R.S.A. No.4057 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.4057 of 2008 (O&M) Decided on : 21-01-2010 Joginder Singh & another .... Appellants VERSUS Gursewak Singh & another .... Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER. Present:- None for the appellants. Mr. T.P. Singh, Advocate, for respondent No.1. MAHESH GROVER, J (Oral). This Regular Second Appeal by the defendants- appellants is directed against the judgments and decrees 21.08.2008 and 15.09.2006 passed respectively by the Additional District Judge, Rupnagar, (described hereinafter as `the first appellate Court'), and the Civil Judge (Junior Division), Kharar, (referred to hereinafter as `the trial Court'), whereby the suit filed by plaintiff/respondent No.1 was decreed and the appeal filed by the defendants/appellants was dismissed. The plaintiff-respondent No.1 filed a suit for possession by way of specific performance regarding land measuring 3-1/3 marlas along with one room as fully detailed in the head note of the plaint, which was subject matter of an agreement to sell dated R.S.A. No.4057 of 2008 (O&M) -2- 9.1.1998, which was executed for a total consideration of Rs.28,000/- out of which Rs.20,000/- was paid as earnest money. The remaining amount of Rs.8,000/- was to be paid at the time of registration of the sale deed, which was fixed as 10.8.1998. The sale deed was to be executed on or before 25.1.1998. This date was mutually extended on 23.1.1998(i.e. before the date fixed initially between the parties for the said purpose) upto 31.7.1998. On 30.7.1998, the respondent No.1 presented himself in the office of Sub-Registrar because on 31.7.1998 was the holiday. He remained present till evening with the balance amount, but vendor Dial Singh failed to appear. He got his presence marked accordingly. Thereafter, he tried to contact vendor Dial Singh and also came to the office of Sub-Registrar on 3.8.1998 as 1st and 2nd August, 1998, also happened to be holidays. On this date, he was also ready with the money, but the vendor did not come. On inquiry it was realized by him that the vendor was reluctant to get the sale deed executed and had proclaimed that he has sold the property to someone else. The instant suit, was, therefore, filed seeking enforcement of the agreement to sell. Dial Singh in the meantime transferred the property by executing a general power of attorney in favour of appellant No.1, who sold it to his wife on 10.8.1998 and showed a fictitious sale price of Rs.30,000/-. When the suit was originally filed, status quo was granted regarding the status of the property on 5.8.1998, but despite that the sale was made. The pleadings were consequently amended accordingly and the suit proceeded against the present appellants. Dial Singh, who was initially impleaded as a party defendant No.1 R.S.A. No.4057 of 2008 (O&M) -3- filed his written statement but he did not pursue the matter any further. He was never examined as a witness. The appellants, who were defendants, filed their written statements and controverted the pleadings of the plaintiff-respondent No.1. They denied the execution of the agreement to sell by Dial Singh in favour of the plaintiff-respondent No.1 and also denied the factum of having received Rs.20,000/- as earnest money. Defendant No.1 pleaded fraud. He further pleaded that he had already entered into an oral agreement to sell the suit with his brother (appellant No.1) on 14.11.1997 at a rate of Rs.30,000/- and he had received the entire consideration from him and delivered the possession to him on the same date and that he had executed the general power of attorney in favour of appellant No.1 qua the suit land. The appellants had filed a separate written statement and set up an oral agreement between Dial Singh and himself. He thus executed the sale in favour of appellant No.1 vide sale deed dated 10.8.1998 and pleaded that they were owners in joint possession of the suit property. They pleaded to be bona fide purchasers of this property. The parties thereafter went to trial on the following issues:- 1. Whether the plaintiff is entitled to the possession by way of specific performance of the agreement dated 9.1.1998? OPP. 2. Whether the plaintiff has been ready and willing to perform his part of agreement?OPP. 3. Whether the suit of the plaintiff is maintainable?OPP. 4. Relief. Both the courts concluded that the agreement to sell in favour of the respondents, has been validly executed and that the R.S.A. No.4057 of 2008 (O&M) -4- passing of the consideration of Rs.20,000/- to the vendor Dial Singh was also established and also the readiness and willingness of the plaintiff-respondent No.1 to execute the sale deed. The contention of the appellants was negatived by both the Courts below and the suit was decreed for specific performance of the agreement to sell dated 9.1.1998 and also for possession of the suit property. Aggrieved by the findings, the instant appeal has been filed. No one has put in appearance on behalf of the appellants and this Court was left with no other option except to proceed with the matter in the absence of any assistance from learned counsel for the appellants. I have heard learned counsel for the respondents and have perused the impugned judgments and also the material on record. The plaintiff-respondent in order to prove the agreement to sell, examined the attesting witnesses namely Inderjit Singh as PW-2 and Niamat Singh as PW-4, and deed writer Nar Singh as PW-5. All these witnesses testified to the execution of the agreement to sell in their presence by Dial Singh in favour of the plaintiff-respondent No.1 and also testified that an amount of Rs.20,000/- was paid in their presence. Extension of time for execution of sale deed further was also proved. It was further proved by the testimony of Inderjit Singh and Niamat Singh that they had gone to tehsil complex with the plaintiff-respondent No.1, but Dial Singh did not turn up. Thereafter, Mangat Ram, Oath Commissioner attested the affidavit acknowledging the presence of the plaintiff- R.S.A. No.4057 of 2008 (O&M) -5- respondent No.1 in the office of sub-Registrar. This affidavit was also proved in accordance with law. The plaintiff- respondent No.1, therefore, established all the three essential ingredients, which were required to be established in a suit for specific performance. To the contrary, the appellants had set up an oral agreement to sell in their favour allegedly said to have been executed by Dial Singh on 14.11.1997 which however was not established by any cogent evidence. The sale deed was executed on 10.8.1998 by appellant No.1 in favour of his wife on the strength of Power of Attorney which was executed by Dial Singh in his favour. Despite order of status quo dated 5.8.1998 in favour the plaintiff-respondent No.1, the property was alienated on 10.8.1998 during the pendency of suit. The same is also hit by the principle of lis pendens. The appellants in cross-examination admitted that they had the knowledge of the agreement to sell in favour of the respondents. Appellant No.2 only qualified this knowledge of the agreement to sell by showing that it was executed by the vendor Dial Singh in a drunken condition. This, however, does not take a way the sting from his testimony as the knowledge of the agreement to sell is established in favour of the plaintiff-respondent No.1. From the perusal of the entire material on record, the only irresistible conclusion that can be derived is that the agreement to sell purportedly executed by appellant No.1 in favour of his wife on the strength of the power of attorney, which was executed by Dial Singh in favour of Joginder Singh, was a fraudulent transaction in order to defeat the rights of the plaintiff-respondent No.1. R.S.A. No.4057 of 2008 (O&M) -6- Both the Courts therefore, were right in returning the finding that the agreement to sell in favour of the plaintiff-respondent No.1 was a valid piece of document executed for consideration and regarding which the plaintiff-respondent No.1 was always willing and ready to perform his part of the agreement whereas Dial Singh respondent No.2 defaulted and resorted to this exercise to defeat the rights of plaintiff-respondent No.1 by alienating the property during the pendency of the suit. Consequently, the appeal is dismissed being devoid of any merit. All pending applications are disposed of in view of the above. 21st January, 2010. (MAHESH GROVER) Monika JUDGE