RSA No.2494 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.7287-C of 2008 & RSA No.2494 of 2008 Decided on : 05.11.2009 Kashmir Singh ... Appellant versus Balkar Singh & others ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. D.K.Kaushal, Advocate for the appellant. **** 1.Whether Reporters of local newspapers 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? AJAY TEWARI, J. (ORAL) CM No.7287-C of 2008 For the reasons mentioned in the application, delay of 3 days in filing the appeal is condoned. CM stands disposed of. RSA No.2494 of 2008 This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the appellant challenging the sale deed dt. 16.05.1990. The plea taken by the appellant was that the power of attorney on the basis of which the sale was made, was actually cancelled on 11.05.1990. Both the courts below have held against the appellant RSA No.2494 of 2008 -2- holding that in fact he had entered into agreement to sell in the year 1986 and obtained a sum of Rs.1 lacs. However, since the proprietary rights were not confirmed in favour of the appellant, he had executed agreement to sell as well as power of attorney and it was on the basis of this power of attorney that the sale was made. The courts below also noticed that the appellant gave no notice for cancellation of power of attorney to the attorney. The following questions have been proposed: i) Whether the findings of both the courts below are against law and legally and factually unsustainable as per grounds of appeal given in para No.3 and also in the other paras? ii)Whether the appellant is a Scheduled Caste and there was an embargo in the sale certificate that he could not alienate the land in dispute till the expiry of 20 years to any non-scheduled caste candidate and the alleged sale deed is ab initio and even not binding upon the appellant? The main argument has been raised on question No. (ii). Learned counsel for the appellant has argued that as per the condition of allotment, the land could not have been alienated for a period of 20 years and thus, the agreement to sell and power of attorney (for sale) are void. He had relied upon the decision of this court in the case of Ajit Singh vs. Gurcharan Singh & others, reported as 2009 Volume 1 RCR (Civil) page 154 (where there was a restriction on Nazool Land) wherein this Court RSA No.2494 of 2008 -3- has held as follows: “On the other hand, in the case of Ramachandraiah (supra), it has been held that if there is a bar to alienate the property, title cannot be conveyed. Therefore, no court can order specific performance of an agreement where the vendor is not competent to sell the property. The only alternative is to grant damages as per the conditions made in the agreement.” In my opinion, this judgment is distinguishable. True, it may be that a Court may not be in a position to decree a suit for specific performance of such an agreement but courts have also granted refund of earnest money along with damages on the ground of equity. In the present case, however, this is not the position. Here it is the vendor who challenged the sale deed executed by him as per which the rights have been crystallized. Of course, the dismissal of the suit could not have the effect of debarring the allotting authority to take any action but the vendor cannot get any benefit. Learned counsel for the appellant has also relied upon the case of Bhadrappa (dead) by Lrs vs. Tolacha Naik reported as 2008 Volume 2 SCC 104 wherein the Hon'ble Supreme Court upheld the constitutional validity of similar restrictive clauses on the rights of allottees again the fact that the appellant has sold the land in violation of terms grand to him would not have the effect of validating the transfer viz-a-viz the allotting authority. However, in my opinion, a vendor cannot challenge the contract entered into by him. Consequently, all the proposed questions are to be held against the appellant. RSA No.2494 of 2008 -4- This appeal is dismissed. November 05, 2009 (AJAY TEWARI) sonia JUDGE