Punjab-Haryana High Court
Balbir Singh vs Sukhdev Singh on 13 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:035876
RSA-2194-2010 (O&M) 2024:PHHC:035876
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
109
RSA-2194-2010 (O&M)
Date of decision: 13.03.2024
BALBIR SINGH ..Appellant
Versus
SUKHDEV SINGH ..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Ashok Singla, Advocate
for the appellant.
Mr. Sandeep Punchhi, Advocate
for respondent.
ANIL KSHETARPAL, J(Oral)
1. Brief facts and introduction:-
1.1 This is the plaintiff's regular second appeal against the
concurrent findings of the fact arrived at by the Courts below while granting
alternative relief of refund of earnest money.
1.2 In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be noticed.
1.3 The defendant Sh. Sukhdev Singh was the owner of a land
measuring 15 kanal and 8 marlas. The aforesaid land was already mortgaged
with the State Bank of India. On 05.06.2002, he entered into an agreement to
sell in favour of the plaintiff on receipt of Rs.1,15,000/- out of total sale
consideration of Rs.1,29,000/- per acre. It was recited in the agreement that
defendant is in the need of the money and he is delivering possession of the
land in favour of the plaintiff. The sale deed was agreed to be executed on
23.05.2003.
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1.4 As per the case of the plaintiff, the date for execution of the sale
deed was extended on two different occasions. Firstly, on 23.05.2003, on
payment of additional amount of Rs.35,000/-, the date for execution of the
sale deed was further extended to 20.05.2004 i.e. for a period of one year
from 23.05.2003. It was again extended to 15.01.2005 on an additional
payment of Rs.30,000/-. There are endorsements on the agreement to sell
evidencing extension of the date for execution of the sale deed. The plaintiff
claims that on 15.01.2005 and 16.01.2005 were holidays and therefore, he
attended the office of Registrar on 17.01.2005 and thereafter, sent a notice to
the defendant on 11.07.2005 calling upon him to execute the sale deed.
Consequently, he filed the suit on 25.07.2005. The defendant while
contesting the suit claimed that he has obtained a loan of Rs.1,80,000/- and
the document was executed as a surety. The trial Court held that the
execution of the agreement to sell is proved, however, it was executed for a
collateral purpose to secure repayment of the money. The Court held that at
the relevant time, defendant required money to marry his daughter and there
is evidence to prove that in the village there is a usual practice of executing
the agreement to sell in order to secure repayment of the land. Thus, the
Court granted the alternative relief.
1.5 The First Appellate Court dismissed the appeal on the ground
that as the agreement to sell evidenced delivery of possession hence, it
required mandatory registration. This observation was made by the First
Appellate Court on the basis of amendment incorporated in the year 2001 in
Section 17 of the Registration Act, 1908.
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1.6 On 07.07.2010, the appeal was admitted on the following
substantial question of law, which reads as under:-
"i) Whether the agreement Ex.PW4/A can be ignored for
want of registration under Section 17(1A) of the
Registration Act viz-a-viz the provisions of Specific Relief
and Transfer of Property Act?
ii) Whether the oral evidence to vary the terms of written
contract could have been considered and relied upon and
the same is in-admissible under Sections 91 and 92 of the
Evidence Act?
iii) Whether on the facts and in the circumstances of the
case the Courts below were right in dismissing the suit of
the plaintiff for specific performance of the contract?"
2. Arguments adduced:-
2.1 This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook along
with the photocopy of the record provided by the learned counsel
representing the parties.
2.2 The learned counsel representing the appellant submits that in
view of the judgment passed by the Division Bench in Ram Kishan and
another Vs. Bijender Mann alias Vijender Mann and others, 2013 (2) RCR
(Civil) 419, wherein, it was held that for the purpose of filing suit for
possession by way of specific performance of the agreement to sell, it is not
necessary that the agreement to sell must be registered. He submits that the
findings of the First Appellate Court on this aspect is erroneous. He further
submits that the execution of the agreement to sell is proved and its date of
execution has been extended on two different occasions. It is also proved
that the possession of the land was delivered and in additional evidence, the
plaintiff wants to prove copies of two sale deeds dated 02.12.2011 and
31.01.2012, executed by defendant to the various purchasers. It has been
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projected that the defendant has habitually taken this defence and
subsequently executes the sale deed.
2.3 On the other hand, the learned counsel representing the
respondent submits that one of the marginal witness of the agreement to sell
Sh. Niranjan Singh has appeared as DW-1 and proved that the agreement to
sell was executed for collateral purpose of securing refund of money. He
submits that it is a proved fact that the defendant was in dire need of the
money for marriage of his daughter and land was already mortgaged with
State Bank of India.
3. Discussion & Analyses:-
3.1 This Court has considered the submissions of the learned
counsel representing the parties.
3.2 Undoubtedly, on the first question, the matter is covered in
favour of the appellant by judgment delivered by the Division Bench in Ram
Kishan's, case (supra).The learned counsel representing the respondent does
not dispute the aforesaid factual position.
3.3 This Bench now proceeds to examine question No.(ii) and (iii).
It is evident that original agreement to sell was executed on 05.06.2002. The
sale deed was to be executed after a period of more than 11 months, nearly
one year from the date of execution of the agreement to sell. Thereafter, it
was extended by another period of one year. On the second occasion, it was
extended by nearly seven months. At the relevant time, the relief of specific
performance of the agreement to sell was discretionary under the unamended
Specific Relief Act, 1963, which shall be applicable in the present case. In
the agreement to sell itself, it has been recorded that the defendant is in the
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dire need of cash amount. Still further, the date for execution of the sale deed
was repeatedly extended. Although, the learned counsel representing the
plaintiff submits that the date was extended as the defendant was unable to
redeem the mortgage from State Bank of India, however, the facts still
remains that the defendant was short of finances. Moreover, one of the
marginal witness Sh. Niranjan Singh has appeared on behalf of defendant
and proved that the defendant required the amount for marriage of his
daughter. As far as question No.(ii) is concerned, it may be noted that the
Court is entitled to consider all facts and circumstances of the case before
coming to conclusion as to whether such agreement was a genuine
agreement to sell or was only for securing loan. It is for this reason under the
unamended Specific Relief Act, 1963, the relief of specific performance was
made discretionary.
3.4 Furthermore, the Appellate Court cannot interfere with the
discretion exercised by the trial Court unless it is found to be without any
sound basis. As already noticed, the trial Court has given two following
reasons for refusing to exercise discretion:-
i. The defendant required the amount for marriage of his
daughter.
ii. There is a usual practice in the village to execute the
agreement to sell in order to secure repayment of the loan
amount.
3.5 Additionally, more than 24 years have elapsed from the date of
execution of the agreement to sell, however, there is one fact, which requires
attention of the Court that the trial Court has not ordered payment of interest,
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however, it is the plaintiff, who has remained in possession of the property
during all this while. He has been enjoying the fruits thereof.
3.6 The learned counsel representing the appellant further submits
that Sh. Niranjan Singh is the relative of defendant and that the plea of
document has not been executed for securing of the repayment cannot be
taken in view of Section 91 of the Indian Evidence Act, 1872. In the facts of
the present case, Section 91 of the Indian Evidence Act, 1872, has no
application.
4. Decision:-
4.1 Keeping in view the aforesaid facts and discussion, this Court
does not find it appropriate to interfere.
4.2 Dismissed accordingly.
4.3 All the pending miscellaneous applications, if any, are also
disposed of.
March 13th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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