Dinesh Kumar vs Amandeep Singh And Others
2022 Latest Caselaw 17052 P&H

                        RSA No. 1742 of 2022 (O&M)                                                 1

                                   IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                  CHANDIGARH

                        Sr. No.117                                         RSA No. 1742 of 2022 (O&M)

                                                                           Date of Decision: 16.12.2022


                        Dinesh Kumar                                                         .... Appellant

                                                                  Versus

                        Amandeep Singh and others                                         ... Respondents



                        CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA


                        Present:      Ms. Bhawna Kapur, Advocate
                                      for the appellant.
                                             ***


                        TRIBHUVAN DAHIYA, J. (ORAL)

CM No. 9490-C of 2022

Application for placing on record the copy of the plaint in Civil

Suit No.770 dated 28.11.2014, is taken on record, subject to all just

exceptions.

Application is allowed.

CM No.6396-C of 2022

Application for placing on record the copy of the plaint in Civil

Suit No.39 dated 16.03.2011 and the judgment dated 04.02.2014, is taken on

record, subject to all just exceptions.

Application is allowed.

CM No.5732-C of 2022

Application is allowed as prayed for.

AVIN KUMAR 2022.12.21 12:33 I attest to the accuracy and integrity of this order/judgment

Main case

This is plaintiff's second appeal against the concurrent findings

of both the Courts below.

2. The facts of the case in brief are, the appellant/plaintiff

(hereinafter referred to as the 'plaintiff') filed a suit for declaration and

permanent injunction claiming himself to be the beneficiary of an agreement

to sell dated 13.03.2013, executed by one Ranjit Singh, who happened to be

the father of respondents/defendants No.1 & 2 and husband of defendant No.

3. The date of execution of sale deed was kept open. It was also pleaded that

pursuant to execution of the agreement, entire sale consideration was paid to

Ranjit Singh. The plaintiff also claimed to be holding a judgment and decree

passed by the civil Court, whereby prohibitory injunction was issued in his

favour for protecting possession of the suit land. The sale deed in terms of

the agreement was not executed by Ranjit Singh. The plaintiff later came to

know that the suit land had already been auctioned in the execution

proceedings titled Punjab State Supplies v. Beant Enterprises etc., leading to

the suit land being sold in favour of defendant No. 4, who was decree holder

thereof.

3. Upon notice, only respondent/defendant No. 4 contested the

suit. Averments of the plaint were denied, besides alleging that the

agreement to sell dated 13.03.2003 was forged and fabricated document

prepared by the plaintiff in connivance with defendants No. 1 to 3, only to

avoid the sale of suit property.

4. Upon completion of pleadings, the following issues were settled

between the parties:

AVIN KUMAR 2022.12.21 12:33 I attest to the accuracy and integrity of this order/judgment

(i) Whether the plaintiff is entitled to the relief

of declaration, as prayed for?OPP

(ii) Whether the plaintiff is entitled to the relief

of permanent injunction, as prayed for?OPP

(iii) Whether the plaintiff has got no cause of

action to file the present suit?OPD

(iv) Whether the plaintiff has not come to the

Court with clean hands and has suppressed the real

facts?OPD

(v) Whether the suit is time barred?OPD

(vi) Whether the suit in the present form is not

maintainable?OPD

(vii) Whether the plaintiff is estopped by his own

act & conduct, omission & commission to file the

present suit?OPD

(viii) Relief.

5. Issues No. 1, 2 and 6 were decided by the trial Court against the

plaintiffs while dismissing the suit. The remaining issues 3, 4, 5 and 7

remained non-pressed. Resultantly, the same were decided in favour of the

plaintiff. The suit was dismissed with costs. The findings were affirmed by

the lower appellate Court.

6. Both the Courts below have concurrently held that the

agreement to sell in question, dated 13.03.2003, was not proved on record. It

was held to be a vague document, which could not be relied upon. Besides,

the agreement to sell is dated 13.03.2003. Whereas, the suit based thereupon

was instituted by the plaintiff only on 28.11.2014, which was subsequent to AVIN KUMAR 2022.12.21 12:33 I attest to the accuracy and integrity of this order/judgment

the auction proceedings dated 21.09.2013 conducted at the instance of

defendant No.4 in Execution Application No.41 of 23.10.2010. No evidence

was led to establish as to how the said auction proceedings could be termed

illegal or invalid.

7. The plaintiff, as PW-1, himself categorically stated in the cross

examination that the original agreement to sell could not be placed on the

record. His witnesses also admitted that there was no date mentioned on the

back side of the stamp paper that was purchased and used for preparation of

the agreement to sell in question. Therefore, not only the date of execution

of the sale deed was not mentioned in the agreement, there was no proof

regarding the date on which the stamp paper for execution of the agreement

was prepared. The plaintiff also admitted that he did not remember even

name of the deed writer who scribed the agreement to sell. Therefore, both

the Courts below rightly held that the agreement to sell had not been proved

on record.

8. Instead of filing suit for specific performance on the basis of

agreement to sell dated 13.03.2003, the plaintiff filed the instant suit for

declaration. The Courts below are right in observing that this appeared to

have been done to avoid payment of Court fee. On this account also, the suit

could not have been entertained.

9. It is, therefore, apparent that the suit in question was filed by the

plaintiff for oblique motive, to challenge the execution proceedings on the

basis of the agreement to sell, which itself could not be established on

records. A questionable procedure was adopted by filing the suit for

declaration instead of a suit for specific performance of the agreement. It

was rightly dismissed, and there is no ground to interfere with the AVIN KUMAR 2022.12.21 12:33 I attest to the accuracy and integrity of this order/judgment

well-reasoned findings of the Courts below in that regard. No substantial

question of law arises for consideration either.

10. Appeal stands dismissed.

11. Since, the main petition stands decided, all pending

applications, if any, are disposed of as having been rendered infructuous.

                                                                    (TRIBHUVAN DAHIYA)
                                                                          JUDGE

                        16.12.2022
                        payal


                                     Whether speaking/reasoned        :    Yes/No
                                     Whether reportable               :    Yes/No




AVIN KUMAR
2022.12.21 12:33
I attest to the accuracy and
integrity of this order/judgment