Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 1728 (RAJ)

Sohan Singh v. LRs. of Avtar Singh

2014-10-28

ARUN BHANSALI

body2014
JUDGMENT : ” This first appeal under Section 96, CPC is directed against judgment and decree dated 24.09.1991 passed by Additional District Judge, Raisinghnagar, whereby, the suit filed by the appellant for specific performance was rejected. 2. The facts in brief may be noticed thus : the appellant-plaintiff filed a suit, inter alia, with the averments that land ad measuring 26 Bigha, 10 Biswa situated at Chak 4-FD, Tehsil Raisinghnagar was owned by Sardar Singh husband of defendant No. 3 Kammo and father of defendant Nos. 1 and 2 Avtar Singh and Harnam Singh; Sardar Singh has died and after his death defendant Nos. 1 to 3 are his legal representatives; the agreement pertaining to the disputed land was executed by defendant No. 1 Avtar Singh for a sum of Rs. 45,000/- on 14.02.1975 and he received Rs. 25,000/- as advance and executed agreement to sale dated 14.02.1975 and handed over possession of the land; ever since plaintiff was in cultivatory possession of the land; the agreement was entered into by the defendant No. 1 on his own behalf and as attorney of defendant No. 2 Harnam Singh and Kammo Bai and took responsibility to get sale-deed executed from Harnam Singh and Kammo Bai; as per the terms of the agreement, it was incumbent on the defendants to receive balance consideration of Rs. 20,000/- and execute sale-deed in June, 1976 and get it registered; plaintiff was always ready and willing for getting the sale-deed executed in his favour and was still ready; on 08.08.1975 a Panchayat was held regarding the land, wherein, defendants Avtar Singh, Harnam Singh and Kammo Bai agreed to registration in terms of the agreement to sale and accepted the agreement; the Panchayat Nama was scribed by Shanker Singh, resident of 4FD and Avtar Singh, Harnam Singh and Kammo Bai placed their thumb impressions in presence of witnesses; registered notice was given by the plaintiff for getting the sale registered by 30.06.1976, which notice was received; the defendants were told many times to execute the sale-deed, which was avoided; as the price of the land has increased, therefore, the defendants have become greedy and have refused to execute the sale on 01.03.1978 and, therefore, the defendants be directed to execute the sale deed. 3. 3. A written statement was filed by defendants Harnam Singh and Kammo Bai denying the averments made in the plaint; it was, inter alia, contended that the defendants were not aware of execution of any agreement by Avtar Singh and were not bound by agreement executed by him; they have not executed any agreement with the plaintiff and have not approved the agreement, no notice has been received by them and they were not bound to execute sale in plaintiff ” s favour. 4. In additional plea, the said defendants indicated that disputed land was allotted by the Custodian Department, Sri Ganganagar as non-claimants to father of defendant Nos. 1 and 2 Sardar Singh and other members of the family i.e. defendant Nos. 1 to 3 and Kartar Kaur daughter of Sardar Singh equally, the Sanad dated 13.07.1976 was issued by Settlement-cum-Managing Officer, Sri Ganganagar in favour of Sardar Singh, Kammo Bai, Harnam Singh, Avtar Singh and Kartar Kaur and all the five had equal share in the said land; after three months of issuance of the Sanad Sardar Singh died, therefore, his share went to his legal representatives including defendant Nos. 1 to 3 and Kartar Singh, legal representatives of Jagtar Singh and Likho Bai, children of Sardar Singh and the land has been recorded by the revenue department; the plaintiff has deliberately not impleaded Kartar Singh, legal representatives of Jagtar Singh, Kartar Kaur and Likho Bai, in whose absence, the suit was not maintainable; the land was joint and the same has not been partitioned; the suit has been filed to harass the defendants and, therefore, special costs be imposed; the plaintiff was in possession of land in excess of ceiling limit and, therefore, he is not entitled to purchase the land and, therefore, the suit be dismissed. 5. During pendency of the suit, Kammo Bai died and her legal representatives adopted the written statement filed by her. 6. Defendant No. 1 Avtar Singh filed separate written statement and denied the averments contained in the plaint; it was denied that he executed any agreement and that he was not legally competent to execute the agreement; he was not power of attorney holder of other defendants and had not taken responsibility to execute the sale-deed on their behalf; the receipt of advance, notice and refusal to accept it was denied. 7. 7. In additional plea, it was stated that Sanad was issued on 13.07.1976 favouring five persons; after issuance of Sanad Sardar Singh died and his share besides defendant Nos. 1 to 3 vested in his other legal representatives, which has been recorded in the revenue records. 8. Based on pleadings of the parties, the trial court framed eleven issues; on behalf of plaintiff ' six witnesses were examined and three documents were exhibited; on behalf of defendants ' four witnesses were examined and two documents were exhibited. 9. After hearing the parties, the trial court came to the conclusion that Avtar Singh executed agreement to sale in plaintiff ” s favour for sale of suit land on 14.02.1975 for a total consideration of Rs. 45,000/- and received Rs. 9. After hearing the parties, the trial court came to the conclusion that Avtar Singh executed agreement to sale in plaintiff ” s favour for sale of suit land on 14.02.1975 for a total consideration of Rs. 45,000/- and received Rs. 25,000/- as part consideration and handed over possession of the suit land to plaintiff Sohan Singh; the plaintiff was ready and willing to perform his part of the contract and was still ready; the suit land was allotted by Custodian Department in the name of Sardar Singh, in whose name Sanad was issued and names of four other members of the family i.e. Harnam Singh, Avtar Singh, Kartar Kaur and Kammo Bai were included and the same was allotted based on the members of the family; Sardar Singh died three months after issuance of Sanad and his legal representatives became owners to the extent of equal share; 1/7th share was recorded in the name of legal representatives of Jagtar Singh, the predeceased son of Sardar Singh; as per Parcha Lagan, Avtar Singh has got 1/7th share in the suit property and he has no right to sell land in excess of the same; none of the parties gave authority to Avtar Singh to sell the land; the land had not been partitioned; the marking of thumb impression by Harnam Singh and Kammo Bai on Panchayat Nama (Exhibit-2) was not proved and was without consideration; the legal representatives of Jagtar Singh and Sardar Singh were not impleaded as parties to the suit, who were necessary parties and in absence of necessary parties the plaintiff was not entitled for decree of specific performance; the agreement except for share of Avtar Singh was not valid; the defendants failed to prove that plaintiff has land in excess of ceiling limit and, therefore, the issue was decided against the defendants; regarding the relief, the trial court came to the conclusion that as Avtar Singh has received Rs. 25,000/- under the agreement, it would be just to order refund of the said amount; even to the extent of Avtar Singh ” s share, grant of decree for specific performance would not be just as the land is joint, the same has not been partitioned so far and after partition very small portion of land would come in share of Avtar Singh and it would not be proper to grant specific performance regarding such small piece of land; consequently, the trial court dismissed the suit for specific performance, however, ordered refund of a sum of Rs. 25,000/- to the plaintiff. 10. During pendency of this appeal by order dated 25.08.1992 it was ordered that the appellant should not be dispossessed from the land in question provided he deposits Rs. 20,000/- per year as mesne profit in the Court of Additional District Judge, Raisinghnagar and continue to deposit Rs. 20,000/- per year by end of 30th June every year; it was further ordered that the order regarding the payment of the amount of mesne profit deposited by the appellant in the Court will be passed at the time of final disposal of the appeal. 11. 20,000/- per year by end of 30th June every year; it was further ordered that the order regarding the payment of the amount of mesne profit deposited by the appellant in the Court will be passed at the time of final disposal of the appeal. 11. It is submitted by learned counsel for the appellant that the trial court fell in error in dismissing the suit filed by the plaintiff; it was contended that from the Sanat (Exhibit-A/1), it is apparent that the suit property ad measuring 25 Bigha 15 Biswa was transferred to five persons i.e. Sardar Singh, Kammo Bai, Harnam Singh, Avtar Singh and Kartar Kaur; the agreement Exhibit-1 was executed by Avtar Singh on his own behalf and on behalf of his brother and mother, accepted part consideration and handed over possession of the entire land to the plaintiff; the agreement was accepted/consented by Harnam Singh vide Exhibit-2 before the Panchayat and, therefore, it cannot be said that the Harnam Singh and Kammo Bai were not bound by the said agreement; it was further submitted that the trial court fell in error in coming to the conclusion that the suit in absence of the legal representatives of Jagtar Singh and Sardar Singh was not maintainable; further, the trial court was not justified in coming to the conclusion that agreement cannot be enforced partially; it was agreed that the judgment and decree passed by the trial court be set aside and the suit filed by the appellant may be decreed in toto. 12. In the alternative it was submitted that in any case to the extent of Avtar Singh ” s share, the trial court was not at all justified in dismissing the suit and, therefore, at least to the extent of Avtar Singh ” s share, the suit deserves to be decreed. 13. Reliance was placed on judgment of Hon ” ble Supreme Court in Kartar Singh v. Harjinder Singh & Ors. AIR 1990 SC 854 , Sardar Singh v. Smt. Krishna Devi & Anr. AIR 1995 SC 491 and A. Abdul Rashid Khan & Ors. v. P.A.K.A. Shahul Hamid & Ors. (2000) 10 SCC 636 : (2001 AIR SCW 2361). 14. 13. Reliance was placed on judgment of Hon ” ble Supreme Court in Kartar Singh v. Harjinder Singh & Ors. AIR 1990 SC 854 , Sardar Singh v. Smt. Krishna Devi & Anr. AIR 1995 SC 491 and A. Abdul Rashid Khan & Ors. v. P.A.K.A. Shahul Hamid & Ors. (2000) 10 SCC 636 : (2001 AIR SCW 2361). 14. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the appellant; it was submitted that Avtar Singh had not executed any agreement to sale; he had no right to execute agreement qua the land, which was not owned by him; Kammo Bai alias Gamo Bai and Harnam Singh never authorized him to execute the agreement to sale; the so called affirmation vide Exhibit-2 is neither proved nor the same is an affirmation of the agreement dated 14.02.1975 as claimed by the plaintiff; further the agreement was allegedly entered into at a point of time when Sanad itself has not been issued, the land was allotted to Sardar Singh, neither his legal representatives nor legal representatives of Jagtar Singh were impleaded as parties and, therefore, the suit was not maintainable and in view of the extent of share of Avtar Singh, the trial court was justified in denying specific performance even to the extent of his share; it was prayed that the appeal be dismissed with costs. 15. I have considered the rival submissions made by learned counsel for the parties and have perused the record of the trial court. 16. The issues which arise for determination in this appeal pertain to the right of plaintiff to get specific performance of agreement to sale dated 14.02.1975. 17. At the outset it may be noticed that the findings recorded by the trial court on issue Nos. 2 and 3 regarding execution of the agreement dated 14.02.1975 (Exhibit-1), handing over of possession of the suit land to the plaintiff-appellant and his readiness and willingness to perform his part of the contract, which have been recorded in favour of the plaintiff-appellant, have not been questioned by the defendants-respondents by way of filing any cross-objection and/or during course of their submissions; the possession of the appellant-plaintiff is further fortified from the nature of interim order dated 25.08.1992 passed by this Court, whereby, the respondents were restrained from dispossessing the appellant. 18. 18. From the record it is revealed that vide Exhibit-1 an agreement dated 14.02.1975 was executed by Avtar Singh favouring plaintiff Sohan Singh pertaining to land situated at Chak 4FD ad measuring 26 Bigha 10 Biswa claiming that the land belonged to his father, his father had died, he has authority from his mother and brother and accepted Rs. 25,000/- as advance with a total consideration of Rs. 45,000/-; it is claimed that thereafter a Panchayat was held on 08.08.1975 and a Panchayat Nama (Exhibit-2) was executed, whereby, Harnam Singh and Smt. Gamo, brother and mother of Avtar Singh affirmed the agreement dated 14.02.1975; whereafter, the present suit was filed on 28.03.1978; in the suit the plaintiff impleaded Avtar Singh, Harnam Singh and Smt. Kammo alias Gamo as parties-defendants and based on the plea as noticed hereinbefore including issuance of notice to the defendants, sought decree of specific performance and in the alternative sought refund of the advance. 19. The suit was resisted by defendants denying the affirmation of the agreement and taking plea of land being owned by Sardar Singh, who died after the Sanad was issued and the land having vested in his seven legal representatives including legal representatives of one pre-deceased son and the suit being bad for not impleading legal representatives of Sardar Singh and Jagtar Singh. 20. The document of title regarding the suit property is Sanad (Exhibit-A/1) dated 13.07.1976, the relevant portion whereof pertaining to demise reads as under:- ' WHEREAS by the notification of the Government of India in the Ministry of Rehabilitation No S III-5 (I & II dated 6-4-55 issued under Section 12 of the Displaced Persons (Compensation and Rehabilitation Act) of 1954 (44 of 1954) (hereinafter referred to as the said Act) the Central Government has acquired the evacuee property described in the schedule to the Sanad (here in after referred to as the said Property.) AND WHEREAS the said Property may be transferred to the said Shri Sardar Singh S/o Hira Singh and his family Members named below of 4-F.D. For the purposes of the compensation payable to him under the said Act. 1. Sardar Singh self 6 2. Gamo Bai Wife 7 3. Harnamsingh Son 8 4. Awtarsingh son Son 8 5. Kartar Kaur Daughter 10 AND WHEREAS the said .................... S/o.................... 1. Sardar Singh self 6 2. Gamo Bai Wife 7 3. Harnamsingh Son 8 4. Awtarsingh son Son 8 5. Kartar Kaur Daughter 10 AND WHEREAS the said .................... S/o.................... died on ..............at ...........................leaving behind him......................as his Successor-in-interest THE PRESIDENT IS HEREBY PLEASED TO transfer the right, title and interest acquired by the Central Government in the said Property to ........................... Sardar Singh S/o Hirasingh (hereinafter referred to as the transferee) subject to the following terms & Conditions:- ................. .................' 21. A bare look at the above title document would reveal that after noticing that the property may be transferred to Sardar Singh and his family members for the purpose of compensation payable to him and indicating names of the family members, the demise specifically indicates transfer of right, title and interest acquired by the Central Government in the property to Sardar Singh referred to as the transferee; further the Schedule indicates the killa numbers and area totaling to 25 Bigha 15 Biswa; a plain reading of the above Sanad leaves no manner of doubt that the land in question was transferred to Sardar Singh only and the names of the family members were indicated in the Sanad for the purpose of determination of compensation. 22. The above aspect is also fortified from the document Exhibit-A/2, which is a Parcha Lagan pertaining to the said land after the death of Sardar Singh, wherein, the land has been mutated in favour of the 14 legal representatives of Sardar Singh including 7 legal representatives of one pre-deceased son Jagtar Singh. 23. The above aspect regarding ownership of land also finds supports from the contents of the agreement, wherein, the execuant Avtar Singh has indicated that the land stands in the name of his father and is owned by him and as he has died, he was executing the agreement on behalf of his own self, brother and mother. 24. Consequently, from the above, it is apparent that the suit land was owned by Sardar Singh and after his death the same vested in his 14 legal representatives including seven legal representatives of his pre-deceased son. 25. 24. Consequently, from the above, it is apparent that the suit land was owned by Sardar Singh and after his death the same vested in his 14 legal representatives including seven legal representatives of his pre-deceased son. 25. The claim of the plaintiff that Smt. Gamo Bai and Harnam Singh affirmed and/or modified the agreement dated 14.02.1975 by Exhibit-2 also appears to be without much substance; the document Exhibit-2 is in Urdu and Exhibit-2/B its Hindi translation has been exhibited; a bare look at the said document indicates that the document provides Harnam Singh and Avtar Singh as ' first party ” and Sohan Singh (plaintiff) as ' second party ” and only shows presence of Gamo mother of Harnam and Avtar Singh and does not indicate her as party to the document; further, the document provides for refund of Rs. 15,000/- by first party to second party and on refund of the said amount land ad measuring 19 Bigha, 10 Biswa was to be handed over to Harnam Singh and Avtar Singh, on failure to pay the amount, the first party would have no right in the said land, 7 Bigha land has been given to Sohan Singh and ultimately provides that if the amount was not paid by 14th January, 1976, then as per the earlier agreement, the sale-deed would be registered in favour of Sohan Singh. 26. 26. It is claimed that the document contains thumb impressions of Gamo Bai, Avtar Singh and Harnam Singh; however, the plaint filed by the plaintiff is totally silent as to what happened subsequent to the document Exhibit-2 and as to whether the same were implemented, any amount was paid or not; the plaintiff cannot be permitted to simply rely on the above document only for the purpose of showing the consent without clarifying and/or making averments regarding the terms of the contract as to what transpired between the parties regarding the said terms; the very fact that the plaintiff has chosen not to make any averment whatsoever regarding the terms of the said document Exhibit-2 clearly shows that the said document was apparently not acted upon and has simply been relied on only for the purpose of supporting the execution of agreement Exhibit-1; even otherwise, the document Exhibit-2 simply indicates presence of Smt. Gamo Bai and even if taken at its face value, she cannot be bound by the terms of the agreement as she is not a party to the agreement. Further, the finding of the trial court that the document Exhibit-2 was wholly without consideration also cannot be said to be without substance as the plaintiff and all his witnesses have failed to state or indicate any consideration to Harnam Singh and/or Gamo Bai for execution of the said document so as to bound them to the terms of the said document, which as noticed hereinbefore appears to have not been acted upon by any of the parties. 27. In view of the above, the findings recorded by the trial court regarding the title of the land and effect of document Exhibit-2 do not call for any interference. 28. The trial court dismissed the suit, inter alia, on account of non-impleadment of all the legal representatives of Sardar Singh and Jagtar Singh. 29. 27. In view of the above, the findings recorded by the trial court regarding the title of the land and effect of document Exhibit-2 do not call for any interference. 28. The trial court dismissed the suit, inter alia, on account of non-impleadment of all the legal representatives of Sardar Singh and Jagtar Singh. 29. The dismissal of the suit on the said count does not appear to be well founded as in a suit for specific performance the necessary parties are the vendor and the vendee and no one else is required to be impleaded as a party; even in the event that the trial court came to the conclusion that the suit land was not wholly owned by the vendor Avtar Singh and he had no authority on behalf of Gamo Bai and Harnam Singh, to the extent of Avtar Singh ” s share, it cannot be said that the suit was not maintainable; as in a case of such nature grant of relief in a given case is permissible as held by Hon ” ble Supreme Court in the case of Kartar Singh ( AIR 1990 SC 854 ) (surpa) and A. Abdul Rashid Khan (2001 AIR SCW 2361) (supra). 30. From the above discussion, it is apparent that though the agreement to sale Exhibit-1 was entered into by Avtar Singh in favour of plaintiff Sohan Singh and possession of the suit property was handed over to him, Avtar Singh had no authority on behalf of his mother and brother, which was claimed in the agreement to sale and in any case he had no authority from four other legal representatives of Sardar Singh; further, vide Exhibit-2 Kamo Bai did not approve the agreement Exhibit-1 and the said document was never acted upon, inasmuch as, the plaintiff has not even sought specific performance of said agreement Exhibit-2 and, therefore, the agreement Exhibit-1 can at best be only confined to share of Avtar Singh. 31. Section 20 of the Specific Relief Act, 1963 provides that grant of relief of specific performance is discretionary and merely because it is lawful to grant such relief the Court is not bound to grant the same; it would be seen that Avtar Singh would be having 1/7th share in the land ad measuring 25 Bigha 15 Biswa, which comes to about 3 Bigha 12 Biswa of unpartitioned land. 32. 32. From the facts and circumstances of the present case, wherein, the land ad measuring 25 Bigha 15 Biswa was allotted to Sardar Singh as non-claimants under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the said land is a joint property of several persons and the vendor Avtar Singh has only 1/7th share ad measuring 3 Bigha 12 Biswa of land, in the facts and circumstances of the case, grant of relief of specific performance even qua the small share of Avtar Singh does not appear to be just and proper and, therefore, the appellant is not entitled to grant of any relief and the trial court cannot be said to have committed any illegality in refusing the relief even qua the share of Avtar Singh. 33. In view of the above, the appellant is not entitled to any relief. So far as the amount of mesne profit deposited by the appellant during the pendency of this appeal is concerned, the amount of mesne profit deposited by the appellant be disbursed to the respondents, which would be liable to be distributed among all the co-owners of the 25 Bigha 15 Biswa land. 34. In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed. No order as to costs. Appeal dismissed.