Mohinder Singh Etc vs Kewal Singh Etc
2024 Latest Caselaw 8061 P&H

Punjab-Haryana High Court

Mohinder Singh Etc vs Kewal Singh Etc on 18 April, 2024

Author: Anil Kshetarpal

Bench: Anil Kshetarpal

                                        Neutral Citation No:=2024:PHHC:052965



RSA No.434 of 1993 (O&M)                        -1-

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                                      RSA No.434 of 1993 (O&M)
                                                      Reserved on: 14.03.2024
                                                      Date of Order:18.04.2024

Mohinder Singh and another                                         .Appellants
                                     Versus

Kewal Singh and others                                            ..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present: Mr. Tara Chand Dhanwal, Advocate, for the appellants.

Mr. P.S.Jammu, Advocate, for the respondents.

ANIL KSHETARPAL, J

1. BRIEF FACTS OF THE CASE

1.1 In this regular second appeal the plaintiffs assail the correctness

of the judgment and decree passed by the First Appellate Court which in

turn has reversed the judgment and decree passed by the trial court while

deciding the plaintiffs' suit for specific performance of the agreement to sell.

The trial court granted decree for possession by way of specific performance

of the agreement to sell in favour of the plaintiffs which has been modified

by the First Appellate Court and they have been granted an alternative

relief.

1.2 The basic issue which requires adjudication is whether the

agreement to sell dated 15.01.1988, propounded by defendants no.3 and 4

has been ante dated or not?

1.3 In order to comprehend the issues involved in the present case,

the relevant facts, in brief, are required to be noticed.

1.4 Two defendants, namely, Sh. Kewal Singh and Sh. Hakam

Singh sons of Sh. Ram Singh were owners of land measuring 14 kanals and

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4 marlas situated in village Ottu. They, on 23.03.1988, entered into an

agreement to sell in favour of the plaintiffs, namely Sh. Mohinder Singh and

Sh. Joginder Singh sons of Sh. Gurbax Singh, on receipt of Rs.10,000/- out

of total sale consideration of Rs.44,375/-. As per the agreement to sell, the

sale deed was to be executed and registered on or before 07.06.1988. It is

the case of the plaintiffs that defendants no.3 and 4 are owners in possession

of adjoining land to the suit land and they have placed pump set to lift water

from Ghaggar seasonal rivulet. After the agreement to sell, defendants no.3

and 4 convened Panchayat while impressing upon defendants no.1 and 2 to

either sell the land to them or give an undertaking that they will permit

defendants no.3 and 4 to continue irrigating the land in the same manner to

which the plaintiffs did not agree. Ultimately, defendants no.3 and 4 got

sale deed dated 03.06.1988 from defendants no.1 and 2 at the rate of

Rs.32000/- per acre which is Rs.7000/- per acre more than what was offered

by the plaintiffs. On 14.06.1988, the suit was filed after visiting the office of

sub-registrar on 07.06.1988.

1.5 Defendants no.1 and 2 claimed that the agreement to sell dated

23.03.1988 is forged and is a result of misrepresentation and that no

panchayat was ever held. Defendants no.3 and 4 filed separate written

statements claiming that they had no knowledge of the agreement to sell by

defendants no.1 and 2 in favour of the plaintiffs and in fact defendants no.3

and 4 executed an agreement to sell dated 15.01.1988, in their favour.

1.6 The trial court as well as the First Appellate Court have found

that the agreement to sell was executed by defendants no.1 and 2 in favour

of the plaintiffs and they were always ready and willing to perform their part

of the contract. It was also held that the agreement to sell dated 15.01.1988

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has been ante date. The First Appellate Court has modified the judgment of

the trial court on the ground that the agreement to sell was executed on

15.01.1988. Thus, the plaintiffs have been granted alternative relief of

refund of earnest money along with interest.

2. ARGUMENTS ADDRESSED AND DISCUSSION

2.1 This Bench has heard the learned counsel representing the

parties at length and with their able assistance perused the paper book along

with the requisitioned record.

2.2 It may be noted here that the learned counsel representing the

parties have not challenged the correctness of the concurrent findings of fact

with respect to agreement to sell dated 23.03.1988, executed by defendants

no.1 and 2, namely, Sh. Sulakhan Ram and Sh. Sat Pal sons of Sh. Sona

Ram, in favour of the plaintiffs, namely Mohinder Singh and Sh. Joginder

Singh sons of Sh. Gurbax Singh and these plaintiffs were always ready and

willing to perform their part of contract. Hence, the limited point which this

court is called upon to decide is whether the agreement to sell dated

15.01.1988 is ante date or not?

2.3 Ex.D1 is the copy of the agreement to sell dated 15.01.1988. It

has been scribed on stamp paper worth Rs.5/- which was allegedly

purchased by Hakam Singh son of Ram Singh. The stamp paper was

purchased from Sh. Janak Raj. He is a licenced stamp vendor who has

permission to sell the stamp papers at Sirsa. However, it has come on record

that he has sold the stamp paper at Rania. The official of D.C. Office has

testified that the application submitted by Sh. Janak Raj for permitting him

to sell the stamp papers at Ratia was rejected by the Deputy Commissioner.

A show cause notice has already been issued against Sh. Janak Raj as to why

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his licence should not be cancelled because there are various irregularities

including allegations that Sh. Janak Raj is also scribing the agreement to sell

and he does not maintain proper record. It has also come on record that the

agreement to sell is required to be scribed on a stamp paper of Rs.2.25/-. Sh.

Janak Raj, stamp vendor, has admitted that he sold stamp of Rs.3/-

denomination to as may as 11 persons on 15.01.1988. However, he has

failed to explain why he issued stamp paper of Rs.5/- to Sh. Hakam Singh on

15.01.1988. The agreement to sell is scribed by Sh. R.C.Goel, Advocate

who is not a professional scribe. He is not maintaining any register while

working as a scribe. It has also been signed by two marginal witnesses,

namely, Sh. Ganga Ram Dhaka, Advocate, Sirsa and another Advocate. Sh.

Janak Raj has been examined in rebuttal evidence as PW9. It is proved from

his statement that he has not been working in accordance with the rules as he

was not making entry of the unsold stamp papers which were available with

him while closing his notebook every day.

2.4 On careful reading of the statement of Sh. Hakam Chand, who

has appeared as DW1, it is evident that he is not a reliable witness. He has

admitted that the suit land falls in the jurisdiction of Sub Registrar, Ratia,

where the sale deeds are executed and registered. The sale deed in favour of

defendants no.3 and 4 has also been executed and registered at Ratia.

However, no reason has been given why the the agreement to sell Ex.D1,

dated 15.01.1988, was executed at Sirsa. It may be noted here that the stamp

paper for execution of the agreement to sell was purchased at Ratia and then

it was got scribed at Sirsa, although, Sh. Hakam Singh admits that a

significantly large number of professional scribes are available at Ratia.

2.5 Moreover, after stating that the agreement to sell dated

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23.01.1988, is forged and result of misrepresentation, however, he admits

that his thumb impression on the agreement to sell dated 23.03.1988 while

appearing in evidence. He has also incorrectly stated in his deposition that

defendants no.3 and 4 are not owners of adjoining land. He further states

that when the agreement to sell Ex.D1 dated 15.01.1988, was scribed, none

of the witness had put his signatures in his presence.

2.6 Sh. Ganga Ram Dhaka, Advocate, one of the marginal witness,

while appearing as DW5 has stated that he appended the agreement to sell in

his office. He states that he does not know who is the other marginal

witness. He states that he appended his signatures on the agreement to sell

on the request of Sh. Brahma Nand, Advocate. He again stated that he

signed on the request of Sh. Brij Mohan Bansal, Advocate. He has stated

that he does not remember whether the parties signed or thumb marked in

his presence or not. The second marginal witness has not been examined by

the defendants. There is no documentary evidence to prove that the

agreement to sell was scribed on 15.01.1988.

2.7 The following reasons have been recorded by the First

Appellate Court to reverse the judgment passed by the trial Court:-

(1) The plaintiffs have failed to refer to any rules which

require that the agreement to sell was to be scribed by a

regular scribe.

(2) The members of the Bar are respectables and they follow

a noble tradition. Moreover, young lawyers often work

as scribe and even though they do not know the parties.

(3) The parties cannot suffer because antecedents of stamp

vendors are not found upto the mark.

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2.8 The first reason noted by the First Appellate Court is not

appropriate. Though, there is no rule which compels the parties to get the

agreement to sell scribed from a regular scribe, however, at this stage the

court is only required to examine whether agreement to sell dated

15.01.1988 is pre-dated or not? In that context the court is required to

analyze the evidence. The antecedents of Sh. Janak Ran, stamp vendor are

doubtful. On the same day, he sells stamp papers worth Rs.3/-to as many as

11 persons, however, he issued stamp papers worth Rs.5/- to Sh. Hakam

Chand, one of the vendor. He has sold it at Rania, where he is not entitled to

practice and issue stamp papers. The agreement to sell is scribed at Sirsa,

though, in normal course it should have been scribed at Rania. Moreover,

defendant no.1 Hakam admits that he did not know the two marginal

witnesses. Mr. Ganga Ram Dhaka, Advocate, has stated that he has signed

on the request of Mr. Bansal, advocate, while sitting in his office. In these

circumstances, the First Appellate Court has erred in reversing the judgment

of the trial court.

2.9 On the request of the court, the learned counsel representing the

parties have filed their respective synopsis. The learned counsel

representing the respondents has submitted the following arguments:-

"The land, in question, was already under cultivation of the respondent no.3 and 4 and their other land is surrounded with this land and was being irrigated through the tubewell of the respondents no.3 and 4. The respondents no.3 and 4 are bonafide purchasers and are first vendees and their agreement is proved by Scribe and attesting witness. Vendor Hakam Singh DW-1 admitted the execution of agreement to sell dated 15.01.1988 (Ex.D-1) and execution of sale deed (Ex.D-2) in

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pursuance to agreement to sell.

Oral evidence of the plaintiffs about the Panchayat in the village having knowledge of agreement to sell dated 23.03.1988 (Ex. P-1) is not believable.

The plaintiffs have also sought alternative relief for recovery of Rs.10,000/- being earnest money and Rs.30,000/- as .compensation and the first appellate court has ordered to return the earnest money along with interest.

First Appellate Court has given well reasoned and lawful findings in para no.19 to 23.

Witness DW-4 Ramesh Chander Goyal Advocate Scribe of Exhb. D-1 Agreement to Sell dated 15.01.1988 is more reliable than a regular scribe. DW-5 Ganga Ram Dhaka Advocate, attesting witness is also more reliable than a common man being practicing Advocate and Member of the Bar Association who have taken the Oath of Professional Ethics and are governed by the Advocates Act, 1961 and Bar Council Rules.

PW-9 Janak Raj Stamp Vendor appeared in rebuttal and has deposed that he has sold the stamp paper of Agreement to Sell dated 15.01.1988.

Plaintiffs have failed to prove any fraud and thus, are only entitled for the return of earnest money and are not entitled for specific performance of Agreement to Sell dated 23.03.1988 as the land was already sold to the respondents no.3 and 4 vide Sale Deed Ex. D-2 dated

03.06.1988 i.e. before the date of execution of sale deed

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(07.06.1988).

The plaintiffs have never sought the relief to set aside the Sale Deed dated 03.06.1988 Ex. D-2 and thus, the civil suit was not maintainable."

2.10 The argument no.1 of respondent no.3 and 4, is without any

basis because it is not the case of the defendants no.3 and 4 that they were

previously cultivating the land before 15.01.1988.

2.11 The second argument of the learned counsel is also without

substance because PW5 Sh. Fouja Singh and PW6-Sh. Inder Pal have stated

that a panchayat in the village took place as alleged by the plaintiffs.

2.12 With respect to the next argument, it may be noted that the

plaintiffs are entitled to file comprehensive suit while seeking alternative

relief along with the relief of specific performance, however, the specific

performance cannot be denied on the ground that the alternative relief has

also been sought.

2.13 With regard to the next argument, this court has already

analyzed the reasons recorded by the First Appellate Court.

2.14 The next argument of the learned counsel representing the

respondents also lacks substance because the statements of DW5-Sh.

Ramesh Chand Goel and DW6-G.R.Dhaka, are not worth reliance

particularly in view of the crucial issue which requires adjudication.

2.15 The next argument of the learned counsel with regard to the

deposition of Sh. Janak Raj, it may be noted that Sh. Janak Raj has admitted

that inquiry is pending and he sold the stamp papers for Rs.5/- at Ratia,

though, he has been permitted to sell the stamp papers only from Sirsa.

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2.16 The next argument of the learned counsel is also without

substance because the plaintiffs have successfully proved that the agreement

to sell dated 15.01.1988 was in fact, pre-dated in order to defeat their right.

2.17 With respect to the least argument of the learned counsel, it may

be noted that the plaintiffs are not required to seek relief of setting aside the

sale deed. They are required to file suit for specific performance which was

filed by the plaintiffs. Any sale of the property after the agreement to sell

was entered into would be subservient to the plaintiffs' right to seek relief of

specific performance. Hence, the sale deed dated 03.06.1988 is not required

to be specifically set aside.

3. CONCLUSION

3.1 In this case, defendants no.3 and 4 have tried to frustrate the

plaintiffs' rights to seek possession by way of specific performance by ante

dating the agreement to sell. Hence, this court does not find it appropriate to

exercise discretion in their favour.

3.2 Keeping in view the aforesaid facts and discussion, the

judgment and decree passed by the First Appellate Court is set aside and that

of the trial court is restored.

3.3 The regular second appeal is allowed.

3.4 All the pending miscellaneous applications, if any, are also

disposed of.

18th April, 2024                                       (ANIL KSHETARPAL)
nt                                                          JUDGE


Whether speaking/reasoned                :YES/NO
Whether reportable                       :YES/NO




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