Punjab-Haryana High Court
Rajinder Singh vs Gurpal Singh & Ors. (Lrs. Of Amar Singh) on 11 November, 2014
RSA No.4511 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.4511 of 2014 (O&M)
Date of Decision: 11.11.2014
Rajinder Singh
...Appellant
Versus
Gurpal Singh & others (L.Rs of Amar Singh)
...Respondent
CORAM: HON'BLE MR.JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers 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. Pawan Kumar Sharma, Advocate
for the appellant.
R.P. Nagrath, J.
The defendant has filed the instant Regular Second Appeal (RSA) against the judgements of the Courts below decreeing the suit of the plaintiff, subsequently impleaded through his L.Rs., the respondents herein, for specific performance of agreement to sell dated 22.8.2001 in respect of 6 Bighas of land. It was stated by the plaintiff that the appellant was paid ` 2,00,000/- the total consideration, at the time of execution of agreement to sell. It was agreed that sale deed would be executed and registered after sanction of mutation in his favour on the basis of instrument of partition. Admittedly mutation on the basis of partition was sanctioned by the Assistant Collector, Ist Grade, Rajpura vide order SURESH KUMAR dated 21.3.2006.
2014.11.18 16:52I attest to the accuracy and authenticity of this document Chandigarh RSA No.4511 of 2014 2
The suit for specific performance was filed on 15.6.2006. In fact, the appellant and respondents alongwith others were co- owners of the land measuring 352 Bighas 6 Biswas for which partition proceedings had been initiated. The parties to the suit entered into a compromise dated 22.8.2001 in which it was stated that 6 Bighas of land in suit would be transferred in the name of respondent-plaintiff and on the strength of this compromise, agreement in question was executed. The respondents had earlier issued a notice dated 05.03.2003 to the appellant-defendant and a suit for permanent injunction was filed restraining the appellant from alienating the property in question. Now after sanction of mutation, another notice dated 25.5.2006 was also sent. The appellant had already been ready and willing to perform his part of the contract.
The appellant denied the execution of agreement to sell and attacked it as false, fictitious and result of fraud. The factum of sanction of mutation dated 21.3.2006 was, however, admitted. The appellant also admitted the compromise dated 22.8.2001 but denied that he ever agreed to sell 6 Bighas of suit land in favour of the respondents. The suit is also stated to be barred under Order 2 Rule 2 of the Code of Civil Procedure as earlier suit for injunction was withdrawn without permission of the trial Court to file fresh suit on the same cause of action.
The trial Court framed the following issues:-
"1 Whether defendant executed agreement dated 22.08.2001 in favour of the plaintiff ? OPP SURESH KUMAR 2014.11.18 16:52 I attest to the accuracy and authenticity of this document Chandigarh RSA No.4511 of 2014 3
2. Whether the plaintiff always remained ready and willing to perform his part of agreement ? OPP
3. If issue Nos. 1 & 2 are proved, whether the plaintiff is entitled to the relief of possession by way of specific performance of agreement as prayed for ? OPP
4. Whether the suit is not maintainable in the present form ? OPD
5. Whether the suit is within limitation ? OPD
6. Relief."
Plaintiff died during pendency of the suit and his legal representatives were impleaded, who are now the respondents.
Learned counsel for the appellant has proposed the following questions of law:
"(i) Whether the courts below have returned the findings contrary to the evidence on record while deciding the issue Nos.l and 2 ?
(ii) Whether both the courts below have returned the findings contrary to the evidence on record and decided issue Nos.4 and 5 in piece meal manner on the basis of alleged conditional contract in violation of Specific Relief Act. 1963, S-20 ?"
I have heard learned counsel for the appellant, perused the judgements of the Courts below and also the paper book.
PW4 Balbir Singh, Deed Writer is the scribe of the agreement to sell which was also entered at Sr. No.90 in his deed SURESH KUMAR 2014.11.18 16:52 I attest to the accuracy and authenticity of this document Chandigarh RSA No.4511 of 2014 4 writing register. Copy of the entry is Ex.PW4/B. Charanjit Singh PW1 and Ajaib Singh PW3 are the attesting witnesses to the agreement to sell. On the other hand, appellant examined Karam Singh as DW1 and himself appeared in the witness box as DW2.
Learned Courts below meticulously analysed the evidence and found that the agreement in question was validly proved and that respondent-plaintiff has also established that he was ready and willing to perform his part of the contract. The appellant while appearing in the witness box even denied his signatures on the compromise Ex.P8 which was in fact admitted in the written statement. Even Karam Singh DW1 who was examined by appellant in support of his case admitted his signatures on the compromise Ex.P8 as a witness.
Learned trial Court has rightly applied the principle that since case of the appellant-defendant was of total denial, the statement of plaintiff-respondent that he was ready and willing to perform his part of the contract is sufficient to raise inference on the subject in favour of plaintiff-respondent. Moreover, the respondent had earlier filed the suit in the year 2005 for permanent injunction because by that time the cause of action for filing suit for specific performance in the absence of sanction of mutation had not arisen. The instant suit was filed without lapse of much time after the sanction of mutation. This is another circumstance in support of the plaintiff-respondent about his readiness and willing to perform his part of the contract.
SURESH KUMAR2014.11.18 16:52 I attest to the accuracy and authenticity of this document Chandigarh RSA No.4511 of 2014 5
Learned lower appellate Court has rightly observed that since earlier suit was dismissed as withdrawn and not decided on merit and especially when the cause of action arose after sanction of mutation, the provision of Order 2 Rule 2 of the Code of Civil Procedure would not be a bar to the suit for specific performance.
There is nothing to suggest that analysis of evidence of plaintiff's witnesses and that of appellant is mis-reading of the evidence by the Court below which have come to the consistent finding about valid execution of the agreement and proof of other ingredients.
The lower appellate Court observed as under:-
"It would also not be out of place to mention here that while entering into the witness box, appellant/defendant had denied his signatures on compromise deed Ex.P8, whereas DW1 Karam Singh examined by him, had admitted his signature on the same . Conduct of appellant/defendant is also very material in this case. In his cross-examination appellant/ defendant had even refused to identify his signatures on his written statement, register of Deed Writer and other documents. These facts are enough to show that appellant/defendant is trying to wriggle out of the agreement to sell on one pretext or the other. Further more he had also failed to explain as to how a fraud had been committed upon him by respondent/plaintiff. In view of my observations made SURESH KUMAR 2014.11.18 16:52 I attest to the accuracy and authenticity of this document Chandigarh RSA No.4511 of 2014 6 above, respondent/plaintiff had duly proved that appellant/defendant had executed agreement to sell dated 22.08.2001 Ex. PI regarding sale of property in question in his favour."
It is worth stating that the amount of ` 2,00,000/- received by the appellant under the agreement has been retained by him for the past about 13 years, whereas plaintiff had been making all efforts to save his agreement and filed the suit without loss of time in seeking specific performance.
No substantial question of law arises in the instant appeal.
Dismissed.
(R.P. Nagrath) 11.11.2014 Judge sk SURESH KUMAR 2014.11.18 16:52 I attest to the accuracy and authenticity of this document Chandigarh