ESA No.3 of 2009 -1 - IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH ESA No.3 of 2009 Date of decision : 29.4.2009 Pardeep Kumar and others ..Appellants. Vs. Sita Ram and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.Kulbhushan Sharma, Advocate for the appellants. Mr.Mukesh Kumar Mittal, Advocate for the respondents. RAKESH KUMAR JAIN, J. This appeal is directed against order dated 10.9.2007 passed by Additional Civil Judge (Sr.Divn.) Rewari and order dated 23.1.2009 passed by Additional District Judge, Rewari, whereby the Objections filed by the appellants dated 21.12.2005 have been dismissed. Briefly stated, the facts of the case are that Kishan Chand (Judgment Debtor) entered into an agreement to sell dated 30.9.1966 with Sita Ram (Decree Holder) in respect of a double storeyed shop situated in Gokal Bazar, Rewari bearing Municipal Nos.2067 to 2072 and 1908 & 1909 (for short 'the property in dispute'), for a consideration of Rs.55,000/. The subject matter of an agreement to sell was purchased by Kishan Chand from the Rehabilitation Department in an open auction in the year 1957. When the agreement to sell dated 30.9.1966 was executed, the sale certificate was not yet issued which was eventually issued on 29.3.1978. The sale ESA No.3 of 2009 -2 - consideration of Rs.55,000/- was paid by Sita Ram to Kishan Chand at the time of execution of agreement and in part performance of the agreement to sell, he (Kishan Chand) delivered possession of the aforesaid two shops bearing Nos.2067 and 2072 to Sita Ram with a right to receive rent from the remaining shops. The amount of Rs.55,000/- paid in consideration of the sale, was also shown to have been utilised by Kishan Chand which is as under : (a) Rs.23,500/- was to be paid by Kishan Chand to Lala Sri Ram son of Durga Parsad Mahajan, resident of Rewari, (b) Rs.11,000/- was to be paid to Daulat Ram son of Parma Nand r/o Rewari as security. The amount was remitted vide receipt dated 17.7.1978 to Aruna Devi daughter of Daulat Ram. (c) An amount of Rs.15644.25 was paid to Shiv Sahai son of Tej Ram vide receipt dated 6.2.1967 and (d) A sum of Rs.4500/- was paid in cash to Kishan Chand which was the balance amount. When Kishan Chand failed to execute the sale deed despite issuance of sale certificate by the department on 29.3.1978, Sita Ram issued a legal notice dated 7.3.1981 alleging that despite receiving the entire sale consideration, he has failed to perform his part of the contract. It was also alleged that Shop No.2071 was sold to Subhash Chander s/o Hukam Chand vide registered sale deed dated 5.3.1981, shop No.2072 was sold to Anand Kumar, minor son of Hukam Chand while shop No.2070 was sold to Dr.Ramjas. The non-performance of the agreement to sell by Kishan Chand including Subhash Chander, Anand Kumar and Dr.Ramjas led to filing of Civil Suit No.734 on 12.3.1981. The trial Court dismissed the suit but appeal filed by Sita Ram was allowed by first Appellate Court. Kishan Chand then filed RSA No.727 of 1991 which was dismissed by this Court ESA No.3 of 2009 -3 - on 10.8.2004 and Special Leave to Appeal (Civil) No.4250 of 2005 filed by Kishan Chand was dismissed by the Apex Court on 7.3.2005. Kishan Chand then filed a Review Petition No.(C) No.886 of 2005 in the aforesaid Special leave petition, which was dismissed on 3.5.2005. Thus, the decree passed by the first Appellate court in respect of the property in dispute in favour of Sita Ram attained finality upto the Apex Court. When Sita Ram filed execution of the said decree, the present appellants, who are the sons of Kishan Chand, filed Objections dated 21.12.2005, inter alia, alleging that the property in dispute was purchased from the funds of ancestral/Joint Hindu Family Property and each Objector had 1/6th share as a co-parcener. The agreement to sell dated 30.9.1966 was not enforceable qua their share as the property is not being sold for the benefit of their family and is without any legal necessity. The Objections were contested by Sita Ram and a reply thereto was filed on 11.3.2006. The learned Additional Civil Judge (Sr.Divn.), Rewari dismissed the Objections vide his order dated 10.9.2007 and the appeal filed by the appellants was also dismissed by the learned Additional District Judge, Rewari vide his order dated 23.1.2009. Sh.Kulbhushan Sharma, learned counsel appearing on behalf of the appellants has vehemently contended that the property in dispute was ancestral and appellants being co-parceners had 1/6th share in the property which could not have been sold by Kishan Chand without legal necessity. He further contended that the learned Courts below should not have dismissed the Objections without framing appropriate issues. As against this, Sh.Mukesh Kumar Mittal, learned counsel appearing on behalf of the respondents, contends that all the properties are presumed to be non ancestral until and unless proved to be ancestral. The ESA No.3 of 2009 -4 - property in dispute was purchased by Kishan Chand by arranging funds from different sources which is specifically mentioned in the agreement dated 30.9.1966. It is further argued that both the brothers Dharam Chand and Kishan Chand migrated from Pakistan in the year 1947 and the property in dispute was purchased in the year 1957 in an open auction by Kishan Chand alone. During the course of arguments, learned counsel for the respondents also drew the attention of the Court to the agreement to sell in which Kishan Chand has specifically mentioned that he had purchased the property in dispute in an auction for which he has paid Rs.11,360/- which was received by him towards his claim and rest of the amount was arranged by him from different sources. Learned counsel for the respondents, thus, argued that the property in dispute was self acquired property of Kishan Chand which was not questioned even upto the Supreme Court by Kishan Chand or even by his sons that the property in dispute was a co-parcenery property. It has also been argued that the co-parcener under the Mitakshara Law, can challenge the sale subsequent to its completion and cannot obstruct its execution. I have given my thoughtful consideration to the contentions raised by both the learned counsel for the parties. There is no dispute that Kishan Chand entered into an agreement to sell with Sita Ram on 30.9.1966 and had put him in possession in a part of the property in dispute after receiving the entire sale consideration towards part performance of the agreement to sell. Out of the suit property i.e. two shops bearing Nos.2067 and 2072 as well as construction on first floor marked by portions LMNOPQ and UVWX are in ESA No.3 of 2009 -5 - possession of Sita Ram. The execution has been filed for actual physical possession of the remaining suit property by execution of the sale deed. It is also undisputed that the suit for specific performance filed by Sita Ram against Kishan Chand was dismissed by the trial Court but the appeal filed thereof was allowed by the first Appellate Court and RSA No.727 of 1991 titled as Kishan Chand Vs. Sita Ram etc. was dismissed by the High Court and the SLP (Civil) No.4250 of 2005 and a Review Petition No.(C) No.886 of 2005 filed therein was dismissed by the Apex Court. Thus, the present Objections which have been filed by the sons of Kishan Chand to the effect that the property in dispute was purchased from the funds collected through sale of ancestral/Joint Hindu Family Property is not even reflected from the agreement to sell which has been found to be legally and validly executed by Kishan Chand upto the Supreme Court in which not only he has disclosed that a sum of Rs.55,000/- was arranged by him from the claim of his property and rest of the amount was raised as a loan from different sources. He also categorically mentioned the legal necessity for sale of the property as the amount received through sale was to be paid to the persons in following manner: (a) Rs.23,500/- was to be paid by Kishan Chand to Lala Sri Ram son of Durga Parsad Mahajan, resident of Rewari, (b) Rs.11,000/- was to be paid to Daulat Ram son of Parma Nand r/o Rewari as security. The amount was remitted vide receipt dated 17.7.1978 to Aruna Devi daughter of Daulat Ram. (c) An amount of Rs.15644.25 was paid to Shiv Sahai son of Tej Ram vide receipt dated 6.2.1967 and (d) A sum of Rs.4500/- was paid in cash to Kishan Chand which was the balance amount. Moreover, the question of validity of the agreement to sell was ESA No.3 of 2009 -6 - debated repeatedly in the Courts till it attained finality in the year 2005 but at no stage, either Kishan Chand or his sons alleged that the property in dispute is ancestral and Kishan Chand had no right to sell the same but for legal necessity as a Karta. Thus, in my view, the Objections filed by the appellants are frivolous and motivated in order to stall the execution of the decree which is based upon an agreement which came into being for more than 4 decades back and became a bone of contention between the parties up to the Apex Court. Insofar as framing of issues are concerned, once it is found that Objections are frivolous and vexatious, no issues are required to be framed. Thus, in view of my above discussion, I do not find any merit in the present appeal and the same is hereby dismissed. The parties shall however, bear their own costs. (RAKESH KUMAR JAIN) 29.4.2009 JUDGE Meenu