{"id":222111,"date":"2008-12-19T00:00:00","date_gmt":"2008-12-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tarsem-lal-and-another-vs-devi-dial-on-19-december-2008"},"modified":"2016-01-31T17:45:08","modified_gmt":"2016-01-31T12:15:08","slug":"tarsem-lal-and-another-vs-devi-dial-on-19-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tarsem-lal-and-another-vs-devi-dial-on-19-december-2008","title":{"rendered":"Tarsem Lal And Another vs Devi Dial on 19 December, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Tarsem Lal And Another vs Devi Dial on 19 December, 2008<\/div>\n
Regular Second Appeal No. 570 of 2004                                    1\n\n\n\n\n      In the High Court of Punjab and Haryana, at Chandigarh.\n\n                Regular Second Appeal No. 570 of 2004\n\n                     Date of Decision: 19.12.2008\n\n\nTarsem Lal and Another\n                                                              ...Appellants\n                                  Versus\nDevi Dial\n                                                             ...Respondent\n\nCORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.\n\nPresent: Mr. Ashok Singla, Advocate\n         for the appellants.\n\n            Mr. Arun Palli, Senior Advocate\n            with Mr. Parminder Singh, Advocate\n            for the respondent.\n\nKanwaljit Singh Ahluwalia, J.\n<\/pre>\n
            Tarsem Lal son of Rattan Lal and Ashok Kumar son of Shiv<\/p>\n
Lal, both residents of Jaiton Mandi, District Faridkot, had instituted a<\/p>\n
suit for recovery of Rs.2,70,000\/- on the ground that           Devi Dial,<\/p>\n
respondent\/defendant, on 19.8.1995 entered into an agreement to sell<\/p>\n
of vacant plot measuring 33′ X 165′, details of which were given in the<\/p>\n
head note of the plaint situated in Jaiton Mandi, for a sum of<\/p>\n
Rs.8,92,000\/-. It was further pleaded that Rs.2,00,000\/- was paid as<\/p>\n
earnest money by appellants\/plaintiffs to the respondent\/defendant. It<\/p>\n
was   further    agreed   that   Rs.4,92,000\/-   will   be   paid   to   the<\/p>\n
respondent\/defendant on or before 18.11.1995 and the balance was to<\/p>\n
be paid at the time of execution of sale deed for which the date fixed<\/p>\n
was on or before 31.3.1996. It was further stated that at the time of
\n Regular Second Appeal No. 570 of 2004                                           2<\/span><\/p>\n
agreement to sell, an assurance was given by respondent\/defendant<\/p>\n
that he was exclusive owner in possession of the plot and the same is<\/p>\n
free from all encumbrances. It has been further stated in the plaint that<\/p>\n
in November          1995,     when payment of Rs.4,92,000\/- was due, the<\/p>\n
appellant\/plaintiffs requested         the respondent\/defendant to show the<\/p>\n
document of title regarding the plot in dispute upon which time was<\/p>\n
sought by the respondent\/defendant and as such amount was not paid<\/p>\n
and          received.       According        to     appellants\/plaintiffs,     the<\/p>\n
respondent\/defendant was neither exclusive owner nor in possession of<\/p>\n
the plot in dispute. It was further stated that respondent\/defendant was<\/p>\n
co-sharer to the extent of 1\/10th share of the land measuring 13 kanals<\/p>\n
19 marlas and his share was only to the extent of 2 kanals. Out of two<\/p>\n
kanals, he had already sold 17 marlas of land to Gurdit Singh and<\/p>\n
Lachhman Singh and 13.1\/3rd marlas to Nazar Singh vide sale deeds<\/p>\n
dated 28.7.1993 and 29.4.1993, respectively. In this way he sold the<\/p>\n
land measuring 30.1\/3rd marlas. Therefore, the respondent\/defendant<\/p>\n
was not owner of 1             kanal of land. The appellants\/plaintiffs further<\/p>\n
claimed that the respondent\/defendant was co-sharer and his khatta<\/p>\n
being joint was not partitioned. It was further stated that on 27.3.1996,<\/p>\n
the date of execution of agreement to sell was extended upto 8.4.1996<\/p>\n
and   till    then    the    respondent\/defendant      had    not   satisfied   the<\/p>\n
appellants\/plaintiffs regarding his title over the suit property. Notice was<\/p>\n
served upon the              appellants\/plaintiffs   through Mr. B.D .Kumar,<\/p>\n
Advocate, on 27.1.1997 and another notice was also served upon them<\/p>\n
on 19.4.1997, which were replied by the appellants\/plaintiffs on<\/p>\n
2.5.1997. In response to the reply filed by the appellants\/plaintiffs, the
\n Regular Second Appeal No. 570 of 2004                                    3<\/span><\/p>\n
respondent\/defendant also filed reply on 21.5.1997 in which he stated<\/p>\n
that he had purchased the property and mutation had been sanctioned<\/p>\n
regarding the plot in dispute. It was further stated therein that copy of the<\/p>\n
sale   deed    and   mutation    had    already    been    shown    to   the<\/p>\n
appellants\/plaintiffs but this fact had been denied in the plaint by the<\/p>\n
appellants\/plaintiffs. The respondent\/defendant in his response had<\/p>\n
already sent a copy of Jamabandi in which a reference of one mutation<\/p>\n
No. 9591 on the basis of sale deed executed by Rajinder Parshad in<\/p>\n
favour of respondent\/defendant was made. The appellants\/plaintiffs<\/p>\n
submitted in the plaint that they came to know later that mutation was<\/p>\n
rejected on 30.3.1997 as a few co-sharers were             partners of M\/s<\/p>\n
Dashmesh Paper Mills, Jaiton and title deed of the            property was<\/p>\n
deposited by them with the State Bank of Patiala by way of collateral<\/p>\n
security due to loan has been raised by M\/s Dashmesh Paper Mills,<\/p>\n
Jaiton was sanctioned and the original title deed was with the bank. It<\/p>\n
was further stated that the land has not been partitioned. The<\/p>\n
respondent\/defendant had already sold the best part of the land out of<\/p>\n
the joint holding and there was litigation between Rajinder Parshad and<\/p>\n
Kulwant Rai and, therefore, due to litigation, principle of lis pendence is<\/p>\n
to operate and, therefore, terms of the agreement to sell have been<\/p>\n
violated by the respondent\/defendant. Therefore, the appellants\/plaintiffs<\/p>\n
were entitled to a refund of Rs.2,00,000\/- along with interest at the rate<\/p>\n
of 18% per annum.\n<\/p>\n
          Notice of the suit was issued.\n<\/p>\n
          The respondent\/defendant caused appearance; filed written<\/p>\n
statement taking a preliminary objection that suit for specific
\n Regular Second Appeal No. 570 of 2004                                      4<\/span><\/p>\n
performance of the agreement to sell dated 19.8.1995 ought to have<\/p>\n
been   filed.    A    further   preliminary   objection    was     taken   that<\/p>\n
respondent\/defendant was always ready and willing to perform his part<\/p>\n
of the contract and for that he appeared before the Sub Registrar,<\/p>\n
Jaiton, on 8.4.1996, date fixed for execution of sale deed. It was further<\/p>\n
submitted in the written statement that the respondent\/defendant is the<\/p>\n
owner in possession of the plot in dispute at the relevant time and the<\/p>\n
fact that there was no encumbrance of any kind on the plot in question<\/p>\n
was    specifically   taken.     It   was     further     stated    that   the<\/p>\n
respondent\/defendant had a transferable title as per terms & conditions<\/p>\n
of the agreement dated 19.8.1995. It was further stated therein that the<\/p>\n
date of execution of agreement to sell was extended from 27.3.1996<\/p>\n
upto 8.4.1996. It was further stated that the date of execution of<\/p>\n
agreement to sell was extended because the respondent\/defendant had<\/p>\n
purchased the suit property from Rajinder Parshad vide registered sale<\/p>\n
deed dated 22.3.1996. Therefore,        he being the exclusive owner in<\/p>\n
possession of the plot could execute the sale deed.              In the written<\/p>\n
statement, it was specifically stated that the mutation was sanctioned in<\/p>\n
favour of the respondent\/defendant and the sale deed was executed on<\/p>\n
22.3.1996. It was further submitted that no litigation of any kind was<\/p>\n
pending against him. Therefore, it was pleaded that there was breach on<\/p>\n
the part of the appellants\/plaintiffs and they are not entitled to<\/p>\n
reimbursement of any kind.\n<\/p>\n
          Replication to the written statement was filed by the<\/p>\n
appellants\/plaintiffs in which submissions made in the             plaint were<\/p>\n
reiterated. After the completion of pleadings, learned trial Court framed
\n Regular Second Appeal No. 570 of 2004                                        5<\/span><\/p>\n
the following issues:-\n<\/p>\n
      1.     Whether     the   plaintiffs   are   entitled   to   recovery       of<\/p>\n
             Rs.2,70,000\/-, as alleged from the defendant? OPP<\/p>\n<\/blockquote>\n
      2.     Whether the suit in the present form is not maintainable, as<\/p>\n
             alleged? OPD.\n<\/p><\/blockquote>\n
      3.     Whether the defendant remained ready and willing and is<\/p>\n
             still ready and willing to perform his part of the contract, if<\/p>\n
             so, its effect? OPD<\/p>\n<\/blockquote>\n
      4.     Whether the defendant is owner of the disputed property,<\/p>\n
             as alleged? OPD<\/p>\n<\/blockquote>\n
      5.     Relief.<\/p><\/blockquote>\n
           Trial Court decreed the suit of the appellants\/plaintiffs. Trial<\/p>\n
Court held that since execution of agreement to sell and payment of<\/p>\n
Rs.2,00,000\/- is admitted by the parties and on the date of execution of<\/p>\n
the agreement to sell Ex.P1, the respondent\/defendant was not owner in<\/p>\n
possession of the suit property, therefore, he could not execute<\/p>\n
agreement to sell and since the land          was not joint, there was no<\/p>\n
partition and at the time of execution of agreement to sell, he was not<\/p>\n
holding any share to the extent of 1 kanal in his khata. Therefore, the<\/p>\n
appellants\/plaintiffs are entitled to a refund of amount which has been<\/p>\n
misrepresentation on the part of the respondent\/defendant. Trial Court<\/p>\n
further held that the fact that before the date of execution of the sale<\/p>\n
deed Ex.DW2\/A, respondent\/defendant became owner of the plot is of<\/p>\n
no consequence.\n<\/p>\n
           Aggrieved against the same, respondent\/defendant preferred<\/p>\n
an appeal and in the same, findings returned by learned trial Court were
\n Regular Second Appeal No. 570 of 2004                                      6<\/span><\/p>\n
reversed by learned District Judge, Faridkot.\n<\/p>\n
           Learned lower Appellate Court held that agreement Ex.P1<\/p>\n
executed on 19.8.1995, tally and marry with the boundaries of the plot<\/p>\n
as given in the sale deed Ex.DW2\/A. It was further held that on<\/p>\n
22.3.1996, respondent\/defendant became owner in possession of the<\/p>\n
property, therefore, before the period fixed for execution of the sale<\/p>\n
deed,     the   plot    was    free   from    any    encumbrance     and   the<\/p>\n
respondent\/defendant had a transferable title in question.<\/p>\n
           Learned lower Appellate Court further relied upon Ex.D2, reply<\/p>\n
given by the respondent\/defendant through his counsel to the notice of<\/p>\n
the appellants\/plaintiffs dated 2.5.1997, in which it was stated that he is<\/p>\n
ready and willing to execute the sale deed and, therefore, the<\/p>\n
appellants\/plaintiffs should execute the sale deed within 15 days.<\/p>\n
Having held so, learned lower Appellate Court concluded that the<\/p>\n
plaintiffs were at fault for not getting the sale deed executed from the<\/p>\n
defendant as per terms of agreement and, therefore, suit is not<\/p>\n
maintainable and the plaintiffs should have filed the suit for specific<\/p>\n
performance of the agreement or in the alternative for the recovery of<\/p>\n
amount     paid under the agreement for the fault in the title of the<\/p>\n
defendant regarding the plot in dispute as mentioned in the agreements<\/p>\n
Ex.P1 and Ex.P2.\n<\/p>\n
           Findings of learned lower Appellate Court are being<\/p>\n
challenged by          Mr. Ashok Singla, Advocate, appearing for the<\/p>\n
appellants\/plaintiffs before me.\n<\/p>\n
           It has been canvassed by Mr. Singla that from the day when<\/p>\n
the     agreement      to   sell   Ex.P1     was    executed   on   19.8.1995,
\n Regular Second Appeal No. 570 of 2004                                        7<\/span><\/p>\n
respondent\/defendant had no title over the property as he had already<\/p>\n
sold the property to the extent of his share. Therefore, this material<\/p>\n
aspect has been ignored by learned lower Appellate Court. He further<\/p>\n
submitted that since the account (khata) of the land was joint and there<\/p>\n
was no partition, therefore, respondent\/defendant could not sell<\/p>\n
identifiable plot in favour of the appellants\/plaintiffs. Therefore, the<\/p>\n
appellants\/plaintiffs have rightly not pursued the agreement to sell and<\/p>\n
their only remedy was to seek refund of the amount by filing of the<\/p>\n
recovery suit.\n<\/p>\n
             It was further stated that since the title deed has been<\/p>\n
deposited with the State Bank of Patiala and there was litigation pending<\/p>\n
with   the    bank,     therefore,   there   was   no   clear   title   of   the<\/p>\n
respondent\/defendant.\n<\/p>\n
             I am not impressed by the contentions raised by learned<\/p>\n
counsel for the appellants\/plaintiffs as during the course of his<\/p>\n
arguments for sake of convenience, important and vital dates, details<\/p>\n
and their effect was skipped.\n<\/p>\n
             It is not disputed that an agreement to sell was executed on<\/p>\n
19.8.1995, according to which last date for execution of agreement to<\/p>\n
sell was 31.3.1996.\n<\/p>\n
             From perusal of evidence and pleadings, it is evident that the<\/p>\n
respondent\/defendant was not taking identifiable and valid title,<\/p>\n
therefore, notices were being issued by the appellants\/plaintiffs. What is<\/p>\n
being missed and, therefore, it is noticed here that during the<\/p>\n
subsistence of agreement to sell, on 22.3.1996 vide sale deed<\/p>\n
Ex.DW2\/A, the respondent\/defendant in order to give effect to
\n Regular Second Appeal No. 570 of 2004                                     8<\/span><\/p>\n
agreement to sell      dated 19.8.1995, which was valid till 31.3.1996<\/p>\n
acquired plot vide sale deed dated 22.3.1996 in his favour.<\/p>\n
          It is also not disputed that thereafter five days later vide a<\/p>\n
writing dated 27.3.1996 Ex.P2 the date of execution of agreement to sell<\/p>\n
was extended. It has been rightly stated by learned counsel for the<\/p>\n
respondent that it was not mere extension of time vide Ex.P2, the terms<\/p>\n
& conditions were also varied. As per Ex.P2, sale deed was to be<\/p>\n
executed on or before 8.4.1996. When Ex.P2 was executed on<\/p>\n
27.3.1996, it was expected, that the appellants\/plaintiffs who were<\/p>\n
making a grievance that the respondent\/defendant had no title at the<\/p>\n
time of extension of time on 27.3.1996, ought to have verified, asked<\/p>\n
and satisfied themselves that the respondent\/defendant has acquired<\/p>\n
the title, therefore, sale deed in favour of the respondent\/defendant vide<\/p>\n
Ex.DW2\/A on 22.3.1996 assume importance. Document Ex.P2 vide<\/p>\n
which not only date was extended but terms were also varied was a<\/p>\n
fresh composite agreement to sell. Therefore, it is natural, probable and<\/p>\n
convincing that Ex.P2 was executed after the appellants\/plaintiffs had<\/p>\n
held a thorough enquiry and had satisfied themselves. Therefore, it has<\/p>\n
been rightly held by learned lower Appellate Court that the remedy for<\/p>\n
the appellants\/plaintiffs was to institute a suit for specific performance.<\/p>\n
          In view of the subsequent writing Ex.P2 dated 27.3.1996 all<\/p>\n
other arguments that the same was subject matter of litigation with the<\/p>\n
bank will pale into insignificance. Reply to notice dated 2.5.1997 Ex.D2,<\/p>\n
in which it was stated that the respondent\/defendant is ready and willing<\/p>\n
to   perform    his   part   of   agreement.     Dasti    notice   sent       by<\/p>\n
respondent\/defendant was also accompanied by copy of sanctioned
\n Regular Second Appeal No. 570 of 2004                                 9<\/span><\/p>\n
mutation.\n<\/p>\n
            Learned lower Appellate Court had rightly held that the<\/p>\n
boundaries of the plot has been given in the sale deed Ex.DW2\/A tally<\/p>\n
and marry with the boundaries specified in agreement to sell Ex.P1. As<\/p>\n
noticed by learned lower Appellate Court, PW.2 Tarsem Lal has<\/p>\n
admitted     that   he   had   seen    the    plot   purchased   by   the<\/p>\n
respondent\/defendant and the same was having foundations of the<\/p>\n
boundary wall. Therefore, the argument that that khata was not<\/p>\n
partitioned is also not available to the appellants\/plaintiffs. I find no<\/p>\n
infirmity in the findings returned by learned lower Appellate Court.<\/p>\n
Therefore, an attempt of learned counsel for the appellants\/plaintiffs to<\/p>\n
formulate question of law at the time of execution of agreement to sell<\/p>\n
Ex.P1, there was misrepresentation on the part of respondent\/defendant<\/p>\n
and, therefore, appellants\/plaintiffs are unable to seek refund of earnest<\/p>\n
money as discussed above        is not made out as subsequent writing<\/p>\n
dated 27.3.1996 Ex.P2 cannot be ignored taking into consideration sale<\/p>\n
deed Ex.DW2\/A dated 22.3.1996 in favour of respondent\/defendant.<\/p>\n
            Therefore, on application of facts and circumstances of the<\/p>\n
case, no substantial question of law can be formulated which require<\/p>\n
consideration of this Court.\n<\/p>\n
            Therefore, I find no merit in the present appeal and the same<\/p>\n
is dismissed upholding the findings returned by learned lower Appellate<\/p>\n
Court.\n<\/p>\n<\/p>\n
                                             (Kanwaljit Singh Ahluwalia)
\n                                                                  Judge
\nDecember 19, 2008
\n“DK”<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Tarsem Lal And Another vs Devi Dial on 19 December, 2008 Regular Second Appeal No. 570 of 2004 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 570 of 2004 Date of Decision: 19.12.2008 Tarsem Lal and Another …Appellants Versus Devi Dial …Respondent CORAM: HON’BLE MR. […]<\/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-222111","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nTarsem Lal And Another vs Devi Dial on 19 December, 2008 - 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\/tarsem-lal-and-another-vs-devi-dial-on-19-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tarsem Lal And Another vs Devi Dial on 19 December, 2008 - 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