RSA No.820 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.820 of 2011 (O&M) Date of decision 12.7.2011. Karnail Singh and another ...... Appellants. versus Iqbal Singh ...... Respondent. CORAM : HON'BLE MR. JUSTICE K.C.PURI m Present : Mr. S.S.Brar, Advocate for the appellants. K.C.PURI . J. This appeal is directed by defendants/appellants against judgment and decree dated 26.5.2010 passed by learned District Judge, Ferozepur vide which the appeal preferred by the defendants against the judgment and decree dated 1.9.2008 passed by the trial Court was dismissed. 2. Plaintiff has filed suit for possession by way of specific performance of agreement to sell dated 20.5.2003 on the averments that defendants No. 2 is minor and is unable to prosecute the present suit personally so he is represented through defendant No.1 his real father being RSA No.820 of 2011 2 the next friend and natural guardian of minor defendant and defendant No.1 has got no adverse interest against the interest of minor defendant. 3. It has been alleged that defendant No.1 being owner in possession of agriculture land measuring 8 kanals entered into an agreement dated 20.5.2003 with the plaintiff for Rs.1,25,000/- in favour of plaintiff in the presence of marginal witnesses and he received a consideration of Rs.1,00,000/- as earnest money from the plaintiff in presence of marginal witnesses and on the basis of agreement to sell dated 20.5.2003 and defendant No.1 agreed to execute the sale deed qua the above said property on or before 25.5.2004 in favour of plaintiff and other terms and conditions were also incorporated in the said agreement which was scribed by one typist at the instance of defendant No.1 in favour of the plaintiff. After scribing the agreement, contents thereof were read over and explained to defendant No.1 and defendant No.1 after admitting the same to be correct and after the receiving the amount of Rs.1Lac as earnest money from the plaintiff, thumb marked the said agreement to sell in presence of marginal witnesses namely Jora Singh Lambardar and Balvir Singh, who also signed the said agreement in Punjabi respectively as witnesses in presence of each other. 4. It has been further alleged that on the date fixed i.e. 25.5.2004 defendant No.1 did not turn up to execute the sale deed in favour of plaintiff on the basis of agreement to sell. The plaintiff came present in the office of Sub Registrar, Abohar with the balance sale consideration and expenses of sale deed for getting the sale deed executed qua the suit property but defendant No.1 failed to turn up in the office of sub Registrar, Abohar and RSA No.820 of 2011 3 plaintiff awaited defendant No.1 upto the evening in the office of Sub- Registrar, Abohar and ultimately he got marked his presence by way of getting affidavit attested from the Executive Magistrate. The plaintiff always was ready and willing to perform his part of contract but defendant No. 1 failed to do so. 5. It has been further alleged that on 25.5.2004 in the evening, the plaintiff along with his brother Sham Singh met defendant No.1 and asked why he did not come to the office of Sub Registrar, Abohar to perform his part of contract, but he told that he had entered into agreement to sell with the plaintiff for the purpose of cheating and to defraud to the plaintiff and further told that he transferred the suit property through bogus sale deed dated 27.5.2004 in favour of defendant No.2 which is liable to be set aside as the same is wrong, null, void, abinitio and is without consideration and is not binding upon the right of the plaintiff; defendant No.1 entered into an agreement to sell dated 20.5.2003 for sale of suit property with plaintiff and received the earnest money from plaintiff on the basis of the agreement in presence of marginal witnesses; the defendant No.1 was not authorised to further alienate the suit property; the sale deed is bogus, wrong illegal and the same is a sham transaction in the eyes of law and is not binding upon the rights of the plaintiff. The plaintiff had been ready and still ready and would always ready to get the sale deed executed in his favour on payment of the remaining sale consideration to the defendant No.1. Defendant No.1 intentionally did not turn up to the office of Sub Registrar, Abohar to perform his part of contract. In spite of execution and registration of the sale deed qua the above said property in favour of RSA No.820 of 2011 4 plaintiff, the defendant has further alienated the suit property through a bogus sale deed to defendant No.2 and started threatening to further alienate the above said property in any manner to anybody else except the plaintiff in order to cause loss to plaintiff and will get implement the same in the revenue record illegally and forcibly. It is further averred that if in any case the court finds any difficulty in the grant of a decree of specific performance in that case the plaintiff is entitled to recover the amount of Rs.1,26,000/- i.e. Rs.1,00,000/- as the amount of earnest money received by defendant No.1 from the plaintiff and Rs.26,000/- as damages for use of the earnest money received by defendant No.1 from the plaintiff and is also entitled to interest @ 24% per annum from the date of execution of agreement till the final realization of the above said amount. Defendant had been repeatedly requested to execute the sale but no effect. Hence the suit. 6. On notice, defendants put their appearance and filed written statement taking certain preliminary objections therein that suit is not maintainable; plaintiff has got no cause of action or locus standi to file the suit; plaintiff has concealed true and material facts from the court. In fact, the defendant No.1 has never entered into any agreement to sell in favour of the plaintiff and never received any earnest money from plaintiff so the defendant No.1 is not bound to execute any sale deed in favour of plaintiff. The alleged agreement is forged and fabricated and no reliance can be placed upon it. The sale deed executed by defendant No.1 in favour of defendant No.2 is legal, valid as per law; suit has been filed to harass and coerce the defendants; suit is nothing else but an abuse of process of the law; suit is false and frivolous and is liable to be dismissed with special RSA No.820 of 2011 5 costs under Section 35-A C.P.C. And on merits it has been admitted that defendant No.1 was owner of land measuring 8 Kanals. Defendant No.1 never entered into agreement to sell dated 20.5.2003 in favour of plaintiff. In fact the market value of the land is Rs.250000/- per acre and not Rs.1,25,000/-. Defendant No.1 never received Rs.One Lac as earnest money from plaintiff nor agreed to execute any sale deed on 20.5.03. The alleged agreement is forged and fabricated and no reliance can be placed upon it. Plaintiff wants to get the suit property which is now owned by defendant No.2. While denying all other averments, it has ultimately been prayed that suit of the plaintiff may be dismissed. 7. In replication to the written statement, the plaintiff denied all the facts of written statement and reiterating those of plaint. 8. From the pleadings of the parties following issues were framed:- 1. Whether defendant No.1 entered into an agreement to sell the suit property to the plaintiff on 20.5.03 and executed an agreement on receipt of earnest money? OPP 2. Whether plaintiff had been and is still ready and willing to perform his part of the agreement? OPP 3. Whether the sale deed dated 27.5.2004 executed by defendant No.1 in favour of defendant No.2 1qua suit property is null and void, without consideration and is not binding upon the plaintiff? OPP 4. Whether the plaintiff has no locus sandi and cause of action to file this suit? OPD RSA No.820 of 2011 6 5. Whether plaintiff concealed any material fact from the court? OPD 6. Whether plaintiff is entitled for declaration as prayed for? OPP 7. Whether plaintiff is entitled for possession by way of specific performance of the agreement dated 20.5.03 or for the alternative relief? OPP 8. Relief 9. Both the parties were afforded due opportunities to adduce evidence in support of their respective claims. The plaintiff to prove his case examined PW-1 Arjun Singh, Document Writer, PW-3 Jora Singh, attesting witnesses and himself stepped into the witness box as PW-1. On the other hand, defendant Karnail Singh himself stepped into the witness box as DW- 1 and thereafter could not examine any other witnesses despite availing numerous opportunities and ultimately evidence of the defendant was closed by order. 10. The trial Court, after hearing the learned counsel for the parties, decreed the suit for specific performance on the basis of agreement to sell dated 20.5.2003 vide judgment and decree dated 1.9.2008. 11. Feeling dissatisfied with the aforesaid judgment, the defendant/appellant has preferred appeal before Lower Appellate Court. The lower Appellate Court vide judgment and decree dated 26.5.2010 dismissed the appeal. 12. Still feeling dissatisfied with the aforesaid judgments and decrees, the defendant-appellants have preferred the present regular second appeal. RSA No.820 of 2011 7 13. The appellants in paragraph No.7 of the grounds of appeal has mentioned that following substantial questions of law have arisen in the present appeal :- a) Whether in the facts and circumstances of the case, appellant No.1 could legally transfer the suit land in favour of appellant No.2, being his successor, the suit property being ancestral ? b) Whether in the facts and circumstances of the case, the agreement to sell could be termed genuine when the Stamp papers were one year old prior to the date of agreement ? c) Whether in the facts and circumstances of the case, when the suit property is located in Tehsil Abohar, the agreement could be validly executed in Tehsil Malout? Learned counsel for the appellants has submitted that property is located at Tehsil Abohar whereas the agreement is alleged to have been executed in Tehsil Malout. The stamp papers were purchased on 20.5.2002 but the agreement was executed on 20.5.2003. These facts creates doubt in the execution of agreement in question. Appellant No.1 Karnail Singh was competent to alienate the property in favour of his minor son Rajmander Singh as the property was joint Hindu family coparcenary property. The learned trial Court has ignored all these facts. So, in these circumstances, the appeal is liable to be accepted. I have carefully considered the said submission and have gone through the file of this case. The questions mentioned in paragraph No.7 of the grounds of appeal are not the questions of law much-less the substantial questions of law. The dispute in the present lis is whether Karnail Singh-defendant now RSA No.820 of 2011 8 appellant No.1 executed agreement to sell dated 20.5.2003 in favour of plaintiff now respondents. Both the Courts below after meeting all the objections given a concurrent finding of fact that Iqbal Singh has been able to prove the execution of said agreement and passing of consideration in the said sale were also taken by both the Courts below. The objections that property is joint Hindu family coparcenary property were also taken before both the Courts below but did not find favour. So, that being a finding of fact cannot be assailed in the regular second appeal in view of Section 100 of the CPC. So, in view of the above discussion, the appeal is without any merit and the same stands dismissed. 18. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 12, 2011 sv