High Court Punjab-Haryana High Court

Smt. Sarita Devi Jain vs Ram Mehar on 5 December, 2008

Punjab-Haryana High Court
Smt. Sarita Devi Jain vs Ram Mehar on 5 December, 2008
RSA No.2638 of 2007(O&M)                            1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                                       RSA No.2638 of 2007(O&M)
                                       Date of decision: 5.12.2008

Smt. Sarita Devi Jain                               ......Appellant

                                Versus

Ram Mehar                                           ......Respondent

CORAM:-      HON'BLE MR. JUSTICE RAKESH KUMAR GARG

                         * * *
Present:     Mr. Nitin Kumar, Advocate for the appellant.


Rakesh Kumar Garg, J.

This is plaintiff’s second appeal challenging the judgment and

decree of the Lower Appellate Court whereby her suit for specific

performance of the agreement to sell dated 19.6.1992 has been decreed

against the respondent to the extent of 1/3rd share only of respondent in the

suit property.

Briefly stated, the case of the plaintiff-appellant is that Chandgi

Ram, father of the respondent, was a big land owner with Shamlat rights in

Thok Jatan of Rohtak. He died intestate leaving behind the respondent as

his sole legal heir. The respondent executed an agreement to sell dated

19.6.1992 in favour of the appellant qua the suit land. The respondent had

undertaken to get the requisite mutation qua the suit land sanctioned in his

favour and to execute the requisite sale deed in favour of the appellant as

per the agreement dated 19.6.1992. However, the respondent failed to

execute the requisite sale deed in favour of the appellant despite repeated

requests and a legal notice by the appellant. Through the suit , the

appellant sought a decree for possession of suit land by way of specific

performance of contract of sale dated 19.6.1992 in his favour.

The respondents contested the suit by filing written statement.
RSA No.2638 of 2007(O&M) 2

He raised preliminary objections, inter alia, pleading bar of limitation,

absence of locus-standi, unlawful nature of impugned agreement dated

19.6.1992, want of cause of action, ancestral nature of suit property,

absence of proper valuation of suit, fraud in execution of impugned

agreement etc. On merits, the respondent stated that rights of Shamlat

Deh of Thok Jatan, Rohtak have not been determined separately because

of absence of partition. The respondent pleaded that no one can claim

exclusive possession over any part of joint land till partition takes place.

The respondent denied that he was the only legal heir of Chandgi Ram and

claimed that Chandgi Ram left behind two daughters, namely, Ram Pyari

and Mahakali also. The respondent asserted that above-said Ram Pyari

and Mahabir son of Mahakali (since deceased) along with him are owners-

in-possession of suit land, in equal shares. The respondent admitted that

he entered into an agreement of sale with the appellant to the extent of his

1/3rd share in suit land for a consideration at the rate of Rs.120/- per sq.

yard. The respondent alleged that taking advantage of his old age, infirmity

and illiteracy, the appellant procured his thumb impression upon the

impugned agreement to sell after fraudulently mentioning the price of land

as Rs.12/- per sq.yard. The respondent alleged that the contents of said

agreement to sell were not read over to him. He denied having received

Rs.23,200/- from the appellant at any stage. The respondent prayed that

the suit of the appellant be dismissed.

The trial Court vide its judgment and decree dated 29.5.2002

dismissed the suit of the appellant.

Aggrieved by the said judgment and decree of the trial court,

the appellant filed an appeal. While allowing the appeal to the extent of

decreeing the suit of the appellant for specific performance of the contract

to the extent of 1/3rd share in the suit property, the Lower Appellate Court
RSA No.2638 of 2007(O&M) 3

found that the respondent had inherited only 1/3rd share of his father-

Chandgi Ram whereas vide impugned agreement to sell dated 19.6.1992,

the respondent is shown to have sold the entire share of his father-Chandgi

Ram by showing himself as the sole legal heir of Chandgi Ram. Thus, he

could not have sold the share inherited by his sisters and that being so,

impugned agreement to sell dated 19.6.1992 should be enforced only to

the extent of 1/3rd share of the respondent.

Still aggrieved against the aforesaid judgment and decree of

the Lower Appellate Court dated 2.6.2006, the plaintiff has filed the instant

appeal claiming that she is entitled to the specific performance of the

agreement to sell in its totality on the ground that when the respondent had

represented himself to be sole owner of the suit property he cannot be

allowed to wriggle out of his promise made to the appellant. Learned

counsel for the appellant has also argued that once it is established that

there was a valid agreement to sell, nothing more can be read into

agreement and it was not open to the respondent to raise the plea of defect

in title. In support of his argument, learned counsel has relied upon a

judgment of this Court in Hukum Chand v. Hari Singh 2007(1) PLR 102.

I have heard learned counsel for the appellant.

Undisputedly, Chandgi Ram was the owner of the property in

dispute, which was agreed to be sold by the respondent and after Chandgi

Ram’s death, the same was mutated vide Ex.D-1 in the name of the

respondent and his two sisters. It could also not be disputed by the

learned counsel for the appellant that the respondent had no authority to

make the agreement to sell on behalf of his sisters. The argument as

raised by the learned counsel for the appellant could help the appellant,

only if the suit property was shown to be exclusively in the name of the

respondent in the revenue record at the relevant time. Admittedly, the suit
RSA No.2638 of 2007(O&M) 4

property was not recorded exclusively in the name of the respondent at the

relevant time. Under the law, the respondent cannot be permitted to sell

the property belonging to the others. The judgment cited by the learned

counsel for the appellant is of no help to him. In this case, the respondent

has no title vested in him to the extent of 2/3 rd share of the property in

dispute and therefore, he was not competent to alienate the same.

For the reasons recorded above, I find no merit in this appeal.

No substantial question of law arises.

Dismissed.

December 5, 2008                         (RAKESH KUMAR GARG)
ps                                               JUDGE