R.S.A No. 3977 of 2006(O&M) ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A No. 3977 of 2006 (O&M)
Date of decision : August 20, 2009
Parmjit Kaur,
...... Appellant (s)
v.
Gurmail Kaur and others,
...... Respondent(s)
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CORAM : HON’BLE MR.JUSTICE AJAY TEWARI
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Present : Mr. Mukul Aggarwal, Advocate
for the appellant.
Mr. B.B.S Sobti, Advocate
for respondent No.6.
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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 ?
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AJAY TEWARI, J (Oral)
This appeal has been filed against concurrent judgments of the
Courts below dismissing the suit of the appellant for specific performance
of the agreement to sell dated 12.2.1988.
The following questions have been proposed :-
” i) Whether in terms of Section 54 of the Limitation
Act, the findings of the learned Courts below to the effect
that the suit of the appellant is time barred, can be
sustained in the eyes of law ?
R.S.A No. 3977 of 2006(O&M) ::2::
ii) Whether the learned Courts below were justified in
law to arrive at a conclusion that the appellant was not
willing to perform her part of contract especially in view
of the fact that the entire sale consideration stood paid at
the time of entering into the agreement ?
iii) Whether the findings of the learned Courts below
to the effect that the present respondent No.6 is a bona
fide subsequent purchaser can be sustained in the eyes of
law ?
iv) Whether the evidence on record has been misread
and mis-interpreted by the learned Courts below ?
v) Whether all the submissions made on behalf of the
present appellant had been taken into consideration and
dealt with by the learned Courts below ?”
Learned counsel for the appellant has argued that one very
important fact is that the appellant has produced the original sale deed
executed in favour of the original owner viz Mr. Amar Singh Chamkila. In
my opinion, this sole piece of evidence would not wipe out various
infirmities pointed out in the case set up by the appellant.
The main point which is to be noticed in this case is that the
learned trial Court specifically held that the agreement dated 12.2.1988 was
not proved. The learned lower appellate Court while discussing the issue of
limitation noticed that even if it is presumed that the agreement is correct
still the suit was beyond limitation.
Counsel for the appellant has argued that this phrase would
show that the lower appellate Court has accepted the agreement. In my
R.S.A No. 3977 of 2006(O&M) ::3::
opinion, this is not so because that is the hypothetical argument put-forward
by the lower appellate Court to examine the issue of limitation. Even
otherwise, it would be seen that the lower appellate Court has not set aside
the finding of the trial Court on issue No.2.
Counsel for the appellant states that if it is to be held that the
said phrase does not indicate that the lower appellate Court has accepted the
agreement to sell then it must be held that no finding was given by the lower
appellate Court on this issue. No doubt, the lower appellate Court has not
given issue-wise findings and to that extent it is a case where the judgment
could have been drafted in a more specific and clear terms. However, that
will not detract from the tone and tenor of the judgment wherein the entire
case of the appellant has been held to be not proved. Once this finding of
fact that in fact the appellant has not been able to prove the agreement to
sell is upheld, then the questions proposed do not arise.
Consequently, holding the questions proposed against the
appellant, this appeal is dismissed with no order as to costs.
As the main appeal has since been dismissed, all the pending
civil miscellaneous applications, if any, also stand disposed of.
( AJAY TEWARI ) August 20, 2009. JUDGE `kk'