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2014 DIGILAW 89 (PNJ)

Lakhpati Devi v. Ram Pal Dahiya etc.

2014-01-13

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J. (Oral).:- This order shall dispose of two appeals bearing RSA No. 5158 of 2013 titled as Lakhpati Devi and another V/s. Ram Pal Dahiya etc. and RSA No. 5159 of 2013 titled as Lakhpati Devi and another V/s. Ram Pal Dahiya etc. However, the facts are being extracted from RSA No. 5158 of 2013. The plaintiff entered into an agreement to sell with Dalbir Singh on 11.05.2007 to purchase his house measuring 196 sq. yds. for a consideration of Rs. 8,50,000/- and paid Rs.4,50,000/- as earnest money. He was delivered possession of the property in dispute and they agreed that sale deed would be executed as and when registration of the Adarsh Colony, Tohana would be opened. It was also agreed that the defendants would pay loan amount raised against the property in dispute to the State Bank of India, Tohana branch before the registration of the sale deed. Dalbir Singh, unfortunately died on 07.08.2008. The plaintiff served legal notice upon the defendants on 22.09.2009 and 05.11.2009 for executing the sale deed on 12.11.2009 and remained present in the office of Sub Registrar, Tohana with the balance consideration and expenses etc. but the defendants did not turn up though the plaintiff got his presence marked by way of affidavit. He also convened Panchayat on 21.11.2009 where the defendants promised that they would get ‘No Objection Certificate’ from the Bank and would execute the sale deed in the last week of December, 2009 but still they did not perform their part of contract and instead of executing the sale deed, threatened to dispossess the plaintiff. The defendants have alleged that Dalbir Singh died because he was a habitual drunkard. They denied the execution of the agreement and receipt of earnest money by him. It is further alleged that Dalbir Singh was serving in the Market Committee, Jakhal and got government accommodation in the month of April, 2007 whereas the plaintiff was a tenant in the house in dispute and that he might have procured agreement to sell from Dalbir Singh when he was under the influence of liquor. Defendant No. 4 also filed its reply. On the pleadings of the parties, as many as six issues were framed by the learned trial Court. Defendant No. 4 also filed its reply. On the pleadings of the parties, as many as six issues were framed by the learned trial Court. After receiving oral as well as documentary evidence, it was categorically held that the agreement to sell was in fact executed by Dalbir Singh in favour of the plaintiff who was ready and willing to perform part of his contract. However, the suit was dismissed on the ground that agreement to sell (Ex. PW1/A) cannot be received in evidence because it was unregistered and relied upon decision of this Court in the case of Gurbachan Singh V/s. Raghubir Singh 2010 (3) C.C.C. 731. The learned trial Court, otherwise directed defendants to return the earnest money received from the plaintiff along with interest @ 18% per annum from the date of payment within a period of two months. 2. The plaintiff filed Civil Appeal No. 40 against the judgment and decree of the trial Court against the dismissal of the suit wherein prayer was made for execution of the sale deed, whereas the defendants No.1 and 2 filed civil appeal No. 39 only to challenge the interest awarded by the learned trial Court to the plaintiff on the reimbursement of earnest money. 3. Admittedly, the defendants No. 1 and 2 did not challenge the correctness of the finding of the trial Court regarding due execution of agreement to sell and readiness and willingness of the plaintiff. 4. The first appellate Court decided both the appeals together and while relying upon the Division Bench judgment of this Court in the case of Ram Kishan and another Versus Bijender Mann alias Vijender Mann and others, [2012(4) Law Herald (P&H) 3537 : 2012(2) Land L.R. 604 (P&H) ] : 2013 (1) PLR 195 held that the plaintiff was entitled to maintain the suit on the basis of unregistered agreement to sell. Since the judgment and decree of the trial Court was reversed and the suit of the plaintiff was decreed for specific performance of the agreement to sell, the appeal filed by the defendants No. 1 and 2 in respect of interest awarded by the trial Court on the reimbursement of the earnest money was also dismissed. 5. Since the judgment and decree of the trial Court was reversed and the suit of the plaintiff was decreed for specific performance of the agreement to sell, the appeal filed by the defendants No. 1 and 2 in respect of interest awarded by the trial Court on the reimbursement of the earnest money was also dismissed. 5. Learned counsel for the appellants has submitted that RSA No. 5158 of 2013 has been filed against the judgment and decree of the learned appellate Court whereby the appeal filed by the plaintiff has been allowed and RSA No. 5159 of 2013 has been filed against the judgment and decree of the appellate Court whereby the issue with regard to payment of interest to the plaintiff has been upheld. 6. Learned counsel for the appellant has submitted that the appellate Court has erred in not re-appreciating the evidence with regard to the due execution of agreement to sell. He also submitted that the defendants had no occasion to challenge the finding recorded by the trial Court with regard to due execution of agreement to sell and readiness and willingness of the plaintiff because the suit filed by the plaintiff was dismissed and decree was drawn against the plaintiff whereas the defendants could have filed the appeal only, if some decree had been passed against them, in terms of Section 96 of the Code of Civil Procedure (for short ‘CPC’). In this regard, he has referred to a Division Bench judgment of Madras High Court in the case of Corporation of Madras V/s. P.R. Ramchandriah and others AIR 1977 Madras 25 and a judgment of this Court in the case of Ved Parkash V/s. Balram Dass alias Balram Singh 1993(3) PLR 420 to contend that if the suit is dismissed as a whole, the defendants have no right to file appeal to challenge the findings on some issues recorded in favour of the plaintiff. 7. I have heard learned counsel for the appellant and perused the available record. The plaintiff has proved due execution of the agreement to sell and his readiness and willingness to perform his part of contract but his suit primarily failed on the legal issue of registration of the agreement to sell in view of the Single Bench judgment of this Court in Gurbachan’s case (supra). The plaintiff has proved due execution of the agreement to sell and his readiness and willingness to perform his part of contract but his suit primarily failed on the legal issue of registration of the agreement to sell in view of the Single Bench judgment of this Court in Gurbachan’s case (supra). However, the plaintiff was not satisfied with the decision of the trial Court and filed the appeal for the purpose of execution of the sale deed but the defendants were only aggrieved regarding payment of interest on the earnest money. The learned counsel for the appellant is not correct that the defendants could not have challenged the finding recorded by the trial Court on the issue of due execution of agreement to sell and readiness and willingness of the plaintiff because such finding could have been challenged by the defendants/appellants by filing cross objections under Order 41 Rule 22 CPC. Moreover, it has been found as a fact by the appellate Court that plaintiff had taken earnest money from his father Dhup Singh which he has withdrawn from his saving account (pass book Ex. PW2/A) is duly proved by Jai Prakash PW2. It has also been proved by Manager (PW4) that house loan advanced to Dalbir Singh against property in dispute by pledging title of the property. The statement of account (PW4/A) also showed that sum of Rs.2,95,000/- was deposited by Dalbir Singh on 11.05.2007 in his account with State Bank of India, Tohana which further shows that he had utilized the amount of earnest money received from the plaintiff. Thus, it cannot be said that agreement to sell was the result of any kind of undue influence by the plaintiff over Dalbir Singh who was allegedly drunkard or there was any inadequacy of sale consideration. 8. Once the defendants had failed to challenge the validity of the finding of the trial Court with regard to due execution of agreement to sell and readiness and willingness on the part of plaintiff to perform his part of contract by way of appeal much less cross objection, though they had filed an appeal qua payment of interest, defendants cannot urge before this Court that there was error on the part of first appellate Court for not reappreciating the evidence with regard to due execution of the agreement to sell. No further point has been raised. 9. No further point has been raised. 9. In view of the aforesaid discussion, I do not find any merit in the present appeals nor do I find any substantial question of law involved therein for the purpose of interference. Hence, both the appeals are hereby dismissed. ----------------