Punjab-Haryana High Court
Gurmeet Singh vs Joginder Kaur And Others on 31 January, 2012
Author: K.C. Puri
Bench: K.C. Puri
RSA No.2147 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.2147 of 2011 (O&M)
Date of decision 31.01.2012.
Gurmeet Singh
...... Appellant.
versus
Joginder Kaur and others
...... Respondents.
CORAM:- HON'BLE MR. JUSTICE K.C. PURI
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? Present :- Mr. Ramesh Sharma, Advocate for the appellant. K.C.PURI. J.
This is an appeal directed by plaintiff/appellant against the judgment and decree dated 15.12.2010 passed by Mrs. Sunita Kumar Sharma, Additional District Judge, Kapurthala vide which the appeal preferred by the plaintiffs/appellant against the judgment and decree dated 30.9.1996 passed by Shri Gurnam Singh, PCS, Additional Civil Judge RSA No.2147 of 2011 2 (Senior Division), Kapurthala was dismissed.
2. Briefly stated Gurmit Singh and Garib Singh filed suit for specific performance of agreement to sell dated 22.10.1993 with the allegation that defendant No.1 is owner of half share of land alleging that defendant Nos.2 to 3 are owners of land to the extent of 1/4th share each. Defendant No.2 is the wife of defendant No.1 whereas defendant No.3 is daughter. Defendant Nos.1 and 2 themselves and on behalf of defendant No.3 entered into agreement to sell dated 21.12.1993 and received Rs.50,000/- as earnest money. The rate of land was settled as Rs.90,000/- per killa. The sale deed was to be executed on or before 21.12.1993 on payment of the balance sale consideration. The plaintiffs have always been ready and willing to perform their part of the agreement.
3. The plaintiffs appeared before the Sub Registrar on the date fixed but none appeared. Suit for specific performance of agreement dated 22.10.1993 has been filed. In the alternative suit for recovery of Rs.50,000/- has also been filed.
4. On put to notice, defendants filed written statement with the averment that defendant No.3 has no concern with the agreement. Defendant Nos. 1 and 2 were never authorized to enter into agreement on her behalf. The alleged agreement is illegal, invalid and even if execution of the same was not proved and the execution thereof is emphatically denied. It is pleaded that market value of the land was Rs.3,00,000/- per acre at the time of alleged agreement. The suit is barred by the provisions of Order 2 Rule 2 CPC. Defendant No.1 is running a brick kiln in the village Bariar Sub Tehsil Bholath District Kapurthala. The land in dispute RSA No.2147 of 2011 3 was purchased by him for digging out earth for the use of the same for making bricks and tiles etc. The defendant No.1 was in need of Rs.50,000/- in connection with business affairs and he approached plaintiff Nos.1 and 2, who told that he would get the signatures of defendant No.1 on some papers and that paper has been used for forging the agreement.
5. Replication was filed in which the pleadings of the plaint were reiterated and denying that of the written statement.
6. From the pleadings of the parties the following issues were framed as under:-
1. Whether the defendants entered into an agreement of sale of suit land on 29.10.1993 with plaintiff and received Rs.50,000/- as earnest money, if so, its effect ?
OPP.
2. Whether the plaintiff remained ready and willing to perform his part of the agreement ?OPP
3. Whether there had been transaction of any kind between the parties, if so, its effect ?OPD
4. Whether the agreement is bad, harsh and unconsciousable bargain. If so its effect ?OPD
5. Whether the suit is bad for misjoinder of necessary parties ?OPD
6. Whether the suit is barred by provisions of Order 2 Rule 2 CPC and is liable to be dismissed ?OPD
7. Whether the suit is not maintainable against defendant No.3.?OPD
8. Whether plaintiff is entitled for a decree of possession by way of Specific Performance of agreement to sell on the basis of agreement dated 22.10.1993 of the suit land ? OPP
9. Relief RSA No.2147 of 2011 4
7. In order to prove his case the plaintiffs have examined Anil Kumar PW-1, Hira Singh PW-2, Ravel Singh PW-3, Gurmit Singh plaintiff as PW-4 and Jaspal PW-5. On the other hand, defendants examined Harcharan Singh DW-1, Puran Singh DW-2, and closed their evidence. However, plaintiffs further examined Amarjit Singh as PW-6 and Sewa Singh as PW-7 in rebuttal evidence.
7. Issue Nos.1 and 8 were taken up together and the findings on those issues were returned in favour of the defendants and against the plaintiffs. Issue Nos, 3 to 7 were decided against the defendants. However, in view of findings on issue Nos.1 and 8, the suit of the plaintiff for specific performance was dismissed for specific performance of contract. However, suit for recovery of Rs.50,000/- with proportionate costs was decreed. The plaintiffs were also held entitled to claim interest @ 12% per annum from 22.10.1993 till the date of decree and future interest @ 6% per annum vide judgment and decree dated 30.9.1996 passed by Shri Gurnam Singh, PCS, Additional Civil Judge (Senior Division), Kapurthala.
8. Feeling dissatisfied with the judgment and decree dated . 30.9.1996, the plaintiffs preferred the first appeal. The said appeal was heard by Mrs. Ramesh Kumari Sharma, Additional District Judge, Kapurthala, who vide his judgment and decree dated 15.12.2010 dismissed the appeal.
9. Still feeling dissatisfied with the aforesaid judgments and decrees, the plaintiffs have preferred the present regular second appeal.
10. The appellant in para No.11 of the grounds of appeal has submitted that following substantial question of law have arisen :- RSA No.2147 of 2011 5
i) Whether the Ld. Courts below have acted without applying its judicious mind while giving finding that it was a loan transaction between the parties, whereas the appellant has led enough evidence and proved on record and execution of the agreement to sell in favour of the appellant/plaintiffs by the defendants and in that event the Ld. Courts below should have ordered for the specific performance ?
ii) Whether the findings given by the Ld. Courts below are erroneous findings regarding the loan transaction ?
Iii) Whether the ld. Courts have completely misread the evidence ?
11. Learned counsel for the appellant has submitted that agreement in question is duly proved by examining scribe and marginal witnesses. Both the Courts below have given a perverse finding that agreement was for loan transaction. The evidence on the record in this regard has been misread by both the Courts below. In a contract for immoveable property, the specific relief is the only adequate relief. Both the Courts below have ignored the basic principles of law. So, prayer has been made for acceptance of the appeal.
12. I have carefully considered the said submission and have gone through the case file.
13. There is concurrent finding of fact recorded by both the Courts below that no agreement was executed by defendant Nos.1 and 2 in favour of the plaintiffs and only Rs.50,000/- were advanced by the plaintiffs to defendant No.1. The plaintiffs have taken the signatures of defendant Nos.1 and 2 on blank papers and have used the same for procuring the agreement. That being a finding of fact recorded by both the Courts below cannot be allowed to be interferred more so when there is nothing contrary to that RSA No.2147 of 2011 6 finding on the record. There is nothing on the file that the said findings are the result of misreading and misinterpreting the evidence. Scribe, writer of the document has not been produced. The spacing of signatures of defendant Nos.1 and 2 clearly shows that blank papers have been used for procuring the document. Admittedly, defendant No.3 is not a signatory to the agreement and as such no decree against defendant No.3 can be passed more so when defendant Nos.1 and 2 are not the holder of power of attorney on behalf of defendant No.3. The trial Court has appreciated whole of the evidence on the file. The First Appellate Court has re-appreciated the evidence and reached to the conclusion that plaintiffs have failed to prove the execution of the agreement but has simply advanced the amount of Rs.50,000/- for business by the defendants.
14. Another circumstance, which militates against the case of the appellant is that it would be unfair to pass a decree for specific performance after lapse of more than 18 years at meager price of Rs.90,000/- per acre more so when the prices are increasing at alarming rates. So, both the Courts below have rightly concluded that the present suit for relief of specific performance is not maintainable. That being a finding of fact cannot be interferred in the regular second appeal. No doubt, normally relief in contract of sale of immoveable property is the relief of specific performance but where the agreement is not proved and it is held to be merely a loan transaction, in that case both the Courts below have rightly declined the relief of specific performance.
15. So, I have no hesitation in holding that no substantial questions of law framed above stand answered against the appellant. RSA No.2147 of 2011 7
16. Consequently, the appeal is without any merit and the same stands dismissed.
17. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI )
JUDGE
January 31 , 2012
sv