Punjab-Haryana High Court
Dalbara Singh And Others vs Chhaja Singh And Another on 27 February, 1992
Equivalent citations: AIR1992P&H237, (1993)103PLR125, AIR 1992 PUNJAB AND HARYANA 237, (1993) CIVILCOURTC 535, (1993) 2 LANDLR 433, (1993) 1 PUN LR 125, (1993) 1 RRR 543
JUDGMENT
1. The facts as enfolded in the plaint, briefly, are:--
Defendant-respondent No. 1 (hereinafter referred to as the vendor) owned land measuring 91 Kanals 3 marlas situated in revenue estate of Sheikhan Majra (hereinafter referred to as the suit land); that the same was under mortgage with the plaintiff-appellants (hereinafter the plaintiffs); that the vendor entered into an agreement to sell dated June 14, 1972 with the plaintiffs regarding the land owned by him for Rs. 74,000; in that agreement, it was stipulated that the mortgage amount of Rs. 32,000 payable to the plaintiffs would be adjusted against the sale price, an amount of Rs. 25,500/- was paid to the vendor in cash as earnest money by the plaintiffs at the time of the execution of the agreement to sell and the remaining amount of Rs. 16,500 was agreed to be paid at the time of registration of sale deed, which was to be done by January 25, 1973; that the plaintiffs filed Civil Suit No. 737 on December 14, 1972 against the vendor and some of the defendants for an injunction restraining them from transferring the land, the subject matter of the agreement to sell, to anybody else except the plaintiffs; that the suit was decreed on March 1, 1973; that the vendor in contravention of the agreement to sell dated June 14, 1972 and the Civil Court's decree passed in Civil Suit No. 737 on March 1, 1973 transferred the suit land to the defendant-respondents by sale deeds executed on December 15, 1972, Dec. 15, 1972, March 27, 1974 and March 27, 1974; that on the strength of agreement to sell they were entitled to a decree for specific performance of the agreement to sell and, in the alternative, for recovery of Rs. 25,500.
2. The defendants denied the execution of agreement to sell dated June 14, 1972 in favour of the plaintiffs; that the plaintiffs with the help of Jarnail Singh, Phera Singh and Ujagar Singh secured the thumb impression of Chhaja Singh vendor on several papers in the fields on December 18, 1972 and the agreement to sell might have been forged on those papers; that an FIR in this respect was also lodged at Police Station, Mubarakpur; that Narain Singh and Sardara Singh, plaintiffs Nos. 2 and 3 were arrested by the police in pursuance of the First Information Report; that a decree of injunction dated March 1, 1973 was obtained by the plaintiffs by misleading and coercing the vendor; that some of the defendants were parties to suit No. 737 instituted on December 14, 1972; that on the statement of the plaintiffs in that suit, they were dropped from the array of defendants and the consent decree was obtained against the vendor by misguiding him; that two sale deeds dated December 15, 1972 were executed by the vendor in favour of the defendants regarding one half of the suit land in pursu-
ance of the agreement to sell dated July 1, 1972; that these sale deeds were registered on March 12, 1974 and March 13, 1974 respectively; that thereafter the vendor entered into an agreement to sell dated December 22, 1972 regarding the remaining one half of the suit land with Ralla Singh and in pursuance thereto two sale deeds dated March 28, 1974 were executed in favour of the assignees of the vendee; that no consideration was paid to the vendor under the alleged agreement to sell dated June 14, 1972infavour of the plaintiffs.
3. On the pleadings of the parties, the following issues were framed:--
1. Whether Chhaja Singh, defendant entered into an agreement to sell the suit land to the plaintiffs vide agreement deed dated 14-6-72? OPP
2. Whether the plaintiffs paid Rs. 25,500 as earnest money to defendant Chhaja Singh at the time of execution of agreement dated 14-6-1972? OPP
3. Whether the decree in Suit No. 737 decided on 1-3-73 passed against Chhaja Singh was illegal as alleged? OPD
4. Whether the agreements to sell the suit land dated 1-7-72 and 22-12-72 are fictitious? OPP
5. Whether the sale deeds dated 15-12-1972 and 28-3-74 in favour of the defendants are valid, if so, its effect? OPD
6. Whether the decree obtained by Ralla Singh defendant restraining Chhaja Singh defendant No.1 from selling one half of the suit land to anybody else except Ralla Singh on 14-3-1974 is void and is not binding on the plaintiffs? OPP
7. Whether the plaintiffs were ready and willing to perform their part of the contract? OPP
8. Relief.
4. Issues Nos. 1 and 2 were disposed of together and it was held that the vendor did not execute the agreement to sell dated June 14, 1972 (Ex. P. 3) in favour of the plaintiffs and no earnest money was paid to him; Issue No. 3 was decided against the defendants; under issue No. 4 it was held that agreements to sell dated July 1, 1972 and December 22, 1972 were not fictitious and the issue was decided against the plaintiffs and in favour of the defendants; under Issue No. 5, it was held that sale deeds dated December 15, 1972 and March 28, 1974 were valid and the issue was answered in favour of the defendants; Issue No. 6 was decided in favour of the plaintiffs and it was held that the decree dated March 14, 1974 passed in favour of Ralla Singh deceased defendant would not bind the plaintiffs; under issue No. 7, it was held that the plaintiffs were ready and willing to perform their part of the agreement. On an ultimate analysis, the suit was dismissed in view of the findings under issues Nos. 1 and2.
5. At the time of hearing of this appeal, Mr. Jagan Nath Kaushal, Senior Advocate, learned counsel for the plaintiffs, did not assail the findings of the trial Judge under issues Nos. 1 and 2. His only submission flows from the finding of the trial Judge under issue No. 3. He submitted that the trial Judge passed a consent decree dated March 1, 1973 in Civil Suit No. 737 whereby the vendor was restrained from transferring the suit property by sale, mortgage or gift to defendants or anybody else. The resultant effect would be that the sales effected by the vendor after the injunction order of the trial Judge would invalidate the sale deeds executed thereafter and the plaintiffs would be entitled to a decree for specific performance of agreement to sell dated June 14, 1972.
6. Before I deal with this submission of the learned counsel for the plaintiffs, it is necessary to make a brief reference to the proved facts on record regarding the execution of agreement to sell dated June 14, 1972 (Ex. P-3) :--
(i) The plaintiffs instituted Civil Suit No. 737 on December 14, 1972 (Ex. P-7) against the vendor, Hari Singh, Chhaja Singh, Dev Singh and Chand Singh sons of Chanan Singh, Chanan Singh, Mohanjit Singh minor son of Hari Singh; Bhag Singh, Gurmall Singh minor, Bhupinder Singh minor sons of Dev Singh, Karam Singh and Gurnam Singh minor sons of Chhaja Singh for an injunction that the vendor be restrained from transferring the suit land to the defendants or anybody else in any manner viz. sale, gift or mortgage. Written statement dated January 8, 1973 (Ex. P-8) was filed by the vendor in the suit. Besides denying that he did not enter into an agreement to sell with the plaintiffs, he pleaded therein that on Dec. 8, 1972 he was present at his tubewell in the evening when he was tied with parnas by the plaintiffs Dalbara Singh and Narain Singh. They, with the active help of Dhera Singh, Carnail Singh and Ujagar Singh, forcibly secured his thumb-impressions on several papers and one register. He made a report to the police at Police Station Mubarakpur. He was also got medico-legally examined by the police. It was further stated that he executed an agreement to sell dated July 1, 1972 in favour of Hari Singh regarding land measuring 48 kanals out of the suit land and in pursuance of the agreement to sell, he had executed two sale deeds dated December 15, 1972 in favour of Hari Singh defendant No. 2 and his relatives. Compromise dated March 1, 1973 (Ex. P-1) prepared in English bearing thumb impressions of the vendor was filed in the Court seized of Civil Suit No. 737. Shri Daljit Singh, Advocate of Kharar was engaged by the vendor to defend him in the suit. Written statement was filed through him but on the date when the compromise Ex. P. 1 was filed, the power of attorney in favour of Daljit Singh, Advocate was abruptly terminated and Shri Dasaundha Singh, Advocate was engaged on behalf of the vendor and the compromise was filed through him. Statement of the vendor, Ex. P. 2, was recorded in Court and order of even date Ex. P. 12 reading, thus, was passed:--
"In view of the written compromise Ex.C-1 and statements recorded by me today, I hereby pass a compromise decree for injunction in favour of the plaintiffs and against Chhaja Singh defendant No. 1 to the effect that defendant No. 1 should not transfer suit property situated in village Sheikhan Majra, Tehsil Kharar, and fully detailed in the head note of the plaint along with all other rights appurtenant thereto in any manner. The parties are left to bear their own costs. The Decree Sheet be prepared accordingly."
On the basis of this order, a formal decree Ex. P. 9 was prepared and it reads thus:--
"This suit coming on this 14th day of March, 1974 for final disposal before me Sh. R. S. Sharma, P.C.S., Sub Judge, 1st Class, Kbarar in the presence of Sh. Amrik Singh, Advocate, counsel for the plaintiff and defendant in person.
It is ordered that in view of the written compromise filed by the plaintiff and defendant No. 1, a decree for permanent injunction in favour of the plaintiff and against the defendant Chhaja Singh is hereby passed from alienating by any mode to any person the suit land measuring 49 Kanals 12 Marias situated at village Shaikhan Majra, Tehsil Kharar and fully detailed in the head note of the plaint.
And it is further ordered that the parties shall bear their own costs."
(ii) Some of the defendants in the instant suit were party defendants in Civil Suit No. 737 but their names were struk off from the array of the parties on the statement of the plaintiffs.
(iii) FIR No. 7, dated December 9, 1972 (Ex.D-9) was recorded at Police Station, Mubarakpur on the basis of the statement of the vendor and case u/Ss. 467 and 323, IPC, was registered against the plaintiffs.
(iv) Complaint No. 49 of April 20, 1974 was also filed by the vendor against plaintiffs Dalbara Singh and Narain Singh, and Jarnail Singh, Ujagar Singh and Dhera Singh under Ss. 327, 447, 330, 347, 386, 323, 466, 467, 193, IPC. The complaint was consigned to record room being not pressed by order dated February 4, 1976 (Ex. P-14).
(v) The plaintiffs and the vendor belonged to villages Kurali and Shaikhan Majra respectively of Tehsil Kharar, but the agreement to sell dated June 14, 1972 (Ex. P-3) was not executed at tehsil headquarters Kharar, but at tehsil headquarters Dera Bassi. The agreement was scribed by P.W.3 Arjan Singh, Deed Writer of Dera Bassi. The Deed Writer lost his Deed Writer Register in which the agreement to sell (Ex. P-3) was entered. The Deed Writer's Licence of P. W. 3 Arjan singh was cancelled by the Deputy Commissioner, Patiala, after an enquiry conducted by Sub-Division Officer (Civil), Rajpura. A criminal case was also registered against the Deed Writer at Police Station, Dera Bassi for forgery and he was challaned by the police.
(vi) The stamp paper on which the agreement to sell was scribed was allegedly purchased by the vendor on June 14, 1972. The endorsement on the reverse of the agreement shows that the stamp paper was purchased from Sohan Singh, Stamp Vendor, Dera Bassi and the serial number of the register of stamp vendor has been given as 11/1 and 11/2. Banarasi Dass, D.W. 3, a Clerk in the office of Sub-Registrar, Dera Bassi, stated that Sohan Singh, Stamp Vendor, had given in writing in the office of the Sub-Registrar that he had lost the Stamp Vendor Register commencing from June 15, 1972 to February 1, 1973. The Register deposited by the Stamp Vendor in the office of the Sub Registrar contained entries up to June 14, 1972, but no stamp paper was sold to the vendor on that day. The entries up to June 14, 1972 show the sale of stamp papers entered at serial Nos. 2784 to 2791. There was no entry dated June 14, 1972 in the Stamp Vendor Register showing the sale of stamp paper entered at serial No. 11/1 and 11/2. The statement of D.W. 3 Banarsi Dass, in unmistakable terms indicates that serial Nos. 11/1 and 11/2 purporting to be the entries on the back of the agreement to sell, Ex. P-3, were fictitious. Rule 28(xiii) of the Punjab Stamp Rules, 1934 says that the stamp vendor shall with his own hand write in indelible ink in English or Urdu at the time of sale on the back of every non-judicial or Court-fee impressed stamp which he sells:
(a) Serial number;
(b) the date of the sate;
(c) the name, caste or tribe or surname (if any) and residence of the purchaser.
(ii) If the stamp is purchased by any person other than the principal, the said particulars in regard to both the agent and the principal.
In addition, the stamp-vendor at the same time has to make corresponding entries in the vend register and shall also invite the purchaser to attest them by his signatures or thumb-impressions or both and in the event of the purchase refusing so to attest the entry of sale, the vendor shall refuse to sell the stamp required and shall cancel any entry made regarding it in his register.
(vii) The alleged thumb-impressions of the vendor apear to have not been affixed at the time of purchase, but thereafter. There are number of un-decipherable faint blots on the reverse of page No. 2 of the agreement to sell, Ex. P-3. The thumb-impression, marked C, has a line and a cross which suggest that the Stamp Vendor drove, the line and cross to indicate the places where the thumb impressions of Chhaja Singh were to be obtained meaning thereby that Chhaja Singh had not thumb marked the paper of this document at the time of purchase of the stamp paper.
(viii) The writing by the Deed Writer suggests that the thumb-impression on the document, Ex. P-3, existed earlier and the Deed Writer had to complete the writing in such a manner as to terminate on the reverse of the paper where vendor's thumb impression had been obtained. The writing and the thumb impression suggest that the subject-matter of the document, Ex. P-3, was existing before completion of page 2 of the document.
(ix) Sale Deeds dated December 15, 1972 (Exhibits D-5 and D-6) regarding land measuring 49 Kanal 11 Marias out of the suit land were executed in favour of some of the defendants before the compromise decree dated March 1, 1973.
7. In the light of these facts, the trial Judge gave a firm finding that the agreement to sell dated June 14, 1972 (Ex. P-3) was afflicted by a number of suspicious circumstances bearing on its execution and payment of earnest money under it and that the vendor did not enter into that agreement with the plaintiffs and received no earnest money under it.
7A. From the narration of the proved facts, an irresistible conclusion is deducible that the plaintiffs had fabricated documents of title with impunity to use the same in the judicial proceedings to claim title to the property of the vendor to which they were not entitled to. They have thereby perjured themselves in judicial proceedings.
8. The findings of the trial Judge that the agreements to sell dated July 1, 1972 (Ex. D. 1) and dated December 22, 1972, sale deeds dated December 15, 1972 (Ex. D. 5 and D.6) and sale deeds dated March 28, 1974 (Ex. D-7 and D-8) were valid were not assailed by the plaintiff's counsel and rightly so. Sale deeds dated December 15, 1972 were executed prior to the passing of the restraint order against the vendor from transferring the disputed land or part thereof to anybody. Sale deeds executed after the decree for injunction restraining the vendor from transferring the disputed property will not invalidate the sale deeds. Violation of the injunction order will not invalidate the sale deeds or render it nullity although the vendor may be liable to penal consequences for violating the injunction order. Reliance can be placed on a decision of the Lahore High Court reported as Lal Chand v. Sohan Lal, AIR 1938 Lah 220 holding thus at page 221 :--
"xxx xxx The effect of non-compliance with an injunction issued under O.33 is to make the offender liable to the punishment prescribed in sub-rule 3 of R. 2 of that Order and so far as I know, that is only effect, and I can find no statutory authority for the proposition that a completed sale in contravention of an injunction under O. 39, R. 1 is a nullity. A temporary injunction under O. 39 is not a mandatory direction to a Court, as is a stay order of the kind provided for by the procedure Code, but is an order directed against a particular person which can be issued only in the circumstances described in R. 1. Had it been the intention of the Legislature that a Court sale effected while an injunction under O. 39 was in force should be a nullity the statute would surely have been made this clear, as it has made it clear in S. 64 of the Code that a private alienation of property under attachment is void. It is to be noted in passing that S. 64 does not make such a private alienation void but merely provides that it shall be void as against all claims enforceable under the attachment."
9. Now I revert to the submission made by the learned counsel for the plaintiffs stated supra. Indisputably, a consent decree is still a contract which must be construed as such although it has the sanctity of a judgment. The manner and the method in which the decree in Civil Suit No. 737 dated March 1, 1973 (Ex. P9) was obtained shows that the vendor fell prey to the evil mechinations of the plaintiffs. He suddenly changed his stand. Shri Dasaundha Singh, Advocate replaced Shri Daljit Singh, Advocate, who had been prosecuting the lis on behalf of the vendor. The Compromise Ex. P-1 was drafted in English and it bears the thumb impression of the vendor and he immediately thereafter made a statement that the compromise was entered into by him voluntarily. It passes human comprehension how the vendor suddenly changed his stand and consented to the passing of a restraint order against him from selling the property to anybody, more particularly when he had already enfolded in his written statement Ex. P-8 that he had executed the sale deeds dated December 15, 1972, pursuant to the agreement to sell dated July 1, 1972. Be that as it may, the consent decree injuncting the vendor from transferring the property in any manner to anybody else does not invalidate the transaction of sales entered into prior to the decree and subsequent thereafter and the plaintiffs cannot obtain any benefit of the consent decree for injunction in their favour in the instant case. The submission of the learned counsel merits, rejection.
10. I am prima facie satisfied that the plaintiffs had fabricated false agreement to sell for using it in judicial proceedings to claim title to the property of the vendor, which they knew to be forged.
11. For the reasons stated supra, R.F.A. No. 492 of 197.9 fails and is dismissed with costs. Counsel's fee is assessed at Rs. 2,000/-. Let a notice to show cause be issued to the plaintiffs for April 10, 1992. The Chief Judicial Magistrate, Patiala is directed to ensure service of notices on them.
12. In R.S.A. No. 597 of 1991, the defendant-mortgagees have challenged the judgment and decree of the first Appellate Court affirming on appeal those of the trial Judge decreeing the suit of the plaintiff-respondents for possession by redemption of the suit land. Indisputably, Chhaja Singh was the owner of the suit land. He had mortgageed the same with the mortgagees defendant-appellants (hereinafter the mortgagees) for Rs. 32,000/- vide mortgage-deed dated April 30, 1968. Mutation No. 534 dated January 23, 1969 was attested in favour of the mortgagees. Chhaja Singh sold the suit land (equity of redemption) to plaintiffs 1 to 13 and Ralla Singh, predecessor-in-interest of plaintiffs 14 to 19 (respondents in R.S.A. No. 597 of 1991) (hereinafter the plaintiffs vide sale-deeds Exs. P.W.2/A, P.W. 2/B, P.W.5/A and P.W.5/C. The vendees filed an application for redemption of the suit land under Sec-tion4 of Act No. 11 of 1913 before the Assistant Collector, First Grade. That application was dismissed on July 28, 1991 necessitating the filing of the suit for possession by redemption.
13. The suit was contested by the mortgagees on numerous grounds. It was, inter alia, alleged that the plaintiffs had no right to redeem the suit land; that the mortgagees-had made improvements on the mortgageed land and that they were entitled to the costs thereof.
14. On the pleadings of the parties, the following issues were framed by the trial Judge:--
1. Whether Chhaja Singh sold the equity of redemption in the suit land vide valid sale deeds dated 10-3-1974 and 28-3-1974 as alleged in para No. 3 of the plaintiff? OPP.
2. Whether Chajja Singh entered into an agreement of sale regarding suit land on 14-6-
1972 with the defendants Nos. 1 to 5 if so its effect? OPP.
3. Whether the suit is within time? OPP.
4. Whether the plaintiffs Nos. 14 to 19 are the only heirs of Ralla Singh as alleged in para No. 5 of the plaint? OPP.
5. Whether the suit has been properly valued for purposes of court-fee and jurisdiction? OPP.
6. Whether the present suit is liable to be stayed under Section 10, C.P.C.? OPD.
7. Whether the suit is bad for non-joinder of necessary parties? OPD
8. Whether the present suit is barred under the Redemption of Mortgages (Punjab) Act, 1913? OPD.
9. Whether the defendants are entitled to obtain the costs of improvements amounting to Rs. 1,75,000/- in addition to mortgage amount of Rs. 32,000/- as alleged in para No. 10 of the written statement? OPD 9A. Whether as per agreement of sale dated 14-7-1972 executed by Chhajja Singh in favour of defendants for a sum of Rs. 32,000/- representing mortgage money, was adjusted towards the sale consideration and the mortgage on the suit property stood extinguished on the date of agreement of sale and as such the suit is not maintainable? OPD.
10. Relief.
15. Issue No. 1 was decided in favour of the plaintiffs Issues No. 2 and 9A were disposed of together and it was held that execution of the agreement to sell dated June 14, 1972 in favour of the mortgagees was highly doubtful and these issues were decided in favour of the plaintiffs; Issue No. 3 was decided in favour of the plaintiffs and it was held that the suit was within limitation; Issue No. 4 was answered in favour of the plaintiffs and it was held that plaintiffs 14 to 19 were the legal heirs of Ralla Singh deceased vendee; Issue No. 5 was answered in favour of the plaintiffs and it was held that the suit was properly valued for purposes of Court fee and jurisdiction; Issue No. 6 was decided against the defendants and in favour of the plaintiff in view of the decision rendered by this Court in Civil Revision No. 1964 of 1984; Issue No. 7 was decided against the defendants: Issue No. 8 was also decided against the defendants and in favour of the plaintiffs and it was held that there was no bar to the maintainability of the suit under the Redemption of Mortgagees (Punjab) Act, 1913; Under Issue No. 9, it was held that the plaintiffs were entitled to redeem the suit land on payment of Rs. 32,000/- as mortgage money and that the mortgagees were not entitled to claim cost of improvements allegedly made by them and if any tubewell was installed by them, they could remove the same. On ultimate analysis, a preliminary decree for possession by way of redemption of the suit land on payment of Rs. 32000/- was passed in favour of the plaintiffs and against the defendants.
16. The mortgagees aggrieved against the preliminary decree for redemption passed by the trial Judge challenged the same in first appeal. The judgment of the trial Judge was maintained by the first appellate Court except to the extent that the mortgagees were found entitled to recover Rs. 42,700/- on account of improvements effected by them on the disputed land.
17. The mortgagees aggrieved against the preliminary decree for redemption passed by the trial Judge and affirmed on appeal by the first appellate Court assailed the same in R.S.A. No. 597 of 1991.
18. The plaintiffs aggrieved against the finding of the first appellate Court holding that the mortgagees were entitled to recover Rs. 42,700/- for improvements effected by them on the suit land have challenged that part of the decree in R.S.A.No. 898 of 1991. It is under these circumstances that R.S.A. No. 898 of 1991 was ordered to be disposed of with R.S.A. No. 597 of 1991 and the former with R.F.A. No. 492 of 1979.
19. In view of the findings recorded while disposing of R.F.A. No. 492 of 1979, there is no merit in R.S.A. No. 597 of 1991. Shri Brij Mohan Lal, Advocate, counsel for the appel-
lants in this appeal, who assisted Shri J. N. Kaushal, Senior Advocate, counsel for the appellants in R.F.A. No. 492 of 1979, during the course of hearing of R.F.A. No. 492 of 1979 stated that if the first appeal is dismissed, R.S.A. No. 597 of 1991 has also to be dismissed as a consequence thereof. Even otherwise, while deciding R.F.A. No. 492 of 1979, I have held that the sales effected in favour of the plaintiffs in R.S.A. No. 597 of 1991 were valid. The sale was that of equity of redemption and they have got a right to redeem and the preliminary decree for redemption of the suit land was rightly passed. The judgment and decree are beyond exception.
20. In R.S.A. No. 898 of 1991, the plaintiffs are aggrieved against the finding of the first appellate Court holding that the mortgagees were entitled to recover Rs. 42,700/- on account of cost of improvements effected by them. The finding of the first appellate Court that the improvements were effected on the suit land by the mortgagees to the extent of Rs. 42,700/- is essentially a finding of fact. I have gone through the evidence on record and find that the finding so recorded is justified. Even if two opinions are possible on evidence brought on record it will not furnish a ground to interfere in second appeal and the same is upheld. Even otherwise, no meaningful argument was addressed at the bar at the time of hearing of the appeal that the judgment of the first appellate Court to the extent to which it has gone against the plaintiffs calls for interference. The appeal is devoid of any merit and is dismissed.
21. For the reasons stated supra, R.F.A. No. 492 of 1979 is dismissed with costs: Counsel's fee is assessed at Rs. 2000/- R.S.A. Nos. 597 and 898 of 1991 are dismissed but the parties are left to bear their own costs.
22. Order accordingly.