Punjab-Haryana High Court
Surender Singh vs Managat Ram & Anr on 8 March, 2022
RSA-5603-2014 (O&M) 1
212 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-5603-2014 (O&M)
Date of decision: 08.03.2022
Surender Singh
....Appellant
Versus
Managat Ram and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Saurabh Dalal, Advocate for the appellant
Mr. Brijender Kaushik, Advocate for the respondents
ANIL KSHETARPAL, J (Oral)
The hearing of the case is being held through video
conferencing on account of restricted functioning of the Courts.
The appellant is the plaintiff in a suit for grant of decree of
possession by way of specific performance of the agreement to sell. The
First Appellate Court has modified the judgment and decree passed by
the learned trial court while dismissing the suit qua the share of Smt.
Indrawati, daughter of Sish Ram whereas the suit qua the share of
Managat Ram (her brother) has been decreed. A Regular Second Appeal
filed by Managat Ram i.e RSA-3739-2011 has already been dismissed
on 04.07.2014.
Some facts are required to be noticed. The plaintiff filed a
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suit on 08.10.2003 for possession by way of specific performance of the
agreement to sell dated 15.03.2001. It was asserted that on receipt of
Rs.1,00,000/- as earnest money, the defendants (Managat Ram and his
sister Smt. Indrawati) executed an agreement to sell with respect to 55
kanals and 5 marlas of joint land. The land was agreed to be sold at the
rate of Rs.1,50,000/- per acre. As per the agreement to sell, the sale deed
was to be executed on 14.09.2001. The plaintiff also claims that on
12.06.2001 the period for execution of the sale deed was extended by
executing a writing signed by Managat Ram on receipt of Rs.2,25,000/-
and the period was extended upto 14.12.2001. The suit was filed on
08.10.2003. Defendants contested the suit while filing separate written
statements. Defendant no.1 denied execution of the writing dated
12.06.2001 but admitted that the period for registration of the sale deed
was extended upto 14.12.2001. Defendant no.1 also admitted that he
had received an additional payment of Rs.2,25,000/- on 12.06.2001 from
the plaintiff. He also admitted receipt of Rs. 1,00,000/- as earnest
money alongwith his sister.
Defendant no.2, while filing separate written statement
admitted the execution of the agreement to sell but stated that defendant
no.1 (her brother) was never authorized to extend the period for
execution and registration of the sale deed.
On appreciation of evidence, learned trial court decreed the
suit vide judgment and decree dated 04.11.2009. Both the defendants
filed joint first appeal. Learned First Appellate Court has upheld the
finding of fact arrived at by the trial court with regard to entering into
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agreement to sell on receipt of the earnest money and execution of
writing dated 12.06.2001 signed by Managat Ram while extending the
date for execution of the sale deed to 14.12.2001 on receipt of
Rs.2,25,000/-. However, the First Appellate Court has accepted the
appeal with respect to the share of Smt. Indrawati. It has been held that
Smt. Indrawati was not a party to the writing dated 12.06.2001 and
therefore, the suit filed by the plaintiff qua her is liable to be dismissed.
Heard learned counsel representing the parties at length and
with their able assistance perused the judgments passed by the courts
below as also the record of the learned trial court, which was
requisitioned.
Learned counsel representing the appellant contends that
even if writing dated 12.06.2001 is ignored, still the suit filed by the
plaintiff was filed within the period prescribed in the Limitation Act,
1963. He submits that the First Appellate Court has upheld the finding
of fact arrived at by the trial court with respect to the fact that Smt.
Indrawati did execute the agreement to sell on receipt of the earnest
money of Rs.1,00,000/- alongwith her brother. He further contends that
Smt. Indrawati never gave any notice to the plaintiff after 14.09.2001
calling upon him to execute the sale deed. Hence, he contends that Smt.
Indrawati had consented to the extension of the period for registration of
the sale deed.
Per contra, learned counsel representing Smt. Indrawati
contends that since Smt. Indrawati did not sign the writing dated
12.06.2001, therefore, such writing cannot be enforced against her. He
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further contends that terms of the contract have been varied /changed,
therefore, in the absence of consent of Smt. Indrawati to the variation,
the aforesaid contract cannot be enforced against her.
This case has peculiar facts. The execution of the
agreement to sell dated 15.03.2001, on receipt of the earnest money, has
been concurrently found to be correct. The suit qua the share of
Managat Ram already stands decreed. In such circumstances, the
question is whether the plaintiff should be deprived of the relief of
specific performance qua the share of Smt. Indrawati or not, particularly
when the suit from the date of the original agreement to sell is within the
period of limitation?
It is not in dispute that the agreement to sell Ex.P-2 dated
15.03.2001 is common. Sh. Managat Ram and Smt. Indrawati were joint
owners of land measuring 55 kanals and 5 marlas. Both were co-sharers.
They executed the agreement to sell jointly on receipt of the earnest
money. It is also proved that on 12.06.2001 the period for execution of
the sale deed was extended by a period of 3 months only. Even if the
alleged writing dated 12.06.2001 with respect to the share of Smt.
Indrawati is ignored, still the suit filed by the plaintiff is within
limitation. Further on a careful reading of the deposition of Smt.
Indrawati, who has appeared as DW2, it is evident that she did not visit
the office of the Sub Registrar for execution of the sale deed on
14.09.2001. Smt. Indrawati is married and resides in village Achhej,
Tehsil Beri, District Jhajjar, whereas the land in question is located in
Village Bakhawarpur @ Raiya, Tehsil & District Jhajjar. She has stated
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in her deposition that she came to execute the sale deed on 15.03.2001,
which is the date of agreement to sell. It is evident that such statement is
factually incorrect because as per the original agreement to sell, the
agreed date for execution of the sale deed was 14.09.2001.
Further, there is a concurrent finding of fact to the effect
that Managat Ram and Smt. Indrawati executed the agreement to sell
while making a factually wrong statement. In the agreement to sell, it
was recited that the land in question is free from any charge. It has come
on record that the land was mortgaged and it is the defendants who did
not repay the amount before 14.09.2001. In such circumstances, it is
evident that the First Appellate Court has overlooked these aspects of the
matter while partially reversing the judgment of the trial court.
Further on analysis of the facts and evidence available, it is
evident that Smt. Indrawati was passive a consenting party to the writing
deed dated 12.06.2001. She took no steps to call upon the plaintiff to
complete the contract on 14.09.2001. Sh.Managat Ram is her brother.
He has already lost in the suit. There is no inter se clash of interest
between the brother and sister. She, after marriage, is not residing in the
village where the disputed land is located.
Consequently, the appeal is allowed. The judgment passed
by the learned First Appellate Court to the extent which results in
dismissal of the suit filed by the appellant partially qua the share of Smt.
Indrawati is set aside and the judgment passed by the trial court is
restored. The appellant shall be liable to pay the balance amount to Smt.
Indrawati while ignoring the writing dated 12.06.2001.
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All the pending miscellaneous applications, if any, are also
disposed of.
08.03.2022 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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