RSA No.2610 of 1987 & RSA No.2612 of 1987 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Date of Decision: 31.3.2010 RSA No.2610 of 1987 Naginder Singh & others ...Appellants Versus Jaskaran Singh & another .....Respondents Present: Mr. A.P. Kaushal, Advocate for the appellants. Mr. K.S. Grewal, Advocate for the respondents. AND RSA No.2612 of 1987 Naginder Singh & others ...Appellants Versus Jaskaran Singh & another .....Respondents Present: Mr. K.S. Grewal, Advocate for the appellants. Mr. A.P. Kaushal, Advocate for the respondents. Coram: Hon'ble Mr. Justice Alok Singh 1. Whether Reporter of local papers may be allowed to see the judgment- Yes 2. To be referred to the Reporters or not- Yes 3. Whether judgment should be reported in the digest-Yes ..... Alok Singh, J. (Oral) 1. Both Regular Second Appeals are inter-connected and arising out of two suits i.e. Suit No.136 and Suit No.49. Suit No.49 of 7.2.1984 was filed by the respondents for possession against the defendants- appellants. Suit No.136 of 16.5.1984 was filed by the present RSA No.2610 of 1987 & RSA No.2612 of 1987 2 appellants against the respondents for specific performance of contract. Both the suits were consolidated and decided by one and common judgment. Appeals filed therefrom were also consolidated and decided by one and common judgment, hence, with the consent of both the counsel both the appeals are being heard and decided by this common judgment. 2. Brief facts of the present case are that appellants filed suit for specific performance on the basis of agreement to sell dated 25.1.1967. Respondents filed suit for possession against the appellants. Learned trial Court dismissed the suit filed by the respondents herein for possession from the appellant. However, learned trial Court has decreed the suit filed by the present appellants for specific performance of the contract against the respondents herein vide judgment and decree dated 22.4.1985. 3. Learned First Appellate Court has held that agreement to sell in question executed by Jaskaran Singh is proved. Partap Singh (one of the respondents herein) is not party to the agreement to sell in question; no decree for specific performance can be passed against third party to the agreement to sell. Learned First Appellate Court has dismissed the suit for specific performance and decreed the suit for possession against the present appellant vide impugned judgment and decree dated 22.7.1987. Feeling aggrieved by the judgment and decree dated 22.7.1987 present appeal is filed by the present appellant. 4. Learned counsel for the appellants stated that he would not be pressing relief for specific performance of contract in view of the fact agreement to sell dated 25.1.1967 was executed only by Jaskaran Singh defendant No.1 although Partap Singh defendant No.2 was signatory on the agreement and has received part of the sale consideration jointly with Jaskaran Singh. He has further argued that RSA No.2610 of 1987 & RSA No.2612 of 1987 3 since appellants were put in possession pursuant to the agreement to sell dated 25.1.1967, hence proposed vendors cannot dispossess them in view of Section 53-A of the Transfer of Property Act. 5. In my opinion substantial question of law as formulated hereunder arises for just and fair adjudication of this case:- (i) As to whether appellants are entitled to protect their possession in view of Section 53-A of The Transfer of Property Act? 6. Both the Courts below have recorded concurrent findings of fact that agreement to sell dated 25.1.1967 is proved. It is also proved that although Jaskaran Singh respondent No.1 has alone executed the agreement however, Partap Singh is signatory of the agreement. Undisputedly agreement to sell contains a recital that possession is being delivered to the vendee pursuant to agreement to sell. This is also a settled position of law that no evidence to contradict the contents of the documents is admissible in view of Sections 91 and 92 of the Evidence Act. The moment agreement is proved recitals of the agreement can be read as terms and conditions settled between the parties. In view of the above, I find that possession was delivered in favour of the appellants pursuant to the agreement to sell. 7. Agreement to sell dated 25.1.1967 was executed by respondent No.1 herein. Respondents No.1 and 2 are co-owners. Respondent No.2 had also admitted the agreement to sell by putting his thumb impression as a witness. Learned First Appellate Court has recorded finding of fact that Rs.1500/- part of sale consideration was received towards advance by Jaskaran Singh and Partap Singh and both of them had accepted the same by putting their thumb impression on the back of the agreement. Receiving of part of sale consideration by both the respondents would mean both are bound by the recital of the agreement about delivery of possession to the appellants in part performance of contract. RSA No.2610 of 1987 & RSA No.2612 of 1987 4 8. In view of this appellants are entitled to protect their possession in view of Section 53-A of The Transfer of Property Act. It is also well settled principle of law that Section 53-A of the Transfer of Property Act can be used as defence but cannot be used as sword. Since appellants are defendants in a suit for possession filed by the respondents hence, plea of part performance of contract Section 53-A of the Transfer of Property Act is available to the appellants. Respondents cannot dispossess present appellants. Both the Courts below have not considered this aspect. Substantial question of law is answered in favour of the appellants. 9. Hence, the appeal is allowed. Judgments and decrees passed by the First Appellate Court dated 22.7.1987 is set aside. Suits filed by both the parties against each other are dismissed. 10. Copy of this judgment be kept on the file of RSA No.2612 of 1987. (ALOK SINGH) JUDGE 31.3.2010 sharmila