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2009 DIGILAW 663 (HP)

Lalita Awasthi v. Harbans Lal

2009-07-24

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, Judge. This is an appeal against the judgement, decree dated 11.5.2000 passed by District Judge, Kangra at Dharamshala in Civil Appeal No. 49-P/XIII-1998 affirming the judgement, decree dated 26.5.1998 passed by Sub Judge Ist Class (I), Palampur in Civil Suit No. 249 of 1989. 2. The facts in brief are that Mohinder Kumar Awasthi predecessor-in-interest of appellants had filed suit against Bishan Dass, Harbans Lal son of Bishan Dass, Harbans Lal son of Anirudh Awasthi, Sushil Kumar, Dinesh Kumar, Vinod Kumar and Akshay Kumar that the sale deed dated 14.9.1989 executed by Bishan Dass in favourof Harbans Lal son of Anirudh Awasthi, Sushil, Kumar, Dinesh Kumar, Vinod Kumar and Akshay Kumar regarding land comprised in khasra No. 2 min, khatauni No. 2 min, khasra Nos. 117, 130, 132, 150, 152, 156, 162 total measuring 0-20-14 hectares, situated in Mohal Gandhi-gram, Tehsil Baijnath is illegal, void and not binding on Mohinder Kumar Awasthi with permanent injunction restraining them from causing any interference on the suit land in any way and for specific performance of contract on the basis of agreements dated 10.3.1987 and 26.5.1989. The pleaded case in the plaint is that Bishan Dass and his real brother Rattan Lal were recorded owners of the suit land. Harbans Lal son of Bishan Dass was holding general power of attorney of Bishan Dass and Rattan Lal. Harbans Lal son of Bishan Dass as general power of attorney holder of Bishan Dass and Rattan Lal had entered into an agreement on 10.3.1987 for sale of the suit land with Mohinder Kumar Awasthi. The possession of the suit land was given to Mohinder Kumar Awasthi by Harbans Lal son of Bishan Dass on 10.3.1987. 3. The sale deed was not executed, a complaint was lodged to police by Mohinder Kumar Awasthi and some other persons with whom Harbans Lal son of Bishan Dass had entered into an agreement, thereafter Harbans Lal son of Bishan Dass had entered into an agreement dated 26.5.1989 with Mohinder Kumar Awasthi on behalf of Bishan Dass and Rattan Lal. It was agreed that sale deed would be executed within a period of one month from 26.5.1989. 4. The aforesaid period of one month had not expired, but in the meantime, Rattan Lal died. It was agreed that sale deed would be executed within a period of one month from 26.5.1989. 4. The aforesaid period of one month had not expired, but in the meantime, Rattan Lal died. Bishan Dass and Harbans Lal son of Bishan Dass had promised to execute the sale deed as soon as mutation of succession of Rattan Lal was attested. It has also been alleged in the plaint that Harbans Lal son of Bishan Dass made mischief with Mohinder Kumar Awasthi and concealed the facts from him that the land besides the suit land was in possession of the tenants, who had become owners. 5. Mohinder Kumar Awasthi in third week of September 1989 came to know that Bishan Dass had illegally executed the sale deed of suit land on 14.9.1989 in favour of Harbans Lal, Sushil Kumar, Dinesh Kumar, Vinod Kumar, Akshay Kumar all sons of Anirudh Awasthi after the mutation of succession of Rattan Lal was attested in favour of Bishan Dass on 13.9.1989. The sale deed dated 14.9.1989 is illegal and void in view of agreements dated 10.3.1987 and 26.5.1989. In these circumstances, the suit was filed. 6. Bishan Dass had contested the suit and took preliminary objections of locus-standi and lack of cause of action. On merits, he pleaded that Harbans Lal, Sushil Kumar, Dinesh, Vinod Kumar, Akshay Kumar all sons of Anirudh Awasthi had purchased the suit land on 14.9.1989, which is in their possession since 5.10.1987. It has been denied that Harbans Lal son of Bishan Dass was general power of attorney holder of Bishan Dass and Rattan Lal. Harbans Lal son of Bishan Dass had no authority to enter into an agreement and sell the property of Bishan Dass and Rattan Lal. It was pleaded that the sale deed dated 14.9.1989 was validly executed. 7. Harbans Lal, Sushil Kumar, Dinesh Kumar, Vinod Kumar and Akshay Kumar all aons of Anirudh Awasthi had also contested the suit by filing the written statement and they took preliminary objections of maintainability, estoppel, locus-standi, non-joinder and mis-joinder of necessary parties, cause of action, limitation and valuation. On merits, they pleaded that they had purchased the suit land on 14.9.1989 and they are in possession of the suit land since 5.10.1987. They denied that Bishan Dass and Rattan Lal had entered into an agreement with Mohinder Kumar Awasthi on 10.3.1987. On merits, they pleaded that they had purchased the suit land on 14.9.1989 and they are in possession of the suit land since 5.10.1987. They denied that Bishan Dass and Rattan Lal had entered into an agreement with Mohinder Kumar Awasthi on 10.3.1987. Harbans Lal son of Bishan Dass had no authority to enter into an agreement with Mohinder Kumar Awasthi as he was not the attorney of Bishan Dass and Rattan Lal. Mohinder Kumar Awasthi filed replication to the written statement of Bishan Dass. Bishan Dass died during the pendency of the suit, therefore, Pinku and Meera as legal representatives were brought on record, his legal representative Harbans Lal was already on record. 8. On the pleadings of the parties, the following issues were framed:- 1. Whether the registered sale-deed dated 14.9.1989 executed by defendant No.1 in favour of defendants No.3 to 7 is illegal, void and not binding on the plaintiff? .....OPP 2. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? ....OPP 3. Whether the plaintiff is entitled to a decree of specific performance of contract, as alleged? ...OPP 4. Whether the plaintiff is estopped from filing this suit by his act and conduct ? …..OPD 3 to 7. 5. Whether the suit is not maintainable? …OPD 3 to 7. 6. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? ….OPD 3 to 7. 7. Whether defendant No.2 had no authority to raise the .property on behalf of defendant No.1, as alleged? …OPD-1. 8. Relief. The issues No. 1 to 3 were answered in the negative, issues No. 4, 5 and 7 in affirmative. The issue No. 6 was held redundant and the suit was dismissed by the trial court on 26.5.1989. In appeal, the District Judge on 11.5.2000 affirmed the judgement, decree dated 26.5.1998, hence the second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the learned courts below are right in holding that the plaintiff has failed to prove agreements to sell Exts. PW 6/A and Ex. PW 1/A? 2. Whether the learned courts below are right in not declaring the sale deed Ext. DW 4/A (sic Ex. P 2) dated 14th September, 1989 null and void especially when the notice of agreements to sell in favour of the plaintiff was given on 13.5.1989? 3. PW 6/A and Ex. PW 1/A? 2. Whether the learned courts below are right in not declaring the sale deed Ext. DW 4/A (sic Ex. P 2) dated 14th September, 1989 null and void especially when the notice of agreements to sell in favour of the plaintiff was given on 13.5.1989? 3. Whether the learned courts below have misread, misinterpreted as well as misappreciated the provisions of Order 7 CPC while declining the relief of refund of amount? 4. Whether the courts below are right in refusing the specific performance of the agreement on the ground that the plaintiff has failed to plead and prove readiness and willingness to perform his part of the contract especially when the plaintiff had already performed his part which he was required to perform under the agreement by making the payment as agreed between the parties? 5. Whether the learned courts below are right in declining the relief of injunction especially when the plaintiff has proved on record that he is in possession pursuant to agreements to sell dated 11.3.1987 and 26.5.1989? Mohinder Kumar Awasthi died during the pendency of second appeal and his legal representatives were brought on record. 9. Heard and perused the record. The learned counsel appearing on behalf of the appellants has assailed the impugned judgement, decree, whereas, the learned counsel for respondents No. 4 to 8 has supported the impugned judgement, decree. The foremost question involved in the appeal is to the effect whether appellants have proved the execution of agreements Ex. PW 6/A and Ex.PW 1/A. In case the two agreements are proved then whether sale deed Ex. P 2 is null and void. The connected question is also refund of amount allegedly paid in pursuance of agreements. The specific performance of the agreements Ex. PW 6/A and Ex. PW 1/A as well as relief of injunction to the appellants is also involved. 10. The substantial questions of law No. 1 to 5 are interconnected, therefore, all of them are being taken up collectively for disposal. PW 1 P.R. Chopra has stated that he is the scribe of agreement Ex. PW 1/A, which was prepared at the instance of Harbans Chand power of attorney holder of Rattan Lal and Bishan Dass. The parties had signed the agreement after admitting its correctness. The witnesses were Ram Saran and Surinder Kumar. PW 1 P.R. Chopra has stated that he is the scribe of agreement Ex. PW 1/A, which was prepared at the instance of Harbans Chand power of attorney holder of Rattan Lal and Bishan Dass. The parties had signed the agreement after admitting its correctness. The witnesses were Ram Saran and Surinder Kumar. In cross-examination, he has stated that earlier agreement was not scribed by him. PW 2 Rajesh Kumar is the general power of attorney holder of Mohinder Kumar. He has stated that mark-A was executed on 10.3.1987. The possession was given on the basis of mark-A. The notice mark-E was given to Harbans. The agreement Ex. PW 1/A was scribed by P.R. Chauhan, Advocate, Baijnath, which was signed by him, Harbans Kumar and witnesses Ram Saran and Surinder Kumar. Harbans was general power of attorney holder of his father. The father of Harbans had sold the land vide sale deed Ex. P-2, but it was sold wrongly. In cross-examination, he has stated that mark-A was also executed in his presence. Mark-A from the beginning up to page-2 and its portions A to A and B to B were written by Kamal. Portion C to C was written on 24.12.1987. On 10.3.1987 his brother Kamal read over page-1, page-2, portions A to A and B to B to Harbans, who admitted it to be true. Rattan Lal had died in the year 1989. 11. PW 3 Paras Ram has stated that Mohinder Kumar had given advance money to Harbans Kumar on 10.3.1987 and a writing to this effect was prepared. He has also signed mark-A in red encircle. In cross-examination, he has stated that he had signed page-1 and page-2 of mark-A on 10.3.1987. He has stated that he signed mark-A even after 10.3.1987. PW 4 Surinder Kumar is a witness to agreement Ex. PW 1/A. He has stated that other witness was Ram Saran. PW 5 Smt. Krishna Devi has stated that she knows the parties. She has seen the land, which was sold to plaintiff and the plaintiff is in possession of that land. 12. PW 6 Kamal Kumar has stated that plaintiff had purchased the land from Harbans Kumar and an agreement Ex. PW 6/A was scribed by him at the instance of Harbans Kumar and Mohinder Kumar. Paras Ram was the witness. She has seen the land, which was sold to plaintiff and the plaintiff is in possession of that land. 12. PW 6 Kamal Kumar has stated that plaintiff had purchased the land from Harbans Kumar and an agreement Ex. PW 6/A was scribed by him at the instance of Harbans Kumar and Mohinder Kumar. Paras Ram was the witness. In cross-examination, he has stated that portion -A to A and portion-B to B of agreement Ex. PW 6/A was written when first payment was made. He has shown his ignorance that on 10.3.1987 no stamp paper was purchased. He has denied that he has prepared false document. 13. DW 1 Dinesh has stated that plaintiff has no connection with the suit land. They are in possession of the suit land since 5.10.1987. Bishan Dass etc. had sold this land to them on 14.9.1989 and stated that on 5.10.1987 Harbans had prepared the sale deed. At that time Harbans was general power of attorney holder of Bishan Dass and Rattan Lal. The sale deed mark-A was presented before the Tehsildar, but he returned the sale deed. Thereafter on 14.9.1989 the sale deed of the suit was was executed by Bishan Dass in their favour which is mark-B. Plaintiff was never in possession of the suit land. In cross-examination he has denied that Harbans had executed an agreement with Mohinder as general power of attorney holder of Bishan Dass and Rattan Lal. 14. DW 2 Rattan Chand has stated that plaintiff is not in possession of the suit land, rather defendants No. 3 to 7 are owners in possession of the suit land. DW 3 Pradeep Kumar stamp vendor has stated that vide Serial No. 1540 Rs.3/- non-judicial paper was issued to Mohinder Kumar through Bhawan Chand. The stamp paper of Ex. PW 6/A bears the date 11.3.1987, which was put by him, certificate Ex. DW 3/A was issued by him. This stamp paper was sold by him for affidavit. The date 11 has been attempted to be made 10, but it was not done by him. He had put only date 11. 15. DW 4 Rajiv Sharma, Record Keeper has proved copy of sale deed Ex. DW 4/A. DW 5 Sudershan Misra has stated that sale deed Ex. DW 4/A is signed by him as a witness. The date 11 has been attempted to be made 10, but it was not done by him. He had put only date 11. 15. DW 4 Rajiv Sharma, Record Keeper has proved copy of sale deed Ex. DW 4/A. DW 5 Sudershan Misra has stated that sale deed Ex. DW 4/A is signed by him as a witness. The sale deed was .not registered as Harbans was not authorized to effect the sale. The sale deed Ex. PW 4/A was taken by them. The sale deed Ex. PW 5/B was also prepared in his presence, which was scribed by Pawan Acharya, Advocate. Rattan Chand Choudhary and the witness had signed Ex. DW 5/B as witnesses. Thereafter this sale deed was presented before the Sub-Registrar. 16. DW 6 Udho Ram has stated that Ex. DW 4/A bears his signatures as witness. DW 7 Des Raj has stated about the possession of defendants No. 3 to 7 on the suit land. DW 8 Pawan Acharya, Advocate has stated that Ex. DW 5/B was scribed by him. 17. Mark-A agreement was later on exhibited as Ex. PW 6/A. It has been stated in agreement Ex. PW 6/A that the said agreement was prepared on 10.3.1987. PW 3 Paras Ram has identified his signatures on mark-A agreement. In cross-examination, Paras Ram has clearly stated that he has signed at pages-1 and 2 on 10.3.1987 itself. He has also stated that he signed this document on 1.4.1987 and 24.12.1987. Thus as per statement of PW 3 Paras Ram, agreement Ex. PW 6/A was prepared on 10.3.1987. PW 6 Kamal Kumar is the scribe of agreement Ex. PW 6/A. He has not specifically stated that on which date Ex. PW 6/A was scribed by him. The appellants have not examined any other persons in order to establish on which date agreement Ex. PW 6/A was executed. It appears from the cross-examination of various witnesses examined by the appellants that the respondents have taken the stand that agreement Ex. PW 6/A was not executed on 10.3.1987. The stamp paper on which agreement Ex. PW 6/A has been written was in fact purchased on 11.3.1987. 18. DW 3 Pardeep Kumar stamp-vendor has stated that the on stamp paper Ex. PW 6/A he had put date 11.3.1987, certificate Ex. DW 3/A was also issued by him. PW 6/A was not executed on 10.3.1987. The stamp paper on which agreement Ex. PW 6/A has been written was in fact purchased on 11.3.1987. 18. DW 3 Pardeep Kumar stamp-vendor has stated that the on stamp paper Ex. PW 6/A he had put date 11.3.1987, certificate Ex. DW 3/A was also issued by him. He has stated that an attempt was made to change the date 11 to 10, but it was not done by him. He had put only date 11 on the stamp paper. He has also stated that stamp paper of Rs.3/- was sold by him in the name of Mohinder Kumar through Bhawan Chand for the purpose of affidavit. It is thus clear that stamp paper of agreement Ex. PW 6/A was purchased on 11.3.1987. The appellants have miserably failed to prove how agreement Ex. PW 6/A was prepared on 10.3.1987 on stamp paper which was purchased on 11.3.1987. On page-2 of the agreement Ex. PW 6/A, there is a note-A to A that the land has been granted on behalf of Jai Singh and Ratna under LR-V in favour of owner Rattan Lal etc. on 5.5.1987. 19. The cumulative effect of these glaring discrepancies leads to only inference that agreement Ex. PW 6/A is not a genuine document rather it is a highly suspicious document. The agreement Ex. PW 6/A was alleged to have been executed on 10.3.1987 on stamp paper dated 11.3.1987 in which reference of ownership in favour of Rattan Lal etc. on the basis of LR-V dated 5.5.1987 has also been made. The agreement Ex. PW 1/A is not an independent agreement. In agreement Ex. PW 1/A also reference of agreement dated 10.3.1987 has been given. In agreement Ex. PW 1/A, there is .no mention of any land etc. Once the agreement Ex. PW 6/A goes then agreement Ex. PW 1/A does not survive independently. 20. It is the case of the appellants that respondents No. 4 to 8 have purchased the suit land on the basis of sale deed Ex. P 2 dated 14.9.1989. The appellants have no right to purchase the suit land from previous owners on the basis of agreement Ex. PW 6/A and agreement Ex. PW 1/A, which have not been proved. It is the case of the appellants that respondents No. 4 to 8 have purchased the suit land on the basis of sale deed Ex. P 2 dated 14.9.1989. The appellants have no right to purchase the suit land from previous owners on the basis of agreement Ex. PW 6/A and agreement Ex. PW 1/A, which have not been proved. In fact, the appellants have no locus-standi to challenge the sale deed dated 14.9.1989 in favour of respondents No. 4 to 8 when they have failed to establish their case on the basis of agreements Ex. PW 6/A and Ex. PW 1/A. It has been proved on record that respondents are in possession of the suit land in view of the sale deed dated 14.9.1989. In fact, the possession of respondents No. 4 to 8 is coming on the suit land even earlier to the execution of sale deed dated 14.9.1989. The appellants are not entitled to reliefs of specific performance, injunction, refund of amount on the basis of agreements Ex. PW 6/A and Ex. PW 1/A, which have not been proved. The two courts below have recorded a finding of fact against the appellants. The learned counsel for the appellants has failed to point out any perversity in the impugned judgement and decree, which require no interference. The substantial questions of law No. 1 to 5 are decided against the appellants. 21. No other point was urged. 22. As a result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. July 24, 2009. ( Kuldip Singh ), (Hem) Judge.