Punjab-Haryana High Court
Ram Kishan And Another vs Bijender Mann Alias Vijender Mann And ... on 16 September, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.4946 of 2011
Date of decision: 11.09.2013
Ram Kishan and another ......Appellant(s)
Versus
Bijender Mann alias Vijender Mann and others ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr.Vijay Kumar Jindal , Advocate for the appellants.
Mr. Bhoop Singh, Advocate for respondents No.1 to 3.
Mr. Bhag Singh, Advocate for respondents No.4 and 5.
Rakesh Kumar Garg, J.
Respondents No.1 to 3 filed a suit for specific possession of the suit land by way of specific performance of the agreement dated 10.11.2004 and further declaration that sale deed dated 7.4.2005 was null and void, being result of fraud and collusion inter alia pleading that defendants No.1 and 2 (now respondents No.4 and 5) represented that the land in dispute has come to their share after the death of their father Risal Singh. The aforesaid defendants entered into an agreement to sell the suit land in their favour @ Rs.7,57,000/- per acre. An agreement to sell was got typed at Sub Tehsil Madlauda on 10.11.2004 and was executed in the presence of the witnesses. The plaintiffs made part payment of Rs.6,60,000/- to defendants No.1 and 2 in the presence of the witnesses who issued a receipt in this regard to the plaintiffs. The execution and registration of the sale deed was to be executed upto 31.5.2005. The Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh aforesaid payment of Rs. 6,60,000/- was deposited in the Punjab National Bank, Branch Ludana, District Jind and defendants No.1 and 2 in part performance of this agreement to sell had handed over actual physical possession to the plaintiffs. Defendants No.3 and 4 (now appellants) had an evil eye on the land. Though it was an open secret in the village that land had been purchased by the plaintiff-respondents, the appellants hatched a conspiracy, who are cousin brothers of respondents No.4 and 5 with the connivance of witnesses, stamp vendor and scribe, to grab the property under agreement in favour of the plaintiffs and consequently, an agreement to sell dated 7.10.2004 was executed vide which the suit land was agreed to be sold by defendants No.1 and 2 in favour of defendants No.3 and 4 @ Rs.7,00,000/- per acre and allegedly had paid a sum of Rs.6,25,000/- to defendants No.1 and 2 (respondents No.4 and 5). In fact, the aforesaid agreement to sell dated 7.10.2004 was ante dated on forged and fabricated stamp papers. It was further pleaded that on the basis of this forged and fabricated ante dated agreement to sell, defendants No.1 and 2 (respondents No.4 and 5), executed a sale deed in favour of appellants on 7.4.2005 for a sale consideration of Rs.19,05,000/- and in fact, no amount whatsoever was paid by the appellants to defendants No.1 and 2 (respondents No.4 and 5) and thus, the sale deed was a paper transaction which was got registered with the sole aim to deprive them from a valuable right to purchase the land in terms of the agreement to sell dated 10.11.2004. It is the further case of the plaintiff-respondents that on coming to know of this fraud, plaintiff No.2 got registered a criminal case bearing FIR No.88 dated 29.4.2005 with Police Station, Madlauda under sections 420/467/468/120-B IPC which is still pending. It was further pleaded that the plaintiffs were always ready and willing and are still ready Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh and willing to pay the balance sale consideration to defendants No.1 and 2 (respondents No.4 and 5) and were requesting the appellants to treat the sale deed dated 7.4.2005 as null and void and to execute the sale deed in favour of the plaintiffs in terms of the agreement dated 10.11.2004 on receipt of balance sale consideration but the defendants refused. Hence, the present suit.
Upon notice, defendants No.1 and 2 (respondents No.4 and 5) appeared and filed their joint written statement whereas the appellants filed a separate joint written statement.
In the written statement filed on behalf of defendants No.1 and 2 (respondents No.4 and 5), various preliminary objections were raised. It was stated that the suit was based on false and fabricated documents and was time barred.
On merits, it was contended that defendants No.1 and 2 (respondents No.4 and 5) never approached the plaintiffs to sell their agriculture land. The story propounded by them is false and concocted. In fact, they had entered into an agreement to sell with appellants on 7.10.2004 and there was no question of entering into any agreement to sell with the plaintiff-respondents. Thereafter, the amount deposited in the Bank by them was received from appellants and Rs.35,000/- was deposited by defendants No.1 and 2 (respondents No.4 and 5) out of their own savings. Defendants No.1 and 2 (respondents No.4 and 5) never received any cash payment from the plaintiffs. It was further contended that they never handed over the actual physical possession of the suit land to them. Rather, they have handed over the possession of the disputed property to the appellants and they were in actual physical possession over the same. It was further contended that sale consideration of Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.19,05,000/- was actually settled between the parties. It was the actual market rate at the time when the land was sold and the same was paid by the appellants to defendants No.1 and 2 (respondents No.4 and 5) and thus, the sale deed was legal, valid and binding upon the parties. The plaintiffs tried to grab the suit land depriving the appellants of their valuable rights. They were illiterate ladies and had sold 70 kanals 16 marlas of their land to their cousin brother Ram Kishan and their nephew Shamsher Singh son of Ram Kishan and had received Rs.6,25,000/- on 7.10.2004 from Shamsher Singh on account of earnest money. Sh. Dharambir, Advocate, who is practicing at Panipat and their brother, who are neighbours, had obtained the thumb impressions of defendants No.1 and 2 (respondents No.4 and 5) on the pretext that they will apply for power connection and respondents No. 4 and 5 who are illiterate ladies put their thumb impressions on certain papers. On the basis of those papers, the plaintiffs might have prepared the false documents and have filed the present suit to grab the suit land. However, other allegations of the plaintiffs were denied and dismissal of the suit was prayed for.
The appellants, in their written statement, have taken the same plea as defendants No.1 and 2 (respondents No.4 and 5). Apart from the plaintiffs' plea, it was further contended that they were owner in possession and were genuine predecessor of the suit land from defendants No.1 and 2 (respondents No.4 and 5). They were bona fide purchasers for valuable consideration. They have paid the entire sale consideration of Rs.19,05,000/- to defendants No.1 and 2 (respondents No.4 and 5) and in consideration thereof, respondents No.4 and 5 have executed the impugned sale deed in their favour. The possession was also delivered to them. Other allegations were denied and dismissal of the suit was prayed. Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh
The plaintiffs filed the replication controverting the pleas taken in the written statement and asserting those of plaint.
From the pleadings of the parties, the following issues were framed:
"1. Whether the plaintiff is entitled to relief of specific performance of agreement to sell dated 10.11.2004 and the sale deed dated 7.4.2005 is declared to be null and void? OPP
2. Whether the plaintiff has no locus standi to file the present suit? OPD
3. Whether the plaintiffs have no cause of action? OPD
4. Whether suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
5. Whether the plaintiffs have not come to the court with clean hands? OPD
6. Relief."
After hearing learned counsel for the parties and appraisal of oral as well as documentary evidence, the trial Court decreed the suit of the plaintiffs vide impugned judgment and decree dated 12.5.2010 against which the appellants only i.e. defendants No.3 and 4 filed an appeal before the First Appellate Court which was also dismissed.
Still not satisfied, defendants No. 3 and 4 have filed the instant appeal challenging the aforesaid judgments and decrees of the Courts below submitting that the following substantial questions of law arise in this appeal for consideration of this Court:
"(i) Whether the ld. Courts below should have framed Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh the specific issue of fraud regarding sale deed dated 7.4.2005 and agreement to sell dated 7.10.2004 which was executed by respondents No.4 and 5 in favour of present appellants?
(ii) Whether the sale deed has been proved an act of fraud beyond reasonable doubt in view of Supreme Court judgment 1976 C.L.J 166 titled Union of India Vs. Chaturbhuj Patel and Co.?
(iii) Whether suspicion can take the place of proof while proving fraud as has been admitted by both the ld.
Courts below?
(iv) Whether both the ld. Courts below were justified in exercising the jurisdiction under section 16-C and 20 of the Specific Performance Act and to set aside the sale deed dated 7.4.2005 and agreement dated 7.10.2004 the respondents No.4 and 5 to execute the sale deed in favour of the respondents No.1 to 3."
At this stage, it is relevant to note that during the course of preliminary hearing, after noticing the contentions raised, this Court passed the following order on 6.1.2012 :
"Contention of the counsel for the appellants- defendants is that in the agreement to sell dated 10.11.2004, it was recited that in part performance of this agreement to sell, actual possession had been handed over the plaintiffs. It is also contended that in the suit, the relief of permanent injunction had also been prayed for and in the plaint it was also alleged that Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh defendants No.3 and 4 have succeeded in part in dispossessing the plaintiffs.
It is further contended that in view of the amendment in Section 17(1A) with effect from 24.9.2001 read with Section 49(c) of the Registration Act, 1908 and Section 53A of the Transfer of Property Act, 18882 and Article 23A of the Schedule I of the Indian Stamp Act, 1899 with effect from 24.9.2001, the agreement wherein possession has been handed over was required to be registered and in the absence of registration, the suit for specific performance could not have been decreed. Reliance was accordingly placed upon Gurbachan Singh Vs. Raghubir Singh, 2010 (2) Punjab Law Reporter 511. However, this Court in Birham Pal and others vs. Niranjan Singh and another, 2011(2) Law Herald (Punjab and Haryana) 1136 in RSA No.5064 of 2010 has, held that such an unregistered agreement can be the basis of the suit for specific performance of such agreement.
Notice of motion for 06.02.2012.
In the meantime, operation of the judgments and decrees of the Courts below shall remain stayed till further orders.
However, since there is a conflict regarding the legal position as to whether the suit for specific performance can be decreed on the basis of unregistered agreement to sell in view of Section 17(1A) Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh of the Registration Act, 1908 and the other provisions referred to above, if the plaintiffs claim to be in possession in part performance of the agreement. Therefore, it would be appropriate, if the matter is referred to the Division Bench to decide the said issue of law.
Let the papers of the present appeal be placed before the Hon'ble Chief Justice for referring the matter to the Hon'ble Division Bench."
It is a matter of record that on the basis of the aforesaid reference, a Division Bench vide its judgment dated 12.10.2012 held as under:
"(a) a suit for specific performance, based upon an unregistered contract/agreement to sell that contains a clause recording part performance of the contract by delivery of possession or has been executed with a person, who is already in possession shall not be dismissed for want of registration of the contract/agreement;
(b) the proviso to Section 49 of the Registration Act, legitimises such a contract to the extent that, even though unregistered, it can form the basis of a suit for specific performance and be led into evidence as proof of the agreement or part performance of a contract.
We, therefore, express our respectful disagreement with the judgment in Gurbachan Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh Singh vs. Raghubir Singh(supra) and affirm the judgment in Mool Chand Mindhra v. Smt. Indu Bala, P.L.R, 378 (R.S.A.No.2056 of 2011). The reference is answered accordingly. The appeal be set down for hearing, as per roster".
Thereafter, the matter has been placed before this Court for hearing.
It may be noticed that in view of the judgment dated 12.10.2012 of the Division Bench, argument raised on behalf of the appellants on 6.1.2012 does not survive. According to the counsel for the appellant, in view of the pleadings wherein fraud was specifically pleaded by respodnents No.1 to 3 agaisnt the appellants as well respondents No.4 and 5, the charges of fraud should have been proved like a criminal case. To raise this issue, counsel for the appellant has relied upon a judgment of the Hon'ble Supreme Court reported as "Union of India versus Chaturbhuj Patel and Company 1976 Current Law Journal 166 wherein it has been held as under:
"It is held that fraud like any other charge, whether made in civil or criminal pleadings, must be established beyond reasonable doubt, however, suspicious may be the circumstances, however, strange the coincidence and however grave the doubt, suspicion alone can never take place of proof."
Learned counsel for the appellant has also relied upon a judgment cited as A.L.N. Naranyanan Chettyar and another versus Official Assignee High Court Rangoon and another AIR 1941 Privy Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh Council 93 wherein it was held that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be establised beyond reasonable doubt. According to the learned counsel for the appellant suspicion alone can never take the place of proof but both the courts below have ignored the aforesaid settled principle of law while decreeing the suit of the plaintiff-respondents as the respondents have failed to prove the sale deed dated 7.4.2005 as an act of fraud beyond resonable doubt. According to the counsel for the appellant, the main grounds taken by the Courts below to declare the sale deed as sham transaction are as under:
(a) That the sale deed dated 7.4.2005 was executed for a total sum of Rs.19,05,000/- despite the fact that it was agreed between the appellants as well as respondents No.4 and 5 to alienate the suit land @ Rs.7 lacs per acre.
(b) The appellants as well as respondents No.4 and 5 have failed to plead the manner of payment of the entire sale consideration by the appellants to respondents No.4 and 5.
(c ) The register of stamp vendor reveals overwritings. No amount was paid before the Sub Registrar at the time of execution of sale deed Ex.P5 dated 7.4.2005 wherein it was mentioned in the agreement that the balance sale consideration of Rs.19,05,000/- shall be paid before the Sub Registrar.
Counsel for the appellants has further argued that the aforesaid facts may be enough to raise the suspicion of the plaintiffs that the agreement to sell in their favour was result of fraud but the same was not enough to assume a character of valid proof to be made itself for returning findings in favour of the plaintiffs as the aforesaid facts are not Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh enough to establish the act of fraud. It is further submitted that the sale deed has been declared to be a sham transaction on presumptions and not on documents. Counsel for the appellants contends that from the findings of the Courts below, it is apparently clear that the Courts below have proceeded on the assumption that fraud was not to be proved by respondents No.1 to 3 but the same was to be dispelled by the present appellants even without any proof and substance on collusion of fraud by them and thus, in view of the settled proposition of law that fraud is to be proved by a person who registers it beyond a reasonable doubt like a criminal charge, the judgments and decrees of the Courts below are liable to be set aside.
On the other hand, learned counsel representing respondents No.1 to 3 has vehemently argued that the Courts below on appreciation of evidence have recorded a concurrent finding that the alleged sale deed in favour of appellants is an act of fraud and no interference is warranted in the aforesaid findings and therefore, the instant appeal is liable to be dismissed.
I have heard learned counel for the appellants and perused the impugned judgments and decrees of the Courts below.
At this stage, it may be noticed that there is no dispute with regard to the execution of the agreement to sell dated 10.11.2004 in favour of the plaintiff-respondents. It has been further proved that respondents No.4 and 5 also received a sum of Rs.6,60,000/- as earnest money and in token thereof, thumb marks were affixed by both the vendors on the agreement to sell. The said receipt was duly witnessed by Rajbir son of Rukman, one of the vendor, therefore, it cannot be said that respondents No.4 and 5 were not having advise/help of any adult male member. Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh Moreover, the execution of the aforesaid agreement stands duly corroborated from the testimony of Sandeep and Ram Kishan, who appeared as PW-10 and PW-11 respectively, who have also deposed with regard to payment of earnest money to respondents No.4 and 5.
It is the case of the appellants that sale deed dated 7.4.2005 was executed by respondents No.4 and 5 in pursuance of a prior agreement dated 7.10.2004 in their favour @ Rs.7 lacs per acre for a total land measuring 70 kanals 16 marlas. However, it is a matter of record that the total sale consideration in the sale deed Ex.P5 has been shown to be Rs.19,05,000/- only. No explanation is forthcoming as to how the sale deed was executed for such a less amount. Moreover, there is no reference of the agreement dated 7.10.2004 in the sale deed Ex.P5 dated 7.4.2005. Even in the written statement of the vendors and subsequent vendors/appellants, does not reveal passing of any sale consideration or mode of payment thereof. There is a complete silence regarding place of payment and manner of payment, if any.
From the aforesaid facts, it can be revealed that no payment was passed in the sale deed Ex.P-5. Rather the weak attempt to prove the payment only further weakened the case of the appellants as they have made contradictory and vague statements. It could not further be disputed that there were cuttings in the register of the stamp vendor. A report of the Forensic Science Laboratory has further proved that thumb impressions of Panmeshwari Devi were obtained later on and the stamp papers were sold ante dated so that the agreement can be prepared on the date prior to the agreement of plaintiffs i.e 10.11.2004, so that the rights of the plaintiffs- respondents could be defeated.
Both the Courts below in view of the overwhelming evidence Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh on record, have returned the findings to the effect that the sale deed dated 7.4.2005 in favour of the appellants is an act of fraud.
In fact, by raising argument, counsel for the appellants want this Court to take a different view on reappreciating of evidence than the view taken by the Courts below. I am afraid, this Court while exercising its jurisdiction under Section 100 CPC has no such discretion to interfere in the concurrent findings only because a different view can be taken on reappreciation of evidence.
Thus, I find no merit in this appeal.
No other argument has been raised.
No substantial question of law, as raised, arises in this appeal. Dismissed.
September 11, 2013 (RAKESH KUMAR GARG)
ps JUDGE
Saini Pushpinder
2013.09.24 17:22
I attest to the accuracy and
integrity of this document
High Court Chandigarh