RSA No. 2619 of 2007 (O&M) - 1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2619 of 2007 (O&M) Date of Decision: 04.03.2011. Smt. Lajjo .......Appellant Vs. Jagbir Singh & others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Arvind Singh, Advocate for the appellant. Mr. J.S.Cooner, Advocate for the respondents. ..... SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 14.8.1991. The case of the plaintiff in brief was that the defendant No.1 was owner in possession of the suit land measuring 24 Kanals 16 marlas. Defendant No.1 executed a general power of attorney in favour of defendant No.2 qua the suit land. On the basis of the same, defendant No.1 entered into an agreement to sell the suit land with the plaintiff on 14.8.1991. Plaintiff paid ` 80,000/- towards earnest money to defendant No.1. The sale deed was to be executed on or before 15.6.1993 after receiving the balance sale consideration of ` 98,000/- before the Sub-Registrar, Ambala. However, defendants No. 1 RSA No. 2619 of 2007 (O&M) - 2- and 2, in order to frustrate the rights of the plaintiff, got a civil suit filed from Lajjo against Parsini Devi bearing No. 563 dated 16.8.1991. The said suit was decreed on 19.8.1991. The decree in question was not binding on the rights of the plaintiff as it was illegal, null and void. Hence, the suit was filed by plaintiff. Defendants No. 1 and 2, in their written statement, denied the contentions in the plaint. It was averred that the defendant No.1 had not executed the agreement to sell in question in favour of the plaintiff on behalf of defendant No.2. The decree dated 19.8.1991 was legal and valid. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to possession of the property in dispute by way of specific performance of the agreement dated 14.8.1991? OPP 1-A. Whether the defendant No.2 was duly appointed to General Power of Attorney by defendant No.1 and was allowed to alienate, gift, mortgage, the land owned by defendant No.1 as alleged in para no.2 of the plaint? OPP 1-B Whether the plaintiff has always been ready and willing to perform his part of the agreement? OPP 1-C Whether the alleged decree and judgment dated 19.8.1991 is illegal, null and void and not binding upon the rights of the plaintiffs? OPP 2. Whether the suit of the plaintiff is not maintainable in the present suit? OPD RSA No. 2619 of 2007 (O&M) - 3- 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Relief.” During the pendency of the suit, plaintiff Dayal Singh died and his legal representatives were brought on record. Vide judgment and decree dated 10.4.2007, trial court decreed the suit of the plaintiff and it was held that the decree dated 19.8.1991 was illegal, null and void and was not binding on the rights of the plaintiff. Aggrieved by the said judgment and decree, defendants No. 1 and 3 preferred an appeal. Vide order dated 2.6.2007, the appeal on behalf of Parsini Devi was ordered to be dismissed, whereas Lajjo, appellant was ordered to continue the appeal in her individual capacity. Additional District Judge (Fast Tract Court), Ambala vide judgment and decree dated 7.6.2007 dismissed the appeal. Hence, the present appeal by the defendant No.3. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. In the present case, Lajjo, appellant had also filed an appeal before the first Appellate Court in her own right and as legal representative of defendant Parsini Devi. However, appellant had failed to place on record any document showing that she was capable of representing the estate of Parsini Devi. In these circumstances, first Appellate Court had rightly dismissed the appeal on behalf of Parsini Devi . Learned counsel for the appellant has submitted that the plaintiff had failed to establish that he was ready and willing to perform his part of the contract. RSA No. 2619 of 2007 (O&M) - 4- In the present case, the agreement to sell in question was executed on 14.8.1991. Thereafter, the impugned decree dated 19.8.1991 was suffered by Parsini Devi in favour of Lajjo- appellant qua the suit property. In these circumstances, the only option left to the plaintiff, was to file the suit for specific performance of agreement to sell in question and challenge the decree dated 19.8.1991. There was no occasion for the plaintiff to appear before the Sub-Registrar for execution of the sale deed on the stipulated date as the vendor had already suffered the decree qua the suit property in favour of the appellant. So far as the decree dated 19.8.1991 is concerned, the same was liable to be set aside as the suit had been filed on 16.8.1991 by Lajjo against Parsini and it was decreed within three days on 19.8.1991. Lajjo is the wife of Maya Chand. Maya Chand, in order to frustrate the agreement executed in favour of the plaintiff, got the suit filed by the appellant, his wife against Parsini and got the decree in favour of his wife within three days of the filing of the suit. Admittedly, decree dated 19.8.1991 was held to be a collusive decree in a suit filed by Angrej Singh. Plaintiffs in the said suit had also claimed that Maya Chand had executed an agreement to sell in their favour on behalf of Parsini Devi as her attorney but later on, Parsini Devi suffered a collusive decree in favour of Lajjo, wife of Maya Chand on 19.8.1991. The judgment and decree passed, by the trial court in the suit filed by Angrej Singh, was upheld by this Court in R.S.A. No. 2885 of 2002 vide judgment and decree dated 20.7.2009. In these circumstances, the courts below had rightly held that the decree dated 19.8.1991 was not binding on the the RSA No. 2619 of 2007 (O&M) - 5- rights of the plaintiff. Learned counsel for the appellant has submitted that the courts below had erred in setting aside the impugned decree in toto instead of holding that the impugned decree shall have no effect on the rights of the plaintiff. The said submission made by the counsel for the appellant has not been opposed by the counsel for the respondents. Accordingly, it is clarified that the suit of the plaintiff stood decreed to the effect that the judgment and decree dated 19.8.1991 passed in favour of defendant No.3 shall not be binding on the rights of the plaintiff and plaintiff was entitled to possession of the suit property by way of specific performance of agreement to sell dated 14.8.1991. No substantial question of law arises in this appeal warranting interference. With the above said clarification, the appeal stands dismissed. (SABINA) JUDGE March 04, 2011 Gurpreet