{"id":197409,"date":"2009-02-02T00:00:00","date_gmt":"2009-02-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shiv-singh-others-vs-lakha-singh-another-on-2-february-2009"},"modified":"2018-07-26T12:49:21","modified_gmt":"2018-07-26T07:19:21","slug":"shiv-singh-others-vs-lakha-singh-another-on-2-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shiv-singh-others-vs-lakha-singh-another-on-2-february-2009","title":{"rendered":"Shiv Singh & Others vs Lakha Singh & Another on 2 February, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Shiv Singh & Others vs Lakha Singh & Another on 2 February, 2009<\/div>\n
R.S.A. No. 2020 of 1989                                               1\n\n    IN THE PUNJAB AND HARYANA HIGH COURT AT\n                CHANDIGARH\n\n\n                               R.S.A. No. 2020 of 1989 (O&M)\n                               Date of Decision : 2.2.2009\n\nShiv Singh & others\n\n                                                           .......... Appellant\n                               Versus\n\nLakha Singh & another\n                                                           ...... Respondents\n\nCORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA\n\nPresent :   Mr. J.K. Sibal, Sr. Advocate with\n            Mr. Sapan Dhir, Advocate\n            for the appellants.\n\n            Mr. R.C. Setia, Sr. Advocate with\n            Mr. Anish Setia, Advocate\n            for respondent No.1.\n\n                  ****\n\nVINOD K. SHARMA, J.\n<\/pre>\n
C.M. No. 1527-C of 2009<\/p>\n
            This is an application under Order 22 Rule 3 read with Section<\/p>\n
151 C.P.C. for impleading the legal representatives of appellant No.1 i.e.<\/p>\n
Shiv Singh, who is stated to have died during the pendency of this appeal.<\/p>\n
            It is pleaded in the application that by way of registered Will<\/p>\n
dated 11.5.1999 the entire holding of late Sh. Shiv Singh stands bequeathed<\/p>\n
to his wife Jaswinder Kaur and his son Parminder Singh. It is further the<\/p>\n
case that son of appellant No.1 has died leaving behind his wife namely<\/p>\n
Sarbjit Kaur and minor son namely Gurpreet Singh.\n<\/p>\n
            In view of the averments made in the application Smt.
\n R.S.A. No. 2020 of 1989                                                2<\/span><\/p>\n
Jaswinder Kaur widow of deceased son of late Sh. Shiv Singh and Gurpreet<\/p>\n
Singh minor son through his mother Smt. Sarbjit Kaur are ordered to be<\/p>\n
brought on record as the legal representatives of deceased appellant No.1,<\/p>\n
subject to all just exceptions.\n<\/p>\n
              The office is directed to carry out necessary correction in the<\/p>\n
memo of parties.\n<\/p>\n
R.S.A. No. 2020 of 1989<\/p>\n
              By way of this regular second appeal the defendants-appellant<\/p>\n
have challenged the judgment and decree dated 18.7.1999 passed by the<\/p>\n
learned lower appellate Court vide which suit filed by the plaintiffs-<\/p>\n
respondent for specific performance of agreement stands decreed.<\/p>\n
              Plaintiff-respondent filed a suit for specific performance of the<\/p>\n
contract dated 31.7.1981 entered into by defendant No.1. It was also<\/p>\n
pleaded that the defendants be directed to perform the agreement and to do<\/p>\n
all acts necessary to put the plaintiff in possession of the suit land in<\/p>\n
performance of the said agreement to sell as owner thereof on payment of<\/p>\n
Rs. 5625\/-.\n<\/p>\n
              The case set up by the plaintiff was that Bakshish Singh<\/p>\n
defendant No.1 was owner of the land in dispute and had agreed to sell the<\/p>\n
suit land to plaintiff \/ respondent @ Rs. 10,000\/- per killa vide agreement<\/p>\n
dated 31.7.1981. The sale deed was agreed to be executed on or before<\/p>\n
31.7.1984. A sum of Rs. 10,000\/- was paid to Bakshish Singh defendant<\/p>\n
No.1 at the time of execution of the agreement as earnest money. It was<\/p>\n
pleaded that another sum of Rs. 38,500\/- was entrusted with the plaintiff as<\/p>\n
mortgage money to be paid by him to the mortgagees for redemption of suit
\n R.S.A. No. 2020 of 1989                                                3<\/span><\/p>\n
land and the balance was agreed to be paid to the vendor at the time of<\/p>\n
registration of sale deed.\n<\/p>\n
             The plaintiff-respondent No.1 claimed that he was always ready<\/p>\n
and willing to perform his part of contract but the vendor Bakshish Singh<\/p>\n
committed breach of contract of agreement by selling the land to defendants<\/p>\n
No. 2 to 5 i.e. the appellants without consideration. It was claimed that<\/p>\n
defendants No. 2 to 5 i.e. the appellants were in the know of existence of the<\/p>\n
agreement dated 31.7.1981 executed in favour of the plaintiff and in spite of<\/p>\n
knowledge they purchased the land in dispute without consideration and<\/p>\n
with mala fide intention. In the alternative the plaintiff claimed a decree for<\/p>\n
Rs. 20,000\/- i.e. Rs. 10,000\/- as damages and Rs. 10,000\/- by way of return<\/p>\n
of earnest money.\n<\/p>\n
             On notice, defendant No.1 admitted having executed the<\/p>\n
agreement in favour of plaintiff but denied having committed the breach of<\/p>\n
contract. The stand taken was that he had to sell the land in dispute to the<\/p>\n
appellants because the plaintiff had no money with him and at the time of<\/p>\n
sale he had informed the appellants about the existence of agreement with<\/p>\n
the plaintiff. However, he denied having committed the breach of contract<\/p>\n
and also denied his liability to pay damages to the tune of Rs. 10,000\/-.<\/p>\n
             The appellant \/ defendants No. 2 to 5 filed written statement<\/p>\n
claiming themselves to be bona fide purchaser for consideration without<\/p>\n
notice of agreement to sell. It was further pleaded that Bakshish Singh<\/p>\n
defendant No.1 had entered into an agreement to sell land measuring 8<\/p>\n
Kanals out of Khasra No. 36R\/20 to Parkash Kaur wife of Bahadur Singh<\/p>\n
(mother of defendants No. 3 to 5) and the sale deed was agreed to be
\n R.S.A. No. 2020 of 1989                                               4<\/span><\/p>\n
executed on or before 21.11.1983. It was claimed that the land was in<\/p>\n
possession of Bahadur Singh, father of defendants No. 3 to 5 as mortgagee<\/p>\n
of defendant No.1. It was claimed that agreement in favour of plaintiff<\/p>\n
executed by Bakshish Singh was ante-dated and the same was in collusion<\/p>\n
with the scribe and attesting witnesses. The agreement to sell between<\/p>\n
plaintiff and defendant No.1 was said to be bogus transaction and fictitious<\/p>\n
document. It was denied that defendant No.1 agreed to sell land to plaintiff<\/p>\n
as claimed. The other preliminary objections were also taken.<\/p>\n
             In replication, the plaintiff reiterated his stand taken in the<\/p>\n
plaint and denied the averments made in the written statement.<\/p>\n
             On the pleadings of the parties, the learned trial Court framed<\/p>\n
the following issues :-\n<\/p>\n
                    1.    Whether defendant No.1 executed the alleged
\n                          agreement validly in favour of the plaintiff ? OPP\n<\/p><\/blockquote>\n
                    2.    If issue No.1 is proved whether the agreement is
\n                          ante-dated fictitious, forged and invalid as alleged
\n                          by defendants No. 2 to 5 ? OPD\n<\/p><\/blockquote>\n
                    3.    Whether the plaintiff has been ready and willing
\n                          to perform his part of contract ? OPP\n<\/p><\/blockquote>\n
                    4.    Whether the plaintiff is entitled to the specific
\n                          performance of the contract or in the alternative
\n                          damages. If so how much and against whom ?
\n                          OPP\n<\/p><\/blockquote>\n
                    5.    Whether the suit is bad for non-joinder of
\n                          necessary parties ? OPD
\n                    5-A. Whether defendants No. 2 to 5 are bona fide
\n                          purchasers for value and without notice ?OPD\n<\/p><\/blockquote>\n
                    6.    Relief.”<\/p><\/blockquote>\n
\n R.S.A. No. 2020 of 1989                                              5<\/span><\/p>\n
            Though, the plaintiff led evidence in proof of execution of the<\/p>\n
agreement and receipt of earnest money, the stand taken by the appellant-<\/p>\n
defendants was that the execution of the agreement was not within their<\/p>\n
knowledge and thus claimed that they were bona fide purchasers for<\/p>\n
consideration vide sale deed Ex. D-1 to Ex. D-3.\n<\/p>\n
            On appreciation of evidence on record the learned trial Court<\/p>\n
was pleased to hold that the agreement Ex.P1 was not a valid document and<\/p>\n
was outcome of collusion between plaintiff and defendant No.1, therefore,<\/p>\n
deserved to be discarded. The grounds for discarding the document were :-<\/p>\n
            (i)    Agreement Ex.-1 seems to have been prepared with the
\n                   connivance with the plaintiff, defendant No.1, scribe and
\n                   the attesting witnesses. Baldev Raj (PW-1) was scribe of
\n                   the agreement but he failed to produce the scribe
\n                   register on the ground that the same was lost under the
\n                   debris of a room of his house which collapsed on
\n                   account of storm in the village. In his cross-examination
\n                   stand was taken that his room fell down on 1.5.1985 i.e.
\n                   the date before deposing in Court. He also showed his
\n                   inability to trace the said record from the debris.
\n                   However, the stand taken by Baldev Raj stood falsified
\n                   by the report of the Local Commissioner Ex. D-1,
\n                   wherein it was specifically mentioned that no portion of
\n                   the house of the scribe had fallen down on account of
\n                   storm. He also did not find any debris stated by the
\n                   scribe PW-1. The stand was held to be falsified in view of
\n                   the report given by the Local Commissioner, Shri
\n                   R.S.Walia, Advocate.\n<\/p><\/blockquote>\n
            (ii)   The attesting witnesses were said to be inimical towards
\n                   defendants No. 2 to 5. It was further observed that PW-2
\n                   Karam Singh admitted in his cross-examination that
\n R.S.A. No. 2020 of 1989                                                6<\/span><\/p>\n
                    Bhajan Kaur is the widow of his brother Karnail Singh.
\n                    Although it was denied by him that Bhajan Kaur was
\n                    kidnapped by Amrik Singh. However, he could not deny
\n                    photograph mark A. It was also observed by the learned
\n                    trial Court that the cross-examination of PW-2 showed
\n                    that he usually attested documents executed by the
\n                    plaintiff or his family members. He was also witness to
\n                    the sale deed executed by Bakshish Singh, who is father
\n                    of Lakha Singh plaintiff. The other attesting witnesse
\n                    Rajbir Singh was also said to be inimical towards
\n                    defendants No. 2 to 5. He also having admitted in his
\n                    cross-examination that his deceased brother Ujagar
\n                    Singh was related to Lakha Singh plaintiff.\n<\/p><\/blockquote>\n
             (iii) The agreement to sell Ex.P-1 was not executed on stamp
\n                    paper but on plain paper and no reasons were given as
\n                    to why Ex.P-1 was not written on the stamp paper in
\n                    accordance with law.\n<\/p><\/blockquote>\n
             (iv)   The agreement Ex. P-1 was executed on 31.7.1981 and
\n                    sale deed was agreed to be executed on or before
\n                    30.7.1984. So, the total consideration of the land to be
\n                    sold was Rs. 55,000\/-, out of which Rs. 38,500\/- were
\n                    said to have been entrusted with plaintiff to be given to
\n                    the mortgagee of the land in dispute for redemption of
\n                    the suit land and only a sum of rs. 5600\/- ws to be given
\n                    by the plaintiff to defendant No.1 at the time of execution
\n                    of the sale deed. The Court observed that in view of this
\n                    it was not understandable as to why period of three
\n                    years from the date of execution of agreement to sell was
\n                    fixed when only Rs. 5600\/- were required to be paid.<\/p><\/blockquote>\n
            Issue No.1 was decided against the plaintiff \/ respondent No.1<\/p>\n
and in view of the findings on issue No.1, issue No.2 was also decided<\/p>\n
against the plaintiff and in favour of the defendant-appellants.
\n R.S.A. No. 2020 of 1989                                              7<\/span><\/p>\n
            In view of findings on issues No.1 & 2, the learned trial Court<\/p>\n
held that no finding on issue No.3 was required to be given as there was no<\/p>\n
occasion for willingness of the plaintiff \/ respondent to perform his part of<\/p>\n
contract.\n<\/p>\n
            However, on issue No.4, the learned trial Court was pleased to<\/p>\n
hold that plaintiff would be entitled to recover a sum of Rs. 10,000\/- as<\/p>\n
advanced to defendant No.1 at the time of execution of agreement and<\/p>\n
another sum of Rs. 10,000\/- as damages. Therefore, a decree for a sum of<\/p>\n
Rs. 20,000\/- was passed in favour of Bakshish Singh plaintiff and against<\/p>\n
defendant No.1.\n<\/p>\n
            Issue No.5 was not pressed.\n<\/p>\n
            The learned trial Court was pleased to hold that there was no<\/p>\n
evidence on file to prove that defendant Nos.2 to 5 had knowledge of<\/p>\n
existence of agreement Ex. P1 at the time of sale. The learned trial Court<\/p>\n
further held that Ex.D-1 to Ex. D-3 i.e. the sale deeds produced on record<\/p>\n
showed that the appellant-defendants No. 3 to 5 were bona fide purchasers<\/p>\n
for consideration.\n<\/p>\n
            The learned trial Court dismissed the suit against the appellant-<\/p>\n
defendants whereas decreed the suit for recovery of Rs. 20,000\/- against<\/p>\n
defendant No.1.\n<\/p>\n
            Plaintiff \/ respondent No.1 preferred an appeal.\n<\/p>\n
            The learned lower appellate Court has been pleased to reverse<\/p>\n
the finding of the learned trial Court on issues No.1 & 2.<\/p>\n
            The learned lower appellate Court held that besides admission<\/p>\n
by defendant No.1 Ex.P1 stood proved by examining the scribe and the
\n R.S.A. No. 2020 of 1989                                              8<\/span><\/p>\n
attesting witness. The learned Court further held that non-production of the<\/p>\n
register and the story put up by the scribe regarding storm and falling of<\/p>\n
room was in fact on account of his connivance with appellant-defendants as<\/p>\n
it was the defendants \/ appellants who were to gain on account of non-<\/p>\n
production of the register and not the plaintiff. The Court held that non-<\/p>\n
production of the register, therefore, could not adversely affect the<\/p>\n
genuineness of the agreement.\n<\/p>\n
             The learned lower appellate Court was pleased to hold that<\/p>\n
issue No.1 was rightly framed in view of the admission by defendant No.1<\/p>\n
qua the execution of agreement Ex. P-1. However, the learned lower<\/p>\n
appellate Court held that issue No.2 could not be dependent on issue No.1<\/p>\n
and in fact was required to be decided separately.\n<\/p>\n
             It is also the finding of the learned lower appellate Court that<\/p>\n
though agreement Ex.P-1 was on unstamped paper, the deficiency was made<\/p>\n
good on the payment of penalty as envisaged under the Indian Stamps Act<\/p>\n
and, therefore, was a valid document which could be read in evidence. In<\/p>\n
order to reach to this conclusion the learned lower appellate Court held that<\/p>\n
possibility be Baldev Raj not having the stamp paper at the time of writing<\/p>\n
of agreement could not be ruled out.\n<\/p>\n
             It is also the finding by the learned lower appellate Court that<\/p>\n
there was requirement in law that the agreement to sell should invariably be<\/p>\n
written on stamp paper and its failure would result in rejection of the<\/p>\n
agreement.\n<\/p>\n
             The learned lower appellate Court was also pleased to hold that<\/p>\n
the attesting witnesses were wrongly held to inimical to defendants No. 2 to
\n R.S.A. No. 2020 of 1989                                                9<\/span><\/p>\n
5 as there was no evidence in support of this finding.<\/p>\n
             It is also the finding by the learned lower appellate Court that<\/p>\n
the delay in execution of the sale deed could not be a ground to suspect the<\/p>\n
genuineness of Ex. P-1 as the land was admittedly under mortgage which<\/p>\n
was required to be redeemed before handing over the possession to the<\/p>\n
vendees.\n<\/p>\n
            The learned lower appellate Court was also pleased to hold that<\/p>\n
the learned trial Court wrongly discarded the attesting witnesses merely<\/p>\n
because of relationship. The Court further held that in absence of any<\/p>\n
criminal litigation between plaintiff and defendant No.1 it could not be<\/p>\n
believed that there was any collusion between the parties. The decree was<\/p>\n
also ignored being a consent decree which was obtained by filing of the suit<\/p>\n
which proved that defendant No.1 connived with other defendants and there<\/p>\n
was no collusion between defendant No.1 and the plaintiff. The finding on<\/p>\n
issue No.1 was, therefore, reversed and decided in favour of the plaintiff.<\/p>\n
            Issues No.2 to 5 were decided against defendants No. 2 to 5. It<\/p>\n
was also held by the learned lower appellate Court that the learned trial<\/p>\n
Court decided issue No.3 wrongly as the sale deed executed in favour of the<\/p>\n
appellants was prior to the date fixed for the execution of sale deed and the<\/p>\n
suit was filed by the plaintiff immediately on coming to know about the sale<\/p>\n
deed. It is also the finding of the learned lower appellate Court that the<\/p>\n
plaintiff was to pay only Rs. 5600\/- for execution of the sale deed.<\/p>\n
            The learned lower appellate Court further pleased to hold that<\/p>\n
defendant No. 1 chose not to appear in the witness box to deny the plea of<\/p>\n
willingness of the plaintiff to perform his part of contract rather the stand
\n R.S.A. No. 2020 of 1989                                                10<\/span><\/p>\n
was that he was in need of money and, therefore, had to sell the land to<\/p>\n
defendants No. 2 to 5.\n<\/p>\n
             The learned lower appellate Court further pleased to hold that it<\/p>\n
was pleaded case by defendant No.1 that the appellant \/ defendants were<\/p>\n
informed at the time of execution of the sale about the agreement to sell<\/p>\n
Ex.P-1. Thus, there was no necessity for the plaintiff to prove his<\/p>\n
willingness to perform his part of contract as the date for execution of the<\/p>\n
sale deed was yet to arrive.\n<\/p>\n
             The learned lower appellate Court held under issue No.3 that<\/p>\n
the plaintiff was willing and always willing to perform his part of contract.<\/p>\n
             The learned lower appellate Court in view of the findings,<\/p>\n
referred to above, held that there was no ground to refuse the specific<\/p>\n
performance of agreement Ex.P-1.\n<\/p>\n
             It is important to know that the learned lower appellate Court<\/p>\n
also held that Ex. D-1 to Ex. D-3 i.e. the sale deeds in favour of the<\/p>\n
appellants were only for 27 Kanals of land, however, no reasons were given<\/p>\n
by the learned trial Court to decline the specific performance of agreement<\/p>\n
to sell qua the remaining land measuring 16 Kanal-6 Marlas in view of the<\/p>\n
admission by defendant No.1 to Ex. P-1.\n<\/p>\n
             The learned lower appellate Court rejected the plea of the<\/p>\n
appellant \/ defendants that they were bona fide purchaser for consideration<\/p>\n
in view of the fact that there was no prior agreement of sale in favour of the<\/p>\n
appellants i.e. defendants No. 2 to 5. In order to reverse the finding of the<\/p>\n
learned trial Court that the appellants were bona fide purchaser for<\/p>\n
consideration the learned lower appellate Court placed reliance on the
\n R.S.A. No. 2020 of 1989                                                11<\/span><\/p>\n
statement of DW-5, as in his examination-in-chief he stated that appellants<\/p>\n
were in know of agreement Ex.P-1 as there was admission in the cross-<\/p>\n
examination that when the sale deed was scribed Bakshish Singh was told<\/p>\n
that agreement to sell had been executed.\n<\/p>\n
              The learned lower appellate Court also held that the sale deed<\/p>\n
Ex. D-1 was executed hurriedly. The learned lower appellate Court further<\/p>\n
pleased to held that in view of the criminal litigation pending between the<\/p>\n
plaintiff and defendant No.1 it could easily be presumed that the appellants<\/p>\n
were in know of the agreement in favour of the plaintiff.<\/p>\n
              The finding on issue No.5-A was also reversed. The suit for<\/p>\n
specific performance filed by the plaintiff \/ respondent was, thus, ordered to<\/p>\n
be decreed.\n<\/p>\n
              Mr. J.K. Sibal, learned senior counsel appearing on behalf of<\/p>\n
the appellants raised the following substantial questions of law for<\/p>\n
consideration by this Court in this appeal :-\n<\/p>\n
              1.    Whether the findings recorded by the learned lower<\/p>\n
                    appellate Court are vitiated being based on irrelevant<\/p>\n
                    material and ignoring of relevant material ?\n<\/p><\/blockquote>\n
              2.    Whether the findings by the learned lower appellate<\/p>\n
                    Court are perverse being outcome of misreading of<\/p>\n
                    evidence on record ?<\/p><\/blockquote>\n
              In support of the substantial questions of law the learned senior<\/p>\n
counsel appearing on behalf of the appellants contends that the learned<\/p>\n
lower appellate Court completely misread the evidence brought on record<\/p>\n
especially the fact that admittedly agreement Ex.P-1 was not on stamp paper
\n R.S.A. No. 2020 of 1989                                                12<\/span><\/p>\n
though it was said to have been scribed by a regular scribe.<\/p>\n
            It is also the contention of the learned senior counsel for the<\/p>\n
appellant that the agreement was said to have been scribed at the house of<\/p>\n
the scribe and, therefore, it could not be said that the possibility of stamp<\/p>\n
paper being not available could not be ruled out is thus prima facie perverse.<\/p>\n
      The learned senior counsel appearing on behalf of the appellant also<\/p>\n
contends that the learned trial Court wrongly held that the scribe had<\/p>\n
connived with the appellants though he appeared as witness of the plaintiff<\/p>\n
to prove the execution of the agreement Ex.P-1. It was for the plaintiff \/<\/p>\n
respondent to have proved the due execution of the agreement Ex.P-1 to<\/p>\n
displace the plea of bona fide purchase for consideration as the plaintiff to<\/p>\n
stand on his own legs and the learned trial Court was right in drawing<\/p>\n
adverse inference for not producing a register by raising false plea which<\/p>\n
was found to be false by positive evidence brought on record.<\/p>\n
            It is also the contention of the learned senior counsel for the<\/p>\n
appellant that the attesting witnesses being relative were rightly not believed<\/p>\n
by the learned trial Court. The contention of the learned senior counsel is<\/p>\n
that even if for the sake of argument the enmity is found to be not proved<\/p>\n
still the attesting witnesses being close relative coupled with the fact that<\/p>\n
the agreement was on a plain paper the finding by the learned trial Court,<\/p>\n
therefore, could not have been reversed.\n<\/p>\n
            It is also the contention of the learned senior counsel that the<\/p>\n
finding of the learned lower appellate Court that because of land being<\/p>\n
under mortgage the period of three years was fixed for execution of the sale<\/p>\n
deed is also perverse as it is based on no positive evidence on record. There
\n R.S.A. No. 2020 of 1989                                               13<\/span><\/p>\n
is a force in this contention as it is always open to the vendor to give<\/p>\n
symbolic possession of the land under mortgage by executing the sale deed<\/p>\n
and, therefore, the findings by the learned lower appellate Court that the<\/p>\n
period of three years was justified though only meager amount of Rs. 5600\/-<\/p>\n
was left to be paid is certainly misreading of evidence and, thus, perverse.<\/p>\n
             Thus, in view of the contention raised above, the contention of<\/p>\n
the learned senior counsel appearing on behalf of the appellant is that the<\/p>\n
learned lower appellate Court has considered the irrelevant and inadmissible<\/p>\n
evidence by ignoring the positive evidence on record. It is also the<\/p>\n
contention of the learned senior counsel that the findings by the learned<\/p>\n
lower appellate Court in reversing the well reasoned judgment of the<\/p>\n
learned trial Court is, thus, perverse and not sustainable in law.<\/p>\n
             Mr. R.C. Setia the learned senior counsel appearing on behalf<\/p>\n
of the plaintiff \/ respondent No.1, however, supported the judgment and<\/p>\n
decree passed by the learned lower appellate Court on the contention that<\/p>\n
though the agreement was not on stamp paper the defect was duly rectified<\/p>\n
by paying penalty under the Indian Stamp Act and, thus, could not be<\/p>\n
ignored in evidence. It is also the contention of the learned senior counsel<\/p>\n
appearing on behalf of the plaintiff \/ respondent No.1 that the learned lower<\/p>\n
appellate Court was justified in upholding the agreement Ex.P-1 though<\/p>\n
attested by the close relations as the finding of the learned trial Court that<\/p>\n
there was enmity between the parties stood belied.\n<\/p>\n
      The contention of the learned senior counsel for respondent No.1,<\/p>\n
therefore, was that there was no evidence whatsoever on record to prove the<\/p>\n
relationship of attesting witnesses with the plaintiff and, therefore, the
\n R.S.A. No. 2020 of 1989                                                 14<\/span><\/p>\n
contention of the learned counsel for the appellant that the agreement Ex.P-<\/p>\n
1 was suspicious and not a genuine document, deserves to be rejected.<\/p>\n
             Finally, it was contended by the learned senior counsel<\/p>\n
appearing on behalf of respondent No.1 that admittedly the sale deed in<\/p>\n
favour of the appellants No. 2 to 5 was only for 27 Kanals and the<\/p>\n
appellants, therefore, had no right to challenge the specific performance of<\/p>\n
agreement qua the remaining land agreed to be sold under the agreement<\/p>\n
Ex.P-1, in view of the admission made by defendant No.1 admitting its due<\/p>\n
execution.\n<\/p>\n
             On consideration of the respective contention, I find force in<\/p>\n
the contention raised by the learned senior counsel for the appellant. Even if<\/p>\n
the agreement Ex.P-1 can be read into evidence in view of the admission of<\/p>\n
its execution by defendant No.1 the vendor after the payment of penalty still<\/p>\n
it is a strong stand to hold that the appellants were in know of the agreement<\/p>\n
Ex.P-1. It is not explained by way of positive evidence on record as to why<\/p>\n
the deed writer would write an agreement to sell on a plain paper. The<\/p>\n
finding of the learned lower appellate Court, thus, that the agreement to sell<\/p>\n
was not required to be on stamp paper is perverse on the face of it as the<\/p>\n
agreement to sell as per the provisions of the Stamp Act is required to be<\/p>\n
executed on a stamp paper and not on the plain paper.\n<\/p>\n
             The finding of the learned lower appellate Court is perverse as<\/p>\n
in case the finding was to be sustained then where was the necessity for<\/p>\n
forging of the agreement and imposition of penalty under the Stamp Act. It<\/p>\n
is admitted case of the parties that the agreement Ex.P-1 was got validated<\/p>\n
only after the filing of the suit. On the date of filing of the suit there was no
\n R.S.A. No. 2020 of 1989                                               15<\/span><\/p>\n
admissible evidence to show that there was admissible agreement Ex.P-1<\/p>\n
prior in time under which defendant No.1 had agreed to sell the land to the<\/p>\n
appellants. The finding of the learned lower appellate Court also cannot be<\/p>\n
sustained as the evidence of scribe was required to be rejected or his<\/p>\n
connivance with the parties, even if for the sake of argument, it is admitted<\/p>\n
that scribe had connived with the appellants still the credibility of the<\/p>\n
witnesses was lost and if the evidence of scribe is ignored then the attesting<\/p>\n
witnesses were admittedly relation of the plaintiff \/ respondent as the<\/p>\n
specific pleadings in this regard were not denied though replication was<\/p>\n
filed to the written statement.\n<\/p>\n
             This Court also finds force in the contention raised by the<\/p>\n
learned senior counsel for the appellant that the learned lower appellate<\/p>\n
Court wrongly held that the appellant to be not bona fide purchaser for<\/p>\n
consideration.\n<\/p>\n
             In view of the findings recorded above and the evidence on<\/p>\n
record, it can safely be said that the appellants were bona fide purchaser for<\/p>\n
consideration and there was connivance of plaintiff with defendant No.1 in<\/p>\n
view of the admission by defendant No.1 that at the time of execution of<\/p>\n
sale deed the appellants were informed about the agreement to sell Ex.P-1.<\/p>\n
Thus the admission itself was sufficient to hold that the connivance of<\/p>\n
defendant No.1 with plaintiff as attempt was taken to disbelieve the stand of<\/p>\n
the appellant that they were bona fide purchaser for consideration.<\/p>\n
             The substantial questions of law are answered in favour of the<\/p>\n
appellant. Consequently, the judgment and decree passed by the learned<\/p>\n
lower appellate Court is set aside and that of the learned trial Court is
\n R.S.A. No. 2020 of 1989                                                16<\/span><\/p>\n
restored holding the appellant \/defendants No. 2 to 5 to be bona fide<\/p>\n
purchaser for consideration. However, in view of the admission of<\/p>\n
defendant No.1 with regard to the agreement Ex.P-1 in favour of respondent<\/p>\n
No.1 the suit of the plaintiff \/ respondent for specific performance is ordered<\/p>\n
to be decreed qua the remaining land with plaintiff \/ respondent No.1 i.e. 16<\/p>\n
Kanal-6 Marlas on payment of proportionate cost. The decree passed by the<\/p>\n
learned Courts below, therefore, is modified and the suit of the plaintiff \/<\/p>\n
respondent No.1 is decreed only qua 16 Kanal – 6 Marlas land on payment<\/p>\n
of proportionate sale consideration. However, the suit qua 27 Kanals is<\/p>\n
ordered to be dismissed by holding the plaintiff appellant to be bona fide<\/p>\n
purchaser for consideration.\n<\/p>\n
            Appeal partly allowed.\n<\/p>\n<\/p>\n
2.2.2009                                         ( VINOD K. SHARMA )\n  'sp'                                                JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Shiv Singh & Others vs Lakha Singh & Another on 2 February, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-197409","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nShiv Singh & Others vs Lakha Singh & Another on 2 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shiv-singh-others-vs-lakha-singh-another-on-2-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shiv Singh & Others vs Lakha Singh & Another on 2 February, 2009 - 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