J 7 74 0 4 CM No 3295C of 20098 RegularSecond AppealNoe1875 0f1995 e IN THE HIGH COURT OF PUNJAB c HARYANA AT CHANDIGARH CM No 3295C of2009 and RegularSecond AppealNoe 1875 of 1995 1 Date ofdecisionl 04e092009 0 C NaranjanSinghson of Hira Singh now dead9being through I AmarjitSinghslo Ram Chander rlo villageKot Bhaktu Tehsil and District C5 Bathindaas per the last Will Singhdated27031991 I Z e Appellante Versus r I 1 Wazir Singh 2 JangirSingh both sons of Dan Singh rlo village 08 BhisianaTehsil and District Bathinda 7 eeeee Z COR2 HONBLE MRe JUSTICE SHAM StnVDER Pres6nt Mr Daldeep for theappellant Mr SC Pathela Advocate for nos l and2 Mr BS Kathuria Advocate for applicants who havefiled an application under Order 1 Rule 10 CPC . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 5 75 0 4 CM No 3295C of2009 8 1 Regular Second AppealNoe 18750f1995 e2e Sham Sunder Je This RegularSecondAppealis directed again 1 the and decreedated06041992 renderedby the r Courtof Senior Sub JudgeBathinda vide which it decreed 0 C3 the suit of the and the and I C0 decree dated 2703 995 rendered by the Court of Additional District which it dismissed Z theappeal r 2 The facts 111 brie are that the land 119kanals 14marlassituatedin villageManwala measuring I 08 1 Tehsil Talwandi Sabo was theownership ofNaranjanSingh He executedan agreement to sell dated2612987 in respect 7 Z of the land in disputefor a sale consideration of 1m Rs600001 at the rate of Rs240001 per acre An amount of Rs1500001 was paidby the to Singh 6now as earnest mone in the of the witnessesand the balance amount was to be paidat the time of execution and registration of the sale deed beforethe Sub RegistrarThe sale deed was to be executed and gotregistered on or before 15061988 It was statedthat the alwaysremainedreadyand willing . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 76 0 41 1 CM No 3295C of2009 RegularSecond AppealNo 18750f1995 e3e to perform their own partofthe contract but NaranjanSingh deceased9defendantoreached the tenns and conditions thereof The defendantwas many a timeaskedto execute and 1 0 get the sale deed on the basisofthe agreement to 0 sell 111 favour of the but to no C I avail On the final re8isal ofthe defendant to execute and get C5 the registered sale deed in favour of the plaintiffsleR with er no altemative a suit for by way of specific Z and permanentinjunction and in the alternative r for recovery was filed I 3 NaranjanSingh defendant put lll 08 and contestedthe suit byway of Olingwritten 7 statement wherein it was denied that an agreementto sell Z dated 26121987 111respectof the land in disputewas 3 executedby him in favour of the It was also denied that the eamest money in the sum of Rsl500001e was received by the defendant from the 3 plaintiffsOn the other hand it was statedthat he had already executed an agreementto sell in respectof the land 111 disputeon 22111987 111favour of SurjitSinghJagrup Singhand Sukhdev SinghIt was further stated that under these circumstances the questionof execution of the . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 77 0 4 CM No 3295eCof2009 8 RegularSecondAppealNo 1875 0f1995 4e to sell dated26121987 in favour ofthe plaintiffs byhim in respectof the land in disputedid not at all arise He further statedthat the agreementto sell dated2621987 was a forgedand fabricateddocument createdjustwith a 0 Viewto grabthe land in disputeThe remaining averments C I containedin theplaintwere denied beingwrong C5 4 From thepleadings ofthe partiesthefollowing 1SSues were struckbythe trial Courtl Z l Whether the partiesenteredinto an agreement on r 2621987 vide which the defendantagreed to sell the suit land to the plaintifffor a sum of I 08 Rs1000019OPP 2 Whether the plaintiffspaidRs500001e as eamest e Z money to the defendant throughthe above Ll mentionedagreement20PP 3 Whether the plaintiffs are entitled to specific of the agreementin questionon the grounds mentionedin theplaint20PP 4 Whether the plaintiffsin the alternativeare entitled to recover Rs560001 fromthe defendant20PP 5 Whether the suit is not maintain8blein the present form 20PD . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 78 0 4 CM No 3295C of20098 RegularSecond AppealNoe 1875 0f1995 5 5eAWhether the plaintiffsalwaysremained readyand willingto perform their own partofcontract and are yetreadyfor the same 20PP m 0 0 6 Relief C 5 Afler hearingthe Counsel for theparties C5 and on goingthroughthe evidence and record of the case I the trial Court decreed the suit for speci8c of Z the agreement to sell r 6 Feeling aggrieved an appealwas I by NaranjanSinghappellantl defendant which a5 was dismissedbytheAppellate Court vide its and decreedated27031995 Z 7 Feelingdisesatisfled the instant Regular ll Second Appeal has been Oled by the the legal Singhas hedied 8 Duringthe pendencyof the instant RegularSecondAppealCivil Miscellaneous No 3295eCof 2009 under Order 1 Rule 10 CPC was ftledby Beant Singh Basant SinghMalkiat Kaur AmarjitKaur and Parshotam 1 Dass applicantsstatingtherein that NaranjanSingh also entered into an agreementto sell in respect 4 . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 79 0 4 CM No 3295C of2009 8 RegularSecondAppealNoe 1875 of 1995 6e ofthe land in disputein favour of SurjitSinghand Jagrup Singhvide agreementto sell dated2211987 However he NaranjanSingh9 failed to execute thesale deedin favour of 1 tr SurjitSinghand JagrupSinghand hence theyfiled a suit 3 0 for specific of the contract The said suit was C3 I decreed by the Court of Senior Sub JudgeBathinda by CD Vlrtue of judgmentand decree dated 25111991 It was furtherstated that the decree holdersin execution of the Z decreedated 2511991 got of the suit land It tr was irther stated that thereafter the decree holders I transferredthe suit land to a third person It was 61rther 08 statedthat lateronthe land in disputewas sold in favour of e 7 It was irther statedthat the agreement Z to sell dated2211987 in respectof the land in dispute Ll was prior in date than the agreementto sell dated byNaranjanSinghinfavour of the It was further statedthat the and decrees passed 111 favour of the 1 were void abinitio It was lrther statedthat theapplicants havinggot rightand interest in the propert in disputewere necessary partiesin whose absence the controversy cannot be completelyand . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 80 0 111 Ile CM No 3295C of2009 8 RegularSecond AppealNo 1875of 1995 m7w effectively decided Accordingly a prayer for was made 9 In replyto theapplicationit was stated m that the decree in favour of SurjitSinghand JagrupSingh 0 in a suit havingbeen filed passedduringthe C pendencyof the sui out of the decision whereof the C5 instant appealhas arisen was hit by the principleof lis I pendenscontained in Section 52 of the Transferof Property Z Act It was further statedthat the decree dated 251 11991 C passedin favour of SutjitSinghand JagrupSinghon the I basis of allegedagreementto sell dated 221984 during 08 the pendency of the suit out of the decision whereof the 17 instant appealhas arisen wasa collusive decree and was Z notbindingagainsttherightsof the in tl the instant appealIt was further statedthat the applicants onlystepped into the shoesof NaranjanSinghthe original owner of the property in disputeand would be bound by the decree passedin the suit out of the decision whereof the instant appealhas arisen as theyhad no rightto the propertyin disputeIt was furtherstatedthat the applicants are not necessarypartiesAccordinglya prayer for dismissal ofthe application was made . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 81 f 0 4 CM No 3295eCof2009 8L RegularSecond AppealNoe 18750f1995 10 I have heard the Counsel for the parties andhavegone throughthe evidenceand record of the case 1 C carelly 0 11 The followingsubstantial questionsof C I law arise in this appealfor determinationl C9 1 Whether the Courts below recorded perverse I findingson account of mis readingand llll Z of evidenceand law on the pointthat a 1 r legaland valid agreementto sell dated 26121987 1 I was executedin favour ofthe 08 2 Whether the Courts below recorded perverse lVu 7 findingson account of and 1 of evidencethat the execution validityand legality 0m of the earlier agreement to sell dated 22111987 set up by the defendant Iappellantin the written 1 statementwas not proved2 12 First comingto the applicationunder Order 1 Rule 10 CPC havingbeen filed by the applicant namelyBeant SinghBasant SinghMalkiat Kaur Amarjit Kaur and Parshotam Dass for impleading them as a partyto the instantRegularSecondAppealit may be statedhere that . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 82 0 01 CM N 3295C of2009 0 RegularSecond AppealNoe 18750f1995 e9m the same is liable to be dismissed for the reasons to be recordedhereinafter The agreement to sell dated221987 on the basis whereof the decree duringthe pendency of the 0 suit out ofthe decision whereof theinstantappealhas arisen 0 was passed on the basisof compromise was also set up in the 0 written statement of the presentcase Both the Courts below 0 recorded concurrent findingsthat no evidence was produced by the to prove the execution legality Z and validityof the said agreementto sell dated 2211 987 r and as such that issue was decided againstthe defendant I JagrupSinghand SurjitSinghonlystepped into the shoes of 08 NaranjanSingh Theydid not have any right m The alienation made in favour of Suit Singhand Jagrup 1 Z Sing4 on the basis of decree during 3 thependency of the suit which was filed on 16071988 was hit by the doctrine of lis pendenscontainedin Section 52 of the TransferofProperty Act The rightsofthe applicantson the basis of the sale deedexecuted by the vendeesof Suit 1 Singhand JagrupSinghare subjectto the decision of the 1 instant appealSince NaranjanSinghdied and his legal laS filed this appealthe applicants are not U necessary partiesIf they the propertyduringthe . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 83 0 J It CM No 329SC of2009 4 RegularSecond AppealNoe 1875of 1995 m10e ofthe appealfrom the successorsnnterest ofthe theydo not haveany right 111the property in disputeTheir rightwill be govemedby 1 thedecisionof the appealTheycould not be said to be bona 1k9v 0 flde for a valuable considerationof in 0 J disputeas the protectionof Section 41 of the Transfer of C9 Property Act is not available to them Under these I 7 circumstancestheapplicants are neither necessarynor proper Z parties The controversyin theappealcan be completely and C upon in their absence Under these circurnstancesthe deservesto be dismissed 08 0 13 It was submittedby the Counsel for the 466w 7 appellant that the perversefindingon mis Z 7 0 reading that the execution l legality and validityofthe agreement to sell dated26121987 stoodproved In my considered opinion the appeal deservesto be dismissed for the reasons to be recorded hereinafler In Madvan Nair VseBhaskar PUkd 05110 SCC 533 Harieet Sinh VseAmrik Singh 2005112 SCC 270 HP Pvareian Vs Dasapm JT 2006I SC 228 and GurdevKaur and others VseKaki and others UT 2006 81 SC 72 while the scope of Section 100 of the . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 84 0 41 4 CM No 3295C of2009 8 RegularSecond AppealNoe 1875of 1995 e11 Codeof Civil Procedure the principleof law laid down was thatthe HighCourt has no jurisdiction to interfere with the findingsof fact arrived at by the trial Court and the first AppellateCourt even i the same are grosslyerroneous as 0 the legislative intention was very clear that the legislature C I neverwanted second appeal to become a third trial on facts C5 or one more dice in thegambleIt was 61rtherheld that the I jurisdictionof the High Court 111 interferingwith the 1 Z of the Courts below 1S confined only to the r r S hearingof substantial questionsof law The execution I legalityand validityof the agreement to sell ExP29 dated C45 26121987 in favour of the were W2 provedby Singh PW49anattesting witness and Z JangirSingh PW51 one of the plaintiffsas also Satwant Puri Handwriting and ExpertPatiala 6PW who compared and examinedthedisputed thumbimpressions of the defendant on the agreementto sell ExR29with his 1 specimenthumb on the written statement and 1 vakalatnamaOn he gave his reportExWe31A9 that thedisputed thumbimpressions ofNaranjanSinghon the to sell ExlO21tallied with his specimen thumb on the written statement and vakalatnama The 1 . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 85 0 1n CM No295C of2009 4 RegularSecond AppealNoe 1875 0f1995 12 science with regardto the identification of thumb is conclusiveand admits of no dispute The witnesses aforesaid were crossmexamined but 1 nothingof consequenc could be broughtout duringthe 0 course of their crossexamination which may go to discredit C I their evidence Amarjitson of Ram Chand attomey of C5 Singh appeared asDW1 and I stated that no such agreementwas executed but it was a Z forgeddocument but in the same breath lt was stated by him thathe was in of theland in disputeThere is nothingon record that he was present at the time of a5 1 1 execution of the agreementHe must also be interested 111 VV3 the and that was whyhe made such a Z depositionthat 110 such agreement W8S executed He was thus rightlyheld to be an interestedwitness by the Courts below Shashi Bhushan DWe29scribe of the agreementto sell 6Exl29 no doubt statedthat he scribed the same yet at 1 the same time he denied that the thumb of NaranjanSinghon the said agreement to sellwere takenin his J 1 He further stated that he did not read over the contents of the agreementto sell to NaranjanSinghDuring the course of crossexamination it was statedby himthat the r . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 86 0 1 V1 l 1 CM No295C of2009 8 RegularSecondAppealNo 1875of 1995 e13 1 contents of the agreement to sell ExPe2 were written by him He also stated that he knew Jeet Singh exemember an attesting witness of the said agreementto sell 1 The statement of thiswitness to a largeextent supportsthe 0 caseofthe the executionofthe agreement C to sell dated 26121987 It appearsthat he made a statement C5 that he did not read over the contents of the agreement to I NaranjanSinghand did not obtain his thumb impressions Oll 1 Z the same T as he was won over by the r Jeet SinghD39 attesting witnessof I theagreementto sell Exe29 admittedhis signatureon the 08 same but he statedthat the same were appended byhim at the 1 S7 bottom In case theagreement to sell Exl0e29 had not been Z executedin the presenceof thiswitness then how he puthis Ll thereon It cannot be imaginedthat a person would appendhis ona documentespecially when he was an exemember without goingthroughthe contents thereof NaranjanSinghdefendant when appeared as DW4 deniedthe execution ofthe agreementto sell How then his thurnb impressioncame into existence on the to sell which was dulyprovedby Satwant Puri Handwriting c FingerprintExpertwas for him to explain . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 1 87 0 1 7 CM No 3295C of2009 8 RegularSecondAppealNoe 1875 of 1995 14 The Courts below after correct readingand due of the evidence on record were rightin comingto the conclusion that the agreementto sell ExR was executed 4 Iam C by NaranjanSinghin favour of the plaintiffsl 0 The Courts below were also rightin holdingthat the evidence C of AmarjitDWml Shashi Bhushan DWe2 Jeet Singh C DWe3 and the defendant who appeared as DW4 in the face er of cogentand convincing evidence producedby the plaintiff 2 r was hardlyof any consequence The Courts below thus C rightlyheld that the execution legalityand validityof the to sell Exm2 stooddulyproved 08 14 The Courts below were also right in 7 comingto the conclusion that no doubt an agreement to sell Z dated22111987 was set up bythe defendant in the written 0m statement which according to him was executed by him 1 in favour of SurjitSinghand JagrupSinghin respectof the land in disputeyet no evidence was produced to prove the executiolegalityand validitythereo The mere pleataken up in the written statementawith regardto the execution of the agreementto sell dated 2211 1987 in favour of Surjit 1 Singhand JagrupSinghwithout substantiationthroughany evidence did not stand provedHad such a documentbeen r . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 88 0 6 CM No 3295C of20098 RegularSecond AppealNoe1875 of 1995 j 45 executed byNaranjanSinghin favour of SurjitSinghand JagrupSinghthen certainlythe evidence would have been to prove the execution legalityandvaliditythereo 1 15 The Courtsbelow were also rightinholding 0 thattheplaintiffs alwaysremainedreadyandwillingto perform 0 their own part of the contract but on the other hand the C9 defendant breachedthe terms and conditions thereof Once the execution of the agreementto sell Exe2 was Z deniedbythe defendantin the written statement it meant that C 10 he was neither readynor willingto perfonnhis partof the I contract The flndings of the Courts belouTon the questionof 08 readiness and willingness ofthe plaintiffsto perfomtheir own er 7 partofthe contract are correct Z 16 The concurrent ftndings of fact recordedby ll Y theCourts below on the aforesaidpointsbeingbased on the 0 correct reading and due of evidence and law on the point do not suffer from any illegalityor perversity the interferenceofthis Court The submissionofthe CouIiselfor the appellantbeingwithout merit must fail and the same standsrejectedThe substantial questions of law depicted above are answeredagainst theappellant . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 89 0 9 411 CM No 3295C of2009 4 RegularSecondAppealNoe 18750f1995 16e 17 For the reasons recorded abovethe appeal beingdevoid of merit mustfail and the same standsdismissed r with costs CM No 3295C of2009 is also dismissed 0 C Sham Sunder l I 04092009 Judge C5 dinesh Z Ci I C45 awo Z ISIol C b 41 r Il8t er5 . Radhika 2012.05.29 15: 52 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document