RSA No.2061 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2061 of 2007(O&M) Date of decision: 14.5.2009 Smt. Joginder Kaur and others ......Appellants Versus Amrik Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. O.P. Hoshiarpuri, Advocate for the appellants. Mr. L.S. Sidhu, Advocate for the respondent. * * * Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for possession by way of specific performance of the agreement to sell dated 27.6.2001 was decreed and the appellants were directed to execute the sale deed in favour of the plaintiff-respondent. The bone of contention between the parties was land measuring 34 kanals situated at village Bare Ke, Tehsil and Distt. Ferozepur fully detailed in the head note of the plaint. The said land was owned by Narain Singh (predecessor-in-interest of the appellants) who during his lifetime had allegedly entered into an agreement to sell dated 27.6.2001 agreeing to sell out the suit land to the plaintiff-respondent at the rate of Rs.1,30,000/- per acre after receiving a sum of Rs.3,50,000/- as earnest money. The sale deed was agreed to be executed on or before 15.5.2002 but he did not execute the sale deed in favour of the plaintiff- respondent on the stipulated date which resulted into filing of the present suit by the plaintiff-respondent. RSA No.2061 of 2007(O&M) 2 Upon notice, aforesaid Narain Singh appeared and filed written statement denying the above-said allegations. According to him, he never executed any agreement to sell in favour of the plaintiff-respondent. He also denied having received any earnest money and further pleaded that he was having dealings with Hari Singh, a Commission agent, who had obtained his thumb impressions/signatures on certain performa, blank papers under misrepresentation of the fact on the pretext of furnishing a collateral security. Dismissal of the suit was prayed for. During the pendency of the suit Narain Singh died leaving behind his legal heirs i.e. the appellants. After appreciating the evidence on record and hearing learned counsel for the parties, the trial Court held that the plaintiff-respondent was entitled to the decree as prayed. Being aggrieved, the LRs of Narain Singh filed an appeal before the Lower Appellate Court. Before the Lower Appellate Court, it was argued that the suit filed by the plaintiff-respondent seeking specific performance of the agreement to sell dated 27.6.2001 was not maintainable because the possession of the suit land was delivered to him as recited in the agreement in question therefore, the impugned agreement of sale required registration under Section 17 of the Registration Act, 1908. While dismissing the appeal, the Lower Appellate Court observed that there was no actual delivery of possession to the plaintiff-respondent and the appellants failed to produce any evidence to show that possession of the dispute land was actually delivered and thus, observed that the argument of the appellants was misconceived. Still not satisfied, the present appeal has been filed by the appellants challenging the judgment and decree of the Courts below. Mr. O.P. Hoshiarpuri, learned counsel appearing on behalf of RSA No.2061 of 2007(O&M) 3 the appellants has vehemently argued that the judgment and decrees of the Courts below cannot be sustained as there was a specific recital in the impugned agreement to sell according to which the possession of the land in dispute was stated to have been delivered to the vendee i.e the plaintiff- respondent and thus, in view of the judgment of the Allahabad High Court reported as Prag Narayan Mook Badhir Vidalaya Samiti v. Hukam Singh and others 1997(1) CCC 458, in the absence of any registration of the agreement to sell, the same was not admissible in evidence and cannot form basis of plaintiff's claim and therefore, the suit was not maintainable. On the basis of the aforesaid argument, learned counsel for the appellants has sought to raise the following substantial question of law: “Whether the agreement of sale dated 27.6.2001 compulsorily registrable in view of the fact that the plaintiff-respondent was put in possession of the land in dispute and in the absence of the registration of the said agreement the same could not be receivable as evidence of any transaction?” On the other hand, learned counsel appearing on behalf of the respondent has relied upon a judgment of the Andhra Pradesh High Court reported as Javvadi Koteswara Rao v. Sonti Sambasiva Rao 2005 (1) RCR (Civil) 156, to contend that the agreement to sell does not require registration in a suit for specific performance of the agreement to sell. I have heard learned counsel for the parties. The argument raised by the learned counsel for the appellants is misconceived. Undisputedly, the appellants have led no evidence to controvert the pleadings and evidence placed on record by the plaintiff- respondent in support of their case. The appellants in their pleadings have RSA No.2061 of 2007(O&M) 4 no where stated that the present suit was not maintainable because the possession of the suit land was delivered to the plaintiff-respondent and the impugned agreement to sell required registration under Section 17 of the Registration Act, 1908. Nor any such issue was claimed by the appellants before the trial Court. Issue No.4 was framed by the trial Court as under: “Whether the suit is not maintainable in the present form?“OPD However, neither any evidence was led to prove this issue nor any argument was raised by the appellants to substantiate the aforesaid issue and the aforesaid issue was decided against the defendant- appellants by the trial Court. Before the Lower Appellate Court, the argument regarding maintainability of the suit was raised by the appellants on the basis of the recital in the agreement to sell. On appreciation of evidence, the Lower Appellate Court found that the recital in the agreement regarding delivery of possession appears to have been made in a casual manner and there was no actual delivery of possession to the plaintiff-respondent. The relevant observations of the Lower Appellate Court in this regard as follows:- “The correctness of the observations made in the ruling cites at bar is not disputed but these have no bearing to the facts and circumstances of the present case which are clearly distinguishable from those cases. In this case, the covenant regarding delivery of possession to the vendee appears to have been made in a casual manner. There was no actual delivery of possession to the respondent-plaintiff. No evidence in the shape of evidence record has been produced by the appellant- RSA No.2061 of 2007(O&M) 5 defendants to show that possession of the disputed land was actually delivered to the respondents-plaintiff. During course of cross-examination of the respondent- plaintiff Amrik Singh, he has put a suggestion by the appellants themselves that it was correct that at present the defendants i.e. Appellants are in possession of the suit land. This very suggestion put to the respondent- plaintiff nullifies the contention that the possession was delivered at the time of the execution of the agreement of sale. As such, since possession was not proved to have been delivered to the respondent-plaintiff at the time of the execution of impugned agreement of sale, the said agreement does not require registration and the suit filed on the basis thereof is very much maintainable. The learned trial Court has rightly held so.” The learned counsel for the appellants could not challenge the correctness of the above findings of the Lower Appellate Court. Since the possession was proved not to have been delivered to the plaintiff- respondent at the time of execution of the impugned agreement to sell, the Lower Appellate Court rightly held that agreement to sell did not require registration. Moreover, this Court in Mohan Singh v. Nirmal Singh and others 1971 PLJ 27, has held that merely on the basis of recital in the document, possession cannot be said to be proved to be delivered. Even before this Court no evidence could be pointed out by the learned counsel to support his contention that possession was delivered to the plaintiff- respondent. In Bhim Sen and others v. Pawan Kumar 2008(1) PLR 83, this Court observed that merely because the plaintiff was already in RSA No.2061 of 2007(O&M) 6 possession of the suit land as tenant, it cannot be said that an agreement to sell in favour of the plaintiff was a conveyance deed and further held that an agreement to sell does not require registration, because it is not a deed of conveyance. Thus, firstly, the appellants could not have raised this issue before the Lower Appellate Court or before this Court, in view of the law laid down by the Hon'ble Apex Court in the case of Bachhaj Nahar v. Nilima Mandal and another 2008 JT (13) SC 255 wherein it has been held that no question of law can be raised which was not pleaded/raised in the Lower Court. Secondly, the question whether possession was delivered to the plaintiff-respondent under the agreement is a question of fact which on appreciation of evidence was found by the Lower Appellate Court against the appellants. The Hon'ble Supreme Court in the case of BoodiReddy Chandraiah and others v. Arigela Laxmi and another (2007) 8 SCC 155, has held that an inference of fact from the recitals or contents of a document is a question of fact. Thus, in view of the aforesaid, the substantial question of law as sought to be raised by the learned counsel for the appellants does not arise in this appeal. No merits. Dismissed. May 14, 2009 (RAKESH KUMAR GARG) ps JUDGE RSA No.2061 of 2007(O&M) 7