Punjab-Haryana High Court
Karnail Singh And Another vs Raj Kumari Amrit Kaur And Another on 18 February, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No. 1714 of 2013 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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RSA No. 1714 of 2013
Date of decision : February 18, 2014
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Karnail Singh and another
............Appellants
Versus
Raj Kumari Amrit Kaur and another
...........Respondents
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CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
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Present: Mr. Ramesh Goyat, Advocate for the appellants.
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RAKESH KUMAR GARG, J (ORAL)
This is plaintiffs' second appeal challenging the judgments and decrees of the Courts below, whereby their suit for permanent injunction restraining the defendants from alienating the suit land was dismissed.
Briefly stated the case of the appellants is that Raj Kumari Mahipender Kaur, daughter of Rani Narinder Kaur inherited the suit property on demise of her mother, who herself had inherited the same from her parents as one of the legal heirs of her mother. Raj Kumari Mahipender Kaur had entered into an agreement to sell with the plaintiffs on 24.6.2001 for sale of suit property @ Rs.70,000 per acre. The plaintiffs paid a sum of Rs.1,65,000/- as advance to Raj Kumari Mahipender Kaur on 24.6.2001, whereas the balance amount Kukreja Ritu 2014.03.22 12:27 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1714 of 2013 2 was to be paid at the time of registration of the sale deed. According to the appellants, it was an understanding between the parties that the registration of the sale deed shall be done within one month of the decision of appeal against the order of learned Sub Divisional Magistrate, Panchkula filed by the occupancy tenants of the total land referred to in the plaint which was pending before the Commissioner, Ambala. It was further averred that when Raj Kumari Mahipender Kaur asked for more money from plaintiff no.1 they paid a sum of Rs.35,000/- on 29.6.2001 in furtherance to the already paid amount of Rs.1,65,000/- in the presence of witnesses and the said payment was acknowledged by the endorsement made at the back of the last page of the agreement to sell. The said agreement was notarised on 30.6.2001 in Shimla. Raj Kumari Mahipender Kaur died on 26.7.2001. The suit property has been inherited by the defendants because Raj Kumari Mahipender Kaur died unmarried. After becoming owners, defendants are now trying to alienate the suit property. It was further averred that despite repeated requests to the defendants not to alienate the suit property, in any manner, they have outrightly refused the request, hence the present suit.
Upon notice, defendant no.1/respondent no.1 appeared and filed written statement raising various preliminary objections. On merits, all the averments made on behalf of the plaintiffs were denied and it was stated that the agreement to sell was a forged and fabricated document. It was further stated that no such agreement was executed by Raj Kumari Mahipender Kaur. It was further stated Kukreja Ritu 2014.03.22 12:27 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1714 of 2013 3 that she was neither owner nor competent to execute the agreement to sell as she herself had no title in the suit property on the date of alleged execution of agreement to sell in question. Hence the dismissal of the suit was prayed.
Defendant no.2 also filed the written statement on similar lines as that of defendant no.1.
From the pleadings of the parties, the following issues were framed:
1. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed?.OPP.
2. Whether the plaintiffs have no locus-standi to file the suit?.OPD.
3. Whether the agreement to sell in question is vague, indefinite and is contingent upon unknown and uncertain event?. OPD
4. Whether the plaintiffs have not approached the Court with clean hands?. OPD.
5. Whether the suit of the plaintiffs is not maintainable in the present form?.OPD.
6. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?.OPD.
7. Relief.
Thereafter the parties were called upon to lead evidence in support of their respective claims.
The trial Court vide judgment and decree dated 16 .3. 2011 held that the suit was not maintainable Kukreja Ritu 2014.03.22 12:27 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1714 of 2013 4 in the present form. Issue no.2 was also decided against the plaintiffs whereas issue no. 4 & 6 were decided as not pressed.
Against the aforesaid judgment and decree of the trial Court, plaintiffs filed an appeal before the lower Appellate Court and the same was also dismissed vide the impugned judgment and decree dated 4.12.2012.
Still not satisfied, the plaintiffs have filed the instant appeal submitting that the following substantial questions of law arises in this appeal:
a. Whether the judgments and decree under challenge are illegal, void and not warranted under facts and circumstances of the case and the same are against law and facts available on the file?
b. Whether the judgment and decree passed by learned first appellate Court is perverse and liable to be set aside?
c. Whether the plaintiffs succeed to prove the agreement to sell and are therefore, entitled to the relief of permanent injunction?
In support of his case, learned counsel for the appellants has vehemently argued that Courts below have failed to consider the facts of the case and evidence led by the appellants in its true perspective. In fact, the entire evidence produced on record by the appellants has gone unrebutted and unchallenged and thus there Kukreja Ritu 2014.03.22 12:27 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1714 of 2013 5 were no reasons to disbelieve the genuine claim of the appellants. It is further the case of the appellants that execution of the agreement in question stands proved and in view thereof they were entitled to the injunction as prayed till the decision of the appeal in the surplus area case and thus the substantial questions of law, as noticed above, do arise in this appeal and the impugned judgments and decrees of the Courts below are liable to be set aside.
I have heard the learned counsel for the appellants and perused the impugned judgments and decrees of the Courts below.
It is not in dispute that Raj Kumari Mahipender Kaur had inherited property from her mother. It is further not in dispute that the defendants are the real sisters of Mahipender Kaur and they have inherited the property left behind by Mahipender Kaur. Further the said land has been declared surplus and the matter was pending before the Commissioner, Ambala. However, the surplus matter was subsequently decided by the Commissioner vide order Ex. PK and has been sent back to the Collector to decide the case afresh. Thus, it cannot be disputed before this Court that title of Raj Kumari Mahipender Kaur to the suit land is still not clear. The plaintiffs are seeking injunction on the strength of agreement to sell in their favour, whereas the defendants have taken a stand that the agreement to sell in question is forged and fabricated document as Raj Kumari Mahipender Kaur was in hospital on the alleged date of execution of the agreement. Both the Courts below, on appreciation of evidence, have recorded a concurrent finding that agreement to sell in question Kukreja Ritu 2014.03.22 12:27 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1714 of 2013 6 has not been proved. In this regard, observations of the lower Appellate Court may be noticed at this stage.
"14. The execution of the agreement was denied, therefore, the onus on the plaintiffs became heavier. The plaintiffs had examined Karnail Singh. He is one of the plaintiffs. Karma Chand, PW-2 also supported the plaintiffs and stated that Mahipinder Kaur had executed the agreement and a sum of Rs.1,65,000/- was paid as advance and on 29.6.2001, Mahipinder kaur had sent a word asking for more money and a sum of Rs.35,000/- was paid and a receipt was executed at the back of the agreement and he was a witness. He had stated the agreement was entered at Mashobra in the presence of Raj Kumar Advocate, Balwant, K.C Garg, his son and Karnail Singh.
15.Balwinder Singh, Security guard of Mahinpinder Kaur, PW-5 stated that the agreement was executed at the instance of Mahipinder Kaur by a lawyer and it was read over to the parties and the parties had put their signatures but in the cross- examination, the witness was unable to answer about the contents of the agreement. He stated that the agreement was notarized on 30.6.2001.
16.The plaintiffs had produced Amit Garg and K.C Kukreja Ritu 2014.03.22 12:27 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1714 of 2013 7 Garg and their affidavits were tendered but they were not produced for their cross-examination.
17.The defendants on the other hand had summoned the record from Indus hospital to show the falsity of the claim. The record which was produced show that Mahipinder Kaur was admitted in the hospital on 23.6.2001. She had celluliits in both the legs, thrombophlebities, deep vein thrombosis. The detailed history of the ailment is described in the treatment record. The patient had been vomiting for the last 40 days and there was swelling in abdomen. The patient had come to the hospital with swelling in the legs and was advised admission. The doctor had recorded a detailed history about the patient. It was now for the plaintiffs to show that Mahipinder Kaur had come out of the hospital and had executed an agreement. The record shows that each time the patient left the hospital, it was noted. The purpose of the visit outside was also recorded. Some persons had come to meet her and she had refused to meet those persons. It would be necessary to mention here that the persons who had come to meet Mahipinder Kaur were the persons ion whose favour she had Kukreja Ritu 2014.03.22 12:27 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1714 of 2013 8 executed a GPA which she had cancelled on 30.6.2001.
18.The record reveals that an application had been presented before the Sub Registrar on 30.6.2001. Mahinpinder Kaur was admitted in Indus hospital. She wanted to get a power of attorney cancelled and was not in a position to go to the Sub Registrar office. The Sub Registrar was requested to come to the hospital. An application EX.D2/A was therefore submitted to the Sub Registrar. The Sub Registrar had gone to the hospital and Mahipinder Kaur had cancelled the GPA executed in favour of Paramjeet. The persons who were important witnesses were anot examined. They were the stamp vendor, the notary and the lawyer who had identified Mahipinder Kaur. The execution of the agreement had not been proved. If Mahipinder Kaur had gone herself and purchased stamp papers, she would have put her signatures on the register. L.A-Khan had attested the agreement. Raj Kumar Advocate had identified Mahipinder Kaur. Their statements were necessary. The main witnesses had been kept away. The agreement was notarised on 30.6.2001. On that Kukreja Ritu 2014.03.22 12:27 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1714 of 2013 9 day, Mahipinder Kaur was admitted in the hospital. All these circumstances prove the falsity of the claim of the plaintiffs."
In view of the aforesaid observations of the lower Appellate Court, counsel for the appellants was unable to find fault with the findings so recorded with regard to the agreement to sell in question.
At this stage, it may also be noticed that it is well settled that when equally efficacious remedy is available, no relief in view of Section 41(h) of the Specific Relief Act, 1963 can be granted. In the instant case as per clause no.3 of the agreement Ex. PW-1/A, the sale deed was to be executed within one month from the decision of the appeal (appeal in the surplus area case) which was decided on 13.6.2003 and thus having accrued cause of action to file a suit for specific Performance of the agreement in question, appellants failed to seek such a relief and have filed for the instant suit.
In any case in view of the findings recorded above, no inference is warranted by this Court in this Regular Second Appeal.
The appeal is dismissed holding that no substantial question of law arises.
February 18, 2014 ( RAKESH KUMAR GARG )
ritu JUDGE
Kukreja Ritu
2014.03.22 12:27
I attest to the accuracy and
integrity of this document
Chandigarh