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2010 DIGILAW 640 (PNJ)

Karnail Singh v. Darshan Singh

2010-01-27

RAKESH KUMAR GARG

body2010
Judgment Rakesh Kumar Garg, J. 1. This is defendant-s second appeal challenging the judgment and decrees of the Courts below whereby suit filed by the plaintiff- respondent No. 1 for specific performance of the agreement to sell in question has been decreed by the Courts below. 2. In nutshell, the case of the plaintiff-respondent before the trial Court was that the land in dispute was owned by Ujjagar Singh son of Ghanayya Singh son of Dulla Singh, father of appellants and proforma respondent Nos. 2 to 6 (since deceased). During his life time, Ujjagar Singh had agreed to sell the suit property to the plaintiff-respondent vide agreement to sell dated 1.12.2001 and had received Rs. 2,50,000/- as an earnest money at the time of execution of the agreement to sell. The balance amount was to be paid at the time of registration of the sale deed which was to be executed on 30.11.2002. It was further the case of the plaintiff-respondent that the aforesaid agreement to sell was also signed and thumb marked by Shingara Singh respondent No. 5 in token of his consent and the aforesaid agreement also bears a note written by said Shingara Singh in his own hand. The plaintiff- respondent remained ready and willing and was still ready and willing to perform his part of the agreement as per terms and conditions contained in the agreement. On the morning of 30.11.2002, plaintiff-respondent had gone to the house of Ujagar Singh with the balance amount of sale consideration and other expenses to tender the same to him and to request him to execute the sale deed of the suit land in his favour. However, on reaching there, plaintiff- respondent came to know that said Ujjagar Singh had already died about few months back. Thus, on that date the plaintiff tendered the said balance amount to the defendant Nos. 1 to 7 (i.e., the appellants as well as proforma respondents in this appeal) and requested them to execute the sale deed of the suit land in his favour. However, the defendants failed to execute the sale deed, hence this suit. 3. Upon notice, the suit was contested. Defendant Nos. 1,5 and 6 (proforma respondent Nos. 2, 4 and 5 in this appeal) filed joint written statement taking various pleas. However, the defendants failed to execute the sale deed, hence this suit. 3. Upon notice, the suit was contested. Defendant Nos. 1,5 and 6 (proforma respondent Nos. 2, 4 and 5 in this appeal) filed joint written statement taking various pleas. On merits, it was admitted that Ujjagar Singh was owner of property in dispute and the defendants were his legal representatives. All other allegations were denied and it was pleaded that Ujjagar Singh never agreed to sell the suit land to the plaintiff nor executed any agreement to sell in his favour as alleged. The receipt of earnest money was also denied.It was further submitted, that the suit land was ancestral in the hands of Ujjagar Singh as Karta and there was no legal necessity to sell the same and said Ujjagar Singh had no right to enter into the alleged agreement. 4. Defendants 2 to 4 and 7 i.e., the appellants and proforma respondent Nos. 3 and 6 filed separate written statement taking various legal pleas and also denying the execution of agreement to sell in question and receipt of earnest money etc. A further plea was taken by the aforesaid defendants that the present suit was filed by the plaintiff-respondent in collusion with Shingara Singh defendant No. 6 (now proforma respondent No. 5). It may also be relevant to mention that the aforesaid defendants have not taken the plea that land in the hands of Ujjagar Singh was ancestral. Later on appellant No. 2 and proforma respondent Nos. 3 and 6 absented from the proceedings of the case, and were proceeded against ex parte. 5. On the pleadings of the parties, the following issues were framed by the trial Court -- 1. Whether Ujjagar Singh, predecessor-in-interest of defendants entered into a valid and legal agreement to sell property in dispute in favour of plaintiff on 1.12.2001 and received Rs. 2,50,000/- as earnest money on that date - OPP 2. Whether plaintiff is entitled to seek specific performance of agreement in question -OPP 3. Whether plaintiff has been and is still ready and willing to perform his part of contract -OPP 4. Whether suit is not maintainable - OPD 5. Whether plaintiff is estopped by his act and conduct from filing this suit - OPD 6. Whether the plaint is not properly verified -OPD 7. Whether plaintiff has been and is still ready and willing to perform his part of contract -OPP 4. Whether suit is not maintainable - OPD 5. Whether plaintiff is estopped by his act and conduct from filing this suit - OPD 6. Whether the plaint is not properly verified -OPD 7. Whether the plaintiff has no cause of action to file this suit - OPD 8. Whether agreement in question is false and fabricated document by plaintiff in connivance with Shangara Singh defendant No. 6 - OPD 9. Whether Ujagar Singh had executed alleged will dated 20.8.1999 in favour of defendants Nos. 2 to 4 having sound disposing mind - If so, what is its effect on the agreement in dispute - OPD 10. Relief. 6. Vide order dated 30.8.2004, the following additional issues were framed by the trial Court-- 9-A). Whether suit land was ancestral in hands of Ujjagar Singh as Karta and he was having no right to enter into agreement in question - OPD 9-B) Whether market value of land in dispute was more than Rs. Five lacs per killa - If so, its effect - OPD 9-C) Whether present suit is collusive between plaintiff and Shangara Singh defendant No. 6- OPD 7. After completion of evidence and hearing the learned counsel for the parties, the trial court decreed the suit of the plaintiff-respondent. 8. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, defendant Nos. 2 and 4 only, filed an appeal before the lower Appellate Court challenging the aforesaid judgment and decree of the trial Court. 9. The appellants had challenged the findings of the trial Court contending that Ujjagar Singh was neither in need of money nor the agreement to sell was ever executed in favour of the plaintiff and the same was false and fabricated document created by Shingara Singh in connivance with Darshan Singh. It was further alleged that Ujjagar Singh during his life time executed legal and valid will in favour of defendant Nos. 1 to 6 and by operation of that very document defendant Nos. 2 to 4 became joint owners in possession of land measuring 29 kanals 4 marks whereas other brothers were joint owners in possession of land measuring 50 kanals 8 marlas in equal shares. 1 to 6 and by operation of that very document defendant Nos. 2 to 4 became joint owners in possession of land measuring 29 kanals 4 marks whereas other brothers were joint owners in possession of land measuring 50 kanals 8 marlas in equal shares. It was further submitted that the revenue record produced on the file established the property to be of ancestral nature in the hands of Ujjagar Singh being Karta of the family and there was nothing to suggest that the agreement to sell was for legal necessity or otherwise for the benefit of the estate and thus the findings of the trial Court were liable to be set aside. 10. On re-appraisal of evidence, the lower Appellate Court recorded a finding of fact that the very element of the suit land, being ancestral in the hands of Ujjagar Singh and he being a Karta of the family, is not at all reflected from the revenue record and the case of the defendant-appellants that he was neither in legal necessity nor the same was for the benefit of the estate, was totally missing from the documentary as well as oral evidence and the appellant- defendants have failed to prove that the property was joint undivided property in the hands of the Karta of the family. Thus the lower appellate Court recorded a finding of fact that property at the hands of Ujjagar Singh was not ancestral. The other submissions of the appellants with regard to the execution of the agreement to sell, receipt of earnest money, readiness and willingness of the plaintiff-respondent were also repelled. The issue with regard to the collusiveness of Shingara Singh was also not accepted. 11. Still not satisfied, the aforesaid defendants 2 and 4 have filed the instant appeal challenging the judgment and decrees of the Courts below. 12. Learned counsel appearing on behalf of the appellants has vehemently argued that the Courts below have not appreciated the evidence on record in its right perspective and the suit property has been proved to be ancestral, property of the appellants at the hands of the appellants. 12. Learned counsel appearing on behalf of the appellants has vehemently argued that the Courts below have not appreciated the evidence on record in its right perspective and the suit property has been proved to be ancestral, property of the appellants at the hands of the appellants. Learned counsel for the appellants also argued that the issue of collusiveness of Shingara Singh defendant No. 6 with the plaintiff-respondent is fully proved from the suspicious circumstances by which the agreement to sell in question is fully shrouded with, as according to the plaintiff-respondent the consent was taken for selling the suit land from one of the sons of Ujjagar Singh namely, Shingara Singh whereas the appellants are also admittedly the sons of said Ujjagar Singh but their consent in that regard was never shown and thus the agreement to sell in question is a result of collusiveness and fraud practiced upon the appellants by the plaintiff and proforma-respondent No. 6. 13. On the basis of the aforesaid arguments, learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal -- 1. Whether in the facts and circumstances of the present case, the learned Courts have totally misread the evidence led by the present appellants - 2. Whether in the facts and circumstances of the present case, the learned Courts below have wrongly discarded the Jamabandi Ex.P-6, which shows the co-ownership of the deceased Ujagar Singh along with other co-sharers - 3. Whether in the facts and circumstances of the present case, the impugned judgments and decrees passed by the learned Courts below are legally sustainable in the eyes of law- 4. Whether in the facts and circumstances of the present case, the alleged agreement has been fabricated by the respondent No.1/plaintiff with the active connivance of Shingara Singh (defendant No. 6) - 14. On the other hand, Shri V.K. Jain, learned Senior Advocate, appearing on behalf of plaintiff-respondent No. 1 has argued that both the Courts below on appreciation of evidence have recorded a finding of fact with regard to the execution of the agreement to sell in question and the receipt of earnest money by Ujjagar Singh. It was also pointed out by the learned counsel that the findings of the Courts below on the nature of the suit land being self acquired property of Ujjagar Singh cannot be found fault with. It was also pointed out by the learned counsel that the findings of the Courts below on the nature of the suit land being self acquired property of Ujjagar Singh cannot be found fault with. It has further been submitted by the learned counsel that in fact all the questions which have been raised before this Court are essentially the questions of fact, and there is no evidence on record on the basis of which this court can reach to the conclusion that the findings of fact so recorded are perverse. Thus, the appeal having without any merit is liable to be dismissed. 15. I have heard the arguments advanced by the learned counsel for the parties and have gone through the record carefully. 16. I find that the arguments advanced by the learned counsel for the appellants are without any force. Despite the fact that the appellants, who were defendant Nos. 2 and 4 before the trial Court, have not pleaded and proved that the property in the hands of Ujjagar Singh deceased was ancestral, yet I have no reason to differ with the findings of the Courts below on the point that the defendants have failed to prove that property in the hands of Ujjagar Singh was ancestral. To,sub-stantiate this plea of the defendants/appellants there is not an iota of evidence on the record of the case. The document Ex.P-6 wherein Ujjagar Singh was recorded as owner of the suit property to the extent of 5/8th share does not in any way convey the ancestral nature of the property. Inspite of the fact that the appellants have challenged the findings of the Courts below on the question of execution of the agreement to sell in question, receipt of earnest money and the willingness of the plaintiff-respondent, yet the learned counsel was unable to substantiate his arguments from the record of the case and the pith and substance of his argument was only that the agreement in question was the result of collusiveness between the plaintiff-respondent and defendant No. 6. However, even this plea of the appellants could not be substantiated. 17. However, even this plea of the appellants could not be substantiated. 17. Moreover, the appellants had not raised the aforesaid plea with regard to the collusiveness of plaintiff-respondent and defendant No. 6 in the pleadings and the plea raised was that the appellants had become joint owners on the basis of a will dated 29.8.1999 and the subject matter of the dispute was ancestral at the hands of Ujjagar Singh and there was no legal necessity for executing the agreement to sell in question. In view of the above, no question of law much less substantial question of law arises in this appeal. No other point was urged. For the reasons recorded hereinabove, I find no merit in this appeal and the same is accordingly dismissed.