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2012 DIGILAW 448 (PNJ)

Kashmir Singh v. Seebo wife of Rakha Ram

2012-03-13

G.S.SANDHAWALIA

body2012
G.S. Sandhawalia, J.;— 1. The present appeal has been filed by the plaintiff who is aggrieved against the concurrent findings of the Courts below whereby his suit for possession by way of specific performance has been declined and only the relief of recovery of Rs.75,000/- has been granted which was the earnest money received by the defendants. 2. The plaintiff filed the suit for specific performance of agreement dated 15.01.1990 alleging that the defendants had agreed to sell the land at the rate of Rs.25,000/- per acre and Rs.20,000/- was paid as earnest money. The possession was also with the plaintiff and he was ready and willing to execute the sale deed and had remained present on the stipulated dated i.e., 29.06.1990 in the Tehsil Complex, Kapurthala and got the affidavit attested to mark his presence. Another agreement dated 04.02.1991 was executed and the defendant paid further a sum of Rs.55,000/- and it was agreed between the parties that the plaintiff would get the sale deed executed by serving one months notice. Accordingly, it was contended that the plaintiff was always ready and willing and had got served notice on 28.05.2001 requesting the defendants to execute the sale deed. This notice was received by the defendants on 29.05.2001 and instead of executing the sale deed, reply was sent on 07.06.2001, denying the execution of the agreements. 3. The defence taken by the defendants was that the land was allotted to Rakha Ram, husband of defendant No.1 and father of defendants No.2 & 3 under the Punjab Package Deal Properties (Disposal) Act, 1976 in a restricted auction that the property in dispute cannot be transferred or alienated in any manner for 20 years to any Non-Scheduled Caste. The plaintiff was Jat Sikh, whereas the defendants belonged to Scheduled Caste, and therefore, the agreement was opposed to public policy under Section 23 of the Indian Contract Act, 1872 and the plaintiff knew this fact and the suit was time barred and the agreements had been executed by fraud and misrepresentation, coercion and had no value in the eyes of law. It was further stated that defendants were sole owners of the property in dispute and were in peaceful and physical possession for the last 12 years. The said suit had earlier been decreed on 08.06.2004. It was further stated that defendants were sole owners of the property in dispute and were in peaceful and physical possession for the last 12 years. The said suit had earlier been decreed on 08.06.2004. But in an appeal preferred by the defendants, an application for amendment of written statement had been allowed and the judgment and decree of the trial Court had been set aside and the suit had been remanded back to the trial Court for fresh decision. 4. The following issues were framed by the trial Court: 1. Whether defendants had agreed to sell the suit property in favour of the plaintiff, vide agreement dated 15.01.1990 and received Rs.20,000/- as earnest money? OPP 2. Whether defendants agreed to sell the suit land to the plaintiff, vide agreement to sell dated 04.02.1991 and received Rs.55,000/- as earnest money? OPP 3. Whether the plaintiff has always been ready and willing and is still ready and willing to perform his part of agreements? OPP 4. Whether the plaintiff is entitled for possession of the suit land by way of specific performance of the agreements dated 15.01.1990 and 04.02.1991 or in the alternative, for the recovery of Rs.75,000/-? OPP 5. Whether the land in dispute was allotted to Rakha Ram, husband of Seebo under the Punjab Package Deal Properties (Disposal) Act, 1976? OPD 6. Whether the property in dispute cannot be transferred/alienated for 20 years to any non-scheduled caste? OPD 7. Whether plaintiff Kashmir Singh is a Jat Sikh and defendants are Scheduled Castes? OPD 8. Whether agreements dated 15.01.1990 and 04.02.1991 are unenforceable being opposed to public policy? OPD 9. Whether plaintiff is entitled for the relief of permanent injunction as prayed for? OPP 10.Whether suit is within limitation? OPP 11.Relief. 5. The trial Court came to the finding that the agreement had been executed between the parties and a sum of Rs.20,000/- had been received as earnest money qua the first agreement and thereafter, regarding the second agreement dated 04.02.1991 also a sum of Rs.55,000/- had been received. OPP 10.Whether suit is within limitation? OPP 11.Relief. 5. The trial Court came to the finding that the agreement had been executed between the parties and a sum of Rs.20,000/- had been received as earnest money qua the first agreement and thereafter, regarding the second agreement dated 04.02.1991 also a sum of Rs.55,000/- had been received. After taking into consideration the legal notice dated 28.05.2001, it was held that since there was no date fixed after execution, the plaintiff was ready and willing to perform his part of the agreement and on issue No.5, it was held that the property in dispute had been allotted under the Punjab Package Deal Properties (Disposal) Act, 1976 to Rakha Ram in a restricted auction and he had become owner on 04.03.1976 on payment of the sale consideration. It was accordingly held that in view of Rule 6 Sub-Clause 8 of the Punjab Package Deal Properties (Disposal) Rules, 1976 where there was restriction of alienation for a period of 20 years and admittedly, the plaintiff was not a Scheduled Caste, and therefore, the agreement was opposed to public policy and could not be enforced under law as it was executed within the period of 20 years. However, it was held that the defendants were liable to refund a sum of Rs.75,000/- which had been received qua the said agreements and it was found that the plaintiff was in possession of the property and the plaintiff was entitled for injunction. The suit was held to be within limitation and maintainable, and accordingly, the limited relief of recovery of Rs.75,000/- was given without any interest as he was in possession of the disputed property but the respondents were restrained from interfering in the possession of the suit land vide judgment and decree dated 28.09.2006 passed by the Addl.Civil Judge (Sr.Divn.), Kapurthala. 6. The plaintiff filed an appeal before the lower appellate Court which was allowed on 13.11.2010 by the Addl.District Judge, Kapurthala and it was held that the plaintiff was entitled to recovery of Rs.75,000/- along with interest of 12% per annum from the institution of the suit till its decision and the defendants were liable to pay interest at the rate of 6% per annum from the date of decision of the suit till its realisation and the relief of specific performance was declined. Resultantly, the present regular second appeal has been preferred. 7. Resultantly, the present regular second appeal has been preferred. 7. Counsel for the appellant submitted that in view of Section 8, 10 & 11 of the Transfer of Property Act, 1882 there can be no restriction on the transfer of the property and placed reliance upon Smt.Lilawati & others Vs. Firm Ram Dhari Suraj Bhan & another AIR 1971 Punjab & Haryana 87, Puran Chand Vs. Jagat Ram & others 1986 (2) PLR 485 & Achammal Vs. Rajamanickam Karthikeyan (deceased by LRs.) & others AIR 2010 Madras 34. The other submission of the counsel for the appellant is that the allotment was made on 14.11.1975 and 04.08.1976. There was confirmation of the allotment by the authorities on 16.03.1984 and sale certificate had been issued in favour of Rakha Ram, the predecessor-ininterest of defendants, and therefore, once he had become absolute owner, the agreements between the parties could be enforced and the Courts below were in error in not granting the relief of specific performance. The said submission of the counsel cannot be accepted in view of the statutory bar regarding the alienation of the allottees. This Court in similar circumstances in Swarn Singh Vs. Balwant Singh 2004 (3) PLR 54 had occasion to examine similar issues and held that the agreement to sell by the allottees was barred in view of Rule 7 of the Nazool Land Rules, 1956 as amended in 1991 and the nazool land could only be inherited. Accordingly, this Court had up-held the decisions of the Courts below dismissing the suit for specific performance and up-held the entitlement of the plaintiff of refund of money. The relevant portion of the judgment of this Court is reproduced as under: “4. I have thoughtfully considered the submissions made by the learned counsel and am of the view that this appeal is liable to be dismissed because it has been concurrently found by both the Courts below that there is valid execution of the agreement Ex.P1 on 12.5.1998 between the parties. It has also been found by both the Courts below that the total sale consideration fixed in the agreement was Rs. 2 lacs and an amount of Rs. 1,50,000/- was paid as earnest money to the defendant-appellant on 12.5.1998. Lateron the date of execution of the sale-deed was extended and on 13.5.1999 another sum of Rs. It has also been found by both the Courts below that the total sale consideration fixed in the agreement was Rs. 2 lacs and an amount of Rs. 1,50,000/- was paid as earnest money to the defendant-appellant on 12.5.1998. Lateron the date of execution of the sale-deed was extended and on 13.5.1999 another sum of Rs. 25,000/- was paid as is evident from the endorsement Ex.P2 of the instant date which was executed by the defendant-appellant. The date of execution of the sale-deed was extended to 21.5.2000. 5. It is significant to notice that on 18.5.1968 vide Ex.D1 the entitlement of the defendant-appellant with regard to transfer of Nazool land was assessed by the Collector and the Tehsildar was directed to fix the amount of compensation payable by him. The certificate of sale Ex.P3 was issued on 5.2.2001. When the agreement to sell was executed on 12.5.1998, the document Ex.D1 dated 18.5.1968 constituted the basis of that agreement. However, Ex.D1 did not lay down any terms and conditions which were disclosed for the first time in the sale certificate Ex.P3 dated 5.2.2001 i.e. after the agreement to sell was executed. In the sale certificate, for the first time, the defendantappellant was restrained from alienating the suit land in favour of any one. The plaintiff-respondent had agreed to purchase the suit land on a bona fide belief and representation of the defendant-appellant which was based on Ex.D1 dated 18.5.1968. The stipulation in the certificate Ex.P3 dated 5.2.2001 is in accordance with Rule 7 of the Rules. Rule 7 of the Rules reads as under:- "7. Bar of alienation.- (1) No Co-operative Society or the individual member of Scheduled Castes, as the case may be shall alienate or sell or mortgage the Nazool Land and such land shall go down only in inheritance: Provided that a Co-operative Society or a member of a Scheduled Castes to whom such land has been transferred under these rules may temporarily alienate such land in favour of the Punjab Scheduled Castes Land Development and Finance Corporation and Scheduled Banks for securing a loan with a view to improving this land provided the extent of area so alienated shall not exceed the proportion of the land for which price has been paid to the Government. (2) Where the State Government permits a co-operative Society to permanently alienate the Nazool land transferred to the society, the provisions of Rule 4 shall not apply in respect of such land." A perusal of the above rule shows that an allottee of Nazool land is not permitted to transfer the same and it has to devolve upon his heirs by inheritance. On the aforementioned basis, the agreement to sell dated 12.5.1998 was found to be against Rule 7 of the Rules. It was further held that its specific performance could not be directed.” Similar view has been taken in Ajit Singh Vs. Gurcharan Singh & others 2008 (4) PLR 415 that in view of the conditions in the sale certificate, the Courts could not order specific performance and the vendor was not competent to sell the properties. The following questions of law were framed: “ (i) Whether the condition in Sale Certificate imposing restriction for a period of ten years to a Non-Harizan is against the Provisions of Sections 10 & 11 of the Transfer of Property Act and is thus, void and unenforceable? (ii) Whether respondents No.1 and 3 are estopped and precluded to take the plea that respondent No.1 could not alienate the land in suit for a period of ten years from the issuance of sale certificate?” and answered accordingly, as under: “17. From the above discussion and conditions those have been stipulated in the transfer certificate Ex.DX that the defendant cannot alienate the land without the express permission in writing to the State Government for a period of 10 years from the issue of sale certificate and that too to a non member of Scheduled Caste, the plaintiff has no right to seek a decree for specific performance of the agreement to sell.” 8. Thus from the judgments cited above, it can be safely held that the principle of law is settled that in view of the statutory bar contained, the allottee could not transfer the property and the same can only go down by way of inheritance. The judgments relied upon by the counsel for the appellant are of no avail since the same do not pertain to any allotment and any restriction by any statute, and therefore, cannot be applied to the facts and circumstances of the present case. The judgments relied upon by the counsel for the appellant are of no avail since the same do not pertain to any allotment and any restriction by any statute, and therefore, cannot be applied to the facts and circumstances of the present case. In the said cases, any stipulation in the sale deed which was against the interest of the vendees were held to be not binding in view of the provisions of the Transfer of Property Act, 1882 and thus, the said judgments could not be helpful in any manner to the appellant. It is further pertinent to mention that the appeal was firstly argued on 29.02.2012 and the counsel for the appellant had been asked to distinguish the judgment in Swarn Singh's case (supra) and accordingly, the case had been adjourned for today and submission was made regarding the provisions of Section 8, 10 & 11 of the Transfer of Properties Act, 1882. 9. At this stage, Mr.R.S.Ghuman, Advocate had appeared and brought to the notice of this Court that in similar situation, this Court had also decided RSA No.3193 of 2005 titled Kashmir Singh Vs. Seebo & others pertaining to another similar agreement executed between the same parties. This regular second appeal was decided along with RSA No.3194 of 2005 titled Rachhpal Singh Vs. Swaran Kaur & others and was argued by the same Senior Counsel who is arguing the present appeal. Same question was again in issue and the following substantial questions of law was framed: “Whether in the facts and circumstances of the present appeal, Section 56 of the Contract Act or Section 10 of the Transfer of Property Act is applicable?” This Court, while placing reliance upon Ramachandraiah Vs.Nagappa Naidu 1995 (2) RRR 599 & Machegowda & others Vs. State of Karnataka & others 1984 (3) SCC 301 came to the conclusion that specific performance could not be ordered and by operation of law, the agreement to sell in question was unenforceable. The reasoning given reads as under: “Thus relying upon the judgments in (i) Ramachandraiah Versus Nagappa Naidu (ii)Machegowda and others Versus State of Karnataka and others (iii) Rozan Mian Versus Tahera Begum & Ors (iv) Ajit Singh Vs. Gurcharan Singh and others and (v) Laxmamma and etc., etc. The reasoning given reads as under: “Thus relying upon the judgments in (i) Ramachandraiah Versus Nagappa Naidu (ii)Machegowda and others Versus State of Karnataka and others (iii) Rozan Mian Versus Tahera Begum & Ors (iv) Ajit Singh Vs. Gurcharan Singh and others and (v) Laxmamma and etc., etc. Versus State of Karnataka and others (vi) Secretary of State for India Versus Raja Parthasarathy Appa Rao and others (supra), I am of the view that in the present case Section 10 of the Transfer of Property Act has no applicability in the present case. There is no dispute that the land in dispute was allotted by the Government being Nazool Land to the appellant who belongs to a weaker section of the society and the condition prohibiting the transfer of the aforesaid land was introduced in the interest of the grantees of the said land for the purpose of upkeep of the grant and for preventing the economically dominant section of the community from depriving them of their possession of these lands and for safeguarding their interest against any exploitation by the richer section in regard to the enjoyment and possession of these lands granted essentially for their benefit and the aforesaid condition not to alienate forever regulating the allotment in favour of the respondents was not a void condition and therefore, in view of the aforesaid bar to alienate the property, the court was not competent to order specific performance of the agreement in question as the vendor was not competent to sell the property. Thus for the aforesaid reasons, the question of law as raised by the appellant is answered against him and it is held that the condition imposed vide notification dated 18.3.1991 in the case is not hit by Section 10 of the Transfer of Property Act, 1882 and by operation of law, the agreement to sell in question has become unenforceable. For the reasons recorded above, I find no merit in the appeal. For the reasons recorded above, I find no merit in the appeal. Dismissed.” Thus, it would be clear that the reasoning given in RSA No.3194 of 2005 was inter se between the same parties in another agreement and this fact was not brought to the notice of this Court and it was only at the intervention of Mr.R.S.Ghuman, Advocate, who had earlier appeared for the respondents in RSA No.3193 of 2005 & RSA No.3194 of 2005, the factum came to light and thus, there is patent concealment on the part of the counsel for the appellant to disclose this fact and an effort was made to justify this act on the ground that certified copy of the judgment was not available with the counsel for the appellant having been taken by the parties. The said judgment is more so relevant especially in view of the fact that it pertains to the same parties and thus, in view of this conduct of the counsel for the appellant, no further interference can be called for and rather exemplary costs deserve to be imposed but this Court refrains from doing so as the appeal is being dismissed in limine without issuing notice to the other side though Mr.R.S.Ghuman, Advocate has put in appearance on his own account to assist the Court and notice of motion had yet to be issued. 10. Accordingly, the present appeal is dismissed in view of the settled position of law laid down by this Court in the cases of Swarn Singh (supra), Ajit Singh (supra) & Rachhpal Singh (supra). The judgment and decrees of the Courts below are up-held.