Labh Singh And Others vs Sanjeev Kumar And Others on 6 August, 2009

R.S.A.No. 2877 of 2009                                     1


      In the High Court of Punjab and Haryana at Chandigarh

                        R.S.A.No. 2877 of 2009
                        Date of decision: 6.8.2009


Labh Singh and others                                  ......Appellants

                        Versus


Sanjeev Kumar and others                             .......Respondents


CORAM: HON'BLE MRS. JUSTICE SABINA

Present:   Mr.H.R.Nohria, Advocate,
           for the appellants.
                 ****

SABINA, J.

Plaintiff-respondent No.1 Sanjeev Kumar filed a suit for

specific performance and for joint possession against defendants No.

5 to 7 (appellants) and respondents No. 2 to 5. The suit of the

plaintiff was decreed by the Civil Judge (Jr.Divn.) Barnala vide

judgment and decree dated 11.9.2007. In appeal, filed by defendant

Nos. 5 to 7, the said judgment and decree were upheld by the

Additional District Judge, Barnala vide judgment and decree dated

11.6.2009. Hence, the present appeal by defendants Nos. 5 to 7.

Brief facts of the case, as noticed by the trial Court in

para Nos. 1 to 4 of its judgment, are as under:-

” The plaintiff has filed the present suit for

specific performance of the agreement to sell dated

3.12.2002 and suit for joint possession of the suit
R.S.A.No. 2877 of 2009 2

property. In the plaint, it has been submitted that the

defendant Nos. 1 and 2 were owner in possession of the

suit property comprised of Khasra No.228//1(8-0), 2(8-0),

9 (8-0) situated at village Pakho Kalan to the extent of 2/3

share. The defendants No. 1 and 2 had agreed to sell 16

kanal of land of their share in the suit land @

Rs.1,67,000/- per acre to the plaintiff and had executed

an agreement to sell dated 3.12.2002 and had also

received Rs.2,30,000/- as earnest money. It has further

been agreed that the balance amount of Rs.1,04,000/-

shall be paid on 9.12.2002 i.e. date fixed for execution of

the sale deed and had also agreed to deliver the

possession of the land to the plaintiff. The defendants

had executed the agreement to sell after hearing and

understanding the contents of the same to be correct in

the presence of the attesting witnesses. The plaintiff was

present in the office of Joint Sub Registrar, Tapa on

9.12.2002, along with balance sale consideration amount,

but the defendants no.1 and 2 did not turn up. The

plaintiff in order to get his presence marked got prepared

an affidavit and had got the same attested from the Joint

Sub Registrar, Tapa in token of the proof of the plaintiff,

on the date fixed. It has been further submitted in the

plaint that the plaintiff has always been ready and willing
R.S.A.No. 2877 of 2009 3

to perform his part of the agreement to sell by paying the

balance sale consideration amount to the defendants no.

1 and 2 and the plaintiff is still ready and willing to

perform his part of agreement to sell dated 3.12.2002.

The plaintiff had verbally asked the defendants no. 1 and

2 to get the sale deed executed as per agreement to sell

dated 3.12.2002, but the defendants had not shown their

intention to execute the sale deed. As such, the

defendants had violated the agreement to sell dated

3.12.2002 by executing the sale deed qua the suit

property, along with other property in favour of the

defendants No. 5 to 7. The said sale deed having been

executed is against law and facts and is nullity in the eyes

of law. Hence, the present suit has been filed.

2. Upon notice, the defendants No. 1 and 2 filed written

statement, in which they have taken the legal

objections that the plaintiff has got no locus standi to

file the present suit; the agreement to sell dated

3.12.2002 is forged and fabricated document; the

defendants no. 1 and 2 have not affixed thumb

impressions on the agreement to sell dated 3.12.2002.

On merits, all the averments as mentioned in the plaint

have been denied by the defendants. It has been

submitted that no agreement to sell dated 3.12.2002
R.S.A.No. 2877 of 2009 4

was executed by the defendants in favour of the plaintiff

nor the defendants thumb marked the same, after

understanding the same to be correct in the presence

of the attesting witnesses. It has further been

submitted that no such agreement to sell was executed

by the defendants and the defendants have admitted

that they had executed the sale deed for the suit

property in favour of the defendants No. 5 to 7.

3. The defendant No.4 appeared and filed

separate written statement, in which the defendant has

taken legal objection that the suit of the plaintiff is not

maintainable; the plaintiff has got no locus standi or

cause of action to file the present suit against the

defendant No. 4 State Bank of India. On merits, all the

averments as stated in the written statement have been

denied for want of knowledge. It has further been

submitted that in case any agreement to sell has been

executed by the defendants, then it has got effected

upon the rights of the defendant No.4 State Bank of

India.

4. The defendants No. 5 to 7 filed separate

written statement, in which they have taken legal

objections that the defendants No. 5 to 7 have

purchased 20 kanal of land vide sale deed dated
R.S.A.No. 2877 of 2009 5

6.12.2002 out of 37 kanal 4 marle, comprised Khasra

no.228//1(8-0), 2(8-0), 9(8-0), 229//5/2(6-12), 6/1(6-12)

and as such had purchased 400/744 share which

comes to 20 kanal. The said land was purchased by

the defendants for a consideration of Rs.five lac. The

defendants as such are owners of the land measuring

20 kanal which they have purchased vide sale deed

dated 6.12.2002. The defendant No.3 is a minor and

suit has been wrongly filed against him. The present

suit has been filed by the plaintiff inconnivance with

defendants No.1 and 2. On merits, it has been

submitted that defendants No. 5 to 7 have purchased

the suit property from the defendants No.1 and 2 vide

sale deed dated 6.12.2002. All the averments as

stated in the plaint have been denied. The said

agreement to sell dated 3.12.2002 has been got

prepared by the plaintiff inconnivance with the

defendants No. 1 and 2 with a view to cause loss to the

defendants No. 5 to 7. The sale deed has been

executed in favour of defendant Nos. 5 to 7 is legal

which was executed for a consideration of Rs. Five lac.

The defendants No. 5 to 7 are bonafide purchaser or

consideration without notice.”

R.S.A.No. 2877 of 2009 6

On the pleadings of the parties, following issues were

framed by the trial Court:-

“1. Whether the defendants No. 1 and 2 entered

into an agreement dated 3.12.2k2 with the plaintiff to sell

the property in dispute by receiving amount of

Rs.2,30,000/- in cash and also agreed to execute the sale

deed on or before 9.12.2002 on receipt of balance sale

consideration in favour of the plaintiff? OPP

2. Whether the plaintiff was ready and willing and

is still ready and willing to perform his part of contract

dated 3.12.2k2? OPP

3. Whether the sale deed No.2047 dated

6.12.2002 registered on 11.12.2002 executed by

defendants No. 1 and 2 in favour of defendant Nos. 5 to 7

is null and void? OPD

4. Whether the plaintiff is entitled for specific

performance of agreement to sell dated 3.12.2002 as

prayed for? OPP

5. Whether the plaintiff has no locus-standi to file

the present suit? OPD

6. Whether the agreement to sell dated

3.12.2002 is forged and fabricated documents? OPD

7. Whether the defendants No. 1 to 3 are

entitled to special costs under Section 35-A of CPC?

 R.S.A.No. 2877 of 2009                                    7

           OPD

           8.          Whether the      defendants No. 5 to 7 are

bonafide purchaser without any notice? OPD

9. Relief. “

After hearing learned counsel for the appellant, I am of

the opinion that the present appeal deserves to be dismissed.

Plaintiff Sanjeev Kumar has filed a suit for specific

performance of agreement to sell dated 3.12.2002 and for joint

possession of the suit property. In order to prove his case, he

himself appeared in the witness box as PW-4 and deposed as per

the contents of the plaint. PW-1 Suresh Kumar and PW-2 Joginder

Singh, attesting witnesses of the agreement to sell, corroborated the

statement of the plaintiff with regard to execution of the agreement to

sell.

On the other hand, defendants No. 1 and 2 denied the

execution of the agreement to sell Ex.P-1. It was also averred that

the agreement to sell was not thumb marked by them. However,

defendants No. 1 and 2 did not appear in the witness box to

substantiate their averments made in the written statement. In these

circumstance, both the Courts below rightly came to the conclusion

that the agreement to sell Ex.P-1 stood duly established. The

appellants are the subsequent purchasers of the property in

question. Their stand before the Courts below was that they were

bona fide purchasers for consideration. The appellants based their
R.S.A.No. 2877 of 2009 8

claim on the basis of sale deed Ex.D-1 executed in their favour by

defendants No. 1 and 2. The sale deed in question Ex.D-1 was

executed on 6.12.2002 and was got registered on 11.12.2002. The

sale consideration was not paid to the vendor before the Sub

Registrar at the time of execution of the sale deed. In fact, the case

of the appellants was that the entire sale consideration had been

paid to defendants No. 1 and 2 at their residence. In case the sale

consideration had been paid on the day the sale deed was executed

then there is no plausible explanation as to why the sale deed was

not got registered on the same day and was rather got put up before

the Sub Registrar on 11.12.2002 for registration. Moreover, the

parties belong to the same village and in normal circumstances, they

would have come to know about the execution of the agreement to

sell by defendants No. 1 and 2 in favour of the plaintiff.

Hence, the Courts below rightly came to the conclusion

that Ex.D-1 appears to be a hasty transaction which was entered into

in order to counter the agreement initially executed by defendants

No. 1 and 2 in favour of the plaintiff.

No substantial question of law arises in this regular

second appeal. Accordingly, the same is dismissed.

                                                 (SABINA)
                                                  JUDGE

August      06, 2009
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