Research › Search › Judgment

Punjab High Court · body

2018 DIGILAW 194 (PNJ)

Jagdeep Singh v. Chuhar Singh

2018-01-17

ANIL KSHETARPAL

body2018
JUDGMENT : Anil Kshetarpal, J. Defendant-appellant is in the regular second appeal against the judgment passed by the learned first appellate court. 2. Undisputed facts are that Uttam Singh, father of the plaintiff (since deceased) was a tenant on the land in dispute measuring 9 Bigha and 15 Biswas. The defendant-appellant agreed to sell the aforesaid land to late Shri Uttam Singh, father of the plaintiff, for a sum of Rs.6500/-, vide agreement to sell dated 15.5.1978. On execution of the agreement to sell, the defendant-appellant received Rs.2,000/- as earnest money. The father of the plaintiff was already in possession of the aforesaid land as tenant, therefore, he continued in possession thereof. 3. The agreement to sell is Ex.P1 on the file. It is provided in the agreement to sell that when the defendant-appellant got the mutation of the land sanctioned in his favour, he would inform Shri Uttam Singh, father of the plaintiff, about the sanction of mutation. It is also provided that sale-deed was to be executed by the defendant within 15 days of intimation of sanction of mutation in his favour. 4. The defendant-appellant claimed that mutation was sanctioned in his favour on 11.7.1986 and he sent a notice under postal certificate to the father of the plaintiff for inviting him to come and execute the sale-deed. Uttam Singh, father of the plaintiff, expired on 30.12.1986. Defendant-appellant filed a suit for possession on the basis of ownership. On receipt of notice, the plaintiff, legal heir of Uttam Singh, filed a suit for specific performance of the agreement to sell. 5. This appeal is arising out of the aforesaid suit for possession by way of specific performance of the agreement to sell. The learned trial court dismissed the suit after recording the following findings:- (i) Letter dated 1.8.1986 sent through UPC is deemed to have been delivered to Shri Uttam Singh. (ii) Uttam Singh was not ready and willing to perform his part of the contract as he had already received Rs.33,000/- by entering into further agreement to sell with one Shri Harbhajan Singh. This fact reflects poor financial condition of Uttam Singh. (iii) The plaintiff, even after service of notice by the defendant for calling upon him to execute the sale deed within a period of 15 days, did not attend the office of Sub-Registrar. This fact reflects poor financial condition of Uttam Singh. (iii) The plaintiff, even after service of notice by the defendant for calling upon him to execute the sale deed within a period of 15 days, did not attend the office of Sub-Registrar. (iv) The plaintiff did not step into the witness box and only his attorney appeared who belongs to other district. (v) The agreement to sell entered by the plaintiff in favour of Harbhajan Singh is in violation of the agreement to sell with defendant-appellant-Jagdeep Singh dated 15.8.1978. (vi) The suit is bad for non-joinder of parties as the plaintiff has although claimed Will in his favour by his father Uttam Singh. However, the aforesaid Will has not been proved and the plaintiff has not impleaded his mother and sister as party. 6. The learned first appellate court in appeal has reversed the findings of the learned trial court after re-appreciating the evidence available on the file. The first appellate court has held that the agreement to sell (a contract between the parties), provided that the defendant-appellant would send the information to the father of the plaintiff after getting the mutation sanctioned in his favour. The letter sent under postal certificate does not carry presumption of delivery and no evidence has been produced on the file to prove that the letter was infact received by Shri Uttam Singh. The first appellate court has further recorded the finding that the plaintiff was ready and willing to perform his part of the contract as he had sufficient money having received Rs.33,000/- from Harbhajan Singh, vide agreement to sell dated 2.6.1982 Ex.D2 on the file. The learned first appellate court further held that the other reasons given by the learned trial court are not correct. 7. I have heard the learned counsel for the parties at length and with their able assistance gone through the impugned judgments passed by the courts below. 8. While admitting this appeal on 21.8.2009, following substantial questions of law were framed by this Court:- i. Whether the impugned judgment and decree of the Ld. 1st Appellate Court whereby it has set aside the well reasoned finding of the Ld. Trial Court is perverse, illegal and without application of mind and as such is liable to be set-aside? ii. While admitting this appeal on 21.8.2009, following substantial questions of law were framed by this Court:- i. Whether the impugned judgment and decree of the Ld. 1st Appellate Court whereby it has set aside the well reasoned finding of the Ld. Trial Court is perverse, illegal and without application of mind and as such is liable to be set-aside? ii. Whether the agreement to sell regarding part of the co-parcenary property which is not in the interest of the family can be enforceable through a suit for specific performance? 9. As noticed above, the agreement to sell dated 15.5.1978 clearly stipulates that the defendant-appellant would get the property mutated in his favour and thereafter inform father of the plaintiff about the same and the sale deed would be liable to be registered 15 days thereafter. No doubt, it is the case of the defendant that mutation was sanctioned on 11.7.1986 and late Shri Uttam Singh was sent a notice under the postal certificate dated 1.8.1986, intimating sanction of the mutation. However, receipt of the aforesaid notice is not proved on the file. 10. Section 27 of the General Clauses Act enables the Court to draw a presumption of delivery of the letter/communication sent through registered post provided the letter has been sent by registered post at a correct address and for a period of 30 days the registered letter has not been received back undelivered. However, such presumption of delivery of letter/communication sent through post is not available to the letters sent under postal certificate. The letters sent under postal certificate at the most certifies that the letter has been sent through post. Section 27 of the General Clauses Act, 1897 is extracted as under:- “27. Meaning of service by post. W here any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expression “ “serve” or either of the expression “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 11. A careful reading of the agreement to sell dated 15.5.1978 establishes that on sanction of the mutation, Late Shri Uttam Singh was required to be informed, but no evidence is available that Uttam Singh was ever informed. 12. Still further, the learned first appellate court has relied upon the statement of Inderpal Singh, DW-3 (son of the defendant), who has deposed that they were not ready to get the sale-deed executed as the plaintiff had executed an agreement to sell with Harbhajan Singh. The correctness of such statement is not being disputed before this Court. 13. A careful reading of the agreement to sell dated 15.5.1978 does not show any restriction placed on Uttam Singh or his successor to not further execute an agreement to sell or sale of the property. 14. There was no statutory bar on the sale of the property by Uttam Singh. Such being the position, the agreement to sell further executed by the plaintiff-respondent (agreement holder) cannot be declared to be in violation of the agreement to sell dated 15.5.1978. 15. It is the case of the plaintiff-respondent that he came to know about the sanction of the mutation in favour of the defendant-appellant in November 1988 and he got served a registered notice upon the defendant through registered post on 4.11.1988. However, the defendant-appellant did not come forward to execute the sale-deed. 16. It has also come in the evidence that Uttam Singh was only paid a sum of Rs.2000/-, whereas he had already received Rs.33,000/- from Harbhajan Singh, therefore, it cannot be concluded that the plaintiff was not having sufficient source to pay the amount of balance sale consideration i.e.Rs.4500/-. 17. In view of foregoing discussion, the answer to the first substantial question of law posed hereinabove is negative and not in favour of the appellant. 18. Learned counsel for the appellant in the last submitted that the property was co-parcenary and therefore, without legal necessity Karta could not have sold the property. 19. In the opinion of this Court, such plea is not available to the executants i.e. Karta. Even otherwise, the learned first appellate court has considered this submission. In fact, there was division between the family members as the property in dispute had fallen to the share of the defendant-appellant. Still further, in the partition, women of the family were also given their shares. Even otherwise, the learned first appellate court has considered this submission. In fact, there was division between the family members as the property in dispute had fallen to the share of the defendant-appellant. Still further, in the partition, women of the family were also given their shares. Therefore, the learned first appellate court has concluded that the property even if it was co-parcenary ceased to be co-parcenary after partition. 20. In this view of the matter, the answer of the second question as framed above is also in negative and not in favour of the appellant. The learned counsel for the appellant has further submitted that the suit was barred by limitation. The learned counsel for the respondent-plaintiff has pointed out that before the learned trial court the issue of limitation was not pressed. In any case, suit cannot be held to be barred by limitation. As per the agreement to sell, limitation for execution and registration of the sale deed was to lapse after a period of 15 days from the date information was given to the plaintiff or to his father regarding sanctioning of the mutation. Once, the defendant has failed to prove the aforesaid information, the suit cannot be held to be barred by limitation. 21. In view of the above, there is no good ground to interfere in the findings recorded by the learned first appellate court and accordingly, the present regular second appeal is dismissed. 22. However, the balance sale consideration of Rs.4500/-, if not already paid by the plaintiff-respondent to the defendant-appellant, then it shall be payable along with interest from the date of filing of the suit, at the prevalent rate of interest payable by a nationlised bank on fixed deposits.