R.S.A. No. 2020 of 1989 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.S.A. No. 2020 of 1989 (O&M)
Date of Decision : 2.2.2009
Shiv Singh & others
.......... Appellant
Versus
Lakha Singh & another
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. J.K. Sibal, Sr. Advocate with
Mr. Sapan Dhir, Advocate
for the appellants.
Mr. R.C. Setia, Sr. Advocate with
Mr. Anish Setia, Advocate
for respondent No.1.
****
VINOD K. SHARMA, J.
C.M. No. 1527-C of 2009
This is an application under Order 22 Rule 3 read with Section
151 C.P.C. for impleading the legal representatives of appellant No.1 i.e.
Shiv Singh, who is stated to have died during the pendency of this appeal.
It is pleaded in the application that by way of registered Will
dated 11.5.1999 the entire holding of late Sh. Shiv Singh stands bequeathed
to his wife Jaswinder Kaur and his son Parminder Singh. It is further the
case that son of appellant No.1 has died leaving behind his wife namely
Sarbjit Kaur and minor son namely Gurpreet Singh.
In view of the averments made in the application Smt.
R.S.A. No. 2020 of 1989 2
Jaswinder Kaur widow of deceased son of late Sh. Shiv Singh and Gurpreet
Singh minor son through his mother Smt. Sarbjit Kaur are ordered to be
brought on record as the legal representatives of deceased appellant No.1,
subject to all just exceptions.
The office is directed to carry out necessary correction in the
memo of parties.
R.S.A. No. 2020 of 1989
By way of this regular second appeal the defendants-appellant
have challenged the judgment and decree dated 18.7.1999 passed by the
learned lower appellate Court vide which suit filed by the plaintiffs-
respondent for specific performance of agreement stands decreed.
Plaintiff-respondent filed a suit for specific performance of the
contract dated 31.7.1981 entered into by defendant No.1. It was also
pleaded that the defendants be directed to perform the agreement and to do
all acts necessary to put the plaintiff in possession of the suit land in
performance of the said agreement to sell as owner thereof on payment of
Rs. 5625/-.
The case set up by the plaintiff was that Bakshish Singh
defendant No.1 was owner of the land in dispute and had agreed to sell the
suit land to plaintiff / respondent @ Rs. 10,000/- per killa vide agreement
dated 31.7.1981. The sale deed was agreed to be executed on or before
31.7.1984. A sum of Rs. 10,000/- was paid to Bakshish Singh defendant
No.1 at the time of execution of the agreement as earnest money. It was
pleaded that another sum of Rs. 38,500/- was entrusted with the plaintiff as
mortgage money to be paid by him to the mortgagees for redemption of suit
R.S.A. No. 2020 of 1989 3
land and the balance was agreed to be paid to the vendor at the time of
registration of sale deed.
The plaintiff-respondent No.1 claimed that he was always ready
and willing to perform his part of contract but the vendor Bakshish Singh
committed breach of contract of agreement by selling the land to defendants
No. 2 to 5 i.e. the appellants without consideration. It was claimed that
defendants No. 2 to 5 i.e. the appellants were in the know of existence of the
agreement dated 31.7.1981 executed in favour of the plaintiff and in spite of
knowledge they purchased the land in dispute without consideration and
with mala fide intention. In the alternative the plaintiff claimed a decree for
Rs. 20,000/- i.e. Rs. 10,000/- as damages and Rs. 10,000/- by way of return
of earnest money.
On notice, defendant No.1 admitted having executed the
agreement in favour of plaintiff but denied having committed the breach of
contract. The stand taken was that he had to sell the land in dispute to the
appellants because the plaintiff had no money with him and at the time of
sale he had informed the appellants about the existence of agreement with
the plaintiff. However, he denied having committed the breach of contract
and also denied his liability to pay damages to the tune of Rs. 10,000/-.
The appellant / defendants No. 2 to 5 filed written statement
claiming themselves to be bona fide purchaser for consideration without
notice of agreement to sell. It was further pleaded that Bakshish Singh
defendant No.1 had entered into an agreement to sell land measuring 8
Kanals out of Khasra No. 36R/20 to Parkash Kaur wife of Bahadur Singh
(mother of defendants No. 3 to 5) and the sale deed was agreed to be
R.S.A. No. 2020 of 1989 4
executed on or before 21.11.1983. It was claimed that the land was in
possession of Bahadur Singh, father of defendants No. 3 to 5 as mortgagee
of defendant No.1. It was claimed that agreement in favour of plaintiff
executed by Bakshish Singh was ante-dated and the same was in collusion
with the scribe and attesting witnesses. The agreement to sell between
plaintiff and defendant No.1 was said to be bogus transaction and fictitious
document. It was denied that defendant No.1 agreed to sell land to plaintiff
as claimed. The other preliminary objections were also taken.
In replication, the plaintiff reiterated his stand taken in the
plaint and denied the averments made in the written statement.
On the pleadings of the parties, the learned trial Court framed
the following issues :-
1. Whether defendant No.1 executed the alleged
agreement validly in favour of the plaintiff ? OPP
2. If issue No.1 is proved whether the agreement is
ante-dated fictitious, forged and invalid as alleged
by defendants No. 2 to 5 ? OPD
3. Whether the plaintiff has been ready and willing
to perform his part of contract ? OPP
4. Whether the plaintiff is entitled to the specific
performance of the contract or in the alternative
damages. If so how much and against whom ?
OPP
5. Whether the suit is bad for non-joinder of
necessary parties ? OPD
5-A. Whether defendants No. 2 to 5 are bona fide
purchasers for value and without notice ?OPD
6. Relief.”
R.S.A. No. 2020 of 1989 5
Though, the plaintiff led evidence in proof of execution of the
agreement and receipt of earnest money, the stand taken by the appellant-
defendants was that the execution of the agreement was not within their
knowledge and thus claimed that they were bona fide purchasers for
consideration vide sale deed Ex. D-1 to Ex. D-3.
On appreciation of evidence on record the learned trial Court
was pleased to hold that the agreement Ex.P1 was not a valid document and
was outcome of collusion between plaintiff and defendant No.1, therefore,
deserved to be discarded. The grounds for discarding the document were :-
(i) Agreement Ex.-1 seems to have been prepared with the
connivance with the plaintiff, defendant No.1, scribe and
the attesting witnesses. Baldev Raj (PW-1) was scribe of
the agreement but he failed to produce the scribe
register on the ground that the same was lost under the
debris of a room of his house which collapsed on
account of storm in the village. In his cross-examination
stand was taken that his room fell down on 1.5.1985 i.e.
the date before deposing in Court. He also showed his
inability to trace the said record from the debris.
However, the stand taken by Baldev Raj stood falsified
by the report of the Local Commissioner Ex. D-1,
wherein it was specifically mentioned that no portion of
the house of the scribe had fallen down on account of
storm. He also did not find any debris stated by the
scribe PW-1. The stand was held to be falsified in view of
the report given by the Local Commissioner, Shri
R.S.Walia, Advocate.
(ii) The attesting witnesses were said to be inimical towards
defendants No. 2 to 5. It was further observed that PW-2
Karam Singh admitted in his cross-examination that
R.S.A. No. 2020 of 1989 6Bhajan Kaur is the widow of his brother Karnail Singh.
Although it was denied by him that Bhajan Kaur was
kidnapped by Amrik Singh. However, he could not deny
photograph mark A. It was also observed by the learned
trial Court that the cross-examination of PW-2 showed
that he usually attested documents executed by the
plaintiff or his family members. He was also witness to
the sale deed executed by Bakshish Singh, who is father
of Lakha Singh plaintiff. The other attesting witnesse
Rajbir Singh was also said to be inimical towards
defendants No. 2 to 5. He also having admitted in his
cross-examination that his deceased brother Ujagar
Singh was related to Lakha Singh plaintiff.
(iii) The agreement to sell Ex.P-1 was not executed on stamp
paper but on plain paper and no reasons were given as
to why Ex.P-1 was not written on the stamp paper in
accordance with law.
(iv) The agreement Ex. P-1 was executed on 31.7.1981 and
sale deed was agreed to be executed on or before
30.7.1984. So, the total consideration of the land to be
sold was Rs. 55,000/-, out of which Rs. 38,500/- were
said to have been entrusted with plaintiff to be given to
the mortgagee of the land in dispute for redemption of
the suit land and only a sum of rs. 5600/- ws to be given
by the plaintiff to defendant No.1 at the time of execution
of the sale deed. The Court observed that in view of this
it was not understandable as to why period of three
years from the date of execution of agreement to sell was
fixed when only Rs. 5600/- were required to be paid.
Issue No.1 was decided against the plaintiff / respondent No.1
and in view of the findings on issue No.1, issue No.2 was also decided
against the plaintiff and in favour of the defendant-appellants.
R.S.A. No. 2020 of 1989 7
In view of findings on issues No.1 & 2, the learned trial Court
held that no finding on issue No.3 was required to be given as there was no
occasion for willingness of the plaintiff / respondent to perform his part of
contract.
However, on issue No.4, the learned trial Court was pleased to
hold that plaintiff would be entitled to recover a sum of Rs. 10,000/- as
advanced to defendant No.1 at the time of execution of agreement and
another sum of Rs. 10,000/- as damages. Therefore, a decree for a sum of
Rs. 20,000/- was passed in favour of Bakshish Singh plaintiff and against
defendant No.1.
Issue No.5 was not pressed.
The learned trial Court was pleased to hold that there was no
evidence on file to prove that defendant Nos.2 to 5 had knowledge of
existence of agreement Ex. P1 at the time of sale. The learned trial Court
further held that Ex.D-1 to Ex. D-3 i.e. the sale deeds produced on record
showed that the appellant-defendants No. 3 to 5 were bona fide purchasers
for consideration.
The learned trial Court dismissed the suit against the appellant-
defendants whereas decreed the suit for recovery of Rs. 20,000/- against
defendant No.1.
Plaintiff / respondent No.1 preferred an appeal.
The learned lower appellate Court has been pleased to reverse
the finding of the learned trial Court on issues No.1 & 2.
The learned lower appellate Court held that besides admission
by defendant No.1 Ex.P1 stood proved by examining the scribe and the
R.S.A. No. 2020 of 1989 8
attesting witness. The learned Court further held that non-production of the
register and the story put up by the scribe regarding storm and falling of
room was in fact on account of his connivance with appellant-defendants as
it was the defendants / appellants who were to gain on account of non-
production of the register and not the plaintiff. The Court held that non-
production of the register, therefore, could not adversely affect the
genuineness of the agreement.
The learned lower appellate Court was pleased to hold that
issue No.1 was rightly framed in view of the admission by defendant No.1
qua the execution of agreement Ex. P-1. However, the learned lower
appellate Court held that issue No.2 could not be dependent on issue No.1
and in fact was required to be decided separately.
It is also the finding of the learned lower appellate Court that
though agreement Ex.P-1 was on unstamped paper, the deficiency was made
good on the payment of penalty as envisaged under the Indian Stamps Act
and, therefore, was a valid document which could be read in evidence. In
order to reach to this conclusion the learned lower appellate Court held that
possibility be Baldev Raj not having the stamp paper at the time of writing
of agreement could not be ruled out.
It is also the finding by the learned lower appellate Court that
there was requirement in law that the agreement to sell should invariably be
written on stamp paper and its failure would result in rejection of the
agreement.
The learned lower appellate Court was also pleased to hold that
the attesting witnesses were wrongly held to inimical to defendants No. 2 to
R.S.A. No. 2020 of 1989 9
5 as there was no evidence in support of this finding.
It is also the finding by the learned lower appellate Court that
the delay in execution of the sale deed could not be a ground to suspect the
genuineness of Ex. P-1 as the land was admittedly under mortgage which
was required to be redeemed before handing over the possession to the
vendees.
The learned lower appellate Court was also pleased to hold that
the learned trial Court wrongly discarded the attesting witnesses merely
because of relationship. The Court further held that in absence of any
criminal litigation between plaintiff and defendant No.1 it could not be
believed that there was any collusion between the parties. The decree was
also ignored being a consent decree which was obtained by filing of the suit
which proved that defendant No.1 connived with other defendants and there
was no collusion between defendant No.1 and the plaintiff. The finding on
issue No.1 was, therefore, reversed and decided in favour of the plaintiff.
Issues No.2 to 5 were decided against defendants No. 2 to 5. It
was also held by the learned lower appellate Court that the learned trial
Court decided issue No.3 wrongly as the sale deed executed in favour of the
appellants was prior to the date fixed for the execution of sale deed and the
suit was filed by the plaintiff immediately on coming to know about the sale
deed. It is also the finding of the learned lower appellate Court that the
plaintiff was to pay only Rs. 5600/- for execution of the sale deed.
The learned lower appellate Court further pleased to hold that
defendant No. 1 chose not to appear in the witness box to deny the plea of
willingness of the plaintiff to perform his part of contract rather the stand
R.S.A. No. 2020 of 1989 10
was that he was in need of money and, therefore, had to sell the land to
defendants No. 2 to 5.
The learned lower appellate Court further pleased to hold that it
was pleaded case by defendant No.1 that the appellant / defendants were
informed at the time of execution of the sale about the agreement to sell
Ex.P-1. Thus, there was no necessity for the plaintiff to prove his
willingness to perform his part of contract as the date for execution of the
sale deed was yet to arrive.
The learned lower appellate Court held under issue No.3 that
the plaintiff was willing and always willing to perform his part of contract.
The learned lower appellate Court in view of the findings,
referred to above, held that there was no ground to refuse the specific
performance of agreement Ex.P-1.
It is important to know that the learned lower appellate Court
also held that Ex. D-1 to Ex. D-3 i.e. the sale deeds in favour of the
appellants were only for 27 Kanals of land, however, no reasons were given
by the learned trial Court to decline the specific performance of agreement
to sell qua the remaining land measuring 16 Kanal-6 Marlas in view of the
admission by defendant No.1 to Ex. P-1.
The learned lower appellate Court rejected the plea of the
appellant / defendants that they were bona fide purchaser for consideration
in view of the fact that there was no prior agreement of sale in favour of the
appellants i.e. defendants No. 2 to 5. In order to reverse the finding of the
learned trial Court that the appellants were bona fide purchaser for
consideration the learned lower appellate Court placed reliance on the
R.S.A. No. 2020 of 1989 11
statement of DW-5, as in his examination-in-chief he stated that appellants
were in know of agreement Ex.P-1 as there was admission in the cross-
examination that when the sale deed was scribed Bakshish Singh was told
that agreement to sell had been executed.
The learned lower appellate Court also held that the sale deed
Ex. D-1 was executed hurriedly. The learned lower appellate Court further
pleased to held that in view of the criminal litigation pending between the
plaintiff and defendant No.1 it could easily be presumed that the appellants
were in know of the agreement in favour of the plaintiff.
The finding on issue No.5-A was also reversed. The suit for
specific performance filed by the plaintiff / respondent was, thus, ordered to
be decreed.
Mr. J.K. Sibal, learned senior counsel appearing on behalf of
the appellants raised the following substantial questions of law for
consideration by this Court in this appeal :-
1. Whether the findings recorded by the learned lower
appellate Court are vitiated being based on irrelevant
material and ignoring of relevant material ?
2. Whether the findings by the learned lower appellate
Court are perverse being outcome of misreading of
evidence on record ?
In support of the substantial questions of law the learned senior
counsel appearing on behalf of the appellants contends that the learned
lower appellate Court completely misread the evidence brought on record
especially the fact that admittedly agreement Ex.P-1 was not on stamp paper
R.S.A. No. 2020 of 1989 12
though it was said to have been scribed by a regular scribe.
It is also the contention of the learned senior counsel for the
appellant that the agreement was said to have been scribed at the house of
the scribe and, therefore, it could not be said that the possibility of stamp
paper being not available could not be ruled out is thus prima facie perverse.
The learned senior counsel appearing on behalf of the appellant also
contends that the learned trial Court wrongly held that the scribe had
connived with the appellants though he appeared as witness of the plaintiff
to prove the execution of the agreement Ex.P-1. It was for the plaintiff /
respondent to have proved the due execution of the agreement Ex.P-1 to
displace the plea of bona fide purchase for consideration as the plaintiff to
stand on his own legs and the learned trial Court was right in drawing
adverse inference for not producing a register by raising false plea which
was found to be false by positive evidence brought on record.
It is also the contention of the learned senior counsel for the
appellant that the attesting witnesses being relative were rightly not believed
by the learned trial Court. The contention of the learned senior counsel is
that even if for the sake of argument the enmity is found to be not proved
still the attesting witnesses being close relative coupled with the fact that
the agreement was on a plain paper the finding by the learned trial Court,
therefore, could not have been reversed.
It is also the contention of the learned senior counsel that the
finding of the learned lower appellate Court that because of land being
under mortgage the period of three years was fixed for execution of the sale
deed is also perverse as it is based on no positive evidence on record. There
R.S.A. No. 2020 of 1989 13
is a force in this contention as it is always open to the vendor to give
symbolic possession of the land under mortgage by executing the sale deed
and, therefore, the findings by the learned lower appellate Court that the
period of three years was justified though only meager amount of Rs. 5600/-
was left to be paid is certainly misreading of evidence and, thus, perverse.
Thus, in view of the contention raised above, the contention of
the learned senior counsel appearing on behalf of the appellant is that the
learned lower appellate Court has considered the irrelevant and inadmissible
evidence by ignoring the positive evidence on record. It is also the
contention of the learned senior counsel that the findings by the learned
lower appellate Court in reversing the well reasoned judgment of the
learned trial Court is, thus, perverse and not sustainable in law.
Mr. R.C. Setia the learned senior counsel appearing on behalf
of the plaintiff / respondent No.1, however, supported the judgment and
decree passed by the learned lower appellate Court on the contention that
though the agreement was not on stamp paper the defect was duly rectified
by paying penalty under the Indian Stamp Act and, thus, could not be
ignored in evidence. It is also the contention of the learned senior counsel
appearing on behalf of the plaintiff / respondent No.1 that the learned lower
appellate Court was justified in upholding the agreement Ex.P-1 though
attested by the close relations as the finding of the learned trial Court that
there was enmity between the parties stood belied.
The contention of the learned senior counsel for respondent No.1,
therefore, was that there was no evidence whatsoever on record to prove the
relationship of attesting witnesses with the plaintiff and, therefore, the
R.S.A. No. 2020 of 1989 14
contention of the learned counsel for the appellant that the agreement Ex.P-
1 was suspicious and not a genuine document, deserves to be rejected.
Finally, it was contended by the learned senior counsel
appearing on behalf of respondent No.1 that admittedly the sale deed in
favour of the appellants No. 2 to 5 was only for 27 Kanals and the
appellants, therefore, had no right to challenge the specific performance of
agreement qua the remaining land agreed to be sold under the agreement
Ex.P-1, in view of the admission made by defendant No.1 admitting its due
execution.
On consideration of the respective contention, I find force in
the contention raised by the learned senior counsel for the appellant. Even if
the agreement Ex.P-1 can be read into evidence in view of the admission of
its execution by defendant No.1 the vendor after the payment of penalty still
it is a strong stand to hold that the appellants were in know of the agreement
Ex.P-1. It is not explained by way of positive evidence on record as to why
the deed writer would write an agreement to sell on a plain paper. The
finding of the learned lower appellate Court, thus, that the agreement to sell
was not required to be on stamp paper is perverse on the face of it as the
agreement to sell as per the provisions of the Stamp Act is required to be
executed on a stamp paper and not on the plain paper.
The finding of the learned lower appellate Court is perverse as
in case the finding was to be sustained then where was the necessity for
forging of the agreement and imposition of penalty under the Stamp Act. It
is admitted case of the parties that the agreement Ex.P-1 was got validated
only after the filing of the suit. On the date of filing of the suit there was no
R.S.A. No. 2020 of 1989 15
admissible evidence to show that there was admissible agreement Ex.P-1
prior in time under which defendant No.1 had agreed to sell the land to the
appellants. The finding of the learned lower appellate Court also cannot be
sustained as the evidence of scribe was required to be rejected or his
connivance with the parties, even if for the sake of argument, it is admitted
that scribe had connived with the appellants still the credibility of the
witnesses was lost and if the evidence of scribe is ignored then the attesting
witnesses were admittedly relation of the plaintiff / respondent as the
specific pleadings in this regard were not denied though replication was
filed to the written statement.
This Court also finds force in the contention raised by the
learned senior counsel for the appellant that the learned lower appellate
Court wrongly held that the appellant to be not bona fide purchaser for
consideration.
In view of the findings recorded above and the evidence on
record, it can safely be said that the appellants were bona fide purchaser for
consideration and there was connivance of plaintiff with defendant No.1 in
view of the admission by defendant No.1 that at the time of execution of
sale deed the appellants were informed about the agreement to sell Ex.P-1.
Thus the admission itself was sufficient to hold that the connivance of
defendant No.1 with plaintiff as attempt was taken to disbelieve the stand of
the appellant that they were bona fide purchaser for consideration.
The substantial questions of law are answered in favour of the
appellant. Consequently, the judgment and decree passed by the learned
lower appellate Court is set aside and that of the learned trial Court is
R.S.A. No. 2020 of 1989 16
restored holding the appellant /defendants No. 2 to 5 to be bona fide
purchaser for consideration. However, in view of the admission of
defendant No.1 with regard to the agreement Ex.P-1 in favour of respondent
No.1 the suit of the plaintiff / respondent for specific performance is ordered
to be decreed qua the remaining land with plaintiff / respondent No.1 i.e. 16
Kanal-6 Marlas on payment of proportionate cost. The decree passed by the
learned Courts below, therefore, is modified and the suit of the plaintiff /
respondent No.1 is decreed only qua 16 Kanal – 6 Marlas land on payment
of proportionate sale consideration. However, the suit qua 27 Kanals is
ordered to be dismissed by holding the plaintiff appellant to be bona fide
purchaser for consideration.
Appeal partly allowed.
2.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE