Punjab-Haryana High Court
Mohinder Singh Etc vs Tarsem Singh Etc on 4 November, 2014
Author: Arun Palli
Bench: Arun Palli
RSA No.2696 of 2013(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.2696 of 2013(O&M)
Date of decision: 04.11.2014
Mohinder Singh and others
...Appellants
Versus
Tarsem Singh and others
... Respondents
CORAM: HON'BLE MR. JUSTICE ARUN PALLI
Present: Mr. Amit Jain, Advocate,
for the appellants.
***
1. Whether reporters of local papers may be allowed to
see the judgment? NO
2. To be referred to the reports or not? YES
3. Whether the judgment should be reported in the
digest? NO
***
ARUN PALLI J. (Oral)
Suit filed by the plaintiff was decreed by the trial court vide judgment and decree dated 19.07.2012. Successor- in-interest of Karnail Singh-defendant No.1 and defendants No.2 to 4 filed separate appeals against the said decree and both the appeals were dismissed by the first appellate court on 27.04.2013. This is how, defendants No.2 to 4 are before this court, in this regular second appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.
In short, plaintiff-Tarsem Singh prayed for a decree for possession by way of specific performance of the agreement RAJAN 2014.11.17 16:56 I attest to the accuracy and integrity of this document Chandigarh RSA No.2696 of 2013(O&M) -2- to sell dated 25.06.2004, executed by defendant No.1, as regards land measuring 2 bighas 19 biswas, being 1/6th share out of total land measuring 17 bighas 14 biswas, comprised in khasra numbers as depicted in the plaint. Further, a declaration that sale deed dated 04.05.2005, executed by defendant No.1 in favour of defendants No.2 to 4, as regards land measuring 1 bigha 10 biswas out of the suit property i.e. 2 bighas 19 biswas, was null and void, and a sham transaction. Further, the same was not binding qua the rights of the plaintiff and, was thus, liable to be set aside. It was averred that defendant No.1, namely, Karnail Singh executed an agreement to sell, as regards the suit land in favour of the plaintiff on 25.06.2004. A sum of ` 1,00,000/- were paid to defendant No.1 by way of earnest money. The total sale consideration that was settled between the parties was ` 1,47,500/-. Since the suit land was in the name of father of defendant No.1, namely, Swaran Singh, who had expired, it was agreed between the parties that defendant No.1 would first get the mutation sanctioned in his name and intimate the plaintiff in writing and thereafter a date for execution and registration of the sale deed would be mutually fixed by the parties. It was maintained that mutation No.5968 was sanctioned in favour of defendant No.1 and other legal heirs of Swaran Singh, but Karnail Singh (defendant No.1) breached RAJAN 2014.11.17 16:56 I attest to the accuracy and integrity of this document Chandigarh RSA No.2696 of 2013(O&M) -3- the terms of the agreement, as no intimation in this regard was ever given to the plaintiff. Rather, defendant No.1 sold the land measuring 1 bigha 10 biswas out of the suit property to defendants No.2 to 4, vide sale deed dated 04.05.2005. Thus, defendant No.1 in connivance with the other defendants had played a fraud with the plaintiff. Since possession of the suit property was given to the plaintiff at the time of execution of the agreement but subsequently defendants No.2 to 4 forcibly occupied 1 bigha 10 biswas and as a result, plaintiff lodged DDR No.11 dated 21.05.2005. Since despite repeated requests of plaintiff, defendants refused to accept his claim. Thus, the suit.
Defendant No.1, in a written statement filed by him, pleaded that the suit property was ancestral and co-parcenary and, thus, he had no right to sell the same. Further, the very existence and execution of the agreement in question i.e. dated 25.06.2004 was denied. It was pleaded, that in fact plaintiff was a money-lender and defendant No.1 had borrowed some money from him and in the process, plaintiff might have forged some documents and prepared a false agreement. Since no agreement was ever executed between the parties, there was no occasion of any breach as regards the terms and conditions set out therein. It was denied that the possession RAJAN 2014.11.17 16:56 I attest to the accuracy and integrity of this document Chandigarh RSA No.2696 of 2013(O&M) -4- of the suit property was given to the plaintiff pursuant to the alleged agreement.
In a separate written statement filed by defendants No.2 to 4, execution of the agreement in question and receipt of earnest money was denied for want of knowledge. However, it was admitted that defendant No.1 was the owner of the suit property and the same was in the name of his father Swaran Singh, who had expired. It was denied that the plaintiff was in possession of the suit land or defendants No.2 to 4 had occupied a part thereof illegally or unlawfully. Further, defendants No.2 to 4 were bona fide purchasers for consideration qua land measuring 1 bigha 10 biswas and had no notice regarding the agreement in question.
The trial court, on an analysis of the matter in issue and evidence on record, found that plaintiff had proved the execution of the agreement to sell dated 25.06.2004 (Ex.P1) by examining one of the attesting witnesses, namely, Raghbir Singh. Raghbir Singh (PW2) had clearly deposed that defendant No.1 indeed entered into an agreement to sell qua the suit property at the rate of ` 50,000/- per bigha and earnest money of ` 1,00,000/- was paid to him at the time of execution of the agreement (Ex.P1). Further, he deposed that the agreement (Ex.P1) was got attested from Notary Public, namely, Rama Singla and after the contents thereof were read RAJAN 2014.11.17 16:56 I attest to the accuracy and integrity of this document Chandigarh RSA No.2696 of 2013(O&M) -5- over and understood by defendant No.1, he appended his signatures thereon and so did the attesting witnesses and the plaintiff. Rama Singla, Notary Public, who appeared as PW3, also proved an entry in her register at Sr. No.66 dated 25.06.2004 (Ex.P3). Thus, it was observed that the statement of both the witnesses proved the claim of the plaintiff. Further, it was incumbent upon defendant No.1 to prove the nature of the property being ancestral and co-parcenary but no cogent evidence was led in this regard. So much so, defendant No.1 himself sold a part of the suit property to defendants No.2 to 4, vide sale deed (Ex.P2). The plea set out by defendant No.1 that the agreement in question was a forged and fabricated document remained unsubstantiated on record. His case that plaintiff was a money-lender and since he borrowed some money from him, he might have fabricated an agreement in question in the process, also remained unproved on record. No specific amount that was allegedly obtained was pleaded by the defendant. So much so, in his cross- examination, he admitted that plaintiff was in fact working as a labourer in Hindustan Lever Company. No suggestion was made to the plaintiff that he was a money-lender. Satpal (DW1) did not categorically deny the signatures of Karnail Singh upon Ex.P1. In fact, it was observed that signatures of Karnail Singh upon Ex.P1 and the sale deed (Ex.D1), executed RAJAN 2014.11.17 16:56 I attest to the accuracy and integrity of this document Chandigarh RSA No.2696 of 2013(O&M) -6- by defendant No.1 in favour of defendants No.2 to 4, show that both the documents bear the same signatures. Further, even the stamp papers upon which the agreement in question was reduced in writing were purchased by Karnail Singh, something that was apparent from the records. Whether the plaintiff was ready and willing to perform his part of contract, it was observed that plaintiff had categorically stated in his plaint as well as in his affidavit that he always remained ready and willing to perform his part of contract. And that was sufficient in the given circumstances, as agreement in question was a conditional agreement and was subject to sanctioning of a mutation in favour of defendant and thus, he was to first perform his part of the contract. Sale deed was executed by defendant No.1 in favour of defendants No.2 to 4 on 04.05.2005, and the plaintiff filed the present suit on 07.05.2005, that clearly showed that he always remained ready and willing to perform his part of contract. Particularly, when it was not the case of defendant No.1 that he informed the plaintiff, as regards sanctioning of mutation in his favour. The plea of defendants No.2 to 4, that they were bona fide purchasers, was also discarded as bald statement of DW1 was not sufficient to substantiate that plea. Concededly, plaintiff and all the defendants hailed from the same village and they must have had knowledge qua the agreement in question. RAJAN 2014.11.17 16:56 I attest to the accuracy and integrity of this document Chandigarh RSA No.2696 of 2013(O&M) -7- Further, DDR No.11 dated 21.05.2005, shows that plaintiff was dispossessed by defendants No.2 to 4 out of a part of the suit property and in the circumstances, it was the duty of defendants No.2 to 4 to enquire about the nature and capacity of possession of the plaintiff. Further, testimony of DW2 proved that all the defendants were residing together. It was observed that, once their statements were scrutinized with care it becomes clear that there was a discrepancy even as regards the passing of consideration pursuant to the sale deed (Ex.D1), particularly, when nothing was allegedly passed in the presence of the Registrar. Therefore, it was observed that sale deed dated 04.05.2005 was in fact executed to defeat the rights of the plaintiff and was thus, liable to be set aside. Accordingly, the suit was decreed.
As referred to above, being aggrieved against the said decree, defendant No.1 and defendants No.2 to 4 filed separate appeals. The first appellate court reviewed the matter in issue, evidence on record and on an analysis thereof found itself in concurrence with the view drawn by the trial court and the findings recorded in support thereof. Accordingly, the appeals were dismissed.
I have heard learned counsel for the appellant at length and perused the RSA paper book.
RAJAN 2014.11.17 16:56 I attest to the accuracy and integrity of this document Chandigarh RSA No.2696 of 2013(O&M) -8-
Learned counsel for the appellant simply seeks to reiterate the submissions that were advanced before the courts below and rejected after due and comprehensive consideration. All what he has urged is that from the evidence on record, it could not be proved that the plaintiff was ready and willing to perform his part of contract. Further, though defendants No.2 to 4 hailed from the same village, but there was no evidence on record to prove that they had knowledge qua the agreement in question. Thus, they were bona fide purchasers for consideration without notice.
On a due and thoughtful consideration of the matter in issue, I am of the considered view that the instant appeal is wholly devoid of merit and is liable to be dismissed for the reasons that are being recorded hereinafter. Needless to assert, for the plaintiff to succeed, he was required to prove due and valid execution of the agreement to sell dated 25.06.2004 (Ex.P1). Both the courts have concurrently found that the agreement to sell (Ex.P1) was indeed executed by defendant No.1 in favour of the plaintiff. One of the attesting witnesses of the agreement, namely, Raghbir Singh (PW2) fully proved his sworn affidavit (Ex.PW2/A). He testified that defendant No.2 indeed executed the agreement to sell, dated 25.06.2004, qua the suit property that was agreed to be sold at the rate of ` 50,000/- per bigha and a sum of ` 1,00,000/- RAJAN 2014.11.17 16:56 I attest to the accuracy and integrity of this document Chandigarh RSA No.2696 of 2013(O&M) -9- was paid to defendant No.1 by way of earnest money. He also deposed that the said agreement was attested by Notary Public, namely, Rama Singla. Rama Singla (DW3), Notary Public, duly proved an entry in her register at Sr. No.66, dated 25.06.2004 (Ex.P3), to prove the due and valid execution of the agreement in question. Defendant No.1 had rightly denied the very existence and execution of the agreement to sell, as the same was purported to be a forged and fabricated document. No evidence was led to substantiate this plea. As regards the case set out by defendant No.1 that plaintiff was a money-lender and as defendant No.1 had borrowed money from him, he might have forged some documents in the process and prepared a false agreement, nothing was brought on record to prove that the plaintiff indeed was a money- lender. And defendant No.1 ever obtained any loan from him. Further, neither any date when any such loan was obtained nor the amount that was borrowed could be referred to. So much so, defendant No.1 admitted in his cross-examination that plaintiff was in fact employed in Hindustan Levers Company. I am reminded to point out, at this stage, that defendant No.1 has not chosen to assail the decree passed by the first appellate court. As regards the readiness and willingness of the plaintiff, both the courts have concurrently concluded that the plaintiff specifically pleaded that he always RAJAN 2014.11.17 16:56 I attest to the accuracy and integrity of this document Chandigarh RSA No.2696 of 2013(O&M) -10- remained ready and willing to perform his part of contract and even in his affidavit, he reiterated the same position. Further, the agreement in question was a conditional agreement and as per its terms, defendant No.1 was first required to get the suit property, mutated in his name and then intimate the plaintiff. And whereafter, the date for execution of the sale deed was to be fixed mutually by the parties. Although, the mutation qua the suit property was sanctioned in favour of defendant No.1, but concededly no intimation in this regard was ever given to the plaintiff. Soon after, defendant No.1 executed a sale deed, dated 04.05.2005, in favour of defendants No.2 to 4, without any loss of time, plaintiff filed this suit on 07.05.2005. The plea of defendants No.2 to 4, that they were bona fide purchasers for consideration without notice, was also rightly repelled by both the courts. It was found that all the defendants hailed from the same village. DW2 in his cross-examination admitted that all the defendants were residing together. So much so, the courts below, on a careful consideration and analysis of their testimonies, found that there were discrepancies in their statements as regards passing of consideration qua sale deed (Ex.D1). Further, Sardar Singh (DW6), Namberdar of village Shambhu Kalan, admitted in his cross-examination that late Karnail Singh had wrongly sold a part of the suit property RAJAN 2014.11.17 16:56 I attest to the accuracy and integrity of this document Chandigarh RSA No.2696 of 2013(O&M) -11- measuring 1 bigha 10 biswas to defendants No.2 to 4 on 04.05.2005. He further deposed that defendants No.1 to 4 had in fact connived with each other for execution of the sale deed, dated 04.05.2005. That being so, the plea of defendants No.2 to 4 that they were bona fide purchasers for consideration without notice, was rightly rejected.
In the wake of the position as set out above and the conclusions that have concurrently been arrived at by both the courts below, tThere hardly exists any ground, least plausible in law, to interfere with the decree being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration. Appeal being wholly bereft of merit is, accordingly, dismissed.
( Arun Palli )
November 4, 2014 Judge
Rajan
RAJAN
2014.11.17 16:56
I attest to the accuracy and
integrity of this document
Chandigarh