Punjab-Haryana High Court
Ram Avtar & Ors vs Jeeto Bai Alias Jeeto Devi on 8 July, 2022
RSA-3574-2017 (O&M) 1
102
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-3574-2017 (O&M)
Date of Decision:08.07.2022
Ram Avtar & others
.. Appellants
Vs.
Jeeto Bai @ Jeeto Devi
..Respondent
CORAM: HON'BLE MR. JUSTICE MANOJ BAJAJ
Present: Mr. Amandeep Rana, Advocate for the appellants.
...
Manoj Bajaj, J. (Oral)
CM-8618-C-2017
This is an application under Section 151 CPC for condonation
of delay of 33 days in re-filing of the present appeal.
For the reasons mentioned in the application, delay of 33 days
in re-filing the appeal is condoned.
CM stands allowed.
RSA-3574-2017 (O&M)
The appellants have preferred this appeal against the judgment
and decree dated 23.08.2016 passed by appellate Court in Civil Appeal
No.144 of 15.09.2014, thereby affirming the judgment and decree dated
06.08.2014 passed by Civil Judge, (Junior Division), Pataudi in Civil Suit
No.RBT976/2008/2013, whereby their suit for possession by way of
specific performance of the contract dated 31.03.2007 was dismissed.
The facts, in brief leading to the appeal are that the plaintiffs
(appellants) brought a suit for possession by way of specific performance of
contract dated 31.03.2007 (Ex.P-1) against defendant Jeeto Bai @ Jeeto
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Devi and pleaded that the defendant had agreed to sell her land comprised in
khewat No.1368/1264, khatoni No.1463, khasra No.506(0-14), 507 (1-12),
measuring 2 kanals 6 marlas to the extent of 2/9th share which comes to 10
marlas and khewat No.1356/1252, khatoni No.1451, khasra No.13 (0-2) to
the extent of 1/2 share i.e. 1 marla, and khewat No.1507/1386, khatoni
No.1636, khasra No.271/1 (0-16) to the extent of 1/3rd share which comes to
5 marlas, in total measuring (0-16) marlas situated at village Jatauli, Teshil
Pataudi, District Gurgaon, in their favour and at the time of it's execution,
not only the total sale consideration of Rs.4 lacs was paid to her, but she
also delivered the possession of the property to the plaintiffs. According to
the agreement, the plaintiff Nos.1 to 3, namely, Ram Avtar, Birender Singh,
Surender Singh, had agreed to purchase 3/4th share, whereas, title of the 1/4th
share was to be acquired by plaintiffs No.4 and 5, namely, Subhash and
Suresh. As the execution of sale deed was prohibited by virtue of the
instructions issued by government of Haryana, the execution of sale deed
was postponed, but when the said ban was lifted, the plaintiffs approached
the defendant for execution of sale deed, however, she did not respond to
the request, so, the plaintiffs were compelled to serve legal notices dated
08.06.2007 (Ex. P-2) and 22.08.2007 (Ex. P-3) through Sh. M.S. Saini,
Advocate. Despite the notices, there was no response received by plaintiffs
from the defendant, thus, the plaintiffs instituted the civil suit, and prayed
for a decree for possession by way of specific performance of agreement to
sell dated 31.03.2007.
The suit was contested by defendant/respondent by filing a
written statement, wherein she had taken all the possible objections
including the maintainability, local standi, etc. and on merits, denied the
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execution of the agreement dated 31.03.2007, who further pleaded that the
instrument was a result of fraud and misrepresentation. It was highlighted
that previously also, the parties had executed the agreement on 12.03.2007,
however, neither the said agreement to sell has been disclosed by the
plaintiffs in their plaint nor any suit was filed by them. The agreement
dated 12.03.2007 was got registered on 13.03.2007 and the defendant never
received the sale consideration. It is specifically pleaded that the property in
question is being used by Lal Singh s/o Karan Singh, who is residing there,
and in the end, it was prayed that the suit be dismissed.
After completion of pleadings of the parties, the trial Court in
all, framed nine issues and thereafter, the parties adduced their respective
evidence. Upon considering the pleadings and evidence on record, the trial
Court proceeded to decide the material issues No.1 to 3, 7 and 8 against the
plaintiffs and in favour of the defendant by holding that the valid execution
of agreement to sell dated 31.03.2007 is not established.
Dissatisfied with the judgment and decree dated 06.08.2014
passed by the trial Court, the plaintiffs preferred appeal bearing No.144 of
2014, however, the same was also dismissed through impugned judgment
and decree dated 23.08.2016. Hence, this second appeal.
Learned counsel for the appellants has argued that the
execution of the agreement Ex.P-1 is duly established as both the attesting
witnesses, namely, Vijay Pal Singh PW-1 and Bharat Singh PW-4 supported
the stand of the plaintiffs. He submits that the plaintiffs had already
performed their part of contract and the sale deed was deferred because of
the ban imposed by the State government, but despite lifting of the ban and
various requests made by the appellant/plaintiffs, needful was not done by
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respondent, as she did not execute the sale deed. According to him, the
evidence on record, sufficiently proved that the plaintiffs are entitled to the
decree of specific performance of the contract, but the trial court and First
appellate Court have misconstrued the evidence and erroneously dismissed
the suit and the appeal, therefore, the interference is warranted by this
Court.
During the course of hearing, it is not disputed by the learned
counsel that though prior to the agreement in question, an agreement to sell
dated 12.03.2007 was executed, but according to him, as there was some
discrepancy in the said instrument, therefore, this another agreement dated
31.03.2007 Ex.P-1 was executed on 31.03.2007 between the same parties.
After hearing the learned counsel, and examining the case file,
this Court finds that the entire case of the appellants is based upon the
agreement to sell dated 31.03.2007 (Ex.P-1), which is signed by only one
vendee, namely, Subhash. As per the terms and conditions of the
agreement, Subhash was to acquire 1/4th of the share along with his brother
Suresh, whereas 3/4th of the share was to be purchased by other three
plaintiffs, namely, Ram Avtar, Birender Singh and Surender Singh, but
strangely none of the brothers have come forward to testify before the Court
in support of the claim made in the plaint. This Court is mindful that where
a claim is filed by one of the co-sharers, the same is maintainable in case the
interest of the said co-sharer is not adverse to the interest of the other co-
sharers, but in the present case, the plaintiffs by virtue of the agreement (Ex.
P-1) had not acquired any right in the immoveable property, therefore, the
evidence of the appellants relating to agreement to sell itself is deficient.
Apart from it, the other two witnesses, namely, Vijay Pal Singh (PW-1) and
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Bharat Singh (PW-4) have testified differently, who also failed to prove the
valid execution of agreement Ex. P-1. As per deposition of Vijay Pal Singh
attesting witness of Ex.P-1, the plaintiffs got signed two agreements from
him and he testified because he is plaintiffs' neighbour. Though, it is stated
by him that a sum of Rs.4 lacs was paid, but since the amount mentioned in
both these agreements is same, whereas, the witness has not explained that
the amount was paid in respect of the subject agreement. Similarly, the
other attesting witness Bharat Singh clearly stated that no money was paid
in his presence to the defendant. Further, in the agreement there is no
recital that previously agreement to sell dated 12.03.2007 was executed
between the same parties and because of discrepancy, the said registered
document was given up and this agreement is being executed.
Thus, the evidence adduced by appellants is not enough to
prove the valid execution of agreement to sell dated 31.03.2007 (Ex.P-1)
and the perusal of the impugned judgments passed by Civil Judge (Jr.
Divn.), Pataudi as well as First Appellate Court reveal that the concurrent
findings returned on the material issues are based upon proper appreciation
of the evidence. As a result of this discussion, this Court is of the opinion
that the appeal does not involve any substantial question of law and is
devoid of merits.
Resultantly, the appeal fails and is dismissed. No costs.
(MANOJ BAJAJ)
08.07.2022 JUDGE
Jasmine Kaur
Whether speaking/reasoned Yes No
Whether reportable Yes No
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