RSA No.4788 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4788 of 2010(O&M) Date of Decision: 15.12.2010. Aamin .....Appellant Versus Jakir Hussain and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Arun Jain, Sr. Advocate with Mr. Vishal Goel, Advocate for the appellant. L. N. MITTAL, J (ORAL) Main Appeal and CM No.14267-C of 2010 Defendant No.2-Aamin has filed the instant second appeal. Respondent No.1-plaintiff Jakir Hussain filed suit against proforma respondent No.2 Smt. Firozi-defendant No.1 and against appellant-Aamin-defendant No.2 for possession of suit land by specific performance of the agreement alleging that defendant No.1 agreed to sell the suit land to the plaintiff for Rs.20,00,000/- and received Rs.16,50,000/- as earnest money and executed agreement dated 01.08.2007. Sale deed was to be executed upto 30.07.2008. The plaintiff always remained ready and willing to perform his part of the contract. He also offered the balance consideration with expenses of sale deed to defendant No.1, but she did not perform her part of the contract. On 30.07.2008, the plaintiff went to the office of Sub-Registrar with requisite money to get the sale deed executed and registered in terms of the agreement, but defendant RSA No.4788 of 2010(O&M) -2- No.1 did not turn up and committed breach of the agreement. The plaintiff learnt from Halka Patwari that defendant No.1 had executed release deed dated 22.08.2007 in favour of defendant No.2 appellant alleging him to be her son. Defendant No.2 is not son of defendant No.1. Release deed has been executed to only defeat the impugned agreement. Defendant No.1 admitted that she agreed to sell the suit land to plaintiff for Rs.20,00,000/- and executed the aforesaid agreement and received Rs.16,50,000/- from the plaintiff. Defendant No.1, however, pleaded that Khachedu son of Jagroop committed fraud with defendant NO.1. Said Khachedu and defendant No.1 had sold 2 marlas land to Smt. Jaiboon Nisha on 22.08.2007 vide registered sale deed, but Khachedu in order to grab the suit land of defendant No.1 by fraud depicted his grand son Aamin-defendant No.2 as son of Mamla (deceased husband of defendant No.1) whereas in fact defendant No.2 is son of Saddiq son of Khachedu. Defendant No.2 is neither son of defendant No.1 nor son of her deceased husband. On account of alleged release deed, defendant No.1 could not execute sale deed in favour of plaintiff in terms of the agreement. Defendant No.1 was also initiating legal action against defendant No.2 and Khachedu and other concerned persons regarding fraud committed in obtaining the alleged release deed. In fact defendant No.1 never executed any release deed in favour of defendant No.2. Defendant No.2 was proceeded ex parte. Learned Additional Civil Judge (Senior Division), Nuh, vide judgment and decree dated 14.06.2010 decreed the plaintiff’s suit. First appeal preferred by defendant No.2 has been dismissed RSA No.4788 of 2010(O&M) -3- by learned Additional District Judge, Nuh vide judgment and decree dated 19.11.2010. Feeling aggrieved, defendant No.2 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Impugned agreement executed by defendant No.1 in favour of plaintiff stands admitted. The agreement was for consideration of Rs.20,00,000/- out of which defendant No.1 admitted to have received Rs.16,50,000/- at the time of agreement. Consequently, suit filed by the plaintiff has been rightly decreed for specific performance of the said agreement. Stand of the appellant- defendant No.2 is that he was minor and he was not sued through any guardian. It is also alleged that he was adopted by defendant No.1 vide adoption deed dated 16.07.2007 and thereafter defendant No.1 executed relinquishment deed dated 22.08.2007 in his favour. It is also alleged that defendant No.1 had no power or right to sell the suit land to the plaintiff being ancestral property, in view of custom applicable to the parties. Learned counsel for the appellant also vehemently contended, in addition to the aforesaid submissions, that any proceeding against the minor would be nullity. Reliance in support of this contention has been placed on judgment of Division Bench of this Court in the case of Shri Gurpreet Singh versus Shri Chatterbhuj Goel, 1991 PLJ 570. I have carefully considered the aforesaid contentions which apparently appear to be forceful, but in the facts and circumstances of the instant case, the aforesaid contentions cannot be accepted. The appellant along with appeal has also moved CM RSA No.4788 of 2010(O&M) -4- No.14267-C of 2010 for additional evidence to produce adoption deed dated 16.07.2007 Annexure P-1, relinquishment deed dated 22.08.2007 Annexure P-2 and School certificate Annexure P-3 regarding date of birth of the appellant. It has to be noticed that there is no pleading whatsoever at all on behalf of defendant No.2 appellant. In the absence of any pleading, the question of entertaining any evidence much less additional evidence in second appeal would not arise. In the absence of any pleading, the contentions raised on behalf of the appellant that defendant No.1 had adopted defendant No.2 and had executed relinquishment deed or defendant No.2 is minor cannot be entertained. It has to be noticed that trial Court decided the suit vide judgment and decree dated 14.06.2010. First appeal by defendant No.2 was preferred through his natural father and guardian Saddiq on 30.07.2010 i.e. within limitation period. It is thus apparent that the appellant was watching the proceedings of the suit and when the suit was decreed, first appeal was preferred immediately within limitation period. It would depict that the appellant intentionally did not appear in the suit. It is correct that no such inference can be drawn against the minor. However, in the instant case, no such plea was taken in the trial Court that defendant No.2 is minor and consequently, any such plea taken in the appeal cannot be accepted in the absence of pleading and evidence. There is another aspect of the matter. Agreement in favour of the plaintiff is dated 01.08.2007. Consequently, alleged subsequent release deed dated 22.08.2007 executed by defendant No.1 in favour of defendant No.2 would not be binding on the plaintiff RSA No.4788 of 2010(O&M) -5- and consequently, on the basis of release deed, defendant No.2- appellant cannot claim any right, title or interest in the suit land as against the plaintiff. On the contrary, defendant No.2-appellant is also bound by the agreement entered into by his alleged predecessor defendant No.1 with the plaintiff. The plea of custom barring defendant No.1 from alienating the suit land also cannot be accepted in the absnce of any pleading or evidence. Even by way of additional evidence, the alleged custom is not sought to be proved. Even otherwise, as noticed hereinbefore, additional evidence cannot be admitted in the absence of pleadings. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal as well as CM No.14267-C of 2010 for additional evidence stand dismissed in limine. 15.12.2010. ( L. N. MITTAL ) A. Kaundal JUDGE