RSA No.2239 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.2239 of 2009 (O&M) DATE OF DECISION: 08.07.2010 **** Smt. Santri Devi . . . . Appellant VS. Rajnish Kumar and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Vishal Aggarwal, Advocate for the appellant. Mr.Ashwani Gaur, Advocate for respondent No.1. **** RAKESH KUMAR JAIN J. This appeal is preferred only at the instance of defendant No.3 against the judgment and decree of the Trial Court whereby the suit of the plaintiff has been decreed directing defendants No.1 & 2 to execute sale deed within three months from the date of decree after receiving balance sale consideration of Rs.1,08,800/-. The defendants were also restrained from interfering in the peaceful possession of the plaintiff over the suit land. In brief, the case of the plaintiff is that defendant No.1 (Mukesh Kumar) owner of plot measuring 84 square yards, entered into an agreement to sell it to the plaintiff through his Power of Attorney/defendant No.2 (Raj Kumar) on 17.6.2002 for a total sale RSA No.2239 of 2009 (O&M) -2- consideration of Rs. 1,08,8000/- after receiving Rs.20,000/- towards earnest money. The target date for execution of sale deed was 17.8.2002 on payment of balance sale consideration. At the time of agreement to sell, the plaintiff was put in possession of the suit property. Since, 17.8.2002 was Saturday and 18.8.2002 was Sunday, therefore, the plaintiff asked defendant No.2 to remain present in the office of Sub Registrar on 19.8.2002 for the purpose of execution of the sale deed. The plaintiff had purchased stamp papers for the registration of the sale deed of the half share of the suit property as the remaining half share was to be executed in favour of his father. It is alleged that on 19.8.2002, defendant No.2 visited the office of the concerned Registrar and on the pretext of reading the agreement to sell, he made an endorsement on its back indicating that the plaintiff had requested for execution of the sale deed in respect of half share of the suit land in favour of defendant No.3/appellant, which was though not acknowledged by the plaintiff as a result of which defendant No.2 expressed his inability to perform his part of the contract and went away from the office of the Sub Registrar. Later on, defendant No.2 refused to execute the sale deed and rather defendant No.3 and 4, on 20.8.2002, tried to trespass into the suit property and threatened to dispossess the plaintiff forcibly on the pretext that the half share of the suit property has been purchased by the appellant vide sale deed No.3454/1 dated 31.7.2002. The suit was contested jointly by defendants No.1 to 4 in which it was alleged that the impugned sale deed dated 31.7.2002, pertaining to half share of the disputed plot, was executed in favour of defendant No.3 by defendant No.2 was at the instance of the plaintiff. It is also alleged that defendant No.2 had spent an amount of Rs.35,000/- for raising construction over the remaining portion of the suit property and if the RSA No.2239 of 2009 (O&M) -3- plaintiff is ready and willing to make the payment of remaining amount of sale consideration i.e. Rs.50,400/- and the amount spent on the construction, defendant No.2 would be ready and willing to execute the sale deed of remaining half portion of the suit property. Insofar as the possession of the plaintiff over the disputed plot is concerned that was denied. On the pleadings of the parties, following issues were framed: - “i) Whether defendant no. 2 being the attorney of defendant No.1entered into an agreement to sell dated 17.6.2002, alleged? OPP. ii) Whether the plaintiff has always been and is still ready and willing to perform his part of the contract? OPP iii) Whether the sale deed dated 31.7.2002, bearing Vasika No.3454/1 executed by defendant No.1 in favour of defendant No.3 in respect of half share of the suit property is illegal, null and void? OPP iv) Whether the plaintiff deserves for the relief of injunction prayed for? OPP v) Whether the suit is not maintainable in the present form? OPD vi) Whether the suit is bad for misjoinder or necessary parties? OPD vii) Whether the plaintiff has got no locus standi to file the suit? OPD viii) Whether the plaintiff is estopped by his own act and conduct to file the suit?OPD ix) Relief.” The learned trial Court while dealing with issues No.1 to 4 arrived at a conclusion that defendant no.2 being the attorney of defendant No.1 had entered into an agreement to sell with the plaintiff on 17.6.2002, who has always been ready and willing to perform his part of the contract and that sale deed dated 31.7.2002 executed by defendant RSA No.2239 of 2009 (O&M) -4- No.1 in favour of defendant No.3 in respect of half share is illegal, null and void and the plaintiff was held entitled to the relief of injunction. Before the First Appellate Court also, the entire emphasis was laid on the impugned sale deed dated 31.7.2002 on the ground that the same was permitted by the plaintiff with an endorsement on the agreement to sell itself. In this regard, the learned First Appellate Court has recorded his findings as under: - “The first bone of contention between the parties has been as to whether impugned sale deed dated 31.7.2002, in respect of the half share of the disputed property was executed in favour of defendant-appellants No.3 at the instance and with consent of the plaintiff-respondent or not. A thorough look on the evidence shows that it is not disputed by the parties that the entire amount of earnest money was paid by plaintiff-respondent himself. In fact there is no evidence worth the name to show that half amount of the earnest money was paid either by defendant- appellant No.3 or by her husband defendant-appellant No.4. Regarding plea of a bonafide purchaser, the defendant-appellants have taken the stand that from the endorsement made at Point B at the back of agreement to sell Ex.PW 1/1 dated 17.06.2002, where it has been mentioned that sale deed qua 42 sq yard has been executed in favour of defendant – plaintiff no.3 and the sale deed regarding the remaining 42 sq. yard is to be executed, RSA No.2239 of 2009 (O&M) -5- it is established that plaintiff had given his consent. Admittedly the said endorsement at Point B at the back of agreement to sell Ex.PW1/1 dated 17.06.2002 is not signed by any body nor any date has been mentioned on the same. Admittedly the said agreement to sell Ex.PW1/1 dated 17.06.2002 since the time of execution of the same had been in possession of the plaintiff – respondent and thus in these circumstances it was incumbent upon the plaintiff to prove as to how and in what circumstances that writing at Point B at the back of the agreement to sell Ex.PW1/1 had come in existence. In order to discharge the burden of this fact, the plaintiff in his plaint has taken a specific stand that on 19.08.2002 when defendant-appellant no.2 had arrived in the office of concerned Registrar for the execution and registration of the sale deed, he had taken away the agreement to sell Ex.PW1/1 on the pretext of reading the same and during that period. He had made the alleged endorsement on the same. The plaintiff while stepping into the witness box as PW1 has fully substantiated the stand taken in the plaint and a specific stand had been taken by the plaintiff that the said writing at Point B at the back of the agreement to sell Ex.PW1/1 had been made by defendant-appellant No.2. Thus, it was incumbent upon defendant RSA No.2239 of 2009 (O&M) -6- – appellant no.2 to disprove this fact by way of getting his handwriting compared with the said writing. Moreover, if the version of the defendant that the impugned sale deed in favour of defendant no.3 was executed at the instance of the plaintiff is believed to be true, then as per the prudent behaviour of human being, the said writing should have been got attested from the witnesses and the same should have also been signed by the parties to the litigation because on the agreement to sell Ex.PW1/1, there have been signatures of the parties to the agreement as well as attesting witnesses. The defendant – appellants in their written statement have also taken a specific stand that there was a secret contract between defendant no.4 and the plaintiff but defendant no.4 in his statement as DW1 during his cross examination has specifically denied any agreement between him as well as the plaintiff. Further, a perusal of the agreement to sell Ex.PW1/1 shows that towards the end, there is a stipulation that the possession of the disputed property has been handed over to the purchaser for construction of the house and the said stipulation has been recorded below the signatures of the parties to the contract and attesting witnesses. If the stand of the defendants regarding stipulation that the same was inserted later on is believed RSA No.2239 of 2009 (O&M) -7- then there is no explanation as to how and in what circumstances defendant no.2 had affixed his signatures below the said stipulation. This fact has not been disputed that defendant no.4 who is the husband of the defendant no.3 was the attesting witness to the said agreement to sell Ex.PW1/1 and this thus in view of these facts and circumstances, by no stretch of imagination, it can be constructed that defendant no.3 was not aware of the previous contract with the plaintiff and thus she is not entitled to take plea of a bona fide purchaser for a valuable consideration without notice. Thus, in view of these facts and circumstances, it is explicit that the impugned sale deed was not executed at the instance and with the consent of the plaintiff. In this case, defendant No.2 has not denied the execution of the agreement to sell. He has also not denied the execution of sale deed of half share of plot measuring 84 square yards in favour of the plaintiff. Thus, the dispute is basically with regard to the remaining half share which is alleged to have been sold by defendant No.1 in favour of defendant No.3/appellant, and the question is as to whether there has been any concurrence on the part of the plaintiff, permitting defendant No.1 to travel beyond the agreement to sell, in order to execute the sale deed of half share of the suit land, in favour of defendant No.3. Although, learned counsel for the appellant has argued the case with all vehemence at his command but he has miserably failed to cause a dent in the finding of fact recorded by the Courts below, after appreciation of RSA No.2239 of 2009 (O&M) -8- evidence on record, that the said endorsement on the back of the agreement to sell cannot be believed as the same has not been signed or ratified by the plaintiff. A bare perusal of agreement to sell would show that after the addition of one line regarding delivery of possession, the seller and father of the purchaser had put their respective signatures under that line, therefore, it is unbelievable that after creating a new right in favour of seller and the prospective buyer/appellant of half portion of disputed land, it would not be signed by the plaintiff. In view of the above, I do not find any error in the finding recorded by the First Appellate Court in para No.12 of the impugned judgment nor do I find any substantial question of law as envisaged under Section 100 of the Code of Civil Procedure, 1908 (for short ‘CPC’) as such the present appeal is devoid of any merit and is hereby dismissed though, without any order as to costs. (RAKESH KUMAR JAIN) 08.07.2010 JUDGE Vivek