Punjab-Haryana High Court
Kashmir Singh And Ors vs Sohan Singh And Ors on 15 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:037880
RSA-673-1992 2024:PHHC:037880
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
138
RSA-673-1992
Date of decision: 15.03.2024
KASHMIR SINGH AND ANR. ..Appellants
Versus
SOHAN SINGH AND ANR. ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Vikas Singh, Advocate
for the appellants.
Mr. Gitesh Sharma, Advocate
Mr. Harsh Jain, Advocate
and Mr. Ram Krishan Rana, Advocate
for respondent No.1 and 2.
ANIL KSHETARPAL, J(Oral)
1. This is defendants' regular second appeal to assail the
correctness of the judgment and decree passed by the First Appellate Court,
which in turn has modified the judgment and decree passed by the trial
Court.
2. In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be noticed.
3. The plaintiff Sh. Sohan Singh (respondent herein) filed a suit
for possession by way of specific performance of the agreement to sell. He
claimed that Sh. Darshan Singh (respondent No.1) executed an agreement to
sell in his favour on 07.11.1984, with respect to the land measuring 11 kanal
and 2 marlas on receipt of Rs.6,000/- as earnest money while agreeing to
execute sale deed at the rate of Rs.10,000/- per acre. As per the agreement to
sell, the possession of the land agreed to be sold was delivered to him and
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the sale deed was to be executed on 31.01.1985, which was subsequently
extended upto 22.05.1985, by way of separate endorsement on the backside
of the agreement. The suit was filed on 16.05.1985. The plaintiff also
claimed that the sale deed executed in favour of the defendants No.2 and 3
(appellants herein) by Sh. Darshan Singh on 22.03.1985, is not binding on
his rights. Defendant No.1 while entering appearance in the suit, filed a
written statement denying execution of any agreement to sell in favour of the
plaintiff. Defendant No.2 and 3 also denied execution of the agreement to
sell dated 07.11.1984 and claimed that the aforesaid agreement to sell is a
fabricated document. It was also pleaded that they had no knowledge of the
agreement to sell in favour of the plaintiff and therefore, they are bonafide
purchasers without notice and with consideration.
4. The trial Court upon appreciation of evidence came to
conclusion that though, the agreement to sell dated 07.11.1984, has been
proved, however, the plaintiff is not entitled to specific performance of the
agreement to sell. The Court granted alternative relief of refund of
Rs.12,000/-.
5. The First Appellate Court in plaintiff's appeal has modified the
decree and granted relief of possession by way of specific performance of
the agreement to sell. The sale deed dated 22.03.1985, has been set aside.
6. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook along
with requisitioned record.
7. The learned counsel representing the appellants while drawing
the attention of the Court to the agreement to sell dated 07.11.1984 (Ex.P-1)
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submits that there is no evidence to prove that the aforesaid agreement to sell
was in fact executed on 07.11.1984. He submits that a plain paper has been
converted into a stamp paper by affixing revenue stamps. He further submits
that the agreement to sell is full of cuttings and interpolations. While
referring to the agreement to sell, he submits that on 07.11.1984, in the last
sentence, 'delivery of possession' has been inserted. He submits that once
again, while extending the period for execution of sale deed vide
endorsement dated 29.01.1985, again, the same sentence has been added.
8. He further submits that the alleged agreement to sell was
allegedly scribed from a scribe whose licence had lapsed. Hence, the
execution of the agreement to sell is doubtful.
9. On the other hand, the learned counsel representing both the
respondent submits that the agreement to sell has never been challenged and
the First Appellate Court has recorded valid reasons to modify the judgment.
He submits that the plaintiff was recorded in possession from the year 1981.
10. This Court has considered the submissions of the learned
counsel representing the parties.
11. First of all, it is evident that the First Appellate Court has not
critically analyzed the judgment passed by the trial Court. The trial Court by
an elaborate judgment has recorded multiple reasons to deny the relief of
specific performance to the plaintiff. However, the First Appellate Court has
failed to examine the same before differing with the same by process of
reasoning. The First Appellate Court before reversing the judgment of the
trial Court is expected to not only analyse the reasons given by the trial
Court but also give its own reasons for refusing to accept the reasons
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recorded by the Courts below. In absence thereof, it is not appropriate for the
First Appellate Court to reverse the judgment of the trial Court.
12. In the considered opinion of this Court, the plaintiff is not
entitled to relief of specific performance of the agreement to sell on the
following grounds:-
i. The agreement to sell has been scribed on a plain paper
with adhesive revenue stamps which has not been sold by
any stamp vendor. There is no evidence to prove that the
aforesaid agreement to sell was entered into on
07.11.1984 or it was ante-dated. Moreover, PW-1 Sh.
Gurdial Singh is the scribe of the agreement to sell. He
admits that he did not get his licence renewed after the
year 1978. He was also unable to tell number of his
licence for deed writing
ii. No explanation has been furnished as to why the
agreement to sell was not scribed on a stamp paper.
iii. The agreement is full of cuttings and interpolations.
The amount of earnest money of Rs.6,000/- has been
recorded after scoring of the amount of Rs.5,000/-.
iv. Still further, the total amount of sale consideration has
also been changed. Significantly, in the last sentence, it
has been added that the possession of the land agreed to
be sold to Sh. Sohan Singh has been delivered. That is not
in consonance with the stand taken by the plaintiff that he
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has already in the possession. While filing the suit, the
plaintiff has also sought relief of possession.
13. It has come on record that the evidence of the plaintiff that he
informed the defendant No.2 and 3 about the prior agreement to sell in his
favour is not reliable. At one stage, he states that he informed defendant
No.2 and 3, however, subsequently, he states that he informed the father of
defendant No.2 and 3.
14. Still further, the agreement to sell is full of contradictions. On
07.11.1984, there is a recital for delivery of possession. Again, the same
statement is repeated in the endorsement dated 29.01.1985. It is also evident
that the sentence with regard to the delivery of possession in the writing
dated 07.11.1984 as well as 29.01.1985, has been added later on. In the
endorsement dated 29.01.1985, the sentence with regard to the delivery of
possession has been recorded in between the lines, with comparatively dark
ink pen when compared with remaining recitals of the agreement.
15. It may be noted here that defendant No.1 after having filed the
written statement, did not appear in the Court to give his testimony. That
itself proves that defendant No.1 did not seriously contest the suit.
Significantly, now defendant No.1 and plaintiff are represented by same
counsel before this Court.
16. The First Appellate Court has erred while holding that plaintiff
was recorded in possession of the property and defendant No.2 and 3 did not
make due diligence before purchasing the land. It may be noted here that
there is only one entry of plaintiff being in possession in 'khasra girdawari'
in the year 1981, however, the jamabandi for the year 1979-80, it is
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defendant No.1, who is recorded in possession. The First Appellate Court
has also erred while observing that in 'khasra girdawari' (Ex.DZ), the
possession of the plaintiff is recorded. It has been brought to the notice of
the Court that the aforesaid order was passed after the filing of the suit.
17. Still further, the plaintiff has tried to play hide and seek with the
Court. On the one hand, he filed the present suit on 16.05.1985 by
impleading defendant No.2 and 3 as party defendants, however, he filed the
application for correction of 'khasra girdawari' on 22.05.1985 but he did
not implead defendant No.2 and 3 as party although, he knew that the sale
deed in favour of defendant No.2 and 3 has already been executed on
22.07.1985. Since, defendant No.1 had already sold the property therefore,
he did not contest the application for correction of 'khasra girdawari'.
18. The First Appellate Court has also erred in relying upon the
jamabandi for the year 1985-86, which came into being after 22.03.1985.
There was no occasion for defendant No.2 and 3 to look at the revenue
record, which was not prepared on the day, the sale deed was executed in
their favour.
19. Keeping in view the aforesaid reasons, the appeal is allowed.
20. The judgment passed by the First Appellate Court is set aside
and that of the trial Court is restored.
21. All the pending miscellaneous applications, if any, are also
disposed of.
March 15th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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