IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 617 of 2000 Date of decision : 11.08.2010. Gurmeet Singh …Appellant. Versus Jagdish Singh and another …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. ------------------------------------------------------------------------------------------ For the Appellant: Mr. Ramakant Sharma, Advocate. For the respondents: Mr. G.D.Verma, Sr. Advocate with Mr. B.C.Verma, Advocate. Deepak Gupta, J. (Oral) 1. This second appeal is directed against the judgement of the learned Additional District Judge, Solan camp at Nalagarh in Civil Appeal No.33-NL/13 of 1999 whereby the appeal filed by the present appellant (here-in-after referred to as the plaintiff) was dismissed and the judgement and decree of the learned trial Court was upheld. 2. Briefly stated the facts of the case are that the parties are real brothers. It is not disputed that Gurmeet Singh purchased 15 biswas of land comprised in Khewat/Khatauni No.177/96 bearing 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 Khasra No. 473 in village Dhabhota, Tehsil Nalagarh from one Hakam Singh vide sale deed dated 15.6.1972. According to the plaintiff, defendant No.1 Jagdish Singh encroached upon five biswas out of this land and constructed a house thereupon sometime in the year 1985. Demarcation was conducted and it was found that defendant No.1 had constructed a house on that land. Thereafter, Gurmeet Singh asked his brother Jagdish to vacate the said land and defendant offered to give him five biswas of land in exchange but the matter could not be settled for one reason or the other. This, however, led to acrimony and dispute between the parties and defendant Jagdish got a criminal case registered against Gurmeet. According to the plaintiff, he and his son was arrested in a criminal case on 21.4.1993. 3. The undisputed fact is that on 14.5.1993 an agreement was entered into between the parties whereby the plaintiff agreed to sell and defendant No.1 agreed to buy this five biswas of land, on which he had raised construction, for a sum of Rs.10,000/-. Out of this amount of Rs.10,000/- 3 Rs.1,000/- was paid at the time of agreement and the balance was agreed to be paid on or before 26.3.1993. The plaintiff alleged that this agreement was not binding on him since he had been pressurized by the police to enter into upon this agreement. He accordingly filed the suit claiming possession of five biswas of the suit land. The defendant contested the suit and also filed a counter claim praying that a decree for specific performance be passed and the plaintiff be directed to sell five biswas of land to the defendant on payment of balance amount of Rs.9,000/-. It is not disputed that during the pendency of the suit the parties entered into another settled on 26.9.1995 (Ext.PW-4/A). A perusal of this agreement shows that the parties agreed to resolve the disputes existing between them. It was averred defendant No.1 was in possession of five biswas of land in Khasra No.473/1, and that Gurmeet had filed a suit for possession of the said property. By this agreement, Jagdish agreed to give five biswas of land out of the land owned by him on the left side of Dhabhota Majra Road where a brick kiln had 4 been set up by one Praveen and who had also established the office of brick kiln at that place. Out of this land, on the road side, Jagdish agreed to give five biswas of land to his brother Gurmeet in lieu of the land in his possession which was the subject matter of dispute. It was also agreed that at the time when the exchange deed would be executed whatever expenses would be incurred thereupon would be born by Gurmeet. Consequently, Gurmeet would withdraw the civil suit. The execution of this agreement Ext.PW-4/A is also not disputed but this time it was Jagdish who alleged that this agreement had been entered into under coercion of the police. Both the Courts below did not believe this version. 4. From a perusal of the judgement of the learned trial Court which has been merely upheld by the lower Appellate Court, it is clear that the trial Court has come to a clear cut finding that both the agreements Ext.DW-1/A and Ext.PW-4/A were executed by the parties voluntarily. The learned trial Court, however, held that the plaintiff was not entitled to enforce the agreement Ext.PW-4/A 5 because he had not withdrawn the suit and that he in terms of the compromise had not prayed to the Court immediately after filing of the agreement that the suit be decided in terms of the compromise. The main ground which weighed with the learned trial Court was that the agreement was entered into on 26.9.1995 and the application under Order 6 Rule 17 bringing this agreement to the notice of the Court was filed on 10.3.1998. Though various questions of law were framed but I feel that only two questions of law arise in the case. 1) Whether a party can be deprived of its right to enforce an agreement only on the ground that it did not bring it to the notice of the Court, especially when both the parties to the agreement are also the parties to the proceedings in Court? 2) Whether a party who seeks specific performance of a contract and later enters into an agreement, agreeing to transfer some other land in lieu of the land encroached upon can still enforce the agreement for specific performance? 6 5. I have heard learned counsel for the parties and gone through the record in detail. 6. As far as the learned lower Appellate Court is concerned it has just confirmed the findings of the learned trial Court and virtually not given any findings of its own. Therefore, I have carefully gone through the judgement passed by the learned trial Court. The learned trial Court following the decision in the case titled Ramchandra Mathuralal vs. Kulu Singh Nathrav, AIR 1961 M.P. 245 held that since the second agreement was entered into on 26.9.1995 and thereafter the case was fixed before the Lok Adalat on 16.12.1995 and again fixed for final arguments on a number of dates but the plaintiff did not bring this second agreement to the notice of the Court till 10.3.1998 when an application under Order 6 Rule 17 was filed, the plaintiff was not entitled to invoke the said agreement and came to the conclusion that the plaintiff must be deemed to have repudiated this agreement. 7. The conclusion drawn by the learned trial Court is totally incorrect. Even the defendant was a 7 party to the agreement. If the plaintiff had not brought this agreement to the notice of the Court, was not the defendant also as much responsible to bring this second compromise, which had been entered into between the parties, to the notice of the Court. It also appears that the matter was being adjourned for more than two years for arguments. I fail to understand why for two years the civil suit could not be heard. Be that as it may, it is apparent that this case was being adjourned at the mere asking and therefore, neither of party thought it fit to bring the subsequent events to the notice of the Court. 8. It stands established on record that after arguments were first heard in the matter the parties entered into a compromise Ext-PW-4/A. Why should the parties be not bound by such agreement? It is against all the principles of equity and good conscience to hold that a party should be deprived of its right to enforce an agreement only on the ground that the party delayed in bringing the agreement to the notice of the Court. In terms of the agreement Ext.PW-4/A firstly the defendant was 8 to identify and offer land on the Dhabhota Majra Road near the brick kiln on the road side to the plaintiff. How could the plaintiff be expected to withdraw the suit, as has been held by the learned trial Court, without the defendant first performing his part of the contract. The defendant was required to offer or earmark the land which he wanted to give to the plaintiff. 9. In this view of the matter, I am of the considered view that both the questions have to be answered in favour of the plaintiff-appellant and it is held that the plaintiff is entitled to enforce the agreement Ext.PW-4/A. The defendant has forsaken his right to seek specific performance of contract by entering into the second agreement. In case the defendant fails to abide by the said agreement, the plaintiff shall be entitled to a decree for possession of his property. 10. In view of the above discussion, the appeal is allowed. The judgement and decree of the learned trial Court as affirmed by the learned Appellate Court is set-aside and the suit of the plaintiff is decreed in terms of the second agreement Ext.PW- 9 4/A. A decree is passed to the effect that the defendant Jagdish shall on or before 31st October, 2010 file an affidavit alongwith the Tatima showing the land which he offers to the plaintiff in terms of the agreement Ext.PW-4/A. The plaintiff shall be given notice of the said application and he may file his objections thereto and thereafter, if necessary, the learned trial Court shall appoint a Commissioner to identify the land available at the spot. In case the defendant fails to file such an application or it is found that he is not offering land at the place which was initially agreed to in agreement Ext.PW-4/A the suit of the plaintiff shall be deemed to have been decreed for possession of five biswas of land comprised in Khasra No.473/1 which is the suit land. The appeal is disposed of in the aforesaid terms. No order as to costs. Decree sheet be drawn up accordingly. 11th August, 2010 ( Deepak Gupta ) ™ Judge.