RSA No. 4622 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4622 of 2009 (O&M) Date of decision: November 26, 2010 Amarjit Singh and others ...Appellants Versus Ashok Kumar Chopra and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Gaurav Mohunta, Advocate, for the appellants. Mr. Aftab Singh, Advocate, for respondent No.1. Mr. VK Jain, Senior Advocate with Mr. JL Malhotra, Advocate, for respondents No.2 and 3. GURDEV SINGH, J. This second appeal has been preferred by the appellants/plaintiffs against the judgment and decree dated 15.9.2009 passed by the Additional District Judge, Jalandhar, vide which he dismissed the first appeal of the plaintiffs preferred against the judgment and decree dated 7.2.2007 passed by the Civil Judge (Jr. Divn.), Jalandhar, dismissing their suit for possession of the property in dispute, situated in Central Town, Jalandhar, fully detailed in the heading of the plaint, by way of specific performance of the agreement dated 16.5.1998 and for declaration to the effect that the sale deeds dated 27.11.1998, 30.11.1998, 1.12.1998, 2.12.1998 and 4.12.1998 executed by respondent/defendant No.1 in favour RSA No. 4622 of 2009 2 of respondents/defendants No.2 and 3 are illegal, void, against the provisions of law and are not binding upon them. The case of the plaintiffs, as pleaded in the plaint, is that defendant No.1 was the sole owner of the property in dispute which he agreed to sell in their favour for ` 10 lakhs, vide agreement dated 16.5.1998 and received ` 2 lakhs as earnest money. As per the terms of that agreement, the sale deed was to be executed and registered in their favour on 15.5.1999 after payment of the balance sale consideration. The sale deed could not be executed as it was pre-requisite to obtain clearance from the Income Tax Department. Defendant No.1 agreed to obtain that clearance and inform them accordingly but failed to do so. They repeatedly asked defendant No.1 to execute the sale deed in their favour but he kept on putting off the matter on one pretext or the other. Thereafter, they came to know that he had already executed the above said sale deeds in favour of defendants No.2 and 3. Defendants No.2 and 3 were fully aware of the agreement in their favour and, as such, those sale deeds are illegal, void, against the provisions of law and are not binding upon them. They also served a legal notice upon him to execute the sale deed in their favour but he failed to do so and, therefore, they filed the suit for specific performance of the agreement. The suit was contested by defendant No.1. In his written statement, he admitted execution of the agreement dated 16.5.1998 in favour of the plaintiffs and execution of the sale deeds by him in favour of the other defendants. He denied the other contentions of the plaintiffs and pleaded that no permission was required to obtain clearance certificate from the income tax authorities and there was no requirement of law to obtain RSA No. 4622 of 2009 3 any such permission. The plaintiffs never came forward to get the sale deed executed in their favour and had full knowledge of the execution of the sale deeds by him in favour of the other defendants. He also took up preliminary objections to the effect that the plaintiffs are estopped from filing the suit by their own act and conduct and by not getting the sale deed executed in their favour, their earnest money stood forfeited. Defendants No.2 and 3 filed separate written statements but took the same pleas. They denied the contentions of the plaintiffs and pleaded that the agreement put forward by them is forged and fabricated document having been prepared in connivance with defendant No.1 in order to black mail them. They are coming in possession of the property in dispute since the date of execution of the sale deeds. The plaintiffs had full knowledge of those sale deeds but remained silent for such a long period. In the replication to the written statement, the plaintiffs denied the contentions raised therein and reiterated all the averments made in the plaint. On the pleadings of the parties, the following issues were framed by the trial court:- 1. Whether the plaintiffs is entitled to specific performance of agreement dated 16.5.1998 ? OPP 2. Whether the plaintiffs is entitled to possession as prayed for ? OPP 3. Whether the plaintiff is entitled to declaration as prayed for ? OPP 4. Whether the plaintiff was ready and is still ready to perform the agreement dated 16.5.1999 ? OPP RSA No. 4622 of 2009 4 5. Whether plaintiff has no locus standi to file the present suit ? OPD 6. Whether the agreement dated 16.5.1998 is forged and fabricated document ? OPD 7. Whether the suit of the plaintiff is barred by limitation ? OPD 8. Whether the suit of the plaintiff is not properly valued fort the purpose of court fee ? OPD 9. Whether no cause of action accrued to the plaintiff to file the present suit ? OPD 10. Whether plaintiff has concealed material facts from the court ? OPD 11 Relief” To succeed in the suit, the plaintiffs examined R.C.Setia, Advocate (PW-1), Amar Nath, Clerk (PW-2), Amarjit Singh (PW-4). Amarjit Singh-plaintiff himself entered the witness box as PW-3. On the other hand, defendants examined Baldev Krishan Gupta, (DW-2), Paramjit Singh, Clerk (DW-3), Sunil Kumar, Clerk (DW-4), Shashi Raj, Clerk (DW- 5), Rajeev Kumar, Clerk (DW-6). Subhash Chander-defendant himself entered the witness box as DW-1. After going through the evidence so produced on the record and hearing learned counsel for both the sides, the trial court decided all the issues, except issues No. 7, 8 and 10, against the plaintiffs and resultantly, dismissed their suit. As already stated, the first appeal preferred by the plaintiffs was dismissed. It has been submitted by the learned counsel for the RSA No. 4622 of 2009 5 plaintiffs/appellants that the following substantial question of law arises in the present appeal:- “Whether a finding was to be recorded in favour of the plaintiffs on the basis of admission made by defendant No.1 in his written statement that agreement dated 16.5.1998 was executed by him in their favour ?” There is no dispute about the fact that such admission was made by defendant No.1, but still a finding could have been recorded against the plaintiff, in view of the stand of the other defendants and the evidence produced by them regarding the collusion between the plaintiffs and defendant No.1. The original agreement itself was never proved on the record and the evidence produced by the plaintiffs regarding the loss of that original agreement was contradictory, which was not believed by the lower courts. It cannot be said that the findings recorded by those courts are the result of mis-reading of the evidence or are perverse. No such substantial question of law arises in the present appeal and the same is dismissed accordingly. Records of the lower courts be returned. November 26, 2010 (GURDEV SINGH ) prem JUDGE