Regular Second Appeal No.3325 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.3325 of 2007 Date of decision: 17.08.2009 Suresh Kumar s/o Hoshiar Singh s/o Gobind Ram, r/o village Bhadaf, Tehsil and District Mohindergarh. ..... Appellant. Versus 1.Ajit Singh s/o Bhagwan Singh s/o Tula Ram, r/o village Bhadaf, Tehsil and District Mohindergarh. 2.Dharmender s/o Bahadur Singh s/o Ram Chander, r/o Bhadaf, Tehsil and District Mohindergarh. 3.Surender Kumar s/o Bahadur Singh s/o Ram Chander, r/o Bhadaf, Tehsil and District Mohindergarh. ..... Respondents. 4. Sita Ram s/o Tula Ram s/o Manbhar r/o village Badaf, Tehsil and District Mohindergarh. ... Proforma respondent. Regular Second Appeal No.3325 of 2007 -2- CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Mr. Sanjay Mittal, Advocate for the appellant. Ms. Sushma Singh, Advocate for respondent nos. 1 and 2. Respondent no.3 ex-parte. Service of respondent no.4 dispensed with, vide order dt:27.01.2009. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 15.06.2007, rendered by the Court of District Judge, Narnaul, vide which it accepted the appeal and decreed the suit for recovery of Rs.1,50,000/- with interest, against the judgment and decree dated 02.06.2006, rendered by the Court of Additional Civil Judge (Senior Division), Mohindergarh, vide which it decreed the suit for specific performance. 2. The facts, in brief, are that, Sita Ram, defendant no.1 (now proforma Regular Second Appeal No.3325 of 2007 -3- respondent no.4) executed an agreement to sell dated 06.11.1998 in respect of land measuring 8 kanals 18 marlas, in favour of the plaintiff (now appellant), for a total sale consideration of Rs.2,00,000/- and received a sum of Rs.1,50,000/- as earnest money. The date for executing the sale deed was settled as 06.12.1998. It was stated that the possession of the land, in dispute, was handed over to the plaintiff (now appellant), at the time of execution of the agreement to sell. Defendant no.1 had also disclosed that earlier he executed a General Power of Attorney, in favour of Jitender Kumar son of Bhagwan Singh, which was lateron cancelled by him and the original General Power of Attorney was handed over to the plaintiff. It was further stated that the plaintiff always remained ready and willing to perform his part of the contract, whereas defendant no.1 became dishonest, after the execution of Regular Second Appeal No.3325 of 2007 -4- agreement to sell,aforesaid. It was further stated that Jitender Kumar, General Power of Attorney, executed a sale deed, in favour of defendant nos. 2 to 4, in respect of the property, in dispute. It was further stated that the defendants colluded with each other just to defeat the legitimate right of the plaintiff. On the final refusal of defendant no.1 (now proforma respondent no.4) to execute and get the registered sale deed, in favour of the plaintiff, left with no alternative, a suit for specific performance and in the alternative for recovery of Rs.1,50,000/- alongwith interest was filed 3. Defendant no.1, put in appearance, and contested the suit, by way of filing written statement, wherein, it was admitted by him that he executed an agreement to sell dated 06.11.1998 in favour of the plaintiff. He also admitted that he received a sum of Rs.1,50,000/- Regular Second Appeal No.3325 of 2007 -5- as earnest money. He further stated that his real nephew played a fraud with him and got General Power of Attorney, executed and registered from him in his favour. He further stated that he had cancelled the General Power of Attorney. He further stated that he always remained ready and willing to execute the sale deed in favour of the plaintiff. He further stated that the sale deed dated 26.11.1998 was a forged and fabricated document. 4. Defendant nos.2 to 4, put in appearance, and filed separate written statement, wherein, it was stated that they had become the owners of the property, in dispute, vide registered sale deed dated 26.11.1998, after paying the sale consideration of Rs.1,60,000/-. It was further stated by them, that they were in possession of the land, in dispute. It was further stated by them that the sale deed was executed, in their favour, on the basis of agreement to sell dated Regular Second Appeal No.3325 of 2007 -6- 30.09.1998. It was further stated by them that the agreement to sell dated 30.09.1998 was prior in date, than the agreement to sell dated 06.11.1998, in respect of the same property executed in favour of the plaintiff, by defendant no.1. It was further stated that the defendants are the bonafide purchasers. The remaining averments, contained in the plaint, were denied, being wrong. 5. From the pleadings of the parties, the following issues, were struck by the trial Court:- “1- Whether defendant nos.2,3 and 4 are the bonafide purchasers with consideration and without notice of prior agreement? If so its effect ? OPP 2- Whether the defendants are estopped from filing the suit by their own act and conduct ?OPP 3- Whether the suit of the plaintiff is not maintainable in the present form ?OPD Regular Second Appeal No.3325 of 2007 -7- 4- Whether the suit is barred by limitation ?OPD 5- Relief.” 6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court decreed the suit for specific performance. 7. Feeling aggrieved, an appeal was preferred by the appellants/ defendants, which was accepted by the Appellate Court, vide its judgment and decree dated 15.06.2007, and the suit for recovery of the amount with interest was decreed 8. Feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/plaintiff. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. Regular Second Appeal No.3325 of 2007 -8- 10. The following substantial questions of law, arise in this appeal for determination:- “1. Whether the first Appellate Court recorded a perverse finding, on misreading and mis-appreciation of evidence, that a valid agreement to sell dated 30.09.1998 was executed by defendant no.1, through his attorney, in favour of defendants no.2 to 4, in respect of the land in dispute? 2- Whether the first Appellate Court misread and mis-appreciated the evidence and recorded a perverse finding that the plaintiff (now appellant) was only entitled to the recovery of amount alongwith interest ? 11. The Counsel for the appellant submitted that respondent nos. 2 to 4 are the related to defendant no.1. He further submitted that the agreement to sell dated Regular Second Appeal No.3325 of 2007 -9- 30.09.1998, in favour of defendant nos. 2 to 4, was a forged document, having been created just with a view to nullify the agreement to sell, dated 6.11.1998, in favour of the appellant. He further submitted that any sale deed executed on the basis of the agreement to sell dated 30.09.1998 in favour of respondent nos. 2 to 4, was also illegal. He further submitted that the appellant was entitled to the decree for specific performance, which was illegally denied to him, by the first Appellate Court. He further submitted that the judgment and decree of the first Appellate Court, being illegal, were liable to be set aside. 12. On the other hand, the Counsel for respondents, submitted that the execution of the agreement to sell dated 30.09.1998 was duly proved, from the evidence on record. She further submitted that the agreement to sell dated 30.09.1998, which was prior in date than Regular Second Appeal No.3325 of 2007 -10- the agreement to sell dated 06.11.1998 in favour of the plaintiff (now appellant), was not proved to be a forged document. She further submitted that on the basis of the prior agreement to sell which had already been executed, in favour of defendant nos.2 to 4, by the attorney of respondent no.1, the sale deed was validly executed, and they became the bonafide purchasers of the land, in dispute. She further submitted that the judgment and decree of the first Appellate Court , being based on the correct appreciation of evidence, were liable to be upheld. 13. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. Hari Singh, (DW-3), is one of the attesting witnesses of the agreement to sell Ex.DW9/B dated 30.09.1998. He proved the execution Regular Second Appeal No.3325 of 2007 -11- thereof as also the receipt of the earnest money by the attorney of defendant no.1. Satyabir, (DW-4), is another attesting witness of the said agreement to sell. He also corroborated the statement of Hari Singh, (DW-3), with regard to the execution of the said agreement, in respect of the land in dispute, in favour of defendant nos. 2 to 4 by the attorney of defendant no.1. Ajit Singh brother of Jitender Kumar, Attorney of defendant no.1,(DW-7), (Jitender Kumar died on 16.09.2004), also proved the signatures of Jitender Kumar, on the agreement to sell. Dharmender, (DW-8), one of the defendants deposed with regard to the execution of the agreement to sell dated 30.09.1998, in respect of the land, in dispute, in favour of defendant nos. 2 to 4, by the Attorney of defendant no. 1. Ved Parkash Arora (DW-9), Deed Writer, who scribed the agreement to sell dated 30.09.1998, also proved the execution of the same by the Regular Second Appeal No.3325 of 2007 -12- attorney of defendant no.1, in favour of defendant nos.2 to 4. Parbhati Lal, (DW-1) and Duli Chand, (DW-2) are the attesting witnesses of the sale deed Ex.DW9/C dated 26.11.1998, executed, in favour of defendant nos. 2 to 4, on the basis of the agreement to sell dated 30.09.1998, in respect of the land, in dispute, by Jitender Kumar, attorney of defendant no.1. They proved the execution of the said document, as also the payment of sale consideration by defendant nos. 2 to 4 to the attorney of defendant no.1. From the jamabandi for the year 2000-01, (Ex.P-7), produced, on record, it is not proved that Suresh Kumar, plaintiff (now appellant) was put in possession of the land, in dispute. Suresh Kumar, plaintiff (now appellant) took a false plea, to the effect, that he was put in possession of the property, in dispute, at the time of execution of the agreement to sell dated 06.11.1998, in his favour. Nothing could Regular Second Appeal No.3325 of 2007 -13- be brought out, during the course of the cross-examination of the aforesaid witnesses, which may go to reveal that the agreement to sell dated 30.09.1998 and the sale deed dated 26.11.1998 were in any way sham transaction or were the result of fraud. The mere fact that respondent nos. 2 to 4 are related to defendant no.1, did not, in any way, go to prove that the documents i.e. agreement to sell dated 30.09.1998 and the sale deed 26.11.1998 were, in any way, the result of fraud. The first Appellate Court was, thus, right in holding that since the agreement to sell dated 30.09.1998, executed in favour of defendant nos. 2 to 4, by defendant no.1, and the sale deed dated 06.11.1998, were legal and valid documents, the same could not be ignored. The first Appellate Court was also right in holding that no decree for specific performance of the said agreement (dated 06.11.1998) could be Regular Second Appeal No.3325 of 2007 -14- passed, in favour of the plaintiff. The first Appellate Court was, thus, right in setting aside the findings of the trial Court, that the plaintiff was entitled to specific performance of the agreement to sell dated 06.11.1998. 14. No doubt, defendant no.1, in the written statement took up the plea that he cancelled the power of attorney, executed, in favour of Jitender Kumar, and, as such, he (Jitender Kumar) was not competent to execute the agreement to sell, on the basis of such power of attorney, in favour of defendant nos. 2 to 4, nor was competent to execute the sale deed, on the basis of said agreement to sell, in their favour. However, Sita Ram, defendant no.1, did not appear as his own witness, to state that the power of attorney, executed by him, in favour of Jitender Kumar, was cancelled. Even no cancellation deed was produced, on the record. In these circumstances, it was not Regular Second Appeal No.3325 of 2007 -15- proved that the power of attorney, which was executed by defendant no.1, in favour of Jitender Kumar, was ever cancelled. Devender Kumar, Registration Clerk, (DW-5), stated that if the power of attorney is to be cancelled, a cancellaton deed is required to be executed for that purpose. The plea taken up by defendant no.1 regarding the cancellation of the power of attorney, executed in favour of Jitender Kumar, therefore, only remained a plea, and was not substantiated through any evidence on record. It appears that defendant no.1, by admitting the claim of the plaintiff, colluded with him, just with a view to cause harm to the interests of defendant nos. 2 to 4, which had been created, in their favour, on the basis of the sale deed dated 26.11.1998, executed on the strength of the agreement to sell dated 30.09.1998. 15. The first Appellate Court was also right in coming to the conclusion Regular Second Appeal No.3325 of 2007 -16- that since the execution of the agreement to sell dated 06.11.1998, in favour of the plaintiff, was proved by the plaintiff, and the same was also admitted by defendant no.1, in the written statement, though he ( plaintiff ) was not entitled to the decree for specific performance, in the peculiar facts and circumstances of the case, yet was entitled to the recovery of the amount of earnest money, already paid by him, alongwith interest. 16. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based on the correct reading and due appreciation of evidence and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference. The judgment and decree of the first Appellate Court, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. The Regular Second Appeal No.3325 of 2007 -17- substantial questions of law, depicted above, are answered against the appellant. 17. For the reasons recorded above, the appeal being devoid of merit, must fail, and the same stands dismissed with costs. ( Sham Sunder ) August 17, 2009 Judge dinesh