Jagir Singh Vs Kundan Singh

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

I. RSA-2759-1983 Kundan Singh (through his LRs) . . . . Appellant Vs. Ajit Singh & Others (through LRs) . . . . Respondents II. RSA-1520-1983 Jagir Singh & Others (through LRs) . . . . Appellants

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Vs.

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Kundan Singh (through his LRs) and anr. . . . . Respondents

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********

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Reserved on: 01.04.2026 Pronounced on: 07.04.2026 Pronounced fully/opera<ve part: Fully

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CORAM: HON’BLE MR JUSTICE DEEPAK GUPTA

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Argued by:- Mr. Amit Arora, Advocate for the

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appellant(s) in RSA-2759-1983 and for respondent(s) in RSA-1520-1983.

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Mr. Kewal Singh, Advocate for the appellant(s) in RSA-1520-1983 and for respondent(s) in RSA-2759-1983.

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****

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DEEPAK GUPTA, J.

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Introduc�on : The present judgment shall dispose of two Regular Second Appeals, namely RSA No.1520 of 1983, and RSA No.2759 of 1983, as both arise out of the same set of proceedings between the same par.es and pertain to the same suit property.

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The facts, which emerge on perusal of the en.re record, are as under:

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Nature of Property : The dispute relates to land measuring 7 Kanal 19 Marla situated in Village Gajipur, Tehsil Tarn Taran, District Amritsar as detailed in the plaint. The said property was admi2edly owned by Gurnam Singh, who had earlier mortgaged the land with possession in favour of Kundan Singh by way of a registered mortgage deed dated 20.05.1971 for a sum of ₹5,000/-.

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Transac�ons by the Owner : Subsequently, Gurnam Singh entered into an agreement to sell dated 03.10.1978 (Ex.D1) in favour of Ajaib Singh, Ajit Singh and Jagir Singh sons of Ujagar Singh, agreeing to sell the suit land for a total considera.on of ₹12,000/-. The target date for execu.on of the sale deed was fixed as 15.06.1979. In furtherance of this agreement, a registered sale deed (Ex.D2) came to be executed by Gurnam Singh in favour of the said vendees on 13.02.1979.

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However, a?er execu.ng the agreement dated 03.10.1978, but prior to the execu.on of the sale deed dated 13.02.1979, Gurnam Singh also executed another agreement to sell dated 04.10.1978 (Ex.P1) in favour of Kundan Singh in respect of the same suit property. The sale considera.on under this subsequent agreement was fixed at ₹12,500/-, out of which ₹2,000/- was paid as earnest money, and the date fixed for execu.on of the sale deed was 21.02.1979.

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Plain�ff Kundan’s Case (Civil Suit No.39 of 1979) : On the basis of the agreement dated 04.10.1978, Kundan Singh ins.tuted Civil Suit No.39 of 1979 on 27.03.1979 seeking a decree for specific performance of the said agreement. In the alterna.ve, he claimed recovery of ₹4,000/-, being double the earnest money. Gurnam Singh was impleaded as defendant No.1, while the subsequent vendees, namely Ajaib Singh, Ajit Singh and Jagir Singh, were impleaded as defendant Nos.2 to 4.

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It is per.nent to observe that although the subsequent purchasers were arrayed as defendants, no specific relief was sought for seDng aside or

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declaring void the sale deed dated 13.02.1979 based on agreement to sell dated 03.10.1978, executed in their favour.

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Contes�ng Defendant’s Stand : During the course of proceedings, defendant No.1 Gurnam Singh and defendant No.4 Jagir Singh failed to contest the suit and were proceeded against ex parte. Defendant Nos.2 and 3, namely Ajaib Singh and Ajit Singh, contested the suit by asser.ng that they were bona fide purchasers for valuable considera.on without no.ce of the agreement dated 04.10.1978 in favour of Kundan Singh. They further relied upon the prior agreement to sell dated 03.10.1978 executed in their favour.

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Findings of Trial Court : Upon comple.on of pleadings, the trial Court framed the necessary issues and recorded evidence led by the par.es. A?er apprecia.ng the en.re material on record, the trial Court, vide a detailed judgment & decree dated 31.07.1980, declined the relief of specific performance sought by Kundan Singh. However, the suit was partly decreed by gran.ng the alterna.ve relief of recovery of ₹4,000/-, being double the earnest money paid under the agreement.

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Case of Plain�ffs Ajaib Singh, Ajit Singh and Jagir Singh (Civil Suit No.84 of 1980) & Finding : On the other hand, defendant Nos.2 to 4 of civil suit No. 39 of 1979, namely Ajaib Singh, Ajit Singh and Jagir Singh, ins.tuted Civil Suit No.84 of 1980 against Kundan Singh, who was the plain.ff in the earlier suit, seeking redemp.on of the suit land. The said suit was contested by Kundan Singh. Upon apprecia.on of the evidence adduced by the par.es, the trial Court decreed the suit for redemp.on vide judgment & decree dated 05.09.1981, direc.ng redemp.on on payment of ₹5,000/-.

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Findings of appellate Courts in two appeals : Aggrieved by the two judgments passed by the trial Court in the aforesaid suits, Kundan Singh preferred two separate appeals. One appeal, arising out of Civil Suit No.39 of 1979, was registered as Civil Appeal No.469 of 1980, while the other, arising out of Civil Suit No.84 of 1980, was registered as Civil Appeal No.176 of 1981.

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The first appellate court of learned District Judge, Amritsar, vide judgment dated 13.05.1983, allowed Civil Appeal No.469 of 1980. The findings of the trial Court were reversed, and a decree for specific performance of the agreement to sell dated 04.10.1978 was granted in favour of Kundan Singh.

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However, in the connected ma2er, the first appellate court of learned Addi.onal District Judge, Amritsar, vide judgment dated 03.12.1983, dismissed Civil Appeal No.176 of 1981 preferred by Kundan Singh, thereby affirming the judgment & decree of the trial Court dated 05.09.1981, whereby the suit for redemp.on filed by Ajaib Singh, Ajit Singh and Jagir Singh had been decreed.

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RSA No.1520 of 1983 & RSA No.2759 of 1983 – Earlier findings of this Court : These conflic.ng outcomes led to the filing of the present two Regular Second Appeals before this Court. RSA No.1520 of 1983 was preferred by Ajaib Singh, Ajit Singh and Jagir Singh, assailing the judgment dated 13.05.1983 passed by the learned District Judge, Amritsar in Civil Appeal No.469 of 1980, whereby specific performance had been granted in favour of Kundan Singh. Conversely, RSA No.2759 of 1983 was filed by Kundan Singh challenging the judgment dated 03.12.1983 passed by the learned Addi.onal District Judge, Amritsar in Civil Appeal No.176 of 1981, whereby his appeal had been dismissed and the decree for redemp.on had been upheld.

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A Co-ordinate Bench of this Court, vide common judgment dated 03.12.2003, allowed RSA No.1520 of 1983. The judgment & decree dated 13.05.1983 passed by the learned District Judge, Amritsar were set aside, and the judgment of the trial Court dated 31.07.1980, whereby only the alterna.ve relief of recovery had been granted to Kundan Singh, was restored. As a necessary corollary to the said decision, RSA No.2759 of 1983 filed by Kundan Singh was also dismissed.

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Remand by Hon’ble Supreme Court : Aggrieved against the aforesaid judgment of the High Court, Kundan Singh approached the Supreme Court

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of India by filing Special Leave Pe..ons, being SLP (Civil) No.15943 of 2004 and SLP (Civil) No.10334 of 2004.

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The Hon’ble Supreme Court of India, in Civil Appeal No.6963 of 2013 arising out of SLP (Civil) No.15943 of 2004 filed by Kundan Singh, vide judgment dated 19.08.2013, set aside the earlier judgment dated 3.12.2003 of this Court and remanded the ma2er for fresh adjudica.on. The remand was necessitated on the ground that the High Court had failed to frame and consider the substan.al ques.on(s) of law, as mandated for adjudica.on of a second appeal.

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In a connected ma2er, Civil Appeal No.6962 of 2013 arising out of SLP (Civil) No.10334 of 2004, also filed by Kundan Singh, was similarly allowed on the same date i.e. 19.08.2013. The judgment of the High Court in the said ma2er was likewise set aside, and the case was remi2ed for fresh decision in accordance with law.

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Subsequently, at one stage, both the appeals came to be dismissed in default by this Court vide order dated 07.10.2013. Applica.ons seeking restora.on of the appeals were also dismissed vide order dated 28.02.2014. Aggrieved thereby, the ma2er was again carried to the Supreme Court of India, which set aside the orders of dismissal in default as well as the orders declining restora.on, and remanded the appeals once again for adjudica.on on merits.

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In this backdrop, the present Regular Second Appeals are now before this Court for final disposal in terms of the direc.ons issued by the Supreme Court of India vide judgment dated 19.08.2013.

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Submissions of appellants of RSA No. 1520-1983 (Respondents of RSA No. 2759-1983) : The submissions advanced on behalf of the appellants– defendants Nos.2 to 4, namely Ajaib Singh, Ajit Singh and Jagir Singh, in RSA No.1520 of 1983, can be summarised as under:

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(i) At the outset, learned counsel for the appellants has contended that the very premise of remand by the Hon’ble Supreme Court of India, namely non-framing of substan.al ques.on of law, would not strictly arise in the present case. Placing reliance upon the Cons.tu.on Bench judgment in Pankajakshi (dead) through LRs and others vs. Chandrika and others, (2016) 6 SCC 157 , it is argued that in appeals arising under Sec.on 41 of the Punjab Courts Act, 1918, the requirement of framing substan.al ques.on of law, as envisaged under Sec.on 100 CPC, is not a2racted. On this premise, it is submi2ed that the earlier judgment of this Court deserves to be upheld.

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(ii) On merits, learned counsel submits that the agreement to sell dated 03.10.1978 (Ex.D1) executed in favour of the appellants was prior in point of .me, whereas the agreement relied upon by the plain.ff Kundan Singh dated 04.10.1978 (Ex.P1) is subsequent. It is argued that the learned first Appellate Court has failed to appreciate this crucial aspect. Even assuming, arguendo, that the appellants had no.ce of the subsequent agreement dated 04.10.1978, the Appellate Court has not returned any finding that the earlier agreement dated 03.10.1978 in favour of the appellants was forged or fabricated. In the absence of such a finding, the Appellate Court could not have invalidated the rights flowing from the said agreement and the consequent sale deed.

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(iii) It is further contended that the appellants not only held a prior agreement to sell dated 03.10.1978, but also got a registered sale deed executed in their favour on 13.02.1979 a?er payment of the en.re sale considera.on of ₹12,000/-. Being transferees for a value considera.on, they are en.tled to protec.on under Sec.on 41 of the Transfer of Property Act, 1882. In support of this submission, reliance has been placed upon Zorawar Singh vs. Sarban Singh (dead) through Lrs, 2002 AIR (SC) 1711 , to contend that an agreement prior in .me prevails over a subsequent agreement.

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(iv) Another limb of argument is that both par.es belong to the same village, and therefore, it cannot be believed that the plain.ff Kundan Singh had

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no knowledge of the earlier agreement dated 03.10.1978 in favour of the appellants. The plea of absence of no.ce is thus sought to be discredited.

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(v) Learned counsel has further argued that the plain.ff failed to seek any declara.on to the effect that the sale deed dated 13.02.1979 executed in favour of the appellants is null, void, or not binding upon him. In the absence of such a relief, the suit for specific performance was not maintainable. Reliance has been placed upon the judgment of the Hon’ble Supreme Court in Hussain Ahmed Choudhury and ors. vs. Habibur Rahman (Dead) through Lrs and ors., 2025 (3) RCR (Civil) 1, to contend that where a plain.ff is not a party to a document, he must seek an appropriate declara.on regarding its invalidity or nonbinding nature. Similar reliance has been placed upon Gurcharan Singh vs. Bhojraj, 2023 (3) RCR (Civil) 432.

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(vi) It is also contended that the finding of the first Appellate Court that the sale deed dated 13.02.1979 was executed in haste is factually incorrect. The sale deed was executed more than four months a?er the agreement dated 03.10.1978 and was duly registered in accordance with law, thereby ruling out any element of undue haste or suspicious circumstance.

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(vii) Lastly, learned counsel has argued that the agreement dated 04.10.1978 set up by the plain.ff is a result of collusion between the plain.ff Kundan Singh and defendant No.1 Gurnam Singh. It is pointed out that Gurnam Singh chose not to contest the suit, which lends credence to the allega.on that the subsequent agreement was fabricated to defeat the rights of the appellants flowing from the earlier agreement and the registered sale deed. The agreement dated 04.10.1978 is thus alleged to be forged and a result of an a?erthought.

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(viii) On the strength of the aforesaid submissions, it is prayed that the judgment and decree dated 13.05.1983 passed by the learned District Judge, Amritsar, be set aside and that of the trial Court be restored, whereby the suit

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of Kundan Singh was declined for specific performance and only the alterna.ve relief of recovery was granted.

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(ix) It is further contended that once the relief of specific performance is declined to Kundan Singh, he cannot claim any subsis.ng right to con.nue as a mortgagee in possession of the suit land. Consequently, RSA No.2759 of 1983, arising out of the suit for redemp.on filed by the appellants, deserves to be dismissed, as the decree for redemp.on granted in their favour has rightly been upheld by the first Appellate Court.

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Submissions of appellant of RSA No. 2759-1983 (Respondent of RSA No. 1520-1983) : Per contra , learned counsel appearing on behalf of Kundan Singh, who is respondent in RSA No.1520 of 1983 and appellant in RSA No.2759 of 1983, has refuted the aforesaid submissions with following arguments :

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(i) It is contended that the learned first Appellate Court, i.e. the District Judge, Amritsar, has me.culously re-appreciated the en.re oral as well as documentary evidence on record and has rightly decreed the suit for specific performance vide judgment dated 13.05.1983. It is argued that the findings so recorded are based on proper apprecia.on of evidence and se2led principles of law, and thus do not warrant any interference in the present regular second appeals.

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(ii) Learned counsel further submits that the appellants, namely Jagir Singh and others, had due knowledge of the agreement to sell dated 04.10.1978 executed in favour of Kundan Singh. Despite such knowledge, they proceeded to obtain the sale deed dated 13.02.1979 in their favour. In these circumstances, it is argued that the learned first Appellate Court has rightly held that the sale deed was executed in haste with a view to defeat the prior rights created in favour of Kundan Singh under the agreement dated 04.10.1978.

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(iii) On the strength of these submissions, it is prayed that RSA No.2759 of 1983 filed by Kundan Singh deserves to be allowed, whereas RSA No.1520 of 1983 preferred by Ajaib Singh and others is liable to be dismissed.

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Substan�al Ques�ons of Law : Even though, in view of the law laid down in Pankajakshi (dead) through LRs vs. Chandrika (supra), the framing of substan.al ques.on(s) of law may not be strictly mandatory in an appeal arising under Sec.on 41 of the Punjab Courts Act, yet, in deference to the remand direc.ons issued by the Supreme Court of India vide judgment dated 19.08.2013, and to ensure compliance with the mandate of law, the following substan.al ques.ons of law are framed for considera.on in the present appeals:

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(i) Whether the learned first Appellate Court erred in law in gran.ng a decree for specific performance in favour of the plain.ff Kundan on the basis of a subsequent agreement to sell dated 04.10.1978, ignoring the prior agreement to sell dated 03.10.1978 and the registered sale deed dated 13.02.1979 executed in favour of the appellants?

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(ii) Whether the findings of the first Appellate Court are vi.ated by perversity inasmuch as material evidence regarding the prior agreement and absence of proof of no.ce to the appellants has been ignored or misread?

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(iii) Whether a decree for specific performance can be granted against subsequent transferees who claim under a prior agreement to sell and a registered sale deed, in absence of proof that such transferees had no.ce of the subsequent agreement, in terms of Sec.on 19(b) of the Specific Relief Act, 1963?

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(iv) Whether a suit for specific performance is maintainable without seeking a consequen.al relief of declara.on to the effect that a prior registered sale deed in favour of third par.es is not binding upon the plain.ff?

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(v) Whether the plain.ff has complied with the mandatory requirement of proving readiness and willingness to perform his part of the contract under Sec.on 16(c) of the Specific Relief Act, 1963?

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(vi) Whether the first Appellate Court has erred in law in drawing presump.ons of no.ce merely on the basis that the par.es belong to the same village, in absence of any cogent evidence?

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(vii) Whether the discre.onary relief of specific performance could have been granted in the facts and circumstances of the case, par.cularly when the conduct of the plain.ff and surrounding circumstances cast doubt on the bona fides of the transac.on?

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(viii) Whether, upon denial of specific performance, the plain.ff retains any right to con.nue as mortgagee in possession as against the true owners who have acquired .tle through a registered sale deed?

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Considera�on by this Court : This Court has given thoughNul considera.on to the submissions advanced by learned counsel for both the par.es and has carefully and thoroughly examined the en.re evidence available on record.

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Upon a comprehensive considera.on of the rival submissions and a careful re-appraisal of the en.re evidence on record, this Court finds at the outset that it is an admi2ed and duly established posi.on that the agreement to sell dated 03.10.1978 (Ex.D1) executed in favour of the appellants–defendant Nos.2 to 4 is prior in point of .me to the agreement to sell dated 04.10.1978 (Ex.P1) relied upon by the plain.ff Kundan Singh. Both the agreements stand duly proved on record through cogent evidence. The earlier agreement (Ex.D1) has been proved by DW-1 Chaman Lal Sood (scribe) and DW-3 Manmohan Singh (a2es.ng witness), whereas the subsequent agreement (Ex.P1) has been proved by PW-4 Jagjit Singh (scribe) and PW-1 Jagir Singh (a2es.ng witness).

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It is further not in dispute that, in pursuance of the earlier agreement dated 03.10.1978, a registered sale deed dated 13.02.1979 (Ex.D2) was executed by Gurnam Singh in favour of the appellants - defendant Nos.2 to 4 a?er receipt of the en.re sale considera.on. The execu.on and validity of the said sale deed stands duly established.

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In this backdrop, the se2led legal principle that an agreement prior in .me prevails over a subsequent agreement, unless vi.ated by fraud or illegality, assumes significance. No finding has been recorded by the first Appellate Court that the earlier agreement dated 03.10.1978 is either forged or fabricated. In absence thereof, the rights flowing from the said agreement and the consequent registered sale deed could not have been nullified. The law in this regard has been authorita.vely laid down in Zorawar Singh vs. Sarban Singh (supra).

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28 The conten.on of the plain.ff Kundan that the sale deed dated 13.02.1979 was executed in disregard of his rights under the agreement dated 04.10.1978 is found to be misconceived. Once the appellants were armed with a prior agreement, they were legally en.tled to seek its enforcement. There is no reliable evidence on record to establish that the appellants had no.ce, actual or construc.ve, of the subsequent agreement. The reasoning adopted by the first Appellate Court, impu.ng knowledge merely on the ground that the par.es belonged to the same village, is specula.ve and legally untenable. Such presump.on cannot subs.tute proof. Significantly, the same reasoning would equally apply to the plain.ff, who must also be presumed to have knowledge of the earlier agreement.

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Further, under Sec.on 19(b) of the Specific Relief Act, 1963, specific performance can be enforced against a subsequent transferee, only if such transferee is not a bona fide purchaser for value without no.ce. In the present case, once it is established that the appellants had a prior agreement and have obtained a registered sale deed upon payment of valuable considera.on, and

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there is no cogent evidence of no.ce, they are en.tled to protec.on as bona fide purchasers. Consequently, the decree for specific performance could not have been granted against them.

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Another significant infirmity in the plain.ff’s case is the failure to seek an appropriate declaratory relief. Despite being aware of the execu.on of the sale deed dated 13.02.1979, the plain.ff did not seek a declara.on that the said sale deed is null, void, or not binding upon his rights. Though he was not required to seek cancella.on as a non-executant, it was incumbent upon him to seek a declara.on of its non-binding nature. In the absence of such relief, the decree for specific performance becomes legally unsustainable and prac.cally unenforceable. It is a se2led principle that Courts do not grant fu.le or infructuous decrees.

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Equally unsustainable is the finding of the first Appellate Court that the sale deed was executed in haste. The record reveals that the sale deed was executed a?er a gap of more than four months from the date of the agreement dated 03.10.1978. Execu.on of a registered sale deed a?er such dura.on, upon payment of full considera.on, cannot by any stretch be termed as hasty or suspicious.

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It is also of considerable importance that Gurnam Singh, the original owner and the central figure in the en.re chain of transac.ons, neither contested the proceedings nor entered the witness box. He alone could have explained the circumstances under which two agreements to sell came to be executed on consecu.ve days. The burden to explain such circumstances, par.cularly in a suit for specific performance, lay heavily upon the plain.ff Kundan. The failure of the plain.ff to examine this most material witness warrants drawing of an adverse inference under Sec.on 114 illustra.on (g) of the Indian Evidence Act, 1872.

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From an equitable standpoint as well, the plain.ff is not en.tled to the discre.onary relief of specific performance under the Specific Relief Act,

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The relief being equitable in nature, the conduct of the plain.ff assumes significance. The surrounding circumstances, including the execu.on of a subsequent agreement immediately a?er a prior agreement, non-examina.on of the vendor, and failure to seek proper relief, cumula.vely cast serious doubt on the bona fides of the plain.ff. The plain.ff, thus, cannot be said to have approached the Court with clean hands.

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Viewed cumula.vely, the circumstances indicate that the subsequent agreement dated 04.10.1978 set up by the plain.ff is shrouded in doubt and appears to have been brought into existence in collusion with Gurnam Singh, with a view to defeat the rights already created in favour of the appellants under the earlier agreement.

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The first Appellate Court, while reversing the well-reasoned judgment of the trial Court, has ignored material evidence, applied incorrect legal principles, and recorded findings based on conjectures. Such findings are clearly perverse and legally unsustainable, warran.ng interference even within the limited scope of second appeal.

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Conclusion : In view of above discussion, all substan.al ques.ons of law are decided against Kundan. Accordingly, the judgment & decree dated 13.05.1983 passed by the learned District Judge, Amritsar, cannot be sustained and are hereby set aside. The judgment & decree of the trial Court dated 31.07.1980, whereby the relief of specific performance was declined to Kundan and only the alterna.ve relief was granted, are restored. Consequently, RSA No. 1520 of 1983 is allowed and suit of Kundan seeking relief of specific performance of agreement dated 4.10.1978 is dismissed.

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In so far as RSA No.2759 of 1983 is concerned, once the appellants–defendant Nos.2 to 4 are held to have validly acquired ownership of the suit property by virtue of the sale deed dated 13.02.1979, they step into the shoes of the mortgagor and are fully en.tled to seek redemp.on of the mortgage. Kundan in absence of a decree for specific performance, cannot claim any

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superior right and con.nues only as a mortgagee in possession. The decree for redemp.on granted by the Courts below, therefore, calls for no interference and is upheld. RSA No.2759 of 1983 is, accordingly, dismissed.

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(DEEPAK GUPTA)
JUDGE
07.04.2026
Nee�ka Tuteja
Whether speaking/reasoned? Yes
Whether reportable? Yes

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Jagir Singh v. Kundan Singh

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Jagir Singh v. Kundan Singh

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