Punjab-Haryana High Court
Kirpal Singh (Deceased) Through Lrs vs Karnail Ram & Others on 5 October, 2013
Equivalent citations: AIR 2014 PUNJAB AND HARYANA 24
Author: Fateh Deep Singh
Bench: Fateh Deep Singh
RSA No.3935 of 2002 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.3935 of 2002 (O&M)
DATE OF DECISION: 05.10.2013
Kirpal Singh (deceased) through LRs ...Appellants
Versus
Karnail Ram & others ...Respondents
CORAM:-HON'BLE MR.JUSTICE FATEH DEEP SINGH Present:-Mr. Rakesh Gupta, Advocate with Mr. Kashmir Singh, Advocate for the appellants.
Mr. Y.S. Turka, Advocate for the respondents.
FATEH DEEP SINGH, J After having been unsuccessful throughout before the trial Court and thereafter, before the First Appellate Court, the unsuccessful defendants have preferred to assail the same through instant regular second appeal on the grounds spelled out therein. The facts that needs to be highlighted are that plaintiff Lillu Ram (now deceased) being represented by his LRs and other plaintiffs including plaintiff Budhu (now deceased) being represented by his LRs instituted against defendants Punnu Ram and others a suit for specific performance of an agreement to sell dated 24th November, 1986 Ex.P2 for sale of land measuring 67 kanals 03 marlas duly described and depicted in the head note of the plaint situated in the village Dugal Khurd, Tehsil Samana, District Patiala on the contentions that the defendants were the owners of the land detailed in the plaint and through agreement to sell Ex.P2 had undertaken to sell it for a total consideration of `84,000/- and out Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 2- of which had received earnest money of `10,000/- and which agreement was reduced into writing, whereby, it was undertaken that the sale deed shall be executed on or before 5th January, 1987 on payment of balance consideration amount. It is alleged that the plaintiffs have been ready and willing to undergo their part of the contract throughout along with the balance amount and to fulfill the conditions spelled out in the agreement but the defendants backed out of it and hence the suit in question and after the amendment of the suit have incorporated that defendants No.1 to 3 claimed to have sold these properties through three sale deeds dated 7th January, 1987 to the newly added defendants No. 4 to 7 and sought setting aside of the same as well.
The original defendants No.1 to 3 in the written statement denied having ever executed agreement to sell dated 24th November, 1986 and termed it to be forged and fabricated document and denied that they were owners of the property on the date of the suit and thus, refuted and denied having ever received any earnest money from the plaintiffs and in the written reply absolutely denied the averments of the plaint.
The subsequently added defendants No.4 to 7 in their written statements took the stand of denial of agreement to sell between the plaintiffs and their co-defendants No.1 to 3 and took the stand that defendants No.1 to 3 had agreed to sell this land with Zora Singh Brar through agreement to sell dated 16th October, 1986 Ex.D1 for a total consideration of `109118/- and had paid `38,000/-to defendants No.1 to 3 by way of earnest money and the sale deed was to be executed on or before 31st January, 1987 after payment of balance consideration amount and claimed that in view Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 3- of the same Shish Pal defendant sold 1/3rd share to defendants No.4 and 5 and Giani Udham Singh predecessor-in-interest of defendants No.6 and 7 through sale deed dated 7th January, 1987 and Punnu Ram defendant No.1. sold his 1/3rd share to defendants No.4 and 5 and Giani Udham Singh predecessor-in-interest of defendants No.6 and 7, therefore, these answering defendants have come to be owners and in possession of this land by virtue of duly and validly executed sale deeds and further claimed that Hans Raj defendant had sold his share to defendants No.4 and 5 and Giani Udham Singh predecessor-in-interest of defendants No.6 and 7 through registered sale deed dated 7th January, 1987 and therefore, claimed that these sale deeds were genuine and bonafidely undertaken and they were not aware of any such claim of the plaintiffs and absolutely refuted the same and sought dismissal of the suit.
The plaintiffs filed different sets of replications to these different written replies reiterating their stand. It is worthwhile to refer here that vide orders dated 21st September, 1989 defendants were burdened with costs, who did not put in appearance nor paid the costs and were thus, debarred by the trial Court for prosecuting their defence and vide judgment and decree dated 23rd December, 1989 the suit of the plaintiffs was decreed with costs against which an appeal was preferred by the defendants and the First Appellate Court vide judgment and decree dated 25th April, 1994 allowed the defendants-appellants to join the proceedings on the condition of payment of `750/- as costs and that is how a de novo trial got impetus in this matter. It is also essential to highlight that vide order dated 4th April, 1995 learned Additional Senior Sub Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 4- Judge, had allowed the proposed amendments and that is how the various heirs of the plaintiffs as well as defendants were arrayed as such. The learned trial Court on the basis of pleadings vide order dated 23rd May, 1995 framed the following issues:-
1. Whether the defendants No.1 to 3 executed an agreement to sell the land in suit in favour of the plaintiffs dated 24.11.1986 for a consideration of `84,000/- and received `10,000/- as part of the sale consideration? OPP.
2. Whether the plaintiffs had already been and are still ready and willing to perform their part of the contract? OPP
3. Whether the defendant Nos. 1 to 3 had executed an agreement to sell dated 16.10.1986 in favour of defendants No.4 to 7 for a consideration of `1,09,118/- and received `38,000/- as part of the sale consideration? OPD 4 to 7.
4. Whether the defendants No. 4 to 7 are purchasers for consideration in good faith of the land on the basis of the sale deeds dated 7.1.1987? OPD 4 to 7
5. Whether the plaintiffs are in possession over the land in dispute as alleged under the agreement, if so its effect? OPP
6. Relief.
The plaintiffs examined PW1 Rattan Lal Garg Document Writer, who scribed the agreement and proved the relevant entry Ex.P1 and photostat copy of the agreement as mark P2. Another Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 5- Document Writer PW2 Azad Hind Goyal has proved the typing of application Ex.P3 and its relevant entry in his register Ex.P4 followed by the deposition of Balbir Singh, Clerk, office of Tehsildar Samana as PW3, who proved endorsement on the application as Ex.P3 and Ex.P3/A. PW4 Baldev Singh Lamba has proved due execution of the agreement in his presence placing reliance on the same as mark P2. PW5 Narata Ram stamp vendor has brought on record having sold the stamp paper for this agreement and proved the entry in his register as Ex.P2/B relying upon the agreement mark P2 and endorsement mark as P2/A. PW6 Teja Ram one of the plaintiff has reiterated the case of the plaintiffs and proved the documents mark P2. After tendering documents Ex.P5 Ex.P6 and Ex.P7 plaintiffs closed their evidence.
The defendants on the other hand, examined DW1 Om Parkash to prove an agreement between defendants 1 to 3 and Zora Singh Brar by way of Ex D1 and thereafter, vendee Zora Singh Brar DW2 has proved agreement ExD1 on the basis of which sale deeds Ex.D2, Ex.D3 and Ex.D4 qua their suit lands in their favour and placed reliance on revenue record Ex.D5 and Ex.D6 and order of the District Collector Ex.D7. Through DW3 Hari Krishan, retired Kanungo and scribe of the agreement ExD1 has proved the same between the parties and thereafter, defendant No.1 Punnu Ram stepped into the witness box and reiterated his case placing reliance on documents Ex.D1, Ex.D1/A , Ex.D2, Ex.D3, ExD4 and mark P2 and P2/A and thereafter, closed the evidence.
The learned trial Court of Additional Civil Judge (Senior Division) Samana, District Patiala through judgment and decree dated 29th April, 1996 has decreed the suit of the plaintiffs for specific performance of the agreement and setting aside the sale Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 6- deeds all dated 7th January, 1987 by defendants No.1 to 3 in favour of defendants No.4 and 5 and Giani Udham Singh predecessor-in- interest of defendants No.6 and 7 and which finding was assailed before the learned First Appellate Court and vide judgment and decree dated 1st June, 2002 concurring with the findings of the trial Court the appeal was also dismissed with costs and feeling wholly dissatisfied and aggrieved over these findings the unsuccessful appellants have come up before this Court in this appeal on the strength of the grounds detailed in the grounds of appeal.
On notice Mr. Y.S. Turka, Advocate put in appearance on behalf of the respondents. At the time of filing of appeal following substantial questions of law were drafted:-
1) Whether the Courts below appreciated the case from reverse angle by treating the issue No.3 as the basic issue whereas it was to be treated in the rebuttal to the issues No1 & 2?
2) Whether the findings of the learned Additional District Judge are vitiated for want of finding on issue No.4 and 5?
3) Whether issues No.4 and 5 are material issues for the decision of the case?
4) Whether the finding of the Courts below is self contradictory regarding the effect of the possession of the plaintiff as tenant?
5) Whether in view of the finding of the trial Court on issue No.5, appellants ought to have been held bonafide purchaser.
6) Whether conclusion of the Courts below from the Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 7- evidence on record regarding issue No.3 is illegal?
7) Whether finding of the Courts below on issue No.1 is based on inadmissible evidence?
8) Whether the Courts below erred in law in allowing secondary evidence?
9) Whether the Courts below decided issue NO.2 by drawing illegal conclusion from their finding on other issues?
The first and foremost contention raised on behalf of the appellants by the learned counsel Mr. Rakesh Gupta, pertains to the fact that agreement to sell Ex.P2 reflects the delivery of possession to the buyers and therefore, being unregistered document cannot be legitimately considered as such in the light of the provisions of Section 53A of the Transfer of Property Act, and has cited the law laid down in Satish Kumar Narang vs. Paramjeet Singh, RSA No. 4677 of 2012 which arguments have been refuted by Mr. Y.S. Turka, learned counsel for the respondents submitting that the possession as before the agreement was already with the plaintiffs-purchasers and therefore, question of registration does not arises. Appreciating these submissions it has been very well detailed in the plaint that the plaintiffs are already in possession of the land in question and it is not a situation where as a consequence of this agreement the possession has been delivered and therefore, the case of the plaintiffs is quite distinguishable from the cited ratio. More so, in the light of conflicting decisions of learned single Benches in cases Gurbahcan Singh vs. Raghubir Singh 2010 (2) PLR 511; Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 8- Birhan Pal and others vs. Niranjan Singh and others 2011 (2) Law Herald (Punjab & Haryana) 1136 the matter was referred to a larger Bench whereby, in RSA No.4946 of 2011 Ram Krishan and another Vs. Bijender Mann @ Vijender Mann in view dated 12th October, 2012, learned Division Bench has held that where an agreement contains clause of part performance of the contract by delivery of possession or executed with a person who is already in possession, a suit for specific performance is not barred by virtue of Section 17(1A) of the Registration Act, 1908 and therefore, negates the submission of the appellant's counsel. More so, the registration and other related law amending Act was passed way back in the year 2001, whereas, the present bone of contention relates to the agreement alleged to have been executed on 24th November, 1986.
It is categoric stand of the defendants No.4 to 7 subsequent purchasers and others that they had purchased the land in question by virtue of an agreement of sale dated 16th October, 1986 Ex.D1 executed on 16th October, 1986 with the defendants No 1 to 3 and who agreed to sell the land and by virtue of sale deeds dated 31st October, 1987 Ex.D2, Ex.D3 and Ex.D4 had sold the land and which written statement has been incorporated on behalf of defendants No.1 to 3. The argument of appellant's counsel that defendants-vendees were bonefide purchasers for valuable consideration and were unaware of any such agreement between the plaintiffs and defendants No.1 to 3 have been rightly controverted by Mr. Turka, learned counsel for the respondents as the very document Ex.D1 has been scribed by a private individual who is neither a licensed Deed Writer nor competent to do so and this witness Hari Krishan has been Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 9- examined as DW3 who claims to be retired Kanungo and accepts in his cross-examination that he is not a Document Writer nor is a licence holder and the sellers were not known to him and that he had never executed any such document of Zora Singh Brar earlier nor this document was ever entered in any register. Neither he has done any course in drafting or document writing nor he is able to give the date when Ex.D1 was written by him and at the time of drafting this document, he accepts that he was in Government service, thus, further adds to the plight of the appellant's case and in view of this mode of execution of Ex.D1 certainly puts to suspicion that it was with an ulterior motive to defeat the Ex.P2 the same has been resorted to and clearly is an ante dated agreement, neither scribed by professional scriber nor there is any evidence to substantiate the same and in the light of the ratio cited on behalf of respondent Nirmal Singh vs, Mangal Singh 2002(1) Civil Court Cases 676(P&H) appears to be not a genuine one. More so, it is the stand of the respondent that they were in possession of the land subject matter of dispute which is well reflected in the agreement Ex.P2 and therefore, it casts a heavy onus on the subsequent owner to prove that they had satisfied themselves from the revenue record and other sources before entering into this transaction. The most material admission by him that he has retired as Chairman of Punjab State Electricity Board and politicly connected with the then President Giani Zail Singh and is also an agriculturist, therefore, ought to have satisfied himself from the revenue record as to the possession of the property as he admits that at the time of execution of Ex.D1 those persons against whom he has filed suit for possession were in occupation of this land and Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 10- so were at the time of execution of the sale deeds and even the reply of DW3 that vendors had already brought the stamp papers at the time of execution of the agreement is negated by DW2 who states that firstly they came without stamp papers and subsequently they brought it and the agreement was got executed. Furthermore, DW4 Punnu Ram in his examination-in-chief states that persons who are in occupation of the land were in possession of this land even earlier and were paying rent to them and that the plaintiffs were in a pitiable economical state and with great difficulty used to give them rent/lease money certainly upsets the apple cart on which the defendants have tried to take a ride and further the learned counsel for the appellants does not dispute the contentions of the respondent's counsel that there is nothing to suggest in Ex.D1 that the possession was ever delivered and how by virtue of sale deeds Ex.D2, Ex.D3 and Ex.D4 the possession has been delivered certainly puts the case of the appellants in a bad light. Since the parties have come up before the Court under the provisions of Chapter II of the Specific Relief Act, 1963 and by virtue of Section 20 of the Act, discretion vests in the Court to decree or not to decree such a suit and therefore, being pure equitable relief, persons who do not come to the Court with clean hand are certainly debarred from seeking any such relief and from these circumstance, it is clearly enunciated that the stand of the appellants is not genuine and bonafide and by mere manpower and muscle power are trying to subvert the due process of law so as to defeat the rights of the plaintiffs. Even otherwise, the stand of defendants Punna Ram, Hans Raj and Shish Pal is of total denial of having ever executed this agreement Ex.P2 in favour of plaintiffs when on the other hand unrebutted stand of the plaintiffs through Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 11- PW1 Document Writer who has proved having scribed this agreement and has established its entry in his register as Ex.P1 and merely because these are the last entries in his register does not negates the same in view of the ratio laid down in Arur Singh vs. Kulwant Singh and another Vol CVI (1994-1) PLR relied upon by the learned counsel for the respondents, such an entry cannot be suspected and clearly it is held that in view of the ratio laid down in Amrik Singh vs. Surjit Kaur & others 2008(3) Civil Court Cases 123 (P&H) the appellants-purchasers cannot be ignorant of this status of the property and are presumed to be in knowledge of its status and the ratios cited on behalf of the appellants Mukesh Kumar alias Motta vs. State of Haryana 2011(1) R.C.R. (Civil) 675; M/s Parkash Chand Kapoor Chand vs. Inderjit Singh and others 2006(3) RCR (Civil) 700; Mangat Ram Vs. Prabhu Dayal and others 2002(4) RCR (Civil) 706; Banarsi Dass Vs.. Om Parkash and others AIR 2005(P&H) 200; Smt J. Yashoda vs.. Smt K. Shobha Rani 2007(2) RCR (Civil) 840 that the entry of the Deed Writer has not been proved in original does not cuts much ice in view of the law laid down in Shangara Singh vs. Jawala Singh Vol CIII (1993-1) cited by Mr. Turka, learned counsel for the respondent, wherein, it has been held that such a photostat copy of the entry of the petition writer's register which carries thumb impression of the party and gist of the agreement entered between the parties is a good case for leading to secondary evidence and more so, at the time of exhibiting of Ex.P2 the same was never objected too goes to the detriment of the appellants and to add to the woes of the appellants by virtue of the deposition of PW2 Azad Hind Goel. It has been established by way Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 12- of application Ex.P3 that entry Ex.P4 that the plaintiffs had appeared before the Sub-Registrar Office which is corroborated by PW3 Balbir Singh as a proof of their readiness and willingness to undergo their part of the contract and which agreement to sell have been well established by the witnesses of this agreement PW4 Baldev Singh, PW5 Narata Ram and PW6 Teja Ram and even the Stamp Vendor Narata Ram corroborated having sold the stamp paper for execution of agreement to sell who is a licensed stamp vendor and has proved the fact that defendant No.1 Punnu Ram son of Bhagwan Dass has purchased this paper on 24th November, 1986 which has been depicted at serial No.7642 are matters which have bearing on the outcome of the case of the parties and learned counsel could not highlight anything adverse having come in the cross-examination of the plaintiff's witnesses so as to erode their credibility and the truthfulness of DW1 Om Parkash, who claims to be an attesting witness of Ex.D1 is certainly under cloud as he is facing numbers of criminal charges and more so, he states that other attesting witness of Ex.D1 was Rashpal Singh which is not evident from this and his name appears to have been subsequently incorporated in the margin in between the stamp paper with a different ink is another distressing feature of the appellant's case and from this oral evidence, it clearly stands established that defendants No.1 to 3 executed agreement to sell dated 24th November, 1986 Ex.P2 in favour of the plaintiffs and who had been ready and willing to undergo their part of the contract and the alleged agreement to sell dated 16th October, 1986 claims to have been executed by defendants No.1 to 3 in favour of defendants No. 4 to 7 is a subsequent afterthought, fabricated and ante timed document which does not confer any right, title and interest to the Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 13- subsequent purchasers who are neither bonafide purchasers nor have valuable consideration in good faith and the plaintiffs are deemed to be in possession in view of the evidence led on the record and the ratios i.e Jagdish Singh vs.. Natthu Singh AIR 1992 SC 1604; Ramlal and another vs. Phagua and others AIR 2006 S.C 623; Kashmir Singh vs. Harnam Singh and another AIR 2008 SC 1749; Abdul Raheem Vs. Karnataka Electricity Board and others; Dharam Singh vs. Karnail Singh and others AIR 2009 SC 758; A.C. Arulappan vs. Smt Ahalya Naik AIR 2001 S.C. 2783; Thiruvengada Pillai vs. Navaneethammal and another AIR 2008 SC 1541; Lourdu Mari David and others vs. Louis Chinnaya Arogiaswamy and others AIR 1996 S.C. 2814(1) cited by the learned counsel for the appellants do not come to the aid of the appellants. Thus, from all these discussions it stand established as to the case of the plaintiffs and it is highly immaterial that the Courts below have appreciated the case from the reverse angle by treating issue No 3 as basic issue and it is highly inappropriate as has been argued that there has been no finding on issues No.4 and 5, whereas there is well detailed reasoning given by the First Appellate Court, that a agreement Ex.D1 does not become valid and genuine document and is fabricated and ante dated agreement and is not genuine one and has further held that sale deeds are also suspicious and has termed the same as suspicious circumstances which are fetters to the case of the appellants and therefore, it cannot be held that the finding of the Courts below were self contradictory since the agreement to sell inter se between the defendants No. 1 to 3 and defendants No. 4 to 5 have been held to be a fraudulent transaction Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document RSA No.3935 of 2002 - 14- therefore, subsequent purchasers defendants No.4 and 5 cannot be held to be bonafide purchasers and the findings of the Courts below are based on the correct appreciation of the oral as well as documentary evidence and cannot be termed illegitimate by any means and, therefore, these findings on the issues being legal and proper needs to be upheld. There are concurrent findings of both the Courts below and there appears to be no illegality and perversity in these findings. The appeal as such is wholly devoid of any merit and hence is dismissed.
(FATEH DEEP SINGH) JUDGE 05.10.2013 aarti Sharma Aarti 2013.10.11 11:01 I attest to the accuracy and integrity of this document