Dismissed

Surjit Singh v. Lrs.of Jagtar Singh and Anr.

Rajasthan HC7 May 2014CSA/808/2011

Case brief

AI extract

What is this about?

In a second appeal against a decree for specific performance of a land sale agreement, the High Court dismissed the appeal. It held that no substantial question of law arose, as the lower courts correctly found the agreement valid, the plaintiff was ready and willing, and the suit was within limitation. The absence of a witness's signature did not invalidate the agreement.

What did the court decide?

The second appeal was dismissed with no costs.

Surjit Singh Vs Lrs.of Jagtar Singh and Anr. — Specific Performance | Rajasthan HC (2014)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

: J U D G M E N T :

¶4

S.B. CIVIL SECOND APPEAL NO.808/2011

¶5

Surjit Singh

¶6

vs. Jagtar Singh & Ors.

Date of Judgment

07^th May, 2014

PRESENT

HON'BLE MR. JUSTICE ARUN BHANSALI

¶12

Mr. Abhinav Jain, for the appellant. Mr. Rajesh Parihar, for the respondents.

¶13

BY THE COURT:

¶14

This second appeal under Section 100 CPC is directed against judgment and decree dated 21.09.2011 passed by Additional District Judge No.1, Sri Ganganagar, whereby, the appeal filed by the appellant against judgment and decree dated 09.12.2004 passed by Civil Judge (Senior Division), Sri Ganganagar has been dismissed.

¶15

The facts in brief may be noticed thus : the respondentsplaintiffs filed a suit for specific performance of contract dated 03.08.1993 against the respondents, inter alia, with the averments that the plaintiff and defendant No.1 - Jagtar Singh were father and son and land owned by him ad measuring 2 Bigha was situated at Chak 1 C Badi, District Sri Ganganagar, for sale of which, an agreement was entered into between them for a sum of Rs.36,000/-; the consideration was paid on the same day; possession of the land was handed over and it was agreed that as and when the loan, which was obtained on the land

¶16

¶17

would be repaid, a notice in this regard, would be given to the plaintiff and whereafter the sale deed would be executed; it was claimed that despite the same no notice was received and, therefore, the plaintiff got issued a notice on 12.12.1996, to which, a false reply was given denying the existence of the agreement and, therefore, the suit was filed seeking specific performance. During pendency of the suit, defendant No.1 Jagtar Sing died and his legal representatives were taken on record; however, during pendency of the suit, the land was transferred by Jagtar Singh in favour of his another son Surjeet Singh, who was impleaded as defendant No.2 and a relief for setting aside of the sale was sought.

¶18

A written statement was filed by Jagtar Singh denying the existence of the agreement to sale and it was claimed that the thumb impressions were got executed by misrepresentation, objections about registration etc. were also raised; after death of Jagtar Singh, written statement was filed by few of the legal representatives admitting the claim of the plaintiff; respondent No.2 filed his written statement and denied the averments made in the plaint.

¶19

The trial court framed eight issues; on behalf of the plaintiff four witnesses were examined and on behalf of the defendants, defendant No.2 Surjeet Singh was examined.

¶20

After hearing the parties, the trial court came to the conclusion that the agreement was admissible in evidence; the agreement was executed by Jagtar Singh in plaintiff's favour; the possession was handed over; the plaintiff was ready and willing to perform his part of the contract; he was entitled for a decree

¶21

¶22

for specific performance; suit was within limitation; the suit was filed on sufficient court fees; the sale executed in favour of defendant No.2 was liable to be declared null and void and was liable to be cancelled; ultimately, the suit filed by the plaintiff for specific performance was decreed and the sale in favour of defendant No.2 was declared null and void.

¶23

Feeling aggrieved, the appellant filed first appeal.

¶24

The first appellate court after hearing the parties upheld the findings recorded by the courts below and dismissed the appeal. An application filed under Order XLI, Rule 27 CPC by the appellant was also rejected by the appellate court.

¶25

It was submitted by learned counsel for the appellant that both the courts below were not justified in decreeing the suit filed by the plaintiff; it was submitted that the plea regarding readiness and willingness to perform the plaintiff's part of the contract and the limitation has apparently been wrongly decided by the courts below; it was submitted that the plea raised by the plaintiff that as the information about repayment of the loan was not indicated by the defendant Jagtar Singh, on his reply to the notice given by the plaintiff, the cause of action arose is wholly baseless, inasmuch as, in fact no loan was outstanding against the said land and, therefore, the entire plea raised is baseless.

¶26

Further arguments were sought to be raised regarding the language used in the notice; the plaint and the findings recorded by the trial court regarding contents of the notice and its interpretation, it was submitted that while knowledge regarding pendency of the suit has been attributed to the appellant on account of his relationship with the defendant No.1 Jagtar Singh,

¶27

¶28

though the appellant also stands in the same relationship, the information about repayment of loan has not been attributed to the plaintiff, which amounts to applying double standards qua the plaintiff and the defendant. Another plea was raised regarding non-production of one Pahalwan Singh, whose name was indicated as witness to the agreement to sale, however, he has not signed the said agreement to sale as witness; it was submitted that the appeal deserves to be admitted as the same involves several issues, which requires consideration of this Court in second appeal.

¶29

Learned counsel for the respondents vehemently opposed the submissions made by counsel for the appellant; it was submitted that the issues sought to be raised are factual and does not give rise to any question of law. Both the courts below have concurrently found against the appellant and, therefore, the judgments impugned do not call for interference and the appeal deserves to be dismissed.

¶30

I have considered the rival submissions.

¶31

The plea raised by Jagtar Singh in the reply to the notice given by the plaintiff, it was indicated that there was no loan outstanding regarding the land; not only this the execution of the agreement itself was denied by Jagtar Singh; however, in the Jamabandi (Exhibit-6) produced by the plaintiff, the plea regarding the absence of any loan has been proved to be false, inasmuch as, the Jamabandi clearly indicates that the land was mortgaged with the Bank and, therefore, the plea raised by the appellant regarding the use of the language in the notice, plaint and the findings recorded by the trial court has absolutely no

¶32

¶33

basis.

¶34

So far as plea regarding applying the double standards is concerned, a look at the reply given by Jagtar Singh would indicate that when the existence of the agreement, loan etc. itself was denied by him, there is no question of the plaintiff being aware about the repayment of loan. The issue would have been different if in the reply to the notice, Jagtar Singh had indicated that the plaintiff was well aware about the repayment of loan, in that view of the matter the plea raised by the plaintiff has apparently no substance.

¶35

So far as non-examination of Pahalwan Singh is concerned, the execution of agreement to sale in presence of witnesses is not envisaged by any provision of law and, therefore, provisions of Section 68 of the Evidence Act, 1872 have no application qua agreement to sale. The fact that Pahalwan Singh's name was indicated on the agreement to sale and he did not sign the same is of no consequence whatsoever and, therefore, the fact that he was not examined cannot militate against the plaintiff.

¶36

So far as the plea sought to be raised by the appellant regarding the statement of Pahalwan Singh in some other criminal case giving out the reason as to why he did not sign the agreement to sale is concerned, admittedly after filing of the application under Order XLI, Rule 27 CPC and the statement alongwith it, the said Pahalwan Singh had died and, therefore, besides the fact that the plea raised and the statement given in some other litigation by a possible witness is not of much significance, the lower appellate court has recorded sufficient reasons for not allowing the application under Order XLI, Rule 27

¶37

¶38

CPC; both the courts after thoroughly examining the oral and documentary evidence available on record have reached to a concurrent conclusion about existence of the agreement, the readiness and willingness of the plaintiff, the fact that the suit was within limitation and the sale was executed in favour of the appellant herein was itself despite knowledge of pendency of the suit, no perversity could be pointed out by the learned counsel for the appellant.

¶39

In that view of the matter, no substantial question of law arises for consideration in this second appeal and the same is, therefore, dismissed. No costs.

¶40

(ARUN BHANSALI), J.

¶41

A.K.Chouhan/-

Surjit Singh v. Lrs.of Jagtar Singh and Anr.

Case brief

What is this about?

What did the court decide?

Surjit Singh v. Lrs.of Jagtar Singh and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Om Prakash Vs Bunty @ Arun

Panni Devi Vs State through D.C.Sri Ganganagar and Ors.

Tara Chand Vs Jai Prakash

Shri Oswal Srisangh Panchayat, Churu Vs Lrs of Balkrishan Bagla

Kanhaiya Lal Vs Gurudwara Shri Singh Sabha and Ors.

Sinjari Devi and Ors. Vs Norat Mal