RSA No. 786 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 786 of 2009 (O&M) Date of decision: September 21, 2010 Sanjay Gandhi Memorial Co-operative House Building Society Limited. ...Appellant Versus Virender Kumar ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. VK Jain, Senior Advocate with Mr. Pritam Saini, Advocate, for the appellant. GURDEV SINGH, J. The unsuccessful plaintiff/appellant, Sanjay Gandhi Memorial Co-operative House Building Society Ltd., has preferred this second appeal against the judgment and decree dated 27.9.2008 passed by the Additional District Judge, Gurgaon, vide which he dismissed the appeal of the plaintiff preferred against the judgment and decree dated 22.4.2008 passed by the Civil Judge (Jr. Divn.), Gurgaon, dismissing his suit for declaration to the effect that the decree for specific performance of the contract for sale passed on 22.7.1987 by Civil Judge Ist Class, Gurgaon, in Civil Suit No. 740 of 25.11.1983 titled “Virender Kumar Versus Rajpal etc.” is illegal and void abinitio, having been obtained by fraud and mis-representation and that mutation No. 18807 sanctioned on 18.6.1996 on the basis of the said decree is also illegal and not binding on its ownership rights to the extent of 1/12 share in the land bearing khasra No. 3897/3173/1970 to 1973 measuring 3 RSA No. 786 of 2009 2 bigha 5 biswa, situated in the revenue estate of village Gurgaon, which was originally owned by Rajpal and Tej Kaur, who sold the same in its favour. The case of the plaintiff, as stated in the plaint, is that it purchased 1/12th share in the above said land, vide registered sale deed dated 19.4.1996 for ` 1.57 lakhs and mutation was sanctioned on the basis thereof in its favour on 29.4.1996. It also purchased 1/12th share in that land from Shanti Devi, vide sale deed dated 29.7.1996 for ` 4.80 lakhs and mutation on the basis thereof was sanctioned on 14.11.1996. It further purchased 1/12th share of Tej Kaur in this land vide sale deed dated 28.4.1999 for ` 3 lakhs and mutation was sanctioned on the basis of that sale deed in its favour. 1/12th share of Rajinder Singh in this land was purchased by its President on 3.10.2001 when an agreement to sell was executed in its favour by Rajinder Singh, after receiving the full sale consideration. Registered power of attorney dated 22.10.2001 was executed by him in its favour. It filed a suit for permanent injunction against Varinder Kumar-defendant/respondent, Rajinder Singh and Tej Kaur on 27.2.1999 regarding the suit land in which the defendants filed written statement on 6.9.1999. From the contents of that sale deed, it came to its knowledge that Rajpal and Tej Kaur illegally executed an agreement to sell this land in favour of the defendants and on the basis of the above said agreements, a decree for specific performance was obtained by the defendant. This decree and the mutation of ownership in favour of the defendant are illegal, null and void and not binding on its rights. The suit was contested by the defendant. He pleaded therein that Rajpal and Tej Kaur entered into an agreement to sell 1 bigha 12-1/2 biswas of land in his favour on 16.12.1982. They failed to perform their RSA No. 786 of 2009 3 part of the contract and accordingly he filed a suit for specific performance against them, which was decreed, vide judgment and decree dated 22.7.1987. The President of the plaintiff-Society had the notice of the agreement as well as of the judgment and decree and inspite of the knowledge, manipulated sale deed dated 19.4.1996 in collusion with Raj Pal and the same is illegal, null and void. Similarly, other sale deed dated 29.7.1996 is also illegal, null and void and without consideration. Those sale deeds do not create any right, title or interest in favour of the plaintiff. On these pleadings, the following issues were framed:- “1) Whether the decree for specific performance of contract for sale passed on 22.7.1987 by Shri M.P.Mehandiratta the then SJIC, Gurgaon in case No. 740 dated 25.11.1983 titled as Virender Kumar Vs. Raj Pal etc. is illegal, void abinitio and obtained by fraud and misrepresentation and create no right in favour of the defendant ? OPP 2) Whether the mutation No. 18807 sanctioned on 18.6.96 on the basis of the aforesaid decree dated 22.7.1987 is also illegal and not binding upon the ownership rights of the plaintiff ? OPP 3) Whether the suit is not maintainable in the present form ? OPD 4) Whether the plaintiff is estopped from filing the present suit by its act and conduct ? OPD 5) Whether the suit is barred by limitation ? OPD 6) Whether the plaintiff has no cause of action and locus- RSA No. 786 of 2009 4 standi to file the present suit ? OPD 7. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction ? OPD 8. Whether the plaintiff has not come to the Court with clean hands ? OPD 9) Relief.” To prove its case, the plaintiff examined Sita Ram Singal (PW- 1) and Pawan Kumar Gupta (PW-2). On the other hand, the defendant examined himself as DW-1 and Hem Raj Khatana (DW-2). After going through the evidence, so produced on record and hearing learned counsel for both sides, the learned trial court decided issues No. 1 to 3 against the plaintiff and other issues against the defendants and resultantly dismissed the suit, vide aforesaid judgment. The plaintiff preferred first appeal against the judgment and decree but the same was also dismissed, as aforesaid. I have heard learned counsel for the appellant. The defendants filed civil suit No. 373 of 12.2.1999/22.12.2007 against the present plaintiff, Shanti and Rajinder for permanent injunction restraining them from selling/alienating one bigha and 12-1/2 biswas out of the present land in dispute, measuring 3 bigha 5 biswa. That suit was decreed by the Civil Judge (Jr. Divn.), Gurgaon, vide judgment and decree dated 22.4.2008. The present plaintiff preferred an appeal against that judgment and decree which was dismissed by the Additional Sessions Judge, Gurgaon, vide judgment and decree dated 27.9.2008. Against that judgment and decree, the present plaintiff preferred second appeal (RSA No. 787 of 2009), which was dismissed by this court, vide judgment of even date. RSA No. 786 of 2009 5 In view of that judgment, which has been pronounced today, it has been submitted by the learned counsel for the plaintiff/appellant that no substantial question of law arises in the present appeal. Accordingly, this appeal is dismissed. September 21, 2010 (GURDEV SINGH ) prem JUDGE