Punjab-Haryana High Court
(O&M) Kishan Chandd Etc vs Balbir Singh Etc (Ph) on 1 April, 2025
Neutral Citation No:=2025:PHHC:043213
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-3880-1998 (O&M)
Kishan Chand (through LRs) and others . . . . Appellants
Vs.
Balbir Singh and Others . . . . Respondents
Reserved on: 28.02.2025
Pronounced on: 01.04.2025
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
Argued by:- Ms. Naina Bajaj, Advocate for
LRs of appellant No.1.
Mr. M.L. Sarin, Sr. Advocate with
Mr. Ritesh Aggarwal, Advocate for
appellant Nos.2 and 3.
Mr. Amit Jain, Sr. Advocate with
Mr. Anupam Mathur, Advocate for
respondent Nos.1, 2, 3(i-ii), 4, 8, 9,
10, 11(1, ii, iv) and 12.
DEEPAK GUPTA, J.
Suit for specific performance of the property in dispute filed by plain.ffs Balbir Singh and others (respondents herein) was decreed by the trial Court of learned Sub Judge 1st Class, Faridabad vide his judgment & decree dated 17.04.1995. Appeal filed by the defendants Kishan Chand and others (now appellants through respec ve LRs) was dismissed by the first Appellate Court of learned District Judge, Faridabad vide judgment dated 19.08.1998. Against these concurrent findings, the defendants have approached this Court by way of the present Regular Second Appeal.
2. Trial Court record was called. Same has been perused. In order to avoid confusion, par.es shall be referred as per their status before the trial Court.
3.1 Admi9edly, defendant No.1 Kishan Chand was owner of agricul-
1 of 31 ::: Downloaded on - 04-04-2025 01:03:28 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) tural land measuring 417 Kanal 1 Marla being 8341/18032 share in total land measuring 901 Kanal 12 Marla situated in the Revenue Estate of Village Dul- hepur, Tehsil Ballabgarh, District Faridabad as per Jamabandi for the year 1977-
78. He agreed to sell the said land to the plain.ffs vide an agreement to sell dated 28.04.1984 (Ex.P18), with following material terms & condi.ons:
x At the rate of ₹8,500/- per acre, i.e., for total sale considera.on of ₹4,43,115.62/-.
x An amount of ₹1,00,000/- was received by him as earnest money. [Re-
ceipt - Ex.P19] x The possession of the land of the share, which was in possession of ven-
dor at the .me of agreement, was delivered to the plain.ffs - proposed vendees, who were authorized to u.lize the land the way they liked.
x Sale deed was agreed to be executed and registered up to 01.06.1985 on payment of balance considera.on of ₹3,43,115.62/-.
x Vendor i.e. defendant No.1 shall obtain income tax clearance cer.ficate from the Income Tax Department prior to the target date.
x ADer the decision of the par..on, the vendees will get the possession of that land, which will be allo9ed to defendant No.1 - vendor, for which the vendees will have no objec.on.
x In case by the target date of 01.06.1985, the par..on proceedings are not completed due to any reason, the limita.on for the execu.on & registra- .on of the sale deed would automa.cally be considered as extended up to the final decision of the par..on case.
x ADer geEng the par..on order incorporated in the revenue record, the defendant No.1 would give one month no.ce to the vendees for the exe- cu.on and registra.on of the sale deed.
3.2 Since the par..on proceedings were not complete up to 01.06.1985, so supplementary agreement dated 10.06.1985 (Ex.P20) was Page 2 of 31 2 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) executed amongst the par.es, extending the date of registra.on for another two months of the informa.on of decision of the appeal. An amount of ₹50,000/- [Receipt - Ex.P21] more was paid to defendant No.1 Kishan Chand at the .me of this agreement, making total earnest money as ₹1,50,000/-. It was specifically inter alia s.pulated in this agreement:
x That balance amount of ₹2,93,115.62/- shall be received by vendor at the .me of registra.on of sale deed.
x That possession of the suit land had already been given to the buyers and that they were u.lizing the same.
x That vendor was not sa.sfied with the par..on order passed by the As- sistant Collector First Grade, Ballabgarh and that the vendor i.e. defen- dant No.1 shall file appeal against the par..on order before the Appellate Court and aDer decision of the appellate court, defendant No.1 give no- .ce to the plain.ffs - vendees and aDer receipt thereof, the plain.ffs - vendees would get the sale deed executed and registered within next two months.
x That Vendor - defendant No.1 shall obtain income tax clearance cer.fi- cate from the concerned Department before execu.on and registra.on of the sale deed.
x That rest of the terms and condi.ons shall be as per the prior agreement dated 28.04.1984.
3.3 As per plain.ffs, over and above the amount of ₹1,50,000/- al-
ready paid to defendant No.1, another amount of ₹12,000/- was paid to the de- fendant N: 1 - vendor on 11.06.1985 making the advance to ₹1,62,000/- out of the total sale considera.on of ₹4,43,115.62/-.
3.4 The plain.ffs claimed that aDer obtaining possession of the suit land under the agreement dated 28.04.1984, they installed a tubewell and con- structed a pacca room at their own expense before the comple.on of par..on proceedings. However, during the par..on, the tubewell & room were allo9ed Page 3 of 31 3 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) to Jagdish Chand, a co-sharer and brother of defendant No.1. The Collector, Ballabgarh, fixed ₹10,000/- as the price of the room, which Jagdish Chand paid to defendant No.1 through a receipt dated 10.05.1986. The plain.ffs contended that since they had constructed the room at their own cost, the amount re- ceived by defendant No.1 should be adjusted against the total sale price of ₹1,62,000/, making the paid amount to be ₹1,72,000/-.
3.5 As per plain.ffs, the possession of the land allo9ed to defendant No.1 in the par..on proceedings was formally handed over to them on 30.05.2006 in the presence of Sampooran Singh (husband of plain ff No.5) and the father of plain.ffs No.4 and 6, as recorded in Rapat No.460 (Ex.P34).
3.6 The plain.ffs further asserted that they have always been ready and willing to execute the sale deed upon payment of the balance considera- .on, but defendant No.1 failed to fulfil his obliga.on. On 23.04.1986, defendant N: 1 sent a legal no>ce [Ex.PW3/A] through his counsel to Sampooran Singh (husband of plain ff No.5) and the father of plain.ffs No.4 and 6, urging the plain.ffs for comple.on of the sale deed. In response, the plain.ffs through their counsel sent reply dated 30.06.1986 [Ex.P23], reques.ng defendant No.1 to obtain income tax clearance cer.ficate and to get the muta.on recorded in revenue records regarding the par..on to facilitate the sale. However, defend- ant No.1 did not comply.
3.7 Subsequently, defendant No.1 entered into an agreement to sell dated 17.07.1986 (Ex.DW3/A) with defendant No.2 to sell his land for consider- a.on of ₹4,00,000/- and appointed defendant No.3 as his general power of at- torney for execu.on and registra.on of sale deed in favour of said defendant No.2. Plain.ffs claimed the said agreement to sell in favour of defendant No.2 to be not binding upon them in view of the prior agreement in their favour. They came to know about this agreement, when they filed a civil suit for permanent injunc.on on 28.07.1986. This agreement was alleged to have been executed by defendant No.1 with mala fide inten.on. Plain.ffs claimed that they had never parted with the possession of suit land.
Page 4 of 314 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) 3.8 With all the above averments, plain.ffs filed the suit on the basis of agreement to sell dated 28.04.1984 & 10.06.1985 claiming the decree for specific performance on payment of balance sale considera.on with consequen- .al relief of permanent injunc.on to restrain the defendants from interfering in their possession. In alterna.ve, they claimed the recovery of ₹4,43,115.62/- along with interest from the date of the first agreement.
4.1 All the three defendants filed joint wri9en statement, raising pre- liminary objec.on that suit was barred under Order II Rule 2 and Sec.on 11 CPC; that impugned agreement to sell with the plain.ffs had already been ter- minated or revoked or rescinded due to their act, conduct and omissions; that plain.ffs had taken false plea of delivery of possession to them; that vide agree- ment dated 17.07.1986, defendant No.1 had handed over the possession of dis- puted land to defendant No.2 and thus, he was in possession thereof and his possession was liable to be protected under Sec.on 53-A of Transfer of Property Act; that defendant N: 1 had already performed his part of contract and nothing remained to be done on his part.
4.2 It is also claimed that defendant No.1 had only received an amount of ₹75,000/- from the plain.ffs. There was no ques.on of the plain.ffs having installed the tubewell or construc.ng any room on the suit land, as they were not in possession thereof. Defendants further denied the readiness and willingness of the plain.ffs to perform their part of contract as per the terms and condi.ons of the agreement to sell. Denying the en.tlement of the plain- .ffs to seek the decree of specific performance or recovery for total sale consid- era.on in the alterna.ve, defendants prayed for dismissal of the suit.
4.3 In the counter-claim separately filed by defendant No.2, it was claimed that he was one of co-sharer in possession of the suit land with other co-sharers. As per him, in the par..on proceedings ini.ated by defendant N: 1, he was allo9ed 417 Kanal 2 Marla of land, the possession whereof was deliv- ered to him on 30.05.1986, which he further delivered to him (defendant N: 2) on 17.07.1986, when defendant No.1 agreed to sell this land to him for ₹4,00,000/- vide agreement dated 17.07.1986 for considera.on. Claiming to be Page 5 of 31 5 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) bonafide purchaser of suit land for value and without no.ce of the prior agree- ment to sell, defendant N: 2 claimed that he had taken reasonable care to as- certain that defendant No.1 had power to transfer the suit land to him. He sub- mi9ed further that sale deed could not be registered in his favour on account of failure of defendant N: 1 to obtain income tax clearance cer.ficate; and tempo- rary injunc.on obtained by plain.ffs is ensuing li.ga.on.
5. In re-joinder, plain.ffs reiterated their claim. They also opposed the counter-claim of defendant No.2.
6. Necessary issues were framed. Evidence produced by the par.es was taken on record.
7. Learned trial Court held:
x that both the agreements to sell as relied by the plain.ffs were duly proved and that said agreements had not been terminated.
x that plain.ffs were ready and willing to perform their part of contract as per terms of the two agreements dated 28.04.1984 and 10.06.1985 and that they had already paid an amount of ₹1,62,000/- and further, defen- dant No.1 had received an amount of ₹10,000/- during par..on proceed- ings as the cost of tubewell and kotha, which had been raised by the plain.ffs and thus, he was liable to adjust this amount in total sale consid- era.on and this way, he had already received an amount of ₹1,72,000/- and not ₹75,000/- as had been alleged.
x that plain.ffs had received the actual physical possession of the suit land at the .me of agreement to sell and had installed tubewell and con- structed a kotha upon one of the killa bearing No.16.
x that defendant No.1 had failed to comply with the terms of the agree- ment by not geEng the income tax clearance cer.ficate and by not get- .ng the par..on proceedings mutated in the revenue record.
x that defendant No.2 had the knowledge of the previous agreement to sell Page 6 of 31 6 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) with the plain.ffs and that he had got the agreement executed in his favour with mala fide inten.on and as such, he was not a bona fide pur-
chaser for valuable considera.on without no.ce and as such, agreement to sell dated 17.07.1986 in favour of defendant No.2 and general power of a9orney dated 21.07.1986 in favour of defendant No.3 were null & void and not binding on the rights of the plain.ffs.
x that defendant No.2 was not en.tled to the protec.on under the provi- sions of Sec.on 41 and 53-A of the Transfer of Property Act, as it was found that the above documents were got executed in collusion with each other to defeat the rights of the plain.ffs.
x that suit was not barred under Order II Rule 2 CPC, or Sec.on 11 CPC.
Consequently, suit for specific performance was decreed by the trial Court on 17.04.1995.
8. All the findings as returned by the trial Court were endorsed by the first Appellate Court of learned District Judge, Faridabad, dismissing the ap- peal filed by the defendants, on 19.08.1998.
Conten"ons of appellants - defendants:
9.1 Assailing the aforesaid concurrent findings of facts recorded by courts below before this Court, it is argued by Sh. M.L. Sarin, Learned Senior Ad- vocate for the appellants - defendants assisted by Ms. Naina Bajaj, Advocate, who is also one of the LRs of the deceased-appellant No.1 that readiness and willingness on the part of the plain.ffs is not proved and that learned Courts be- low have erred in believing the tes.mony of Sampooran Singh, examined on be- half of the plain.ffs, as the a9orney of the plain.ffs despite the fact that said PW7 Sampooran Singh had been appointed as a9orney much later. It is argued that readiness and willingness to perform part of contract on behalf of the plain- .ffs as buyers can be proved only by the plain.ffs and not by their a9orney. Re- liance in this regard is placed upon "Rajesh Kumar v. Anand Kumar" AIR 2024 Supreme Court 3017; besides "Man Kaur v. Hartar Singh Sangha" (2010) 565; & "Manisha Mahendra Gala v. Shalini Bhagwan Avatramani" (2024) 6 SCC Page 7 of 31 7 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M)
130. 9.2 It is next contended by learned senior advocate that both the Courts below commi9ed error in coming to the conclusion that the present suit was not barred under the provisions of Order II Rule 2 CPC and Sec.on 11 CPC. It is urged that plain.ffs had earlier ins.tuted three separate suits. In two of the suits filed earlier against the defendants for permanent injunc.on, the relief of specific performance was also available but the same was not claimed. Reliance is placed upon "Kewal Singh v. Lajwan"" AIR 1980 Supreme Court 161; "Ishar Dass v. Kanwar Bhan" (1991-2) PLR 578; "Rao Narain Singh v. Smt. Durga Devi" (1997-3) PLR 760; "Bhagwan Kaur v. Harender Pal Singh" 1991 PLJ 681;
"Sidramappa v. Rajashe@y and ors." AIR 1970 SC 1059; "Tarsem Singh v. Sibu Ram" 1997 (2) PLJ 268; "Smt. Ralli v. Sa"nderjit Kaur" (1998) 118 PLR 666 and "Vurimi Pullarao v. Vemari Vyankata Radharani" AIR 2020 SC 395.
9.3 It is further urged that obtaining of the income tax clearance cer- .ficate by defendant No.1 has been wrongly made as the basis by the plain.ffs for seeking specific performance, as the same was the posi.on when they had filed the earlier suits and therefore, non-obtaining of the clearance tax cer.fi- cate cannot be a ground for non-performing their part of contract by the plain- .ffs.
9.4 It was also argued that suit was barred by limita.on; and that counter-claim as filed by defendant N: 2 has been wrongly rejected.
9.5 With all these submissions, prayer is made for seEng aside the judgments & decrees as passed by the Courts below with further prayer to dis- miss the suit of the plain.ffs-respondents for specific performance by allowing this appeal.
Conten"ons of respondents - plain"ffs:
10.1 Refu.ng the aforesaid conten.ons, Sh. Amit Jain, Learned Senior Advocate appearing for the respondents-plain.ffs contended that there is no scope for interference in the concurrent findings of facts as recorded by the Courts below.Page 8 of 31
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10.2 It is contended that both lower courts correctly upheld the execu- .on of the agreements dated 28.04.1984 and 10.06.1985, as the defendants did not dispute their execu.on in the wri9en statement. The defendants' claim that the agreements were terminated lack cogent evidence. Notably, defendant No.1 Kishan Chand did not tes.fy, and defendant No.3, who appeared as his at- torney, had no knowledge of the transac.ons with the plain.ffs. Moreover, he was appointed as a9orney only on 21.07.1986, long aDer the agreements had been executed.
10.3 It is further argued that plain.ffs produced sufficient evidence to prove their readiness and willingness. Refu.ng the conten.on to the effect that none of the plain.ffs entered the witness-box, it is pointed out that Sampooran Singh entered the witness-box as general power of a9orney holder of the plain- .ffs. Not only the fact that he is the GPA holder of the plain.ffs, he is also the husband of one of the plain.ffs and father of two of the plain.ffs'. Learned se- nior advocate has drawn a9en.on towards Sec.on 120 of the Indian Evidence Act to contend that husband can tes.fy as a witness for the wife. It is further ar- gued that Sampooran Singh has been involved in the transac.on since begin- ning. Even the legal no.ce had been sent by the defendant No.1 to said Sam- pooran Singh. Said Sampooran Singh was present, when the possession of the suit property was delivered aDer the conclusion of the par..on proceedings and as such, it cannot be said that readiness & willingness of the plain.ffs is not proved due to non-examina.on of plain.ffs.
10.4 Regarding the plea of bar of the suit under Order II Rule 2 CPC and Sec.on 11 CPC, it is contended by learned senior advocate that out of three suits filed by the plain.ffs previously, the plaint of two of the previous suits were rejected under Order VII Rule 11 CPC, with the specific finding by the Court concerned that plain.ffs were at liberty to seek the alterna.ve remedy of filing the suit for specific performance. Besides, learned counsel has specifically drawn a9en.on towards Order VII Rule 13 CPC, as per which when the plaint is rejected on any of the grounds under Order VII Rule 11 CPC that does not bar the filing of the fresh suit on the same cause of ac.on. As far as the third suit is Page 9 of 31 9 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) concerned, that was filed only against defendant Nos.2 & 3 to restrain them from interfering in the possession of plain.ffs. However, that suit was dismissed as withdrawn on the statement of counsel for the plain.ffs having become in- fructuous, in view of the filing of the present suit for specific performance.
10.5 Learned counsel contends further that possession of the plain.ffs over the suit land has been found by both the Courts below, on the basis of oral as well as documentary evidence brought on file. It is argued that the evidence produced on record was ini.ally appreciated by the trial Court and thereaDer, it was thoroughly thrashed by the first Appellate Court, who found no ground to interfere in the findings of the trial Court.
10.6 The learned counsel further argues that the High Court's scope for interfering with the concurrent findings of the lower courts is highly limited. In the present case, there is no illegality or perversity in the lower courts' findings that would warrant interference. There has been no misreading of evidence, nor have the appellants iden.fied any evidence that was overlooked.
10.7 Based on the above submissions, the learned senior advocate for the respondents - plain.ffs requests the dismissal of the appeal . Learned coun- sel has also referred to "Sucha Singh Sodhi v. Baldev Raj Walia" 2018(2) RCR Civil 78; "Ratnavathi and anr. v. Kavita Ganashamdas" 2018(2) SCC 736; "In- basegaran v. S. Natarajan" 2014 (6) RAJ 130; "Bhagwan Kaur v. Harinder Pal Singh" 1991 PLJ 68; "Delhi Waqf Board v. Jagdish Kumar Narang" 1997 (10) SCC 192; "Janki Vashdeo Bhojwani v. Indusind Bank Ltd. and Ors." 2005 (1) RCR (Civil) 240; "Alka Gupta v. Narender Kumar Gupta" 2011 AIR (SC) 9; "R. M. Sun- daram v. Sh. Kayarohanasamy" 2022 (2) ERC 520; "Mohan Singh v. Smt. Prem Aggarwal" 2022 (2) Law Herald 20600 and "Gaddipa" Divija v. Pathuri Samra- jyam" 2023 (3) RCR (Civil) 19.
11. This Court has considered submissions of both the sides at depth and have appraised the en.re record thoroughly and carefully.
Plea of bar under Order II Rule 2 CPC & Sec"on 11 CPC:
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12. One of the principle argument raised by learned senior advocate for the appellants-defendants is regarding the maintainability of the suit, as it is contended that suit was barred under Order II Rule 2 CPC to be read with Sec- .on 11 CPC because of the previous li.ga.on, which was ini.ated by the plain- .ffs and which were dismissed.
13. Prior to the present suit, plain.ffs had filed following three suits:
x Suit No.463 of 1986 x Suit No.504 of 1986 x Suit No.422 of 198614. Suit No. 463 of 1986 was filed by the plain.ffs solely against de- fendant No.1 Kishan Chand. The plain.ffs sought to restrain him from interfer- ing with their possession as prospec.ve vendees, alleging that he was deliber- ately delaying the procurement of the income tax clearance cer.ficate and other necessary steps under the agreement, while a9emp.ng to forcibly dis- possess them. Addi.onally, they sought a mandatory injunc.on to direct the defendant to execute the sale deed. The plaint of this suit is Ex.D1. However, the suit was dismissed by order dated 17.11.1986 (Ex.D7) with the court ruling that the plain.ffs had an equally efficacious remedy available--filing a suit for specific performance of the agreement to sell. Instead of amending the plaint, they were advised to pursue this alterna.ve remedy. The court explicitly noted that the findings required in a suit for specific performance could not be adju- dicated within an injunc.on suit and as such, ma9er must be determined inde- pendently.
15. Another suit bearing No.504 of 1986 was filed by the plain.ffs against all the defendants pleading that defendant No.1 instead of execu.ng the sale deed in favour of the plain.ffs, without obtaining the income tax clearance cer.ficate and geEng the muta.on entered in respect of the par..on, had exe- cuted an agreement to sell in favour of defendant No.2 and GPA in favour of de- fendant No.3, which are ineffec.ve and not binding on the right, .tle or inter- ests of the plain.ffs. Prayer was made to declare the agreement to sell in favour Page 11 of 31 11 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) of defendant No.2 and GPA in favour of defendant No.3 as null & void and re- strain defendant N: 1 from aliena.ng the suit property. The copy of plaint of the said suit is Ex.DW3/H. Plaint of this suit was rejected vide order dated 17.11.1986 (Ex.D10) aDer observing that plain.ffs had got equally efficacious remedy of seeking specific performance of the agreement to sell and that suit for permanent & mandatory injunc.on was not maintainable.
16. The third suit bearing suit No.422 of 1986 was filed by the plain- .ffs only against defendant Nos.2 & 3 to restrain them from interfering in the possession of the plain.ffs. Said suit was dismissed as withdrawn on 29.11.1986 vide order Ex.D11 on the statement Ex.D8 made by counsel for the plain.ffs to have become infructuous, as the present suit had been filed for specific perfor- mance.
17. It is clear from orders Ex.D7 and Ex.D10 that the previous two suits as filed by the plain.ffs were not decided on merits and rather, the plaint of both those suits was rejected.
18. Ques.on is whether in the aforesaid facts and circumstances, the bar of Order II Rule 2 CPC or that of Sec.on 11 CPC applies. Order II Rule 2 CPC runs as under:
"Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plain.ff is en.tled to make in respect of the cause of ac.on; but a plain.ff may relinquish and por.on of his claim in order to bring the suit within the jurisdic.on of any Court.
(2) Relinquishment of part of claim.--Where a plain.ff omits to sue in respect of, or inten.onally relinquishes, any por.on of his claim, he shall not aDerwards sue in respect of the por.on so omi9ed or relinquished.
(3) Omission to sue for one of several reliefs.--A person en.tled to more than one relief in respect of the same cause of ac.on may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such re-
liefs, he shall not aDerwards sue for any relief so omi9ed.
Explana"on.--For the purposes of this rule an obliga.on and a collateral secu-
Page 12 of 3112 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) rity for its performance and successive claims arising under the same obliga.on shall be deemed respec.vely to cons.tute but one cause of ac.on."
19.1 ADer making reference to the aforesaid Rule, it has been held by Hon'ble Supreme Court in Kewal Singh v. Rajwan" (supra) that this provision applies to cases, where a plain.ff omits to sue a por.on of the cause of ac.on on which the suit is based either by relinquishing the cause of ac.on or by omiEng a part of it. The provision has no applica.on to cases, where the plain- .ff basis his suit on separate & dis.nct causes of ac.on and chooses to relin- quish one or the other of them. In such cases, it is always open to the plain.ff to file a fresh suit on the basis of a dis.nct cause of ac.on, which he may have so relinquished.
19.2 Effect of rejec.on of plaint under order VII Rule 11 vis-a vis Order II Rule 2 CPC was not considered in above case.
20.1 Learned senior advocate for the appellants has also referred to Ishar Dass v. Kanwar Bhan (supra), wherein it was observed by this Court that when the plain.ff had earlier filed a suit for permanent injunc.on and later filed another suit for specific performance and con.nued li.ga.ng both the suits and thereaDer, suit for permanent injunc.on was withdrawn, in those circumstances the suit for specific performance was barred under Order II Rule 2 CPC, as the relief of specific performance was not availed of, when it was available and no such permission for reserving the right was obtained by him from the Court.
20.2 This authority is not at all applicable to the facts of the present case, as it is not the case of the defendants that plain.ffs had con.nued the suit for specific performance as well as the suit for permanent injunc.on side by side. Rather, the case of the defendants is that at the .me of filing of the present suit for specific performance of agreement, one of the earlier suit for permanent injunc.on was got dismissed, and the plaint of two other suits were rejected.
20.3 Moreover, in Ishar Singh's case, sale deed was to be completed on 25.04.1980 aDer receiving the balance sale considera.on and suit for injunc.on Page 13 of 31 13 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) was filed on 28.04.1980 i.e. aDer the cause of ac.on to file the suit for specific performance had arisen. However, in the present case, cause of ac.on to file the suit for specific performance had not arisen, as defendant No.1 had neither obtained the income tax clearance cer.ficate from the Income Tax Department as was required under the agreement to sell nor had got the par..on proceed- ings mutated in the revenue record. Besides, plaint of earlier suit had not been rejected in previous suit, as is the situa.on in the present case.
21.1 Similarly, in Rao Narain Singh's case as cited by counsel for the ap- pellants, it was observed by this Court that plain.ffs not only omi9ed to sue for specific performance of contract or recovery of the earnest money but also did not seek leave of the Court to sue for such relief aDerwards i.e. by filing earlier suit for injunc.on, the plain.ffs had disen.tled themselves from filing the suit for specific performance subsequently because the cause of the ac.on in both the suits were the same.
21.2 This authority is again not applicable to the facts of this case, as plaint of earlier suit had not been rejected in previous suit, as is the situa.on in the present case.
22. In all other authori.es as cited by Ld. Senior Advocate for the ap- pellants in support of his conten.on regarding bar of Order II Rule 2 CPC, plaint of the previous suit had been rejected by the Court, as is the situa.on in the present case.
23. However, in the present case, the plaint of the earlier two suits in- s.tuted by the plain.ffs had been rejected, as has been observed earlier. In this regard, Order VII Rule 13 CPC is very relevant, which reads as under:
"13. Where rejec"on of plaint does not preclude presenta"on of fresh plaint.
--The rejec.on of the plaint on any of the grounds hereinbefore men.oned shall not of its own force preclude the plain.ff from presen.ng a fresh plaint in respect of the same cause of ac.on."
24. In Delhi Waqf Board v. Jagdish Kumar Narang's case (supra), Hon'ble Supreme Court aDer referring to abovesaid Order VII Rule 13 CPC held Page 14 of 31 14 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) that in view of the clear bar contained in Order VII Rule 13, the subsequent suit was not barred by the earlier order rejec.ng the plaint in the earlier suit and so, courts were not jus.fied in holding the present suit to be barred by virtue of re- jec.on of earlier suit.
25. In view of above legal posi.on, it is held that as the plaint in previ- ous two suits filed by the plain.ffs had been rejected, therefore, it does not cre- ate bar in filing fresh suit on same cause of ac.on.
26. As far as the third suit No.422 of 1986, which was filed by the plain.ffs against defendant Nos.2 and 3 is concerned, it was only to restrain these defendants from interfering in the possession of the plain.ffs. The suit was withdrawn aDer the ins.tu.on of the present suit for specific performance.
27. In Sucha Singh Sodhi v. Baldev Raj Walia's case (supra), Hon'ble Supreme Court confronted the situa.on, when suit for permanent injunc.on filed by the plain.ff to restrain the defendant from interfering in the possession, claiming to have entered into agreement to sell with defendant, was withdrawn and subsequent suit was filed for specific performance. It was held by Hon'ble Supreme Court that cause of ac.on to claim relief of permanent injunc.on and cause of ac.on to claim relief of specific performance of agreement are inde- pendent. One cannot include other and vice versa. Plain.ff cannot claim relief for specific performance of the agreement against defendant on cause of ac.on on which he has claimed the relief of permanent injunc.on. Hon'ble Supreme Court also observed that cause of ac.on for permanent injunc.on and specific performance of agreement are governed by separate Ar.cles of limita.on Act and therefore, it is not possible to claim both reliefs together.
28. In view of the aforesaid facts and circumstances, it is held that Courts below did not commit any error in holding the present suit as filed by the plain.ffs to be not barred under the provisions of Order II Rule 2 CPC. Nor the present suit can be held to be barred by principles of res-judicata under Sec.on 11 CPC, for the simple reason that none of the previous suits had been adjudi- cated on merits. As such, conten.on of Ld. Advocate in this regard is rejected.
Page 15 of 3115 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) Readiness and willingness - competency of power of a@orney to depose:
29. The primary argument presented by the learned Senior Advocate for the appellants, challenging the findings of the lower courts, concerns the plain.ff's readiness and willingness to fulfil their contractual obliga.ons. It is contended that none of the plain.ffs personally tes.fied to establish this as-
pect. Instead, they relied on the deposi.on of Sh. Sampooran Singh (PW-7), who appeared as their a9orney based on a General Power of A9orney (GPA) dated 03.12.1991 (Ex.P17). A9en.on is drawn to the ini.al agreement to sell, dated 28.04.1984 (Ex.P18), which was executed and signed by one of the plain.ffs, Balbir Singh, on their behalf. The subsequent agreement (Ex.P20), dated 10.06.1985, was signed by Sampooran Singh represen.ng the plain.ffs; however, at that .me, he had not yet been appointed as their General Power of A9orney. Given these circumstances, it is argued that PW-7 Sampooran Singh was not a competent witness to establish the plain.ffs' readiness and willing- ness to perform their contractual du.es.
30. Conversely, the learned Senior Counsel for the respondents- plain.ffs argues that Sampooran Singh is not merely their A9orney but also closely related to them, being the husband of one plain.ff and the father of two others. It is contended that it is not mandatory for all plain.ffs to tes.fy individually, as the statement of even one is sufficient. In this case, PW-7 Sampooran Singh, as the husband of a plain.ff, was competent to depose on her behalf under Sec.on 120 of the Indian Evidence Act, regardless of whether he held the General Power of A9orney at the relevant .me.
31. In Rajesh Kumar Vs. Anand Kumar (supra), in a suit for specific performance, based upon agreement to sell dated 26.09.1995 followed by subsequent agreement dated 26.12.1996. The plain.ff - vendee did not tes.fy and instead had his Power of A9orney holder, examined as PW-1. This GPA got recorded his statement on 05.09.2002, whereas the Power of A9orney was executed on 26.08.2002. Notably, the suit was not ins.tuted by the Power of A9orney holder; he appeared solely to provide evidence as the plain.ff's Special Power of A9orney holder. It was in this factual background that Hon'ble Page 16 of 31 16 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) Supreme Court examined the issue rela.ng to admissibility of a Power of A9orney holder's tes.mony. It was held as under:
"8. ..................The legal posi.on as to when the deposi.on of a Power of A9orney Holder can be read in evidence has been dealt with by this Court in several decisions.
9. In Janki Vashdeo Bhojwani v. Indusind Bank Ltd. AIR 2005 SC 439, it is held that a Power of A9orney Holder cannot depose for principal in respect of ma9ers of which only principal can have personal knowledge and in respect of which the principal is liable to be cross-examined. It is also held that if the principal to the suit does not appear in the witness box, a presump.on would arise that the case set up by him is not correct. This Court has discussed the legal posi.on in the following words in paras 13 to 22:
"13. Order 3 Rules 1 and 2 CPC empower the holder of power of a9orney to "act" on behalf of the principal. In our view the word "acts"
employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by the power-of-a9orney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of- a9orney holder has rendered some "acts" in pursuance of power of a9orney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the ma9er of which only the principal can have a personal knowledge and in respect of which the principal is en.tled to be cross-examined.
14. Having regard to the direc.ons in the order of remand by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr Bhojwani to represent them and the Tribunal erred in allowing the power-of-a9orney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the Page 17 of 31 17 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in ques.on. The finding recorded by the Tribunal in this respect is set aside.
15. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao [(1999) 3 SCC 573] observed at SCC pp. 583- 84, para 17 that:
"17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presump.on would arise that the case set up by him is not correct...."
16. In civil dispute the conduct of the par.es is material. The appellants have not approached the Court with clean hands. From the conduct of the par.es, it is apparent that it was a ploy to salvage the property from sale in the execu.on of decree.
17. On the ques.on of power of a9orney, the High Courts have divergent views. In the case of Shambhu Du@ Shastri v. State of Rajasthan [(1986) 2 WLN 713 (Raj)] it was held that a general power-of- a9orney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-a9orney holder cannot be allowed to appear as a witness on behalf of the plain.ff in the capacity of the plain.ff.
18. The aforesaid judgment was quoted with approval in the case of Ram Prasad v. Hari Narain [AIR 1998 Raj 185 : (1998) 3 Cur CC 183]. It was held that the word "acts" used in Rule 2 of Order 3 CPC does not include the act of power-of-a9orney holder to appear as a witness on behalf of a party. Power-of-a9orney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on Page 18 of 31 18 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) behalf of the party in the capacity of that party. If the plain.ff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC.
19. In the case of Pradeep Mohanbay (Dr.) v. Minguel Carlos Dias [(2000) 1 Bom LR 908] the Goa Bench of the Bombay High Court held that a power of a9orney can file a complaint under Sec.on 138 but cannot depose on behalf of the complainant. He can only appear as a witness.
20. However, in the case of Humberto Luis v. Floriano Armando Luis [(2002) 2 Bom CR 754] on which reliance has been placed by the Tribunal in the present case, the High Court took a dissen.ng view and held that the provisions contained in Order 3 Rule 2 CPC cannot be construed to disen.tle the power-of-a9orney holder to depose on behalf of his principal. The High Court further held that the word "act" appearing in Order 3 Rule 2 CPC takes within its sweep "depose". We are unable to agree with this view taken by the Bombay High Court in Floriano Armando [(2002) 2 Bom CR 754].
21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Du9 Shastri [(1986) 2 WLN 713 (Raj)] followed and reiterated in the case of Ram Prasad [AIR 1998 Raj 185 : (1998) 3 Cur CC 183] is the correct view. The view taken in the case of Floriano Armando Luis [(2002) 2 Bom CR 754] cannot be said to have laid down a correct law and is accordingly overruled.
22. In the view that we have taken, we hold that the appellants have failed to discharge the burden that they have contributed towards the purchase of property at 38, Koregaon Park, Pune from any independent source of income and failed to prove that they were co-owners of the property at 38, Koregaon Park, Pune. This being the core ques.on, on this score alone, the appeal is liable to be dismissed."
10. ThereaDer, in Man Kaur v. Hartar Singh Sangha, 2010 (10) SCC 512, this Court referred to its earlier decisions including Janki Vashdeo Bhojwani (supra) and concluded thus in paras 17 & 18:
Page 19 of 3119 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) "17. To succeed in a suit for specific performance, the plain.ff has to prove: (a) that a valid agreement of sale was entered into by the defendant in his favour and the terms thereof; (b) that the defendant commi9ed breach of the contract; and (c) that he was always ready and willing to perform his part of the obliga.ons in terms of the contract. If a plain.ff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obliga.ons in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross-examina.on on that issue. A plain.ff cannot obviously examine in his place, his a9orney-holder who did not have personal knowledge either of the transac.on or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient.
Therefore, a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an a9orney- holder of the person concerned.
18. We may now summarise for convenience, the posi.on as to who should give evidence in regard to ma9ers involving personal knowledge:
(a) An a9orney-holder who has signed the plaint and ins.tuted the suit, but has no personal knowledge of the transac.on can only give formal evidence about the validity of the power of a9orney and the filing of the suit.
(b) If the a9orney-holder has done any act or handled any transac.ons, in pursuance of the power of a9orney granted by the principal, he may be examined as a witness to prove those acts or transac.ons. If the a9orney-holder alone has personal knowledge of such acts and transac.ons and not the principal, the a9orney-holder shall be examined, if those acts and transac.ons have to be proved.
(c) The a9orney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transac.ons Page 20 of 31 20 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of .me had personally handled or dealt with or par.cipated in the transac.on and has no personal knowledge of the transac.on, and where the en.re transac.on has been handled by an a9orney-holder, necessarily the a9orney-holder alone can give evidence in regard to the transac.on. This frequently happens in case of principals carrying on business through authorised managers/a9orney-holders or persons residing abroad managing their affairs through their a9orney-holders.
(e) Where the en.re transac.on has been conducted through a par.cular a9orney-holder, the principal has to examine that a9orney-holder to prove the transac.on, and not a different or subsequent a9orney-holder.
(f) Where different a9orney-holders had dealt with the ma9er at different stages of the transac.on, if evidence has to be led as to what transpired at those different stages, all the a9orney-holders will have to be examined.
(g) Where the law requires or contemplated the plain.ff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an a9orney-holder. A landlord who seeks evic.on of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognised excep.on to this requirement. Where all the affairs of a party are completely managed, transacted and looked aDer by an a9orney (who may happen to be a close family member), it may be possible to accept the evidence of such a9orney even with reference to bona fides or "readiness and willingness". Examples of such a9orney- holders are a husband/wife exclusively managing the affairs of Page 21 of 31 21 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
11. In a more recent judgment of this Court in the ma9er of A.C. Narayanan v. State of Maharashtra (2014) 11 SCC 790, this Court again considered the earlier judgments, par.cularly, Janki Vashdeo Bhojwani (supra) and having no.ced that Janki Vashdeo Bhojwani relates to Power of A9orney Holder under CPC, whereas in the ma9er of (A.C. Narayanan), the Court was concerned with a criminal case. It was observed that since criminal law can be set in mo.on by anyone, even by a stranger or legal heir, a complaint under Sec.on 138 of the Nego.able Instruments Act, 1881 preferred by the Power of A9orney Holder is held maintainable and also that such Power of A9orney Holder can depose as complainant.
12. Having no.ced the three judgments of this Court in Janki Vashdeo Bhojwani (supra), Man Kaur (supra) & A.C. Narayanan (supra), we are of the view that in view of Sec.on 12 of the Specific Relief Act, 1963, in a suit for specific performance wherein the plain.ff is required to aver and prove that he has performed or has always been ready and willing to perform the essen.al terms of the contract, a Power of A9orney Holder is not en.tled to depose in place and instead of the plain.ff (principal). In other words, if the Power of A9orney Holder has rendered some 'acts' in pursuance of power of a9orney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the act done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the ma9er of which only the principal can have personal knowledge and in respect of which the principal is en.tled to be cross-examined. If a plain.ff, in a suit for specific performance is required to prove that he was always ready and willing to perform his part of the contract, it is necessary for him to step into the witness box and depose the said fact and subject himself to cross-examina.on on that issue. A plain.ff cannot examine in his place, his a9orney holder who did not have personal knowledge either of the transac.on or of his readiness and willingness. The term 'readiness and willingness' refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness, one without the other being Page 22 of 31 22 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) not sufficient. Therefore, a third party having no personal knowledge about the transac.on cannot give evidence about the readiness and willingness."
32. Thus, when the law requires a party to prove an aspect related to their "state of mind" or "conduct," the individual concerned must typically provide evidence personally, rather than through an a9orney-holder. This applies, for instance, to a landlord seeking evic.on based on "bona fide" need or a purchaser demonstra.ng "readiness and willingness" in a specific performance case. Hon'ble Supreme Court in Rajesh's case aDer referring to various precedents emphasized that the plain.ff must personally tes.fy under oath. Failure to do so or to undergo cross-examina.on may lead to an adverse inference. While the plain.ff's Power of A9orney holder can also tes.fy, but he cannot speak on ma9ers beyond his personal knowledge. In other words, he cannot depose on facts known only to the plain.ff. However, as explained by Hon'ble Supreme Court in Man Kaur's Case (supra), an excep.on exists when an a9orney-holder, such as a close family member, exclusively manages the party's affairs. In such cases, their tes.mony may be accepted even on ma9ers of bona fides or readiness and willingness--for example, a spouse solely handling the affairs of the other.
33. Notably, neither in Rajesh's case (supra) nor in Janki Vashdeo Bhojwani (supra), Man Kaur (supra) & A.C. Narayanan (supra), the effect of Sec.on 120 of the Indian Evidence Act was considered qua competency of a spouse to tes.fy for the other.
34. Sec.on 120 of the Indian Evidence Act provides for the competency of the husband to appear as witness for the wife and vice versa. It reads as under:
"120. Par"es to civil suit, and their wives or husbands. Husband or wife of person under criminal trial. -- In all civil proceedings the par.es to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respec.vely, shall be a competent witness."Page 23 of 31
23 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M)
35. This provision affirms the competency of par.es and their spouses as witnesses in both civil and criminal proceedings. It establishes that individuals directly involved in a case, along with their spouses, are legally permi9ed to tes.fy. In civil disputes concerning rights, obliga.ons, or property, both par.es are considered competent witnesses, and their spouses may also tes.fy, if their evidence is relevant. This means that either party can provide tes.mony in support of their claims or defense, and their spouse can do the same if relevant to the case. The law does not bar spousal tes.mony, acknowledging its poten.al significance to the case.
36. The above rule of law appears to be enunciated on the well- founded Indian mythology, as per which husband and wife are believed to be one person and not separate. It is in consonance with the concept of Ardha Nareshwar. Even in the western culture, wife is referred as a be9er half i.e., to be the part of same person. In these circumstances, this Court is of the view that while considering Sec.on 120 of the Indian Evidence Act, viz-a-viz the decisions of Hon'ble Supreme Court in Rajesh Kumar v. Anand Kumar and Janki Vashdeo Bhojwani v. Indusind Bank Ltd. and Ors. etc, the husband and wife can depose for one another and as such, husband of the plain.ff can give oral evidence, which shall be confined to the facts within his knowledge. There is no bar on the part of the husband to depose on behalf of the plain.ff-wife, though the statement is to be confined to the facts within his knowledge. Same view has been taken by Allahabad High Court in "Rajni Shukla v. The Special Judge Banda" 2007 (40) AWC 4176 and in "Munni Devi v. Sona Devi" Writ Appeal No.11660 of 2009 decided on 09.09.2014.
37. In Shenbagavalli Vs Kallaichelvi S.A.No.120 of 2008 decided on 30.11.2020 by High Court of Judicature at Madras, it has been held as under:
"21. For close to a century and a half, Courts in India have generally accepted the view that a spouse is a competent witness for the other spouse, though without raising a pointed issue on the possibility of Sec.120 breaching best evidence rule. See: T. Rangaswami. v. T. Aravindammal [AIR 1957 Madras 243], K. Saroja Vs Valliammal Ammal [1996-II-MLJ 199], T.J Ponnen v M.C Page 24 of 31 24 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) Varghese [AIR 1967 Kerala 228], Kurella Naga Druva Vudaya Bhaskar Rao v Galla Jankiamma [(2009) 6 ALT 164], Muralidhar Pinjani v Sheela Tandon of [(2007) 3 MP LJ 506), Sant Footwear v Daya Bindra [2014 AIR CC 1154] to men- .on a few. A harmonious and a literal interpreta.on of Sec.120 with the rest of the provisions of the Evidence can only lead to a posi.on that the spousal com- petency granted under it is unrestricted, and this has stabilized firmly as the generally accepted view."
38. S.ll further, even Hon'ble Supreme Court in Rajesh's case aDer referring to various precedents though emphasized that the plain.ff must personally tes.fy under oath and the plain.ff's Power of A9orney holder cannot speak on ma9ers beyond his personal knowledge, but as explained by Hon'ble Supreme Court in Man Kaur's Case (supra), an excep.on exists when an a9orney-holder, such as a close family member, exclusively manages the party's affairs. In such cases, their tes.mony may be accepted even on ma9ers of bona fides or readiness and willingness--for example, a spouse solely handling the affairs of the other.
39. Thus, though there cannot be any dispute as to the principles of law enunciated in Janki Vashdeo Bhojwani's case; Man Kaur's case and Rajesh Kumar's case but when husband or wife depose on behalf of the plain.ff- spouse, then the said principle of law will not be applicable. A non-li.gant spouse is a competent witness for the other spouse to li.ga.on. Sec.on 120 of the Indian Evidence Act permits the husband to give evidence in place and instead of his wife and vice versa even in the absence of a wri9en Authority or Power of A9orney. Such a witness is en.tled to depose not only the facts within his/her knowledge but also within the knowledge of his/her spouse.
40. In view of legal posi.on as above, it is held that PW7 Sampooran Singh being the husband of one of the plain.ffs Smt. Surinder Kaur was competent to depose on behalf of the said plain.ff.
41. Apart from above, it is very important to no.ce that Sampooran Singh has been involved in the transac.on since beginning. So much so, since beginning, defendant No.1 Kishan Chand (Vendor) himself has been Page 25 of 31 25 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) acknowledging Sampooran Singh to be the person represen.ng the plain.ffs. As is evident from the record, subsequent agreement dated 10.06.1985 Ex.P20 was executed by defendant No. 1-Kishan Chand and it was signed on behalf of the plain.ffs by Sampooran Singh.
42. The most important circumstance showing that defendant No.1- Kishan Chand was acknowledging Sampooran Singh as the person represen.ng the plain.ffs is the legal no.ce dated 23.04.1986 (Ex.PW3/A), which was sent by defendant No.1 himself through his counsel. This legal no.ce was addressed to Sampooran Singh. It is important to no.ce para Nos.1, 2 and 3 of this no.ce, which read as under:
"1. That you on behalf of others had entered into an agreement on 10.6.1985 with my client for the purchase of land situated at village Dulhepur, Tehsil Ballabgarh, Dis3. Faridabad from my client in support of which the agreement had been signed by you.
2. It had been se3led in the said agreement entered between the par es that you shall be bound down to make the sale-deed in favour of the purchaser within a period of one month from the date of decision of the par on proceedings in respect of the lands in ques on.
3. That though an earlier agreement had been entered by Shri Balbir Singh on 28.4.84 with my client in respect of the same lands situated at village Dulhepur, Tehsil Ballabgarh, Dis3. Faridabad owned and possessed by my client, a8er agreement dt. 28.4.84 wherein the purchaser was under obliga on to get the sale-deed executed in his favour within a period of one month from the date of decision of the par on proceedings finally decided in favour of my client, but another agreement was entered by you in respect of the same land in ques on on 10.6.85 consequent upon which the earlier agreement dt. 28.4.84 stood terminated."
43. It is clear from the above no.ce Ex.PW3/A that defendant No. 1 acknowledged the fact that Sampooran Singh had entered into the agreement dated 10.06.1985 with him i.e. Kishan Chand for purchase of the suit land vide agreement dated 10.06.1985 and that it had been se9led amongst them that Page 26 of 31 26 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) par.es will be bound down to make sale deed in favour of the purchaser within a period of one month from the date of decision of the par..on proceedings. Further, there is clear reference of the earlier agreement dated 28.04.1984, as per which the purchaser was under obliga.on to get the sale deed executed in his favour within a period of one month from the date of decision of the par..on proceedings finally decided in favour of the other party but another agreement was entered by him i.e. Sampooran Singh in respect of the same land in ques.on on 10.06.1985.
44. Although in this legal no.ce Ex.PW3/A, it is claimed by defendant No.1 that earlier agreement dated 28.04.1984 stood terminated but as has earlier been no.ced that the agreement to sell dated 10.06.1985 (Ex.P20) clearly s.pulates that all other condi.ons of agreement dated 28.04.1984 shall remain as it is, which clearly shows that the earlier agreement was also alive.
45. Even the reply dated 30.06.1986 (Ex.P23) to the above legal no.ce was sent by Sampooran Singh on behalf of the plain.ffs, which fact is not disputed by the defendant No.1.
46. S.ll further, when on comple.on of the par..on proceedings, formal possession of the land allo9ed to the defendant No.1-Kishan Chand was given to him, Rapat No.460 dated 30.05.1986 Ex.P34 was duly signed by Sampooran Singh, showing the comple.on of the term of the agreement dated 28.04.1984, as per which the plain.ffs will be bound to take possession of the land, which will be allo9ed to defendant No.1 on par..on. In case, Sampooran Singh had nothing to do with the transac.on, he would not have signed the Rapat Roznamcha regarding the delivery of possession, along with Kishan Chand
- vendor.
47. All the aforesaid facts and circumstances clearly indicate that Sampooran Singh had all along been associated with the transac.on executed between the par.es and now, the defendant No.1 is estopped from claiming that Sampooran Singh could not appear as a witness on behalf of the plain.ffs.
Page 27 of 3127 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) It is so held also in view of the Sec.on 120 of the Indian Evidence Act, as has already been discussed.
48. Moving ahead, as per the terms and condi.ons of the agreement to sell dated 28.04.1984 to be read with supplementary agreement dated 10.06.1985 executed between the par.es, defendant No. 1-Kishan Chand was required to obtain Income Tax Clearance Cer.ficate from competent authority. Not only this, he was required to get the muta.on regarding par..on order incorporated in the Revenue Record.
49. There is nothing on record to suggest that defendant No. 1 completed any of the above pre-condi.ons for execu.on of the sale deed as per the terms and condi.ons of the agreement. It has been held by Hon'ble Supreme Court in P. D'Souza v. Shondrilo Naidu 2005(1) CCC 131 that ques.on of readiness and willingness also depends upon the ques.on as to whether the defendant did everything, which was required of him to be done in terms of the agreement to sell.
50. Thus, where performance of intending sale is condi.onal upon certain acts to be performed by the seller, buyer needs to perform his part only aDer those acts are performed by the seller.
51. In the present case, defendant No.1-vendor himself having not performed his part of contract, he cannot ques.on the readiness and willingness of the plain.ffs to perform their part of contract.
52. On account of the en.re discussion as above, it is held that Courts below did not commit any error in coming to the conclusion that plain.ffs had successfully proved readiness and willingness on their part to perform their part of contract and rather, it is defendant No.1-owner, who was at fault in not taking steps to complete the terms required for execu.on of sale deed as men.oned in the agreements to sell Ex.P18 and P20.
Plea rela"ng to limita"on:
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53. The conten.on of Ld. Senior Advocate to the effect that the suit was barred by limita.on, has also no merit. None of the agreements Ex.P18 and P20 specifies any specific date for execu.on of the sale deed. It is dependent upon the performance of some of the terms by the defendant-vendor, inasmuch as he was required to obtain Income Tax Clearance Cer.ficate and to get the muta.on sanc.oned regarding the par..on.
54. Vide no.ce dated 23.04.1986 Ex.PW3/A sent by defendant No.1 to Sh. Sampooran Singh on behalf of the plain.ffs, though it was stated by the vendor that he was ready to execute the sale deed within 15 days but it was men.oned that he had applied for the Income Tax Clearance Cer.ficate. It was not men.oned that he had obtained the Income Tax Clearance Cer.ficate. This fact was specifically stated in the reply dated 30.06.1986 Ex.P23 sent by Sampooran Singh on behalf of the plain.ffs to Kishan Chand - defendant N: 1, sta.ng that as per the informa.on collected by him, he (defendant No.1) had not got the muta.on sanc.oned regarding the par..on nor had obtained the Income Tax Clearance Cer.ficate.
55. In these circumstances, when defendant himself had to fulfil some of the condi.ons, which he failed to do, so cause of ac.on to file the suit for specific performance had not arisen .ll the date of refusal by the defendant vendor. As such, suit filed by the plain.ffs cannot be held to be barred by limita.on and so, the Courts below did not commit any error in holding the suit to be within limita.on.
Dispute rela"ng to possession :
56. There is also dispute rela.ng to possession, inasmuch as it is plain- .ffs' claim that they are in possession of suit land, whereas on the other hand, it is claimed that pursuant to an agreement to sell dated 17.07.1986 Ex.DW3/A, Kishan Chand had handed over the possession to defendant No.2 through his A9orney- defendant No. 3.
57. The lower courts correctly observed that, under the agreement to sell dated 28.04.1984, vendor Kishan Chand explicitly transferred possession of Page 29 of 31 29 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) his share of the land to the vendees (plain.ffs). This was reaffirmed in the sub- sequent agreement dated 10.05.1985 (Ex.P20). Since par..on proceedings were ongoing, it was agreed that the plain.ffs would accept possession of the land ul.mately allo9ed to defendant No.1 without objec.on. Upon the conclu- sion of the par..on, formal possession was granted to Kishan Chand, as recorded in the Rapat Roznamcha, with Sampooran Singh represen.ng the vendees at the .me. Consequently, the plain.ffs received the specific por.on of land that had been allocated to Kishan Chand's share.
58. Not only this, regarding the existence of tubewell, plain.ffs have produced the electricity bills and receipts thereof, which have been duly proved by the tes.mony of PW-2 Mahinder Singh, an official of HSCB, as per which the electricity connec.on was sanc.oned in favour of Balbir Singh (plain.ff) for a tubewell, which is situated in Killa No. 16 as per the applica.on dated 24.08.1987 on deposi.on of necessary security. The said killa is part of the suit land. This Killa had come to the share of brother of defendant No.1 in the par.- .on proceedings, for which he was duly compensated.
59. S.ll further, the agreement to sell dated 17.07.1986 (Ex.DW-3/A) indicates that as per it, defendant No. 1 had handed over only the Malkana pos- session to defendant No. 2 i.e. only the symbolic possession was given and not the actual physical possession. In fact, actual physical possession could not have been given by defendant No.1 to defendant No.2, since the actual possession had already been given by him to the plain.ffs.
60. In no way, defendant N: 2 can be held as a bonafide purchaser in the above facts and circumstances. Said defendant has not even sought specific performance based upon agreement dated 17.07.1986 (Ex.DW-3/A) .ll date. Said agreement has been rightly found to be collusive between defendants inter se to deprive the plain.ffs the fruits of prior agreements in their favour.
61. As such, it is held that Courts below rightly concluded that it was the plain.ffs, who were in possession of the suit land pursuant to the agree- ment to sell.
Page 30 of 3130 of 31 ::: Downloaded on - 04-04-2025 01:03:29 ::: Neutral Citation No:=2025:PHHC:043213 RSA-3880-1998 (O&M) Conclusion:
62. On account of the en.re discussion as above, this Court does not find any merit in the present appeal. The findings returned by the Courts below are based upon proper apprecia.on of evidence. Learned counsel for the appel-
lants could not point out any misreading of evidence or misapprecia.on of evi- dence on the part of the Courts below. This Court does not find anything, which is contrary to the legal posi.on.
63. As such, holding the present appeal to be devoid of merit and finding no scope for interference in the concurrent findings, the present appeal is hereby dismissed.
Pending applica.on(s), if any, also stands disposed of.
(DEEPAK GUPTA)
JUDGE
01.04.2025
Nee"ka Tuteja
Whether speaking/reasoned? Yes
Whether reportable? Yes
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