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2012 DIGILAW 1153 (PNJ)

Paramjit Kaur v. Hardial Singh

2012-09-05

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - C.M. No. 10561-C of 2012 : Allowed as prayed for. C.M. No. 10562-C of 2012 : Allowed as prayed for. Main Appeal : 1. Legal representatives of defendant no.2 Kulbir Singh (since deceased) are in second appeal having failed in both the courts below. 2. Respondents no.1 and 2/plaintiffs filed suit against predecessor of appellants and against proforma respondents no.3 to 10. Plaintiffs’ case is that defendant no.1 Joginder Kaur agreed to sell the suit land measuring 156 kanals 12 marlas to the plaintiffs @ Rs.1,50,000/- per acre (08 kanals) and received Rs.1,00,000/- as earnest money and executed agreement dated 25.12.2001 ( 23.12.2001 ? ). The plaintiffs always remained ready and willing to perform their part of the contract, but defendant no.1 committed breach thereof. Defendants no.2 to 8, who are legal heirs of defendant no.1 Joginder Kaur, alleged that defendant no.1 had died, although the plaintiffs were not sure about the death of defendant no.1. Accordingly, defendants no.2 to 8 were also impleaded as party to the suit. Defendant no.9 alleged himself to be transferee of the suit land and has, therefore, been impleaded as party to the suit. 3. Defendants no.1, 3, 6 and 9 were proceeded against ex-parte. 4. Remaining defendants contested the suit and broadly denied the plaint averments. Impugned agreement was alleged to be result of impersonation. It was also alleged that Joginder Kaur was not of sound mind for the last 15 years, and therefore, she could not execute the impugned agreement. It was also alleged that Joginder Kaur was not heard of since the year 2001 and it is not known whether she is alive or dead. Defendant no.2 claimed to be in possession of the suit land. Budh Singh – husband of defendant no.1 had executed Will dated 14.04.1988 in favour of his son defendant no.2 and mutation was also sanctioned in his favour. Impugned agreement was never executed by defendant no.1. 5. Learned Civil Judge (Junior Division), Patti, vide judgment and decree dated 26.03.2011, decreed the plaintiffs’ suit regarding 154 kanals 04 marlas land out of the suit land measuring 156 kanals 12 marlas. First appeal preferred by legal representatives of defendant no.2 has been dismissed by learned Additional District Judge, Tarn Taran, vide judgment and decree dated 02.05.2012. Feeling aggrieved, legal representatives of defendant no.2 have filed this second appeal. 6. First appeal preferred by legal representatives of defendant no.2 has been dismissed by learned Additional District Judge, Tarn Taran, vide judgment and decree dated 02.05.2012. Feeling aggrieved, legal representatives of defendant no.2 have filed this second appeal. 6. I have heard learned counsel for the appellants and perused the case file. 7. Counsel for the appellants contended that death of Joginder Kaur – defendant no.1 is not proved, and therefore, defendants no.2 to 8 (as legal heirs of defendant no.1) are not liable to specifically perform the agreement. It was also argued that according to the impugned agreement, possession of the suit land was delivered to the plaintiffs under the agreement, and therefore, in view of Section 17 (1A) of the Registration Act, 1908, the agreement required compulsory registration, but is unregistered, and therefore, cannot be specifically enforced. Lastly, it was argued that plaintiffs have claimed alternative relief of refund of earnest money with damages, and therefore, instead of relief of specific performance of the agreement, alternative relief of recovery of money should have been granted. Reliance in support of this contention has been placed on judgment of Hon’ble Supreme Court in the case of Kanshi Ram vs. Om Prakash Jawal and others reported as JT 1996 (4) S.C. 733. 8. I have carefully considered the aforesaid contentions, but the same cannot be accepted. 9. As regards defendant no.1 being alive or dead, according to the contesting defendants, defendant no.1 was not heard of since the year 2001 and now, period of more than seven years has already lapsed and even as per version of contesting defendants, defendant no.1 can be presumed to be dead. However, assuming that she is alive, she would be liable to execute the sale deed in terms of the decree of the lower courts, but specific performance of the impugned agreement cannot be declined to the plaintiffs on this ground. 10. As regards requirement of compulsory registration of the agreement, according to Section 17 (1A) of the Registration Act, if such agreement is not registered, then the prospective vendee cannot avail of the protection under Section 53-A of the Transfer of Property Act, 1882. However, it cannot be said that such unregistered agreement is not enforceable. 11. 10. As regards requirement of compulsory registration of the agreement, according to Section 17 (1A) of the Registration Act, if such agreement is not registered, then the prospective vendee cannot avail of the protection under Section 53-A of the Transfer of Property Act, 1882. However, it cannot be said that such unregistered agreement is not enforceable. 11. As regards alternative relief of recovery of money instead of specific performance of the agreement, it has been consistently laid down by this Court as well as by Hon’ble Apex Court that the mere fact, that the plaintiff has also claimed alternative relief of recovery of money, is not sufficient to decline the relief of specific performance. In the instant case, there is no ground whatsoever to deny the relief of specific performance of the impugned agreement to the plaintiffs. Judgment in the case of Kanshi Ram (supra) has no applicability to the facts of the instant case because in that case, it was held that decree for specific performance was inequitable and unjust to the appellant (vendor). It was also held in that case that ordering specific performance would be unrealistic and unfair. However, in the instant case, it cannot be said that decree of specific performance of the agreement would be unrealistic, unfair, inequitable or unjust. Moreover, in the case of Kanshi Ram (supra), earnest money paid was Rs.2,500/- only and the Hon’ble Supreme Court granted compensation of Rs.10,00,000/- to the prospective vendees i.e. 400 times the amount of earnest money. In the instant case, apparently, the defendants would not be ready to pay damages to the plaintiffs to the extent of 400 times of the earnest money of Rs.1,00,000/- i.e. Rs.4,00,00,000/- (Rupees Four Crores). Thus, judgment in the case of Kanshi Ram (supra) has no applicability to the instant case. 12. Plaintiffs have led cogent evidence to prove their case. They have examined Scribe and one attesting witness of the impugned agreement besides plaintiff no.1 himself stepping into the witness-box. All of them have stated according to the plaintiffs’ version. Moreover, plaintiffs have also proved lease deed dated 27.04.2000 executed by Joginder Kaur – defendant no.1 and the said lease deed has been admitted and not disputed by the defendants. Plaintiffs examined Finger Print Expert, who opined that the questioned thumb impressions of defendant no.1 on impugned agreement matched with her standard thumb impressions on the aforesaid lease deed. Moreover, plaintiffs have also proved lease deed dated 27.04.2000 executed by Joginder Kaur – defendant no.1 and the said lease deed has been admitted and not disputed by the defendants. Plaintiffs examined Finger Print Expert, who opined that the questioned thumb impressions of defendant no.1 on impugned agreement matched with her standard thumb impressions on the aforesaid lease deed. All this evidence led by the plaintiffs is very cogent and credible and has not been impeached or rebutted in any manner. Plea of defendants that defendant no.1 was not of sound mind for the last about 15 years is also untenable in view of the aforesaid lease deed, which was executed by her. 13. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by both the courts below to decree the suit of the plaintiffs is fully justified by the evidence on record and is not shown to be perverse or illegal or based on misreading or misappreciation of evidence so as to call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly, the appeal is dismissed in limine.