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2008 DIGILAW 1177 (PNJ)

Jeeto v. Joginder Singh

2008-07-04

JASWANT SINGH

body2008
Judgment Jaswant Singh, J. 1. Petitioner-defendant No. 1 - Jeeto has filed the present petition under Article 227 of the Constitution of India for setting aside the impugned order dated 31.8.2005 (Annexure P-1) and judgment dated 21.1.2008 (Annexure P-2) passed by the learned Additional Civil Judge (Senior Division), Ajnala and learned Additional District Judge, Amritsar respectively, vide which application for grant of interim injunction under Order 39 Rules 1 and 2 CPC filed by Joginder Singh-plaintiff-respondent No. 1 was allowed by the trial Court and affirmed by the Appellate Court. 2. Facts giving rise to the matter in controversy are that Joginder Singh plaintiff-respondent No. 1 filed a civil suit for specific performance of agreement to sell dated 27.7.2001 regarding land measuring 25 kanals 4 marlas in revenue record described in the head note, as per jamabandi for the year 2001-02 situated in Village Vanjanwala, District Amritsar and in the alternative suit for recovery of Rs. 2 lacs i.e. Rs. 1 lac as earnest money and Rs. 1 lac as damages, as stipulated in the agreement to sell with consequential relief of injunction restraining defendant No. 1-petitioner-Jeeto from alienating the suit land by way of sale/mortgage etc., to defendants-proforma respondents 2 and 3 i.e. Sukhraj Kaur wife of Baz Singh and Baz Singh respectively or any other person except the plaintiff-respondent No. 1-Joginder Singh and further restraining petitioner-defendant No. 1 Jeeto from dispossessing or interfering into the peaceful possession of the plaintiff-respondent No. 1-Joginder Singh over the suit land till the final decision of the civil suit. 3. It is alleged by the plaintiff-Joginder Singh respondent No. 1 that the suit land is owned by defendant No. 1-petitioner-Jeeto and she entered into an agreement (2nd agreement) to sell with him on 27.7.2001 @ Rs. 1.50 lacs. It is further alleged that she received an amount of Rs. 1 lac as earnest money and it was stipulated in the agreement to sell that the sale deed shall be executed on or before 29.6.2002 after receiving balance amount of consideration. It is also alleged that the possession of the suit land was already with the plaintiff-Joginder Singh as he is the nephew of defendant No. 1 petitioner-Jeeto. 1 lac as earnest money and it was stipulated in the agreement to sell that the sale deed shall be executed on or before 29.6.2002 after receiving balance amount of consideration. It is also alleged that the possession of the suit land was already with the plaintiff-Joginder Singh as he is the nephew of defendant No. 1 petitioner-Jeeto. Defendant No. 1 petitioner-Jeeto was owner of the total land measuring 63 kanals 19 marlas and she on 19.9.2000 executed an agreement to sell (1st agreement) with the plaintiff-respondent No. 1 Joginder Singh, vide which she agreed to alienate her entire land in favour of Joginder Singh. It was agreed in the agreement that defendant No. 1-petitioner-Jeeto would execute three sale deeds by 15 Jaith 2001, by 15 Jaith 2002 and by 15 Jaith 2003. As per terms and conditions of agreement defendant No. 1-petitioner-Jeeto had sold the land measuring 16 kanals 15 marlas to the son of plaintiff-respondent No. 1-Joginder Singh, namely Manjit Singh vide sale deed dated 27.7.2001. On the same day, she also sold land measuring 22 kanals 15 marlas to the other son of plaintiff-respondent No. 1-Joginder Singh, namely Gurmeet Singh. It is further alleged that on that very day i.e. 27.7.2001, defendant No. 1 petitioner-Jeeto executed an agreement to sell her remaining land in favour of plaintiff-respondent No. 1-Joginder Singh @ Rs. 1.50 lacs per acre and received Rs. 1 lac as earnest money and further plaintiff was and is ready and willing to perform his part of the contract. It is further alleged that plaintiff-respondent No. 1-Joginder Singh has come to know from some reliable sources that defendant No. 1-petitioner-Jeeto is going to execute sale deed in favour of defendant No. 2-respondent No. 2 Sukhraj Kaur and defendant No. 3-respondent No. 3 Baz Singh at higher rate with an intention to breach the contract and its terms and conditions. It is also alleged that defendants are threatening to dispossess the plaintiff-respondent No. 1-Joginder Singh from the suit land. 4. Defendant No. 1-petitioner Jeeto filed written statement and took the plea that the suit is barred in view of the terms and conditions of the agreement to sell dated 27.7.2001, as the last date of execution of the sale deed was 15 Haari 2002 i.e. 6.7.2002. 4. Defendant No. 1-petitioner Jeeto filed written statement and took the plea that the suit is barred in view of the terms and conditions of the agreement to sell dated 27.7.2001, as the last date of execution of the sale deed was 15 Haari 2002 i.e. 6.7.2002. It was further alleged that plaintiff-respondent No. 1-Joginder Singh did not purchase any land on the basis of alleged agreement dated 19.9.2000. This agreement was neither cancelled nor adjusted. The alleged agreement to sell dated 27.7.2001 is a forged and fabricated document, prepared with the help of Deed Writer and witnesses. It is also alleged that no entry was made in the register of Deed Writer. Execution of the two sale deeds in favour of sons of plaintiff-respondent No. 1-Joginder Singh, however, are admitted. It is further submitted that price of one acre of land in Village Vanjanwala is not less than Rs. 3.50 lacs as fixed by the Collectors rate. Harpreet Singh son of Baz Singh (defendant No. 3) is ready to pay Rs. 3.50 lacs per acre to defendant No. 1-petitioner-Jeeto and agreement dated 14.6.2005 was also executed as earnest money and she is going to alienate the land in dispute in favour of Harpreet Singh and Dilbagh Singh. It is further stated that the alleged agreements dated 19.9.2000 and 27.7.2001 are vague, for less consideration and not clear. It is further alleged that agreement to sell does not create any right, title or interest in the property and no injunction can be granted. 5. Defendant No. 2-Sukhraj Kaur and defendant No. 3-Baz Singh have also taken similar pleas. They have also taken the plea that defendant No. 1-petitioner-Jeeto has entered into an agreement with their son Harpreet Singh on 14.6.2005 and received Rs. 2 lacs as earnest money and Harpreet Singh has not been made a party in the suit and as such suit against defendant Nos. 2 and 3 is liable to be dismissed. 6. After hearing both sides, learned trial court came to the conclusion that the possession of the suit land is with the plaintiff-respondent No. 1-Joginder Singh since long, as is clear from the copy of the jamabandis for the years 1991-92, 1996-97, 2001-02. Last khasra girdwari for Sowni 2004 and Haari 2005 also show that it is plaintiff-respondent No. 1 Joginder Singh is in possession of the suit land. Last khasra girdwari for Sowni 2004 and Haari 2005 also show that it is plaintiff-respondent No. 1 Joginder Singh is in possession of the suit land. It is further evident that defendant No. 1-petitioner-Jeeto executed an agreement to sell firstly on 19.9.2000 and then on 27.7.2001 after execution of the two sale deeds dated 27.7.2001. Date of sale deed for remaining land was fixed as Jaith 15.2.2002 (virtually amounting to preponing the date of 3rd sale deed). Defendant No. 1-petitioner-Jeeto received Rs. 1 lac as earned money in terms of agreement to sell dated 27.7.2001. Performance of agreement to sell remaining land in favour of plaintiff-respondent No. 1-Joginder Singh was to be completed by 15 Haari 2002 i.e. 6.7.2002. Present suit was filed on 24.6.2005 i.e. within three years. Learned trial Court found that prima facie case is made out in favour of plaintiff-respondent No. 1-Joginder Singh and balance of convenience lies in his favour as he is in possession of the suit land since 1991-92. It is not in dispute that the two sale deeds were executed in favour of sons of the plaintiff-respondent No. 1-Joginder Singh on 27.7.2001. 7. Allegations of defendant No. 1-petitioner-Jeeto, whether the agreement to sell dated 27.7.2001 is a forged document will be decided after evidence is led by both the parties. Moreover, inadequacy of consideration is no ground to ignore the agreement to sell. To avoid the multiplicity of litigation, learned trial court restrained defendant No. 1-petitioner-Jeeto from alienating the suit property in favour of any person except plaintiff-respondent No. 1-Joginder Singh, in any way, during the pendency of the civil suit. Defendants were also restrained from interfering into peaceful possession of the plaintiff-respondent No. 1-Joginder Singh till final decision of the suit vide order dated 31.8.2005. 8. Defendant No. 1-petitioner-Jeeto filed an appeal under order 43 Rule 1 CPC but the same was also dismissed by the learned Additional District Judge, Amritsar vide judgment dated 21.1.2008, due to the reasons that liberty of lis pendens is no bar while granting relief in favour of plaintiff respondent No. 1-Joginder Singh and the court is to preserve the suit property so that it may not lead to further multiplicity of litigation. 9. Aggrieved against the order/judgment dated 31.8.2005 and 21.1.2008 respectively, defendant No. 1 petitioner-Jeeto has filed the present petition under Article 227 of the Constitution of India. 9. Aggrieved against the order/judgment dated 31.8.2005 and 21.1.2008 respectively, defendant No. 1 petitioner-Jeeto has filed the present petition under Article 227 of the Constitution of India. The grounds of attack are as under: (i) Alleged agreement to sell dated 27.7.2001 is a fabricated document. (ii) No entry was made in the register of Deed Writer. (iii) Price per acre of land is fixed as Rs. 3.50 lacs by the District Collector and therefore, Rs. 1.50 lacs per acre is inadequate consideration. (iv) Harpreet Singh is ready to pay Rs. 3.50 lacs per acre. (v) Agreement dated 14.6.2005 was executed between defendant No. 1-petitioner-Jeeto and Harpreet Singh and an amount of Rs. 2 lacs as earnest money has already been received by him. (vi) The alleged agreements dated 19.9.2000 and 27.7.2001 with plaintiff-respondent No. 1-Joginder Singh are vague and have no consideration and not being clear. (vii) Agreement to sell does not create any right, title or interest in the perspective vendee and no restraint order can be passed. (viii) Learned trial court has mis-read the oral as well as documentary evidence. (ix) Suit is barred by limitation. 10. I have heard learned Counsel for the parties and perused the paper book. 11. It is an admitted case of the defendant No. 1-petitioner-Jeeto in para 5 of the present petition that in the alleged agreement to sell dated 27.7.2001, last date for execution was before 15 Haari 2002 i.e. 6.7.2002. As per finding recorded by the trial court in para 8 present civil suit was filed on 24.6.2001 and as such civil suit is within limitation. 12. Whether agreement to sell dated 27.7.2001 is forged and fabricated is to be decided on the basis of evidence to be led by both the parties and at this stage no finding can be recorded. 13. It is also an admitted case of the defendant No. 1-petitioner-Jeeto in para 8 of the petition that two sons of plaintiff-respondent No. 1-Joginder Singh purchased land from her on 27.7.2001. There is a dispute raised in the present petition that as per revenue record plaintiff respondent No. 1-Joginder Singh is in possession of the suit land since 1991-92 as recorded by the learned trial court in para 7 of order dated 31.8.2005. No consideration or lesser consideration is no ground to reject the suit for specific performance of agreement. There is a dispute raised in the present petition that as per revenue record plaintiff respondent No. 1-Joginder Singh is in possession of the suit land since 1991-92 as recorded by the learned trial court in para 7 of order dated 31.8.2005. No consideration or lesser consideration is no ground to reject the suit for specific performance of agreement. However, the price of the land @ Rs. 3.50 lacs per acre fixed by the District Collector is of 2005 i.e. after four years of agreement to sell dated 27.7.2001. In the intervening period of four years prices have escalated and thus no ground to reject the case of the plaintiff-respondent No. 1-Joginder Singh is made out. There is no misreading of evidence by the learned trial court. The plea of limitation is to be decided by the learned trial court while deciding the main case. Dispute regarding entry of alleged agreement to sell in the register of Deed Writer is a matter of evidence to be led by both the parties. The admitted facts of execution of two sale deeds in favour of sons of plaintiff respondent No. 1-Joginder Singh by defendant No. 1-petitioner-Jeeto prima facie shows that she was in need of money for whatsoever reason. Further, prima facie, it is clear from the record that Joginder Singh is in possession of the suit land. Law is well settled by the Honble Supreme Court in the case reported as Maharwal Khawaji Trust (Regd.) Faridkot v. Baldev Dass (2005-1)139 P.L.R. 399 (S.C.) that court should not permit the nature of the property to be changed including alienation which may lead to multiplicity of proceedings. The relevant extracts are reproduced hereunder: Unless and until a case of irreparable loss or damage is made out by a party to the suit, Court should not permit the nature of property being changed which also include alienation and transfer of property which may lead to the loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. 14. Moreover, both the Courts have exercised their jurisdiction in true perspective and there is no occasion to invoke the jurisdiction under Article 227 of the Constitution of India to interfere with the discretion exercised by the courts below. 14. Moreover, both the Courts have exercised their jurisdiction in true perspective and there is no occasion to invoke the jurisdiction under Article 227 of the Constitution of India to interfere with the discretion exercised by the courts below. In view of the above, finding no merit in this revision petition the same is hereby dismissed with no order as to costs.