Paramjit Singh vs Maghar Singh

Mahesh Grover, J.—The Petitioner is aggrieved by the order dated 13.9.2010 by which his objections have been dismissed.

The father of the Petitioner faced proceedings in a suit for specific performance initiated by the Respondent and while allowing the prayer of the Respondent, the suit was decreed in the following terms:

It is ordered that the suit of the Plaintiff succeeds and is hereby decreed as prayed for, for possession by way of specific performance of the agreement to sell dated 19.9.1988 with costs. Defendant is directed to execute and register the sale deed within two months, in favour of Plaintiff.

The Petitioner filed an appeal against the said order which was dismissed with the marginal modification in the decree passed by the Trial Court. The Appellate Court observed while confirming the judgment and decree of the learned Trial Court that "the sale deed of the suit land executed in favour of the Plaintiff in pursuance of the decree under appeal shall be subject to the rights of the co-sharers at the time of final partition and also that it shall not affect the rights in the suit of Kartar Kaur wife of the Defendant who is co-sharer in the suit land to the extent of half share. The decree-sheet be prepared accordingly.

The Petitioner is the son of Sadhu Singh who was Defendant in the aforesaid suit and Kartar Kaur was his mother. Both Sadhu Singh and Kartar Kaur are said to have expired and the Petitioner is the legal representative and one of the successors to the suit property. The agreement to sell which was in question pertains to land measuring 8 kanals but the Respondent who was the Plaintiff sought specific performance of 7 kanals and 11 marlas of land bearing khasra No. 36//6/2, 37//10/2 and 37//9/2. This was one of the factors which weighed with the Court that even though the agreement was for 8 kanals the Respondent sought specific performance of 7 kanals and 11 marlas without making any variance in the payment agreed upon. The sale deed was pursuant to the decree passed on 5.2.1999 by the Trial Court which was executed in January, 2000. The marginal modification given out by the Appellate Court was made on 12.10.2000 which was one of the causes of grievance of the Petitioner who says that since the sale deed has been executed prior to the modification given by the Appellate Court it has resulted in substantial prejudice to his case. He however does not come straightforward on the point as to whether he is willing to get the decree executed and deliver the possession to the Respondent in terms of the modification which attained finality. The grievance of the Petitioner further is that the possession of the property cannot be given to the Respondent in the absence of any partition proceedings and further that no specific khasra Nos. can be given to the Respondent.

I have heard learned Counsel for the Petitioner and have perused the impugned order and also the other relevant material which has come on record.

The father of the Petitioner initially executed an agreement to sell in favour of the Respondent qua 8 kanals of land which was not translated into a sale deed in terms of the said agreement forcing the Respondent into litigation. The suit for specific performance was decreed in the year 1999 by the learned Trial Court and affirmed by the Appellate Court on 12.10.2000. The only modification which the Appellate Court in its wisdom made was qua the share of Kartar Kaur and the observation was that the Respondent was entitled to get the sale deed executed subject to the rights of the co-sharers at the time of final partition and that it shall not affect the rights of Kartar Kaur the wife of Sadhu Singh, the said Defendant in the suit. The sale deed was executed in January, 2000 and it is pursuant to that and the decrees which have been passed in favour of the Respondent that the possession of the land has been sought from the Petitioner who now clings tenaciously to the same. The entire conduct of Sadhu Singh, the Defendant as well as the Petitioner, is dishonest to say the least and agreement to sell executed was not enforced despite the decrees of the Courts below and once the sale deed was executed, the possession is being resisted. The Petitioner seeks protection in view of the modified order of the Appellate Court but if that observation is to be seen and examined then it merely protects the rights of the co-sharers who have not made any grievance of any proceedings before the Executing Court. It is thus evident that the Petitioner is seeking to defy the execution and consequent possession of the suit property in favour of the Respondent. It has rightly been observed by the Executing Court as also by the Trial Court and Appellate Court that the Respondent is merely seeking possession of the lesser area without making any variance in the amount agreed to be paid. The Executing Court has also rightly directed that symbolic possession be given as the decree contemplated actual partition and protects the rights of the co-sharers. There is thus no ambiguity or infirmity in the impugned order.

Dismissed.