Punjab-Haryana High Court
Vikas Bansal vs Prem Masih And Others on 29 October, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:141715
IN THE HIGH COU RT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA-189-2020 (O&M)
Reserved on : 16.10.2024
Pronounced on : 29.10.2024
Vikas Bansal ....Appellant
VERSUS
Prem Masih & Ors. ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. G.C. Shahpuri, Advocate for the appellant.
ALKA SARIN, J.
1. The present regular second appeal has been preferred by
plaintiff-appellant challenging the judgments and decrees dated 28.04.2015
and 08.07.2019 passed by the Trial Court and the First Appellate Court
respectively dismissing his suit.
2. Brief facts relevant to the present lis are that the plaintiff-
appellant filed a suit for possession by way of specific performance of
agreement to sell dated 16.04.2009. It was averred that vide an agreement to
sell dated 16.04.2009 the defendant-respondent No.1 had agreed to sell the
suit property and Rs.70,000/- was given as earnest money and a receipt to
this effect was also reduced into writing on the foot of the agreement to sell.
It was mentioned in the agreement to sell that there was a court case going
on regarding the suit property and that as and when the same was decided
then the defendant-respondent No.1 would inform the plaintiff-appellant and
the plaintiff-appellant would be bound to execute and get registered the sale
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deed within one month from the date of decision of the case. It was further
averred that the plaintiff-appellant had always been ready and willing to
perform his part of the contract and had approached the defendant-
respondent No.1 time and again to know about the progress of the case and
every time he was assured that as and when the case is decided he would be
informed. However, instead vide sale deed dated 13.04.2011 the defendant-
respondent No.1 sold the suit property to defendant-respondent Nos.2 and 3.
Hence, the suit for possession and declaration. The defendant-respondent
No.1 was proceeded against ex-parte. The defendant-respondent Nos.2 and 3
contested the suit taking preliminary objections regarding maintainability,
cause of action, estoppel and concealment of material facts. On merits it was
pleaded that no agreement to sell the suit property was ever entered into by
the defendant-respondent No.1 with the plaintiff-appellant and that the
agreement to sell was a forged and fabricated document. Plea of bonafide
purchaser without notice was also raised and that the suit property had been
purchased after making necessary enquiries. No replication was filed.
3. On the basis of the pleadings of the parties the following issues
were framed :
1. Whether the plaintiff is entitled to possession of the
suit property by way of specific performance of the
agreement to sell dated 16.04.2009 ? OPP
2. Whether the sale deed dated 13.04.2011 allegedly
executed by defendant No.1 in favour of defendants
No.2 and 3 is illegal, null and void ? OPP
3. Whether the present suit is not maintainable ? OPD
4. Whether the plaintiff has no cause of action to file
the present suit ? OPD
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5. Whether the plaintiff is estopped from filing the
present suit by his own act and conduct ? OPD
6. Whether defendants No.2 and 3 are bonafide
purchasers and their sale is liable to be protected under
Section 41 of the Transfer of Property Act ? OPD
7. Relief.
4. The Trial Court dismissed the suit vide judgment and decree
dated 28.04.2015 holding that the execution of the agreement to sell was not
proved and also that the suit was time barred. Aggrieved by the judgment
and decree passed by the Trial Court, an appeal was preferred by the
plaintiff-appellant which appeal was dismissed by the First Appellate Court
vide judgment and decree dated 08.07.2019. Hence, the present regular
second appeal by plaintiff-appellant.
5. The learned counsel for the plaintiff-appellant would contend
that both the Courts have erred in dismissing his suit. It is submitted that the
execution of the agreement to sell was fully proved on the record and that
the plaintiff-appellant was always ready and willing to perform his part of
the contract. It is urged that the suit was within limitation.
6. Heard counsel for the plaintiff-appellant and perused the record.
7. In the present case though it has vehemently been argued by the
learned counsel for the plaintiff-appellant that the execution of the
agreement to sell stands proved, the facts coming on the record do not
inspire confidence. A highly improbable story was put up by the plaintiff-
appellant that on 16.04.2009 he met the defendant-respondent No.1 in the
court premises and the parties executed an agreement to sell. The plaintiff-
appellant did not know the defendant-respondent No.1 from before and on
the intervention of a middleman the deal was struck. Earnest money was
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paid and agreement to sell was executed. It does not stand to reason that two
unknown persons meet by coincidence in the court premises and decide to
enter into a transaction of immovable property. Further, the plaintiff-
appellant has not been able to prove payment of the earnest money of
Rs.70,000/- to the defendant-respondent No.1. The plaintiff-appellant has
failed to prove that he had Rs.70,000/- with him on 16.04.2009 which he
paid to the defendant-respondent No.1 as earnest money. The Trial Court
also found that "There is no name of any scribe on the agreement to sell
Ex.P1. There is no mention of parentage and address of attesting witnesses.
There are two signatures of defendant no.1 Prem Masih on back side of
stamp. One in small font and another in large font. Both of them did not
appear to be signed by same person. The signatures are overlapping. The
possibility that the signatures of large font has been put after the previous
signatures cannot be ruled out. In such eventuality, the examination of stamp
vendor was helpful to decide the controversy that which signatures are
actually appearing in his register. But the stamp vendor has not been called
by the plaintiff. Otherwise, also, it is alleged that Narinder Kumar whose
parentage and address is not mentioned on the agreement to sell Ex.P1 is
the same witness who is mentioned in sale deed dated 13.4.11 Ex.P3 which
is under challenge. Although, there is no conclusive evidence that both the
persons are same but the plaintiff had the opportunity to get examine said
Narinder Kumar to prove that he is also attesting witness on Ex.P3 meaning
thereby he had the knowledge of execution of agreement to sell Ex.P1. But
the plaintiff has been failed to get examine said Narinder Kumar. It is
pertinent to mention here that it is not necessary for the plaintiff to get
examine all the attesting witness of agreement of sale but when the
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defendant are taking plea that they are bonafide purchaser of the suit
property, and the plaintiff is alleging that one of the attesting witness on his
agreement to sell is also the attesting witness on the alleged sale deed in
favour of defendants then the said witness becomes very material witness
and non examination of that witness amounts to withholding best available
evidence with him and this fact goes against the plaintiff". No meaningful
arguments have been addressed to dislodge the said findings. Further, the
learned counsel for the plaintiff-appellant has been unable to convince this
Court that the suit was within limitation. The agreement to sell is dated
16.04.2009 while the suit was filed on 11.12.2012. No details of the
litigation regarding the suit property were mentioned in the plaint the
decision of which litigation was a condition precedent for executing the sale
deed. Learned counsel for the plaintiff-appellant has not been able to point
out to any cogent and reliable evidence on the record to make out a case as
set up in the plaint. No other point was argued.
8. In view of the above, I do not find any merit in the present
appeal. No question of law, much less any substantial question of law, arises
in the present case which requires determination by this Court. The appeal,
being devoid of any merits, is accordingly dismissed. Pending applications,
if any, also stand disposed off.
( ALKA SARIN )
29.10.2024 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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