Hukam Chand and Others vs Gurdeep Singh and Others

Rekha Mittal, J.

This order will dispose of RSA No. 3284 of 2014 titled "Hukam Chand and others v. Gurdeep Singh and others" and RSA No. 3417 of 2014 titled "Neena Sharma and others v. Gurdeep Singh and others" as these have emerged out of common judgments and decrees passed by the courts below and involve identical questions of law and facts for adjudication. Gurdeep Singh son of Jhandu Singh, respondent-plaintiff filed the suit for possession as owner seeking specific performance of agreement to sell dated 15.7.1992 pertaining to land measuring 31 bighas 08 biswas, detailed in the head note of the plaint and further challenged sale of suit land by defendant No. 1 in favour of defendant No. 2 vide sale deed dated 27.12.2005 and sale by defendant No. 2 in favour of defendants No. 3 to 5 vide sale deed dated 8.6.2006 being null and void with a direction to the defendants to execute sale deed in favour of the plaintiff or his nominee on payment of Rs. 96,467/-. He also sought declaration that deed dated 6.9.2001 cancelling general power of attorney dated 15.7.1992 is illegal, null and void and the plaintiff has every right to deal with the property in the manner he likes on the basis of Will, affidavit and general power of attorney with consequential relief of injunction.

The learned trial court on the basis of evidence adduced by the parties, in the light of contentious issues formulated in the case, accepted claim of the plaintiff and the suit was decreed in its entirety.

Banarsi Dass, the auction purchaser of the suit land and the vendor under the agreement to sell, propounded by Gurdeep Singh Plaintiff carried the matter in appeal and another appeal was preferred by Neena Sharma and others, the subsequent purchasers vide sale deed executed by defendant No. 2 in the year 2006 and both the appeals were decided by the Additional District Judge, SAS Nagar, Mohali vide impugned judgment and decree dated 24.12.2013 whereby the findings recorded by the learned trial court were affirmed.

Still feeling dissatisfied, the legal representatives of deceased Banarsi Dass have preferred RSA No. 3284 of 2014 and the other appeal has been preferred by Neena Sharma and others.

The sole submission made by counsel for the appellants is that Banarsi Dass purchased the suit land through an auction conducted under the Punjab Package Deal Properties (Disposal) Rules, 1976-(in short "the 1976 Rules") and it was one of the conditions of the restricted auction that the auction purchaser will not alienate the land for a period of 20 years to a person other than belonging to scheduled caste. For this purpose, counsel has pointed out condition No. 6 incorporated in the memorandum of auction Ex. DW6/B. It is further argued that sale certificate in regard to purchase made by Banarsi Dass was issued in the year 1997 and as per sale certificate Ex. DW6/G, there was a complete bar against sale of land in question, in any manner whatsoever, for a period of 20 years from the date of purchase. It is vehemently argued that the respondent-plaintiff has set up an agreement to sell purportedly executed by Banarsi Dass in the year 1992, few days after purchase of the property in auction in June 1992. The agreement to sell cannot be allowed to be specifically enforced as it would violate the terms and conditions of the sale certificate Ex. DW6/G. In support of his contention, he has relied upon judgment of this Court in Rachhpal Singh Vs. Swaran Kaur and Others, .

I have heard counsel for the appellants and perused the records.

Indisputably, Banarsi Dass (since deceased now represented by his legal representatives) purchased the suit land in auction conducted by Tehsildar (Auction) under the 1976 Rules. In the memorandum of auction, which was signed by the auction purchaser and the Tehsildar(Auction) dated 27.6.1992, certain conditions have been incorporated therein and one of the condition at Sr. No. 6 in Punjabi but translated in English reads as follows:--

"I Will not sell or give up the purchased land in any manner for a period of 20 years to a person who does not belong to a scheduled caste."

There is no denial that Gurdeep Singh, proposed vendee under the agreement to sell belongs to a scheduled caste, therefore, the agreement executed by Banarsi Dass in favour of Gurdeep Singh does not violate the aforesaid condition of memorandum of auction Ex. DW6/G.

Rule 6 of 1976 Rules contained in part IV deals with sale of land or property by auction. Sub Rule 8 of Rule 6 of the 1976 Rules creates bar on alienation of land purchased in restricted auction. Sub Rule 8 being relevant and material for disposal of the controversy Ms usefully quoted hereinbelow:--

"Bar on the alienation of the land purchased in restricted auction-(i) Where any land has been sold in restricted auction, the auction purchaser shall not be entitled to lease, transfer, sell, mortgage with possession, or otherwise alienate or part with the land wholly or partly, so purchased, in any manner in favour of a person, who is not a member of the Scheduled Caste or Backward Classes for a period of twenty years; provided that the land may be pledged in favour of Government or Semi Government Corporation, or Cooperative financing institution, for securing loan for effecting improvements on the said land."

Rule 6(8) of the 1976 Rules does not offend the agreement executed by Banarsi Dass to alienate the land purchased in restricted auction to the plaintiff who is admittedly the member of a scheduled caste. Sale certificate Ex. DW6/G does not bear the signatures of any authority. It does not appear to be happily worded and is not fully comprehensive. There could be no condition in the sale certificate more than what has been provided in the 1976 Rules. Keeping in view the condition contained in the memorandum of restricted auction when examined in the light of provisions of 1976 Rules, I find no merit in the contentions of the appellants that the agreement to sell cannot be allowed to be specifically enforced. This apart, any such condition in the sale certificate would not render performance of the agreement impossible in order to attract the provisions of Section 56 of the Indian Contract Act, 1972 which were subject matter of adjudication in the judgment in Rachhpal Singh''s case (supra). A perusal of the sale certificate Ex. DW6/G leaves no manner of doubt that violation of terms and conditions of sale certificate can entail resumption of the suit property by a competent authority under the 1976 Rules. Once the respondent-plaintiff acquires ownership on the basis of agreement of sale, held to be valid in view of concurrent findings of fact recorded by the courts below, it would entirely be risk of the respondent-plaintiff in case the property reverts back to the department concerned for violation of any terms and conditions of restricted auction. Taken from any angle, there is no merit in the contentions of the appellants and the judgment relied upon by counsel has got no bearing on the facts of the case at hand. For the reasons aforesaid, no substantial question of law arises for consideration and the appeals are ordered to be dismissed in limine.