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2014 DIGILAW 974 (PNJ)

Joginder Singh Grewal v. Gurmeet Singh Grewal

2014-06-30

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J.: - This petition is directed against order dated 25.10.1997 of the Trial Court by which application filed by the plaintiff for proving the agreement dated 20.11.1980 executed between Dr. K.C.Khosla and Malwinder Singh in respect of the suit property by way of secondary evidence, has been dismissed. 2. At the time when notice in this petition was issued, the proceedings before the Trial Court were ordered to be carried on, but passing of the final order was stayed. 3. Learned counsel for the petitioner has submitted that the Improvement Trust, Ludhiana allotted a shop-cum-flat no.39, measuring 172.50 sq. yards to one Sarwan Singh Grewal. After the death of Sarwan Singh Grewal, his three sons, namely, Surinder Singh, Gurdeep Singh and Gurmeet Singh Grewal (respondents no.2 to 4) became the owners. They executed an agreement to sell of the suit property on 13.04.1979 in favour of Dr. K.C.Khosla for Rs.26,650/- and delivered possession to him after receiving the whole sale consideration. Dr. K.C.Khosla also executed an agreement to sell on 20.11.1980 of the suit property in favour of Malwinder Singh, father of Gurmeet Singh Grewal-respondent no.1, for an amount of Rs.69,000/- and handed over possession to him. Malwinder Singh, on the basis of the agreement dated 20.11.1980, executed an agreement on 06.01.1984 to sell the suit property to the plaintiff-petitioner for Rs.1,44,000/-. Malwinder Singh is the real brother of the plaintiff-petitioner. At the time of agreement by Malwinder Singh in favour of the plaintiff-petitioner, the suit property was on rent with one M/s Selection Appliances Pvt. Ltd., which was got vacated by the plaintiff-petitioner and rented out to one M/s Raja Sweets. On 08.07.1986, the Improvement Trust, Ludhiana, executed sale deed of the suit property in favour of defendants-respondents no.2 to 4, i.e. sons of Sarwan Singh Grewal, being the heirs of the original allottee. On 15.05.1990, respondent no.1-Gurmeet Singh Grewal got executed the sale deed of the suit property in his favour from defendants-respondents no.2 to 4 through their attorney Paramjit Kaur. 4. It is claimed by the petitioner that the said transaction dated 15.05.1990 is a sham transaction because respondents nos.2 to 4 had already sold the suit property to Dr. K.C.Khosla on 13.04.1979 who, in turn, sold it to Malwinder Singh, father of respondent no.1, vide agreement to sell dated 20.11.1980. 4. It is claimed by the petitioner that the said transaction dated 15.05.1990 is a sham transaction because respondents nos.2 to 4 had already sold the suit property to Dr. K.C.Khosla on 13.04.1979 who, in turn, sold it to Malwinder Singh, father of respondent no.1, vide agreement to sell dated 20.11.1980. Respondents no.2 to 4 were left with no right, title or interest in the suit property and for this reason, in the sale deed dated 08.07.1986 executed by the Improvement Trust, Ludhiana, Malwinder Singh, father of respondent no.1, had signed as a buyer. It is further averred that since the suit property was already sold by Dr. K.C.Khosla, therefore, respondents no.2 to 4 had executed three different special as well as general power of attorneys dated 18.12.1980, 23.5.1981 and 29.5.1981 in favour of Smt. Paramjit Kaur wife of Malwinder Singh and mother of respondent no.1 and by taking benefit of the said attorneys, respondent no.1 got executed sale deed dated 15.05.1990 of the suit property in his favour, though it was well within his knowledge that after executing the agreement to sell dated 13.04.1979 by defendants-respondents no.2 to 4 in favour of Dr. K.C.Khosla, agreement to sell dated 20.11.1980 was executed by Dr. K.C.Khosla in favour of his father Malwinder Singh who, in turn, sold it to the plaintiff-petitioner through agreement to sell dated 06.01.1984. On 06.01.1984, defendants-respondents no.2 to 4 or Malwinder Singh was left with no right, title or interest in the suit property. On knowing about the sale deed dated 15.05.1990, the plaintiff-petitioner filed suit for specific performance against respondents no.2 to 4 on the basis of the agreement to sell dated 06.01.1984, executed by Malwinder Singh in his favour and also prayed for permanent injunction not to dispossess him from the suit property. 5. Respondents no.1 and 2 to 4 filed their separate written statements. Respondent no.1 has denied the three agreements dated 13.04.1979, 20.11.1980 and 06.01.1984 relating to the suit property. As per his case, respondents no.2 to 4 were owners of the suit property from whom he had purchased it for a sum of Rs.1,70,000/- vide sale deed no.1923 dated 15.05.1990 executed by Paramjit Kaur, mother of respondent no.1 as attorney of respondents no.2 to 4. 6. As per his case, respondents no.2 to 4 were owners of the suit property from whom he had purchased it for a sum of Rs.1,70,000/- vide sale deed no.1923 dated 15.05.1990 executed by Paramjit Kaur, mother of respondent no.1 as attorney of respondents no.2 to 4. 6. In their separate written statement, respondents no.2 to 4 have admitted that vide agreement to sell dated 13.04.1979, they had sold the property in dispute to Dr. K.C.Khosla and received Rs.26,650/-. 7. On the pleadings of the parties, various issues were framed by the Trial Court. 8. It is the case of the petitioner that in order to prove the agreement to sell dated 20.11.1980 executed by Dr. K.C.Khosla in favour of Malwinder Singh, the executant of the said agreement was required to be examined to whom the agreement is required to be put. The petitioner has got only photostat copy of the agreement dated 20.11.1980 as the original is in possession of respondent no.1 being the son/heir of deceased Malwinder Singh, who was the purchaser as per the agreement dated 20.11.1980. It is submitted that in view thereof, an application was filed under Sections 65 and 66 of the Indian Evidence Act, 1872 (here-in-after referred to as the “Act”) for allowing the petitioner to lead secondary evidence of the agreement dated 20.11.1980 as the original was not available with him being in possession of respondent no.1, but the said application has been dismissed illegally. 9. Counsel for the petitioner has argued that as per Section 65 of the Act, the party can lead secondary evidence of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the persons against whom the document is sought to be proved. It is further submitted that since the original agreement to sell dated 20.11.1980 was in possession of Malwinder Singh and after his death, is in possession of his son, i.e. respondent no.1 who has refused to produce the said document in the Court on the service of notice, served under Section 66 of the Act, therefore, the Trial Court has committed a patent error in declining the prayer of the petitioner. 10. I have heard learned counsel for the petitioner and perused the record. 11. 10. I have heard learned counsel for the petitioner and perused the record. 11. The petitioner is harping upon the agreement to sell dated 20.11.1980 alleging that it has been executed by Dr. K.C.Khosla in favour of Malwinder Singh, deceased father of respondent no.1, and he is in possession of a photostat copy thereof. The Trial Court, while dismissing the application, has observed that respondent no.1 has categorically denied the execution of the agreement with Dr. K.C.Khosla and it was alleged that it is forged and fabricated. 12. The questions, thus, arises as to in what circumstances, secondary evidence could be led by producing a photostat copy of the agreement especially when its existence has been specifically denied and whether the petitioner, at the first instance, is required to prove, by leading cogent evidence, the existence of the document before he could make a prayer for producing the same in secondary evidence on the ground that it has been deliberately not brought before the Court by the other side who is in possession thereof. 13. Section 63 of the Act lays down as to what can be termed as secondary evidence and Section 65 lays down in which situations, secondary evidence can be led. The petitioner has claimed that respondents no.2 to 4 had transferred the land in question to Dr. K.C.Khosla vide agreement dated 13.04.1979, who had further transferred the same by way of agreement dated 20.11.1980 to Malwinder Singh and he further agreed to sell it by way of agreement dated 06.01.1984 to the petitioner. The petitioner is trying to join the missing link of agreement by Dr. K.C.Khosla with Malwinder Singh who had agreed to sell the property in dispute to the petitioner on the basis of the agreement dated 06.01.1984, which is sought to be enforced in the present suit for specific performance. As a matter of fact, even if respondents no.2 to 4 had admitted to have transferred the land in dispute to Dr. K.C.Khosla by way of agreement, it does not clothe Dr. As a matter of fact, even if respondents no.2 to 4 had admitted to have transferred the land in dispute to Dr. K.C.Khosla by way of agreement, it does not clothe Dr. K.C.Khosla with the ownership rights as the agreement to sell by itself is not a document of transfer of title, as held in the case of Suraj Lamp and Industries Private Limited through Director v. State of Haryana and another, [2011(4) Law Herald (P&H) 2881 (SC) : 2011(5) Law Herald (SC) 3937 : 2012(1) Land L.R. 430 (SC)] : (2012) 1 Supreme Court Cases 656. Once Dr. K.C. Khosla had not become the owner as there is no sale deed in his favour, any transfer by him in favour of Malwinder Singh by way of agreement to sell dated 20.11.1980 and the agreement dated 06.01.1984 by Malwinder Singh in favour of the petitioner is of no consequence because Malwinder Singh had not become the owner of the property as there was no sale deed in his favour which was eventually executed by the Improvement Trust, Ludhiana in favour of respondents no.2 to 4 in the year 1986, who further executed the sale deed in favour of defendant no.1 on 15.05.1990, therefore, the suit on the basis of agreement to sell dated 06.01.1984, purported to have been executed by Malwinder Singh in favour of the petitioner, could not have proceeded as Malwinder Singh was not the owner of the property on that day only on the basis of the agreement to sell, alleged to have been executed in his favour by Dr. K.C.Khosla on 20.11.1980. 14. Be that as it may, respondent no.1 has categorically denied execution of any such agreement dated 20.11.1980 by Dr. K.C.Khosla to Malwinder Singh and in view of his denial, the petitioner had to prove the existence of the document which is not being allegedly produced by defendant no.1 being the son of Malwinder Singh. K.C.Khosla on 20.11.1980. 14. Be that as it may, respondent no.1 has categorically denied execution of any such agreement dated 20.11.1980 by Dr. K.C.Khosla to Malwinder Singh and in view of his denial, the petitioner had to prove the existence of the document which is not being allegedly produced by defendant no.1 being the son of Malwinder Singh. The petitioner cannot be allowed to produce the xerox copy of the agreement as it would not advance his case any further as even the vendor of Malwinder Singh had not become the owner of the property by virtue of the agreement dated 13.04.1979 and the entire chain is broken only because of the reason that the property in dispute had been sold for the first time in the year 1986 by the Improvement Trust, Ludhiana to respondents no.2 to 4 who had become the owner thereof and had sold it to respondent no.1 on 15.05.1990. 15. In view of the aforesaid discussion, I do not find any merit in the present revision petition and hence, the same is hereby dismissed. ---------0.B.S.0------------ —————————