Kulwant Kaur and Others vs Tarsem Lal

Rakesh Kumar Garg, J.

CM No. 5626-C of 2013

Allowed to the extent of bringing on record the Legal Representatives of Baldev Singh.

RSA No. 2100 of 2013 (O & M)

This is defendants'' second appeal challenging the judgment and decree dated 22.02.2008 of the Civil Judge, Junior Division, Nakodar whereby suit of the plaintiff-respondent for possession by way of specific performance of the agreement to sell dated 03.05.1999 in respect of the suit land was decreed, and the judgment and decree dated 23.02.2013 passed by the Court of Additional District Judge, Fast Track Court (Adhoc), Jalandhar upholding the aforesaid judgment and decree of the trial Court.

Plaintiff-respondent filed a suit for possession by way of specific performance of the agreement to sell dated 03.05.1999 pleading that the land in dispute was previously owned by Swaran Singh and after his death, defendants-appellants being Legal Representatives of deceased Swaran Singh became the owners in possession of the suit land and being owners of the suit property entered into an agreement to sell dated 03.05.1999 at the rate of Rs. 3,50,000/- per acre after receiving the earnest money of Rs. 36,000/-. On 02.05.2000 Baldev Singh, one of the defendants, extended the date of execution of the sale deed on behalf of all the defendants upto 02.11.2001. The plaintiff-respondent was present on the said date in the office of Sub-Registrar, Shahkot to perform his part of the contract along with the balance sale consideration and other expenses but the defendants-appellants did not reach, and thus, they committed breach of contract. Hence the suit.

Upon notice, the appellants appeared and filed written statement raising various preliminary objections. On merits, it was asserted that the defendants never executed the alleged agreement to sell in favour of the plaintiff nor received any earnest money; however, if the same is proved that will be the result of fraud and misrepresentation. Remaining allegations were denied and dismissal of the suit was prayed.

The plaintiff-respondent filed replication denying the contents of the written statement and reiterating the averments made in the plaint.

From the pleadings of the parties, the trial Court framed following issues:

Whether the plaintiff is entitled to the suit for grant of specific performance of the agreement to sell dated 3.5.1999? OPP

Whether the plaintiff is entitled to the alternative suit for recovery of Rs. 82,000/- as prayed for? OPP

Whether the plaintiff is estopped to file the present suit by his acts and conducts? OPD

Whether the defendants never executed such an alleged agreement to sell in favour of the plaintiff? OPD

Whether the plaintiffs have no cause of action whatsoever in his favour? OPD

Relief.

After going through the evidence led by the parties, the trial Court decreed the suit of the plaintiff holding that execution of the agreement to sell in question stood duly proved; whereas the defendants-appellants'' plea that they never executed the said agreement to sell and the same is a result of fraud, misrepresentation and concealment of the material facts, has not been proved as they have failed to lead any evidence to prove their defence.

The appeal filed by the defendants-appellants against the judgment and decree of the trial Court was also dismissed vide judgment and decree dated 23.02.2013. The relevant paragraph of the judgment of lower appellate Court reads thus:

So far as proving of the agreement dated 3.5.1999 Ex. P1/1 by respondent/plaintiff is concerned, he has been able to discharge his burden in that regard. Here, it is most relevant to mention here that the defendants in their written statement filed in the Court, did not deny the material facts of the plaint, for the reasons best known to them. Appellants/defendants admitted therein that they are owners of the suit property and legal heirs of Swaran Singh and the alleged agreement, if proved, would be a result of fraud, misrepresentation and concealment of material facts and they never received earnest money. They even did not allege anywhere that extension of date does not bear signatures of Baldev Singh or same is forged and fabricated. Any how, plaintiff examined himself as PW 1, Amar Singh (Lambardar), an attesting witness besides producing Prem Singh, another Lambardar, witness of the extension and duly proved the execution of the agreement dated 3.5.1999 Ex. PW 1/1 and extension Ex. PW 1/B of 2.5.2000 in favour of plaintiff/respondent. It is worthwhile to mention here that the present appellants/defendants got recited in the agreement Ex. PW 1/1 that they have inherited the estate of Swaran Singh, (though mutation has not been sanctioned in their favour).

It may further be noticed that though the appellants raised certain other arguments before the lower appellate Court, however, the same were not accepted and thus, the findings of the trial Court were upheld.

Still not satisfied, the defendants-appellants have come to this Court by filing the instant appeal. In the grounds of appeal, the appellants have claimed that the following substantial questions of law arise for consideration of this Court:

A. Whether a person can extend the agreement to sell without the consent of other co-sharers who are 13 in number and agreement to sell was executed by 3 co-sharers only?

B. Whether an agreement to sell executed by 3 persons out of 13 co-sharers is a valid one?

C. Whether a contingent contract can be implemented without the happening of event mentioned in the agreement to sell?

D. Whether the sale deed can be executed without the sanction of mutation which was the condition precedent to the execution of the sale deed in the agreement to sell.

In support of the case, learned counsel for the appellants has vehemently argued that Swaran Singh was the owner of the suit property and he had 13 Legal Representatives surviving at the time of his death but despite that, the courts below accepted the agreement to sell dated 03.05.1999 allegedly entered into by 3 of those Legal Representatives. Not only this, there was a stipulation in the said agreement dated 03.05.1999 that the registered sale deed was to be executed after sanction of mutation but no such mutation was ever sanctioned, and thus, the agreement in question which was a conditional agreement, became unenforceable due to non-sanction of the mutation. It was further argued that Baldev Singh had no legal authority to extend the execution of the sale deed on 02.05.2000 and thus, his signatures affixed over the said extension are forged.

On the basis of the aforesaid arguments, learned counsel for the appellants has submitted that the substantial questions of law, as raised, do arise in this appeal which is liable to be accepted.

I have heard learned counsel for the appellants and perused the judgments and decrees of the courts below.

At this stage, it may be noticed that in the pleadings, the appellants have taken a specific plea denying execution of the agreement to sell in question, further submitting that in case execution is proved the same is the result of fraud and misrepresentation. However, the appellants neither pleaded particulars of fraud in the written statement nor proved any such fraud on the record of the case. Except raising the plea, the appellants did nothing to prove their defence despite the fact that onus was upon them to prove the fraud. Even no argument has been raised against the findings of the courts below that the appellants have failed to prove their version of fraud.

Not only this, from a perusal of the arguments raised before this Court and the substantial questions of law as raised, it is crystal clear that the appellants are not disputing the due and valid execution of the agreement to sell in question.

Though in view of the aforesaid discussion, the questions as raised are not required to be answered; however, it may be noticed that non-joining of remaining Legal Representatives of Swaran Singh is not fatal to the suit as they were not required because the plaintiff-respondent was required to impaled the parties to the agreement dated 03.05.1999 which was done.

In fact, the averments made in paragraph No. 3 of the plaint have been admitted by the appellants. It is well settled that mutation does not confer any title. Moreover, the property has fallen to the share of defendants as admitted by DW-1 in the Court and therefore, it cannot be held that sanctioning of mutation was a condition precedent for the purpose of executing the sale deed in favour of the plaintiff-respondent.

No other argument has been raised.

In view of the aforesaid discussion, this appeal is devoid of any merit. No substantial question of law, as argued, arises in this appeal. Dismissed.