IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 238 of 1996. Reserved on: 20.06.2011. Decided on: 29.06 .2011. ______________________________________________ Joginder Singh. … Appellant. Versus Salinder Singh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. O.C. Sharma and Mr. Ravinder Thakur, Advocates. For the Respondents : None for respondents No.1 to 4. Mr. Bimal Gupta, Advocate for respondents No.5 to 9. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 8.5.1996 passed by the learned District Judge, Sirmaur at Nahan in Civil Appeal No.57-N/13 of 1995/1993. 2. Material facts necessary for the adjudication of this regular second appeal are that the appellant/plaintiff (hereinafter 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - referred to as “the plaintiff” for convenience sake) has instituted a suit in the Court of learned Sub Jude, Sirmaur at Nahan against the respondents/defendants (hereinafter referred to as “the defendants” for convenience sake), for declaration, injunction and for specific performance of the contract. The case of the plaintiff, in a nutshell, was that late Shri Jiwan Singh, father of defendants No.1 to 3 and his father, Partap Singh were brothers. Jiwan Singh owned and possessed 5 bighas 13 biswas of land comprising in Khasra No.124/22 exclusively and 1/6th share in the land comprised in Khasra Nos. 25, 26, 27, 28 and 33 measuring 21 bighas 17 biswas calculated at 3 bighas 13 biswas situate in village Uttamwala-Baraban, Tehsil Nahan. Thus, he was owner of 9 bighas 6 biswas of land. Jiwan Singh entered into an agreement with the plaintiff to sell his 9 bighas of land at the rate of ` 2,000/- per bigha for a total consideration of ` 18,000/- on 5th June, 1982 vide Ex.PW-1/A. The possession was delivered by him to the plaintiff of the land measuring 5 bighas 13 biswas, which was in his exclusive possession after obtaining an advance payment of ` 12,000/-. He agreed to deliver the possession of the remaining land measuring 3 bighas 7 biswas after partition and taking delivery of possession from one Mohan Singh. The balance amount of ` 6,000/- was to be paid at the time of registration of sale deed. It was also agreed according to the plaintiff that in case Jiwan Singh could not get the possession of the remaining land - 3 - then the land measuring 5 bighas 13 biswas, possession of which has been delivered to the plaintiff would be deemed to have been sold for the sum of ` 12,000/- paid and the plaintiff will get the sale deed of 5 bighas 13 biswas executed and registered in his favour. Jiwan Singh died in the month of March, 1986. He did not take any steps to get possession of 3 bighas 7 biswas of land from Mohan Singh. Plaintiff requested defendants No.1 to 4, sons and daughter of Jiwan Singh to fulfill the promise made by their father. However, later on it transpired that defendants No.1 to 4 had executed sale deed in favour of respondents No.5 to 9 (hereinafter referred to as defendants in the same capacity, i.e. “defendants No.5 to 9” for convenience sake) in respect of 5 bighas 13 biswas of land comprising in Khasra No.124/22. It is in these circumstances that the present suit was filed by the plaintiff. 3. The defendants contested the suit. According to them no agreement was ever executed by Jiwan Singh in favour of plaintiff. According to them, the alleged agreement is not binding on them nor did it create any right, title or interest in favour of the plaintiff. He was never put in possession of the suit land. The plaintiff previously also filed a civil suit No.40/1 of 1986 on 6.6.1986, which was dismissed by the trial Court. In that suit the plaintiff did not claim that there was any agreement executed in his favour. Defendants No.1 to 4 never assured the plaintiff to fulfill any promise made by their father, late Jiwan Singh. Since - 4 - defendants No.1 to 4 were owners in possession of the suit land, they were competent to sell and, therefore, have sold the land to defendants No.5 to 9. There was no occasion for defendants No.5 to 9 to have notice of any agreement as the plaintiff was never in possession of any portion of the suit land prior to execution of sale deed by defendants No.1 to 4 in favour of defendants No.5 to 9. The suit land is presently in possession of defendant No.5 to 9. 4. Issues were framed by the trial Court on 4.4.1989. The trial Court dismissed the suit on 16.11.1992. Thereafter the plaintiff filed an appeal before the learned District Judge, Sirmaur at Nahan. The learned District Judge partly allowed the appeal and the judgment and decree dated 16.11.1992 passed by learned Senior Sub Judge, Nahan was set aside and while dismissing the claim of plaintiff for specific performance of agreement to sell dated 5.6.1982 (Ex.PW-1/A), a decree for refund of earnest money of ` 12,000/- was passed in favour of the plaintiff against defendants No.1 to 4. Hence this regular second appeal. 5. This appeal was admitted by this Court on 4.8.1997 on the following substantial question of law:- “Whether the learned Distt. Judge was right in granting only part of the Relief to the appellant/plaintiff after coming to the conclusion that Ex.PW-1/A was an agreement which was binding on the parties inter-se?” - 5 - 6. Mr. O.C. Sharma, and Mr. Revinder Thakur, learned counsel for the appellant have vehemently argued that the findings recorded by the first appellate Court that the specific performance of agreement to sell Ex.PW-1/A has become impossible, is against law. In other words, according to them, the first appellate Court ought to have decreed the suit for specific performance and also granted the relief of injunction against the defendants. 7. Mr. Bimal Gupta, learned counsel for defendants No.5 to 9 has supported the judgments and decrees of both the courts below. 8. I have heard the learned counsel for the parties and gone through the pleadings and record carefully. 9. Plaintiff, Joginder Singh has appeared as PW-3. According to him, Jiwan Singh, deceased owned about 9 bighas of land in village Uttamwala Baraban. They entered into an agreement Ex.PW-1/A for sale of land at the rate of ` 2,000/- per bigha. A sum of ` 12,000/- was paid on the same day. According to him, the possession of part of the land under sale which was in his exclusive possession, measuring 5 bighas 13 biaswas was delivered to him on the same day. The possession of the balance area of 3 bighas 7 biswas was to be delivered to him after taking possession of the same from Mohan Singh by the vendor and balance amount of ` 6,000/- was to be paid at the time of registration of sale deed and in case the vendor, Jiwan Singh failed - 6 - to obtain possession of the remaining land from Mohan Singh, then the land measuring 5 bighas 13 biaswa was deemed to have been sold for a sum of ` 12,000/- and the sale deed was to be got executed. According to him, the agreement was scribed by PW-1, Gian Chand. It was witnessed by Ram Krishan Sharma and Om Parkash, Namberdar of the area, who also signed the agreement as a witness. The other witness to the agreement, Ram Krishan Sharma has expired. According to him, the contents of agreement were read over to Jiwan Singh by PW-1 and Jiwan Singh after admitting the contents of the same to be correct put his signatures in presence of the vendee and the witnesses. 10. PW-1, Gian Chand has scribed the document Ex.PW- 1/A. According to him, it was scribed in presence of the witnesses and deceased Jiwan Singh, the contents whereof were read over to Jiwan Singh. Jiwan Singh after admitting the contents of the same to be correct signed the agreement Ex.PW-1/A in their presence and they also signed the document in presence of the parties. PW-2, Om Parkash has supported the version of PWs-1 and 3. 11. DW-1 is Salinder Singh, who is son of Jiwan Singh. According to him, his father never exchanged any land with the plaintiff nor was any document ever executed by his father. According to him, the suit land was in possession of defendants No.1 to 4 and they have sold the same to defendants No.5 to 9. - 7 - He has also denied the suggestion that land measuring 5 bighas 13 biswas was in possession of the plaintiff. 12. Joginder Singh, plaintiff has admitted in his cross- examination that the agreement Ex.PW-1/A remained with him from the date of its execution. He has admitted that he had previously also filed a suit against the defendants qua the same suit property and he has not mentioned anything about the agreement Ex.PW-1/A in the plaint. The copy of the previous suit, i.e. civil suit No.40/1 of 1986 is Ex.D-1. The statement made by Joginder Singh, PW-3 is Ex.D-2. He has also admitted that the suit was dismissed and the appeal filed was withdrawn. 13. The trial Court returned a finding that Jiwan Singh, predecessor-in-interest of defendants No.1 to 4 has not executed the agreement, dated 5.6.1982 (Ex.PW-1/A) in favour of the plaintiff nor had he put the plaintiff in possession of the land agreed to be sold. 14. In the previous suit filed vide Ex.D-1, the plaintiff had admitted that Jiwan Singh was exclusive owner in possession of 5 bighas 13 biaswas of land and joint owner of land measuring 3 bighas 7 biswas with other co-owners and no partition has taken place. Copy of jamabandi Ex.PW-3/B produced by the plaintiff for the year 1984-85 discloses that Khasra No.124/22 measuring 5 bighas 13 biswas was exclusively owned and possessed by Jiwan Singh. The plaintiff has failed to prove that the possession was - 8 - ever handed over to him. On the other hand, vide sale deed Ex.PW-3/A, dated 26.9.1987, the land has been sold by defendants No.1 to 4 and one Jagat Singh to defendants No.5 to 9. 15. Mr. O.C. Sharma, learned counsel for the plaintiff has vehemently argued that the Court ought to have granted the decree for possession of the suit land by specific performance of Agreement Ex.PW-1/A as Jiwan Singh had already received a sum of ` 12,000/- and ought to have granted the relief of injunction against the defendants. However, this submission of Mr. O.C. Sharma merits rejection. In para 7 of the judgment of the learned District Judge, Sirmaur, Mr. D.P. Gupta, Advocate appearing on behalf of the appellant has pleaded that since the suit land has further been sold by defendants N.1 to 4 in favour of defendants No.5 to 9 vide registered sale deed dated 26.9.1987 and its possession stands already delivered to them, the specific performance of agreement has become impossible. It was in these circumstances, he had more or less prayed for acceptance of the appeal and the decree for the recovery of the consideration amount of ` 12,000/- to the appellant. In second appeal, the appellant cannot be permitted to wriggle out of the argument/submissions advanced before the first appellate Court, whereby only prayer made was for recovery of consideration amount of ` 12,000/- and by conceding that the specific performance of the agreement had become impossible for the - 9 - reason that defendants No.1 to 4 have sold the land to defendants No.5 to 9 vide registered sale deed dated 26.9.1987. 16. The first appellate Court has come to a conclusion that prima facie the execution of agreement to sell, dated 5.6.1982 Ex.PW-1/A by Jiwan Singh shall be deemed to have been proved and that he had received a sum of 12,000/- as earnest money. The learned first appellate Court has recorded a finding in para 18 of the judgment that this fact had also been held to be proved by the lower Court in para 7 of the judgment. This is contrary to record. The trial Court has held conclusively that no valid agreement was executed between the plaintiff and Jiwan Singh on 5.6.1982. Rather, the findings recorded by the trial Court are that Ex.PW-1/A was a fabricated document, which has been fabricated after dismissal of the previous suit. 17. The trial Court has returned a finding that the plaintiff has not mentioned about the agreement dated 5.6.1982 in earlier suit preferred by him bearing Civil Suit No.40/1 of 1986 and the same was dismissed on 31.8.1987 and the appeal preferred against the judgment and decree dated 31.8.1987 was withdrawn on 9.6.1988. Thus, according to the trial Court, the document Ex.PW- 1/A was fabricated. However, this finding of the learned trial Court has been set aside by the first appellate Court by concluding that for the only reason that the agreement to sell in question was not taken up and pleaded in the previous suit did not prove if it was - 10 - forged. In these circumstances, he has held that the present suit for specific performance of the agreement dated 5.6.1982 was not barred under Order 2 Rule 2 of the Code of Civil Procedure. However, the fact of the matter is that both the Courts below have held that the suit land stood transferred to defendants No.5 to 9 vide registered sale deed dated 6.9.1987 as per Ex.PW-3/A and possession was also delivered to them. 18. Consequently, in view of the observations and discussions made hereinabove, there is no illegality in the judgment dated 8th May, 1996 passed by the first appellate Court whereby it has refused to grant the decree of possession of the suit land by specific performance of agreement to sell. Moreover, as discussed hereinabove, the learned Advocate for the plaintiff before the first appellate Court has admitted that since the suit land stood transferred by defendants No.1 to 4 in favour of defendants No.5 to 9, the specific performance of agreement has become impossible. 19. Accordingly, for the foregoing reasons, there is no merit in the regular second appeal and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma), Judge. June 29, 2011. (sck).