1 RSA No. 1740 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ---- R.S.A. No. 1740 of 2009 Date of Decision: 27.4.2009 Ghuman and others --- Appellants Versus Gurdev Singh and others --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL ---- PRESENT: Mr. O.P. Hoshiarpuri, Advocate for the appellants. ---- AJAY KUMAR MITTAL, J. The appellants, Ghuman Singh and others are the legal heirs of Sher Singh, defendant No.1. The plaintiff-respondent No.1, Gurdev Singh, filed a suit for possession by way of specific performance of an agreement dated 9.6.2000 executed by Sher Singh, defendant No.1, to sell the land measuring 44 Kanals 6 Marlas situated in village Jalalwala, Tehsil and District Ferozepur, in favour of the plaintiff, for a total consideration of Rs. 8,58,315/- after adjusting a sum of rupees four lacs paid in advance as a part payment of the amount of sale consideration. It was also prayed that in case the court comes to the conclusion that the plaintiff was not 2 RSA No. 1740 of 2009 entitled to the possession of the suit land, then as an alternate relief, a decree for the recovery of rupees four lacs may be passed in his favour, besides granting compensation and damages to him in the sum of Rs. 4,58,315/- for breach of the terms and conditions of the agreement to sell by defendant No.1. It was further pleaded that the sale deed was agreed to be executed and registered on 9.10.2000 after payment of the balance amount of the sale consideration. The plaintiff reported to the office of the Sub Registrar on 9.10.2000 for the purpose of execution of the sale deed but defendant No.1 did not turn up and ultimately, the plaintiff got his presence marked. It was, thus, pleaded that the plaintiff had always been ready and willing to perform his part of the agreement to sell whereas defendant No.1 had been avoiding to act in terms of the agreement to sell. Defendant No.1 even, with a mala fide intention, obtained a loan of Rs. 50,000/- from the Punjab National Bank (defendant No.2) and created simple mortgage in favour of the said bank in respect of the land comprised of rectangle No. 22 Killa No. 3/2(4-16), 8(9-18) which was part of the suit land. Defendant No.1 further obtained another loan of Rs. 2,90,000/- from the State Bank of India (defendant No.3) and created simple mortgage in respect of the land comprised in rectangle No. 7, Killa Nos. 17/1, 17/2, 23 and 24 which was also part of the suit land. The plaintiff further pleaded that defendant Nos. 2 and 3 were not the bona fide 3 RSA No. 1740 of 2009 transferees and the land in question ought to be deemed to be free from all encumbrances. Defendant No.1, in his written statement, pleaded that the agreement in question to sell the suit land was a forged and fabricated document which had been prepared by one Gurdip Singh in connivance with the plaintiff, its scribe and the marginal witnesses. Though defendant No.1 admitted his ownership over the suit land but specifically denied the execution of the agreement to sell; affixing his thumb impressions thereon, and the receipt of earnest money. It was pleaded that defendant No.1 had blind faith on one Gurdip Singh who, taking undue advantage of the illiteracy of defendant No.1, forged and fabricated the agreement in question to sell the suit land. Defendant No.1, however, admitted having obtained loan from the banks as alleged by the plaintiff. Defendant No.2 in its written statement pleaded that defendant No.1 was not competent to enter into any agreement of sale regarding the land in dispute. Defendant No.3 in its written statement pleaded that it was not in the knowledge of the answering bank that defendant No.1 had executed the agreement to sell, dated 9.6.2000, when a loan of Rs. 2,90,000/- was given to him against the security of the tractor and the mortgage of the land. Defendant No.1 had furnished his affidavit to the answering bank stating that he had not entered into any agreement to sell and moreover the loan was granted after due verification of the revenue documents 4 RSA No. 1740 of 2009 given by defendant No.1 and, therefore, the rights of the answering defendant were not to be affected in any manner, vis- à-vis the liability of defendant No.1 to perform his part of the agreement in question to sell the land in dispute. The trial court on appraisal of the evidence on record declined the relief for possession of the suit land. It transpired that the suit land had been transferred to defendant No.1, Sher Singh, through conveyance deed dated 4.11.1999 and there was a stipulation in the said deed that Sher Singh could not alienate the suit land for 20 years, i.e. before the year 2019. On this fact being found established on the record, learned counsel appearing for the plaintiff submitted before the trial court that even if that was so, the agreement to sell in question was wholly and legally enforceable though, of course, the alienation of the suit land, would be voidable qua the Government. This submission, however, did not appeal to the trial court. The trial court, thus, holding that since there was a specific recital in the conveyance deed dated 4.11.1999 that defendant No.1 would not transfer the suit land for 20 years, the relief of specific performance would not only frustrate the issuance of conveyance deed but will result in multiplicity of litigation involving the Government as well. In these circumstances, the trial court granting the alternate relief of recovery of rupees four lacs along with interest, decreed the suit vide judgment and decree dated 28.8.2008. The first appellate 5 RSA No. 1740 of 2009 court also concurred with the findings recorded by the trial court and dismissed the appeal carried by defendant No.1. I have heard learned counsel for the appellants and have gone through the record with his assistance. Learned counsel appearing for the appellants submitted that the findings recorded by the courts below were wrong and illegal and this Court should record an independent finding after re-appreciating the evidence. But this is not permissible in view of the impediment contained in the provisions of Section 100 of the Code of Civil Procedure. In any case, the findings recorded by the courts below are based on the oral as well as the documentary evidence and also on the sound reasoning. No illegality or perversity could be shown by the counsel in the said findings so as to persuade this Court to interfere therewith in second appeal. No substantial question of law arises nor has any been pointed out by the counsel, for consideration of this Court. In view of the above, there is no merit in the appeal and the same is dismissed in limine. (AJAY KUMAR MITTAL) April 27, 2009 JUDGE *rkmalik*