RSA No. 3576 of 2006(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3576 of 2006(O&M) Date of Decision: May 18, 2010 Smt. Manjit Kaur and another ...... Appellants Versus S.Charan Singh ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.I.K.Mehta, Senior Advocate with Mr. M.S.Kohli, Advocate for the appellants Ms.Gaganpreet Kaur, Advocate for the respondent. **** 1. Whether Reporters of local papers 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? Ajay Tewari, J. This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the respondent for specific performance o an agreement to sell dated 7.3.94. The date fixed for execution of the sale deed was 7.7.94. On 5.7.94 one Jasbir singh filed a suit against the appellants as well as the respondent praying for an injunction restraining the appellants from executing the sale deed in favour of the respondent. On 11.11.94 the respondent filed the instant suit for specific performance. On 13.2.95 the appellants executed sale deed of the land in dispute in favour of aforesaid Jasbir Singh. On 30.10.95 the appellants filed written statement RSA No. 3576 of 2006(O&M) 2 wherein they took the plea that they had already sold the property in dispute in favour of Jasbir Singh and that consequently they were left with no interest in the property and further that Jasbir Singh was a necessary and proper party. Thereafter the respondent also filed an application for impleading Jasbir Singh. The Courts below, however, without deciding that application held that the transaction between the appellants and Jasbir singh was a fabricated transaction and had been entered into only to defeat the rights of the respondent. They further held that the sale deed dated 13.2.95 (said to have been secretly executed by the appellants in Delhi instead of Amritsar where the property was situated) was hit by the doctrine of lis pendens. A further pointer towards the collusion of the appellants with Jasbir Singh was the fact that the earlier suit for injunction (dated 5.7.94 supra) was filed through Sh. Satnam singh, Advocate and in the present suit initially the same Sh. Satnam Singh, Advocate appeared for the appellants. It was in view of these factual findings that the Courts below have decreed the suit. The appellants have also filed an application under Order 41 Rule 27 CPC to place on record additional evidence in the form of photostat copies of the pleadings in two civil suits which were subsequently filed by the respondent against aforesaid Jasbir Singh challenging the mutation in his favour on the ground that they are subsequent events and would be utilised for strengthening the argument that Jasbir Singh was a necessary party. The following questions have been proposed:- A) Whether the learned lower Courts proceeded against the record and made observations on the basis of personal knowledge, outside the pleadings. The collusion between the defendants and said Jasbir Singh stands proved on the record? RSA No. 3576 of 2006(O&M) 3 B) Whether the learned lower Courts were in error in proceeding to set aside registered sale deed executed in favour of Jasbir Singh without impleading him as a party or a prayer regarding the same having been made in the suit filed by the plaintiff-respondent? It would be seen that that question No. (A) proposed is a pure question of fact. Apart from that once the respondent has placed on record the earlier suit filed by Jasbir Singh in which Sh.Satnam Singh was the counsel for Jasbir Singh and the power of attorney executed by the appellants in favour of Sh.Satnam Singh in the present case it cannot be said that the findings in this regard are against the record. Once the finding of fact regarding collusion between Jasbir Singh and the present appellants is accepted the non-impleadment of Jasbir Singh would not be fatal and it will have to be held that the sale deed in favour of Jasbir Singh would be hit by the doctrine of lis pendens. Learned Senior Advocate has further argued that in para 8 of the plaint the respondent categorically mentioned about the intended transaction between the appellants and Jasbir Singh and this would by itself prove that Jasbir Singh was a necessary party. Para 8 of the plaint is in the following terms:- “That instead of performing their part of the agreement and to execute the sale deed in favour of the plaintiff, the defendants got instituted against them as well as against the plaintiff one suit for permanent injunction from one Jasbir Singh son of S. Surjit Singh, resident of 21, Basant Avenue, Jail Road, Amritsar which is the collusive suit and sought ad interim injunction by mis-representation of facts and law. Whereas, the defendants have not executed any agreement of sale in favour of said Jasbir Singh son of S.Surjit Singh, resident of 21, Basant Avenue, Jail Road, Amritsar and the alleged agreement in favour of said Jasbir Singh is a forged, fabricated and bogus RSA No. 3576 of 2006(O&M) 4 document and the same has been created by the defendants in connivance with said Jasbir Singh s/o Surjit Singh to dislodge the claim of the plaintiff. The plaintiff is not bound by any such alleged agreement dated 23.2.94.” It would be seen that the allegation of the respondent in the plaint also was that in the present scenario Jasbir Singh was a bogus creation of the appellants, which is not to say that there was no such person as Jasbir Singh, but only that he had been brought in for the express purpose of defeating the claim of the respondent by creating an ante dated agreement to sell in his favour by getting a suit filed by him. In view of this finding, apart from other reasons, the application for additional evidence also has to be dismissed since the said evidence even if allowed to be taken on record would have no material bearing on the case. Consequently holding all the questions proposed against the appellant, this appeal is dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE May 18, 2010 sunita