RSA No. 2036 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2036 of 2009 Date of Decision: 08.01.2010 1. Sarmukh Singh son of Kartar Singh; 2. Arvinder Singh son of Partap Singh; both residents of village Hamirgarh, Tehsil Moonak, District Sangrur, through GPA Sh. Ajinder Singh. ... Appellants Versus 1. Balwinder Kaur wife of S. Surjit Singh, r/o Kot Duna; 2. Rupinder Kaur widow of Bharpurinder; 3. Punit Singh minor son of Bharpurinder Singh, under the guardianship of Rupinder Kaur, mother; residents of Bhikhi, District Mansa (Legal representatives of Bharpurinder Singh, who died during the pendency of the suit). 4. Hardev Singh son of S. Balwant Singh (died) through LRs (i) Bhupinder Kaur widow (ii) Surinder Pal Singh (iii) Harjinder Pal Singh, residents of village Hamirgarh, Tehsil Moonak, District Sangrur. 5. Harwinder Singh son of Sukhdev Singh; 6. Bhupinder Singh son of Sukhdev Singh; residents of village Hamirgarh, Sub Tehsil Moonak, Tehsil Sunam, District Sangrur. 7. Nirmal Kaur daughter of Sukhdev Singh and wife of Ajaib Singh son of Roop Singh, resident of Harayao, Tehsil Patran, District Patiala (Legal representatives of Sukhdev Singh, defendant No. 3, who died on 02.02.2000, after the decision of the learned trial Court). 8. Gurinder Singh son of S. Gurdev Singh; 9. Parminder Singh son of S. Gurdev Singh; residents of village Hamirgarh, Sub Tehsil Moonak, Tehsil Sunam, District Sangrur, died now represented through LRs (i) Harinder Kaur (widow) (ii) Kamaldeep Singh (son) and (iii) Sabneet Kaur (daughter); RSA No. 2036 of 2009 2 10. Ms. Malkiat Kaur d/o S. Gurdev Singh, r/o village Hamirgarh, Sub Tehsil Moonak, Tehsil Sunam, District Sangrur (Punjab), at present wife of Sh. Ganda Singh, village Ghanauri, Tehsil Malerkotla, District Sangrur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Akshay Bhan, Advocate, for the appellants. Mr. S.K. Singla, Advocate, for respondents No. 1 to 3. Mr. Amarjit Markan, Advocate, for respondents No. 4 to 6 & 8. Service of respondents No. 7, 9, and 10 dispensed with. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 16.12.99, rendered by the Court of Additional Civil Judge (Senior Division), Sunam, vide which, it dismissed the suit of the plaintiff, and decreed the counter-claim, and, the judgement and decree, dated 05.03.09, rendered by the Court of Additional District Judge, Sangrur, vide which, it dismissed the appeal. 2. The facts, in brief, are that, Bharpurinder Singh (since deceased), defendant No. 1, now represented by his legal representatives, agreed to sell the land, in dispute, in favour of Sarmukh Singh and Arvinder Singh, plaintiffs No. 1 and 2, vide agreement to sell dated 18.04.90 @ Rs. 54,000/- per acre. It was stated that, at the time of execution of the aforesaid agreement, defendant No. RSA No. 2036 of 2009 3 1, received a sum of Rs. 2 lacs, as earnest money, and, thereafter, the possession of the land, in dispute, was delivered, in favour of the plaintiffs, in part performance thereof. It was further stated that the date fixed for the execution and registration of the sale deed was 15.06.90. However, on 15.06.90, defendant No. 1, received further amount of Rs. 2,50,000/-, from the plaintiffs, and executed another agreement, on the back side of the original agreement dated 18.04.90, thereby acknowledging the receipt of the aforesaid amount, and extending the date for execution of the sale deed, upto 31.12.90. It was further stated that defendants No. 2 to 4, had already filed a Civil Suit No. 236 of 06.04.90, against defendant No. 1 and others, challenging the decree dated 14.02.83, passed by the Court of the then Sub Judge 1st Class, Sunam, in Civil Suit No. 15 of 11.01.1983, titled as, 'Balwinder Singh Vs. Balwant Singh'. It was further stated that defendants No. 2 to 4, also challenged mutation No. 2422, sanctioned, on the basis of the said decree. It was further stated that, since defendant No. 1, was restrained from alienating the land, in dispute, in the said Civil Suit, therefore, he could not execute the sale deed, on the basis of the agreement, in question. It was further stated that, on 16.03.91, defendant No.1, executed another agreement, admitting the receipt of Rs. 4,50,000/-, as earnest money, and agreed to execute the sale deed, in favour of the plaintiffs, within two months of the vacation of the order of ad-interim injunction, passed in the afore-referred to suit. It was further stated that, instead of contesting the said suit, to its logical conclusion, defendant No. 1 (since deceased), colluded with RSA No. 2036 of 2009 4 defendants No. 2 to 6, and, as such, executed a compromise deed, under which, he admitted them, as owners of the land, in dispute. He further stated that he had no objection, if the decree dated 14.02.83, was set aside. It was further stated that, on the basis of the said compromise deed, a compromise decree dated 09.11.93, was passed, declaring the decree dated 14.02.83, and mutation sanctioned, on the basis thereof, as illegal, void and ineffective against the rights of defendants No. 2 to 6. It was further stated that, it was also declared that any mortgage, charge or any other encumbrance, created by defendant No. 1, would not affect the rights of defendants No. 2 to 6. It was further stated that the said decree, did not affect the rights of the plaintiffs, as the same, was got passed, by the defendants, by colluding with each other, in order to defeat their rights. It was further stated that the plaintiffs, were entitled to get the sale deed executed, from all the defendants on the basis of the agreements to sell. It was further stated that the plaintiffs, remained ever ready and willing to perform their own part of the contract. It was further stated that, even the plaintiffs, served a notice dated 01.03.94, calling upon the defendants, to perform their own part of the contract, by executing the sale deed, in the office of the Sub Registrar, Moonak, on 09.03.94. It was further stated that the plaintiffs, remained present, in the office of the Joint Sub Registrar, Moonak, on 09.03.94, from 9.00 AM to 5.00 PM, with the requisite amount, but the defendants, did not turn up. On the final refusal of the defendants to execute and get registered the sale deed, on the basis of the agreement to sell, left with no alternative, a suit for specific RSA No. 2036 of 2009 5 performance of the agreements to sell was filed. 3. Defendant No. 1, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was denied that any agreement, was executed, by him, in favour of the plaintiffs, in respect of the land, in dispute. It was denied that he received the earnest money. It was further denied that the possession of the land, in dispute, was delivered, to the plaintiffs. It was stated that the agreements dated 18.04.90, 15.06.90, and, 16.03.91, were forged and fabricated documents. It was further stated that the compromise decree dated 09.11.93, was legal and valid. It was further denied that the compromise, in question, was the result of collusion, between him and the remaining defendants. The remaining averments, were denied, being wrong. 4. Defendants No. 2 to 6, filed a separate written statement, stating therein, that the agreements, allegedly executed by defendant No. 1, were forged and fabricated documents. It was further stated that the agreements, in question, were not binding, on defendants No. 2 to 6. It was further stated that Balwant Singh (since deceased), the father of defendants No. 2 to 6, remained in possession of the land, in dispute, till his death. It was further stated that, as such, defendants No. 2 to 6, had harvested the crop of Hari, 1990, sown on the land, in dispute. It was further stated that, defendant No. 1, never remained in possession of the land, in dispute. It was further stated that, thereafter, the plaintiffs, came into possession of the property, in dispute. It was further stated that, on account of turbulent situation in Punjab, RSA No. 2036 of 2009 6 defendants No. 2 to 6, did not agitate the matter. It was further stated that, however, defendants No. 2 to 6, are the true owners of the property, in dispute. It was denied that the compromise arrived at in the suit between them and defendant No. 1, was the result of collusion. It was further stated that defendant No. 1, expected that the suit, was likely to be decreed against him, and, on account of that reason, he settled the dispute, in order to save his money and time. It was further stated that the property, in question, being ancestral coparcenary property in the hands of Balwant Singh, no decree, could have been suffered by him, in favour of defendant No. 1, who had no pre- existence right therein. The remaining averments, were denied, being wrong. 5. Defendants No. 2 to 6, also filed the counter-claim, stating therein, that the plaintiffs, illegally came into possession of the land, in dispute. It was further stated that since defendants No. 2 to 6, were the owners of the land, in dispute, a decree for possession, be passed, in their favour. 6. On the pleadings of the parties, the following issues were struck:- (i) Whether the impugned judgement and decree dated November 9, 1993, passed by Sh. S.K. Goel, Sub Judge 1st Class, Sunam, in Civil Suit No. 238 of 08.04.90, Hardev Singh etc. Vs. Bharpurinder Singh etc. is null and void and is inoperative against the rights of the plaintiffs? OPP (ii) Whether the defendant No. 1 had executed agreements of sale dated RSA No. 2036 of 2009 7 18.04.90, 15.06.90 and 16.03.91 to sell the suit land more fully described in the case title of the plaint and received Rs. 4,50,000/- as imprest, the rounder? OPP (iii) Whether the plaintiffs are entitled for possession of the suit land by way of specific performance of agreements of sale dated 18.04.90, 15.08.90 and 16.03.91? OPP (iv) Whether the decree in Civil Suit No. 15 of 11.01.83, decided on 14.02.83 was illegal, null and void and could not be passed due to reasons that the property mentioned therein, was coparcenary property? OPD (v) Whether defendants No. 2 to 6 are entitled for possession of the suit land by way of counter-claim? OPD (vi) Whether the plaintiffs are entitled for permanent injunction as prayed for? OPP (vii) Relief. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiffs, and decreed the counter-claim. 8. Feeling aggrieved, an appeal, was preferred by the defendants/appellants, which was also dismissed, by the Court of Additional District Judge, Sangrur, vide judgement and decree dated 05.03.09. 9. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendants/appellants. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. RSA No. 2036 of 2009 8 11. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, as also law, on the point, that decree, in Civil Suit No. 15 of 11.01.83, decided, on 14.02.83, suffered by Balwant Singh (now deceased), in favour of Bharpurinder Singh (now deceased), was illegal, null and void, on account of the reason, that Balwant Singh, was not competent to suffer the same? (ii) Whether the Courts below, recorded perverse findings, that the decree dated 14.02.83, suffered in favour of Bharpurinder Singh (now deceased), by Balwant Singh (now deceased), could be set aside, on the basis of compromise arrived at, between the parties, and the same, was not hit by the provisions of Order 23 Rule 3 (a) of the Code of Civil Procedure? (iii) Whether the Courts below, recorded perverse findings, on misreading and misappreciation of evidence, as also the law, on the point, that the judgement and decree dated 09.11.93, passed by the Court of Sh. S.K. Goel, Sub Judge 1st Class, Sunam, in Civil Suit No. 238 of 06.04.90, titled as, 'Hardev Singh etc. Vs. Bharpurinder Singh etc.', was legal and valid. (iv) Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, that Bharpurinder Singh, defendant No. 1 (now deceased), did not execute the agreements to sell dated 18.04.90, 15.06.90, and, 16.03.91, in respect of the land, in dispute, after receipt of the earnest money from time to time? RSA No. 2036 of 2009 9 12. The Counsel for the appellants, submitted that once the decree dated 14.02.83, had been passed, in favour of Bharpurinder Singh, on the basis of the statement of admission, made by Balwant Singh (now deceased), in respect of the land, in dispute, he became the owner of the same, and, as such, was competent to execute the agreements to sell, in favour of the appellants. He further submitted that the decree dated 14.02.83, could neither be challenged, by the sons of Balwant Singh (now deceased), during his life time, nor after his death, by his legal representatives, nor the same, could be set aside, merely on account of the reason, that Bharpurinder Singh, entered into a compromise for setting aside the same. He further submitted that the decree dated 09.11.93, passed in favour of the legal representatives of Balwant Singh (now deceased), holding them, as the owners of the property, in dispute, being illegal, was liable to be set aside. He further submitted that the Courts below, also fell into a legal error, in holding, that no agreements to sell, referred to above, were executed, by Bharpurinder Singh, in favour of the appellants, after receipt of the earnest money from time to time, and, that the same, were hit by the principles of lis-pendense. He further submitted that the findings, recorded by the Courts below, on the aforesaid points, being perverse, were liable to be set aside. 13. On the other hand, the Counsel for the respondents, submitted that, the decree dated 14.02.83, suffered by Balwant Singh (since deceased), in favour of Bharpurinder Singh (since deceased), who had no antecedent title, in the land, in dispute, was rightly held to RSA No. 2036 of 2009 10 be illegal, by the Courts below, and set aside. They further submitted that the decree dated 09.11.93, passed, in favour of the legal representatives of Balwant Singh (now deceased), was not a collusive decree. They further submitted that there was a bonafide compromise, between the legal representatives of Balwant Singh (now deceased), who was the owner of the property, in dispute, and Bharpurinder Singh (now deceased), represented by respondents No. 1 to 3, after about three years of filing that suit, and, ultimately, the decree dated 14.02.83, was legally and validly set aside. They further submitted that the sons of Balwant Singh (now deceased) and later on, his legal representatives, after his death, were competent to file a suit for setting aside the decree dated 14.02.83, on the ground, that the property, in dispute, was the Joint Hindu Family coparcenary property, wherein, they had right and interest, by birth, and, as such, Balwant Singh, could not alienate the same, vide decree dated 14.02.83, in favour of Bharpurinder Singh, which was suffered, in his favour, by his maternal grand-father Balwant Singh and that the same was also the result of fraud. They further submitted that the Courts below, were also right, in holding, that the execution of the agreements to sell, was not proved, and even the same, were hit by the principles of lis-pendense, as contained, in Section 52 of the Transfer of Property Act, as the same, were allegedly executed, during the pendency of the suit, in which, the decree dated 09.11.93, was passed. They further submitted that the judgements and decrees of the Courts below, being legal and valid, are liable to be upheld. RSA No. 2036 of 2009 11 14. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The property, in dispute, admittedly originally belonged to Balwant Singh, predecessor-in- interest of defendants No. 2 to 6. He suffered a consent decree, regarding the property, in dispute, in favour of his maternal grand-son Bharpurinder Singh, defendant No. 1 (now deceased). The said decree, was challenged, by the sons of Balwant Singh, on the ground, that the property, in dispute, was the coparcenary Joint Hindu Family property, and they had got right and interest by birth therein, and, as such, the said Balwant Singh, was not competent to suffer the same, in favour of Bharpurinder Singh. The ground of fraud was also allegedly taken. It RSA No. 2036 of 2009 12 may be stated here, that Bharpurinder Singh, being the maternal grand- son of Balwant Singh (since deceased), had no antecedent title in the land, in dispute, which belonged, to him (Balwant Singh). He was distantly related to Balwant Singh, the owner of the property, in dispute. He was not a member of the family of Balwant Singh. The property, in dispute, at the relevant time, was Joint Hindu Family coparcenary property. Since Bharpurinder Singh, had no right and interest, in the land, in dispute, the question of any family settlement, between him and Balwant Singh, in respect thereof, did not at all arise. So the decree dated 14.02.83, amounted to creating right and interest in Bharpurinder Singh, for the first time, in the immovable property worth upwards Rs. 100/-, and for want of stamp and registration, it could not be held to be legal and valid. In Bhoop Singh Vs. Ram Singh and others (1996-1), The Punjab Law Reporter, 559 (SC), a case, decided by the Apex Court, it was held, that if by way of consent decree the right and title in property, worth Rs. 100/- or upwrds, is created, in favour of the beneficiary, for the first time, for want of stamp and registration, such a decree is null and void. It was further held that such a compromise/decree was only a device to obviate the payment of stamp duty and frustrate the law, relating to registration. Since the decree created right, in that case, for the first time, in the plaintiff, the same for want of stamp and registration was held to be illegal and invalid. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. 15. It was this decree, which was challenged by the sons of RSA No. 2036 of 2009 13 Balwant Singh (now deceased), who was alive at that time, but later on died, during the pendency of that suit. The parties, in that suit, continued litigating with each other for more than 3 ½ years. Ultimately, with a view to amicably settle the matter, and to put an end, to the strifes and disputes, better sense prevailed upon Bharpurinder Singh, knowing fully that, he was going to lose the battle, and he thus, effected the compromise, with defendants/respondents 2 to 6, sons of Balwant Singh. Under these circumstances, it could not be said, that the decree dated 09.11.93, which was passed, in Civil Suit, filed on 06.04.90, was, in any manner collusive. It was not that, it was immediately after the suit, was filed, that Bharpurinder Singh, defendant, therein, entered into a compromise. The Courts below, were, thus, right, in holding, that the decree dated 09.11.93, setting aside the decree dated 14.02.83, was legal and valid, and not the result of collusion. 16. The Counsel for the appellants, however, placed reliance, on Devi Sarup and others Vs. Veena Nirwani and others, 2006(4), RCR (Civil), 738, to contend that, decree dated 14.02.83, could not be challenged, in the Court of law, but only an application, could be moved for setting aside the same, before the same Court, which passed the same. He further submitted that, since the suit, was not maintainable, for challenging the decree dated 14.02.83, the decree dated 09.11.93, passed therein, being illegal, was liable to be set aside. He further submitted that after the amendment of the Code of Civil Procedure, proviso 3 (a) to Order 23 of the Code of Civil Procedure, RSA No. 2036 of 2009 14 was added. According to this proviso, an application, is maintainable, to set aside a decree, on the ground, that the compromise, on the basis whereof, the decree, was passed, was not lawful. No doubt, this proviso, was added with a view to avoid multiplicity of litigation, by way of filing suits. However, if the decree, is challenged, on the basis of fraud, misrepresentation etc. then certainly a suit, could be filed, instead of filing an application, before the Court concerned. Complete copy of the plaint of the suit, vide which, the decree dated 14.02.83, was challenged, was not produced and proved by the plaintiffs. Under these circumstances, it could not be ascertained, as to, on which grounds, the earlier decree dated 14.02.83, was challenged, by filing Civil Suit, on 06.04.90. Only P48 copy of the order dated 09.11.93, and, exhibit P49 copy of the decree-sheet, passed in that suit were produced, on the record. In the absence of copies of the full text of the plaint and written statement, filed in that suit and the issues struck therein, it could not be said, that no plea of fraud or misrepresentation, was taken therein. Under these circumstances, a separate suit, for challenging that decree, could not be said be not maintainable. Under these circumstances, the Counsel for the appellants, cannot take any benefit, from the principle of law, laid down, in Devi Sarup and others' case (supra). 17. Now coming to the legality and validity of the agreements to sell dated 18.04.90, 15.06.90, and, 16.03.91, it may be stated here, that the Courts below, after due scrutiny of the evidence, were right, in coming to the conclusion that, on the one hand, the execution thereof, RSA No. 2036 of 2009 15 was not proved, and on the other hand, the same were hit by the doctrine of lis-pendense, as contained, in Section 52 of the Transfer of Property Act. Detailed discussion of the evidence produced, regarding the alleged execution of the agreements to sell, was held, by the first Appellate Court, in paras No. 16 to 19 of its judgement, for coming to such a conclusion. The Courts below, held that, the agreements to sell, were not entered into by the document writer, in his register; Joga Singh, PW3, did not support the case of the plaintiffs/appellants, and rather, he stated that no such agreements, were executed; that if Mehar Singh, was present, there was no reason, as to why, his thumb impressions/signatures, were not obtained, on the agreement P2; that the agreement