Punjab-Haryana High Court
Suraj Mukhi And Others vs Baljinder Singh on 20 January, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
RSA No. 119 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.119 of 2014 (O & M)
Date of Decision: January 20, 2014.
Suraj Mukhi and others
... Appellants
Versus
Baljinder Singh
... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the 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. Ramesh Goyat, Advocate for
the appellants.
Paramjeet Singh, J.
This second appeal arises from a suit for possession by way of specific performance of agreement to sell dated 21.12.1998, filed by plaintiff-Baljinder Singh against defendant-Birbal, husband of appellant no.1 and father of appellants no.2 to 4 which has been decreed by the Court of first instance vide judgment and decree dated 09.02.2005 and appeal preferred by the defendant through his legal heirs has been Kumar Parveen 2014.02.12 18:15 I attest to the accuracy and integrity of this document RSA No. 119 of 2014 2 dismissed by the lower Appellate Court, vide judgment and decree dated 01.09.2008.
The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts, as pleaded by plaintiff, are to the effect that defendant executed an agreement to sell dated 21.12.1998 in favour of plaintiff with regard to land measuring 14 kanals 18 marlas, situated within the revenue estate of village Nirban, Tehsil Nathusari Chopta, District Sirsa at the rate of Rs.50,000/- per acre. The agreement to sell was scribed by Joginder Mohan, deed writer. On that day i.e. 21.12.1998, defendant received a sum of Rs.57, 500/- as earnest money from the plaintiff in the presence of Vijay Kumar and Om Parkash son of Mukand Lal. Defendant with his own hand had written on the agreement to sell regarding the receipt of earnest money. The possession of the suit land allegedly was also delivered to the plaintiff. At that time, it was also agreed that sale deed was to be executed and registered on or before 22.06.1999 after receiving the remaining sale consideration in the office of Sub Registrar, Nathusari Chopta, but thereafter the date was extended to 22.12.1999. On 22.12.1999, a sum of Rs.8,500/- was also received from the plaintiff towards the sale consideration by the defendant and endorsement in writing to that effect was made on the back of the agreement. On 21.12.1999, the date was extended upto 21.01.2000 and on 18.01.2000, fresh agreement was scribed by the plaintiff on the same Kumar Parveen 2014.02.12 18:15 I attest to the accuracy and integrity of this document RSA No. 119 of 2014 3 terms and conditions and an amount of Rs.8,250/- was also paid to the defendant towards the sale consideration. The date for execution of sale deed was extended upto 30.05.2000. On 30.05.2000, plaintiff came present in the office of Sub Registrar, Nathusari Chopta to perform his part of the agreement, but defendant did not come there. Plaintiff also got marked his presence by filing an affidavit. Plaintiff also got served legal notice dated 19.07.2000 upon defendant, who filed reply to the same on 12.08.2000 admitting the execution of said agreement to sell but did not execute the sale deed in favour of plaintiff.
Defendant resisted the suit and filed written statement by taking various preliminary objections. On merits, it was pleaded that defendant had entered into an agreement to sell with the plaintiff with regard to the suit land in the year 1997 and had received an amount of Rs.26,000/- as earnest money from plaintiff. It was further pleaded that defendant never entered into agreement to sell as alleged by plaintiff. The previous agreement was never cancelled or revoked till date. The possession of suit land is with the defendant. Other allegations in the plaint were denied.
On the basis of pleadings of parties, the Court of first instance framed following issues:
"1. Whether the defendant has executed the agreement to sell dated 21.12.1998 in favour of the plaintiff in respect of the suit land?OPP.
2. Whether the plaintiff was/is still ready and willing Kumar Parveen 2014.02.12 18:15 I attest to the accuracy and integrity of this document RSA No. 119 of 2014 4 to perform his part of agreement?OPP.
3. If issue no.1 and 2 are proved, whether the plaintiff is entitled to decree for specific performance of the contract/agreement dated 21.12.1998?OPP
4. Whether the suit of the plaintiff is barred by time?OPD
5. Relief."
After appreciating the evidence, the Court of first instance decreed the suit. Feeling aggrieved, defendant through his legal heirs preferred an appeal which has been dismissed by lower Appellate Court. Hence, this regular second appeal.
I have heard learned counsel for the appellants and perused the record.
Learned counsel for appellants has submitted that following substantial questions of law, suggested in the grounds of appeal, arise for consideration by this Court:
(a) Whether the judgment 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 plaintiff/respondent is not entitled for possession of suit land by way of specific performance on the basis of forged and manipulated documents?
(c ) Whether the plaintiff/respondent has played fraud upon the appellants?
While returning findings on issues no.1 to 3, the Court of first Kumar Parveen 2014.02.12 18:15 I attest to the accuracy and integrity of this document RSA No. 119 of 2014 5 instance has rightly held that agreement in question is genuine one, as defendant had agreed to sell the suit land in favour of plaintiff and had received an amount of Rs.74,500/- on different dates towards sale consideration and failed to get the sale deed executed and registered on 30.05.2000. The Court of first instance has rightly relied upon Bakhtawar Singh Vs. Gurdial Singh 2003 (1) RCR (Civil) 242 (P & H) wherein it has been held that when vendor denied the execution of agreement but admits his signatures and receipt of earnest money and also pleads ignorance of terms of agreement on account of his illiteracy, such a person cannot be believed.
The said findings of Court of first instance have been affirmed by the lower Appellate Court.
Concurrent findings of fact have been recorded by both the courts below. Learned counsel for appellant could not show that the said findings are perverse or illegal or based on misreading, non-reading or misappreciation of the material evidence on record. Consequently, the said findings of fact do not warrant interference in regular second appeal. No question of law, muchless substantial question of law, as alleged, arises for adjudication in this second appeal.
There is also a delay of 1870 days in filing the instant regular second appeal. Since sufficient ground has not been shown for condoning the delay, the application for condoning delay of 1870 days in filing the instant appeal stands dismissed.
No other point has been urged.
Kumar Parveen 2014.02.12 18:15 I attest to the accuracy and integrity of this document RSA No. 119 of 2014 6 Dismissed in limine being devoid of merit as well as time barred.
No order as to costs.
January 20, 2014 (Paramjeet Singh)
parveen kumar Judge
Kumar Parveen
2014.02.12 18:15
I attest to the accuracy and
integrity of this document