[2017] l l S.C.R. 253

SURESH KUMAR THROUGH GPA

ANIL KAKARIA & ORS.

(Civil Appeal No. 4383 of2009)

NOVEMBER 06, 2017

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Tra11sfer of Property - Agreement to sell - 011 facts. original al/ottee entered i1110 an agreement to sell the land w the appellant -

Hoiveve1; on the death of the allottee. his legal heirs-respondent nos.I to 3 sold the land to respondent No.4 - Suit for declaration

by' appellant against respondents that the transfer made by respondent nos. I to 3 in j{1vo11r <!/. respo11dent no.4 null and void a11d respondents be restrai11ed from inte1fering with appellant:~ possession over the suit land, and ji>r issuance of ma11datory

injunction agai11st respo11dent nos. I to 3 directing them to tra11sfer D the suit land in j{1vour of appellant - Suit filed on basis of the agreement and Will allegedly executed by origi11al al/ottee in appellant "sfC1vo11r-Dis111issal of the suil by the /rial co11r1 -Dismissal offirsi appeal as also second appeal - On appeal. held: Appel/ant:~ suit is wholly misconceived and rightly dismissed by the courts below

- Concurrent findings offa, ct recorded by the courts based on apprecialion of evidence. 1/111s, binding on !his Courl - Findings neither j(m11d to be perverse nor against the evidence. against the pleadings or against any provision of law - Appel/ant had no prima fi1cie case in his j(1vour to file a suit nor he had even any locus to file the suit since the agreemenl as also the Will was not held proved

- Proper remedy of the appel/ant was to file suit for specific pe1formance of the agreement in relation lo !he suit land against respondent nos. I to 3 wilhin the stipulaled time - Also S11i1 was barred by limittllion - Code of Civil Procedure. 1908 - s. l 00 - Second appeal - Limitation - Remedy.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4383 of2009.

From the .final Judgment and Order dated 02.05.2008 passed by the High Court of Punjab and Haryana at Chandigarh in RSA No.1522 of2006.

A Jaidcep Gupta, Sr. Adv., Himanshu Gupta, Shivaji M. Jadhav, Advs.

for the Appellant.

San jay KumarVisen, S.S. Shamshery.Alok Kumar, Amit Sharma, Ankit Raj. Sandeep Singh, R. C. Kohli, Saurabh Shamshori, Ms. Maanisha Agrawal. B. K. Satija, Advs. for the Respondents.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. I. This appeal is filed by the plaintiff against the judgment and order dated 02.05.2006 passed by the High Court of Punjab and Haryana at Chandigarh in R.S.A. No. 1522 of 2006 whereby the High Court dismissed the second appeal filed by the C ; tppellant herein and affirmed the judgment and decree dated 21. I 0.2005 passed by the Additional District J udgc, Panchkula in C.A. No.20 of 2005.

2. The appellant is the plaintiff whereas the respondents arc the defendants in the civil suit out of which this appeal arises.

3. The dispute in this appeal relates to plot No.28. measuring 114" acre in Industrial Area Phase-I Urban Estate, Panchkula(hereinafter referred to as ''the suit land").

4. Haryana Urban Development Authority (hereinafter referred to as "HUDA") had allotted the suit land to one Shri Vcd Prakash Kakaria in the year 1973. Thereatler Shri Ved Prakash Kakaria, on 24.04.1980, entered into an agreement with the appellant to sell the suit land to him on certain terms and conditions.

5. On 05.02.1985. Shri Ved Prakash Kakaria expired. leaving behind two sons and one daughter (respondentNos. 1 to 3) as his legal heirs. Respondent Nos.I to 3 however, sold the suit land to respondent No.4.

6. On I 0.10.1992. the appellant filed a suit against the respondents for a declaration that the transfer made by respondent Nos. I to 3 in favour of respondent No.4 is null and void and not binding on the appellant, G that the respondents be restrained from interfering in appellant's possession over the suit land as he claimed to be in possession of the suit land, and lastly. for issuance of mandatory injunction against respondent Nos. I to 3 directing them to transfer the suit land in favour of appellant.

SURESH KUMAR THROUGH GPA v. ANIL KAKARIA & ORS. 255

[ABHAY MANOHAR SAPRE. J.]

7. The suit was essentially based on an agreement dated A 24.04.1980 and the Will alleged to have been executed by late Shri Ved Prakash Kakaria in his favour for claiming the aforementioned reliefs against the respondents.

8. The respondents filed their respective written statements and denied the plaintiff's claim. The respondents denied the agreement dated B 24.04.1980 and also denied the execution of alleged Will said to have been executed by Vcd Prakash Kakaria in favour of the plaintiff. The respondents defended the sale of the suit land made by respondent Nos.I to 3 in favour of respondent No.4 for valuable consideration and contended that respondent No.4 was put in its actual possession and has also set up their factory over the suit land and running the same. c

9. The Trial Court framed the issues and the parties adduced their evidence. The Trial Court, by its judgment and decree d:ited 22.01.2005, dismissed the suit. It was held that the appellant (plaintiff) failed to prove the agreement dated 24.04.1980, that the Will was also not proved, that respondent Nos. I to 3 being the owner of the suit land rightly sold D the suit land to respondent No. 4 for consideration, and lastly, that respondent No.4 was in possession of the suit land and has set up their factory over the suit land.

I 0. Felt aggrieved, the appellant filed first appeal before the Additional District Judge, Panchkula. By j udgment/decrce , dated 21.10.2005, the First Appellate CoUit dismissed the appeal and upheld the judgment/decree of the Trial Court. Felt aggrieved, the appellant pursued the matter in second appeal before the High Court. The High Court, by impugned judgment, dismissed the second appeal holding that the concurrent findings of two Courts below are binding on the High Court and that the appeal does not involve any substantial question of law under Section l 00 of Code of Civil Procedure. It is against this judgment of the High Court, the appellant (plaintiff) felt aggrieved and

filed this appeal by special leave before this Court.

11. Heard Mr. Jaidcep Gupta, learned senior counsel for the appellant and Mr. Sanjay Kumar Viscn, learned counsel for the respondents.

12. Having heard the learned counsel for the patties and on perusal of the record of the case including written submissions, we find no merit in the appeal.

13. In our considered view, the three Courts below have nghtly rendered the aforementioned findings in favour of the respondents and we find no difiiculty in concurring with the findings which, in our view, do not call for any interference by this Court.

14. In our considered opinion. the findings recorded by the three Courts on facts, which are based on appreciation of evidence undertaken by the three Courts, arc essentially in the nature of concurrent findings of fact and. therefore, such findings arc binding on this Court. Indeed. such findings were equally binding on the High Court while hearing the second appeal and it was rightly held by the High Court also.

15. It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found lo be against the evidence, nor against the pleadings and lastly, nor against any provision oflaw.

16. Ewn apart from what is held above, we arc of the considered opinion that the appellant's suit is wholly misconceived and was, therefore, rightly dismissed by the three Courts below. We concur with the reasoning of the Courts below and also add the following three reasons in addition to what is held by the Courts below.

17. In the first place, the appellant had no title to the suit land. All that he had claimed to possess in relation to the suit land was an agreement dated 24.04.1980 to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as mentioned above, failed to prove the agreement. In this view of the matter. the appellant had no prima facie case in his favour to file a suit nor he had even any locus to file the suit in relation to the suit land once the agreement was held not proved.

18. Second, the proper remedy of the appellant in this case was to file a civil suit against respondent Nos.I to 3 to claim specific performance of the agreement in question in relation to the suit land and such suit should have been filed immediately after execution of agreement in the year 1980 or/and within three years from the date of execution. It was. however. not done. The suit was, however. filed by the appellant almost after 12 years from the dak of agreement and that too it was for declaration and mandatory injunction but not for specific performance of agreement. It was, in our opinion. a misconceived suit and was. therefore, rightly dismissed.

SURESH KUMAR THROUGH GPA v. ANIL KAKARIA & ORS.

[ABHAY MANOHAR SAPRE, J.]

19. Third, the suit was otherwise hopelessly barred by limitation because, as mentioned above, the <late of agreement is 24.04.1980 whereas the suit was filed on l 0.10.1992. There is nothing to show that the agreement was to be kept alive for such a long time. It is apart from the fi1ct that the alleged agreement itself was not held proved and, therefore, no suit for claiming any relief in relation to the suit land could be filed by the appellant. Even the Will was rightly held not proved by the Courts below and we arc inclined to uphold the finding on this issue too. Indeed when the deceased has two sons and one daughter (respondent Nos.1-3), why should he execute a Will in appellant's favour, who was not related to him.

20. We are, therefore, of the view that keeping in view the concurrent findings of three Courts below, which were rendered against the appellant (plaintiff) coupled with our three reasonings mentioned supra, the appeal has no merit.

21. ln viewofforegoing discussion, we find no merit in this appeal.

The appeal thus fails and is accordingly dismissed.

NiJhi Jain Appeal dismissed.