RSA No.1472 of 2004(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1472 of 2004(O&M) Date of decision: 17.4.2009 Daulat Ram @ Gulab Singh and another ......Appellants Versus Thambu Ram ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Gorakh Nath, Advocate for the appellants. Mr. Harkesh Manuja, Advocate for the respondent. * * * Rakesh Kumar Garg, J. The plaintiff-respondent filed a suit for specific performance of the agreement to sell dated 20.8.1991 executed by defendant No.1 (predecessor-in-interest of the appellants) concerning the suit land, along with the rights of paths, irrigation machinery, tubewell etc., after declaring gift deed dated 15.10.1991 executed by defendant No.1 in favour of defendants No.2 and 3 to be null and void, illegal, result of fraud and collusion to defeat the right of specific performance of the plaintiff. The suit was contested by the defendants. Defendant No.1- Chand Ram (predecessor-in-interest of the appellants) in his separate written statement stated that he was joint owner in possession of the suit land but his share was under various encumbrances as a result of his bad habits and he was not competent to alienate the suit property and the suit land was ancestral qua defendants No.2 and 3. Defendants No.2 and 3 filed a suit against plaintiff No.1 for cancellation of the agreement and they also collected relatives who forced defendant No.1, as a result of which the RSA No.1472 of 2004(O&M) 2 agreement was cancelled mutually by way of repayment of whole of the amount along with agreed interest. The present suit was filed by the plaintiff due to his greediness. The gift deed was executed and registered after the cancellation of the agreement to sell between the plaintiff and defendant No.1. The cancellation of the agreement had taken place on 1.10.1991 in good faith in the presence of respectables of the village. Dismissal of the suit was prayed for. Defendants No.2 and 3 filed separate written statement taking almost similar pleas as taken by defendant No.1 and prayed for dismissal of the suit. The parties contested the suit on the following issues: “1. Whether the plaintiff was willing and is still willing to perform his part of the contract? OPP 2. Whether the gift deed dated 15.10.1991 by defendant No.1 in favour of defendants No.2 and 3 is illegal, null and void? OPP 3. Whether the agreement to sell was cancelled by the parties and the defendants had returned the earnest money i.e. Rs.50,000/- and interest thereon to the tune of Rs.1300/- OPD 4. Whether the suit is bad for misjoinder and non- joinder of necessary parties? OPD 5. Relief.” Issues No.1 and 2 were decided in favour of the plaintiff whereas issue No.3 was decided against the defendants holding that there was no evidence on behalf of the defendants to prove this issue. Issue No.4 was not pressed on behalf of the defendants and the same was also decided against the defendants. As a result of the aforesaid findings, the suit of the plaintiff-respondent was decreed with costs. RSA No.1472 of 2004(O&M) 3 It is relevant to mention that during the pendency of the suit Chand Ram-defendant No.1 had expired. The plaintiff was directed to file list of the relatives of the minor defendants and thus, an application under Order 32 rule 3 CPC for appointment of court guardian of defendants No.2 and 3 was filed. Then, vide order dated 7.5.1996 notice was ordered to be issued to Smt. Savitri Devi mother of minor defendants No.2 and 3 but she refused to accept the service and then vide order dated 2.12.1996 Shri. A.K. Vij, Advocate was appointed as court guardian on behalf of the said defendants. Aggrieved from the judgment and decree of the trial Court, defendants No.2 and 3 only filed an appeal. Before the Lower Appellate Court, it was argued on behalf of the appellants that findings on issue No.4 were not sustainable as all the heirs of Sh. Chand Ram (defendant No.1) were not arrayed as defendants. However, the Lower Appellate Court on appreciation of evidence vide impugned judgment and decree dated 29.9.2003 dismissed the appeal affirming the findings of the Courts below on all the issues. Still not satisfied, defendants No.2 and 3 have filed the present appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the judgment and decrees of the Courts below are liable to be set aside as Chand Ram-defendant No.1 had left behind his widow, one daughter and two sons and despite a specific objection taken by them, they were not brought on record and therefore, the suit was bad for non-joinder of parties and the same was liable to be dismissed as in the absence of all the legal heirs of defendant No.1, suit in favour of the plaintiff-respondent could not be decreed. I have heard learned counsel for the appellants. RSA No.1472 of 2004(O&M) 4 I find no merit in the argument raised by the learned counsel for the appellants. From the facts mentioned in the impugned judgment and decrees of the Courts below, it is clear that the appellants have taken a definite stand that Chand Ram was a man of bad habits and therefore, the agreement in dispute with the plaintiff-respondent was cancelled and thereafter, gift deed dated 15.10.1991 was executed by Chand Ram in their favour and the aforesaid gift deed was also binding on the plaintiff- respondent. No doubt, legal objection with regard to non-joinder of necessary parties was also taken by the appellants in their written statement and further, a specific issue i.e. issue No.4 was framed in this regard. However, the aforesaid issue was not pressed by the appellants before the trial Court. Even before the Lower Appellate Court, no such argument, as raised now before this Court, was raised on behalf of the appellants. In any case, it was the specific case of the appellants that the agreement in question was cancelled and thereafter, gift deed dated 15.10.1991 was executed in their favour by Chand Ram-defendant No.1. However, the appellants failed to prove this stand taken by them and no argument has been raised by the appellants on issue No.3 before this Court. It is also necessary to mention at this stage that the appellants were well represented. The appellants have also failed to show any prejudice caused to them by not impleading the other LRs of Chand Ram-defendant No.1. The Hon'ble Supreme Court of India in the case of Bachhaj Nahar v. Nilima Mandal and another JT 2008 (13) SC 255, has held that the substantial question of law on the basis of a argument which was not raised before the Courts below, cannot be raised in the regular second appeal before the High Court. No other point was raised. RSA No.1472 of 2004(O&M) 5 For the reasons recorded above, I find no merit in this appeal, No substantial question of law arises. Dismissed. April 17, 2009 (RAKESH KUMAR GARG) ps JUDGE