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2019 DIGILAW 520 (HP)

Lekh Ram (since deceased) through his legal heir Suresh Kumar v. Krishan Chand (since deceased) through his legal heir

2019-04-30

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the appellants herein against the concurrently recorded verdicts rendered by both the learned courts below, wherethrough, the plaintiffs' suit for rendition of a decree for permanent prohibitory injunction, vis-a-vis, the suit khasra number, and, also for rendition, of, a decree, for possession, by way of specific performance of contract, hence stood dismissed. 2. Briefly stated the facts of the case are that the plaintiff claimed a relief of permanent prohibitory injunction, vis-a-vis, the suit land detailed in the plaint, as also, prayed for rendition of a decree for mandatory injunction directing defendant No.1 to get the sale deed executed in favour of the plaintiff with respect of his share 20/59, measuring 4 kanal out of the suit land on the basis of agreement of sale dated 12.7.2002, and, in the alternative, the plaintiff had claimed a decree for possession by way of specific performance of the said agreement to sell. It has been pleaded by the plaintiff that defendant No.1 was owner of the suit land which adjoins to the abadi of the plaintiff. The plaintiff approached defendant No.1 for sale of a portion of the same upon which defendant No.1 agreed to sell 20/59 shares measuring 4 marlas out of the suit land, and, thereby defendant No.1 executed agreement to sell the suit land on 12.7.2002 and thereby agreed to sell the said land in favour of plaintiff for a consideration of Rs.32,000/- out of which, the plaintiff paid Rs.30,000/- to defendant No.1 on 12.7.2002 in the presence of witnesses and as per the terms and conditions of the said agreement to sell, the possession of the land agreed to be sold in favour of the plaintiff had already been delivered to the plaintiff, wherein the plaintiff had sown different kinds of vegetables at the spot. Under the said agreement to sell, the plaintiff was required to execute the sale deed on or before 12.7.2003 on receipt of balance sale consideration of Rs.2000/- at the time of attestation of the sale deed. Under the said agreement to sell, the plaintiff was required to execute the sale deed on or before 12.7.2003 on receipt of balance sale consideration of Rs.2000/- at the time of attestation of the sale deed. The plaintiff remained always willing to perform his part of the agreement and requested defendant No.1 to execute the sale deed after accepting the remaining sale consideration of Rs.2,000/-, but surprisingly, defendant No.1 sold his 25/59 shares measuring 5 kanal out of the suit land in favour of defendant No.2 vide sale deed registered on 27.3.2003 and both the defendants threatened to dispossess him from the suit land, hence, he was compelled to file the suit and claimed the said relief. 3. The defendants contested the suit, and, filed separate written statements to the plaint. Defendant No.1 in his written statement taken preliminary objections, qua maintainability, estoppel, locus standi, cause of action etc. On merits, denied the execution of agreement to sell dated 12.7.2002 and termed the same to be the result of fraud and fabrication in connivance with the witnesses and the scribe thereof. Defendant No.1 disputed the alleged delivery of possession of the said land in favour of the plaintiff and as well as the receipt of sale consideration of Rs.30,000/- by him and prayed for dismissal of the suit. 4. Defendant No.2 in his written statement instituted to the plaint, has taken preliminary objections qua maintainability, cause of action etc. On merit, he pleaded that he is a bonafide purchaser of the land purchased by him to the extent of 25/59 shares measuring 5 kanal out of the suit land for consideration of Rs.83,000/- vide sale deed of 27.3.2003 and with this he prayed for dismissal of the suit. 5. The plaintiff filed replication to the written statement (s) of the defendant (s), wherein, he denied the contents of the written statement (s) and re-affirmed and re-asserted the averments, made in the plaint. 6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the defendant No.1 executed agreement to sale dated 12.7.2002 in favour of plaintiff, as alleged? OPP. 2. Whether the plaintiff is entitled for specific performance as claimed? OPP. 3. Whether the plaintiff is entitled for permanent injunction, as prayed? OPP. 4. Whether the plaintiff i s entitled for possession, as prayed? OPP. 5. Whether the defendant No.1 executed agreement to sale dated 12.7.2002 in favour of plaintiff, as alleged? OPP. 2. Whether the plaintiff is entitled for specific performance as claimed? OPP. 3. Whether the plaintiff is entitled for permanent injunction, as prayed? OPP. 4. Whether the plaintiff i s entitled for possession, as prayed? OPP. 5. Whether the suit is not maintainable? OPD. 6. Whether the plaintiff is estopped by his act and conduct? OPD. 7. Whether the plaintiff has no locus standi? OPD. 8. Whether the plaintiff has no cause of action? OPD. 9. Whether the suit is not properly valued? OPD. 10. Whether the defendant No.2 is a bonafide purchaser, as alleged? OPD-2 11. Relief. 7. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant (s) herein. In an appeal, preferred therefrom, by, the plaintiff/appellant herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed, the, findings recorded by the learned trial Court. 8. Now the plaintiff (s)/appellant (s) herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assail the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 14.8.2007, this Court, admitted the appeal instituted by the plaintiff (s)/appellant (s), against, the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial questions of law:- 1. Whether the impugned judgment passed by learned First Appellate Judge is the result of total misreading and misappreciation of pleadings, material and evidence adduced on record by the parties and thus, the resultant findings and conclusion drawn by the learned First Appellate Judge are wrong and perverse? 2. Whether the plaintiff is entitled for decree of permanent prohibitory and mandatory injunction or in the alternative for decree of specific performance of agreement to sell against the defendant (respondent), when due execution of agreement to sell dated 12.07.2002 (Ex.PW1/a) whereby the defendant No.1 had agreed to sell his 20/59 share in the suit land measuring 4 kanals was proved and after having received part payment of Rs.30,000/- out of total sale consideration of Rs.32,000/- had handed over and delivered possession of suit land to plaintiff on the date of execution of the agreement, was established on record? 3. 3. Whether the suit filed by the plaintiff was not maintainable when while seeking reliefs of decree of permanent prohibitory and mandatory injunction, he had also made an alternative prayer for grant of decree of specific performance and for such relief, he ought to have been called upon to make good deficiency of court fee within reasonable time, especially when the issue No.9 framed by Ld. Trial Court as regards the improper valuation f the suit was not pressed by defendants. 4. Whether the impugned judgment and decree-in-appeal passed by learned First Appellate Judge, are sustainable in the eyes of law? Substantial questions of Law No.1 to 4: 9. The learned counsel for appearing for the plaintiff/appellant has rested his submission qua the declining of relief, by both the learned courts below, being, both insagacious, and, improper, by his canvassing (a) that with Ex.PW1/1, being proven to be validly, and, duly executed, (b) AND with the possession, of, the suit land, in consonance therewith, hence, being obtained, vis-a-vis, the suit khasra number, by the plaintiff, (c) thereupon, the relief qua rendition of decree of permanent prohibitory injunction, and, also for rendition, of, relief qua specific performance of agreement to sell, borne in Ex.PW1/A, hence, being renderable qua the plaintiff. However, for the reasons to be assigned hereinafter, all the afore submissions lose their vigour, (d) as, a reading of the crossexamination of the plaintiff, discloses qua Ex.PW1/1 being, a, fabricated document, and, it being obtained by fraud, and, mis-representation. The afore admission made by the plaintiff, during, the course of his cross-examination, does obviously, spur an inevitable inference qua the espoused equitable relief of permanent prohibitory injunction, and, also the canvassed equitable relief, for, rendition of a decree for specific performance, of, the afore agreement to sell, both being not grantable, to the plaintiff, as the afore admission (s) carry, firm, concomitant effect (s) qua the plaintiff not coming with clean hands, (f) thereupon, the requisite tenet of equity enjoining its working qua him, only, upon, his coming to the court with clean hands. Contrarily, hence with the plaintiff, rather not coming to the court with clean hands, thereupon, he is debarred to claim both the afore equitable reliefs. 10. Contrarily, hence with the plaintiff, rather not coming to the court with clean hands, thereupon, he is debarred to claim both the afore equitable reliefs. 10. Apart from the above, the further infirmity gripping Ex.PW1/1, and, the further factum qua its being un-enforceable, at the instance of the plaintiff, to, hence enable her, to on its anvil rather claim, the afore reliefs, is, marshalled from the factum, of, Ex.PW1/1 though being enjoined, to, be compulsorily registered, through, an amendment made, to the Indian Registration, Act, wherethrough sub-section 1 (A), to Section 17, was added, to Section 17 of the afore Act, provisions whereof read as under:- “17 (1-A). The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882, shall be registered, if they have been executed or or after the commencement of the Registration and other related Laws (Amendment) Act, 2001, and, if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said Section 53-A.” (a) and, when the afore amendment was given force, and, life from the year 2001, and, with the afore agreement borne in Ex.PW1/A, rather being executed subsequent thereto, thereupon, when it was enjoined to be compulsorily registered, and, when evidently, it, rather remained unregistered, thereupon, resultantly no reliefs, on its anvil, can be claimed by the plaintiff. 11. Even otherwise, Ex.D-1, is, a registered deed of conveyance, executed on 27.3.2003, hence, inter se defendant No.1, and, defendant No.2. The factum of its valid, and, due execution, is, evidently proven. Since, defendant No.2 has thereunder acquired, a, valid title to the suit land, and, has, also proven qua his being bonafide purchaser, for value or for consideration, vis-a-vis, the suit property, (a) besides when the afore factum probandum hence for validating Ex. D-1 remained unshred, of its, efficacy, thereupon, the entire edifice of the plaintiff's claim errected, upon, Ex.PW1/1, hence, for rendition of decrees, vis-a-vis, the afore reliefs is legally frail, and, does inevitably suffer collapse. D-1 remained unshred, of its, efficacy, thereupon, the entire edifice of the plaintiff's claim errected, upon, Ex.PW1/1, hence, for rendition of decrees, vis-a-vis, the afore reliefs is legally frail, and, does inevitably suffer collapse. Furthermore, with the plaintiff, during, the course of his being subjected to crossexamination, by the counsel for the defendant, (b) admitting qua his being, not, in possession of the suit land, thereupon, when the relief of injunction is renderable only, upon, the plaintiff, rather being evidently in possession of the suit land, (c) whereas, the afore admission made by the plaintiff, during, the course of his being subjected to crossexamination, by the counsel for the defendant, does bely, the afore propagation (s), (d) thereupon, the declining, of, the afore relief (s) to the plaintiff, under concurrent decrees, rendered by both the learned courts below, is, both befitting, and, meritworhty. 12. The above discussion, unfolds, that the conclusions as arrived by both the learned courts below, being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, both the learned Courts below have not excluded germane and apposite material from consideration. Accordingly, all the substantial questions, of law are answered in favour of the defendants/respondents, and, against the appellant/plaintiff. 13. In view of the above discussion, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the impugned judgments, and, decrees, rendered by both the learned Courts below, are, affirmed, and, maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.