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2009 DIGILAW 2241 (PNJ)

Ranbir Singh v. Satbir Singh

2009-12-24

K.C.PURI

body2009
JUDGMENT K.C. Puri, J. - This is a regular second appeal against the judgment and decree dated 7.8.2007 passed by learned Additional District Judge Jhajjar vide which the appeal preferred by defendant/appellant against the judgment and decree dated 15.4.2005 passed by learned Civil Judge (Senior Division), Jhajjar was dismissed. 2. The respondent-plaintiff has filed suit for possession by way of specific performance of agreement to sell dated 20.6.2002. It has been pleaded by the plaintiff that vide agreement to sell defendant agreed to sell his 12 kanals of land situated in village Sehlanga in favour of the plaintiff for a consideration of Rs. 2,62,500/- At the time of the execution of the alleged agreement, earnest money of Rs. 70,000/- was received by the defendant and it was agreed by the defendant that he would execute the sale deed in favour of the plaintiff upto 10.7.2002. The plaintiff has further pleaded that at the time of execution of the alleged agreement, Fard Jamabandi regarding suit land was not available, therefore, the Khasra numbers of the land, which was agreed to be sold, could not be mentioned in the agreement to sell. However, it was orally agreed that the suit land mentioned inpara No. 1 of the plaint would be sold. The Plaintiff has pleaded that he has always been ready and willing to perform his part of contract as per agreement to sell. For this, he dully appeared before the Sub Registrar, Matanhail on 10.7.2002 with the requisite amount and his appearance to this effect has been before Sub Registrar, Matanhail and has been duly marked by affidavit Ex. P-6. The defendant has backed out from his agreement to sell by not appearing before Sub-Registrar, Matanhail on 10.7.2002. Hence this suit. 3. The defendant in his written statement has pleaded that no agreement to sell Exhibit P-2 was ever executed by him. The agreement to sell Exhibit P-2 is forged, fictitious and is outcome of fraud played on him by the plaintiff who happens to be his uncles son because plaintiff wanted partnership in the defendants truck and at the time of preparing the partnership papers, signatures of the defendant on the agreement to sell Exhibit P-2 may have been taken fraudulently by the plaintiff. The aforesaid agreement to sell Exhibit P-2 is not at all binding on the defendant. 4. The aforesaid agreement to sell Exhibit P-2 is not at all binding on the defendant. 4. From the pleadings of the parties, the following issues were framed on 9.12.2002 :- 1. Whether the defendant is owner in possession of agricultural and comprised in para No. 1 of the plaint ? OPP 2. Whether the defendant had agreed to sell the land mentioned in para No. 1 of the plaint in a sum of Rs. 2,62,500/- and was executed an agreement in favour of the plaintiff on 20.6.2002, if so, its effect ? OPP 3. Whether the defendant had received Rs. 70,000/- as earnest money on 20.6.2002 ? OPD 4. Whether the plaintiff has not executed any agreement to sell the land ? OPD 5. Whether the plaintiff has no locus standi to file the present suit ? OPD 6. Whether the defendant has entitled for special cost under Section 35-A C.P.C. ? OPD 7. Relief. Both the parties led their respective evidence. Learned trial court after appraisal of the evidence on the file, decided on the file, decided all the issues in favour of the plaintiff and against the defendant and consequently suit of the plaintiffs was decreed for possession of 12 kanals of land out of 201 kanals 3 marlas of land mentioned in jamabandi Ex. P-10. 5. Feeling dis-satisfied with the above said judgment, the defendant-appellant preferred first Appeal, which was decided by the learned Additional District Judge, vide judgment dated 7.8.2007 and upholding the finding of Courts below. The appeal preferred by the defendant/appellant was dismissed. 6. Feeling still dis-satisfied with the aforesaid judgments dated 7.8.2007 passed by learned additional District Judge, Jhajjar and the judgment and decree dated 15.4.2005 passed by leaned Civil Judge (Senior Division) Jhajjar of the Courts below, the present regular second appeal has been filed. 7. I have heard learned counsel for the parties and have gone through the records of the case. 8. Learned counsel for the appellant has submitted that agreement in question is vague and does not give the description of the land allegedly agreed to be sold by the defendant/appellant in favour of the plaintiff-respondent. The plaintiff has filed suit for specific performance claiming 12 kanals of land out of 72 kanals of land i.e. 1/6th share out of agricultural land comprising in khewat No. 183/167 Khatoni No. 219 rect. The plaintiff has filed suit for specific performance claiming 12 kanals of land out of 72 kanals of land i.e. 1/6th share out of agricultural land comprising in khewat No. 183/167 Khatoni No. 219 rect. No. 24 killa No. 16/2 (4-6), 17/3 (4-18), 18/2(4-17), 23(7-12), 24(8-0), 25(7-8) rect. No. 29 kill No. 3 (7-12), 4(8-0), 7(8-0), 8(7-12) rect. No. 60 killa No. 6/1 min (3-15) kite 11 measuring 72 kanals. The trial Court has passed decree for specific performance of 12 kanals of land out of 201 kanals 3 marlas of land jamabandi Ex. P-10/D-2. Since the terms of agreement are vague and as such the decree for specific performance should not have been passed by both the Courts below. It is further contended that both the Courts below have misread the evidence on record regarding the execution of the agreement and have returned a perverse finding in respect of that agreement. To fortify his arguments, learned counsel for the appellant has relied upon Surjit Singh and Anr. v. Manohar Lal and Ors., 2005(1) Civil Court Cases 162 (P&H) and Bhagwan Singh (deceased) Rep. By L.Rs. v. Nawab Mohammad Iftikhar Ali Khan and others, 1982 PLJ 386. 9. In reply to the above noted submissions, Shri Hawa Singh Hooda, learned Senior Advocate has supported the judgment of the trial Court. It is contended that admittedly the plaintiff has 1/6th share in the land measuring 201 kanals 3 marlas of land as described in jamabandi Ex. P-10/D-2. The agreement in question stands duly proved and there is concurrent finding of both the Courts below in this regard on the file. The trial Court has passed decree in respect of 12 kanals of land out of total khatta of the appellant, which is admittedly more than 12 kanals. The plea that agreement is vague cannot be looked into as the defendant/appellant has not pleaded the same in the written statement. However, both the Courts below have dealt with the said plea elaborately and thereafter decree of specific performance of contract in respect of 12 kanals of land has been passed. Mr. Hooda has further contended that the learned counsel for the appellant could not establish on the file both the Courts below have misread the evidence and have returned perverse finding regarding the allegation of vague agreement. So, the prayer has been made for dismissal of appeal. 10. Mr. Hooda has further contended that the learned counsel for the appellant could not establish on the file both the Courts below have misread the evidence and have returned perverse finding regarding the allegation of vague agreement. So, the prayer has been made for dismissal of appeal. 10. I have both the learned counsel for the parties at great length and have gone through the records of the case. 11-12. The appellant in paragraph 11 of the grounds of appeal have stated that following law points are involved in the instant appeal :- (i) Whether both the courts below went wrong in deciding issue No. 1 to 3 in favour of plaintiff and issue No. 4 against the defendant ? (ii) Whether the findings of the appellate court are suffering from in apparent perversity at the face of it being contrary to law and facts on record ? (iii) Whether the impugned judgment and decree suffer from an apparent illegality and perversity because of appreciating the forged document of agreement to sell dated 20.6.2002 (Ex. P-2) and ignoring the material piece of evidence which have been direct impact on decision of the case? (iv) Whether the courts below have totally ignored, while allowing the appeal, the evidence led by the appellant/defendant ? 13. The main stress of the learned counsel for the appellant is that since Khasra numbers have not been mentioned in the agreement and as such decree of specific performance could not be passe. However, form the perusal of the written statement, it is revealed that such an objection has not been taken in the written statement. The execution of agreement and receipt of earnest money have been denied in the written statement altogether. Appellant has not been taken a specific plea that agreement cannot be enforced being vague. No party can be allowed to travel beyond his pleadings. So, on that ground also the appeal is meritless. 14. Otherwise on merits, both the courts below have given a definite finding that defendant/appellant is owner of more 12 kanals of land, which is 1/6th share of land measuring 201 kanlas 3 marlas comprised in khewat No. 183/167 Khatoni No. 219 according to the jamabandi for the year 2000-2001 situated in village Selhanga, which are proved on the file Ex. P-10/D-2. P-10/D-2. Although, the plaintiff has claimed 1/6th share out of 72 kanals of land in the palint but since that fact was not mentioned in the agreement and a decree of 12 kanals of land out of the share of the defendant/appellant of 201 kanals 3 marlas has been passed. The Appellate Court has confirmed the said finding. So, in these circumstances, both Courts below have granted equitable relief to the plaintiff after considering whole of the circumstances. So, it cannot be said that decree of specific performance cannot be passed in respect of the land of the defendant as argued by counsel for the appellant 15. The execution of the agreement stands proved form the evidence produced by the plaintiff. The First Appellate Court has confirmed that finding. So, the finding of fact regarding execution of agreement cannot be challenged in the second appeal in view of Section 100 of the Code of Civil Procedure. So, the only question of law which has arisen in the present appeal is whether a decree of specific performance in respect of vague agreement can be passed, but in view of discussion made above, that substantial question of law stands answered against the defendant/appellant. 16. So far as the authority Surjit Shigh & Anr.s case (supra) is concerned that authority is distinguishable as in that case from the reading of agreement, it was not spelt out as to how much area is available and how much consideration would be payable. In the present case, specific area i.e. 12 kanals at the rate of Rs. 1,75,000/- per acre has been agreed to be sold. So, the above said authority is not helpful to the appellant. 17. The authority of Bhagwan singh (deceased) Rep. By L.Rs. case is distinguishable as in that case agreement to sell did not contain neither exact area nor boundaries. So, in these circumstances, it was fond to be vague. So, that authority is also distinguishable to the facts of the present case. 18. According to question No. 1 law point mentioned by the appellant in paragraph No. 11 of the ground of appeal is regarding issue Nos. 1 to 4. These are the question of fact and did not the question of law. So, that authority is also distinguishable to the facts of the present case. 18. According to question No. 1 law point mentioned by the appellant in paragraph No. 11 of the ground of appeal is regarding issue Nos. 1 to 4. These are the question of fact and did not the question of law. The controversy resolved in these issues is regarding execution of agreement to sell dated 20.6.2002 and both the Court below have given concurrent finding on these issues against the defendant/appellant. Otherwise also, the challenge of the appellant is in respect of agreement being vague and learned consel for the appellant has not challenged the execution of the agreement. Learned counsel for the appellant could not point out, that how the finding of appellate Court are suffering from any apparent illegality or perversity regarding appreciation of agreement to sell dated 20.6.2002 Ex. P-2 and what material piece of evidence has been ignored by it. Learned counsel for appellant could not point out what evidence has been ignored by both the Courts below. So in view of the above discussion, the point of law mentioned ot serial Nos. 1 to 4 in the grounds of appeal stands answered against the defendant/appellant. Consequently, in view of the discussion made above, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. Appeal dismissed.