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2012 DIGILAW 1795 (PNJ)

Mohinder Singh v. Jasvir Singh

2012-12-10

A.N.JINDAL

body2012
JUDGMENT A.N. Jindal, J. The prime question to be determined in this regular second appeal is, “whether the agreement to sell required registration in the light of the provisions of Section 17 (1-A) of the Indian Registration Act?” A suit for specific performance was filed by the plaintiff-respondent (hereinafter referred as ‘the plaintiff’) on the basis of an agreement to sell dated 20.03.2008, executed by the defendant-appellant (hereinafter referred as ‘the defendant’) in his favour for sale of land measuring 4 Kanals 19 Marlas, as fully detailed in the heading of the plaint. The trial Court decreed the suit on 08.09.2011. Thereafter, the said judgment was agitated in appeal. The first Appellate Court dismissed the same on 08.05.2012. Hence, this regular second appeal. The plaintiff has alleged in his suit that after receiving substantial amount of Rs.2,86,500/-out of the total sale consideration of Rs.3,71,250/-, the defendant had delivered possession of the suit land to him and the sale deed was to be executed on or before 30.04.2009, after receiving the balance sale consideration. Since the defendant failed to execute the sale deed on the stipulated date, he filed the present suit. On the other hand, the case of the defendant is that he never executed any such agreement to sell on 20.03.2008 and the same is the result of fraud and forgery. Out of the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether defendant executed agreement to sell dated 20.03.2008 after receipt of earnest money? OPP 2. Whether plaintiff is ready to perform his part of contract? OPP 3. Whether plaintiff is entitled to decree of specific performance or in the alternative for recovery? OPP 4. Whether plaintiff is entitled to permanent injunction? OPP 5. Whether agreement dated 19.11.2007 is result of fraud and misrepresentation? OPD 6. Whether suit of the plaintiff is false, frivolous and vexatious and defendant is entitled to special costs under Section 35-A CPC?OPD 7. Relief. The plaintiff-respondent remained successful in both the Courts. As such, this Regular Second appeal. OPP 4. Whether plaintiff is entitled to permanent injunction? OPP 5. Whether agreement dated 19.11.2007 is result of fraud and misrepresentation? OPD 6. Whether suit of the plaintiff is false, frivolous and vexatious and defendant is entitled to special costs under Section 35-A CPC?OPD 7. Relief. The plaintiff-respondent remained successful in both the Courts. As such, this Regular Second appeal. At this admission stage, the prime argument raised by learned counsel for the defendant is that since the plaintiff has alleged that he was delivered possession of the suit land and the agreement, admittedly, is unregistered, therefore, suit for specific performance on the basis of the said agreement was not competent, as the said agreement being in part performance of the contract required registration, therefore, the suit on the basis of unregistered agreement was not maintainable and liable to be dismissed in the light of the judgment delivered by this Court in case Gurbachan Singh Vs. Raghubir Singh, 2010 (3) CCC 731 (P&H). Having heard the contentions, the same do not weigh with the mind of the Court. First of all, the plea of part performance is available only to the defendant and not the plaintiff and the agreement which was made the basis of the suit does not fall within the preview of Section 17 (1-A) of the Registration Act. As a matter of fact, the agreements in part performance of the contract were made compulsorily registrable, as the people in order to avoid the registration of the document, remained satisfied with the unregistered agreement while making the entire payment of consideration and delivery of possession. Neither the plaintiff can claim part performance nor this plea is available to him, but he can plead for enforcement of the contract by way of registration of the sale deed through Court, then such unregistered agreement was sufficient to make basis of the suit and there was no impediment for enforcement of such contract. The judgment delivered in Gurbachan Singh's case (supra) was reversed by a Division Bench of this Court in case Ram Kishan and another Vs. Bijender Mann alias Vijender Mann and others, R.S.A. No. 4946 of 2011 (decided on 12.10.2012), wherein it was observed as under:- “(a). The judgment delivered in Gurbachan Singh's case (supra) was reversed by a Division Bench of this Court in case Ram Kishan and another Vs. Bijender Mann alias Vijender Mann and others, R.S.A. No. 4946 of 2011 (decided on 12.10.2012), wherein it was observed as under:- “(a). a suit for specific performance, based upon an unregistered contract/agreement to sell that contains a clause recording part performance of the contract by delivery of possession or has been executed with a person, who is already in possession, shall not be dismissed for want of registration of the contract/agreement; (b). the proviso to Section 49 of the Registration Act, legitimises such a contract to the extent that, even though unregistered, it can form the basis of a suit for specific performance and be led into evidence as proof of the agreement or part performance of a contract. We, therefore, express our respectful disagreement with the judgment in Gurbachan Singh Vs. Raghubir Singh (supra) and affirm the judgment in Mool Chand Mindhra Vs. Smt. Indu Bala, PLR 378 (RSA No.2056 of 2011). While dealing with the case of specific performance on the basis of an unregistered agreement to sell, this Court in case Didar Singh Vs. Nasib Kaur, 2012 (2) RCR (Civil) 288, by taking into consideration Mool Chand Mindhra’s case (supra), observed as under:- “19. From the bare reading of Section 17 (1A) of Registration Act, 1908, it is revealed that contract to transfer of any amount is required to be registered for the purpose of Section 53-A of the Transfer of Property Act, 1882 if the same has been executed on or after the commencement of registration and other related law (amendment Act 2001). The proviso of Section 49 make it crystal clear that unregistered document effecting immoveable property may be received as evidence of a contract for a suit for specific performance under Chapter 11 of Specific Relief Act, 1877. So, far as the reliance of the counsel for the appellant on authority Gurbachan Singh's case (supra) is concerned that authority has been duly distinguishable in the later authority Mool Chand Mundhra's case (supra). Para No.11 of the said judgment is reproduced as under:- “11. So, far as the reliance of the counsel for the appellant on authority Gurbachan Singh's case (supra) is concerned that authority has been duly distinguishable in the later authority Mool Chand Mundhra's case (supra). Para No.11 of the said judgment is reproduced as under:- “11. A bare perusal of the aforesaid provision makes it manifestly clear that such an unregistered agreement vide which the possession has been delivered, shall have no effect for the purpose of Section 53-A of the Transfer of Property Act (in short – the T.P. Act). In other words such an unregistered agreement cannot be used to take benefit of Section 53-A of the T.P. Act. However, Section 17 (1-A) of the Act does not make such an unregistered agreement completely null and void. This provision does not prohibit user of such an agreement for any purpose except for the purpose of Section 53A of the T.P. Act. Consequently, suit on the basis of such an unregistered agreement for specific purpose thereof is certainly maintainable, although such an agreement cannot be used as defence in terms of Section 53-A of the T.P. Act. Judgment in the case of Gurbachan Singh (supra) is completely distinguishable on facts.” 20. So, in view of the above discussion, the above questions of law raised by the learned counsel for the appellant stand answered against the appellant and it is held that there is no bar as per Section 17 (1A) to seek the decree of specific performance of contract in respect of an unregistered contract of sale, as discussed above.” In another judgment delivered by the Hon’ble Karnataka High Court in case Ashwatthamma Vs. Smt. Ramakka and another, 2011 (3) ICC 323, it was observed as under:- “5. Given the above facts and circumstances, the question of law as to whether a suit for specific performance was maintainable in the face of the deed in question being executed as a sale deed and registration of the same not having been completed for various reasons would disentitle the plaintiff to file a suit for specific performance need not detain this Court for long having regard to the law as laid down by the Supreme Court in the case of Kalavakurti Venkata Subbaiah, ( AIR 1999 SC 2958 ) (supra). Therefore, the finding of the Courts below that such a suit was not maintainable cannot be sustained” As regards the other argument that the agreement is not duly proved, sufficient evidence has been led by the plaintiff by examining Kaur Singh (PW-2) & Nazar Singh (PW-3), both attesting witnesses of the agreement to sell and Mr. Om Parkash Garg, Advocate, scribe (PW-5). Readiness and willingness of the plaintiff to execute the sale deed, after parting with the remaining sale consideration, has been duly proved by examining the witnesses. On the other hand, no such evidence has been led by the defendant, which may be sufficient to prove that the said agreement was the result of fraud or forgery. Both the Courts below have taken right view of the matter while decreeing the suit. The evidence appears to have been appreciated in the right perspective. No illegality, much less perversity, has been detected in the impugned judgments, warranting interference by this Court. No substantial question of law arises for determination. Dismissed.