RSA No.2851 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 2851 of 2009 Date of decision: 21.01.2011 Sat Narain .....Appellant Versus Tejinder Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.C.B.Goel, Advocate for the appellant Mr.S.K.Monga,Advocate for the respondents **** SABINA, J. Plaintiff-Sat Narain filed a suit for possession by way of specific performance of an agreement to sell dated 12.2.1996. The case of the plaintiff in brief was that defendant No.1 had agreed to sell the land in question to the plaintiff and had executed the agreement to sell dated 12.2.1996 in his favour. In this regard,` 50,000/- were received towards earnest money by defendant No.1 from the plaintiff. The sale deed was to be executed on or before 30.5.1997 after getting income tax clearance certificate. Defendants no. 2 to 4 had no right in the suit property. Defendant No.1 was proceeded ex-parte vide order dated 8.8.2001 as he had failed to appear despite service. Defendants No. 2 to 4 in their joint written statement took up RSA No.2851 of 2009 2 the preliminary objection, inter-alia, that the suit was not maintainable. On merits, it was averred that the agreement to sell was a result of fraud. Defendant No.1 had been neglecting his family and the answering defendant had filed a suit for maintenance on 1.10.1993. The said suit was decreed on 11.4.2002. Defendant No.1 was directed to pay ` 2000/- per month as maintenance to the answering defendants. Further suit for recovery of ` 3,00,000/- was also passed in favour of the answering defendants. A charge was created on the property owned by defendant No.1. Defendant No.5 in her separate written statement took up similar pleas as those taken by defendants No. 2 to 4. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant No.1 was owner in possession of agricultural land detailed in para one of the plaint?OPP 2. Whether he entered into an agreement with the plaintiff on 12.2.96 of the property in dispute for a consideration of Rs.2,00,000/- per acre and received Rs.50,000/- only as earnest money?OPP 3.Whether the plaintiff was and is still ready to perform his part of agreement?OPD 4.Whether the date of registry of the agreement to sell was ascertained on 30.5.1997,as alleged?OPD 5.Whether the suit of the plaintiff is not maintainable in the present form?OPD 6.Whether the plaintiff has no locus-standi to file the present suit?OPD RSA No.2851 of 2009 3 7.Whether the plaintiff has no cause of action to file the present suit?OPD 8.Whether the plaintiff has not come to the court with clean hands and has suppressed the true and material facts from the Court?OPD 9.Whether the agreement to sell dated 12.2.1996 is illegal, on the ground of fraud, as alleged?OPD 10.Whether the suit of the plaintiff is bad for non-joinder of necessary parties?OPD 11.Whether the plaintiff is estopped by his own act and conduct to file the present suit?OPD 12.Whether the suit is barred by limitation?OPD 13.Whether the suit has not been properly valued for the purposes of court fee?OPD 14. Relief” The trial Court vide judgment and decree dated 2.2.2008 partly decreed the suit of the plaintiff for recovery of ` 50,000/- along with interest. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was dismissed by the Additional District Judge Panipat vide judgment and decree dated 4.12.2008.. Hence, the present appeal by the plaintiffs. After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves dismissal. The execution of the agreement to sell in question is not in dispute in the present appeal. The only question that requires consideration is as to whether the relief of specific performance of an agreement to sell in question could be allowed to the plaintiff. RSA No.2851 of 2009 4 Defendants No. 2 to 5 had filed a suit for maintenance on 1.10.1993, The trial court restrained defendant No.1 from alienating the suit land in any manner vide order dated 1.10.1993. The suit filed by defendants No. 2 to 5 was decreed by the Civil Judge(Senior Division) Panipat and it was held as under (as reproduced in para 17 of the judgment of the Additional District Judge):- "As a result of my findings on the aforesaid issues, the suit of the plaintiffs succeeds and I pass a decree for maintenance to the tune of Rs.2000/- per month in favour of the plaintiffs and against the defendant, which shall be operative from the date of filing of the present suit. A decree for recovery of Rs. 3 lacs is also passed in favour of plaintiffs No. 2 to 4 as their marriage expenses to the tune of Rs. 1 lac each and the said amount, on realization, shall be deposited in a scheduled Bank in the name of the individual minor (Rs.one lac in the name of each minor) which shall be withdrawn by plaintiffs No. 2 to 4 at the time of their marriages. The amount of maintenance as well as marriage expenses shall create a charge on the property owned by the defendant located in Vilalge Shimla Gujran. The suit is decreed with costs. Decree-sheet be drawn accordingly and the file be consigned to records after due compliance. Sd/- ( B.Diwakar) Civil Judge (Sr. Divn.) Announced in open Court Panipat 11.4.2002" RSA No.2851 of 2009 5 The suit filed by defendants No. 2 to 5 seeking a declaration qua civil death of defendant No.1 was decreed vide judgment and decree dated 14.3.2005 and the trial Court held as under (as reproduced in para 18 of the judgment of the Additional District judge):- "In the light of discussion made above, the suit filed by the plaintiffs succeeds and the same is accordingly decreed as prayed for. A statutory presumption is drawn under Section 108 of Indian Evidence Act to the effect that Tajender Singh, husband of plaintiff No.1 and father of plaintiffs No.2 to 4 is not alive and has not been herd of since 4.3.1996 and so, it shall be presumed that he is dead for all intents and purposes. Decree sheet be drawn accordingly. File be consigned to the record room after due compliance. Announced in open court Sd/- 14.3.2006 Civil Judge (Junior Division) Panipat." Thus, defendant No.1 had been restrained from alienating the suit land vide order dated 1.10.1993 in Civil Suit No. 857 of 1994. Despite the said restraint order, defendant No. 1 executed the agreement to sell in favour of plaintiff on 12.2.1996. Vide judgment and decree dated 11.4.2002, the amount of maintenance as well as marriage expenses were created as a charge on the property owned by the defendant No.1. In these circumstances, the defendant No.1 was not in a position to alienate the suit property and, hence, the learned Courts below rightly held that no decree for specific RSA No.2851 of 2009 6 performance of agreement to sell could be passed in favour of the plaintiff. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge January 21, 2011 arya