RSA No.760 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.760 of 2008 Date of Decision: 26.03.2009 Gurnam Kaur ...Appellant Vs. Charanjit Kaur & Anr. ...Respondents CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.Swaran Singh, Sr. Advocate, with Mr.N.S.Rapri, Advocate, for the appellant. --- 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 Digest? --- Vinod K.Sharma, J . (Oral) This order shall dispose of RSA Nos.760 & 761 of 2008 both titled Gurnam Kaur Vs. Charanjit Kaur & Anr., as common question of law RSA No.760 of 2008 2 and facts are involved in both these appeals. For the sake of brevity the facts are being taken from RSA No.760 of 2008. This regular second appeal is directed against the judgments and decrees dated 4.10.2005 and 22.11.2007 passed by the learned courts below vide which suit filed by the plaintiff-appellant for seeking possession of the shop as shown red in the site plan on the basis of ownership stands dismissed. The plaintiff brought a suit on the pleadings that Surinder Syal son of Om Parkash Syal resident of Jalandhar was transferee of the property in dispute vide registered sale deed dated 11.2.1993, for a sale consideration of Rs.30,000/-. The property was sold to the plaintiff/appellant through his attorney vide registered sale deed dated 6.7.1995 for a sale consideration of Rs.1,32,000/- and the plaintiff raised construction marked ABCD as shown in red in the site plan. STD connection was also taken, wherein defendant No.1 was employed as telephone operator by the husband of the plaintiff. Defendant/respondent and his brother i.e. defendants No.2 ands 3 used to assist her in the said Booth. Telephone booth was said to be on the back of property No.801 whereas the remaining portion remained in possession of the plaintiff. The plaintiff also claimed that her husband was living in Canada and in his absence the keys of the STD PCO Booth used to remain with the defendants. However, on return when they were asked to return the keys, for taking possession of Booth it was refused. The husband of the plaintiff thereafter moved an application for temporary closure of STD RSA No.760 of 2008 3 Booth, as a result thereof STD Booth was ordered to be closed on 24.6.1997. It was also claimed that the defendants have no right to alienate or to retain the possession of the property in question. The suit was resisted on the ground that the suit was not maintainable. On merit it was pleaded that Hardyal Singh was allotted STD PCO Booth No.220455. Later on, he leased out the Booth to defendant No.1 on 3.2.1993 and executed an affidavit in favour of defendant No.1. STD PCO Booth thereafter was being run by defendant No.1, where electric connection was got installed in her name and she was regularly paying the electricity bills. It was further the case of the defendants that an agreement to sell was executed with defendant No.1 on 28.5.1993 representing himself to be the owner of shop. He received full sale consideration of Rs.25,000/- and put plaintiff No.1 in possession, though, she was already in possession. Defendant No.1 after purchase raised construction on the shop in dispute. The defendants, thus, claimed to be in possession of the shop as owner and sale deed executed by Hardyal Singh in favour of the plaintiff/appellant was disputed on the ground that it did not affect the rights of the defendant/respondents, as the full sale consideration was paid and possession taken. It is also pleaded that the defendant has always been ready and willing and she is still ready and willing to get to get the sale deed executed in accordance with the terms and conditions of the agreement dated RSA No.760 of 2008 4 28.5.1993. It was also pleaded case that Booth was purchased by Surinder Syal from Jalandhar Improvement Trust and was sold to Hardyal Singh, husband of the plaintiff who had even given him power of attorney after full sale consideration. Defendant No.1 also filed separate suit for specific preference of agreement to sell dated 28.5.1993. Both the suits were consolidated and the learned courts below by way of concurrent finding of fact have held that the agreement to sell dated 28.5.1993 stood proved and further by invoking provisions of Section 43 of the Transfer of Property Act held that the plaintiff was entitled to specific performance of the agreement to sell. The suit of the plaintiff/appellant was dismissed and the cross suit was decreed. Learned senior counsel for the appellant raised the following substantial questions of law for consideration by this court in this appeal:- 1. Whether the judgment and decree passed by the learned courts below is the outcome of misreading of provisions of Section 43 of the Transfer of Property Act? 2. Whether in the absence of proof of execution of agreement to sell, the suit for specific performance could be decreed? In support of the substantial questions of law referred to above, Mr.Swaran Singh, learned senior counsel for the appellant contends that in order to bring the case under section 43 of the Transfer of Property Act (for short the Act) it was required to prove that the party had represented to be the owner and competent to transfer the property. RSA No.760 of 2008 5 Learned senior counsel contends that the agreement dated 23.4.1988 executed in favour of the defendant-respondent did not confer any title on her as on the date of execution of agreement to sell the ownership of the property did not vest in Surinder Syal who in fact acquired ownership right on 11.2.1993. The contention of the learned senior counsel for the appellant deserves to be rejected as provisions of Section 43 of the Act are attracted when on the date of entering into agreement the vendor does not have title to the property but acquires it subsequently. It is in this situation only, that the vendee can enforce his claim, qua the title acquired subsequent to the entering into agreement. The learned courts below were right in holding that in view of section 43 of the Transfer of Property Act agreement to sell executed by Hardyal Singh could be enforced against the plaintiff/appellant as the vendor perfected his title subsequent to the agreement to sell. On the second question of law the learned senior counsel contends that in order to prove the agreement the defendant/respondent in her suit for specific performance, she examined only one of the attesting witnesses to the agreement who also did not support the case of defendant No.1 and rather denied the execution of the agreement. This, however, also cannot be a ground to reverse the judgments and decree passed by the learned courts below, as admittedly the signatures on the agreement to sell were not disputed by the plaintiff/appellant. Rather stand was taken that the provisions of section 43 of the Act would not be applicable in the facts and circumstances of the case. RSA No.760 of 2008 6 Once the execution of the agreement was admitted it was immaterial whether the attesting witness supported it or not, as the admitted facts are not required to be proved. It was for the plaintiff/appellant to have proved her case. The plaintiff was required to stand on her own legs, and cannot take benefit of any lapse on the part of defendant/respondent Consequently, the substantial questions of law raised are answered against the appellant, and the findings of facts recorded by the learned courts below are affirmed. Consequently, both the appeals are dismissed. 26.03.2009 (Vinod K.Sharma) rp Judge