RSA No.3802 of 2008 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.3802 of 2008 Date of decision: January ,2010 Gogan Kaur and others .....Appellants vs. Mohinder Singh and another ......Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr. B.S.Bhalla,Advocate, for the appellants. -- Rakesh Kumar Garg,J. This is defendants' second appeal challenging the judgment and decree of the Courts below whereby suit filed by respondent No.1 for possession by way of specific performance of the agreement to sell in question was decreed. The facts of the case in brief are that respondent No.1 filed a suit against the appellants asserting therein that the suit property was the ownership of Kulwinder Singh son of Arjan Singh (predecessor-in-interest of the appellants and proforma respondent). The aforesaid Kulwinder Singh agreed to sell the suit land measuring 37 kanals 12 marlas in favour of the plaintiff-respondent at the rate of Rs.1,50,000/- per killa vide agreement to sell dated 28.10.1993, and received a sum of Rs.1,50,000/- as earnest money. The sale deed was to be executed by 15.6.1994 . Kulwinder Sigh died on the night of 21.5.1994 leaving behind his legal representatives (i.e., the appellants). The appellants threatened to alienate the suit property to the RSA No.3802 of 2008 2 persons other than the plaintiff-respondent in violation of the aforesaid agreement to sell. It was further averred that the plaintiff-respondent was always ready and willing to perform his part of the agreement and was still ready and willing to perform the same, and asked the defendant-appellants number of times to execute the sale deed in his favour as they had stepped into the shoes of Kulwinder Singh their predecessor but to no avail. Hence this suit. Upon notice, appellant-defendants appeared and filed written statement taking various preliminary objections. On merits, it was alleged that Kulwinder Singh deceased never enterred into any agreement to sell for seeling the land measuring 37 kanals 12 marlas at the rate of Rs.1,50,000/- per killa. It was further averred that neither he received any earnest money of Rs.1,50,000/- from the plaintiff-respondent. So there was no question of any sale deed to be executed by them. The defendants have become owners of the suit land being the legal representatives of Kulwinder Singh deceased. Since there was no agreement to sell by Kulwinder Singh with the plaintiff-respondent so question of selling the property to him by the appellants does not arise. It was further alleged that defendants No. 2 to 5 through their mother defendant-appellant no.1 had filed a suit for fixation of maintenance at the rate of Rs.500/- p.m. for each of the defendants No. 2 to 5 against Kulwinder Singh deceased and the land in suit was already attached under Order 38 Rule 5 of the Code of Civil Procedure. An entry to this effect was got entered by appellants in the revenue record vide Rapat No.421 dated 25.8.1993 and the plaintiff-respondents knew this fact of attachment of suit land before entering into any alleged agreement of sale with Kulwinder RSA No.3802 of 2008 3 Singh deceased. As Kulwinder Singh deceased was puppet in the hands of his father Arjan Singh and the plaintiff, so they might have managed to get his signatures and fabricated this fictitious and benami agreement of sale without any consideration in favour of the plaintiff in order to dislodge the claim of defendants No. 2 to 5 in the maintenance suit filed by defendants no. 2 to 5 through their mother defendant no.1 against Kulwinder Singh. The alleged agreement was in order to deprive the defendant-appellants from the suit land. The alleged agreement relates to the entire estate of Kulwinder Singh deceased. It was further alleged that a person in young age cannot think of selling his entire estate. He died a sudden death and after his death the defendants have got no other property left by Kulwinder Singh deceased for their livelihood. The earnest money of Rs.1.50 lakh alleged to have been paid was never received by Kulwinder Singh deceased.. The alleged agreement was clearly without consideration and the appellants were not bound by the agreement. Dismissal of the suit was prayed. On the basis of the pleadings of the parties, the following issues were framed:- 1. Whether Kulwinder Singh predecessor-in-interest of defendants agreed to sell the suit land in favour of the plaintiff on 28.10.1993 ?OPP 2. Whether in the alternative the plaintiff is entitled to recover Rs.three lacs ?OPP 3. Whether the plaintiff has been ready and willing to perform his part of the contract ?OPP 4. Whether the suit is bad for the purpose of court fee and jurisdiction ?OPD 5. Whether the plaintiff is entitled to specific performance of agreement of sale dated 28.10.1993 ?OPP RSA No.3802 of 2008 4 6. Whether the plaintiff is estopped by his act and conduct from filing the present suit ?OPD 7. Whether the suit barred under Order 2 Rule 2 and under Order 23 Rule 1 CPC ?OPD 8. Relief. After hearing the learned counsel for the appellants and going through the pleadings and evidence on record, the trial Court decreed the suit of the plaintiff vide impugned judgment and decree dated 28.9.2000. Feeling aggrieved against the aforesaid judgment and decree, the defendants challenged the same by filing appeal before the lower Appellate Court. However, the Additional District Judge,Moga, vide impugned judgment and decree dated 14.3.2008 dismissed the aforesaid appeal. It is pertinent to mention here that while dismissing the appeal the lower Appellate Court on appreciation of evidence found that execution of the agreement to sell by Kulwinder Singh deceased in favour of the plaintiff-respondent stands proved and in fact the lower Appellate Court noticed that the only contention raised by the learned counsel for the appellants to discard the said agreement was that neither the scribe nor the attesting witness of the agreement was examined and, therefore, the trial Court should not have relied upon the statement of the plaintiff-respondent and one attesting witness. The aforesaid contention was rightly discarded by the lower Appellate Court, as once the execution was proved from the statement of the plaintiff as PW1 and Baldev Singh as PW2 one of the attesting witnesses, there was no legal requirement examining the scribe and the second attesting witness to prove such an agreement,. Another argument raised before the lower Appellate Court was that the appellants RSA No.3802 of 2008 5 had already filed a civil suit for maintenance against Kulwinder Singh in order to create a charge upon the property so as to restrain Kulwinder Singh from selling the same. Attachment before judgment of the land in dispute in the suit for maintenance filed by the appellant against Kulwinder Singh had not created any legal bar against Kulwinder Singh restraining him to enter into agreement to sell. However, it is an admitted fact that the aforesaid suit for maintenance was dismissed as withdrawn and the order attachment before judgment had come to an end and, therefore, did not effect the right of the plaintiff-respondent to seek possession by way of specific performance of agreement to sell in any manner. The other contentions raised by the appellants before the lower Appellate Court with regard to granting the alternative relief instead of granting relief of specific performance also did not find favour. The objection of the appellants with regard to the filing of a suit for permanent injunction by the plaintiff- respondent against the appellants, and thereafter filing the present suit for specific performance was also rightly held not tenable in view of this Court in Girdhari Lal Bansal v.Chairman Bhakra Beas Management Board, AIR 1995 Punjab and Haryana 219 and Bhagwan Kaur v. Shri Hrinder Pal, 1991 PLJ 681. Still not satisfied the defendants have filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the alleged agreement was a result of fraud and manipulation. However, the Courts below without appreciating the evidence placed on the record had decreed the suit of the plaintiff-respondent and,therefore, the judgment and RSA No.3802 of 2008 6 decrees of the Courts below are liable to be set aside. Elaborating his argument further, learned counsel for the appellants has submitted that the land in dispute was under attachment in a separate suit filed by the appellants against Kulwinder Singh and, therefore, the same could not be sold in pursuance of the agreement to sell in question. On the basis of the aforesaid arguments, learned counsel for the appellants submitted that the following substantial questions of law arise in this appeal:- 1. Whether the oral as well as documentary evidence has been ignored by the Courts below ? 2. Whether the suit of the plaintiff was not maintainable in the present form ? 3. Whether the property in question could have been sold especially when the same was attached by the Civil Court ? I have heard learned counsel for the appellants and have gone through the record carefully. On appreciation of evidence both the Courts below have recorded a finding of fact that the agreement to sell in question Ex.P1, was duly executed by Kulwinder Singh deceased who also received a n amount of Rs.1,50,000/- as earnest money. The aforesaid plea of fabrication of agreement by the plaintiff in connivance with Arjan Singh taken by the appellants has not been substantiated on the record of the case. The objections with regard to the attachment of the property in a separate suit for maintenance filed by the appellants against Kulwinder Singh deceased has not created any bar against Kulwinder Singh from entering into any agreement to sell, and the same was rightly discarded by the Courts below. No material evidence on record has been pointed out to controvert the RSA No.3802 of 2008 7 findings of the Courts below. A considered apprsaisal of the question of law, the impugned judgments, the pleadings on record and evidence adduced in support thereof, leads to a singular conclusion that the impugned judgments do not suffer from any legal infirmities, and concurrent findings of facts returned by the Courts below do not require interference by this court while exercising its power under Section 100 of the Code of Civil Procedure. No question of law, much less substantial question of law arises in this appeal for consideration. No other point was raised and argued by the learned counsel for the appellants. For the reasons recorded hereinabove, I find no merit in this appeal and the same is dismissed. ( Rakesh Kumar Garg) Judge January 25, 2010 rk