Regular Second Appeal No. 4439 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4439 of 2010 Date of decision : November 29, 2010 Jasvir Singh and others ....Appellants versus Pritam Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Arun Bansal, Advocate, for the appellants Mr. SD Sharma, Senior Advocate with Ms. Bindu Goyal, Advocate, for respondent nos. 2 to 5 as caveators L.N. Mittal, J. (Oral) Defendants no. 3 to 8 are in second appeal after remaining successful in the trial court but remaining unsuccessful in the lower appellate court. Suit was filed by Pritam Singh plaintiff-respondent no. 1 and Piara Singh plaintiff no. 2 since deceased and represented by respondents no. 2 to 5 against Bachan Singh defendant no. 1/proforma respondent no. 6, Kewal Singh defendant no. 2 proforma respondent no. 7 and defendants no. 3 to 8 who are appellants. Defendants no. 3 to 5 are sons of Ajit Singh son of defendant no. 1 Bachan Singh whereas Mohinder Kaur defendant no. 8 is Regular Second Appeal No. 4439 of 2010 -2- widow of Ajit Singh son of Bachan Singh. Defendants no. 6 and 7 are sons of Bachan Singh defendant no. 1. Plaintiffs alleged that defendant no. 1 through his attorney defendant no. 2 agreed to sell the suit land measuring 93 kanals 2 marlas to the plaintiffs for ` 20 lacs and received ` 10 lacs as earnest money and executed the impugned agreement dated 6.6.1997. Sale deed was to be executed on or before 15.3.1998. However, 15.3.1998 happened to be Sunday. Accordingly on 16.3.1998, plaintiffs after intimating defendants no. 1 and 2 went to the office of Sub Registrar with requisite amount to get the sale deed executed and registered in terms of the agreement but defendants no. 1 and 2 did not turn up and committed breach of the agreement. Accordingly, the plaintiffs filed suit against defendants no. 1 and 2 on 16.4.1998. During pendency of the suit, defendant no. 1 made statement in Court on 1.12.1998 that he would not alienate the suit land during the pendency of the suit. However, inspite thereof, defendant no. 1 executed sale deed dated 9.5.2000 for 31 kanals 2 marlas land out of the suit land in favour of defendants no. 3 to 5, sale deed dated 24.8.2000 for 35 kanals 11 marlas out of the suit land in favour of defendants no. 6 to 8 and sale deed dated 30.8.2000 for the remaining 26 kanals 9 marlas land out of the suit land also in favour of defendants no. 6 to 8. Accordingly by amendment of plaint, said sale deeds were also challenged by the plaintiffs by impleading defendants no. 3 to 8 (subsequent vendees pendente lite) as party to the suit. The plaintiffs sought possession of the suit land by specific performance of the agreement to sell. Defendant no. 1 denied plaint allegations and inter alia, pleaded Regular Second Appeal No. 4439 of 2010 -3- that he had appointed defendant no. 2 as special attorney for looking after the litigation of defendant no. 1 with his sons. Defendant no. 2 was not authorized to enter into impugned agreement. The said agreement is result of forgery and misrepresentation and collusion of plaintiffs with defendant no. 2. Various other pleas were also raised. Defendant no. 2 was proceeded ex parte in the trial court. Defendants no. 3 to 8 also contested the suit and pleaded impugned agreement to be false and fictitious. It was alleged that the agreement was obtained from defendant no. 1 under influence on the basis of forged and fictitious power of attorney. Signatures of defendant no. 1 were obtained on alleged power of attorney under threat and under influence. Payment of ` 10 lacs as earnest money was also denied. Statement by defendant no. 1 that he would not alienate the suit land was also made by him in the court under threat and influence. Various other pleas were also raised. It was also pleaded that defendants no. 3 to 8 have purchased the suit land for consideration. Learned Additional Civil Judge (Senior Division), Jagraon vide judgment and decree dated 30.8.3008 dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Ludhiana vide judgment and decree dated 21.10.2010 and thereby suit filed by the plaintiffs has been decreed. Feeling aggrieved, defendant no. 3 to 8 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Plaintiffs have proved on record power of attorney executed by Regular Second Appeal No. 4439 of 2010 -4- defendant no. 1 in favour of defendant no. 2 whereby defendant no. 1 authorized defendant no. 2, inter alia, to enter into impugned agreement. The original power of attorney was not produced by defendants no. 1 and 2 and the plaintiffs proved the same by secondary evidence. Even otherwise defendant no. 1 did not dispute the execution of the power of attorney but pleaded that it was only special power of attorney authorizing defendant no. 2 to look after the litigation of defendant no. 1 with his sons. However, no other power of attorney has been produced on record. The power of attorney produced in evidence fortifies the case of the plaintiffs. Execution of the agreement has also been proved by the plaintiffs. Defendants no. 3 to 8 purchased the suit land during the pendency of the suit inspite of undertaking given by defendant no. 1 in the court that he would not alienate the suit land. Defendants no. 3 to 8 cannot be said to be bonafide purchasers of the suit land. Defendants no. 3 to 5 are grandsons of defendant no. 1 vendor, defendants no. 6 and 7 are sons of defendant no. 1 vendor whereas defendant no. 8 is daughter-in-law of defendant no.1 vendor. Moreover, sale deeds in their favour are also hit by doctrine of lis- pendens. Thus suit of the plaintiff has been rightly decreed by the lower appellate court. Learned counsel for the appellants contended that defendant no. 1 in the witness box denied all his signatures. However, if defendant no. 1 has turned dishonest, it is not sufficient to non-suit the plaintiffs. Defendant no. 1 is ancestor of defendants no. 3 to 7 and is father-in-law of defendant no. 8 and therefore, any statement made by defendant no. 1 favourable to defendants no. 3 to 8 would not effect the interest of the Regular Second Appeal No. 4439 of 2010 -5- plaintiffs in any manner. On the other hand, defendant no. 1 in the examination-in-chief admitted the entire case of the plaintiffs. He admitted having executed power of attorney in favour of defendant no. 2 and also admitted receipt of earnest money of ` 10 lacs and execution of agreement. Defendant no. 1 also deposed that defendants no. 3 to 8 had played fraud on him. However, in cross-examination defendant no. 1 turned dishonest and started favouring defendant nos. 3 to 8 who are from his own family. Consequently, statement of defendant no. 1 in cross-examination against plaintiffs cannot be given much weight. Learned counsel for the appellants contended that issues were not framed after defendants no. 3 to 8 were impleaded as party. However, both the parties knew the pleadings and the case of each other which they were required to meet. Requisite issues had already been framed. No additional issue was in fact required to be framed because defendants no. 3 to 8 are purchasers pendente lite. Even otherwise pleas raised by defendants no. 3 to 8 have been dealt with by the lower appellate court. Affidavits of Kewal Singh and Kuldeep Singh produced in evidence by the defendants are also of no help as Kuldeep Singh while appearing in witness box supported the case of the plaintiffs. Consequently, the alleged affidavit of Kuldeep Singh cannot be used adversely against the plaintiffs when Kuldeep Singh was not even confronted with said affidavit. As regards alleged affidavit of Kewal Singh, he has denied having executed the same. Defendants no. 3 to 8 cannot derive any benefit from the alleged affidavit of Kewal Singh. Finding of the lower appellate court against the appellants and Regular Second Appeal No. 4439 of 2010 -6- in favour of the plaintiffs is fully justified by the evidence on record. The said finding is supported by cogent reasons. Defendant no. 1 colluded with defendants no. 3 to 8. In violation of undertaking given by defendant no. 1 in the court not to alienate the suit land, defendant no. 1 sold suit land to his own sons, grandsons and daughter-in-law to defeat the rights of the plaintiffs. Thus the entire conduct of defendant no. 1 along with appellants has been patently dishonest, simply to non-suit plaintiffs. There is no illegality or perversity in the impugned judgment of lower appellate court so as to warrant interference in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed. ( L.N. Mittal ) November 29, 2010 Judge 'dalbir'