RSA No.3607 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3607 of 2010 (O&M) Date of decision: 10.9.2010 Raj Kaur and another ......Appellant(s) Versus Kulwant Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Ms. G.K. Mann, Advocate for the appellants. Rakesh Kumar Garg, J. CM No.10651 & 52-C of 2010 Applications are allowed subject to all just exceptions. RSA No.3607 of 2010 (O&M) This is defendants’ second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents has been decreed and a preliminary decree has been passed to the effect that the plaintiff-respondents are entitled to get the suit property partitioned to the extent of half share and the appellants have been restrained from changing the nature of the suit property or alienation till the final partition. The plaintiff-respondents filed a suit for possession by way of partition on the averments that Balbir Singh, predecessor-in-interest of the plaintiffs, was the owner in possession of half share in the suit property which he purchased along with defendant No.1 vide sale deed 21.10.1995. Balbir Singh died on 1.6.2003 leaving behind the plaintiffs as his legal heirs. After his death, the defendants became dishonest and are now alleging that the plaintiffs have no share in the suit property, which is totally wrong and illegal as the plaintiffs are the owners in possession of the RSA No.3607 of 2010 (O&M) 2 property to the extent of half share. The defendants want to grab the share of the plaintiffs for which they have got no right, title or interest. It was further averred that they will change the nature of the property and also alienate the same for which they do not have any right. The property is still joint and the plaintiffs do not wish to keep their joint share with the defendants and want to get their half share separated from them by way of partition. The plaintiffs requested the defendants not to do any illegal act in any manner whatsoever but they refused to do so. Hence the suit. Upon notice the defendant-appellants appeared and filed written statement dated 13.8.1984 raising various preliminary objections. On merits, it was stated that Balbir Singh during his lifetime had executed a legal agreement to sell the suit property in their favour and received the entire amount of sale consideration i.e. Rs.25,000/- and also agreed to execute the sale deed of the said property in their favour at any time but unfortunately said Balbir Singh died without executing the sale deed in their favour. Hence, after his death, the plaintiffs were liable to execute the sale deed in favour of the defendant-appellants and for the said purpose they approached and requested the plaintiffs to execute the sale deed in their favour but they put off the matter on one pretext or the other and have filed the present suit against them. Denying all other material averments of the plaint, the defendants prayed for dismissal of the suit. The plaintiffs filed replication controverting the averments of the written statement and reiterating their own pleaded case. From the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled for possession of ½ share of plaintiffs by partition by metes and bounds of property measuring 60 feet in length and 12 feet in RSA No.3607 of 2010 (O&M) 3 breadth total area 80 sq.yds., as prayed for ? OPP 2. Whether the plaintiffs are entitled for permanent injunction as prayed for ? OPP 3. Whether the present suit is not maintainable ? OPD 4. Whether the cause of action has arisen to plaintiffs against the defendants? OPD 5. Whether the plaintiffs have not come to the court with clean hand and suppressed the material facts from the court? OPD. 5A. Whether the defendants are in possession of the property in dispute in part performance of the agreement to sell dated 19.12.1998 if so its effect? OPD 5B. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 6. Relief” After hearing learned counsel for the parties and appreciating the evidence on record, the trial Court determined all the issues in favour of the plaintiff-respondents and decreed the suit vide judgment and decree dated 9.5.2009. Feeling aggrieved from the aforesaid judgment and decree, the defendants filed an appeal before the Lower Appellate Court which was also dismissed vide judgment and decree dated 15.6.2010. Still not satisfied, the defendants have preferred this appeal before this court submitting that the followings substantial questions of law arise in this appeal:- “(i) That whether the findings of the courts below which are based upon misreading and misinterpretation RSA No.3607 of 2010 (O&M) 4 of oral as well as documentary evidence is sustainable in the eyes of law? (ii) That whether the findings of the courts below are perverse? (iii) That whether the suit of the respondent/plaintiff is maintainable during the pendency of the suit for specific performance filed by the appellant on the basis of agreement to sell dated 19.12.1998?” I have heard learned counsel for the appellants and perused the impugned judgment and decrees. There is no specific denial to the execution of the sale deed dated 21.10.1985 which is the very basis of the suit. According to the aforesaid sale deed, the plaintiff-respondents are owners in possession of the suit property to the extent of half share. Further, the fact that after the death of Balbir Singh, the plaintiff-respondents are the only legal heirs is also not denied by the appellants. The case built up by the appellants in their support is that Balbir Singh, predecessor-in-interest of the plaintiff- respondents, executed an agreement to sell in their favour, however, no date of the execution of the alleged agreement to sell by Balbir Singh has been pleaded by the appellants in their written statement dated 13.8.1984 and the aforesaid alleged date of agreement to sell being 19.12.1998 had been disclosed for the first time in the testimony of Raj Kaur. The aforesaid date of execution of the alleged agreement to sell is beyond pleadings and cannot be read into evidence. Both the attesting witnesses have also not mentioned the date of agreement to sell in their testimony. Another factor relevant to be noticed is that the attesting witnesses of the alleged agreement to sell in favour of the appellants i.e Satnam Singh and Jagdish Singh are brother and son-in-law respectively of defendant-Raj Kaur. It is RSA No.3607 of 2010 (O&M) 5 again an admitted fact that the defendants have not given any notice to the plaintiffs for execution of sale deed in their favour. On the basis of the aforesaid alleged agreement to sell, the suit for specific performance was filed after the institution of the present suit. Keeping in view the aforesaid established facts on record, the Courts below concluded that the defence put up by the appellants on the basis of the agreement to sell as pleaded by them was doubtful and cannot be relied upon. Even otherwise, it is well settled that execution of agreement to sell does not confer any title itself in favour of a party. Since the sale deed dated 21.10.1985 as pleaded by the plaintiff-respondents is not disputed, the plaintiff-respondents have certainly a right in the suit property to the extent of half share and are entitled to the said share by way of partition; and simply because a suit for specific performance of the aforesaid alleged agreement to sell which was filed subsequently to the present suit is pending, cannot be a ground to deny the plaintiff- respondents to seek their right of partition. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. September 10, 2010 (RAKESH KUMAR GARG) ps JUDGE