RSA No. 1002 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1002 of 2008 Date of decision 29.9.2008. Onkar Singh ...... Appellant. versus Joga Singh ...... Respondent. Present : Mr. M.L.Sarin, Senior Advocate with Ms. Alka Sarin, Advocate for the appellant in RSA No. 1002 of 2008 Mr. S.S.Brar, Advocate for appellants in RSA No. 3992 of 2008 L.N.MITTAL, J.(Oral) This judgment will dispose of RSA No. 1002 of 2008 titled Onkar Singh vs. Joga Singh and others as well as RSA No. 3992 of 2007 Himmat Singh and others vs. Joga Singh and another, as both the appeals have been preferred against the same judgments and decrees of the Courts below. The facts are being taken from RSA No. 1002 of 2008. This is second appeal by Onkar Singh defendant no.1, who has been unsuccessful in both the Courts below. Joga Singh plaintiff-respondent no.1 filed suit for specific performance of agreement to sell and also claiming consequential relief of permanent injunction. RSA No. 1002 of 2008 2 The plaintiff's case is that defendant no.1 appellant vide agreement dated 3.1.2000 agreed to sell 96 bighas 10 biswas land to the plaintiff for Rs.4,10,125/- and the entire sale consideration was paid at the time of agreement and possession of the land was given to the plaintiff at the same time. Defendant no.1 also executed registered general power of attorney dated 3.1.2000 on the same date in favour of the plaintiff regarding the entire land measuring 96 bighas 10 biswas. Exercising power under the said power of attorney, the plaintiff executed sale deed dated 1.2.2000 in favour of his own wife on behalf of defendant no.1 for 9 bighas 9 biswas land out of the aforesaid total land. The suit was accordingly filed for the remaining 87 bighas 1 biswa land. Defendant no.1 vide sale deed dated 26.12.2000 sold the said suit land measuring 87 bighas 1 biswa to defendant nos.2 to 8 (respondent nos.2 to 8 herein). The said sale deed was also assailed in the suit. Defendant no.1 inter alia pleaded that he neither executed any agreement nor received any sale consideration. On the other hand, the plaintiff offered to manage the property of defendant no.1 along with some other property purchased by plaintiff from the mother of defendant no.1. Accordingly, defendant no.1 appointed the plaintiff as his attorney to manage the land of defendant no.1 vide power of attorney dated 3.1.2000. It is case of defendant no.1 that he executed the said power of attorney to authorize the plaintiff to only manage the property but the plaintiff deceitfully got recorded the power of sale, mortgage, gift and exchange as well in the power of attorney. Defendant no.1 on coming to know of the sale deed dated 1.2.2000 executed by plaintiff in favour of his wife got the RSA No. 1002 of 2008 3 power of attorney cancelled vide cancellation deed dated 11.2.2000 and thereafter defendant no.1 sold the suit land to defendant no.2 to 8 vide sale deed dated 26.12.2000 and delivered possession of the suit land to them, who are bona fide purchasers. Defendant nos.2 to 8 also took similar stand. Learned Additional Civil Judge (Senior Division), Ropar vide judgment dated 5.2.2007 decreed the suit of the plaintiff. Against the said judgment and decree, defendant no.1 and defendant nos.2 to 8 preferred separate appeals. Both the said appeals have been dismissed by learned District Judge, Ropar vide common judgment dated 21.9.2007. Feeling aggrieved, defendant no.1 has filed the instant second appeal (RSA No.1002 of 2008) whereas defendant nos.2 to 8 have filed Regular Second Appeal No.3992 of 2007 which was also ordered to be heard along with the instant Regular Second Appeal No.1002 of 2008. Accordingly, both the appeals are being disposed of by this common order. I have heard learned counsel for the appellants in both the appeals and perused the case files. Learned counsel for defendant no.1-appellant contended that onus to prove the execution of the agreement was on plaintiff-respondent no.1, but has not been discharged by him and the lower Courts have wrongly held that defendant no.1 failed to discharge the onus. The contention cannot be accepted because the plaintiff examined two attesting witnesses of the agreement, besides himself appearing in the witness box, to prove due execution of the agreement by defendant no.1. In addition to it, defendant no.1 also admitted his signatures on the said agreement. In this view of the matter, it cannot said that the plaintiff did not discharge the RSA No. 1002 of 2008 4 initial onus. On the contrary, defendant no.1 failed to prove that his signatures had been obtained on blank papers or that the agreement was a result of fraud. Fraud in civil cases also has to be proved beyond reasonable doubt like that in criminal cases. In the instant case, defendant no.1 has miserably failed to prove the alleged fraud. It is significant to notice here that defendant no.1 has admitted the execution of general power of attorney dated 3.1.2000 in favour of the plaintiff. However, defendant no.1 alleged that by the said power of attorney, he gave power to the plaintiff to only manage the suit land but the power to alienate the same by sale,gift, mortgage or exchange was deceitful got recorded in the power of attorney. However, this plea of defendant no.1 has also not been substantiated. On the contrary, defendant no.1 cancelled the power of attorney vide cancellation deed dated 11.2.2000. In the said cancellation deed, defendant no.1 did not mention anywhere that the power to sell, mortgage, gift or exchange the suit land in the power of attorney was got recorded deceitfully in the power of attorney. So, plea of defendant no.1 to this effect stands negatived. Defendant no.1 also admitted in cross-examination that before cancelling the power of attorney vide cancellation deed dated 11.2.2000, defendant no.1 had learnt about the agreement dated 3.1.2000 as well as the authority given to the plaintiff in the power of attorney to sell, mortgage, gift or exchange the suit land. However, in spite thereof, except cancelling the power of attorney vide cancellation deed dated 11.2.2000, defendant no.1 did not take any steps regarding agreement dated 3.1.2000 having allegedly been obtained by fraud. RSA No. 1002 of 2008 5 The matter does not rest here. The plaintiff on the basis of the authority given to him under the power of attorney by defendant no.1 executed a sale deed on behalf of defendant no.1 in favour of his (plaintiff’s) wife on 1.2.2000 regarding 9 bighas 9 biswas of land. Till date, defendant no.1 has not challenged the said sale deed. All the facts and circumstances enumerated above make it manifest that defendant no.1 had entered into the aforesaid agreement dated 3.1.2000 to sell 96 bighas 10 biswas land to the plaintiff for Rs.4,10,125/-. The plaintiff on behalf of defendant no.1 as attorney has already executed sale deed regarding 9 bighas 9 bighas of land and, therefore, plaintiff is entitled to specific performance of the agreement regarding the remaining 87 bighas 1 biswa land in suit. Learned counsel for the appellant/defendant no.1 vehemently contended that the learned trial Court in concluding part of paragraph 16 of its judgment has held that a sum of Rs.1,10,125/- was received by defendant no.1 from the plaintiff as earnest money whereas according to the agreement, the entire sale price of Rs.4,10,125/- stood paid to defendant no.1. Perusal of discussion made by trial Court under issues no.1 and 7, under which the aforesaid finding was recorded, reveals that nowhere the trial Court discussed or held that the entire sale consideration had not been paid nor discussed that only a part of the sale price i.e. Rs.1,10,125/- had been paid as mentioned in concluding part of paragraph 16 of the judgment. It is, thus, apparent that the figure of Rs.1,10,125/- has been written by way of clerical error instead of Rs.4,10,125/- because it was not case of either party that a sum of Rs.1,10,125/- only had been paid to defendant no.1 nor RSA No. 1002 of 2008 6 the said figure emerges from any evidence on record or from the discussion of the trial Court. Learned counsel for the appellant/defendant no.1 contended that the trial Court has decreed the suit on payment of balance sale consideration. However, that is a routine part in cases of specific performance of agreement, but from the material on record, it cannot be said that only Rs.1,10,125/- had been paid and not Rs.4,10,125/-. This is also apparent from the judgment of the First Appellate Court. Learned counsel for appellant/defendant no.1 also contended that the learned lower Appellate Court has not discussed the arguments raised by the defendants in their appeals. However, perusal of the judgment of lower Appellate Court reveals that all the points raised in the appeals have been discussed although specifically the contentions raised by the appellants may not have been dealt with separately. Learned counsel for defendant no.1 also contended that the plaintiff had to show his readiness and willingness to perform his part of the agreement. However, in the instant case, when the entire sale consideration stood paid, the question of readiness and willingness of the plaintiff to perform his part of the agreement did not arise. Learned counsel for defendant no.1 also contended that the suit was filed almost three years after the execution of the agreement. However, the suit was filed within limitation and execution of the agreement has been fully proved and consequently, the plaintiff could not be non-suited merely because the suit was filed just a few days before the expiry of limitation period of three years. RSA No. 1002 of 2008 7 Learned counsel for defendant nos.2 to 8 contended that these defendants are bona fide purchasers of the suit land for valuable consideration without notice of the agreement in favour of the plaintiff. This contention has been rightly repelled by the lower Appellate Court for reasons recorded in paragraph-25 of the judgment. The sale deed in favour of defendant nos.2 to 8 is for consideration of Rs.3,64,000/- only, but Himmat Singh-defendant no.2, while appearing in the witness box, stated that they had paid Rs.1,70,000/- at the time of agreement dated 30.5.2000 and another sum of Rs.3,87,000/- before the Sub Registrar i.e. at the time of registration of sale deed. Defendant no.2 thus stated having paid total consideration of Rs.5,57,000/- as against the sale consideration of Rs.3,64,000/- only recited in the sale deed and it falsifies the claim of defendant nos.2 to 8 to be bona fide purchasers of the suit land. In addition to it, Himmat Singh admitted that agreement dated 30.5.2000, vide which defendant nos.2 to 8 agreed to purchase the suit land and also paid Rs.1,70,000/- to defendant no.1, was in their possession. However, the said agreement has been withheld by defendant nos.2 to 8 without any explanation and, therefore, adverse presumption arises against the said defendants. Lower Appellate Court has also observed that Tarlochan Singh defendant no.3 appeared on behalf of the vendees-defendants no.2 to 8 at the time of registration of the sale deed but Tarlochan Singh has not appeared in the witness box to prove the transaction to be bona fide one for consideration whereas Himmat Singh defendant no.2, who has stepped into the witness box, was not even present at the time of sale deed. In view of these reasons, defendant nos.2 to 8 cannot be said to be bona fide RSA No. 1002 of 2008 8 purchasers of suit land for valuable consideration without notice of the impugned agreement. Learned counsel for appellant/defendant no.1 contended that suit for permanent injunction was not maintainable because the plaintiff in the witness box admitted that part of the suit land was now in possession of the subsequent vendees i.e. defendant nos.2 to 8. The contention, although very attractive, cannot be accepted because the plaintiff did not state that some part of the suit land was in possession of the defendant nos.2 to 8 at the time of filing of the suit. On the other hand, the suit land is subject to river action and most of the land was water logged, as observed by learned lower Appellate Court. In this view of the matter, even if at some stage, defendant nos. 2 to 8 came in possession of some part of the suit land, the same is not sufficient to non-suit the plaintiff. Learned counsel for the appellant also submitted that in the appeal preferred by defendant no.1, the finding of trial Court regarding payment of consideration of Rs.1,10,125/- only instead of Rs.4,10,125/- cannot be reversed. This contention is also devoid of substance because the said finding is not being reversed. In fact, from the judgment as well as from the material on record, it clearly emerges that the entire amount of Rs.4,10,125/- stood paid at the time of agreement. It was only a clerical error when it was mentioned in concluding part of paragraph 16 of the judgment that defendant no.1 received Rs.1,10,125/- from the plaintiff. There is concurrent finding of fact in favour of plaintiff- respondent no.1. The said finding is based on proper appreciation of evidence and is not perverse or illegal and, therefore, does not warrant RSA No. 1002 of 2008 9 interference in the instant second appeals. No question of law, much less substantial question of law, arises for determination in the instant second appeals. Accordingly, both the appeals are hereby dismissed, being devoid of merit. ( L.N.MITTAL ) JUDGE September 29, 2008 sv