Punjab-Haryana High Court
Satwant Kaur And Ors vs Surinder Singh And Ors on 4 July, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No.4725 of 2019 (O&M)
Date of Decision: 04.07.2022
Satwant Kaur and others
......Appellants.
Versus
Surinder Singh and others
......Respondents.
CORAM: HON'BLE MRS. JUSTICE MEENAKSHI I. MEHTA
*****
Argued by:- Mr. Ashish Aggarwal, Senior Advocate with
Ms. Aashna Aggarwal, Advocate
for the appellants.
Mr. Kanwaljit Singh, Senior Advocate with
Mr. Ajaypal Singh Sandhu, Advocate and
Ms. Neha A. Mahajan, Advocate
for the respondents-caveators.
MEENAKSHI I. MEHTA, J.
Feeling aggrieved by the judgment and decree passed by
learned Additional Civil Judge (Senior Division), Karnal (for short, 'the
trial Court') on 13.05.2015 whereby the civil suit filed by respondents No.1
& 2(caveators)-plaintiffs (here-in-after to be referred as 'the plaintiffs')
against the defendant named Ravinder Pal Singh [since deceased and now,
represented through his LRs-appellants No.1 to 3 and proforma respondent
No.3 (since deceased and represented through her LRs)] (here-in-after to be
referred as 'the LRs of the defendant') for seeking a decree for possession
of the suit land by way of specific performance of the agreement dated
18.11.2008 or in the alternative, for recovery of Rs.80 lac, was decreed as
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well as by the judgment and decree dated 16.03.2019 handed down by
learned Additional District Judge, Karnal (for short, 'the lower appellate
Court') dismissing the appeal preferred by them (the LRs of the defendant)
to assail the above-said judgment and decree as passed by the trial Court,
LRs No.(ii) to (iv) of the defendant in the said suit (arrayed as appellants
No.1 to 3 in the first appeal) have filed the instant appeal.
2. The plaintiffs filed the afore-said civil suit while averring that
on 12.09.2008, the defendant had entered into an agreement with them to
sell the land measuring 08 Kanals in their favour and in pursuance thereof,
he had received the entire sale consideration, amounting to Rs.20 lac, from
them. Then, on 18.11.2008, he (defendant) executed another agreement to
sell the land measuring 81 Kanals 03 Marlas (for short, 'the suit land'),
being his 1/3rd share in the total land measuring 243 Kanals 10 Marlas, to
them @ Rs.15 lac per acre and received another amount of Rs.20 lac from
them as earnest money. Initially, the date of execution and registration of
the sale-deed had been stipulated as 20.04.2009 but at the instance of the
defendant, the same was extended to 20.06.2009 and again, to 26.06.2009
and on the said date, they (plaintiffs) had gone to the office of the Sub-
Registrar along-with the entire sale consideration, consisting of the Pay-
Orders worth Rs.95 lac and the balance cash amount but however, the
defendant did not turn up there to execute the sale-deed in their favour in
accordance with the above-said subsequent agreement and then, they got
their presence marked by submitting an affidavit to the afore-mentioned
Authority, for this purpose. Despite their repeated requests as well as the
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issuance of legal notice by them on 13.07.2009, the defendant failed to
execute the sale deed in their favour whereas they had always been ready
and willing to perform their part of the contract/said subsequent agreement.
3. The defendant filed his written statement, contesting the claim
of the plaintiffs therein, inter-alia, on the grounds of maintainability, cause
of action, locus-standi, concealment of material facts and jurisdiction etc.
On merits, though he admitted the factum of his having executed the
agreement to sell dated 12.09.2008 in favour of the plaintiffs as well as of
the receipt of the sum of Rs.20 lac from them as the sale consideration but
he denied the factum of the execution of the subsequent agreement dated
18.11.2008 by him and rather, asserted that the said agreement was forged
and fabricated document and also simultaneously alleged that the plaintiffs
might have procured his signatures on the same at the time of the execution
of the earlier agreement dated 12.09.2008 by misrepresenting the facts to
him. However, during the pendency of the suit, the defendant expired and
his legal representatives were brought on the record. His mother, being one
of his LRs, filed another written statement while taking an additional plea
therein to the effect that the suit land was ancestral in the hands of her son
(defendant) and there was no legal necessity to alienate the same and
hence, he was not competent to execute any agreement to sell this land.
4. In their separate replications, the plaintiffs reiterated their
earlier stand as taken in the plaint besides controverting the assertions as
set-forth by the defendant and his said LR (mother) in their respective
written statements.
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5. The parties were put to the trial by framing the issues on
17.09.2014 and they led their evidence, oral as well as documentary, in
support of their respective contentions. After appreciating their evidence
and hearing their learned counsel, the trial Court decreed the suit by way of
directing the LRs of the defendant to execute the sale-deed in favour of the
plaintiffs, as per the terms and conditions of the said agreement to sell,
within a period of three months, while further asking the plaintiffs to pay
the balance sale consideration to them. The LRs of the defendant preferred
the appeal to lay challenge to the above-said judgment and decree but the
same has also ended in its dismissal vide the impugned judgment and
decree dated 16.03.2019, as passed by the lower appellate Court.
6. I have heard learned Senior counsel for both the parties in the
present appeal and have also perused the record thoroughly.
7. Learned Senior counsel for the LRs of the defendant has
contended that the suit land was ancestral property in the hands of the
defendant as the same had been allotted to his fore-fathers consequent upon
their migration to India at the time of the partition of the country and the
defendant had no legal necessity to alienate the same and was, therefore,
not competent to execute the agreement to sell, Exhibit P-2. Secondly, he
has contended that the said agreement is a forged and fabricated document
and in case, it was found to be bearing the signatures of the defendant, then
the same had been obtained by the plaintiffs by mis-representing the facts
before him. Thirdly, he has contended that the earlier agreement to sell,
Exhibit P-1, was executed by the defendant to sell 08 Kanals, i.e 01 acre
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land, out of the suit land for a sum of Rs.20 lac but in the subsequent
agreement Exhibit P-2, the rate of the sale consideration of the suit land has
been reduced to Rs.15 lac per acre and it was highly improbable that any
prudent person would subsequently agree to sell his land at a reduced price
and moreover, at the relevant time, the price of the suit land was much
higher than the afore-said price as mentioned in Exhibit P-2.
8. Fourthly, Learned Senior counsel for the LRs of the defendant
has pointed out that it has specifically been recited in agreement Exhibit
P-2 that there was an encumbrance on the suit land by way of the bank loan
of Rs.50 lac and that the said loan amount, along-with the interest thereon,
would be paid by the vendees, i.e the plaintiffs and the balance amount of
sale consideration would be received by the defendant-vendor at the time
of the registration of the sale-deed and he has contended that in view of
these contents of the said agreement, it is explicit that the execution and
registration of the sale-deed was contingent upon the repayment of the said
bank loan by the plaintiffs but they did not repay the same which further
goes to show that they themselves had never been ready and willing to
perform their part of the said agreement and therefore, they could not seek
the specific performance of this agreement by the defendant/his LRs. To
buttress his contentions, he has placed reliance upon the observations as
made in Rajendra Kumar Jha Versus Manohar Lal Soni and Others 2018
AIR (Chhattisgarh) 144 (SB); Nandkishore Lalbhai Mehta Versus New
Era Fabrics Pvt. Ltd. & Others 2016(1) RCR (Civil) 98 (SC); Rishi
Aggarwal Versus M/s Vipul Infrastructure Developer Ltd and Others
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2016(10) AD (Delhi) 577 (DB); Sri Harish Versus Smt. Lakshmamma
and Others 2018(6) Karnataka Law Journal 706 (SB); Jogendra Singh
Versus Smt. Mukul Joshi 2020 (AIR) (Uttaranchal) 200 (SB); Surinder
Kaur (dead) through Legal Representative Jasinderjit Singh (dead)
through Legal Representatives Versus Bahadur Singh (dead) through
Legal Representatives (2019)8 Supreme Court Cases 575 and Shenbagam
and Others Versus K.K Rathinavel (Civil Appeal No.150 of 2022) decided
on 20.01.2022 (SC). Fifthly, he has further contended that the LRs of the
defendant do not own any other agricultural land to earn their livelihood
and moreover, the price of the suit land has, now, increased manifolds and
therefore, the sale of the suit land to the plaintiffs at the rate, as mentioned
in the agreement Exhibit P-2, would cause great hardship to them. He has
relied upon Nanjappan Versus Ramasamy and another 2015(1) PLJ 398
(SC); Pandian Chemicals Ltd, 17-A, Vallabhai Road, Madurai-2, Rep. By
Company Secretary K Sathiavan Versus Punithavalli and another 2017
AIR (Madras) 198 (SB); Jayakantham and Others Versus Abaykumar
2017(2) RCR (Civil) 104 (SC); Vimaleshwar Nagappa Shet Versus Noor
Ahmed Sherriff and Others 2011 AIR (SC) 2057; Sukhmander Singh and
another Versus Mandeep Singh and others 2015(2) RCR (Civil) 781
(P&H) (SB) and Dulal Chand Nandi (deceased) through LRs Versus
Kiran Bala Mehru and another 2018 SCC Online Del 10259 (Delhi) (SB)
in support of his contentions. Lastly, he has contended that no substantial
question of law has been framed in the present appeal and moreover, the
trial Court as well as the lower appellate Court have not appreciated and
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evaluated the evidence, as led on the record, in the right perspective and
therefore, the impugned judgments and decrees are not legally sustainable
and the same deserve to be set aside. To corroborate his contentions, he has
placed reliance upon Kirodi (since deceased) through his LR Versus Ram
Parkash and Others, (Civil Appeal No.4988 of 2019 (@ Special Leave
Petition(C) No.11527 of 2019) decided on 10.05.2019 (SC); Vinod Kumar
Versus Gangadhar 2015(1) RCR (Civil) 598 (SC) and Laliteshwar Prasad
Singh and Others Versus S.P. Srivastava (D) through LRs 2017(1) RCR
(Civil) 460 (SC).
9. Per contra, learned Senior counsel for the plaintiffs has argued
that the LRs of the defendant have not led any evidence on the file to
substantiate the factum of the suit land being ancestral in nature. He has
also argued that the execution of agreement Exhibit P-2 stood duly proved
in view of the testimonies of PW2 to PW4 and thus, the same is a genuine
document and the plaintiffs had not misrepresented any facts before the
defendant to procure his signatures on the same. He has further argued that
the above-mentioned reduced rate of the sale consideration, in itself, could
not be a valid ground to assail the validity and genuineness of the said
agreement and moreover, it was the defendant himself who had been
seeking extension of the date stipulated for the execution and registration
of the sale-deed as he intended to get the said bank loan waived off and on
the said agreed extended date, i.e 26.06.2009, the plaintiffs appeared before
the concerned Sub-Registrar along-with the Pay Orders worth Rs.95 lac
and the amount of the balance sale consideration in cash but the defendant
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failed to turn up there and then, the plaintiffs submitted their affidavit
Exhibit P-5 to the said Authority for marking their presence and therefore,
it did not lie in the mouth of the LRs of the defendant to assert that the said
agreement/contract was contingent and was no more legally enforceable on
account of the non-repayment of the said bank loan by the plaintiffs or that
they (plaintiffs) had not been ready and willing to perform their part and it
being so, the impugned judgments and decrees are perfectly legal.
10. As regards the first contention as raised qua the suit land being
ancestral in nature, the same is devoid of any merit because except the oral
and self-serving depositions as made by DW1 Satwant Kaur in her affidavit
Exhibit DW1/A to this effect, the LRs of the defendant have not adduced
any other cogent evidence on the file to prove the afore-said plea. They
could have produced the relevant revenue record/Excerpt in their evidence
to establish this fact and the same could have been easily available to them
but they have failed to do so, for the reasons best known to them. In these
circumstances, an adverse inference has to be drawn against them to the
effect that if so produced, the said record would not have supported their
above-discussed version. Further, even if for the sake of arguments, it is
presumed that the suit land was ancestral property in the hands of the
defendant, even then the fact remains that in agreement Exhibit P-2, it has
categorically been mentioned that a loan of Rs.50 lac had been raised
against the said land and this fact, in itself, makes it crystal clear that the
defendant must be in the need of funds for the repayment of the said loan.
11. So far as the second contention regarding agreement Exhibit
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P-2 being a forged and fabricated document and qua the plaintiffs having
obtained the signatures of the defendant thereon by misrepresenting the
facts to him, is concerned, the same is also bereft of any force because a
perusal of this agreement reveals that a note dated 17.04.2009, i.e Exhibit
P-3, has been written overleaf Page No.2 thereof, regarding the date of the
execution of the sale-deed having been mutually agreed between the parties
to be extended to 20.06.2009 and then, another note dated 19.06.2009, i.e
Exhibit P-4, has been scribed overleaf Page No.3 of this agreement wherein
it has specifically been mentioned that the vendor, i.e the defendant, had to
go to Chandigarh for seeking the waiver of the loan, as raised by him from
the Co-operative Bank Limited, Karnal and therefore, the said date was
being further extended to 26.06.2009. Both these notes and the agreement
had been duly attested by the witnesses and one of such witnesses named
Akashdeep appeared as PW2 and made depositions regarding the same.
The Notary Public named Jai Parkash also stepped into the witness-box as
PW3 and deposed regarding his having notarized agreement Exhibit P-2
and having made an entry qua the same in his register and PW4 Virender
Kumar Bakshi also categorically stated that the stamp-papers, as used for
scribing agreements Exhibits P-1 and P-2, had been sold by him to the
defendant. The LRs of the defendant could have got the admitted signatures
of the defendant compared with his (defendant's) signatures appearing on
Exhibits P-2, P-3 & P-4, by the hand-writing expert whose report and
testimony could have clinched the entire dispute between the parties over
the said issue but however, they have failed to examine any such expert as
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their witness for the said purpose.
12. Further, it is well settled that the plea/allegation regarding the
misrepresentation of facts is required to be specifically pleaded and proved.
However, except the bald depositions as made by the afore-named DW1 in
her said affidavit in this regard, the LRs of the defendant have not produced
any other convincing evidence on the file to substantiate their said plea/
allegation and rather, in para No.3 of his written statement, the defendant
had simply stated that the plaintiffs 'might have' procured his signature on
the said agreement (Exhibit P-2) at the time of the execution of agreement
to sell dated 12.09.2008, i.e Exhibit P-1 and thus, the above-mentioned
plea/allegation is quite ambiguous and it being so, the depositions made by
the said DW1 in respect thereof, do not inspire any confidence. Moreover,
it is also necessary to point it out here that as discussed earlier, the
signatures of the defendant also appeared on both the afore-said notes, i.e
Exhibits P-3 and P-4, besides agreement Exhibit P-2.
13. Then, as regards the third contention qua the actual prevalent
price of the suit land being many times higher than the one as quoted in
agreement Exhibit P-2 and this agreement having been executed for the
sale consideration at a rate lesser than the one as mentioned in agreement
Exhibit P-1, the same is again devoid of any merit because besides the oral
depositions as made by the above-named DW1 in her said affidavit to the
effect that the price of the suit land was not less than Rs.50 lac per acre at
the relevant time, the LRs of the defendant have not led any other cogent
evidence on the record to establish the said fact. Rather, during her cross-
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examination, this witness (DW1) has expressed her ignorance regarding the
area of the total land being 243 Kanals 10 marlas and she has not even been
able to tell as to how much area out of the total land, was located on the
front side and also to disclose the price of the land so situated. Further, as
discussed in the preceding paragraphs, the execution of agreement Exhibit
P-2 by the defendant in favour of the plaintiffs stands duly proved on the
record and moreover, the factum of the execution of earlier agreement
Exhibit P-1 finds specific mention in the same and in these circumstances,
the mere factum of the rate of the sale consideration in respect of the suit
land, as agreed between the parties in the subsequent agreement, being
lesser than the price of the portion of the said land, as mentioned in the
earlier agreement, in itself, cannot be taken to be a justifiable and plausible
ground to come to the conclusion that the subsequent agreement, Exhibit
P-2, cannot be legally enforced.
14. So far as the fourth contention regarding agreement Exhibit
P-2 being contingent upon the repayment of the bank loan by the plaintiffs
and their having not done so and thereby, their being not ready and willing
to perform their part of this agreement, is concerned, it is pertinent to point
it out here that though it has been mentioned therein that the vendees, i.e
the plaintiffs, would repay the loan amount of Rs.50 lac, along-with the
interest accrued thereon, to the concerned bank and would pay the amount
of the balance sale consideration to the defendant-vendor at the time of the
execution and registration of the sale-deed but again, the fact remains that
in Para No.2 of their plaint, the plaintiffs have categorically averred that
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they had approached the defendant several times with the request to
accompany them to clear the bank loan account and to accept the balance
amount of sale consideration and to execute the sale-deed but the defendant
had informed them that he had approached the concerned bank for One
Time Settlement and for the waiver of the amount of interest and that as
and when the settlement would be arrived at, he would inform them. While
appearing as PW1, plaintiff No.1 Surinder Singh has made depositions to
the same effect in Para No.4 of his affidavit Exhibit PW1/A. The afore-said
plea also stands strengthened by Exhibit P-4, i.e the note dated 19.06.2009
as scribed overleaf Page No.3 of the agreement, Exhibit P-2, wherein it has
specifically been mentioned that the vendor, i.e the defendant, had to go to
Chandigarh for seeking the waiver of the said bank loan and therefore, the
date stipulated for the execution of the sale deed was being extended from
20.06.2009 to 26.06.2009. The above-discussed averments, as put-forth by
the plaintiffs in the plaint and the depositions as made by plaintiff No.1 as
PW1 in his said affidavit, coupled with the contents of note Exhibit P-4,
unequivocally speak volumes of the fact that it was the defendant who had
been seeking time to approach the concerned bank for the said purpose. In
these circumstances, the afore-discussed version of the plaintiffs is quite
justified and logical also because after repaying the said loan amount,
along-with the interest thereon, to the concerned bank, they were supposed
to pay the amount of balance sale consideration to the defendant and it
being so, it is quite natural that as a prudent person, the defendant must
have been making all the possible endeavours to get the loan amount, as
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required to be repaid to the bank, reduced so that he could get the
maximum possible balance sale consideration from the plaintiffs at the time
of execution and registration of the sale-deed.
16. Moreover, it has been held by Hon'ble Supreme Court in M/s
J.P Builders and anothers Versus A. Ramadas Rao and anothers 2011(1)
RCR (Civil) 604 that "where the vendors entered into agreement to sell the
property against which the bank loan was raised by them and it was agreed
to execute the sale-deed after the discharge of bank loans and release of
original deeds to the vendors, it could not be construed as impossible event
which would make the contract void and it could also not be termed as a
contingent contract and would not come to an end and the plaintiff was
entitled to the specific performance of the contract." The present matter is
squarely covered by the above-quoted observations and in view of the
same, it becomes explicit that agreement Exhibit P-2 is not a contingent
contract and hence, the same could be legally enforced.
17. Further, in their affidavit Exhibit P-5 as submitted by the
plaintiffs to the concerned Sub-Registrar on 26.06.2009, i.e the agreed
extended date for execution and registration of the sale deed, they have
made depositions regarding the specific numbers of the Pay-Orders worth
Rs.95 lac, as got issued by them and also qua the remaining cash amount
for the payment of the sale consideration. Then, the details of the said Pay-
Orders also find mention in Para No.5 of the plaint. Moreover, even during
the pendency of the said civil suit, the plaintiffs moved an application
before the trial Court on 14.09.2009 (annexed at Page No.177 in the trial
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Court Record) with a prayer to call upon the defendant to accept the Pay-
Orders towards the payment of the sale consideration but on 22.09.2009,
learned counsel for the defendant made a categoric statement in the trial
Court (annexed at Page No.367 in the trial Court Record) to the effect that
he was not authorised to accept the same. The above-discussed facts and
circumstances lead to the only irresistible conclusion that the plea qua the
plaintiffs being not ready and willing to perform their part of agreement
Exhibit P-2, would not be available to the LRs of the defendant so as to
disentitle the plaintiffs from seeking the relief of the specific performance
of the said agreement by them. To add to it, throughout in their respective
written statements, the defendant and his mother have nowhere set-forth
any plea to this effect.
18. The observations, as made in Rajendra Kumar Jha (supra),
Nandkishore Lalbhai Mehta (supra), Rishi Aggarwal (supra), Sri Harish
(supra), Jogendra Singh (supra), Surinder Kaur (dead) through Legal
Representative Jasinderjit Singh (dead) through Legal Representatives
(supra) and Shenbagam and Others (supra), are of no avail to the LRs of
the defendant because the facts and circumstances of the case in hand are
quite distinguishable from those of the cited above. In Rajendra Kumar
Jha (supra), the agreement to sell the suit property was contingent upon
the eviction of the tenant and there was nothing to show that the tenant had
been so evicted at any point of time whereas in the present case, as
discussed above, the plaintiffs had approached the defendant to accompany
them for clearing the bank loan account. In Nandkishore Lalbhai Mehta
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(supra), the agreement to sell was subject to the consent of Mill Mazdoor
Sabha and also to the permission of the competent authority for the change
of user of the land from industrial/commercial to the residential one and the
authority had refused to grant the necessary permission and Mill Mazdoor
Sabha had also declined to give consent and therefore, it was held that the
agreement had rightly been terminated by the respondent but in the instant
case, the defendant himself had been seeking time to approach the bank for
One Time Settlement and waiver of the amount of interest accrued on the
said loan amount. In Rishi Aggarwal (supra) also, the performance of the
agreement to sell was contingent upon the sanction of the building plan and
the application had been moved by the defendant under Order 7 Rule 11
CPC on the grounds of the suit being barred by limitation and no cause of
action having arisen in favour of the plaintiff to file the same whereas in
this case, the facts are entirely different as discussed above. Then, in Sri
Harish (supra), the agreement to sell was held to be incomplete for its
enforcement unless the necessary sanction was obtained by the competent
persons from the Government whereas in the present case, the bank loan
was required to be paid.
19. Further, in Jogendra Singh (supra), the share of the joint
property had been agreed to be sold but specific boundaries had been
mentioned in the agreement as well as in the plaint without mentioning that
the said property was ever partitioned amongst its owners but it is not so in
the instant case. In Surinder Kaur (dead) through Legal Representative
Jasinderjit Singh (dead) through Legal Representatives (supra) also, the
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appellant-defendant had received less than 20% of the sale consideration
but had handed over the possession of the suit property to the respondent-
plaintiff while expecting that the earlier dispute pertaining to the said
property would be decided at least within a year and there was a specific
clause in the agreement itself that in case, the said litigation was not so
adjudicated, the plaintiff would pay customary rent to her but the plaintiff
failed to pay the same for 13 long years and therefore, it was held that the
plaintiff had failed to perform his part of contract qua payment of the rent
and it being so, the relief of specific performance of the contract was not
permissible but in the present case, as discussed above, the plaintiffs have
always been ready and willing to perform their part of the said agreement
to sell. In Shenbagam and Others (supra), the vendee had, initially, filed
the suit for injunction and the vendors had sent notice to him to perform his
part of the contract by paying the balance sale consideration and then, on
the failure of the vendee to do so, they had rescinded the contract and after
three years, the vendee had filed the suit for seeking specific performance
of the agreement and there was nothing on the record to show that he had
sufficient money to pay the sale consideration at the relevant time whereas
in this case, the plaintiffs have filed the civil suit on 06.08.2009, i.e just
about 1½ month after the agreed extended date, i.e 26.06.2009, for the
execution and registration of the sale-deed.
20. As regards the fifth contention qua the suit land being the only
source of livelihood for the LRs of the defendant and there being a steep
rise in its price and hence, the sale of this land being a cause of hardship for
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them, the same is, again, not tenable because throughout in their respective
written statements, the defendant and his mother have not taken the plea
regarding any such hardship and rather, they have denied the very factum
of the execution of agreement to sell Exhibit P-2 and the defendant has also
taken an inconsistent plea in his written statement, to the effect that his
signatures might have been procured by the plaintiffs by misrepresenting
the facts to him. Even otherwise, the said plea cannot be construed to be a
purely legal one as it pertains to the factual aspects of the controversy
between the parties and therefore, it would not be permissible to the LRs of
the defendant to raise this plea at this stage. Moreover, the LRs of the
defendant have also not led any trustworthy evidence on the file to show
that except the suit land, they did not have any other source of income.
Further, as discussed earlier, it was the defendant himself who had dilly-
dallied the matter regarding the finalisation of his loan account whereas the
plaintiffs had always been ready and willing to perform their part of the
said agreement and in such circumstances, the LRs of the defendant cannot
be allowed to derive the benefit out of the wrong of their predecessor-in-
interest, the defendant, to avoid the specific performance of this agreement.
21. The observations, as made in Nanjappan (supra), Pandian
Chemicals Ltd. (supra), Jayakantham and others (supra), Vimaleshwar
Nagappa Shet (supra), Sukhmander Singh and another (supra) and
Dulal Chand Nandi (deceased) through LRs (supra), would also be of no
help to the LRs of the defendant in this case as the facts and circumstances
of the instant case are entirely different from those of the mentioned above.
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In Nanjappan (supra), the agreement had been executed 27 years ago but
it is not so in the present case. In Pandian Chemicals Ltd (supra), one of
the vendors was a widow and her only property was the subject matter of
the alleged agreement and the plaintiff Company had entered into the
agreement without any valid resolution as was normally required to do so
whereas in the instant case, the defendant was not required to fulfil any
such formality before executing agreement Exhibit P-2. In Jayakantham
and others (supra), the agreement to sell was executed while mentioning
the amount of the sale consideration as Rs.1.60 lac therein but it was
proved on the record that the value of the property, as agreed to be sold,
was about Rs.6.30 lac at that time but in this case, as discussed earlier, the
LRs of the defendant have not been able to prove that the price of the suit
land was higher than the one as mentioned in the above-said agreement.
Further, in Vimaleshwar Nagappa Shet (supra), the agreement to sell
pertained to a joint family house situated in the urban area whereas in this
case, the suit land is situated in a village named Mubarkabad. Again, in
Sukhmander Singh and another (supra), the plots had been purchased by
about 175 persons who had also constructed their residential houses at the
site and were not even impleaded as the party to the suit and the agreement
to sell was, therefore, held to be completely incapable of being specifically
performed but it is not so in the instant case. Then, in Dulal Chand Nandi
(deceased) through LRs (supra), the bank statements, filed by the vendees,
pertained to a much later period and were not contemporaneous and hence,
the readiness and willingness on behalf of the plaintiff had been suspected
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whereas it is not so in the case in hand.
22. Rather, it has specifically been observed by the Apex Court in
a recent judgment rendered in Sughar Singh Versus Hari Singh (Dead)
through LRs and Others 2021(4) RCR (Civil) 632 that "not to grant the
decree of specific performance despite the execution of the agreement to
sell and part payment of sale consideration having been proved and the
plaintiff having always been ready and willing to perform his part of the
contract, would encourage dishonesty and the amendment to Specific Relief
Act by which Section 10(a) was inserted, though may not be applicable
retrospectively but could be a guide that specific performance is no longer
a discretionary relief." These observations are fully applicable to the
present case and in the light of the same, it becomes explicit that the
plaintiffs are entitled to the relief of specific performance of the said
agreement to sell, i.e Exhibit P-2, by the LRs of the defendant.
23. The last contention qua no substantial question of law having
been framed and the Courts below having not discussed and appreciated
the evidence in the right perspective in the impugned judgments, also does
not hold any water because the framing of any substantial question of law
is not required in view of Section 41 of the Punjab Courts Act, 1918. Even
in Kirodi (since deceased) through his LR (supra), the Apex Court has
categorically observed that the effect of the judgment of the Constitution
Bench in Pankajakshi (Dead) through LRs and others Versus Chandrika
and others (2016) 6 SCC 157 is that "so far as the state of Punjab is
concerned, the second appeal does not require formulation of a substantial
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question of law since the Punjab Act would be applicable for the State".
Undisputedly, at the time of enactment of the above-said Statute, Haryana
formed a part of the State of Punjab and learned Senior counsel for the LRs
of the defendant has not been able to show that presently, the said Act is
not applicable to the State of Haryana. Further, a perusal of the impugned
judgments shows that the evidence, as adduced by both the parties on the
file, has been elaborately as well as exhaustively discussed therein. In such
circumstances, the observations made by Hon'ble Supreme Court in Vinod
Kumar (supra) and Laliteshwar Prasad Singh and others (supra), would
not come to the aid of the LRs of the defendant to challenge the legality of
the impugned judgments and decrees.
24. As a sequel to the fore-going discussion, it follows that the
impugned judgments and decrees, as passed by both the Courts below, do
not suffer from any illegality, infirmity, irregularity or perversity so as to
warrant any interference by this Court. Resultantly, the appeal in hand,
being sans any merit, stands dismissed.
(MEENAKSHI I. MEHTA)
July 04, 2022 JUDGE
Yag Dutt
Whether speaking/reasoned: Yes
Whether Reportable: Yes
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