Kaushal Takhar vs Harvinder Singh And Ors
2024 Latest Caselaw 6300 P&H

Punjab-Haryana High Court

Kaushal Takhar vs Harvinder Singh And Ors on 20 March, 2024

RSA-417-2024 (O&M) 2024: PHHC:039971 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

(137) RSA-417-2024 (O&M)
Date of Decision : 20.03.2024

Kaushal Takhar ... Appellant
Versus

Harvinder Singh and others ... Respondents

CORAM: HON'BLE MRS. JUSTICE RITU TAGORE

Present: Mr. Gaurav Chopra, Sr. Advocate with
Mr. Divanshu Jain, Advocate and
Mr. Vardaan Seth, Advocate
for the appellant.

Mr. R.S. Bajaj, Advocate
for the respondent No.1.

3K 2 ok 3
RITU TAGORE, J (ORAL)

1. Perusal of downloaded copy of judgment and decree dated

23.10.2019, passed by learned trial Court shows that respondent No.1/plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 14.08.2007 of the property bearing No.243-C measuring 500 sq. yards, situated within the area of Working Women Rural Welfare Society, V. Kansal. Further, the above said judgment reveals that defendant No.2 (appellant herein) contested the suit whereas defendants No.1 and 3 were proceeded exparte. Learned trial Court, from the pleadings of the parties, framed as many as eight issues and allowed the parties to lead evidence, both oral and documentary in support of their contentions.

2. Learned counsel stated that learned trial Court vide its well reasoned judgment and decree dated 23.10.2019, partly allowed the suit of the

MANPREET SINGH regnondent No.1/plaintiff by observing :-

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"18. Furthermore in the present case there are various discrepancies in the version of the plaintiff which create reasonable doubts in the mind of the Court to grant the discretionary relief in favour of the plaintiff. As per own version of the plaintiff he came to know Rajbir Singh during morning walk and there he agreed to purchase the property in dispute vide agreement to sell. Plaintiff entered into an agreement to sell and made payment of earnest money with a stranger he met on morning walk. The scribe and stamp vendor of the agreement have not been examined. There is over writing in the agreement to sell.

Furthermore, no explanation has come-forth as to why the plaintiff did not move for execution of the agreement to sell and kept silent for nearly 4 years after paying the entire consideration to defendant no.1. no effort was made by the plaintiff to approach the society and get the sale certificate issued in his favor. Perusal of the agreement to sell shows that no date has been fixed for execution of the sale deed. The plaintiff also failed to show his readiness and willingness in getting the agreement to sell executed. There is no averment by the plaintiff that he approached defendant no.1 or 3 for execution of agreement to sell. There is also a major discrepancy as to mode of payment by the plaintiff. The plaintiff alleges payment by pay orders however as per the agreement to sell as well as evidence of the plaintiff it is clearly shown that the payment was made by cash and cheques. The payment of Rs.2 lacs was by three cheques and remaining payment of 3.5 lakhs has been made in cash. However the date of issuance of cheque has also not come on record. Further the plaintiff has admitted in his cross-examination that he has signed all the pages of agreement to sell but perusal of agreement shows that he has signed only last page of the agreement to sell and not on all the pages. In such

circumstances, the agreement to sell is shrouded in

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suspicious circumstances which does not warrant this court to grant discretionary relief of specific performance."

XXX XXX

3. Aggrieved by the aforesaid judgment and decree, respondent No.1 (plaintiff before the trial Court) preferred the appeal which was decided vide impugned judgment dated 18.11.2023. Interalia, it is submitted by learned senior counsel for the appellant that impugned judgment and decree is patently illegal and suffers from glaring illegalities and infirmities on point of law and findings have been rendered against the pleadings and evidence on record and a well reasoned judgment and decree of learned trial Court has been reversed, absolutely in an arbitrary manner with non application of judicious mind. Learned counsel urges that learned Appellate Court did not go through several suspicious circumstances in the version of respondent No.1/plaintiff, as pointed out by learned trial Court in its judgment and decree dated 23.10.2019. It is stated that the judgment dated 18.11.2023 is completely indefensible in the eyes of law and a prayer is made to set it aside by restoring the judgment and decree dated 23.10.2019 passed by learned trial

4. Learned Appellate Court in paragraph Nos.15 and 16, while setting aside the judgment of learned trial Court concluded as under :-

"15. I have heard the submissions of counsel for the parties and perused the case file very carefully. The case of the appellant/plaintiff is that he has filed the suit for the specific performance of agreement to sell with the defendant no.1 to sell the property in question. It is admitted fact that the defendant no.1 has received an amount of Rs.5,50,000/- in the recital of the agreement to sell dated 14.08.2007. It is specifically mentioned that the possession of the plot in question was handed over to the

MANPREET SINGH appellant/plaintiff and the appellant/plaintiff also brought

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on file the document Ex.P4 which reflect that the possession of the plot was given to the plaintiff. Moreover, appellant/plaintiff is residing at Delhi and it is general tendency when one person is residing far away from the property in question he rarely came to check his property. In the absence of appellant/plaintiff, the defendant no.1 has sold the plot to defendant no.2. All the facts of the case are clear that appellant/plaintiff entered into an agreement with the plaintiff on 14.08.2007 and defendant no.1 given the possession to the plaintiff and defendant no.1 is wrongly entered into an agreement with the defendant no.2 to sell the property in question. Defendant no.2 when stepped into the witness box, he already admitted that he is not taken the document from defendant no.1 at the time of transfer of property in question which shows that defendant no.1 and 2 conspired with each other in order to deprive the plaintiff from his right of property. The plaintiff has fully proved that the plaintiff is in possession of the plot in question.

16. In view of the aforesaid discussions, the suit of the plaintiff is decreed by accepting the present appeal and the respondents are directed to hand over the possession of the suit property within two months to the appellant/plaintiff on receiving of this order. Decree sheet be prepared. Record of the Trial Court be returned along with copy of

judgment and appeal file be consigned to the record room."

5. On the other hand, learned counsel for the respondent No.1/plaintiff has submitted that he has instructions from respondent No.1, who is present in Court today, to say that the judgment of learned Appellate Court dated 18.11.2023 may be set aside and matter be remanded back to learned Appellate Court for its decision, afresh.

6. Mr. Chopra, learned senior counsel for the appellant urges that matter being old, a direction should be given to decide the appeal in a time

M4 O31 17-38 DOUuNd manner and learned District Judge, S.A.S. Nagar, Mohali, be directed

order/judgment

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to allocate this appeal for hearing to any other Officer except the one who has earlier dealt with the matter. Learned counsel for respondent No.1 has expressed no objection to this submission.

7. I have heard learned counsel for the parties and have gone through the paper book with their valuable assistance.

8. Perusal of judgment of learned Appellate Court reveals that learned Appellate Court reversed the findings of learned trial Court in an arbitrary manner and did not deal with conclusions and inferences drawn by learned trial Court in its judgment and decree dated 23.10.2019. The judgment of learned Appellate Court cannot withstand judicial scrutiny at all and is liable to be set aside and is hereby set aside.

9. In view of the above, the matter is remanded back for its decision, afresh with a direction to learned District Judge, S.A.S. Nagar, Mohali, to allocate this appeal to any other Officer, except the one who had already dealt with the same, with further direction to decide the appeal expeditiously preferably within a period of six months. Parties are directed to

appear before the learned District Judge, S.A.S. Nagar, Mohali on 08.04.2024.

10. Pending miscellaneous applications, if any, stand disposed of accordingly.

(RITU TAGORE) JUDGE March 20, 2024 Manpreet Whether speaking/reasoned Yes/No

Whether reportable : Yes/No