Punjab-Haryana High Court
Bela Singh vs Jaswant Kaur on 10 April, 2024
Author: Alka Sarin
Bench: Alka Sarin
RSA No.5204 of 2018 1 2024:PHHC:049490
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
110 RSA No.5204 of 2018 (O&M)
Date of Decision : 10.04.2024
Bela Singh ....Appellant
VERSUS
Jaswant Kaur ....Respondent
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Amit Arora, Advocate for the appellant.
ALKA SARIN, J. (Oral)
CM-14262-C-2018
This is an application for condonation of delay of 03 days in re-
filing the present appeal.
For the reasons stated in the application, the same is allowed.
The delay of 03 days in re-filing the present appeal is condoned.
CM stands disposed off.
RSA-5204-2018 (O&M)
1. The present appeal has been preferred by the plaintiff-appellant
challenging the judgments and decrees dated 02.09.2016 and 20.03.2018
passed by the Trial Court and the First Appellate Court, respectively.
2. The brief facts relevant to the present case are that the plaintiff-
appellant filed a suit for mandatory injunction for directing the defendant-
respondent to obtain Guardianship Certificate qua her minor son, namely,
Angrej Singh, from the Court of competent jurisdiction and to execute the
authenticity of this order/judgment
RSA No.5204 of 2018 2 2024:PHHC:049490
sale deed in favour of the plaintiff-appellant as per the terms and conditions
of the agreement to sell dated 22.09.2009 alleged to have been executed by
the defendant-respondent in favour of the plaintiff-appellant for a total sale
consideration of Rs.10,25,000/- per acre having received Rs.3,00,000/- as
earnest money. The land involved in the present case is 09 kanals 09 marlas,
which is standing in the name of the son of the defendant-respondent,
namely, Angrej Singh. It was averred that the original agreement had been
lost on 04.11.2010 and a rapat roznamcha was also recorded qua the same
on 08.11.2010. It was further the case set-up that the defendant-respondent
had agreed to obtain the requisite certificate from the Guardianship Court on
or before 25.03.2010 and after obtaining the certificate had settled to sell the
land. Since the certificate had not been obtained, the sale deed could not be
executed and the present suit was filed. Upon notice the defendant-
respondent appeared and filed her written statement taking preliminary
objection of locus standi and concealment of material facts from the Court.
On merits it was stated that the plaintiff-appellant had hatched a conspiracy
against the family of the defendant-respondent by obtaining the thumb
impression of the defendant-respondent and forged the agreement to sell. It
was further the stand taken that the defendant-respondent was neither the
owner nor competent to enter into an agreement regarding the property. It
was further the stand taken that the property belonged exclusively to the
minor son, who was not even impleaded as a party. Even the receipt of
earnest money was denied. It was further the case that FIR No.259 dated
13.11.2010 had been registered under Sections 420, 467 and 468 IPC against
the plaintiff-appellant for the fraud committed by him by forging the
authenticity of this order/judgment
RSA No.5204 of 2018 3 2024:PHHC:049490
agreement to sell dated 22.09.2009. Replication was not filed by the
plaintiff-appellant.
3. On the basis of pleadings of the parties the following issues
were framed :
(1) Whether the plaintiff has entered into an agreement
to sell dated 22.09.2009 with defendant for the sale of
suit land for a sale consideration of Rs.10,25,000/- and
paid Rs.3,00,000/- as advance money ? OPP
(2) Whether the plaintiff has been ready and willing
and is still ready and willing to perform his part of
agreement to sell in question ? OPP
(3) Whether the plaintiff is entitled to the relief of
mandatory injunction as prayed for ? OPP
(4) Whether the plaintiff is entitled to the relief of
permanent injunction as prayed for ? OPP
(5) Whether defendant can be directed to get
permission for sale of suit property from the guardian
court to sell the land in question which is in the name of
minor son of defendant ? OPP
(6) Whether the suit of the plaintiff is legally
maintainable in the present form ? OPP
(7) Whether the agreement to sell is bogus document if
so its effect on the suit land ? OPD
(8) Whether the plaintiff has no locus-standi to file the
present suit ? OPD
authenticity of this order/judgment
RSA No.5204 of 2018 4 2024:PHHC:049490
(9) What facts have been suppressed by the plaintiff
and whether those facts are material for just decision of
the suit ? OPD
(10) Who are necessary parties and who are not
necessary party to the suit and how the suit is bad for
non-joinder of necessary party and how the suit is bad
for mis-joinder of parties ? OPD
(11) Whether the suit is an abuse of the process of law ?
OPD
(12) Relief.
4. The Trial Court dismissed the suit vide judgment and decree
dated 02.09.2016. Aggrieved by the same, an appeal was preferred by the
plaintiff-appellant which was also dismissed vide judgment and decree dated
20.03.2018. Hence, the present regular second appeal.
5. Learned counsel for the plaintiff-appellant would contend that
the defendant-respondent failed to get the requisite certificate from the
Guardianship Court and that she had infact filed a petition under Section 8 of
the Hindu Minority and Guardianship Act, 1956 which was later withdrawn
by her. Learned counsel for the plaintiff-appellant would further contend that
the defendant-respondent herself had stepped into the witness-box and was
partially cross-examined and thereafter gave a power of attorney in favour of
her husband. In her partial cross-examination she admitted having filed the
petition under Section 8 of the Hindu Minority and Guardianship Act, 1956,
however, her husband denied the same. It is argued that the fact that a
petition under Section 8 of the Hindu Minority and Guardianship Act, 1956
was filed by the defendant-appellant proved that she had entered into the
authenticity of this order/judgment
RSA No.5204 of 2018 5 2024:PHHC:049490
agreement to sell with the plaintiff-appellant and thus the suit ought to have
been decreed.
6. Heard.
7. In the present case learned counsel for the plaintiff-appellant
has not been able to convince this Court that the defendant-respondent, at the
first instance, had the right to enter into an agreement to sell qua the property
which was exclusively owned by her minor son without there being any
permission from the concerned Court. Both the Courts have concurrently
held and it is an admitted fact that the property was owned by the minor son
of the defendant-respondent. Further still, it has concurrently been held that
the suit for mandatory injunction would not be maintainable as an equally
efficacious remedy to file a suit for specific performance was available with
the plaintiff-appellant but he chose not to avail the said remedy. Learned
counsel for the plaintiff-appellant has not addressed any argument qua the
said finding of both the Courts. The argument of learned counsel for the
plaintiff-appellant that a petition has been filed under the Hindu Minority
and Guardianship Act, 1956 which was later withdrawn and which was
admitted by the defendant-respondent in her partial cross-examination would
be of no avail inasmuch as she was admittedly not the owner of the property
and hence she had no right, title or interest to enter into the alleged
agreement to sell dated 22.09.2009 to sell the land of her minor son without
obtaining requisite permission from the concerned Court. No other point was
argued.
8. In view of the above, I do not find any merits in the present
appeal. No question of law, much less any substantial question of law, arises
authenticity of this order/judgment
RSA No.5204 of 2018 6 2024:PHHC:049490
in the present case. The present appeal is accordingly dismissed. Pending
applications, if any, also stand disposed off.
( ALKA SARIN )
10.04.2024 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
authenticity of this order/judgment
