Punjab-Haryana High Court
Hakam Singh vs Teja Singh (Deceased) Through Lrs on 29 August, 2023
Neutral Citation No:=2023:PHHC:114298
1
RSA-653 of 2017 (O&M)
2023:PHHC:114298
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-653 of 2017 (O&M)
Date of decision: 29.08.2023
Hakam Singh
......Appellant
Versus
Teja Singh (since deceased) represented by his LRs
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: - Mr. Arihant Jain, Advocate,
for the appellant.
NAMIT KUMAR, J.
1. This Regular Second Appeal along with an application
under Section 5 of the Limitation Act seeking condonation of delay of
324 days in filing the appeal, is directed against the judgment and
decree dated 28.10.2014 passed by the Court of learned Additional
Civil Judge (Senior Division), Malerkotla, whereby suit filed by the
plaintiff-respondents for possession by way of specific performance of
agreement to sell was decreed as well as against the judgment and
decree dated 24.08.2015 passed by the Court of learned Additional
District Judge, Sangrur, vide which the appeal filed by the defendant-
appellant against the judgment and decree of the trial Court, has been
dismissed.
2. For convenience sake, reference to parties is being made
as per their status in the civil suit. Brief facts of the case are that the
1 of 8
Neutral Citation No:=2023:PHHC:114298
RSA-653 of 2017 (O&M)
2023:PHHC:114298
plaintiff filed the suit for specific performance of the agreement of sale
dated 23.06.2006 and writings dated 25.06.2007 and 31.10.2007
regarding land measuring 06 bighas 05 biswas, which is 125/971 share
of 48 bighas 41 biswas, fully detailed in the head note of the plaint,
situated at village Mahorana, Tehsil Malerkotla along with electric
connection motor etc. for a sum of Rs.6,25,000/- and on payment of
Rs.3,45,000/- after adjusting Rs.2,80,000/- paid as earnest money.
Alternative relief of recovery of Rs.5,60,000/- along with interest @
2% per month from the date of filing of the suit till payment was
sought. Relief of permanent prohibitory injunction restraining the
defendant from selling the suit land in any manner was also sought. It is
mentioned in the plaint that the defendant agreed to sell the suit land
owned and possessed by him @ Rs.1,00,000/- per bigha and received
Rs.2,50,000/- from the plaintiff as earnest money on 23.06.2006 and
agreed to execute and get registered the sale deed upto 25.06.2007. He
also agreed to hand over possession of the suit land at the time of
execution and registration of sale deed. The agreement of sale was
reduced into writing and was signed by the defendant. His son also
made an endorsement that his father has received Rs.2,50,000/- in cash
in his presence. Photographs of the parties were also affixed on the
agreement. Later on, defendant showed his inability to execute the sale
deed upto 25.06.2007 and requested to extend date of execution and
registration of the sale deed. The plaintiff accepted the request and with
mutual consent, the date was extended from 25.06.2007 to 31.10.2007
and a writing was made on the overleaf of the agreement dated
2 of 8
Neutral Citation No:=2023:PHHC:114298
RSA-653 of 2017 (O&M)
2023:PHHC:114298
23.06.2006, which was signed by the parties and attested by the
witnesses. Later on, defendant again showed his inability to execute the
sale deed upto 31.10.2007 and requested to extend the date of execution
and registration of sale deed. The date was extended from 31.10.2007
to 25.04.2008 with mutual consent and an agreement to this effect was
reduced into writing on 31.10.2007. The defendant also received a sum
of Rs.30,000/- as further earnest money from the plaintiff and admitted
having received Rs.2,80,000/- from the plaintiff. This agreement was
also signed by the parties and attested by the marginal witnesses.
Photographs of the parties were also affixed on the agreement dated
31.10.2007. The plaintiff always remained ready and willing to perform
his part of the agreement of sale dated 23.06.2006, writing dated
25.06.2007 and agreement dated 31.10.2007. He tendered the
remaining sale consideration and other expenses of execution and
registration of sale deed and requested the defendant to execute the sale
deed and deliver possession as per the terms and conditions of the
agreements and writing, but the defendant had been putting off the
matter and was not ready to perform his part of the contract. The
plaintiff remained present in the office of the Sub Registrar,
Malerkotla, on 25.04.2008 along with remaining sale consideration and
expenses for registration of sale deed, but the defendant did not come
present. The plaintiff got his presence marked by executing an
affidavit, which was attested by Sub Registrar/Executive Magistrate,
Malerkotla. Even after 25.04.2008, the plaintiff requested the defendant
a number of times to execute the sale deed and deliver possession, but
3 of 8
Neutral Citation No:=2023:PHHC:114298
RSA-653 of 2017 (O&M)
2023:PHHC:114298
in vain. The defendant rather started threatening to alienate the suit land
in violation of the terms of the agreements and writing to cause loss and
injury to the plaintiff.
3. Upon notice, defendant appeared and filed written
statement taking objections that the suit is not legally maintainable in
the present form; that the plaintiff has suppressed the material facts and
has not come to the Court with clean hands; that due to old-age, the
defendant is suffering from various ailments. He took loan of
Rs.1,00,000/- from the plaintiff and had returned Rs.70,000/- to the
plaintiff. Rs.30,000/- were due towards him. The plaintiff was insisting
for payment of Rs.30,000/-, so he filed this suit to put pressure on the
defendants. On merits, all the averments of the plaint regarding
agreement to sell the suit land and execution of the writings have been
denied. Receipt of earnest money is also denied. It is stated that the
defendant has never executed the alleged agreement in favour of the
plaintiff.
4. Replication was filed, wherein the averments of the plaint
were reiterated and those of the written statement were controverted.
5. From the pleadings of the parties, following issues were
framed and recorded by the learned Trial Court:-
1) Whether the defendant being owner, entered into an
agreement to sell dated 23.06.2006 with the plaintiff
for the sale of his property as alleged in the plaint?
OPP
2) Whether a sum of Rs.2,80,000/-as earnest money
was received by the defendant from the plaintiff?
OPP
4 of 8
Neutral Citation No:=2023:PHHC:114298
RSA-653 of 2017 (O&M)
2023:PHHC:114298
3) Whether the plaintiff was/is ready and willing to
perform his part of agreement? OPP
4) Whether plaintiff is entitled to possession through
specific performance of the said agreement to sell?
OPP
5) Whether the plaintiff is entitled to for the alternative
relief of recovery of the suit amount? OPP
6) Whether the plaintiff is entitled to injunction as
prayed for? OPP
7) Whether the suit is not maintainable in the present
form? OPD
8) Whether the plaintiff has not come to the court with
clean hands and has suppressed material facts? OPD
9) Relief.
6. Parties led oral as well as documentary evidence in
support of their respective contentions.
7. After hearing arguments and after appreciating evidence
on record, trial Court decreed the suit of plaintiff vide judgment and
decree dated 28.10.2014.
8. Aggrieved against the judgment and decree of the trial
Court, defendant-appellant preferred an appeal before the lower
appellate Court, which has been dismissed vide judgment and decree
dated 24.08.2015.
9. Learned counsel for the appellant contended that findings
of both the Courts below are perverse and erroneous, thus, not
sustainable in the eyes of law. He further contended that Courts below
failed to appreciate that plaintiff-respondent(s) failed to prove readiness
and willingness to perform his part of the contract, thus, he was not
entitled to a decree of specific performance. He further contended that
5 of 8
Neutral Citation No:=2023:PHHC:114298
RSA-653 of 2017 (O&M)
2023:PHHC:114298
the Courts below have decreed the suit of the plaintiff-respondent(s)
without considering the oral as well as documentary evidence on
record.
10. I have heard learned counsel for the appellant and perused
the record.
11. To support his case, plaintiff examined PW1 Darshan
Singh, the marginal witness, and he has supported the case of the
plaintiff regarding execution of agreements and writing Ex.P1 to Ex.P3
and payment of earnest money of Rs.2,80,000/- to defendant-appellant.
This Court has perused the Ex.P1 to Ex.P3 and all the
agreements/writings bear the signatures of the defendant/appellant.
Perusal of agreement Ex.P1 reveals that Rachhpal Singh son of
defendant-appellant Hakam Singh also made an endorsement in token
of his father having received Rs.2,50,000/- as earnest money from the
plaintiff in his presence. Vide agreement Ex.P3, the defendant received
another sum of Rs.30,000/- from the plaintiff as additional earnest
money. This document has been proved by PW Amar Singh
Nambardar. The execution of the writings Ex.P1 to Ex.P3 prove that
the defendant had agreed to sell the suit land to the plaintiff @
Rs.1,00,000/- per bigha and had received Rs.2,80,000/- as earnest
money. It is also proved that the date for execution and registration of
sale deed was extended from time to time and vide writing Ex.P3, it
was extended upto 25.04.2008 with the consent of the appellant. The
evidence of the witnesses of the plaintiff-respondent has also proved
that the agreements Ex.P1 to Ex.P3 bear joint photograph of the
6 of 8
Neutral Citation No:=2023:PHHC:114298
RSA-653 of 2017 (O&M)
2023:PHHC:114298
plaintiff and the defendant. The appellant could not rebut the evidence
of the plaintiff-respondent nor could explain about his photograph
appearing on these documents. Plaintiff has proved on record that he
always remained ready and willing to get the sale deed executed and
registered in his name and he got his presence marked by executing
affidavit Ex.P4, which is attested by the Executive Magistrate,
Malerkotla. The scribe of writings Ex.P1 to Ex.P3 Pawan Kumar
Sharma has also supported the case of the plaintiff regarding execution
of these documents by the defendant in favour of the plaintiff. He has
proved the entries of his register Ex.P5 and Ex.P6, wherein these
documents were entered. The Courts below have rightly observed that
evidence of plaintiff Teja Singh, who has produced his affidavit
Ex.PW3/A and who could not appear for his cross-examination due to
his death has also proved the case of the plaintiff regarding execution
of agreements and writing Ex.P1 to Ex.P3 and affidavit Ex.P4. His
evidence is admissible and cannot be discarded on the ground that he
did not appear for his cross-examination as he could not appear for
cross-examination due to his death and his LRs had to be impleaded in
his place. PW Jarnail Singh son of Teja Singh has also deposed as per
the case of the plaintiff by producing his affidavit Ex.PW5/A. Further
perusal of the judgments of the Courts below shows that none of the
witnesses of the plaintiff stated anything in the cross-examination,
which could prove that the agreement Ex.P1 was a money transaction
or that the defendant had borrowed Rs.1,00,000/- from the plaintiff and
had returned Rs.70,000/- to the plaintiff. Sole statement of the
7 of 8
Neutral Citation No:=2023:PHHC:114298
RSA-653 of 2017 (O&M)
2023:PHHC:114298
appellant without any cogent documentary evidence that he had not
executed the agreement of sale and writing Ex.P1 to Ex.P3 does not
prove his case. Plaintiff-respondent(s) have fully proved their case qua
execution of agreement to sell by defendant-appellant in favour of the
plaintiff.
12. Concurrent findings have been recorded by both the
Courts below and learned counsel for the appellant has failed to show
that the same are perverse or illegal or based on misreading, non-
reading or mis-appreciation of the material evidence on record.
13. No question of law, muchless substantial question of law
has been raised or arises for consideration in the present appeal. No
other point has been urged.
14. Present appeal has been filed after a delay of 324 days.
Learned counsel for the appellant has failed to give plausible reasons to
condone such a huge delay in filing the appeal. In view of the above,
present appeal is dismissed on merits as well as on the ground of
limitation.
15. Pending application(s), if any, stand disposed of
accordingly.
(NAMIT KUMAR)
29.08.2023 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
Neutral Citation No:=2023:PHHC:114298
8 of 8
