IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No.2896 of 2004
Date of Decision: 16.2.2009
Charanjit Kaur and others.
....... Appellants through Shri
Rakesh Chopra, Advocate.
Versus
Kaka Singh and another.
.......Respondent no.1 through
Shri R.S.Chauhan, Advocate.
None for respondent no.2.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers 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?
....
Mahesh Grover,J.
This appeal is directed against judgments and decrees dated
2.6.2003 and 2.3.2004 passed respectively by the Additional Civil Judge
(Senior Division), Amloh (hereinafter described as `the trial Court’) and the
Additional District Judge, Fatehgarh Sahib (referred to hereinafter as `the
First Appellate Court’) whereby the suit of plaintiff-respondent no.1 was
decreed and the appeal filed by the defendants-appellants was dismissed.
Respondent no.1 filed a suit for specific performance alleging
that an agreement to sell had been executed by Bachhiter Singh -defendant
no.1 (respondent no.2 herein) in his favour on 6.5.1996 to sell 10 biswas of
land for Rs.1,10,000/-. It was further alleged that the total sale consideration
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was paid to respondent no.2 at the time of execution of the agreement and
respondent no.1 had been put in possession of the suit property on the same
day. Respondent no.1 had pleaded that the suit land was being used for
parking the tractor and storing agricultural implements and fodder etc.
However, when the sale deed was not executed and the
appellants and respondent no.2 started threatening to dispossess him from
the suit land, respondent no.1 filed the suit for specific performance with a
consequential prayer for grant of permanent injunction. It was also prayed
that in case, the Court comes to the conclusion that respondent no.1 was not
entitled to the relief of specific performance, in that eventuality, he be held
entitled to refund of Rs.1,10,000/- along with Rs.10,000/- as damages from
respondent no.2.
Upon notice, respondent no.2 and the appellants appeared and
filed their separate written statements.
In his written statement, respondent no.2 controverted the
averments made in the plaint. He denied the execution of agreement to sell
dated 6.5.1996 and receipt of the sale consideration as alleged by
respondent no.1. It was pleaded that respondent no.1 along with the
appellants and the witnesses of the alleged agreement came to him on
4.5.1996 in connection with a pronote to be executed in favour of
respondent no.1, who had taken a loan of Rs.50,000/- from him and this
pronote had been abused to create an agreement to sell. It was also pleaded
by respondent no.2 that the suit land was in possession of appellant nos. 1
and 2 in whose favour a decree for specific performance had already been
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granted by the Court on 26.11.1996 in Civil Suit No.487 of 12.9.1996,
titled as “Charanjit Kaur Versus Bachhittar Singh and, therefore, there was
no question of executing any agreement to sell the same suit land in favour
of respondent no.1.
The appellants, in their separate written statement, denied the
execution of the agreement to sell in favour of respondent no.1 and pleaded
that there was an agreement to sell in their favour which was prior in time,
i.e., executed on 14.2.1996 and pursuant thereto, a collusive decree was
suffered by respondent no.2 and further that the agreement to sell dated
6.5.1996 was the result of fraud.
Both the parties went to trial on the following issues:-
1. Whether defendant no.1 entered into agreement to sell the
suit property with plaintiff on 6.5.96 for a sum of
Rs.1,10,000/- receiving the entire consideration amount and
delivering possession of the property to plaintiff?OPP
2. Whether the plaintiff has been ready and willing to perform
his part of the agreement?OPP
3. Whether the plaintiff is entitled to specific performance of
agreement to sell dt. 6.5.96, if issue nos. 1 and 2 are
proved?OPP
4. Whether the plaintiff is entitled to decree for permanent
injunction prayed for?OPP
5. Whether the suit is not maintainable in the present
form?OPD
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6. whether the agreement to sell dt. 6.5.96 is result of fraud
and misrepresentation, as alleged in the written
statement?OPD
7. What is the effect of decree passed in civil suit no.487 dt.
12.9.96 titled as “Charanajit Kaur Versus Bachhittar
Singh?OPD
8. Relief.
On the basis of the evidence before it, the trial Court decreed
the suit and directed the specific performance of agreement dated 6.5.1996
so as to execute a valid sale deed regarding the suit land.
In appeal, the findings of the trial Court were affirmed and
while doing so, the First Appellate Court also observed that while
disposing of the application under Order 39 Rules 1 and 2 of the C.P.C., it
was found that the agreement dated 14.2.1996 was ante dated and was
created to forfeit the rights of respondent no.1 and those observations were
upheld up to this Court.
Feeling aggrieved, the appellants have filed this appeal.
Learned counsel for the appellants contended that the findings
of both the Courts below are perverse. He submitted with reference to the
findings recorded by the First Appellate Court that the same are based on
the observations which were made while deciding application under Order
39 Rules 1 and 2 of the C.P.C., which could not have been done, as in the
suit the findings are to be recorded independently on the basis of the
evidence and since it has not been done so, a great prejudice has been
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caused to the appellants. To support the submission that the observations
made by the Court while answering application under Order 39 Rules 1 and
2 of the C.P.C. cannot be considered as conclusive finding on the facts and
circumstances, he placed reliance on Balbir Singh Versus Satbir Singh,
1999(2) Civil Court Cases 412 (P&H).
It was next contended that there was prior agreement to sell in
favour of the appellant nos. 1 and 2 which was dated 14.2.1996 and it is for
this reason that a decree was suffered by respondent no.2 in their favour
and, therefore, the plea of respondent no.1 was totally misplaced.
On the other hand, learned counsel for respondent no.1
contended that the Courts below have not based their findings solely on the
observations made in the orders passed in application under Order 39 Rules
1 & 2 of the C.P.C., but have also considered other factors. It was submitted
that although it was pleaded by the appellants that there was an agreement
to sell in favour of appellant nos.1 & 2 which was executed on 14.2.1996,
but neither any issue was struck nor any evidence was led and,therefore, the
plea as set up by them could not be considered at all. It was further
submitted that both the Courts have held that the agreement to sell in favour
of respondent no.1 was valid and that he was put in possession of the suit
land and also that respondent no.2 had failed to execute the sale deed
despite the fact that respondent no.1 was ready and willing to perform his
part of agreement.
I have thoughtfully considered the respective arguments and
have perused the record.
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Concededly, there was an agreement to sell in favour of
respondent no.1 which was executed on 6.5.1996. That agreement was duly
proved by respondent no.1, who examined both the marginal and attesting
witnesses coupled with his own statement.
Even if the observations of the First Appellate Court regarding
the orders passed in application under Order 39 Rules 1 and 2 of the C.P.C.
are ignored, then also, respondent no.1 had proved the execution of the
agreement to sell.
There is no quarrel with the proposition as propounded by the
learned counsel for the appellants that the observations of the Court made
while determining an application under Order 39 Rules 1 and 2 of the
C.P.C. cannot be made basis for conclusive findings, but, at the same time,
if there is independent and cogent evidence and a fact is proved on the basis
of it, then no grievance can be made of it.
In the instant case, even if the observations pursuant to the
provisions of Order 39 Rules 1 and 2 of the C.P.C. cannot be considered for
determining the validity of the agreement to sell, yet, the same would be
certainly taken into consideration for determining the question of
possession of respondent no.1 had been protected.
Respondent no.1 has also successfully proved that he was ready
and willing to perform his part of agreement which, in any case, was
reduced to a formality as the entire sale consideration had been paid and he
had been put in possession.
Surprisingly, respondent no.2, the vendor, did not step into the
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witness box and understandably so because he had apparently suffered a
collusive decree in favour of appellant nos. 1 and 2 in order to wriggle out
of his commitment regarding the sale of the suit land pursuant to agreement
dated 6.5.1996.
Appellant nos. 1 and 2 set up an agreement to sell in their
favour, but the same remained merely an averment as neither any issue was
struck on this aspect nor was any evidence led to substantiate this plea.
The plea of fraud was set up by respondent no.2, as also by the
appellants, but they have failed to establish the same.
As observed earlier, respondent no.2 did not testify before the
Court. Appellant nos. 1 and 2 also did not appear,but their absence was
sought to be justified by saying that appellant no.3-Harjinder Singh, had
appeared as their attorney. The plea of fraud as raised by the appellants and
respondent no.2 ought to have been established by way of cogent evidence
which was not done. The onus to prove the fraud rests heavily on the
person, who alleges the same.
That having not been done by the appellants and respondent
no.2 in the present case, no fault can be found with the findings recorded by
the Courts below.
No substantial question of law arises for determination in this
appeal, which is held to be devoid of any merit and is dismissed.
February 16,2009 ( Mahesh Grover ) "SCM" Judge