed put forward by the appellants does not arise. On the other hand, before the trial court the suit for specific performance of the agreement dated 9.5.2003 was filed by respondents No.1 and 2 against respondent no.3. The evidence led before the trial court also witness of the said agreement and the plaintiffs themselves proved to file the execution of the said agreement to sell. So much so PW3 Mohinder Singh document writer who had scribed the agreement dated 9.5.2003 has also been examined to prove on file the execution of the agreement Thus the approach of the trial court was fully justified in decreeing the suit for specific performance of the said agreement to sell against

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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respondent No.3. Hence the trial court has rightly returned its findings on all the issues. No interference is warranted in the well reasoned judgment and decree of the trial court. Therefore, the findings of the learned trial court on all the issues are affirmed."

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A bare reading of the abovesaid observations made by the learned Additional District Judge would show that the appellants had no case either on facts or in law. In the circumstances of the case, it cannot be said that either the learned trial court or the learned lower appellate court committed any error of law, while passing their respective impugned judgments and decrees. Plaintiffs were righlty found entitled for the relief of specific performance. In fact, plaintiffsrespondents have duly proved the due execution of agreement to sell by producing sufficient, cogent and convincing evidence. Attesting witness-Mukhtiar Singh was produced as PW2 and Mohinder Singh PW3 was document writer, who scribed the agreement to sell dated 9.5.2003. Both these witnesss successfully stood the test of crossexamination. Relying upon the documentary as well as oral evidence led by both the parties, learned courts below have rightly decreed the suit. Thus, impugned judgments and decrees deserve to be upheld.

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During the course of hearing, learned counsel for the appellants failed to point out any patent illegality or perversity apparent on the record of the case, in either of the impugned judgments passed by the learned courts below. He also failed to put Kumar Amitinto service any substantiate argument, so as to convince this Court 2014.05.09 14:10 I attest to the accuracy and integrity of this document

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RSA No. 4892 of 2011(O&M)

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to take a different view than the one taken by both the learned courts below. 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 at the hands of this Court, in exercise of its jurisdiction under Section 100 CPC. In this view of the matter, it is unhesitatingly held that both the learned courts below committed no error of law, while passing their respective judgments and the same deserve to be upheld.

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No other argument was raised.

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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.

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Resultantly, the instant second appeal stands dismissed,

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however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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25.2.2014 AK Sharma

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Kumar Amit 2014.05.09 14:10 I attest to the accuracy and integrity of this document

Gurpreet Singh and Anr. v. Pargat Singh and Ors.

Case brief

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Gurpreet Singh and Anr. v. Pargat Singh and Ors.

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