RSA No. 1008 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1008 of 2010 (O&M) Date of Decision: 8.03.2010 Rajesh Kumar ..Appellant Vs. Pupsha Bansal & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Satinder Khanna, Advocate, for the appellant. --- Vinod K.Sharma,J. (Oral) This is plaintiff/appellant's regular second appeal, against the judgment and decree dated 24.12.2009, passed by the learned courts below vide which suit filed by the plaintiff/appellant for possession by way of specific performance of agreement dated 25.7.1989 was dismissed. The facts leading to the filing of the suit by the plaintiff are that Bharat Mittal, defendant No.10, son of Jai Parkash is the real brother of defendants No.1 to 9. Bharat Mittal defendant No.10 agreed to sell land measuring 26 kanals 1 marlas vide agreement to sell dated 1.8.1985.A sum of Rs.20,000/- (Rupees twenty thousand only) was paid as earnest money. RSA No. 1008 of 2010 2 Another sum of Rs.30,000/- (Rupees thirty thousand only) was deposited by the plaintiff as trust money which was to be counted as earnest money for the landed property of defendants No.1 to 9 and their mother Sarla Devi. Later on Bharat Mittal consented to sell the land falling to the share of defendant No.1 to 9 and his mother Sarla Devi vide agreement referred to above. In pursuance to the agreement 80 per cent of the sale deeds of the landed property of defendants No.1 to 9 were executed by Bharat Mittal in his capacity as general attorney, as also more than 90 per cent of the area of their mother Sarla Devi was sold directly by Sarla Devi. It was, thus, claimed that agreement dated 1.8.1985 was binding on defendants No.1 to 9, as it was acted upon by the defendants without any objection, though, through their general attorney, defendant No.10. It was the further pleaded case of the plaintiff, that he was permitted to demarcate the plots, at the spot to enter into agreement with intending purchasers. Plaintiff entered into an agreement to sell, qua some of the plots and received earnest money for sale. Sale deeds qua 15-16 plots were executed by defendant No.10, in his capacity as general attorney for defendants No.1 to 9. After floods in September, 1988, landed property measuring 1778 square yards, was illegally occupied by adjoining owners/occupants. In spite of information by the plaintiff to defendant No.10, no action was taken by the defendants. This area was said to be in unauthorised possession of Bachan Singh etc., which could not be transferred through sale deeds although 1000 square yards was agreed to be sold to one Bachint Singh son of Kishan Singh and Ajit Singh son of RSA No. 1008 of 2010 3 Dasundha Singh. It was also the case of the plaintiff that dirty water of 27 dairies was passing through the land in dispute, and another 5 acres of the land stood inundated, which could not be sold as kacha badh at the bank of Budha nala was destroyed and water of Budha Nala used to flow in these plots even in the event of a small showers. It was also the case of he plaintiff that Bachan Singh etc. had encroached upon western strip of land including 1778 square yards of land which was never got vacated by defendants No.1 to 10 since September, 1988. Transaction of landed property, therefore, could not be completed within 4 years i.e. up to 31.7.1989. Another agreement was executed between the plaintiff and defendant No.1, in his personal capacity and as general attorney of defendants No. 1 to 9 and he also took responsibility for his mother on 25.7.1989. This agreement was valid up to 25.7.1993. Rate of land was increased from Rs.2,00,000/- (Rupees two lacs only) per acre to Rs.2.25 lacs (Rupees two lacs and twenty five thousand only) per acre. Sale deeds were executed by defendant No.10 of his personal land, and also for plots of defendants No.1 to 9, through general attorney. It was the case of the plaintiff, that he was ready and willing and was still ready and willing to get the sale deeds executed for 988 square yards, as shown in site plan No.1 and II. He was also ready to get the sale deed executed vide plan No.III for 1778 square yards, at the cost of defendants without getting it vacated from Bachan Singh etc. who were in unauthorised possession, at the rate of RSA No. 1008 of 2010 4 Rs.60/- (Rupees sixty only), per square yard, which came to Rs.1,65,960/- (Rupees sixty five thousand nine hundred and sixty only) on payment of Rs.1,50,960/- (Rupees fifty thousand nine hundred and sixty only) as Rs.15000/- (Rupees fifteen thousand only) stood paid at the time of agreement dated 25.7.89. It was the further pleaded case of the plaintiff that he had asked defendant No.10, to execute the sale deeds in favour of the prospective purchasers of plots shown in Plan No.1 and II by executing the sale deed at surrender price of Rs.15/- (Rupees fifteen only) per square yard for 1778 square yards, which was to be spent for dispossessing the unauthorised occupant Bachan Singh and others. Defendant No.10 failed to execute the sale deed, as he told the plaintiff that defendants No.1 to 9 have restrained him from executing any sale deed, on their behalf in future. It was claimed that the cause of action accrued to the plaintiff on 2.6.1993 to get the sale deeds executed. Defendant No.11 agreed to purchase plot No.42-A measuring 288 square yards vide agreement dated 3.7.1990 and had paid all the amount to the plaintiff. He is in legal and physical possession of the plot. He was, therefore, entitled to get the sale deed of plot No.42-A executed from defendants No.1 to 10. Defendant No.11 was impleaded as party vide order dated 7.12.1999. He was said to be in physical legal possession of the land in part performance of the agreements. Defendants No.3, 5, 6, and 9 as well as defendant Nos.11 filed RSA No. 1008 of 2010 5 written statements by taking preliminary objections. They denied privity of contract between the plaintiff and defendants No.3, 5, 6 and 9. Agreement was said to be illegal void and unenforceable, for the reason that no property could be sold by carving out the plots, as it was hit by the provisions of law. The agreement was against public policy. The sale of plots was said to be an offence unless one is registered and has obtained necessary permission and licence under the Punjab Regulation of Colonies Act, 1975 and Punjab Regional Planning and Development Act, 1995. The plaintiff was not holding any licnece, therefore, was not entitled to any relief. On merit, it was admitted by defendants No.3, 5 6 and 9 that Bharat Mittal is the real brother of defendants No.3, 5, 6 and 9. Remaining averments were denied. Defendant No.10 was said to have no locus standi to receive any earnest money for defendants No1 to 9 or their mother Sarla Devi. Plaintiff failed to produce original document in spite of application filed by defendants No.3, 5, 6 and 9 calling upon him to produce the same. Counsel for defendant No.10 made a statement that original documents were not in their possession. The agreements were said to be forged and fabricated. It was also pleaded that most of the clauses of the agreement were struck off and there was material interpolation in the agreements which have no sanctity in law. Defendants No.3, 5, 6 and 9 denied having entered into agreement to sell. They also denied having authorised any person or defendant No.10, to enter into agreement nor defendants No.3, 5, 6 and 9 received any consideration. As already noted above, other averments on RSA No. 1008 of 2010 6 merit were denied. It was also pleaded that alleged sale deed was sham and bogus and not binding on the defendants as no details of the sale deeds were disclosed. It was also denied that the plaintiff was authorised to enter into an agreement with subsequent purchasers, or to demarcate the plots. The agreement was said to have lapsed by time. Receipt of any payment was denied by defendants No.3, 5, 6 and 9. Defendants No.11 claimed himself to be bona fide purchaser for consideration: On the pleadings of the parties learned trial court framed the following issues:- 1. Whether defendant No.1 to 10 executed agreement dated 25.9.1985 in favour of plaintiff, if so, whether plaintiff is entitled to the decree of possession of the suit property by way of specific performance of the contract? OPP 2. Whether suit is not maintainable in its form? OPD 3. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD 4. Whether suit is barred by time? OPD 5. Whether suit is bad for mis-joinder and non joinder of necessary parties? OPD 6. Whether plaintiff has no locus standi and cause of action to file the instant suit? OPD 6(a) Whether defendant No.11 is a bona fide purchaser of the RSA No. 1008 of 2010 7 suit land for consideration and is in possession of the same? OPD-11 7. Relief. Learned trial court on appreciation of evidence, on issue No.1 held that the plaintiff had failed to bring on record, the original agreement dated 25.7.1989 nor he proved the agreement dated 25.7.1989 as per Evidence Act, as he failed to summon the file where the original agreement was said to be lying. It was held that the plaintiff failed to prove the agreement dated 25.7.1989. He even failed to prove the agreement dated 1.8.1985. Learned trial court, therefore, decided issue No.1 against the plaintiff and in favour of the defendants. Issues No.2 to 6 were not pressed and therefore decided against the defendants. Issue No.6(a) was decided against defendant No.11, for the reason that the plaintiff could not pass on the title to him, which the plaintiff did not possess. Consequently, suit was dismissed. In appeal, learned lower appellate court held that the learned trial court, rightly came to the conclusion that the appellant has not been able to prove the the original agreement to sell. It was, therefore, held that the learned trial court, was not bound to rely upon the agreement which was not proved. Learned lower appellate court also held that the learned trial court rightly held that the present suit was barred under provisions of Order 2 Rule 2 of the Code of Civil Procedure (for short the Code). The appeal was RSA No. 1008 of 2010 8 also dismissed. Mr.Satinder Khanna, learned counsel for the appellant, contends that this appeal raises the following substantial questions of law for consideration by this court: 1. Whether in view of the previous judgment holding the agreement to be valid, the findings recorded by the learned courts below would be hit by principle of res judicata? 2. Whether the learned courts below could invoke the provisions of Order 2 Rule 2 of the Code to non suit the plaintiff/appellant in the absence of any evidence? In order to appreciate the controversy raised in the plaint, it would be necessary to incorporate the terms of the agreement said to have been entered into between the parties. The agreement reads as under:- “i) That party No.1 received Rs.20000/- (Twenty thousand only) as earnest money from party No.2 vide agreement deed dated 2.8.1985, and a sum of Rs.30,000/- (Thirty thousand only) was left by party No.2 as Trust money with party No.1 in that agreement deed dated 2.8.1985. Now that Trust money of Rs.30,000/- (Thirty thousand only) will be considered as earnest money in the present agreement deed. Thus a total sum of Rs.50,000/- (Fifty thousand) will be the earnest money vide previous as well as the present agreement deed. RSA No. 1008 of 2010 9 ii) That party No.2 is authorized to look the plots and give demarcation at the spot according to the draft plan already handed over to him. He can receive the earnest money, and can execute the agreement deed in favour of subsequent purchasers. Party No.1 will be responsible to execute the sale deed in favour of the subsequent purchasers with whom party no.2 has entered into agreement. iii) That the sale deeds are to be completed and executed upto 2.8.1993 at the payment of consideration amount at the rate of Rs.60/- per sq. yard and the earnest money will be adjusted in the last sale deeds. iv) That previous account is to be settled up to 31.10.1989 and the balance sheet is to be signed by both the parties having counter copies of the same. v) That the landed property under the unauthorised possession of Bachan Singh and other is to be got vacated by party no.2 either by negotiating or through cicil litigation. Compensation payable to Bachan Singh etc or the expenses of litigation will be borne by party No.1. vi) That if party No.1 refused to execute the sale deed as directed by party no.2 in the name of subsequent purchaser, then party No.1 will be responsible to execute the sale deed by specific performance or to pay damages as will be caused due to his negligence and non-compliance. RSA No. 1008 of 2010 10 vii) That if party no.2 does not pay the entire amount of the plots within stipulated time, then his agreement deed will stand revoked and earnest money of Rs.50000/- (Fifty thousand) will stand forfeited. Whereas both the parties have signed this agreement deed in token of the correctness in the presence of witnesses.” Original agreement contains lot of cuttings and interpolations as held by the learned courts below. Even otherwise, reading of the agreement would show that even if for the sake of arguments, the agreement is taken to be valid and proved, still it ceased to be operative after 2.8.1993, in view of Clause (iii) read with clause (vii) of the agreement. Agreement on the face of it, therefore, was not enforceable. The contention of the learned counsel for the appellant was that once it was proved that previous suit for specific performance was decreed by the courts below, therefore, the findings qua agreement was to operate as res judicata, and the courts could not reject the agreement even if, it was not proved. This plea of the plaintiff/appellant cannot be accepted. Reading of the agreement would show that the sale was to be completed by 2.8.1993 and that too in favour of third party. If plea of appellant is accepted that Order 2 Rule 2 was not applicable, as cause of action was different, then how can, appellant raise a plea of res judicata against the court. This contention is misconceived. Reading of the agreement, would show that it was against the public policy. It is not permissible to demarcate plots, for sale in view of provisions of Punjab Regulation of RSA No. 1008 of 2010 11 Colonies Act, 1975. This court can take a judicial notice of the fact that the agreement, which is against law is not enforceable even if the point is not raised or considered by the learned courts below. There was no plea of res judicata nor the court non suited the plaintiff on the plea of res judicata. The first substantial question of law as raised does not arise for consideration in this appeal. The contention of the learned counsel for the appellant that Order 2 Rule 2 of the Code has been wrongly applied is also misconceived. It is not in dispute that the agreement sought to be enforced was subject matter of litigation on earlier occasion, therefore, relief of specific performance was available to the plaintiff/appellant when previous suit was filed. Once the pleading in the suit itself show that the suit is barred under Order 2 Rule 2 of the Code, the learned trial court rightly held the suit to be barred. Even otherwise, as already observed above, agreement was not enforceable after expiry of stipulated period i.e. after 2.8.1993, as it stood revoked as per agreement. Agreement otherwise being against the public policy, and against law could not be specifically enforced. No ground is made out to interfere with the judgment and decree passed by the learned courts below. Dismissed. No costs. 8.03.2010 (Vinod K.Sharma) rp Judge