IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.4392 of 2002 (O.&M.) Date of Decision: 12.5.2009 Amar Singh and another. ....... Appellants through Shri K.S.Dhillon, Advocate. Versus Amarjit Singh and others. ....... Respondent nos. 1 to 3 & 5 through Shri Gorakh Nath,Advocate. Respondent no.4 ex parte. Service upon respondent nos.6 to 8 was dispensed with being proforma respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.10055-C of 2002 In view of the fact that C.M.No.10053-C of 2002 filed for condonation of delay of two days in making deficiency of court fee good stands allowed vide order dated 14.12.2002, this application is accepted and delay of two days in the filing of the appeal is condoned. R.S.A.No.4392 of 2002 This Regular Second Appeal is directed against judgments and decrees dated 30.11.2000 and 10.6.2002 passed respectively by the Civil R.S.A.No.4292 of 2002 -2- .... Judge (Junior Division), Patiala (hereinafter described as `the trial Court') and the Additional District Judge, Patiala (referred to hereinafter as `the First Appellate Court') vide which the suit and the appeal of the plaintiffs- appellants were dismissed. The appellants had filed a suit for possession by way of specific performance of the agreements to sell dated 19.5.1989 and 30.4.1991 pertaining to House No.204-A, Street No.1, Dashmesh Nagar, Patiala (for short, `the suit property'). It was averred that defendants-respondent nos. 1 to 3, being owners, offered to sell the suit property to Mohinder Singh son of Atma Singh for a sum of Rs.1,27,000/- and entered into an agreement on 19.5.1989. The said agreement was signed by respondent no.1 in his personal capacity and by Piara Singh – defendant/respondent no.4, being guardian, on behalf of respondent nos. 2 & 3 as they were minors at that time. The full and final payment of amount of Rs.1,27,000/- was paid by Mohinder Singh and he took possession of the suit property and the proposed date of execution of the sale deed was fixed as 20.11.1989. Piara Singh also undertook to obtain necessary permission from the Guardian Court for execution of the sale deed with regard to the share of the minors in the suit property. As the said permission was not granted till 20.11.1989, a fresh agreement was executed on 30.4.1991 and the proposed date of execution of the sale deed was fixed as 29.4.1992. In the meantime, Mohinder Singh met with an accident on 11.12.1991 and died leaving behind the appellants and respondent nos. 6 to 8 as his legal heirs. According to the appellants, respondent nos. 1 to 4 were requested to R.S.A.No.4292 of 2002 -3- .... execute the sale deed, but they had been putting off the matter on one pretext or the other. In the meanwhile, Mohinder Kaur – defendant/ respondent no.5, who was working as a maid servant in the house of deceased-Mohinder Singh took forcible possession of the suit property and set up a false and unregistered Will dated 13.8.1991 in her favour and filed a suit titled “Mohinder Kaur Versus Amarjeet Singh and others” on the basis of that Will in which the vendors were also arrayed as defendant nos. 1 to 3, but she withdrew that suit against them vide order dated 22.10.1994 giving rise to a suspicion in the mind of the appellants and proforma respondent nos. 6 to 8 that a sale deed was going to be executed in her favour. It was pleaded that respondent no.1 to 4 had no right to execute a sale deed in favour of respondent no.5 or any other person except in favour of the appellants and proforma respondent nos. 6 to 8 being natural legal heirs of Mohinder Singh, but they refused to do so. It was further pleaded that respondent no.5 was requested to vacate the possession and deliver the same to the appellants and proforma respondent nos. 6 to 8, but she also declined to do so. The appellants claimed that they were entitled to the specific performance of the contract for execution of the sale deed in their favour on the basis of agreements dated 19.5.1989 and 30.4.1991. It was averred that if the specific performance was not possible due to any reason, then only the appellants be held entitled to the refund of the amount of Rs.1,27,000/- along with the equal sum as special and general damages or the interest on the sale price. The possession of respondent no.5 over the the suit property was stated to be that of a trespasser and so, a decree for possession was R.S.A.No.4292 of 2002 -4- .... prayed to be passed against her. In the amended plaint, the appellants had averred that it was now revealed that respondent nos. 1 to 4 had executed a registered sale deed in respect of the suit property in favour of respondent no.5 on 17.8.1992 vide Wasika No.3725 without their knowledge and, thus, she was required to execute the sale deed in their favour and in favour of proforma respondent nos. 6 to 8. Upon notice of the suit with the aforementioned pleadings, the vendors, who were arrayed as defendant nos. 1 to 4 and are now respondent nos. 1 to 4, did not appear and participate in the proceedings and were proceeded ex parte, whereas respondent nos. 6 to 8 filed their written statement admitting in toto the claim of the appellants. Respondent no.5 was also in the first instance proceeded ex parte, but on an application made by her, that order was set aside. Thereafter, she filed her written statement in which it was averred that the appellants and respondent nos. 6 to 8 had no right or concern with the suit property of Mohinder Singh because he had executed Will dated 13.8.1991 in her favour and she was staying therein and was serving him who was a bachelor and issueless. The factum of Mohinder Singh having died in an accident was stated to be correct. It was admitted that at the time his death, Mohinder Singh was in possession of the suit property. It was pleaded that the suit was not maintainable and the appellants had no cause of action to file the same. It was also averred that respondent nos. 1 to 4 were not owner of the suit property on the day the suit was filed and the appellants along R.S.A.No.4292 of 2002 -5- .... with respondent nos. 6 to 8 could not ask them to execute the sale deed. She also pleaded that being the author of her suit, she had full right to withdraw the same against respondent nos. 1 to 3. In her written statement to the amended plaint, respondent no.5 pleaded that she was in possession of the suit property during the life time of Mohinder Singh with his consent and that she had purchased the same after making the payment from her own sources. She had also alleged that the appellants and respondent nos. 6 to 8 never visited the house of deceased-Mohinder Singh nor did they bother to serve him. They were also stated not to have been called by Mohinder Singh on any social occasions. On the basis of the pleadings of the parties, as many as five issues were framed, but the trial Court, vide order dated 27.11.2000, deleted the same and re-cast the issues as under:- 1. Whether defendants No. 1, 2 and 3 entered into agreement to sell dated 19.5.1989 and 30.4.1991 in favour of Mohinder Singh regarding the disputed house and have received full sale consideration of Rs.1,27,000/- on 19.5.1989?OPP 2. Whether the plaintiffs and defendants No. 6 to 8 are only legal heirs of Mohinder Singh deceased?OPP 3. Whether Mohinder Singh deceased remained ready and willing in order to perform his part of the contract and after his death the plaintiffs and defendants No. 6 to 8 remained ready and willing to perform their part of contract?OPP 4. If above issues No. 1 to 3 proved, whether the plaintiffs are R.S.A.No.4292 of 2002 -6- .... entitled to specific performance of agreement to sell dated 19.5.1989 and 30.4.91?OPP 5. If issue no.4 is not proved, whether the plaintiffs and defendants No. 6 to 8 are entitled to recovery of Rs.1,27,000/- in the alternative relief?OPP 6. Relief. After appraisal of the entire evidence on record, the trial Court concluded that the appellants had failed to prove the execution of the agreements to sell dated 19.5.1989 and 30.4.1991 in favour of Mohinder Singh and, therefore, it dismissed the suit. In appeal, the findings were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. It is pertinent to mention here that the suit filed by respondent no.5 was ultimately dismissed on 19.7.1999 and the appeal was also dismissed on 10.6.2002 by holding that the Will was a forged and fabricated document. She had also filed a second suit for specific performance seeking enforcement of agreement to sell dated 30.4.1991 in which it was pleaded that she was the legal heir of Mohinder Singh. In this suit, original vendor- Piara Singh was impleaded as defendant and so the appellants. Piara Singh had admitted the execution of the agreements in question with deceased- Mohinder Singh and also admitted the passing of consideration, but disputed the claim of Mohinder Kaur being the legal representative of the deceased. That suit was, however, withdrawn. R.S.A.No.4292 of 2002 -7- .... Learned counsel for the appellants contended that the agreements to sell were never in dispute as even in the suit filed by respondent no.5 which she had preferred for declaration on the basis of Will dated 13.8.1991, the vendors, who were impleaded as defendant nos. 1 to 3 therein, had not denied it in their written statement, Exhibit PW4/3, the execution of the sale deed in favour of the appellants and proforma respondent nos. 6 to 8. Even otherwise, the vendors, who were impleaded as defendant nos. 1 to 4 in the instant suit, did not appear and were proceeded against ex parte and chose not to file any reply. Respondent no.5, who filed the written statement and was the sole contesting party, admitted the execution of the agreements, but pleaded that she was the sole legal representative of Mohinder Singh and was entitled to the suit property. He referred to paragraphs 6 to 8 of the plaint of the suit for declaration filed by respondent no.5, which is on record as Exhibit PW4/2 and the corresponding reply of respondent nos. 1 to 3, Exhibit PW4/3, wherein they admitted the execution of the agreements to sell in paragraph 8. It was, thus, argued that once the vendors themselves admitted the execution of the agreements, both the Courts below were wrong in discarding the plea of the appellants merely on the ground that the original agreements were not proved on record. Learned counsel for the appellants further argued that the admission made by a party in Court proceedings is the best form of evidence and, therefore, the same should have been relied upon by the Courts below rather than to discard the agreements. In support of his contentions/ arguments, he placed reliance on Badat and Co., Bombay R.S.A.No.4292 of 2002 -8- .... Versus East India Trading Co., AIR 1964 S.C. 538 and Mehar Singh and another Versus Faqir Chand and others, 1996(3) P.L.R. 114 (P&H.). In Badat and Co.'s case (supra), Hon'ble Mr.Justice Subha Rao, as his Lordship then was, in his dissenting judgment, made the following observations to which specific reference has been made by the learned counsel for the appellants:- Rules 3, 4 and 5 of Order 8 of C.P.C. form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary...........” In Mehar Singh's case (supra), a learned Single Judge of this Court observed as under:- “An admission made in earlier litigation between the parties is admissible in the later litigation and the party making such admission can not back out of such admission unless it is successfully withdrawn or explained to be erroneous.” On the other hand, learned counsel for respondent nos. 1 to 3 and 5 contended that there was no infirmity in the findings recorded by the R.S.A.No.4292 of 2002 -9- .... Courts below and the appellants were required to prove their own case on the strength of the credible evidence and, therefore, the impugned judgments cannot be termed to be erroneous. I have thoughtfully considered the rival contentions/ arguments and have gone through the whole record. The appellants have been non-suited primarily on the ground that they had failed to establish the agreements to sell executed by respondent nos. 1 to 4 in favour of Mohinder Singh, since deceased. The Courts have not gone into any other aspect of the matter and have merely discarded the suit of the appellants on this count. It is, indeed, true that the agreements to sell could not be proved in accordance with law, but the question remains as to whether the admissions made by the vendors themselves, as also by respondent no.5, who has been contesting the suit and who rather at one point of time, sought enforcement of these very agreements, could be ignored by the Courts below in totality. Thus, the question of law that has been thrown up for consideration by this Court is as under:- “Whether an admission made by a party in an earlier litigation can ipso facto be accepted by the Court without any further proof or not?” Order 8 Rules, 3, 4 and 5 of the C.P.C. are to the following effect:- “3. Denial to be specific.- It shall not be sufficient for a defendant in his written statement to deny generally the R.S.A.No.4292 of 2002 -10- .... grounds alleged by the plaint, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. 4. Evasive denial.- Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money,it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances,it shall not be sufficient to deny it along with those circumstances. 5. Specific denial.- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may,in the discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) R.S.A.No.4292 of 2002 -11- .... or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.” A perusal of the above quoted provisions of law reveals that it is not sufficient for a defendant to deny generally the grounds raised in the plaint nor any evasive denial is sufficient. Rather, they go on to say that every denial should be specific and if not being so, then by necessary implication, it has to be taken to be admitted and in such an eventuality, the Court may, in its discretion, require any fact to be proved otherwise than by admission. The net result of these provisions is that if an admission is made by a party, then it is in the discretion of the Court to warrant any further proof if it thinks it to be necessary, but in the absence of it, the admission is necessary proof of the existence of a fact. For this view, I am fortified by the observations of his Lordship reproduced above, which were made in his dissenting judgment in Badat and Co.'s case (supra). It is now to be seen as to be the form of admission which is existing on record. As mentioned above, respondent no.5 had herself had filed an earlier suit for declaration that she was the sole successor of Mohinder Singh-deceased and was entitled to the property which was owned and possessed by him on the basis of Will dated 13.8.1991. In that suit, she R.S.A.No.4292 of 2002 -12- .... pleaded in paragraphs 6, 7, 8 and 9 of the plaint, Exhibit PW4/2, as follows:- “6. That deceased Mohinder Singh entered into an agreement for the purchase of house No.204-A street No.1 Dashmesh Nagar, Patiala which is constructed over khasra no. 24//18/1/3 (1-0) khewat No.1615 khatoni No.2301 situated in village Tripuri Saidan with the defendants No.1 to 3. The photostat copy of the first agreement dated 19.5.1989 is attached herewith. The deceased Mohinder Singh was put into possession by defendants No.1 and 2 on 19.5.1989 the day of first agreement and on that day the defendant No. 1 and 3 received the full and final payment of the value of the house in dispute. The defendants being minors so it was agreed that the guardian will get the necessary permission from the court to get the sale deed executed as per the agreement dt. 19.5.1989. 7.That the defendants failed to get necessary sanction/ permission from the court to sell the property of the minors and as such they entered into a fresh agreement with deceased Mohinder Singh on 30.4.1991 whereby the defendants agreed on the same terms and conditions to sell the house to deceased Mohinder Singh upto 29.4.1992 and it was also stipulated that during this period the defendants will obtain necessary permission from the competent court to execute sale deed. 8. That the plaintiff has come to know that the defendants No. 1 R.S.A.No.4292 of 2002 -13- .... to 3 are now interested in selling the house No. 204-A Street No.1 Dashmesh Nagar, Patiala to someone else inspite of the agreement dated 19.5.1989 and 30.4.1991 with deceased Mohinder Singh. The plaintiff's house i.e. 204-A was shown to Sh.Darbara Singh of village Jassowal for the purpose of sale. 9. That the plaintiff contacted the defendants and told them that after deceased Mohinder Singh she is the sole successor and in possession of the said house on the basis of Will dated 13.8.1991 as such they can not sell this house to any body else except the plaintiff on the terms and conditions of the agreement dated 19.5.1989 and 30.4.1991, the photostat copies of these are attached herewith. The defendants threatened to sell this house to someone else inspite of the explaining of the above position to the defendants, hence this suit. The plaintiff also told the defendants to obtain necessary permission from the court.” What is to be noticed further is that in the said suit, the agreements to sell were not the subject-matter of litigation. Rather, it was Will dated 13.8.1991 on the basis of which she set up a claim to the estate of Mohinder Singh and also sought injunction that the vendors be restrained from selling the suit property to someone else. In that suit, the appellants and proforma respondent nos. 6 to 8 were arrayed as defendant nos. 4 to 8, whereas the vendors were impleaded as defendant nos. 1 to 3. In their written statement, which is on record as Exhibit PW4/3, the vendors in the R.S.A.No.4292 of 2002 -14- .... corresponding paragraphs, i.e., 6, 7, 8 and 9, stated as under:- “6. Para no.6 of the plaint is admitted. 7. Para no.7 of the plaint is admitted. 8. Para no.8 of the plaint is wrong and denied. The plaintiff has no right or concern with House No. 204-A purchased by Mohinder Singh deceased from defendants No. 1 to 3. The defendants No. 4 to 8 are the legal representatives of Mohinder Singh deceased. Therefore, the answering defendants are bound to execute the sale deed of the above said house in their favour according to the agreements dated 19.5.1989 and 30.4.1991. The allegation in the plaint of this para is baseless. No house was shown to Darbara Singh as alleged. 9. Para no.9 of the plaint is wrong and denied. The alleged will is forged document. The plaintiff is not the successor Mohinder Singh deceased. Defendants No. 4 to 8 are the successors-in-interest of Mohinder Singh deceased being his legal representatives and so answering defendants are bound to execute the sale deed in favour of the defendants No. 4 to 8. Plaintiff is not in possession as alleged.” In the instant suit, the vendors were proceeded ex parte while respondent no.5 contested the claim of the appellants and again admitted the agreements to sell in question. What is essential to notice also is that the vendors never denied the agreements to sell even in the proceedings which R.S.A.No.4292 of 2002 -15- .... were initiated at the behest of respondent no.5 in which the appellants and proforma respondents were also contesting defendants. In my opinion, once the agreements to sell were admitted by the vendors themselves, the appellants were not required to prove anything further and the Courts below should have accepted the same straight-away as it was the best form of evidence. The vendors also admitted the receipt of full and final sale consideration from Mohinder Singh. There is, thus, little escape from the conclusion that the agreements to sell in question had been executed in favour of Mohinder Singh by respondent nos. 1 to 4, who have not denied the same in the earlier suit filed by respondent no.5. As mentioned earlier, they did not contest the instant proceedings while respondent no.5 again admitted the agreements to sell. From this, the Courts below should have inferred and concluded that agreements to sell dated 19.5.1989 and 30.4.1991 were validly executed and no other proof was required. In this view of the matter, the findings of the Courts below are held to be erroneous to this effect and deserve to be set aside. The question of law that has been raised in the appeal and noticed above, is answered to say that in view of the provisions of Order 8 Rules 3, 4 and 5 of the C.P.C. in the wake of specific admission made by a party whether in the suit in question or in the earlier litigation, the same can be accepted to be a valid proof of an existing fact and it need not to be proved further if the Court so concludes. Having answered the question above and having noticed that both the Courts have failed to take into account the admission made by the R.S.A.No.4292 of 2002 -16- .... vendors and respondent no.5 with regard to the execution of the agreements to sell and passing of sale consideration, the impugned judgments