S.A. No.23 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- S.A. No.23 of 2009 (O&M) Date of decision:- 1.10.2010 Anil Kumar ... Appellant Versus Yub Raj Singh son of Kesar Singh & Ors. ... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Vipin Mahajan, Advocate, for the appellant. Mr. Rajeshwar Singh, Advocate, for the respondents. Gurdev Singh, J (oral) The plaintiff-appellant had filed a suit for possession of the land measuring 54 marlas detailed in the heading of the plaint and situated in Prem Nagar, Tehsil and District Gurdaspur, by way of specific performance of the agreement dated 28.2.2004. The suit was decreed by Additional Civil Judge (Sr. Division) Gurdaspur vide judgment and decree dated 27.4.2007. The defendents/respondents preferred an appeal which was accepted by the Additional District Judge (Ad-hoc), Gurdaspur, vide order dated 24.4.2009 and suit was remanded back to the trial Court with a direction to decide the same afresh keeping in view the observations made in that order. The case of the plaintiff is that the defendants along with one Ranjodh Singh executed agreement on 28.2.2002 to sell the land in dispute, in his favour for a total sale consideration of Rs.18,16,000/- and they received Rs.6,60,000/- as earnest money. All the terms and conditions of S.A. No.23 of 2009 (O&M) -2- the agreement were reduced into writing on the same day. However, that agreement could not be enforced through court of law. The defendants and Ranjodh Singh received a further sum of Rs. 6 lakhs from him on 15.11.2001 and another sum of Rs.6 lakhs vide agreement dated 7.1.2002. As per agreement dated 7.1.2002, he was given liberty to get the sale deed executed and registered in his favour at any point of time, as the total sale consideration had already been received by the defendants and Ranjodh Singh. Ranjodh Singh got the sale deed executed in favour of the plaintiff on 25.1.2002 and as such suit has not been filed against them. He had always ready and willing to perform his part of the contract. On the date fixed, he remained present in the office of Sub Registrar Gurdaspur, ready with the balance sale consideration etc and got his presence marked. The defendants did not turn up. He also served a legal notice dated 20.3.2002 upon them, but they did not fulfill the terms of the agreement. He has already been having possession of the land in dispute, which was delievered to him at the time of the execution of the agreement. The suit was contested by the defendants. In their written statement they admitted that they along with Ranjodh Singh had executed the agreement dated 28.2.2000 to sell the suit land in favour of the plaintiff. They denied every contention made in the plaint and pleaded that the agreement dated 7.1.2002 is forged and fabribcated and is not legally admissible. In fact the plaintiff failed to arrange for the balance sale consideration up to 31.8.2000 and had asked for more time and during that period, he had been creating the evidence regarding his readiness and willingness in connivance with Prem Nath, deed writer who is his close S.A. No.23 of 2009 (O&M) -3- relative and he mananged to fabricate the agreement dated 7.1.2000 in order to give authenticity and credence in order to help the plaintiff. The plaintiff was able to win over Ranjodh Singh and get the sale deed executed regarding six marlas of land. They also pleaded that defendant No.1 had purchased 1 Kanal 5 Marlas of land comprised in Rect. No. 45, Killa No. 14/1 from Varinder Kumar and others, which was 35/183th share of the total land. Similarly Chanchala Rani purchased 29/35th share and Ranjodh Singh purchased 6/35th share. The mutations were sanctioned in their names accordingly. Thus defendant No.1 became exclusive owner of 1 Kanal 5 Marlas, Chanchala Rani became exclusive owner of 1 Kanal 9 marlas and Ranjodh Singh became exclusive owner of 6 Marlas of land and all those plots have different identity. Various issues were framed by the trial Court and both the parties produced their respective evidence. After going through the evidence and hearing their counsel the learned trial Court decreed the suit of the plaintiff for specific performance of the agreement. The defendants preferred an appeal, which was allowed by the First Appellate Court and their suit was remanded back to the trial Court for deciding the same with the aforesaid directions mentioned therein. The relevant part of the judgment of the First Appellate Court, which incurres the said direction, is reproduced below for appropriate appreciation of the matter:- "13. Both the learned Counsel have referred various aspects regarding financial status of Plaintiff and non-execution of sale deed by Defendants. The perusal of file shows that S.A. No.23 of 2009 (O&M) -4- originally Varinder Kumar (son) Anju Bala and Geeta (Daughters) and Shanta (widow) of one Onkar Nath were the owners of land measuring 9 Kanals 3 Marlas comprising Killa No. 45//14. The legal heirs of Onkar Nath namely; Varinder Kumar etc. referred above sold 1 Kanal 5 Marlas of land in favour of Yub Raj Singh of Killa No. 45//(9-3), with specific boundaries i.e. East – owners ( Varinder Kumar etc), West – Government land, North – land owners and South – Hardochhani Road. This plot measures 90 X 76 feet. The side on Hardochani Road is 76 feet. Since Varinder Kumar etc., were absolute owners, they could sell specific portion out of Killa No. 45//14 (9- 3). In this matter, plot of Yub Raj Singh is a specific plot at the spot. Thereafter, vide said deed Ex.D.1 Varinder Kumar (son) and Shanta (widow) of Onkar Nath sold their share measuring 1 Kanal 15 Marlas in favour of Chanchla Rani 29/35 share and Ranjodh Singh 6/35 share. Vide this sale deed Varinder Kumar and Shanta Devi have sold their shares and not specific portion in Killa No.45//14. After sale of 1 Kanal 5 Marlas of land in favour of Yub Raj Singh, the remaining area of Killa No. 45//14 comes to 7 Kanals 18 Marlas. From sale deed Ex.D.1. it is clear that Chanchla Rani and Ranjodh Singh were co-sharers in remaining land measuring 7 Kanals 18 Marlas comprising Killa No.45//14. Varinder Nath and Shanta could not sell specific portion as Anju Bala and Geeta did not join them to execute sale deed in favour of Chanchla Rani and Ranjodh Singh. In this S.A. No.23 of 2009 (O&M) -5- manner, Ranjodh Singh was owner of 6 Marlas in land measuring 7 Kanal 18 Marlas. Later on, Ranjodh Singh executed a sale deed on 25.1.2002 in favour of Anil Kumar Plaintiff and copy of the sale deed is Ex. P.3 on the file. Original sale deed is Ex.P.8. As per sale deed Ex.P.8 Ranjodh Singh sold 6/158 share in favour of Anil Kumar Plaintiff out of Killa No. 45///14/2 (7-8), Ranjodh Singh could definitely sell his share of 6 Marlas but not specific portion as his plot of 6 Marlas was not defined in the remaining land after sale to Yub Raj Singh. Instead of selling share, Ranjodh Singh sold 6 Marlas of land with specific boundaries, East : Mussa Masih 16 ½ feet, West :- Thana Sadar Gurdaspur 16 ½ feet, North : Land owners and other co-shares 100 feet and South :- Hardochani Road 100 feet. In this manner, Ranjodh Singh sold specific portion including specific portion owned by Yub Raj Singh. Ranjodh Singh has also sold 16 ½ x 76 feet owned by Yub Raj Singh which he also could not do and this sale deed has created a confusion. As Ranjodh Singh has executed a sale deed of specific portion which he could not do as well the property exclusively owned by Yub Raj Singh which he could not do. All these aspects have escaped the attention of the ld. Lower Court and in this manner the learned Lower Court fell into an error by decreeing the suit of the Plaintiff in toto despite the fact that share of Ranjodh Singh has not been demarcated and similarly share of Chanchla Rani, defendant, has also not been established on the file as no partition between other co-sharers S.A. No.23 of 2009 (O&M) -6- has yet taken place. Therefore, the judgment and decree of the learned Trial Court is set aside with a direction to decided\ the case afresh keeping in view the above observations." It was no parties case before the trial Court that there was any such dispute about the identity of the property in support of which agreement to sell was executed. The defendants have admitted the execution of the first agreement to sell by them and by Ranjodh Singh, which is dated 28.2.2000. However, they are challenging the other agreement dated 7.1.2002, but they have no dispute regarding description of the property given therein. The finding so recorded by the first Appellate Court in para No.13 cannot be sustained in view of the fact that there were no such pleadings of the parties nor any question to that effect was to be determined. It appears that in order to remand the suit the first Appellate Court on its own made out a case which practice cannot be appreciated. In all fairness it was bound to decide all the issues and thereafter either to affirm or set aside the decree of the trial Court. Even it was to conclude that there was such mis-discription of the property or some dispute about the demarcation and identification of the property. This order of the first Appellate Court cannot be sustained. Accordingly, the appeal is hereby accepted. The judgment and decree dated 24.4.2009 passed by the First Appellate Court is set aside and the appeal is remanded back for deciding the same on merits. The parties are directed to appear before that Court on. 2.12.2010. October 1, 2010 (Gurdev Singh) tripti Judge