IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1213 of 2010 (O&M) Date of Decision : 22.3.2010 Swinder Kaur and others ....Appellants Versus Mohabbat Singh ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Rajeshwar Singh, Advocate for the appellants. ..... MAHESH GROVER, J. Delay condoned. A suit for possession by way of specific performance was filed by the present appellants against the respondent alleging an agreement to sell dated 25.12.1994 in their favour supposedly executed by the respondent for sale of the property in question. The suit property belongs to the father-in-law of the appellants No.1 and 7 and grandfather of appellants No.2 to 6, who had alienated the same by way of a registered sale deed in favour of of the present respondent on 22.7.1994. The appellants alleged the agreement to sell dated 25.12.1994 in their favour, which is denied by the respondent being a result of undue pressure and coercion and not being a result of his free volition. R.S.A.No.1213 of 2010 (O&M) -2- The present respondent namely Mohabbat Singh also filed Civil Suit No..573 of 1998 for mandatory injunction seeking possession of a portion of the suit property which is in possession of the appellants. There is no denial to the facts that the appellants were in possession of some portion of the property which was sold by the father-in-law of appellants No.1 and 7 and grandfather of appellants No.2 to 6 to the respondent. Both the Courts below have determined on the basis of evidence that the agreement to sell was a sham transaction which was got executed under pressure from the respondent in a police station. The agreement to sell was therefore discarded. The suit for possession by way of specific performance of the agreement to sell dated 25.12.1994 was dismissed while the suit for mandatory injunction preferred by the respondent was decreed. Learned counsel for the appellants has assailed the findings of the Courts below to contend that there was a validly executed agreement to sell in his favour and the plea of coercion and undue influence could not be sustained as the facts reveal that the respondent himself was a police official posted at Amritsar at the relevant point of time and therefore he could hardly be said to be amenable to pressure especially to the agreement to sell which was concededly executed in the police station. He thus contends that the findings are perverse, more so when the payment of the consideration and other relevant factors for enforcing the agreement to sell stand proved on record. He further contends that as many as 12/13 witnesses who were present at the time of execution of the agreement R.S.A.No.1213 of 2010 (O&M) -3- to sell have supported his case. He has described the findings of the Courts below as perverse and erroneous. I have heard the learned counsel for the appellants and have perused the impugned judgments. The appellants allege an agreement to sell in their favour dated 25.12.1994 but if the facts of the case are to be seen then it becomes clear that the first case filed by the respondent on 15.11.1994 was for permanent injunction which was dismissed in default on 12.9.1995. Subsequently another suit filed by him on 12.10.1994 was also got dismissed as withdrawn on 4.2.1998, after three years of it being prosecuted. The appellants made no attempt to amend their pleadings so as to seek the relief of possession by way of specific performance of the agreement dated 25.12.1994 which right had accrued to them but consciously was not availed of by them. The instant suit was filed on 19.5.1995. The fact that they did not choose to file a suit for specific performance at the first instance when the right became available to them is a factor which when coupled with other material on record strongly leads to an inference that the agreement to sell was a sham transaction. It is the case of the appellant themselves that the agreement to sell was executed in the police station which has been described to be a result of coercion and undue influence by the respondent. It is settled proposition of law that an agreement to sell or any other such contractual document which has a result of binding contract between the parties has to be a result of free expression of minds and intent which is expressed in the document. Any material which tends to pointing out to any deviation R.S.A.No.1213 of 2010 (O&M) -4- from the aforesaid would more often necessarily lead to an inference that the agreement or the document in question is not a free expression of the intent and would thus be construed to be non estum factum. There is cogent material on record to show that the agreement to sell which was executed in the police station was indeed a result of undue influence, more so when concededly as per the appellants the parties were at loggerheads with each other because of the possession being enjoyed by the appellants of a portion of the property which was sold to the respondent by the father-in-law of appellants No.1 and 7 and grandfather of appellants No.2 to 6. Since the Court is of the opinion that the respondent has been able to establish that the document is not a result of his own free volition and rather is tainted one, the same could not be enforced in the court of law and therefore the courts below were right in declining the plea of possession by way of specific performance. The appeal is therefore without any merit and is dismissed. 22.3.2010 (MAHESH GROVER) JUDGE dss