Regular Second Appeal No.169 of 1986 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.169 of 1986 Date of decision: 15.07.2010 Bimla Wati w/o Hari Parkash s/o Labhu, r/o V. Birk, Tehsil Phillaur, District Jullundur now residing in Mohalla Guru Nanakpura near Banga Railway Lines near Istri Sabha Gurdwara, Phagwara. ( since deceased ) through legal representatives: 1. Hari Parkash s/o Labhu, husband 2. Vijay Kumar Sandhir, son 3. Sudesh Kumar,son 4. Mahesh Kumar Sandhir,son 5. Renu Sharma, daughter 6. P. Bhardwaj (son-in-law) All care of Sh. Gurcharan Lal, 20-C, Model Town, Phagwara. ..... Appellants. Versus 1. Shangara Singh son of Narain Singh son of Ram Singh, r/o Kothi No.1-C, Model Town, Phagwara. (since deceased) through legal heirs: 1. Ajit Singh, son of Amrik Singh son of Shingara Singh 2. Harjit Singh @ Harmandip Singh son of Ajit Singh s/o Amrik Singh. 2. Naresh Kumar s/o Hari Singh, r/o V. Birk, Tehsil Phillaur, District Jullundur now in England, UK. ..... Respondents. Regular Second Appeal No.169 of 1986 2 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.Vivek Sharma, Advocate for the appellants. Mr. G.S. Punia, Advocate for the legal representatives of deceased-respondent no.1. Service of respondent no.2 dispensed with. -- Sham Sunder, J. This Regular Second Appeal, is directed against the judgment and decree dated 05.12.1985, rendered by the Court of District Judge, Kapurthala, vide which it accepted the appeal and decreed the suit for specific performance, against the judgment and decree dated 03.11.1983, rendered by the Court of Sub Judge Ist Class, Phagwara, vide which it granted the alternative relief for recovery of earnest money with interest. 2. On 06.08.1979, Bimla Wati, defendant/appellant no.1 (now deceased), executed an agreement to sell, in respect of the property, in dispute, for a sale consideration of Rs.70,000/- in favour of Shangara Singh, plaintiff (now respondent) and received a sum of Rs.10,000/- as earnest money. The sale deed was to be executed and got registered on or before 13.03.1980. The remaining amount of sale consideration was to be paid before the Sub Registrar. It was Regular Second Appeal No.169 of 1986 3 stated that the plaintiff always remained ready and willing to perform his own part of the contract, but the defendant breached the terms and conditions thereof. It was further stated that, in the meanwhile, Bimla Wati, defendant no.1, suffered a collusive decree , in favour of her son Naresh Kumar, in respect of the property, in dispute. It was further stated that the said decree was illegal, void and inoperative against the rights of the plaintiff (now respondent no.1). On the final refusal of Bimla Wati, defendant, to execute and get registered the sale deed, left with no alternative, a suit for specific performance and in the alternative for recovery of earnest money, was filed. 3. Bimla Wati, and her son, put in appearance, and contested the suit, by way of filing written statement wherein, it was pleaded that the suit was not maintainable. It was further pleaded that the plaintiff was estopped from filing the suit by his own act and conduct. The execution of agreement to sell was not specifically denied. On the other hand, it was stated that it was Naresh Kumar son of Hari Prakash, who was residing in England, who was the actual owner of the property, in dispute, and she was only a Benamidar. It was further stated that at the time of execution of the agreement to sell, the plaintiff very well knew that the real owner of the Regular Second Appeal No.169 of 1986 4 property, in dispute, was Naresh Kumar son of Bimla Wati, but even then he entered into the same. It was further stated that when the plaintiff came to know that the real owner of the property, in dispute, was Naresh Kumar, he was not interested in getting the sale deed executed and registered. It was further stated that the decree, which was suffered by Bimla Wati, in favour of Naresh Kumar, was to the knowledge of the plaintiff. The receipt of earnest money was denied. The remaining averments, contained in the plaint, were denied, being wrong. 4. Naresh Kumar, defendant no.2 (now respondent) stated that he was the real owner of the property, in dispute and his mother Bimla Wati was only holding the same as Benamidar. It was further stated that the execution of the agreement to sell, even if proved, it was the result of fraud. It was further stated that the property, in dispute, was in possession of the tenant, and, as such, the agreement to sell, if any, was un-enforceable at all. 5. In the replication, filed by the plaintiff, he reasserted all the averments, contained in the plaint, and repudiated those contained in the written statement. 6. From the pleadings of the parties, the following issues were framed by the trial Court :- Regular Second Appeal No.169 of 1986 5 “1- Whether defendant Bimla Wati executed the agreement dated 6.8.1979 in favour of the plaintiff ? OPP 1-A Whether defendant no.1 is a benamidar qua the property in dispute and defendant no.2 is virtually its owner ?OPD 1-B Whether Bimla Wati executed the agreement in dispute under the circumstances as alleged in para 3 of the preliminary objection, filed by Bimla Wati ? OPD 1-C Whether defendant no.2 is estopped from raising the objection about the execution of the agreement in dispute and laying claim to the property, in dispute, on account of reasons mentioned in para 6 of the plaint and para 2 of the replication ?OPP 1-D Whether defendant no.2 is not bound by the terms of the alleged agreement in dispute as alleged in the written statement ?OPD 2. Whether the plaintiff has been ready and willing to perform his part of the contract ?OPP 3. Whether the decree dated 7.3.1980 in suit no.85 titled as Naresh Kumar v. Bimla Wati was void, illegal, ineffective, collusive and fraudulent and against the interest of the plaintiff ?OPP 4. If issue no.3 is found against the plaintiff, what is the effect of the aforesaid decree on the rights of the plaintiff as regards the agreement dated 6.8.1979 ? OPP 5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct ?OPD Regular Second Appeal No.169 of 1986 6 6. Whether the suit in the present form is not maintainable ?OPD 7. Whether the plaintiff is entitled to the relief of specific performance of the contract ?OPP 8. If the plaintiff is not entitled to the relief of the specific performance of the contract, what amount is the plaintiff entitled to recover from the defendants by way of damages ?OPP 9. Relief.” 7. The parties led evidence, in support of their case. The trial Court, after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decreed the suit of the plaintiff, for recovery of earnest money with interest, whereas dismissed the suit for specific performance. 8. Feeling aggrieved, an appeal was filed, by the appellant/plaintiff, which was accepted by the Court of District Judge, Kapurthala, vide judgment and decree dated 05.12.1985, whereby the suit for specific performance, was decreed. 9. Feeling dis-satisfied, the instant Regular Second Appeal,was filed by Bimla Wati, appellant. 10. During the pendency of appeal, Bimla Wati, appellant died and her legal representatives were brought, on record. Regular Second Appeal No.169 of 1986 7 10-A. Even Shingara Singh, respondent, died during the pendency of appeal and his legal representatives were brought, on record. 11. I have heard the Counsel for the parties, and have gone through and perused the evidence and record of the case carefully. 12. The proposed substantial question of law, which was incorporated in the grounds of appeal, by the Counsel for the appellants, is as under:- “Whether the plaintiff, who claimed alternative reliefs and was granted one of them, could challenge the judgment and decree, by way of appeal?” 13. The Counsel for the appellants, submitted that since the alternative relief for recovery of earnest money with interest was granted, in favour of Shangara Singh,plaintiff (now respondent) by passing a decree, by the trial Court, he could not claim the decree for specific performance, by filing an appeal. He further submitted that, in fact, Naresh Kumar, was the owner of the property and, as such, Bimla Wati, was not competent to execute the agreement to sell, in respect thereof, in favour of the plaintiff, as she was only a benamidar. He further submitted that the findings of the First Appellate Court, thus, being illegal, are liable to be set Regular Second Appeal No.169 of 1986 8 aside. 14. On the other hand, the Counsel for the respondents, submitted that the proposed substantial question of law, incorporated by the appellants, in the grounds of appeal, infact, is not the substantial question of law, as this question has already been settled by the Apex Court in Motilal Jain v. Smt. Ramdasi Devi and others JT 2000(8) SC 59 . He further submitted that the First Appellate Court on correct reading and due appreciation of evidence, was right in recording the finding of fact that there was no worth while evidence to prove that it was Naresh Kumar, who was the owner of the property. He further submitted that, as such, the judgment and decree of the First Appellate Court, being legal and valid, are liable to be upheld. 15. 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. 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 Regular Second Appeal No.169 of 1986 9 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 First Appellate Court, even if, the same are grossly erroneous, as the legislative intention, is 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 judgments of the Courts below, is confined only to the hearing of substantial questions of law. In Motilal Jain v. Smt. Ramdasi Devi and Ors.'s case (supra), the plaintiff claimed compensation as an alternative relief in a suit for specific performance of the agreement to sell . In these circumstances, the Counsel for the appellant therein, urged that he was dis-entitled to decree for specific performance of the contract. The contention advanced by the Counsel was rejected by the Apex Court holding that merely because the plaintiff claimed damages in a suit for specific performance of contract as an alternative relief , it could not be said that he was not entitled to the main relief of specific performance of contract itself. It is also settled principle of law that a contract relating to the immovable property should normally be specifically performed, as compensation, in terms of money, cannot be said to be adequate in such like cases. Regular Second Appeal No.169 of 1986 10 In view of the settled proposition of law, on the aforesaid point, in Motilal Jain's case (supra) , in my considered opinion, the proposed substantial question of law, extracted above, incorporated in the grounds of appeal, by the Counsel for the appellants, is not in fact a substantial question of law. No fault, therefore, can be found with the findings of the First Appellate Court, granting the relief of specific performance. The submission of the Counsel for the appellants, therefore, being without merit, must fail and the same stands rejected. 16. The First Appellate Court on correct reading and due appreciation of evidence of the facts and circumstances of the case, came to the conclusion, that there was no worth- while evidence, on record, that Bimla Wati was not the owner of the property, in dispute, but it was Naresh Kumar, who was the owner thereof. The findings of fact recorded by the First Appellate Court, in this regard, are not open challenge, in the Regular Second Appeal. The findings of fact, recorded by the First Appellate Court, on this point, are upheld. 17. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. It is, however, directed that the respondents (legal heirs of Shangara Singh) shall make payment of the balance sale consideration, if already not paid, within a period of two Regular Second Appeal No.169 of 1986 11 months from the date of receipt of a certified copy of the judgment and the appellants shall execute and get registered the sale deed within two months thereafter, failing which the respondents(legal heirs of Shangara Singh) shall be at liberty to get the same executed through the Court of Law. ( Sham Sunder ) 15.07.2010 Judge dinesh