Punjab-Haryana High Court
Smt. Sarita Devi Jain vs Ram Mehar on 5 December, 2008
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.2638 of 2007(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.2638 of 2007(O&M)
Date of decision: 5.12.2008
Smt. Sarita Devi Jain ......Appellant
Versus
Ram Mehar ......Respondent
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
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Present: Mr. Nitin Kumar, Advocate for the appellant.
Rakesh Kumar Garg, J.
This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby her suit for specific performance of the agreement to sell dated 19.6.1992 has been decreed against the respondent to the extent of 1/3rd share only of respondent in the suit property.
Briefly stated, the case of the plaintiff-appellant is that Chandgi Ram, father of the respondent, was a big land owner with Shamlat rights in Thok Jatan of Rohtak. He died intestate leaving behind the respondent as his sole legal heir. The respondent executed an agreement to sell dated 19.6.1992 in favour of the appellant qua the suit land. The respondent had undertaken to get the requisite mutation qua the suit land sanctioned in his favour and to execute the requisite sale deed in favour of the appellant as per the agreement dated 19.6.1992. However, the respondent failed to execute the requisite sale deed in favour of the appellant despite repeated requests and a legal notice by the appellant. Through the suit , the appellant sought a decree for possession of suit land by way of specific performance of contract of sale dated 19.6.1992 in his favour.
The respondents contested the suit by filing written statement. RSA No.2638 of 2007(O&M) 2 He raised preliminary objections, inter alia, pleading bar of limitation, absence of locus-standi, unlawful nature of impugned agreement dated 19.6.1992, want of cause of action, ancestral nature of suit property, absence of proper valuation of suit, fraud in execution of impugned agreement etc. On merits, the respondent stated that rights of Shamlat Deh of Thok Jatan, Rohtak have not been determined separately because of absence of partition. The respondent pleaded that no one can claim exclusive possession over any part of joint land till partition takes place. The respondent denied that he was the only legal heir of Chandgi Ram and claimed that Chandgi Ram left behind two daughters, namely, Ram Pyari and Mahakali also. The respondent asserted that above-said Ram Pyari and Mahabir son of Mahakali (since deceased) along with him are owners- in-possession of suit land, in equal shares. The respondent admitted that he entered into an agreement of sale with the appellant to the extent of his 1/3rd share in suit land for a consideration at the rate of Rs.120/- per sq. yard. The respondent alleged that taking advantage of his old age, infirmity and illiteracy, the appellant procured his thumb impression upon the impugned agreement to sell after fraudulently mentioning the price of land as Rs.12/- per sq.yard. The respondent alleged that the contents of said agreement to sell were not read over to him. He denied having received Rs.23,200/- from the appellant at any stage. The respondent prayed that the suit of the appellant be dismissed.
The trial Court vide its judgment and decree dated 29.5.2002 dismissed the suit of the appellant.
Aggrieved by the said judgment and decree of the trial court, the appellant filed an appeal. While allowing the appeal to the extent of decreeing the suit of the appellant for specific performance of the contract to the extent of 1/3rd share in the suit property, the Lower Appellate Court RSA No.2638 of 2007(O&M) 3 found that the respondent had inherited only 1/3rd share of his father- Chandgi Ram whereas vide impugned agreement to sell dated 19.6.1992, the respondent is shown to have sold the entire share of his father-Chandgi Ram by showing himself as the sole legal heir of Chandgi Ram. Thus, he could not have sold the share inherited by his sisters and that being so, impugned agreement to sell dated 19.6.1992 should be enforced only to the extent of 1/3rd share of the respondent.
Still aggrieved against the aforesaid judgment and decree of the Lower Appellate Court dated 2.6.2006, the plaintiff has filed the instant appeal claiming that she is entitled to the specific performance of the agreement to sell in its totality on the ground that when the respondent had represented himself to be sole owner of the suit property he cannot be allowed to wriggle out of his promise made to the appellant. Learned counsel for the appellant has also argued that once it is established that there was a valid agreement to sell, nothing more can be read into agreement and it was not open to the respondent to raise the plea of defect in title. In support of his argument, learned counsel has relied upon a judgment of this Court in Hukum Chand v. Hari Singh 2007(1) PLR 102.
I have heard learned counsel for the appellant.
Undisputedly, Chandgi Ram was the owner of the property in dispute, which was agreed to be sold by the respondent and after Chandgi Ram's death, the same was mutated vide Ex.D-1 in the name of the respondent and his two sisters. It could also not be disputed by the learned counsel for the appellant that the respondent had no authority to make the agreement to sell on behalf of his sisters. The argument as raised by the learned counsel for the appellant could help the appellant, only if the suit property was shown to be exclusively in the name of the respondent in the revenue record at the relevant time. Admittedly, the suit RSA No.2638 of 2007(O&M) 4 property was not recorded exclusively in the name of the respondent at the relevant time. Under the law, the respondent cannot be permitted to sell the property belonging to the others. The judgment cited by the learned counsel for the appellant is of no help to him. In this case, the respondent has no title vested in him to the extent of 2/3 rd share of the property in dispute and therefore, he was not competent to alienate the same.
For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises.
Dismissed.
December 5, 2008 (RAKESH KUMAR GARG) ps JUDGE