Punjab-Haryana High Court
Pritam Singh And Others vs Darshan Singh And Another on 13 August, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.4433 of 2012 (O&M)
Date of decision: 13th August, 2013
Pritam Singh and others
Appellants
Versus
Darshan Singh and another
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present: Mr. Baltej S. Sidhu, Advocate for the appellants.
RAKESH KUMAR GARG, J.
Appellants, who are the Legal Representatives of Jugraj Singh (defendant in the suit), have filed the instant appeal challenging the judgments and decrees of the Courts below whereby the suit of the plaintiff-respondents for possession by way of specific performance of agreements to sell (Ex. P3 and P5) was decreed on 19.02.2011 by the Additional Civil Judge (Sr. Division), Malout and further their appeal against the aforesaid judgment and decree of the trial Court was dismissed by the District Judge, Sri Muktsar Sahib vide judgment and decree dated 09.05.2012.
Brief facts of the case, as emerging out from the impugned judgments and decrees, are that Jugraj Singh (since deceased) agreed to sell 38 Kanals of land situated at Dabwali Rahurianwali in favour of the plaintiff-respondents on 02.08.2004 @ ` 2,55,000 per Killa and Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 2 received an amount of ` 3.00 lakh as earnest money from them and executed an agreement to sell dated 02.08.2004 in their favour in the presence of witnesses. The date for execution of the sale deed was stipulated as 25.04.2005. The plaintiff-respondents appeared before the Sub-Registrar, Malout with balance sale consideration amount and other expenses on the agreed date of execution of the sale deed; however, the defendant did not turn up. Subsequently, on the request of the defendant, the date for execution of the sale deed was extended from 25.04.2005 to 30.12.2005 on the basis of another supplementary agreement dated 01.06.2005 (Ex.P3) in favour of the plaintiff- respondents. According to the plaintiffs, the land which was agreed to be sold was mortgaged with Kartar Singh son of Gajjan Singh son of Hari Singh for a sum of ` 1,60,000. The plaintiffs remained ready and willing throughout and were still ready and willing to perform their part of the contract. They further approached the defendant before the date fixed to execute the sale deed in their favour. They also appeared in the office of Sub Registrar, Malout on 30.12.2005 for getting the sale deed registered but the defendant did not turn up.
Thus, the plaintiffs filed a suit for permanent injunction on 08.07.2005 restraining the defendant from alienating the suit land, so as to prevent frustration of the agreement to sell, the date whereof was subsequently extended to 30.12.2005 for execution of the sale deed. Plaintiffs accordingly prayed for a decree of specific performance of the agreement to sell dated 02.08.2004, which was later-on supplemented Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 3 on 01.06.2005. The plaintiffs also prayed for recovery of ` 6.00 lakh as alternative relief.
Upon notice, defendant-Jugraj Singh appeared in Court and filed written statement raising various preliminary objections. It was submitted on his behalf that he has his agricultural land at village Faqarsar, Tehsil Gidderbaha and in village Dabwali Rahurianwali. His case of surplus land of village Faqarsar was pending with the authorities and this fact was in the knowledge of the plaintiffs. They had agreed to purchase 38 Kanals of land owned and possessed by him at village Faqarsar, Tehsil Gidderbaha. The plaintiffs had agreed to get the sale deed of the suit land executed whenever it is freed from the surplus authorities and in case the land was not declared free from surplus proceedings, then the agreement shall be deemed to have been cancelled for sale thereof. The defendant further submitted that the plaintiffs wanted to grab his land situated at village Dabwali Rahurianwali and they got the agreement in question scribed in connivance with marginal witnesses and typist of the agreement to sell in question. He had executed sale deed of 12 Kanals of land situated at village Faqarsar, which was free from any dispute, in favour of the plaintiffs on 17.08.2004 for a sale consideration of ` 3,16,500 and withdrew from the agreement to sell dated 02.08.2004 to which the plaintiffs agreed. The defendant believed the plaintiffs and accompanied them to Malout where they got a blank stamp paper thumb marked from him in good faith on the pretext of cancellation of Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 4 the agreement to sell dated 02.08.2004; and thus, dismissal of the suit was prayed.
The plaintiff-respondents filed replication in support of their averments and in denial of the case of Jugraj Singh, as set up by him in his written statement.
From the pleadings of the parties, the following issues were framed by the trial Court:
1. Whether plaintiff is entitled to specific performance of agreement dated 02.08.04? OPP
2. Whether plaintiff is entitled to alternative relief of recovery, if so at what rate? OPP
3. Whether suit is not maintainable in the present form? OPD
4. Whether plaintiff has no cause of action and locus standi to file the suit? OPD
5. Relief."
On conclusion of evidence and arguments, the trial Court, vide judgment and decree dated 19.02.2011, decreed the suit of the plaintiffs for relief of specific performance of the agreement to sell in question. While decreeing the suit of the plaintiff-respondents, the trial Court on appreciation of evidence found that execution of the agreement to sell in question stood proved whereas the allegations of fraud allegedly practiced upon the defendant by the plaintiffs in getting the agreement to sell in question executed were not proved by the defendant-Jugraj Singh as he had not led any evidence to prove that Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 5 the agreements in question were the result of fraud and misrepresentation; whereas it was obligatory upon him to set forth the particulars of fraud and prove the same.
Aggrieved from the aforesaid judgment and decree of the trial Court, the appellants filed an appeal before the first appellate Court as defendant-Jugraj Singh had died on 07.10.2006, i.e. during the pendency of the proceedings and the appellants had come on record as his Legal Representatives. However, while dismissing the appeal of the defendant-appellants, the first appellate Court affirmed the findings of the trial Court to the effect that appellants had failed to prove any fraud committed by the plaintiff-respondents with regard to execution of the agreements to sell (Ex.P3 and P-5) on the record. It is also relevant to mention that the defendant-appellants had also filed an application for leading additional evidence to prove the copy of sale deed dated 17.08.2004 executed by Jugraj Singh. The said application was opposed by the plaintiff-respondents. The prayer of the appellants for leading additional evidence was declined on the ground that the said document was very much within the knowledge of the appellants when they led evidence before the trial Court and no explanation is forthcoming for withholding the said sale deed in the trial Court, and therefore, there was no ground to allow the application for leading additional evidence at such stage.
Still not satisfied, the defendant-appellants have filed the instant appeal challenging the judgments and decrees of the courts Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 6 below. In the grounds of appeal, the appellants have proposed the following substantial questions of law for consideration of this Court:
1. Whether the finding recorded by the Courts below are perverse?
2. Whether the application under Section O41R27 has wrongly been dismissed by the Learned Lower Appellate Court?
3. Whether a fraud has been played upon the appellants and their predecessor-in-interest by the respondents?
4. Whether the Courts below have misread the evidenced lead by the appellants?
5. Whether the Learned Courts below have exercised their discretion under Section 20 of the Specific Relief Act, 1963 against the facts of the case which ought to have been exercised in favour of the appellants?"
In support of his case, learned counsel for the appellants has vehemently argued that in the instant case, the defendant-Jugraj Singh had taken a specific plea that fraud was played upon him by the plaintiffs as he had not entered into the agreement to sell dated 02.08.2004 pertaining to the land situated in village Dabwali Rahurianwali; and actually the surplus area case of the land situated in village Faqarsar was pending and the plaintiffs were aware of the pendency of the said case and had agreed to purchase the land measuring 38 Kanals owned and possessed by him which was situated in the Revenue Estate of village Faqarsar, Tehsil Gidderbaha. Jugraj Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 7 Singh was a rustic and illiterate person whereas the plaintiffs were very clever persons and instead of mentioning the name of village Faqarsar in the agreement to sell, they mentioned the land situated in village Dabwali Rahurianwali. When they came to know that they will not be successful in the fraud, they compelled and forced the defendant to execute the sale deed with regard to 12 Kanals of land situated in village Faqarsar, which was free from any dispute, in their favour on 17.08.2004 for a sale consideration of ` 3,16,500, out of which the defendant had already received a sum of ` 3.00 lakh as earnest money vide agreement to sell dated 02.08.2004 and received the balance sale consideration of ` 16,500 from the plaintiffs prior to registration of the sale deed dated 17.08.2004; and in this way part of the earnest money received vide agreement to sell dated 02.08.2004 was adjusted at the time of execution of the sale deed dated 17.08.2004 and thus, the fraud, as alleged that defendant-Jugraj Singh never agreed to sell the land at village Dabwali Rahurianwali, is proved. Moreover, the appellants had moved an application for leading additional evidence before the lower appellate Court to produce and prove on record the copy of the sale deed dated 17.08.2004 to prove the aforesaid facts;
however, the same was declined by the said Court illegally. Since the said application was allowed along with the main appeal, the appellants are well within their right to raise such an issue before this Court.
On the basis of the aforesaid submissions made, learned counsel for the appellants has vehemently argued that the findings of Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 8 the Courts below are perverse and thus, impugned judgments and decrees of the courts below be set aside and suit of the plaintiff-
respondents be dismissed as the agreements to sell in question are the result of fraud practiced upon them by the plaintiff-respondents.
I have heard learned counsel for the appellants and perused the impugned judgments and decrees of the courts below.
This Court has further perused the pleadings of the parties, the evidence and documents produced before the courts below, with the help of learned counsel for the appellants.
From the submissions of learned counsel for the appellants, it may be noticed that the case for specific performance of the agreements to sell in question has been defended by the appellants on the ground that the defendant-Jugraj Singh never agreed to sell the land in question vide agreements to sell in question; and in fact, a fraud was played upon him by the plaintiffs who have got the blank papers thumb marked from the defendant-Jugraj Singh on the pretext of cancelling the agreement to sell dated 02.08.2004. The defendant believed the plaintiffs and they obtained the thumb impression of defendant-Jugraj Singh on blank stamp papers in good faith.
At this stage, it is relevant to refer to the pleadings as raised by the defendant in the written statement, which read thus:
"That plaintiffs have no cause of action or locus standi to file the present suit. It is to mention here that the defendant has his agricultural land in village Faqarsar, Tehsil Gidderbaha and in village Dabwali Rahurianwali, Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 9 Tehsil Malout but the surplus case of the defendant regarding his land of Faqarsar is pending with the surplus authorities and the plaintiffs knew it fully well regarding the pendency of such a dispute. They agreed to purchase the land measuring 38 kanals owned and possessed by the defendant which is situated within the revenue estate of village Faqarsar, Tehsil Gidderbaha. The defendant is ruralite, rustic and illiterate person who does not know reading and writing. The plaintiffs had agreed to get the sale deed scribed of the said land whenever it is released by the surplus authorities after the announcement of decision and in case surplus case is not decided the transaction shall be deemed to have been cancelled automatically and it was also agreed by the parties to the said agreement that the defendant shall have the liberty to withdraw from the agreement without any penal cause. The plaintiffs are clever persons and with the intention to grab the land of the defendant situated in the village Dabwali Rahurianwali got the agreement scribed with the connived with the attesting witnesses and the typist of the alleged agreement dt. 2.8.04 but after the execution of the agreement the plaintiffs compelled and forced the defendant to execute the sale deed. Finding no other alternative the defendant executed a sale deed of 12 Kanals of land area of village Faqarsar which was free from any dispute in favour of the plaintiffs on 17.8.04 for a consideration of Rs.3,16,500/- out of which the defendant had already received a sum of Rs.3,00,000/- on account of earnest money vide agreement dt. 2.8.04 and he received the balance consideration of Rs.16,500/- from the plaintiffs prior to the registration of the sale deed. And after the registration of said sale deed the defendant withdrew from Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 10 the agreement dated 2.8.04 to which the plaintiffs happily agreed but after this the plaintiff's brought the defendant to Malout and asked him to cancel the said agreement 2.8.04 to avoid any future complication. The defendant believed the plaintiffs and accompanied the plaintiffs to Malout where the plaintiffs got a blank stamp paper thumb marked by the defendant in good faith that the agreement dt. 2.8.04 has been cancelled. Thereafter the defendant demanded a copy of cancellation deed. The plaintiffs avoided the matter. The defendant never entered into any agreement with the plaintiffs for the sale of his land as alleged by the plaintiffs. The plaintiffs with the intention to grab the land of the defendant have forged and fabricated the alleged agreement dt. 1.6.05. It is therefore requested to kindly dismiss the false and frivolous suit of the plaintiffs with exemplary costs."
A perusal of the aforesaid pleadings of the defendant would show that he had taken a defence, as argued before this Court, of the fact that plaintiff-respondents have played a fraud upon the defendant and have got his thumb mark on a blank stamp paper under the pretext of cancellation of the agreement to sell dated 02.08.2004. However, a perusal of the impugned judgments and decrees of the courts below would show that there is no evidence at all to prove the aforesaid facts of fraud, as pleaded by the appellants. There is no evidence to show that the alleged sale deed dated 17.08.2004 for a sale consideration of ` 3,16,500 pertaining to the land measuring 12 Kanals situated in village Faqarsar was executed by the defendant in pursuance of the agreement to sell dated 02.08.2004 set up by the plaintiff-respondents. Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 11 As per the plaintiffs, the agreement to sell dated 02.08.2004 was executed by defendant-Jugraj Singh for selling the land measuring 38 Kanals situated in village Dabwali Rahurianwali @ ` 2,55,000 per Killa on receipt of ` 3.00 lakh as earnest money; whereas according to the appellants, defendant-Jugraj Singh had agreed to sell the land situated at village Faqarsar against which surplus area proceedings were pending. However, there is not an iota of evidence on record to prove such a fact, as alleged by the appellants. The alleged sale deed dated 17.08.2004 pertaining to 12 Kanals of land situated in village Faqarsar, sought to be set up by the appellants by way of leading additional evidence, can not prove ipso facto the fact that the said sale deed was executed by defendant-Jugraj Singh to adjust the sum of ` 3.00 lakh received by him on account of earnest money vide agreement dated 02.08.2004 in question. However, there is no evidence on record to prove that after registration of the said sale deed, it was agreed to cancel the agreement dated 02.08.2004 and for that purpose the parties have gone to Malout where the plaintiffs got the blank papers thumb marked from the defendant-Jugraj Singh and prepared a supplementary agreement dated 01.06.2005.
It may further be noticed that there is no evidence to prove the factum of any surplus area proceedings pending against the appellants with regard to the land situated at village Faqarsar, which according to them was agreed to be sold by defendant-Jugraj Singh, their predecessor in interest.
Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 12
At this stage, it may further be noticed that though defendant-Jugraj Singh in his written statement had taken a plea that he had agreed to sell the land pertaining to village Faqarsar, which was a subject matter of surplus area proceedings, and the plaintiffs who are clever persons have got scribed the agreement to sell dated 02.08.2004 in question in connivance of the witnesses and the Scribe for the land situated in village Dabwali Rahurianwali, and therefore, the defendant-Jugraj Singh executed the sale deed dated 17.08.2004 for the land measuring 12 Kanals situated at village Faqarsar to settle the dispute between the parties; still the said sale deed was not produced before the trial Court. This fact alone shows the hollowness in the arguments raised, as no prudent man, who is diligently pursuing his remedy and who is having assistance of a Lawyer, would commit such a mistake, as alleged in the application for leading additional evidence. Though, an issue has been raised before this Court that the appellate Court has wrongly rejected the prayer of the appellants for leading additional evidence to prove the aforesaid facts by placing on record the sale deed dated 17.08.2004; yet no effort has been made by the appellants to move such an application for leading additional evidence along with the alleged sale deed dated 17.08.2004 for consideration of this Court. Neither the said document dated 17.08.2004, sought to be produced on record by way of leading additional evidence, has been shown to this Court by the appellants.
Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.4433 of 2012 (O&M) 13
In this view of the matter, once execution of the agreements to sell in question stands duly proved (in fact, signatures of defendant- Jugraj Singh on the agreements to sell in question have not been disputed) and there is no evidence to prove the defence of fraud pleaded by the appellants in their written statement; no fault can be found with the findings recorded by both the courts below that execution of the agreements to sell in question stood proved and further the plaintiff-respondents are entitled to the decree, as prayed.
No other argument has been raised.
Thus, the substantial questions of law, as raised before this Court, do not arise at all.
Dismissed.
(RAKESH KUMAR GARG) JUDGE August 13, 2013 rps Singh Rattan Pal 2013.08.19 18:46 I attest to the accuracy and integrity of this document High Court, Chandigarh