Punjab-Haryana High Court
Parduman Singh And Another vs Kartar Kaur And Others on 31 January, 2011
Author: Mohinder Pal
Bench: Mohinder Pal
-1-
Regular Second Appeal No. 1471 of 2009 and
Cross Objections No.15-C of 2010.
IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA
AT CHANDIGARH
...
Date of Decision: January 31, 2011.
Regular Second Appeal No. 1471 of 2009 and
Cross Objections No.15-C of 2010.
Parduman Singh and another ... Appellants
VERSUS
Kartar Kaur and others ... Respondents
CORAM : HON'BLE MR.JUSTICE MOHINDER PAL.
1. Whether Reporters of Local papers may be allowed to see
the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
Present: Mr. Harkesh Manuja, Advocate,
for the appellants.
Mr. S.K. Chawla, Advocate,
for respondents Nos. 2 to 5.
-.-
MOHINDER PAL, J.
Plaintiffs-appellants have filed Regular Second Appeal No.1471 of 2009 aggrieved against the judgments and decrees passed by the Courts below, whereby their suit for proprietary -2- Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010.
possession in respect of the land in dispute measuring 15 Kanals 18 Marlas by way of specific performance of the agreement of sale dated 16.11.1988 was dismissed. The trial Court, vide judgment and decree dated 22.9.2008 dismissed the suit filed by the plaintiff-appellants holding that no agreement to sell dated 16.11.1988 was ever executed between the parties. The trial Court also returned a finding in favour of the defendants-respondents that the suit filed by the plaintiffs-appellants was barred by Order 2 Rule 2 of the Code of Civil Procedure (for short `the Code'). The plaintiffs-appellants went in appeal against the judgment and decree passed by the trial Court. The lower appellate Court reversed the finding of the trial Court regarding the execution of the agreement and held that the agreement to sell dated 16.11.1988 was entered into between the plaintiffs-appellants and defendant-respondent No.1. The lower appellate Court also recorded a finding in favour of the plaintiffs-appellants that they had been ready and willing to perform their part of the agreement. It was also held by the lower appellate Court that defendants-respondents Nos. 2 to 4 (mentioned as respondents Nos.2 to 5 in the memo of parties attached with Regular Second Appeal No.1471 of 2009) had failed to prove that any agreement was in existence before the execution of the sale deed dated 12.2.1990. However, the lower appellate Court dismissed the appeal filed by the plaintiffs- -3-
Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010.
appellants on the ground that the suit was barred under Order 2 Rule 2 of the Code. Cross Objections No.15-C of 2010 have been filed by defendants-respondents Nos. 2 to 5 to reverse the aforesaid findings returned by the lower appellate Court in favour of the plaintiffs-appellants. Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010 are being disposed of by this common judgment.
I have heard Mr. Harkesh Manuja, Advocate, appearing for the appellants and Mr. S.K. Chawla, Advocate, appearing for respondents Nos. 2 to 5 and have gone through the records of the case.
Defendant-respondent No.1 had entered into an agreement to sell dated 16.11.1988 with the plaintiffs-appellants regarding the land measuring 15 Kanals 18 Marlas. As per the agreement, a sum of Rs.70,000/- had been received by defendant-respondent No.1 as earnest money and the date for execution of the sale deed and for payment of the balance sale consideration was fixed as 16.1.1989. On the date fixed, the appellants went to the office of the Sub Registrar, Moga, but respondent No.1 did not turn up. Accordingly, the sale deed could not be executed. Apprehending that respondent No.1 may not alienate the suit property, appellants per force filed a suit for permanent injunction with a prayer for restraining respondent No.1 from alienating the suit property in any manner. The said suit for permanent injunction was filed on 27.1.1989. Since the -4- Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010.
plaintiffs-appellants had always been ready and willing to perform their part of the agreement and to get the sale deed executed in their favour, they filed the instant suit for specific performance before the trial Court on 23.5.1989. The suit was contested by the defendants. Respondent No.1 denied having executed the agreement to sell in favour of the plaintiffs. The other respondents claimed that respondent No.1 had executed a sale deed regarding the suit land in their favour. The respondents also raised objection to the effect that the suit filed by the appellants was barred by Order 2 Rule 2 of the Code. As mentioned above, the trial Court dismissed the suit filed by the appellants by holding that no agreement to sell dated 16.11.1988 had been executed between the appellants and respondent No.1. The trial Court also held that the suit filed by the appellants was barred by Order 2 Rule 2 of the Code. The lower appellate Court reversed the finding of the trial Court regarding the execution of the agreement and held that the agreement to sell dated 16.11.1988 had been entered into between the appellants and respondent No.1. The lower appellate Court also held that the plaintiffs had been ready and willing to perform their part of the agreement. Still further, it was held by the lower appellate Court that respondents Nos. 2 to 5 had failed to prove that any agreement was in existence before the execution of the sale deed dated 12.2.1990. However, the -5- Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010.
lower appellate Court dismissed the appeal filed by the plaintiffs- appellants holding that the suit was barred under Order 2 Rule 2 of the Code.
Respondent No.1, having received a sum of Rs.70,000/- as earnest money from the appellants as per agreement to sell dated 16.11.1988, fixed the date for execution of the sale deed as 16.1.1989. The balance sale consideration was to be received by respondent No.1 on 16.1.1989. On the date fixed, the appellants went to the office of the Sub Registrar, Moga, for getting the sale deed executed from respondent No.1, as is evident from the application Exhibit P.W.4/A moved by the appellants before the Sub Registrar. It shows that the appellants had been ready and willing to perform their part of the agreement. However, respondent No.1 did not turn up before the Sub Registrar either personally or through her attorney. The appellants, apprehending that respondent No.1 may not alienate the suit property, filed a suit for permanent injunction with a prayer for restraining respondent No.1 from alienating the suit property in any manner. The said suit for permanent injunction was filed on 27.1.1989 whereas respondent No.1 executed the sale deed in favour of the other respondents on 12.2.1990. It may be mentioned here that execution of the agreement to sell in favour of the appellants by respondent No.1 stands proved even from the admission of the defendants at the time of cross- -6-
Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010.
examination of Gurmel Singh (P.W.11). It was suggested to Gurmel Singh (P.W.11) that the contesting defendants came to know about the agreement of sale by Kartar Kaur in favour of the plaintiffs only when they received notice of the suit for permanent injunction. Even otherwise, execution of the agreement to sell (Exhibit P.1) in favour of the appellants by Sajjan Singh, validly appointed power of attorney of respondent No.1 Kartar Kaur, stands proved from the statement of Balwinder Singh (P.W.1), who deposed that Ram Singh, attesting witness of this agreement, was his father. He died on 8.4.2007. He was conversant with his handwriting and signatures having seen him writing and signing. He identified the signatures of his father on agreement (Exhibit P.1). Ved Bhushan (D.W.4), Deed Writer, deposed that he had scribed the agreement (Exhibit P.1) in favour of the appellants at the instance of Sajjan Singh, attorney of Kartar Kaur. Kartar Kaur had appointed Sajjan Singh as her attorney, as is evident from the power of attorney dated 30.11.1987 (Exhibit P.W.2/A). This power of attorney was got registered in the office of Sub Registrar, Moga. Kuldeep Singh (P.W.2), an employee in the office of Sub Registrar, Moga, deposed that power of attorney Exhibit P.W.2/A was got executed by Kartar Kaur respondent and was registered in their office under the provisions of Indian Registration Act. It is also proved from the unrebutted report (Exhibit P.W.10/1) of Handwriting and Finger Prints Expert Sanjiv -7- Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010.
Sharma (P.W.10), who had compared the thumb impression of Kartar Kaur on the power of attorney with her thumb impression on the sale deed (Exhibit P.W.3/A) dated 16.11.1987 which was propounded by the appellants in para No.1 of the plaint and to which Kartar Kaur did not deny, that the power of attorney (Exhibit P.W.2/A) dated 30.11.1987 bears the thumb impression of Kartar Kaur. Still further, Kartar Kaur respondent, in her written statement, did not specifically deny the execution of power of attorney. She simply averred that contents of the plaint that such power of attorney had been executed by respondent No.1 in favour of Sajjan Singh were wrong. In her written statement, it was further stated by respondent No.1 that in case it was found that Sajjan Singh was appointed as her attorney, she never authorized him to execute the agreement to sell dated 16.11.19898 in favour of the appellants.
During the course of arguments, it was argued by the learned counsel for respondents Nos. 2 to 5 that as the agreement to sell (Exhibit P.1) did not bear the signatures of the appellants, it was not a valid document. However, I do not find any force in this argument of the learned counsel. In case the appellants did not sign the agreement, it cannot be said that it is not enforceable against respondents Nos. 2 to 5 especially when the execution of the agreement to sell by Sajjan Singh, validly appointed power of attorney of Kartar Kaur respondent No.1 -8- Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010.
in favour of the plaintiffs-appellants stands proved on record, as mentioned above.
The other argument of the learned counsel for respondents Nos. 2 to 5 is that the instant suit for specific performance is barred by the provisions of Order 2 Rule 2 of the Code. However, I do not find any merit in this argument of the learned counsel as well. No doubt in the suit filed by the appellants on 27.1.1989 for permanent injunction restraining respondent No.1 from alienating the suit land in any manner, cause of action for filing a suit for specific performance of the agreement to sell (Exhibit P.1) had already arisen and they did not opt to include the relief of specific performance of the agreement in the suit for permanent injunction, which was ultimately withdrawn on 6.11.1989, but it cannot be said that the instant suit for specific performance was barred under Order 2 Rule 2 of the Code. It has been held by a Division Bench of this
Court in the case of Smt. Bhagwan Kaur vs. Shri Harjinder Pal Singh, 1992 (1) RRR 59 : (1992-2) 101 PLR 643 that the cause of action in the suit for injunction is different than the one in the suit for specific performance. Accordingly, it was held that the provisions of Order 2 Rule 2 of the Code do not bar the subsequent suit for specific performance. Besides, all the parties in this case are residents of Village Singhanwala, Tehsil Moga. When the plaintiffs apprehended about the collusion of -9- Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010.
defendant No.1 with the other defendants that she might sell the suit property to defendants-respondents Nos. 2 to 5, which apprehension of the plaintiffs proved true later on, they had filed the suit for permanent injunction against respondent- defendant No.1 restraining her from alienating the suit property in any manner. That suit was later on withdrawn and the instant suit for specific performance was filed. Under the circumstances, the instant suit is not barred by the provisions of Order 2 Rule 2 of the Code.
Before parting with this judgment, it may be mentioned here that the claim of contesting defendants-respondents that the sale deed dated 12.2.1990 (Exhibit D.3) had been executed by defendant No.1 on the basis of agreement dated 28.7.1988 (Exhibit D.7), was rightly negatived by the lower appellate Court. None of the attesting witness of agreement dated 28.7.1988 (Exhibit D.7) was examined. No doubt, Harbaksh Singh (D.W.4), Handwriting and Finger Prints Expert, vide his report (Exhibit D.W.4/1) opined that the agreement (Exhibit D.7) bears the thumb impression of Kartar Kaur, but her thumb impression could easily be obtained by defendants-respondents Nos. 2 to 5 at a subsequent stage by antedating the same (agreement Exhibit D.7). It is the case of the plaintiffs from the very beginning that Kartar Kaur defendant had colluded with other defendants. Still further, when Kartar Kaur filed the -10- Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010.
written statement in this case, she did not propound any agreement from her side in favour of the other defendants. Had this agreement been in existence before the institution of the instant suit, Kartar Kaur would have mentioned about it in her written statement. All these facts show that the agreement (Exhibit D.7) was the result of collusion between defendant Kartar Kaur and other defendants.
In view of the above, the findings recorded by the lower appellate Court that the agreement to sell dated 16.11.1988 was entered into between the plaintiffs-appellants and defendant-respondent No.1; that the plaintiffs-appellants had been ready and willing to perform their part of the agreement; and that defendants-respondents Nos. 2 to 5 had failed to prove that any agreement was in existence before the execution of the sale deed dated 12.2.1990 are affirmed. However, all the findings of the trial Court against the plaintiffs-appellants and that of the lower appellate Court to the effect that the suit of the plaintiffs is barred under Order 2 Rule 2 of the Code are reversed. The net result is that the judgments and decrees passed by both the Courts below dismissing the suit of the plaintiffs for specific performance of the agreement to sell dated 16.11.1988 in respect of the suit land measuring 15 Kanals 18 Marlas are set aside.
Consequently, Regular Second Appeal No. 1471 of 2009 -11- Regular Second Appeal No. 1471 of 2009 and Cross Objections No.15-C of 2010.
is allowed and suit of the plaintiffs-appellants for specific performance of the agreement to sell dated 16.11.1988 in respect of the suit land measuring 15 Kanals 18 Marlas is decreed. There shall be no order as to costs. Resultantly, Cross Objections No.15-C of 2010 filed by respondents Nos. 2 to 5 are dismissed.
( MOHINDER PAL ) January 31, 2011. JUDGE ak