RSA No. 4432 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4432 of 2002 (O&M) Date of Decision: 23.3.2009 Nachhattar Singh ..Appellant Vs. Niranjan Singh & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Gaurav Chopra, Advocate, for the appellant. Mr.J.S.Brar, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgments RSA No. 4432 of 2002 2 and decree dated 13.8.2002 passed by the learned courts below vide which suit filed by the plaintiff/appellant for specific performance of agreement to sell stands dismissed. By way of common judgment learned trial court was pleased to dispose of two civil suits – one filed by Smt.Bachan Kaur against Rajvinder Singh and others and another filed by plaintiff/appellant Nachattar Singh against Bachan Kaur and others. Civil suit for declaration was filed by Smt.Bachan Kaur against Rajvinder Singh to challenge the sale deed executed in favour of Rajvinder Singh. The plea taken was that he had entered into an agreement to sell regarding the suit land with Nachattar Singh i.e. plaintiff/appellant herein on 6.8.1986 and in part performance thereof delivered possession of the suit land to him. It was claimed that if there is any sale deed executed in favour of Rajvinder Singh the same was forged, fabricated and fictitious document and not binding on the rights of the plaintiff whereas defendants No.3 and 4 Zora Singh and Mukhtiar Singh claimed themselves to be the legal heir of Kangan Singh deceased i.e. the husband of the plaintiff on the basis of Will. The suit was contested by defendants No.1 to 3 by filing a written statement wherein stand was taken that the plaintiff vide registered sale deed dated 11.8.1986 sold 25 kanals 6 marlas of land for a consideration of Rs.49,000/- in favour of defendant No.1. Similarly, plaintiff sold another 7 kanals 14 marlas of land in his favour through her general attorney Dhan Singh and thus, he claimed to be the owner in RSA No. 4432 of 2002 3 possession of the suit land. It was also pleaded that the plaintiff and defendant No.2 i.e. the appellant herein were colluding with each other in order to defeat the right of defendant No.1. It was also pleaded that the suit for declaration was not competent. However, defendant No.2. i.e. the appellant herein admitted the claim of Smt. Bachan Kaur in the suit for declaration. On the other hand, suit for specific performance was filed by the plaintiff/appellant herein, for enforcement of agreement to sell dated 6.8.1986. On the pleadings of the parties learned trial court was pleased to frame the following issues:- 1. Whether the suit is not maintainable? OPD 2. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 3. Whether the plaintiff had entered into an agreement of sale dated 6.8.1986 with defendant No.2 as alleged and the possession was given to defendant No.2? OPD 4. If issue No.3 is proved, whether the plaintiff and defendant No.2 are colluding in order to defeat the rights of defendants No.1 and 3? OPD 5. Whether the plaintiff had sold a portion of the suit land to defendant No.1 through registered sale deeds as alleged in para No.2 of the preliminary objection?OPD-1 RSA No. 4432 of 2002 4 6. If issue No.5 is proved, whether the sale deeds are forged and fabricated documents? OPP 7. Whether the plaintiff is entitled to the relief of declaration, as prayed? OPP 8. Relief. Issues No.1 and 2 were not pressed and therefore, were decided in favour of the plaintiff/appellant. Learned trial court on appreciation of evidence on record, on issue No.3 held that agreement dated 6.8.1986 was not genuine agreement and it was predated to defeat the rights of defendant-respondent No.1. On issue No.4 learned trial court was pleased to record a finding that the plaintiff and defendant No.2 were colluding in order to defeat the rights of defendants No.1 and 3. Sale deed executed in favour of defendant No.1 was upheld. It was further held that the sale deed was not forged and fabricated document. Issue No.7 was also decided against Smt.Bachan Kaur plaintiff and it was held that she was not entitled to declaration as claimed. In view of the admission made by Smt. Bachan Kaur qua agreement to sell the suit titled Nachhattar Singh Vs. Bachan Kaur was decreed for a decree of recovery of Rs.50,000/- with proportionate costs with further interest at the rate of 6 per cent per annum from the date of institution of the suit till realization. The appellant did not choose to challenge the decree passed in suit for declaration titled Bachan Kaur Vs. Rajvinder Singh and others and RSA No. 4432 of 2002 5 only challenged money decree in favour of plaintiff/appellant by claiming that he was entitled to specific performance of the agreement. Learned lower appellate court has been pleased to non-suit the appellant/plaintiff by recording a finding that as the plaintiff/appellant failed to challenge the judgment and decree passed in the case of Smt. Bachan Kaur Vs. Rajvinder Singh which was disposed of by way of consolidated judgment the finding recorded in the said suit would operate res judicata against the plaintiff. The learned lower appellate court also affirmed finding on issue No.2 that the agreement to sell was executed to defeat the right of the plaintiff/appellant. Learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law:- 1. Whether the judgments and decree passed by the learned courts below are the outcome of misreading of evidence and pleadings of the parties, thus perverse? 2. Whether the learned lower appellate court was justified in dismissing the appeal by invoking principle of res judicata as the findings in the suit of Smt. Bachan Kaur even if accepted in totality were not to affect the right of the appellant for specific performance? In support of the substantial questions of law learned counsel for the appellant contended that the learned lower appellate court failed to notice that the finding in the suit for declaration could not affect the right of the plaintiff/appellant to claim specific performance of the agreement to RSA No. 4432 of 2002 6 sell as the findings would have resulted in holding defendants No.1 and 3 to be the owners of the property who would have been bound by the decree, to be passed in favour of the plaintiff/appellant for specific performance as the agreement to sell on principle of lis pendens as agreement in favour of appellant was was prior in time than the sale deed. However, this plea of the learned counsel for the appellant cannot be accepted in view of the law laid down in case of The Municipal Committee (now Municipal Corporation) Jalandhar Vs. Mohan Singh and another 1988 PLJ 194, wherein this court has been pleased to lay down as under:- “9. The Municipal Committee as well as Mohan Singh challenged the judgment of the lower appellate Court in suit No./373 of 1965 by two separate appeals while judgment in suit No.413 of 1965 filed by Amar Singh was not challenged, though same findings on these issues inter se the parties were recorded. Consequently, findings on all the issues became final inter se the parties. 10. Since both the suits were disposed of by a common judgment, and in case the judgment in suit No.373 of 1965, is set aside, it will give the same issues which is not permissible in view of section 1 of the Code of Civil Procedure. Thus the judgment and decree rendered in suit No. 413 of 1965, as modified in Civil Appeals No.244 and 247 of 1977, shall operate as res judicata inter se the parties. Since the RSA No. 4432 of 2002 7 Municipal Committee did not challenge the findings in suit No.413 of 1965, it cannot challenge the same findings in suit No.373 of 1965 between the same parties. The Municipal Committee is estopped from challenging the findings accepted by them. The learned counsel could neither controvert the facts nor pointed out any error.” It is not in dispute that in the present case also both the suits were consolidated and issues framed were interconnected which were to affect the right of the plaintiff in its suit for specific performance, as the issues referred to above would show that one of the issues framed was whether Bachan Kaur was colluding with the plaintiff/appellant herein to defeat the rights of defendants to challenge the sale deed executed, in their favour. Learned trial court was pleased to decide said issue in favour of the defendant/respondent. In view of finality of this finding, the appellant could not claim specific performance. That issue is to operate as res judicata there is no possibility of the plaintiff/appellant succeeding in suit for specific performance as the agreement would have to be held to be collusive between the plaintiff/appellant and Bachan Kaur which could not give the right of specific performance to the plaintiff/appellant. Learned counsel for the appellant contends that findings of the learned courts below are the outcome of misreading of documentary evidence on record and thus, perverse as the only reason for holding the agreement to be antedated is that in a suit for injunction filed by the RSA No. 4432 of 2002 8 plaintiff/appellant there was no mention of agreement to sell dated 6.8.1986 which is factually incorrect. Once finding on issue No.1 has been recorded that there was collusion, therefore, even if mention of agreement was made in the suit for injunction which was dismissed for non-prosecution, the contention raised by the plaintiff/appellant cannot be accepted to hold that the finding recorded by the learned courts below is perverse. There is concurrent finding by the learned courts below that the agreement to sell was antedated to defeat the rights of respondents. The learned courts below, therefore, rightly declined the relief of specific performance by granting alternative relief of recovery of earnest money. Thus, the substantial questions of law raised deserve to be answered against the appellant/plaintiff as there is no scope to interfere with the findings recorded. No merit. Dismissed. 23.03.2009 (Vinod K.Sharma) rp Judge