RSA No.3225 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3225 of 2007(O&M) Date of decision: 2.2.2010 Teja Singh ......Appellant(s) Versus Amar Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Karan Nehra, Advocate for the appellant. Mr. G.S. Nagra, Advocate for the respondent. Rakesh Kumar Garg, J. CM No.9022-C of 2007 Application is allowed subject to all just exceptions. RSA No.3225 of 2007 This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration to the effect that he is owner in possession of the suit land along with all rights and the registered sale deed dated 6.3.1995 is null, void, unconstitutional and is result of fraud and misrepresentation with consequential relief of permanent injunction restraining the defendant-respondent from alienating the suit property, was dismissed. The brief facts of this appeal are that the plaintiff-appellant filed the suit alleging therein that he was owner in possession of the suit land. He had actually borrowed a sum of Rs.15,000/- from the respondent, who succeeded in getting the execution of the agreement to sell on 30.11.1982 in his favour from him. Subsequently, the defendant-respondent filed a suit for specific performance on the basis of the agreement dated 30.11.1982 which was dismissed by the Court of Sub Judge, Nakodar on 1.3.1985. Appeal filed by the defendant-respondent against the aforesaid decree was RSA No.3225 of 2007(O&M) 2 accepted by the Lower Appellate Court vide judgment and decree dated 25.2.1987. RSA No.1179 of 1987 filed by the plaintiff-appellant was dismissed by this Court on 19.1.1993 and even the Special Leave Petition filed by him was also dismissed by the Hon'ble Supreme Court. It is the further case of the plaintiff-appellant that the respondent deposited remaining amount of agreement to sell, after taking permission from the Sub Judge, Nakodar. Thereafter, he filed an execution and the sale deed was executed through the Court in favour of the defendant-respondent on 6.3.1995 in which mode of payment was mentioned as Rs.15,000/- on 30.11.1982, Rs.15,000/- on 11.1.1983, Rs.8600/- on 15.5.1993 and the sale deed was executed and registered before the Sub Registrar, Shahkot. Subsequently, the mutation was also sanctioned in favour of the respondent who took the possession in execution proceedings. When the plaintiff-appellant came to the Court for withdrawal of the deposited amount, the Court of Additional Civil Judge, (Sr.Division), Nakodar issued a cheque of Rs.23,000/- in his favour. However, when the plaintiff went to the Treasury Office for encashment, he came to know that Rs.15,000/- were already withdrawn by the defendant-respondent on 12.11.1987 and thus, the sale deed was got executed and registered by giving false particulars as the defendant- respondent failed to disclose this fact at the time of execution and registration of the sale deed. So the sale deed dated 6.3.1995 was false, fake and inoperative being without consideration and was liable to be declared null and void. The respondent was threatening to alienate the suit property in favour of any third person and thus, the present suit for declaration and joint possession was filed. The suit was contested by the defendant-respondent denying all the allegations. It was further submitted that vide interim order dated 28.5.1987, this Court in RSA No.1179 of 1987 had allowed the respondent RSA No.3225 of 2007(O&M) 3 to withdraw the amount of consideration from the Court deposited by him without prejudice to his rights in appeal and when execution was filed in Court, he was out of India and he had authorised his brother to pursue the case, who was not aware of the withdrawal of the amount of Rs.15,000/- from the Court and deposited only Rs.8600/- and got the sale deed executed from the plaintiff-appellant through the Court. It was further stated that the defendant-respondent filed partition application before the Assistant Collector, 1st Grade Nakodar. In those proceedings, when the plaintiff tried to become a party, the defendant came to know about the factum of non payment of Rs.15,000/- whereby a Panchayat was convened and the appellant was approached. A penalty of Rs.45,000/- was imposed upon the respondent and the respondent paid a sum of Rs.60,000/- i.e. Rs.15,000/- which was unpaid and Rs.45,000/- as penalty. It was also settled that this amount shall be deemed as the amount paid to the plaintiff as compensatory amount spent by the plaintiff in litigation and a memorandum dated 26.5.1997 was executed. This compromise was acted upon voluntarily as the plaintiff withdrew his objection application and made a statement before the Assistant Collector, 1st Grade admitting defendant No.1 to be owner of the suit land. Thus, the present suit was not maintainable after the compromise. The plaintiff also withdrew the amount of Rs.8600/- from the Court vide order dated 4.9.1997. As such withdrawal of amount by him from the Court after compromise proves that the plaintiff had consented to the sale deed. Thus, the entire consideration was passed on to the plaintiff-respondent and the suit was liable to be dismissed. On the basis of the pleadings, the following issues were framed: “1. Whether the sale deed dated 6.3.1995 is null, void, inoperative, without consideration and concealment RSA No.3225 of 2007(O&M) 4 of material facts as alleged in the para No.5 of the paint? OPP 2. Whether the plaintiff is in possession of property in dispute as owner? OPP 3. Whether the plaintiff is entitled to declaration as prayed for? OPP 4. Whether the plaintiff has received Rs.60,000/- by way of compromise from the defendant and executed memorandum of writing dated 26.5.1997 in favour of defendant? If so, its effect? OPD 5. Whether the memorandum of writing dated 26.5.97 has been acted upon between the parties? If so, its effect? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD 8. Whether the plaintiff has not come to the Court with clean hands? OPD 9. Whether the suit is not maintainable in the present form? OPD 10. Relief.” Both the parties led evidence. The trial Court after evaluating the evidence on record and hearing learned counsel for the parties, dismissed the suit. Appeal filed by the plaintiff before the Lower Appellate Court was also dismissed. While dismissing the appeal, the Lower Appellate Court observed as under: “7. There are few admitted facts in the case. It is a RSA No.3225 of 2007(O&M) 5 fact that a decree of specific performance of the contract on the basis of agreement to sell dated 30.11.1982 was passed in favour of the defendant and the same was up- held upto the Hon'ble Supreme Court. On the basis of this judgment, balance amount of the sale price was deposited and in pursuance to that the sale deed through the process of the Court was executed in favour of the defendant and as per terms of the sale deed, possession was delivered to the defendant of the suit land. However, during the partition proceedings filed by defendant No.1, it came out that Rs.15,000/- had been paid less at the time of the execution of the sale deed. Although, the defendant has been able to prove by leading cogent evidence that with the intervention of the village panchayat a compromise out of the terms was arrived at between the parties, in which defendant paid Rs.45,000/- as penalty as well as Rs.15,000/- which were paid less at the time of the execution of the sale deed. After this compromise, the plaintiff executed memorandum of writing in terms of the Panchayatnama on 26.5.97 in favour of the defendant. This compromise Ex.D2 has been duly proved by the defendant by bringing documentary evidence as well as oral evidence on the record. This compromise made on 26.5.97 and subsequently the plaintiff-appellant Teja Singh made statement in the Court of Assistant Collector Ist Grade having no objection to the partition of the land in favour of Amar Singh. This statement was made despite knowing the fact that a sum of Rs.15,000/- was RSA No.3225 of 2007(O&M) 6 deposited less before the execution of the sale deed. 8. This is an established fact that Rs.15,000/- had been less deposited when the impugned sale deed 6.3.95 was executed in favour of the defendant through the process of the Court. Leaving aside the compromise deed said to have been arrived at between the parties outside the Court, the question which requires the decision is whether the sale deed is still valid without full amount as agreed to in between the parties has not been paid. The answer to this question is in the positive as held by the Hon'ble Supreme Court as contained in the Civil Court cases 1999(2) 91 where it is held that even if the balance amount of the sale deed is not paid, the sale would not have become invalid. The property sold would stand transferred to the buyer subject to the statutory charge for the unpaid part of the sale price. The conduct of the parties also cannot be over looked. Here, in this case, Amar Singh respondent has been agitating for the execution of the sale deed on the basis of the agreement to sell upto the Hon'ble Supreme Court. In pursuant to that the sale deed was executed through the process of the court. The possession had been delivered to the defendant on that basis of the duly executed sale deed. The partition between the parties has also been effected and the name of Amar Singh has been entered in the Jamabandi as owner of the land measuring 19 kanals 6 marlas. This shows that the defendant Amar Singh had through out been anxious to get the sale deed executed in his favour. The withdrawal RSA No.3225 of 2007(O&M) 7 of this amount of Rs.15,000/- by Amar Singh before ht execution of the sale deed seems to be by inadvertence, as the appeal has been filed against the order of the civil Judge. The learned Civil Judge has rightly held the sale deed in favour of defendant to be valid in all respects and has further held that the amount of Rs.15,000/- would run as charge on the said land in favour of the plaintiff-appellant from the date of the execution of the sale deed dated 6.3.1995, which is Ex.PW-3/A. The findings given by the learned Civil Judge on all the issues are perfectly legal and valid and call for no interference. There being no merit in the appeal, same is hereby dismissed leaving the parties to bear their own costs.” Still not satisfied the plaintiff has filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the Courts below have ignored the factum that the respondent got the sale deed executed in his favour by concealing the material facts on record and it is settled law that a fraud vitiates everything and whosoever practices fraud, is not entitled to get any relief and therefore, the plaintiff was entitled to the decree as prayed for. It has been further argued that in order to constitute a valid sale deed the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in present or in future. The intention is to be gathered from the recital in the sale deed, the conduct of the parties and the evidence on record. But in the case in hand, the respondent has not intended to make the part payment and fraudulently got the sale deed registered without consideration and played fraud with the Court and therefore, the same was RSA No.3225 of 2007(O&M) 8 inoperative and void. In support of his case, learned counsel for the appellant has relied upon a judgment of the Hon’ble Supreme Court reported as Vidhyadhar v. Mankikrao and another AIR 1999 SC 1441 and has submitted that the following substantial questions of law arise in this appeal: “(1) Whether the courts below have ignored the settled law that the sale deed without consideration is void and inoperative? (2) Whether the sale deed 6.3.1995 has been rendered inoperative for the want of consideration?” On the other hand, learned counsel appearing on behalf of the respondent has argued that the sale deed was executed through the process of the Court and the possession was delivered to the respondent on the basis of the duly executed sale deed. The partition between the parties was also effected. Moreover, non-deposit of Rs.15,000/- before the execution of the sale deed was by inadvertence and thereafter, compromise Ex.D-2 was reached between the parties and on the basis of that compromise, the appellant received a sum of Rs.60,000/- and also thereafter, withdrew the amount of Rs.8600/- deposited before the Court apart from withdrawing the objection petition in the partition case. From all these facts, it is proved that the appellant had accepted the sale deed executed by the Court in favour of the respondent and no fault can be found in the judgment and decrees of the Courts below which have been passed taking into consideration the aforesaid undisputed facts and thus, the appeal being without any merit is liable to be dismissed. I have heard learned counsel for the parties and perused the impugned judgment and decrees. The facts are not in dispute. It is an established fact that Rs.15,000/- was deposited less when the impugned sale deed dated RSA No.3225 of 2007(O&M) 9 6.3.1995 was executed in favour of the respondent through the process of the Court. However, the concurrent finding of fact has been recorded by the Courts below that on coming to know about the fact that Rs.15,000/- have been paid less to the plaintiff-appellant, compromise Ex.D2 was reached between the parties, according to which a sum of Rs.60,000/- i.e. Rs.15,000 original plus Rs.45,000/- as penalty stood paid to the appellant and thereafter, the appellant withdrew from the partition proceedings and also received a sum of Rs.8600/- from the Court of Sub Judge, Nakokar which was lying deposited there. Moreover, the plaintiff-appellant could not prove the factum of fraud and concealment of material facts by the respondent before the Court. Thus, from the facts it is clearly established that intention of the appellant was to transfer the property in compliance of the decree in favour of the defendant. Leaving aside the aforesaid factual position, the question whether the sale deed was still operative without full amount as agreed to, in between the parties being not paid, is to be answered in the positive. The Hon’ble Supreme Court of India in Vidyadhar's case (supra) has also held that even if the balance amount is not paid, the sale would not have become invalid. The property sold would stand transferred to the buyer subject to the statutory charge for the unpaid part of the sale price. There is concurrent findings of fact arrived at by the Courts below on proper appreciation of evidence. Thus, no substantial question of law arises, in this appeal which requires interference by this Court. Dismissed. February 2, 2010 (RAKESH KUMAR GARG) ps JUDGE