Chanda Devi and Others vs Mukesh Kumar and Others

Rakesh Kumar Garg, J.

CM No. 4875-C of 2013

Application is allowed subject to all just exceptions.

RSA No. 1836 of 2013 (O & M)

As per the averments made, respondent No. 1 was the owner of the land in dispute as detailed in the civil suit. He being owner of the suit property, orally agreed on 15.5.2004 to sell the suit property in favour of plaintiff-appellants for a sale consideration of Rs. 1,19,000/-. Further respondent No. 1 executed the sale deed Ex. PW 2/B on 20.5.2004 in favour of the plaintiffs selling out the suit property after accepting the entire sale consideration from them and further executed a power of attorney EX. PW-2/D in favour of one Amar Nath (PW-2) for the purpose of getting sanctioned mutation of suit property in their favour. However, before completion of formalities for registration of sale deed respondent No. 1 slipped away and did not turn up for registration of the sale deed. It is the further case of the plaintiffs that they contacted respondent No. 1 for registration of sale deed many times but he kept on putting the matter on one pretext or the other. It is the further grievance of the plaintiffs that respondent No. 1 became dishonest and alienated the suit property and other land in favour of defendants No. 2 to 5 vide two registered sale deeds dated 2.12.2004 for a sale consideration of Rs. 12,96,000/-. Thus, it was prayed that the aforesaid sale deed dated 2.12.2004 and subsequent mutations be declared null and void to the extent of alienation of suit property with a further decree of specific relief directing respondent No. 1 to specifically perform agreement/sale deeds dated 20.5.2004 by effecting its registration in favour of plaintiffs with a further relief of permanent injunction to restrain defendants from alienating the suit property in any manner and further interfering in their possession over the suit property.

Upon notice, defendant No. 1 filed written statement raising various preliminary objections. On merits, it was admitted that defendant No. 1 was the owner of the suit property as co-owner of the total land however, he neither executed the sale deed dated 20.5.2004 in favour of the plaintiffs nor he received any sale consideration of Rs. 1,19,000/-. It was further stated that the sale deed dated 20.5.2004 was a forged and fabricated document and was never executed by him. It was further pleaded that Amar Nath PW-2 had earlier filed a suit against Dharam Singh and others regarding suit property and thus, he was an interested person. The other attesting witness was not enjoying good reputation. Since defendant No. 1 had not executed the sale deed, there was no occasion on his part to complete the formalities for registration of sale deed. The impugned sale deeds dated 2.12.2004 were legally executed by him in favour of defendants No. 2 to 5 on these conditions. Dismissal of the suit was prayed.

Defendants No. 2 to 5 filed joint written statement denying the oral agreement to sell the suit property by defendant No. 1 and execution of the alleged sale deed in favour of the plaintiffs. It was pleaded that they were bona fide purchasers from defendant No. 1 for valuable consideration and sale deeds and subsequent mutations cannot be declared illegal. Dismissal of the suit was prayed for.

On the basis of the pleading of the parties, the following issues were framed:

Whether the plaintiffs are entitled for possession by way of specific performance of agreement to sell dated 20.05.2004? OPP.

Whether sale deed bearing vasika no. 1358 dated 2.12.2004 and sale deed bearing vasika no. 1359 dated 2.12.2004 are illegal, null and void and not binding upon the right of the plaintiffs? OPP.

In the case issues no. 1 and 2 are decided in favour of plaintiffs in affirmative, then whether plaintiffs are entitled for relief of permanent injunction as prayed for? OPP.

Whether the suit is not maintainable in the present form? OPD.

Relief.

After considering the evidence on record, the trial Court held that respondent-defendant No. 1 executed the alleged sale deed dated 20.5.2004 and also received the entire sale consideration of a sum of Rs. 1,19,000/-. However, it was further found that in view of the fact that the land in dispute stood sold to the subsequent vendees i.e. Defendants No. 2 to 5 vide sale deeds dated 2.12.2004 and that from the testimony of Kura Ram-plaintiff himself, his case for relief of specific performance is falsified as the sale deed Ex. PW 2/B cannot be enforced in the absence of terms and conditions of the agreement which were lacking. Moreover, the subsequent sale deeds were executed on 2.12.2004 but the appellants failed to take any steps for redressal of their grievances for a long time and in these circumstances, the trial Court decreed the suit for recovery of the amount in question. However, the trial Court further found the appellants in possession and thus, the respondents were restrained from interfering in the possession of the appellants of the suit property forcibly or illegally except in due course of law.

Aggrieved from the aforesaid judgment and decree of the trial Court, the appellants filed an appeal. Respondent No. 1 also filed a cross appeal. Both these appeals were dismissed vide impugned judgment and decree dated 22.12.2012 of the Lower Appellate Court.

The instant second appeal is at the instance of plaintiffs. Defendant has not filed any appeal against dismissal of cross-objections.

It may be noticed that while affirming the findings of the trial Court, the Lower Appellate Court found that the appellants had challenged the sale deeds in favour of defendants No. 2 to 5 belatedly in spite of the fact that they were having the knowledge of the said sale deeds and thus, according to the Appellate Authority, the plaintiff-appellants accepted those sale deeds silently and therefore, the trial Court rightly declined to grant the relief of specific performance of the agreement to sell in their favour.

It may further be noticed that the Assistant Collector 1st Grade, ordered ejectment of the plaintiff-appellants from the suit land and in the meantime, defendant No. 1 had executed sale deeds in favour of defendants No. 2 to 5 yet the plaintiff-appellants remained silent and thus, the facts of this case have rendered the grant of specific performance of agreement impossible. Reference can be made to the judgment of this Court in Surat Singh and Others Vs. Satbir and Others, The Punjab law Reporter 806. In fact there is nothing on record to suggest that respondents No. 2 to 5 were not bona fide purchasers for valuable consideration of the suit property.

Not only this, the appellants have further failed to prove the terms and conditions of the alleged oral agreement. It is further not in dispute that sale deed dated 20.5.2004 is also silent regarding terms and conditions of the alleged agreement. In fact the trial Court has held that in the facts and circumstances of the case, suit for specific performance of the agreement/sale deed dated 20.5.2004 was not maintainable but no argument has been raised on the maintainability of the suit in the present form.

There is ample evidence on record to support the findings of the Courts below. By raising arguments, as noticed above, counsel for the appellants wants that this Court on reappraisal of evidence may take a different view than the view taken by the Courts below which is not permissible u/s 100 of the CPC.

In view thereof, the substantial questions of law, as raised in para No. 8 of the grounds of appeal, do not arise at all.

No other argument has been raised. Dismissed.