Punjab-Haryana High Court
Amar Singh And Another vs Surjit Kaur And Another on 16 January, 2014
Equivalent citations: AIR 2014 PUNJAB AND HARYANA 38, (2014) 1 LANDLR 146 (2014) 2 ICC 829, (2014) 2 ICC 829
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.3446 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.3446 of 2013 (O&M)
Date of decision:16.01.2014
Amar Singh and another ....Appellants
Versus
Surjit Kaur and another ....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. Gaurav Mohunta, Advocate
for the appellants.
RAKESH KUMAR GARG, J (ORAL)
The present appeal is directed against the judgment and decree dated 14.05.2013 of the Additional District Judge, Fast Track Court (Adhoc) Jalandhar and judgment and decree dated 07.12.2011 of the trial Court, at the instance of the defendants vide which suit for specific performance of the agreement to sell dated 22.10.2008, was decreed.
Plaintiff-respondent Surjit Kaur had filed a suit for possession by way of specific performance of the agreement to sell dated 22.10.2008 in respect of the suit land as detailed in the plaint, on the averments that defendant-appellant No.1 vide agreement Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 2 dated 22.10.2008 agreed to sell the suit land in favour of the plaintiff at the rate of ` 12,85,000/- per acre. Similarly, defendant No.2 agreed for sale of possessory rights of land measuring 6 kanals belonging to Provincial Govt. in favour of plaintiff at the rate of ` 6,42,500/- per acre. Appellant No.1 also received a sum of ` 11,00,000/- as earnest money. Both the defendants executed agreement with the condition to execute and register the sale deed on or before 15.06.2009 in favour of the plaintiff on receipt of balance sale consideration. It was also agreed between the parties that defendant No.1 shall get the land redeemed from defendant No.3 (now respondent No.2). It is the further case of the plaintiff- respondent that she remained ready and willing to perform her part of agreement but the defendant-appellants failed to get the sale deed executed and registered in favour of the plaintiff. Hence the necessity arose to file the suit.
Upon issuance of summons, defendant-appellants put in appearance and contested the claim of the plaintiff-respondent by filing a joint written statement. Apart from raising various preliminary objections, defendant-appellants admitted that they executed the agreement on 22.10.2008 in favour of the plaintiff/respondent but according to them the sale deed could not be executed as the plaintiff did not turn up to get the sale deed executed and registered as per the terms and conditions of the agreement and hence the earnest money paid by the plaintiff stood forfeited. Further, Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 3 defendant-appellant No.1 suffered a huge financial loss because he was to purchase land measuring 33 kanals 11 marlas in village Patii Multani, District Ludhiana from one Gopal Singh son of Baghel Singh and he had also paid a sum of ` 6,00,000/- to said Gopal Singh. His earnest money paid to said Gopal Singh has been forfeited due to non-completion of agreement dated 03.11.2008 between them. It was further stated that the plaintiff was not entitled to any relief by way of present suit because agreement in question could not be completed due to failure of plaintiff. Although, land in dispute was mortgaged with defendant No.3 (now respondent No.2) but it stood redeemed prior to date fixed for completion of agreement because the loan was waived in view of policy formulated by Central Government. Remaining allegations of plaint were denied and dismissal of the suit was prayed for.
Defendant No.3 (now respondent No.2) in its separate written statement stated that the land to the extent of share of appellant (i.e. defendant No.1) stood mortgaged in favour of defendant No.3 prior to the agreement and thus, defendant No.3 was having lien over the property in dispute and its interest be protected by the Court. Lastly, prayer for dismissal of the suit was prayed for.
The plaintiff filed replications denying the allegations of the defendants contained in the written statements and reiterated those as mentioned in the plaint as correct.
From the pleadings of the parties, the following issues Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 4 were framed:-
1. Whether the plaintiff remained ready and willing to perform his part of agreement? OPP
2. Whether the plaintiff is entitled to the relief of specific performance of agreement dated 22.10.2008 or alternative relief, if so, its effect?
OPP
3. Whether the suit is maintainable? OPP
4. Whether the land in dispute is still under mortgage? OPP
5. Whether plaintiff has concealed true and material facts from the Court? OPD
6. Whether defendant has suffered huge financial loss on non-appearance of plaintiff on stipulated date of execution of sale deed? OPD
7. Whether the plaintiff is estopped from his own act and conduct from filing the present suit? OPD
8. Relief.
After going through the evidence led by the parties, the trial Court decreed the suit of the plaintiff.
Aggrieved from the judgment and decree of the trial Court, defendants No.1 and 2 filed the appeal before the First Appellate Court which was also dismissed.
While dismissing the appeal, the lower Appellate Court had observed as under:-
14. It was the case of Surjit Kaur i.e. plaintiff before the trial Court that defendant No.1 Amar Singh (Appellant before this Court) was owner in Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 5 possession of the disputed property measuring 53 kanals 01 marlas and she agreed to sell the same to her on 22.10.2008 at the rate of Rs.12,85,000/-
per acre and defendant No.2 Karamjit Singh agreed to sell possessory rights of the land measuring 6 kanals at the rate of Rs.6,42,000/- per acre and present appellants received earnest money of Rs.11 lacs from the plaintiff and both the defendants executed that agreement in question on 22.10.2008 with the condition to execute and register sale deed on or before 15.06.2009 in her favour on receipt of sale consideration. It was further agreed between the parties that respondent No.1 will get the land redeemed from the defendant No.3, society with whom the same was mortgaged. He further pleaded that she was ready and willing to perform her part of the agreement but present appellant failed to execute and register the sale deed in her favour. Respondents No.1 and 2 i.e. both appellants appeared and admitted the execution of agreement dated 22.10.2008 but denied that they did not turn up to get the sale deed executed as per terms of the agreement. It was the plaintiff Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 6 who had failed to perform her part of the agreement and no appeared before the Sub Registrar and earnest money paid by him stood forfeited. It was further contended that loss has been caused to the appellants as they were to purchase land from Gopal Singh and had paid Rs.6 lacs as earnest money in that regard.
15. In order to prove his version, plaintiff- Surjit Kaur appeared before the trial Court and reiterated her version regarding execution of agreement by the present appellants on 22.10.2008 and duly proved the same as Ex.P3. She also deposed about her readiness and willingness to perform the part of agreement. She deposed that since the plaintiff failed to get the land redeemed so fault lies with them. In order to corroborate her version, she examined the material witness i.e. Nachhattar Singh as PW2. The statement of said Nachhattar Singh is very relevant who testified through his affidavit Ex.PW2/A that jamabandi for the year 2005-06 bearing date 16.12.2010 was prepared by Karnail Singh, and entry regarding Rapat No.621 dated 2.8.2007 of Khewat No.62 in the said Jamabandi Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 7 is still existing and proved that said entry as Ex.P1. In cross-examination, he identified signatures of Karnail Singh, Patwari and Mohinder Pal Patwari.
16. The plea taken by the plaintiff that it was for the appellants to get the mortgaged land redeemed, is supported by the recital incorporated in the agreement Ex.P3 itself which document is not disputed by the present appellants. It was settled between parties that seller will take the land redeemed one week prior to registration of sale deed and copy of jamabandi will be obtained from the concerned Patwari and handed over to the purchaser. At the cost of repetition, sworn deposition of Pw2, Nachhattar Singh supported the statement of plaintiff herself and copy of relevant Jamabandi Ex.P1, are sufficient for the plaintiff to show that it was for the defendants No.1 and 2 (i.e. appellants before this Court) who had failed to perform their part of agreement and being so, it cannot be said that they were ready and willing to perform their part of the agreement. It hardly matters if the plaintiff did not appear before the Sub Registrar on the Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 8 date fixed for execution and registration of the sale deed because land was still under mortgage with the respondent No.3-society. In her cross- examination, the plaintiff deposed that she had appeared before the Tehsildar on 15.6.2009 for performance of agreement on her part but the land was not redeemed. The Court has also considered the fact that defendant No.1 has suffered loss due to non-performance of agreement Ex.P3 but the plaintiff cannot be blamed for that loss because there was no occasion to perform her part of the agreement due to the failure of the present appellants to get the land redeemed from the defendant No.3- society. Thus, the contentions advanced by the learned counsel for the appellants carry no weight. The fault lies with the appellants who did not get the land redeemed as per the terms of the agreement Ex.P3 entered into between parties. Therefore, their appearance before the Sub Registrar on the date fixed for execution of sale deed hardly improves their plead nor proving the copy of Jamabandi Ex.D8 is of any help to them because the sworn statement of PW2 shows that Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 9 the land was under mortgage on 22.10.2008. It might be a fact that present appellants got the land released from Punjab National Bank vide Ex.D4 and Nakodar Block Label Rural Co-op House vide Ex.D5 but they have not placed on file any No Due Certificate showing that the land mortgaged vide Rapat No.621 dated 2.8.2007 with the respondent No.3 was ever got released before the date of execution of sale.
17. Thus, after scrutinizing oral as well as documentary evidence led on file, this Court is of the opinion that trial Court rightly appropriated his evidence to come to the conclusion that the plaintiff was entitled for specific performance of the agreement to sell dated 22.10.2008 and her suit was rightly decreed in her favour.
18. No other point was argued or urged before me."
Still not satisfied, defendants No.1 and 2 have filed the instant appeal challenging the judgments and decrees of the Courts below submitting that the following substantial questions of law arise in this appeal:-
a Whether the learned Courts below were justified in decreeing the suit of the plaintiff for specific performance by holding that defendant No.1 failed to perform his part of the contract by not Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 10 redeeming the land in question from respondent No.2 despite the fact that Jamabandi (Ex.D8) shows the suit land free from all encumbrances? b. Whether the Courts below have gravely erred in returning a finding against the appellants by mis- reading and mis-construing Ex.D3 to D5 that apparently shows redemption of the suit land prior to the date of sale deed i.e. 15.06.2009, which was a condition precedent envisaged in agreement to sell dated 22.10.2008?
c. Whether the Courts below have erred in returning finding in the present suit against the appellants by reading the Jamabandi for the year 2005-06 (Ex.P1) dated 16.12.2010 produced by the plaintiff in preference to the jamabandi for the same period (Ex.D8) dated 15.06.2009 produced by appellant No.1 wherein the suit land was shown to be free from all encumbrances on the date of execution of the sale deed i.e. on or before 15.06.2009 in favour of the plaintiff?
d. Whether the Courts below were justified in decreeing the suit of the plaintiff for the relief of specific performance dehors the documentary evidence qua redemption (Ex.D3 to D5 and Ex.D8) of the suit land prior to the date of execution of the sale deed in favour of the plaintiff?
e. Whether the jamabandi for the year 2005-06 (Ex.P1) produced by the plaintiff is a forged and a fabricated document procured in connivance with the revenue officials for the purposes of the present suit and thus the findings returned by the Courts below in decreeing the suit of the plaintiff by relying upon the same is also perverse?
f. Whether the judgments and decrees passed by the Courts below are legal and valid in the eyes of law under the facts and circumstances of the present case especially when right to specific performance being a discretionary relief? g. Whether the judgments and decrees under appeal suffer from patent perversity and are thus unsustainable in the eyes of law?
Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 11
h. Whether the judgments and decrees under appeal are based on mis-reading and mis-
appreciation of the pleadings and documentary evidence available on record?
At the outset, it may be noticed that learned counsel for the appellants has addressed the arguments only with regard to findings of the Courts below on issue No.1.
The learned counsel for the appellant has argued that both the Courts below have erred while allowing the suit of the plaintiff-respondent on the ground that the property in dispute comprised in Khasra No.14//16(8-0) situated in the area of village Gaunsuwal, Tehsil Nakodar, District Jalandhar was mortgaged by appellant No.1 in favour of respondent No.2 for loan taken by one Baldev Singh and the same was not redeemed. Thus, appellants failed to perform their part of contract. However, the said loan was waived off under the scheme of Agriculture Debt Waiver and Debt Relief Scheme, 2008 vide communication dated 10.06.2008 issued from the office of Hon'ble Prime Minister of India much prior to the date of execution of sale deed in favour of the plaintiff i.e. on or before 15.06.2009 and therefore, in view of the said letter, appellant No.1 was under a bonafide impression that there is no lien over the property pledged by him as a guarantor and that the same being free from all encumbrances, is capable of being sold by him to respondent No.1. However, due to Intra Government departmental movements, no Dues Certificate/NOC was issued by respondent No.2-society qua the suit land to appellant No.1 on 11.08.2011 and Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 12 therefore in view of the same no oblique motive and malafide can be attributed or fastened upon appellant No.1 in not honouring the agreement to sell dated 22.10.2008 and thus, Courts below have misread and misconstrued the evidence on record and the impugned judgments and decrees of the Courts below are liable to be set aside.
I have heard learned counsel for the appellants and perused the impugned judgments and decrees of the Courts below.
At this stage, it may also be relevant to mention that vide C.M. No.9250-C of 2013 the appellants have sought permission of this Court to lead additional evidence by way of placing on record a letter dated 10.6.2008 of the Prime Minister of India as well as resolution of respondent No.2 dated 11.8.2011, whereby respondent No.2 has resolved to waive of the loan of Baldev Singh. However, the aforesaid documents are of no help to the appellants as the letter dated 10.6.2008 issued by the Prime Minister of India simply states that the Government was implementing a scheme for exempting the farmers from paying loan amount and also to provide concession in due loan amounts, whereas vide Annexure A-2 the respondent No.2 has only resolved to waive of the loan of one Baldev Singh. The said resolution does not talk of redemption of the land in dispute in favour of appellants. Thus, the application is without any merit and is dismissed.
The execution of the agreement in question is not in dispute. It is further not in dispute that it was recited in the said Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 13 agreement that the appellant had to get the land redeemed from respondent No.2 which was mortgaged vide Rapat No.621 of 2.08.2007. It is further not in dispute that the encumbrance by respondent No.3 was removed only on 29.9.2011 and till then the land remained under mortgage. Moreover, plaintiff-Surjit Kaur while appearing in the witness box has duly deposed that she was always ready and willing to perform her part of agreement and in fact it was the appellant who had failed to get the land redeemed before the execution of the sale deed in her favour.
Admittedly, the appellants failed to perform their part of agreement i.e. to get the land redeemed from the mortgage and thus, it cannot be said that they were ready and willing to perform their part of agreement. In these circumstances, it hardly matters if the plaintiff did not appear before the Sub-Registrar on the date fixed for execution and registration of the sale deed because land was still under mortgage with respondent No.2-society. Thus, the fault lies with the appellants. Therefore, their appearance before the Sub- Registrar on the date fixed for execution of the sale deed does not improve their case.
The land in question was mortgaged with the Sangowal Cooperative Agricultural Service Society Limited and the appellants had failed to redeem the aforesaid land before the stipulated date of execution of the sale deed between the parties. However, there is no dispute that the appellants were to clear the land in question from all Kadian Savita 2014.01.18 11:12 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3446 of 2013 (O&M) 14 encumbrances prior to the date of execution of the sale deed. In view thereof, the argument raised on behalf of the appellants that an adverse inference is to be drawn against the plaintiff-respondent to record a finding that they were not ready and willing to perform their part of contract as they failed to appear before the Sub Registrar, is without any merit.
No other argument has been raised.
Thus, no substantial question of law, as raised, arises in this appeal.
Dismissed.
January 16, 2014 (RAKESH KUMAR GARG)
savita/Vijay Asija JUDGE
Kadian Savita
2014.01.18 11:12
I attest to the accuracy and
integrity of this document
High Court Chandigarh