Punjab-Haryana High Court
Amarjit Singh vs Sarwan Singh Bhogal on 17 January, 2025
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2025:PHHC:006480
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RSA-2478-1991(O&M)
102 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2478-1991(O&M)
Date of decision: 17.01.2025
Amarjit Singh
..Appellant
Versus
Sarwan Singh Bhogal (deceased) through LRs and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr.Ayush Gupta, Advocate for the appellant
Mr. G.S.Punia, Senior Advocate
with Ms. Harveen Kaur, Advocate for non-applicants
ANIL KSHETARPAL, J. (Oral)
CM-10060-C-2012
1. Though this Regular Second Appeal was withdrawn on
09.09.2011, however, an application was filed by the appellant claiming that
the defendants have got the appeal withdrawn. Originally, this appeal was
filed through Sh.M.L.Saggar and Sh.O.P.Sharma, Advocates. Application on
behalf of appellant for withdrawal of the appeal was filed by Sh.Vaibhav
Narang, Advocate. The appellant, while filing the application, has stated
that he never engaged Sh.Vaibhav Narang, Advocate, nor signed the
application or the affidavit. The assertions made by the appellant are
supported by an affidavit. Notice of the application was issued to
Sh.Vaibhav Narang, Advocate, however, he never appeared.
2. Keeping in view the aforesaid facts, the appeal is restored to its
original number, while recalling the order dated 09.09.2011.
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3. At this stage, learned counsel representing the respondent
submits that the applicant is Amarjit Singh son of Sh.Uday Singh whereas
Amarjit Singh son of Sh.Sucha Singh is the appellant. Hence, the applicant
is different from the appellant.
4. Learned counsel representing the appellant has explained that
Sh.Uday Singh and Sh.Sucha Singh were brothers. Amarjit Singh was
biological son of Sh.Uday Singh, however, he was adopted by his uncle
Sh.Sucha Singh. Hence, there is discrepancy in the name of the father of
Amarjit Singh.
5. Be that as it may be. It would not be appropriate to finally
decide this issue while deciding an application for revival. Hence, this issue
is kept open to be decided by the competent court as and when some suit is
filed.
CM-11069-C-2016
6. This is an application for bringing on record the legal
representatives (as mentioned in para 2 of the application) of deceased
appellant- Amarjit Singh.
7. Learned senior counsel representing the respondent seriously
contests the same, however, for the purpose of adjudicating this appeal, they
are brought on record, however, such question shall be open to the defendant
to question the correctness of the legal representatives before the competent
court.
8. CM stands disposed of.
Main appeal
I. Brief facts:-
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9. This is the plaintiff's Regular Second Appeal to challenge the
First Appellate Court's judgment, which in turn has reversed the judgment of
the trial court.
10. In order to comprehend the issues involved in the present case,
some relevant facts, in brief, are required to be noticed.
11. On 25.05.1982, the plaintiff filed a suit for possession by way
of specific performance of the agreement to sell. He claimed that defendant
no.1 Bakshish Singh agreed to sell 500 sq. yards plot for a total sale
consideration of Rs.8,000/-. Rs.3300/- was paid on 12.06.1978 i.e the date
on which the agreement to sell was executed. Subsequently, the plaintiff
paid another sum of Rs.2500/- to defendant no.1 on 25.05.1979. The
possession of the property was delivered to the plaintiff at the time of
execution of the agreement to sell and balance sale consideration was to be
paid after the competent authority granted permission for the sale of
property. It is claimed that defendant no.1 (after a month from the date of
the agreement to sell) applied for permission to sell the property from the
competent authority. The plaintiff also sent a notice to defendant no.1 on
10.06.1981 to come forward and execute the sale deed. However, he did
not. It was also alleged that he came to know on 18.05.1982 that defendant
no.1 has executed a sale deed of 1208 sq. yards plot including the suit
property in favour of defendant no.2 who was aware of the prior agreement
to sell in favour of the plaintiff. The plaintiff also asserted that he has spent
Rs.5,000/- for raising construction thereon.
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13. Defendant no.1 denied the execution of the agreement to sell. It
was claimed that he has already sold the property in favour of defendant
no.2 by means of a registered sale deed for Rs.32,000/-.
14. Defendant no.2 asserted that he is a bona fide purchaser for
value and consideration and without notice vide sale deed dated 30.01.1981
which was registered on 25.05.1981.
15. The trial court held that execution of the agreement to sell is
proved and the possession was delivered to be plaintiff at the time of
execution of the agreement to sell. The Court also held that defendant no.2
failed to prove that he was a bona fide purchaser as he had knowledge of the
agreement to sell before the sale deed was executed in his favour by
defendant no.1
16. The First Appellate Court has upheld the finding of the fact
arrived at by the trial court to the effect that execution of the agreement to
sell in favour of the plaintiff is proved. However, the court has reversed the
judgment and decree on the ground that plaintiff has stated that he came to
know on 18.05.1982 about the sale deed in favour of defendant no.2 which
was executed on 30.01.1981. The court has held that since the sale deed was
registered on 25.05.1981 therefore, it will relate back to 30.01.1981, the date
of its execution and hence, the plaintiff had knowledge on 30.01.1981. It
has further been held that recital with regard to delivery of possession has
been inserted in the agreement to sell but still the plaintiff has tried to assert
and establish his possession only in May, 1982 after learning about the
subsequent sale.
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17. Thus, the First Appellate Court has refused to grant decree for
specific performance of the agreement to sell, however, granted decree for
refund of Rs.5800/- earnest money plus Rs.4,000/- towards the cost of
construction which was demolished by defendant no.2.
II. Arguments put forth by the learned counsel representing the
parties:-
18. Heard the learned counsel representing the parties at length and
with their able assistance perused the paperbook.
19. Learned counsel representing the appellant contends that the
First Appellate Court has recorded a contradictory finding with respect to the
plaintiff's possession of the property. He submits that on one hand the court
has held that the plaintiff was never in possession of the suit property
whereas on the other hand, the court has awarded damages in favour of the
plaintiff to the extent of Rs.4000/- towards cost of construction as defendant
no.2 demolished the same. He submits that once the plaintiff was in
possession and had already constructed a room then defendant no.2 had the
knowledge of the agreement to sell because he never inquired from the
plaintiff.
20. Per contra, learned senior counsel representing the respondent
(defendant no.2) submits that plaintiff dug the foundation for constructing
building in the plot on 09.05.1982. Hence, the plaintiff for the first time
tried to take possession in 1982 after coming to know of the sale deed in
favour of defendant no.2. He further submits that the plaintiff is not proved
to be ready and willing as there was inaction on the part of the plaintiff from
25.05.1979 till 25.05.1982 i.e. the date when the suit was filed. He further
submits that the delivery of possession is not supported by oral evidence.
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III. Discussion and Analysis:-
21. This Court has considered, analysed and evaluated the
arguments made by the learned counsel representing the parties.
22. A perusal of trial court's record proves that the agreement to sell
Ex.P1 dated 12.06.1978 has been scribed on a non-judicial stamp paper of
Rs.2.25. It runs into two pages. It is thumb marked by Bakshish Singh. On
page 2 there is a specific recital with regard to the delivery of possession to
the plaintiff. Moreover, on the reverse side of the first page there is an
endorsement of payment of Rs.2500/- which is again thumb marked by
defendant no.1. As per the agreement to sell, the sale deed was to be
executed after defendant no.1 obtains the permission of the competent
authority. Defendant no.1 applied for said permission but further
development/information is not available on file. Thus, there is no errors in
the findings of fact with regard to the execution of the agreement to sell.
23. With regard to the delivery of possession to the plaintiff at the
time of execution of the agreement to sell, there is a specific recital in the
agreement. It is signed by the plaintiff and thumb marked by the defendant
no.1. Delivery of possession is with respect to the plot. It would be deemed
to have continued with the plaintiff, particularly when on 09.05.1982 he dug
the foundation for constructing the room, which was duly constructed. This
fact is proved from deposition of plaintiff, PW2 and PW3. Moreover, when
the suit was filed on 25.05.1982 the trial court appointed a Local
Commissioner, who visited the property after notice to the counsels and
reported that there were bricks, wooden battens, wooden joints lying in the
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plot. There were household articles including two chairs, utensils, basket
and cot when he inquired from the persons present at the spot, he was
informed that these articles belong to the plaintiff.
24. Furthermore, the First Appellate Court has erred in recording
finding with regard to delivery of possession because from the
overwhelming evidence it is proved that the plaintiff was delivered
possession and he was able to make some construction (Kotha). Similarly,
the First Appellate Court has recorded a contradictory finding as on the one
hand the court has observed possession was not delivered whereas on the
other hand damages have been awarded in his favour to the extent of
Rs.4000/-.
25. With respect to defendant no.2 having knowledge of the
agreement to sell prior to the sale deed, the First Appellate Court has
factually erred. The sale deed by defendant no.1 in favour of defendant no.2
was executed on 30.01.1981, whereas it was registered only on 25.05.1981,
after a period of approximately 4 months. While appearing in evidence, the
plaintiff has stated that he came to know of the sale deed on 18.05.1982 and
not 1981. The court has wrongly observed that the plaintiff stated he came
to know of the sale deed on 30.01.1981.
26. Defendant no.2 claims to be bona fide purchaser for value and
without notice. However, once the plaintiff was in possession, he was
required to inquire about the plaintiff's possession. In any case, the
genuineness of the sale deed in his favour also becomes doubtful,
particularly when there was a gap of 4 months between registration of the
sale deed and its execution.
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27. The last argument of the learned counsel representing the
defendant no.2 is with regard to delay in filing the suit. The First Appellate
Court has not denied relief to the plaintiff on the question of delay. However,
since this argument has been pressed, hence, this Court proceeds to examine
the same. As is evident there was no target date fixed for the execution and
registration of the sale deed. The period of limitation would begin to run
only when permission to sell was granted by the competent authority.
Defendant no.1 has not claimed that permission was granted but plaintiff did
not come forward to execute the sale deed. Moreover, the plaintiff was in
possession of the property. He filed the suit immediately when his
possession was sought to be disturbed. This fact is corroborated by report of
the Local Commissioner who has also been examined as a witness.
IV Decision:-
28. Keeping in view the aforesaid facts, the suit filed by the
plaintiff shall stand decreed subject to payment of balance sale consideration
of Rs.2200/- to defendant no.2 alongwith interest at the rate of 8% per
annum within a period of two months from the date of filing of the suit i.e
25.05.1982 till the date of deposit. Consequently, the judgment of the First
Appellate Court is set aside and the judgment passed by the trial court shall
stand modified accordingly.
29. Regular Second Appeal stands disposed of.
30. All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL)
17.01.2025 JUDGE
rekha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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