Punjab-Haryana High Court
Rajpal Singh And Another vs Charan Singh And Others on 2 November, 2022
RSA-5110-2019 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-5110-2019 (O&M)
Reserved on: 21.10.2022
Date of pronouncement: November 2, 2022
Rajpal Singh and another ........ Appellants
Versus
Charan Singh and others ......... Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present:- Mr.Vikas Kumar, Advocate for the appellants.
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HARKESH MANUJA, J.
CM-14481-CII-2019
Application for impleading the legal representatives of
appellant No.3- Smt.Bhagwati.
CM-14482-CII-2019
Application for impleading the legal representatives of
respondents No.3 & 4 i.e. Smt.Santosh and Smt.Rathi @ Ram Rati.
For the reasons mentioned in both applications which are
supported by an affidavit, the same are allowed. As a result thereof,
names mentioned in para 1 of CM-14481-CII-2019 as well as paras 1
& 2 of CM-14482-CII-2019 are ordered to be impleaded as LRs of
appellant No.3- Smt.Bhagwati and respondents No.3 & 4 i.e.
Smt.Santosh and Smt.Rathi @ Ram Rati, respectively to pursue the
present appeal, subject to all just exceptions.
Amended memo of parties is taken on record.
Registry to tag the same at appropriate place.
SANJAY GUPTA
2022.11.03 14:51
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integrity of this document
RSA-5110-2019 (O&M) [2]
MAIN CASE:
Present appeal has been filed against the judgments and
decrees dated 15.10.2016 and 06.07.2019 passed by the Court of
Civil Judge (Senior Division), Faridabad; and Additional District
Judge, Faridabad; whereby a decree for recovery of Rs.18 lacs along
with interest @ 6% per annum w.e.f. 06.10.2005 has been passed in
favour of respondent No.1-plaintiff and against appellants besides
respondents No.2 to 8, herein.
Facts leading to the present appeal are that based on an
agreement to sell dated 06.10.2005 entered into between respondent
No.1 and one Nathi (predecessor-in-interest of appellants as well as
respondents No.2 to 8, herein) as regards the suit property, a suit for
specific performance along with permanent injunction was filed at the
instance of respondent No.1. As per the averments made in the
plaint, the total sale consideration was Rs.21 lacs with 06.06.2007
being the target date and a sum of Rs.15 lacs was paid as earnest
money to the vendor. It was further pleaded that another sum of Rs.3
lacs was paid to the vendor on 06.04.2006 against a receipt besides
some more payment of Rs.2 lacs made through cheque No.556801
dated 05.04.2006. Further it was also stated that Nathi-vendor died
on 29.12.2007 and a legal notice dated 13.03.2008 was served upon
his legal representatives requesting them to get the sale deed
executed on or before 28.03.2008. In pursuance of the said legal
notice, respondent No.1 even marked himself present in the office of
Sub Registrar on 28.03.2008, however, none turned up on behalf of
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RSA-5110-2019 (O&M) [3]
vendor compelling him to file a suit for specific performance on
20.09.2009.
In response, a written statement came to be filed on
behalf of appellants, besides their mother Bhagwati, disputing the
factum of execution of agreement besides the payment of sale
consideration as well. In the written statement, it was stated that the
suit land in the hands of Nathi was ancestral in nature as such, he
had no right to enter into any such agreement. Besides this, it was
also pleaded that the agreement in question was the result of fraud
and misrepresentation. Appellants also stated that the suit land
already stood sold/ transferred in favour of one Tek Chand Verma i.e.
the predecessor-in-interest of respondent No.9 herein, on the basis of
sale deed dated 28.05.2010 executed in his favour in pursuance to a
decree for specific performance passed by learned Trial Court on
21.08.2006, upheld in appeal on 22.08.2007 and re-affirmed by this
Court vide judgment dated 23.11.2009 in a suit for specific
performance filed at the instance of Tek Chand Verma, based on an
agreement to sell dated 12.07.1996. To the same effect, written
statement was also filed by Tek Chand Verma i.e. the predecessor-
in-interest of respondent No.9 herein. Remaining respondents were
proceeded against ex-parte.
It may be pointed out here that in view of the sale deed
dated 28.05.2010 executed in favour of Tek Chand Verma, the prayer
for relief of specific performance was relinquished by respondent
No.1 restricting himself only for grant of refund of his earnest money.
SANJAY GUPTA
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RSA-5110-2019 (O&M) [4]
Learned trial Court vide its judgment and decree dated
15.10.2016 partly decreed the suit in favour of respondent No.1 to the
extent of refund of Rs.18 lacs along with interest @ 6% per annum
w.e.f. 06.10.2005 by recording a positive finding to the effect that
execution of the agreement in question was duly proved on record
including the amount of payment of earnest money to the tune of
Rs.18 lacs, however, learned trial Court held that the payment made
by respondent No.1 through cheque No.556801 dated 05.04.2006
could not be proved on record.
Aggrieved against the judgment and decree dated
15.10.2016 passed by learned trial Court, the appellants besides their
mother Bhagwanti filed first Appeal which came to be dismissed vide
judgment and decree dated 06.07.2019 passed by the Court of
learned Additional District Judge, Faridabad.
Challenging the judgments and decrees dated
15.10.2016 and 06.07.2019 passed by the Courts below, learned
counsel for the appellants contends that in the present case, the
execution of agreement in question dated 06.10.2005 was not proved
on record as the scribe was never examined to prove the same. He
further submits that even the payment of earnest money as
mentioned in the agreement Ex.P1 or even in the receipts Exs. P-2 &
P-3 had not been established on record and as such a decree for
refund of payment of earnest money along with interest could not
have been passed in favour of respondent No.1. In support, learned
counsel for the appellants relied upon judgments passed by this
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RSA-5110-2019 (O&M) [5]
Court in Harvel Singh Vs. Ranjit Singh and another, 2012 (4) CCC
393 (P&H), Balwinder Kaur Vs. Bawa Singh and others, (2002-3)
PLR 117 and Richhpal Singh Vs. Sandhura Singh, 2013 (3) CCC
242 (P&H).
No other point was argued.
I have heard learned counsel for the appellants and gone
through the paper-book as well as records which has been provided
to me at the time of hearing by learned counsel for the appellants.
Considering the aforesaid, I do not find much scope to interfere with
the concurrent finding of facts recorded by both the Courts below on
the point of execution of agreement to sell dated 06.10.2005 as well
as payment of earnest money, as a consequent thereof. A perusal of
record shows that the agreement in question dated 06.10.2005 has
been duly proved on record by respondent No.1/ plaintiff himself
while appearing as PW1, besides having examined PW2 Vikram
Singh i.e. one of the marginal witness to the agreement in question.
Respondent No.1-plaintiff while appearing as PW1 in his
cross-examination has specifically deposed that the amount paid to
Nathi as earnest money was obtained by him from brothers, besides
a loan of Rs.3 lacs from one of his friends, namely, Jai Kumar Jain.
No specific suggestion during his cross-examination was ever put to
respondent No.1/ plaintiff to the effect that the afore-stated portion of
his statement was incorrect. In the absence of any such specific
suggestion having been put to respondent No.1, there does not
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RSA-5110-2019 (O&M) [6]
appear to be any reason to disbelieve the said part of the statement
made by him.
From a conjoin reading of statements of PW1 and PW2
besides a bare perusal of agreement dated 06.10.2005 (Ex.P1) and
the payment of receipts dated 06.10.2005 (Ex.P2) as well as dated
06.40.2006 (Ex.P3), one can see through that the agreement in
question and the receipts Ex.P2 & P3 were duly executed between
respondent No.1 and Nathi. PW2 who happens to be one of the
marginal witness to the agreement in question belongs to the same
locality and has even been known to deceased Nathi being a
neighbourer. In addition, the agreement in question as well as receipt
dated 06.10.2005 Ex.P2, also bears the photograph of Nathi-vendor,
to which no explanation at all has been rendered by the appellants.
One of the important aspect in the present case has been
that a legal notice dated 13.03.2008, was issued at the instance of
respondent No.1/ plaintiff and its receipt has been admitted by
appellant No.1 herein, while appearing as DW1 before the learned
trial Court. Nothing has been proved on record so as to establish that
any reply to the notice dated 13.03.2008, controverting its contents,
was ever filed and a copy thereof was sent to respondent No.1. Thus,
in the facts and circumstances of the present case, when the
defendants did not raise any rebuttal to the contents of the notice
dated 13.03.2008 which clearly specified regarding the agreement
dated 06.10.2005 as well as payment of earnest money, this also has
to be taken against the appellants. Though a plea of fraud has been
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RSA-5110-2019 (O&M) [7]
raised in the written statement, however, no evidence at all has been
produced on record by the defendants to show as to whether any
complaint was ever made to the police against respondent No.1
having allegedly defrauded them.
In the present case, a specific stand was taken by the
appellants in their written statement alleging fraud and
misrepresentation having been played upon deceased Nathi. Neither
complete particulars of fraud as enjoined under Order 6 Rule 4 CPC
were ever pleaded in the written statement; nor any evidence to this
effect was ever adduced by them. No doubt, it is the plaintiff who has
to stand on his own lesg and has to prove his case in order to
succeed, however, the conduct of the parties including the
defendants has to be taken into consideration while adjudicating upon
a lis.
I have gone through the judgments referred to by learned
counsel for the appellants. Harvel Singh's (supra) was a case
wherein the vendee/ plaintiff failed to examine any marginal witness
to the agreement; whereas in the present case, one of the marginal
witness, namely, Vikram Singh has appeared as PW2 and supported
the case of the plaintiff.
In the case of Balwinder Kaur's supra, execution of the
agreement to sell was disbelieved, based upon suspicious
circumstances as such the same does not apply to the facts of the
present case.
SANJAY GUPTA
2022.11.03 14:51
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RSA-5110-2019 (O&M) [8]
In another case i.e. Richhpal Singh's case (supra), the
agreement was executed on plain paper which was also one of the
considerations while recording a finding; whereas the same is
missing in the present case.
Thus, in view of the discussion made hereinabove, I do
not find any justification to interfere with the findings recorded by both
the Courts below which are purely factual in nature and based on
evidence available on record as such, no question of law much less
substantial question of law is involved in the present appeal.
There is no illegality or irregularity warranting interference
by this Court in exercise of power under Section 100 of CPC. Thus,
the present appeal is dismissed.
Pending application(s), if any, shall also stand disposed
of.
November 2, 2022 ( HARKESH MANUJA )
sanjay JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
SANJAY GUPTA
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