REGULAR SECOND APPEAL No.3962 OF 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3962 of 2008 DATE OF DECISION: 23 rd MARCH, 2011 Ajit Singh & others .... Appellants Versus Jasmer Singh .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. P. K. Gupta, Advocate for the appellants. Mr. Dhirender Chopra, Advocate for the respondent. * * * * L.N. MITTAL, J. (ORAL) This is second appeal by legal representatives of original plaintiff Satnam Singh, since deceased, having remained partly successful in both the courts below. At the outset, it is to be noticed that memo of parties is not properly framed. There were five legal representatives of the plaintiff but names of only three of them have been mentioned in the memo of parties as appellants. Two other names appear to have been omitted by clerical or typographical error. In first appeal, all the five names were mentioned. Accordingly as orally prayed for, all the five legal representatives as mentioned in judgment of the trial court shall be deemed to be appellants. Necessary correction in the memo of parties be made by the office. Defendant-respondent Jasmer Singh has died during the pendency of the instant second appeal as intimated by his counsel on the preceding date of REGULAR SECOND APPEAL No.3962 OF 2008 -2- hearing. However, necessary steps for impleading his legal representatives have not been taken although the case was adjourned for today for this purpose. Learned counsel for the respondent states that legal heirs of the respondents have not contacted him. However, in view of amendment made by this Court in order 22 Rule 4 of the Code of Civil Procedure, the appeal does not abate and judgment can be pronounced notwithstanding the death of the respondent and it shall have be same effect as if it has been pronounced before the death took place. In view thereof, learned counsel for the parties including learned counsel for the respondent have been heard. Satnam Singh – plaintiff filed suit against Jasmer Singh – defendant-respondent for possession of suit land by specific performance of agreement to sell. The plaintiff alleged that the defendant agreed to sell 7 Bighas 8 Biswas land of Khasra No.379(3-9) and 380 min (3-19) to the plaintiff @ Rs.2,75,000/- per acre and received Rs.1,50,000/- as earnest money and executed agreement dated 10.12.1998. Sale deed was to be executed up to 10.04.1999. However on 06.04.1999, the defendant by making endorsement on the back of agreement received further amount of Rs.25,000/- and extended the date of execution of sale deed up to 10.05.1999. Again on 10.05.1999, the defendant by executing supplementary agreement extended the date of execution of the sale deed upto 25.05.1999 while acknowledging the receipt of Rs.1,75,000/- as mentioned hereinbefore. The plaintiff always remained ready and willing to perform his part of the contract and even attended the office of Sub-Registrar on 25.05.1999 to get the sale deed executed in terms of the agreement. But the defendant did not turn up and committed breach of the agreement. It was also pleaded that defendant is co-sharer in 162 Bighas 1 Biswa land of which the aforesaid suit land measuring 7 Bighas and 8 Biswas is REGULAR SECOND APPEAL No.3962 OF 2008 -3- a part and if the suit is not decreed for specific 7 Bighas 8 Biswas land of Khasra Nos.379 and 380 min, then the suit may be decreed regarding share in the joint land to the extent of 7 Bighas 8 Biswas. The defendant broadly denied all the plaint allegations. He denied having executed original agreement dated 10.12.1998, endorsement dated 06.04.1999 and supplementary agreement dated 10.05.1999. He also denied having received any earnest money from the plaintiff. It was pleaded that plaintiff was married in defendant's village and was, therefore, known to him. The defendant had good relations with plaintiff's father-in-law. On account thereof, the plaintiff in connivance with his father-in-law might have got signature of the defendant on blank stamp papers under influence of liquor and might have prepared the impugned agreement to sell. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Rajpura vide judgment and decree dated 24.11.2004, instead of decreeing the suit for specific performance of the agreement, decreed the suit for recovery of Rs.1,75,000/- with interest thereon @ 12% per annum from the respective dates of payment i.e. Rs.1,50,000/- paid on 10.12.1998 and Rs.25,000/- on 06.04.1999, till decree of the trial court and future interest on the total amount of Rs.1,75,000/- @ 6% per annum from the date of decree till recovery. Both the parties preferred first appeals against the judgment and decree of the trial court. However, Learned Additional District Judge, Patiala vide common judgment and decrees dated 05.08.2008 dismissed both the appeals. Feeling aggrieved, only legal representatives of the plaintiff have preferred instant second appeal. I have heard learned counsel for the parties and perused the case file. REGULAR SECOND APPEAL No.3962 OF 2008 -4- Execution of the original agreement dated 10.12.1998 has been proved by examining its scribe Inderjit Sharma, Deed Writer PW-5 and one attesting witness Amrik Singh PW-4. Execution of endorsement dated 06.04.1999 has been proved by examining its scribe Inderjit Sharma and one attesting witness Harbans Singh PW-1. Similarly supplementary agreement dated 10.05.1999 has been proved by examining its attesting witnesses Dilbag Singh PW-2 and Harbans Singh PW-1. Aforesaid evidence of the plaintiff stands completely unrebutted. The defendant did not dare to enter the witness box and, therefore, strong adverse presumption arises against the defendant. In addition to it, the defendant in his written statement impliedly admitted his signatures on the impugned agreement. His pleading that his signatures might have been obtained under the influence of liquor on blank paper, remains completely unsubstantiated. Even otherwise, if signatures were to be obtained on blank papers, there was no necessity of preparing endorsement dated 06.04.1999 and supplementary agreement dated 10.05.1999. Moreover, below endorsement dated 06.04.1999, the defendant, besides signing the same, also wrote in his own handwriting about receipt of Rs.25,000/- in cash. Consequently, preparation of the said endorsement on blank signed paper is reasonably ruled out. Plaintiff has also proved that he has always been ready and willing to perform his part of the contract and finding to this effect stands affirmed by the lower appellate court. Similarly finding of the trial court regarding due execution of the agreement by the defendant and receipt of total earnest money of Rs.1,75,000/- also stands affirmed in first appeal. The said concurrent findings of the courts below have not been challenged by the defendant by filing any second appeal or cross-objections. The said findings are based on proper REGULAR SECOND APPEAL No.3962 OF 2008 -5- appreciation of evidence and are supported by cogent reasons recorded by the courts below and are not shown to be perverse of illegal nor the same are based on misreading and mis-appreciation of evidence. Consequently, the said findings, which also remain unchallenged, do not warrant interference in second appeal. Plaintiff has been declined relief of specific performance of the agreement by the courts below on the ground that defendant was only co-sharer in the joint land and, therefore, he had no right to alienate the land of specific Khasra numbers out of the joint land without consent of other co-sharers and without consent of mortgagees with whom the defendant had mortgaged the suit land by way of simple mortgage and without impleading the other co-sharers and mortgagees as party to the suit. This approach of the courts below is patently perverse and illegal and, therefore unsustainable. The defendant himself agreed to sell land of specific Khasra numbers out of the joint land and, therefore, the defendant cannot say that he had no right to alienate the same. Apart from it, sale of land of specific Khasra numbers out of joint land also amounts to sale of share of joint land and is subject to partition of the joint land, as held by Full Bench of this Court in the case of Bhartu v. Ram Sarup, 1981 P.L.J. 204 . Consequently, there is no ground for declining the relief of specific performance of the impugned agreement to the plaintiff when it has been held by both the courts below that execution of the agreement along with subsequent endorsement and supplementary agreement stands proved and the plaintiff always remained ready and willing to perform his part of the contract. It is thus manifest that the plaintiff is entitled to specific performance of the impugned agreement to sell. Substantial question of law as to whether declining of relief of specific performance of the impugned agreement to sell is perverse and illegal REGULAR SECOND APPEAL No.3962 OF 2008 -6- and unsustainable in law in the facts and circumstances of the instant case, arises for determination in the instant second appeal. The same is answered in favour of the appellants for the reasons recorded hereinbefore. As a necessary upshot of the aforesaid discussion, the instant second appeal is allowed and judgments and decrees of the courts below are modified and plaintiff's suit is decreed with costs throughout, for possession of 7 Bighas 8 Biswas land by specific performance of agreement to sell dated 10.12.1998 along with endorsement dated 06.04.1999 and supplementary agreement dated 10.05.1999. The decree shall be to the extent of 7 Bighas 8 Biswas land out of share of defendants in 162 Bighas 1 Biswa joint land and not regarding land of specific Khasra Nos.379 and 380 min because defendant was not in exclusive possession thereof as per Jamabandi placed on record and, therefore, the sale shall be of share in joint land to the extent of 7 Bighas 8 Biswas land. The appellants shall deposit the balance sale consideration in the trial court within two months from today. Thereupon the defendant-respondent shall execute requisite sale deed in favour of the appellants, failing which, the appellant shall be entitled to get the sale deed executed through court. (L. N. MITTAL) JUDGE 23rd March, 2011 'raj'