Ranjit Singh vs Kaka Singh

Ashok Bhan, J.—The present appeal has been filed by a purchaser who purchased the property during the pendency of the-regular first appeal from the vendor (hereinafter referred to as the purchaser - vendor) in suit -for specific performance filed by the vendee-respondents which was dismissed by the trial, court but in appeal the judgment was reversed by the learned Single Judge of this Court. The facts shortly stated are as under:-

Plaintiff-respondents (hereinafter referred to as the vendees) filed a suit for specific performance of the agreement dated 30.4.1968 (Ex. P.1) alleging that defendant Gurbachan Singh agreed to sell his land measuring 80 Kanals, the details of which are given in the head-note of the plaint to the plaintiff-appellant for a sum of Rs. 23,000/- Rs. 10,000/- were received by Gurcharan Singh vendor as earnest money. The sale deed was to be executed by 15.6.1969 and the balance amount of Rs. 13,000/- was to be paid at the time of execution of the sale deed. It . was stipulated in the agreement Ex-P-1 that in case the plaintiffs failed to perform their part of the contract then they would be liable to pay a sum of Rs. 2,000/- as compensation and if the vendor Gurcharan Singh failed to perform his part of the contract then he would be liable to return the sum of Rs. 10,000/-which was received by him as earnest money along with Rs. 2,000/- as compensation for not executing the agreement. It was averred in the plaint that Plaintiffs were in possession of 3/4th share of the suit land as tenant Gair Marusi even before the execution of the agreement Ex-P.1. Vendor did not execute the sale deed. Plaintiffs, sent a notice through post calling upon the vendor to execute the sale deed.

Vendor Gurcharan Singh executed two gift deeds dated 20.7.1970 and 26.8.1970 in favour of Gurdev Kaur wife of his brother Gurbachan Singh comprising land which included the land in dispute. The present suit for specific performance was filed on 27.8.1970. Gurdev Kaur had not been impleaded as respondent in the suit. In the written statement filed by the vendor Gurcharan Singh objection was taken that the suit filed by the Plaintiffs was bad for non-joinder of the parties as they have not impleaded Gurdev Kaur wife of Gurcharan Singh; vendor pleaded his denial with respect to the execution of the agreement as alleged by the Plaintiffs.

On the pleadings pf the parties, the trial Court framed the following four issues:-

Whether the defendant executed agreement dated 30.4.1968 for consideration ?,

Whether the suit is bad for non-joinder of Gurdev Kaur ?

If issue No. 1 is proved, whether defendant failed to perform his part of the agreement?

Relief.

Because of the objections taken in the written statement regarding the non impleading of Gurdev Kaur as respondent, on an application filed by the plaintiffs, plaint was allowed to be amended by the Court on 3.12.1970 permitting the plaintiffs to implead Gurdev Kaur as a respondent. An additional issue was also framed on 30.12.1970, which is to the following effect ?

"3-A what is the effect of the gift in favour of Gurdev Kaur ?"

Under issue No. 1 which is the only material issue in the case, the trial Court held that plaintiffs had failed to prove the ''due execution of the agreement Ex-P-1 for consideration by Gurcharan Singh Vendor. Issue No. 2 was rendered in fructuous as later on Gurdev Kaur was impleaded as dependent No. 2 in the amended plaint. Under Issue No. 3, the trial Court found that this too has become in fructuous in view of the findings recorded on issue No. 1. It was held that if issue No. 1 is proved then the defendant failed to prove his part of the contract. Under additional issue No. 3-A, it was conceded by the counsel appearing for th3e defendants that in case it is proved that defendant vendor Gurcharan Singh executed the agreement Ex.P-1 for consideration of Rs. 10,000/- then Gurdev Kaur was bound to execute the sale deed in respect of the suit land in favour of the plaintiffs. In view of the findings recorded under Issue No. 1 by the trial Court, the suit of the plaintiffs was dismissed, dissatisfied with the same, Plaintiffs filed regular first appeal in this Court.

Learned Single Judge reversed the finding of the trial Court under issue No. 1 and held that agreement to sell Ex. P-1 was duly executed by the defendant for consideration and he was bound by the same. Since Gurdev Kaur had stepped into the shoes of the vendor Gurcharan Singh, and was bound by the agreement to sell Ex-P-1. The judgment of the trial Court was reversed and the suit for specific performance was decreed on payment of Rs. 13,000/- which was to be deposited with the trial Court within three months. On deposit of the same vendor Gurcharan Singh was to execute the sale deed in favour of the plaintiffs failing which the Court was to execute the same on behalf of the defendant.

Ranjit Singh and others, the present appellants, purchased the property from Gurdev Kaur during the pendency of the regular first appeal. On an application filed, the subsequent purchasers were added as a party in the first appeal and thereafter the matters letters patent appeal was filed by the purchaser-vendors.

CM. No. 1682 of 1984, was filed in the letters patent appeal under Order 32 Rule 12 C.P.C. to the effect that Piara Singh and Nachhattar Singh Plaintiff respondents sons of Ajaib Singh arrayed as respondents No. 2 and 3 who were minors on the date when the suit was filed and had become major be impleaded as respondents in their own right and given the permission to contest the same as majors with a prayer that Gurcharan Singh be discharged. CM. No. 1683 of 1984 filed in the letters patent appeal was under order 23 Rule 3 C.P.C. alleging that respondents No. 1, 2 and 3 namely Kaka Singh, Piara Singh and Nachhattar Singh had purchased 1/4th share in the suit land as per agreement to sell Ex.-P-1. These plaintiff-respondents No. 1 to 3 had entered into a compromise with the appellants qua their share; that they had received Rs. 2500/- from the appellants for relinquishing their share in the suit land. It was prayed that the compromise be sanctioned and the suit filed by Kaka Singh, Piara Singh and Nachhattar Singh with respect to 1/4th share in the suit land be dismissed and the appeal be allowed to that extent. Vide order dated 27.8.1984, the Division Bench of this Court directed that these applications be heard and decided with the main case.

Letters Patent appeal was taken up for hearing on 12.2.1992 by a Division Bench of this Court. During arguments, it was brought to the notice of the Bench that there was a dispute between the parties regarding the compromise propounded by the purchaser-vendors which was with regard to 1/4th of the property in dispute. The Bench ordered that the controversy regarding the compromise had to be resolved before anything further could be done as it raised disputed question of fact. Shri B.L. Gulati, District and Sessions Judge (Vigilance) Haryana, was directed to hold an enquiry and submit a report regarding the execution of the compromise which was exhibited as Ex.-A.3 by the District and Sessions Judge (Vigilance) Haryana during the course of enquiry. The appeal was ordered to be set down for hearing after the report was submitted by Shri B.L. Gulati. Shri B.L. Gulati, submitted his report dated 18.11.1992 to this Court. It was concluded by Shri B.L. Gulati that agreement Ex-A3 had been duly executed by Plaintiff-respondents No. 1 to 3 i.e. Kaka Singh, Piara Singh and Nachhattar Singh and a compromise was arrived at between them and the purchaser-vendors in respect of 1/4th share of the suit land.

Counsel appearing for the plaintiffs-respondents No. 1 to 3 challenged the report of, the Inquiry Officer and argued that compromise Ex. A3 had not been duly executed by the plaintiff-respondents No. 1 to 3. The main plea taken is that the consideration of Rs. 2,500/- was not adequate for transferring 1/4th share of the suit land. No evidence was led by the plaintiff-respondent No. 1 to 3 regarding the value of the suit land during the course of the enquiry held by Shri B.L. Gulati. In the absence of any such evidence, it cannot be held that the consideration of Rs.2,500/- for 1/4th share of the suit land was insufficient. No exception can be taken to the findings recorded by the Inquiry Officer regarding the due execution of the compromise deed Ex. A.3. The compromise deed was presented before the Oath Commissioner for attestation by Shri D.C Dhaula who was a counsel for plaintiff-respondents No. 1 to 3. It was stated by Shri D.C.Dhaula, Advocate, who has appeared as A.W. 1 before the Inquiry Officer that although the compromise was not arrived at in his own presence but his clients were known to him personally and he had filed C.M A. No. 1682 of 1984, under Order 32 Rule 12 C.P.C. for treating two of the plaintiff-respondents who were minors, as majors; that he was present when all the three applications No. 1682 to 1684 of 1984 had come up for hearing before the Division Bench on 27.8.1984 and it was clearly mentioned in the order that some compromise had been arrived at between the parties. Shri D.C. Dhaula also stated that he may have accepted the compromise to be correct but, he did not remember as eight years had passed. Shri D.C. Dhaula, did not doubt the genuineness of the compromise when the same was filed in Court in 1984. In view of the testimony of Shri D.C.Dhaula, Advocate, it has rightly been concluded by the Inquiry Officer that plaintiff respondents No. 1 to 3 had entered into a valid compromise which was executed by them.

However, C.M. A. No. 1682 of 1984, is allowed, plaintiff-respondents (minors) are permitted to contest the appeal in their own right having become major C.M.C. No. 1683 of 1984 filed under Order 23 rule 3 C.P.C. and C.M. No. 1684 of 1984, are also allowed.

In view of the findings recorded above, the appeal filed by the purchaser vendor has to be accepted to the extent of 1/4th share of the land in dispute belonging to plaintiff-respondents No. 1 to 3 namely Kaka Singh, Piara Singh and Nachhattar Singh and the suit filed by these plaintiffs to the extent of their share of 1/4th in the land in dispute is to be dismissed.

Accordingly, this appeal is accepted to the extent 1/4th share of the land in dispute belonging to plaintiff-respondent No. 1 to 3.

Coming to the remaining 3/4th share of the land in dispute, on merits we find that no exception can be taken to the finding of fact recorded in the judgment by the learned Single. Judge on issue No. 1 Execution of the agreement dated 30.4.1968 Ex-P-1 stands duly proved by the testimony of Kunda Singh PW1 an attesting witness. Umri Ram P.W. 2 the scribe, K.C. Jaidka P-W. 4 Document and Finger Print Expert and the statement of Kaka Singh Plaintiff as PW 5. In rebuttal, only defendant Gurcharan Singh had appeared as DW5.

The testimony of the attesting witness and that of if the SC which is un-ambiguous clearly establishes the execution of the agreement to sell Ex-P-1. Learned counsel appearing for the purchaser from the Vendor raised two fold arguments and we do not find force in either of them. The first argument raised was that the document Ex.P.1 was Suspicious one as the vendor was not the sole owner of the land in dispute because as per. jamabandi Ex.-P-1 be was a joint holder of the land including the land in dispute with his brother Gurcharan Singh and, therefore, the vendor had no right to sell the property in dispute; Firstly the purchaser from the vendor cannot be allowed to raise an argument which the vendor himself would not have been permitted to raise. The vendor could not be permitted to approbate and reprobate. This question could be examined only if the brother of the vendor Gurcharan Singh would have come to the Court claiming his ownership on the property in dispute and challenging the right of the vendor to dispute of the property which has not been done. The second argument raised by the purchaser from the vender was that on the day the agreement to sell Ex-P-1 was executed, another document, pronote marked ''Y'' and receipt for the sum of Rs. 10,000/- were also got executed from the vendor Which go to show that Rs. l0,000/- which were paid as earnest money, was to fact not a consideration for sale of the property but was advanced as a loan on the basis of the pronote. There is no substance in this basis of the submission as well. In the agreement to sell Ex.P-1 itself, it has been mentioned that a pronote is also being executed in the sum of Rs. 10,000/- and the same shall be taken in to consideration at the time of execution of the sale deed. Had the sale been finally effected in pursuance of the agreement to sell Ex.P.1 then a suit filed on the basis of pronote could pot have succeeded under any circumstances., The sum of Rs. 10,000/- was paid as earnest money at the time of execution of the agreement of sale in anticipation of the sale of the land in dispute.

No other finding recorded on any other issue was challenged before us.

For the foregoing reasons, we find no merit in this appeal regarding 3/4th,share of the property in dispute and the same is dismissed with costs. The appeal succeeds qua 1/4th share of the land in dispute on the basis of compromise as per discussion in the earlier part of the judgment regarding which there shall be no order as to costs. The plaintiffs other than plaintiffs No. 1 to 3 shall deposit the amount of Rs. 13,000/- with the trial court within three months from the date of order and on the deposit of the same defendant No. 1Gurcharan Singh/his successor-in-interest shall execute the sale deed in favour of the vendees failing which the Court shall execute the same on behalf of the defendant/his legal representatives with costs.