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2021 DIGILAW 830 (HP)

Joginder Singh S/o Shri Hakam Singh v. Sudesh Kumari W/o Shri Hoshiar Singh

2021-10-25

SANDEEP SHARMA

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JUDGMENT : SANDEEP SHARMA, J. 1. Being aggrieved and dissatisfied with the judgment and decree dated 6.4.2011 passed by learned Additional District Judge, Una, Himachal Pradesh in Civil Appeal No. 68/2010, affirming judgment and decree dated 6.9.2010 passed by learned Civil Judge (Junior Division), Court No. (1), Amb, District Una, Himachal Pradesh in Civil Suit No. 237/1999, titled Joginder Singh and Others vs. Smt. Brahmi Devi, whereby suit for specific performance of agreement to sell having been filed by the appellants-plaintiffs (hereinafter, ‘plaintiffs’) came to be dismissed, plaintiffs have approached this Court in the instant appeal filed under S.100 CPC, praying therein to decree their suit for specific performance, after setting aside judgments and decrees passed by both the learned Courts below. 2. For having bird’s eye view of the matter, certain undisputed facts as emerge from the record are that the plaintiffs filed a civil suit seeking therein a direction to the respondents/defendant (hereinafter ‘defendant’) to execute the sale deed qua land measuring 12 Kanal 1 Marla, out of land measuring 0-91-46 hectares bearing Khewat No. 118, Khatauni No. 323, Khasra Nos. 3476, 3477, 3478, 3486, 3487, 3490, 3491, 3492, 3493, 3494, 3495 and 3496 corresponding to old Khasra No. 2625, as entered in Nakal Jamabandi for the years 1994-95, situated in UP Mohal Ram Nagar, Mauja Nakroh, Tehsil Amb, District Una, Himachal Pradesh (hereafter ‘suit land’) and in the alternative, to grant relief for recovery of Rs. 36,000/-. In the aforesaid suit, plaintiffs averred that their predecessor-in-interest, Shri Hakam Singh was owner of half share alongwith defendant qua land measuring 24 Kanal 2 Marla but was in exclusive possession of whole of the land. Plaintiffs claimed that after the death of Hakam Singh, plaintiffs Nos. 1 and 2 alongwith their brother, Bakshi Ram came into possession, whereafter they sold their share i.e. 12 Kanal 1 Marla to Smt. Vinod Kumari, Om Parkash and Ranjit Singh, and rest of the land measuring 12 Kanal 1 Marla remained in their possession. It is further averred in the plaint that a suit titled Mehar Singh vs. Hakam Singh, which was pending before the learned Sub Judge First Class, Una, was decided in favour of Hakam Singh and Brahmi Devi on 5.5.1983, whereby predecessor-in-interest of the plaintiffs was held to be in possession of the land measuring 24 Kanal 2 Marla. It is further averred in the plaint that a suit titled Mehar Singh vs. Hakam Singh, which was pending before the learned Sub Judge First Class, Una, was decided in favour of Hakam Singh and Brahmi Devi on 5.5.1983, whereby predecessor-in-interest of the plaintiffs was held to be in possession of the land measuring 24 Kanal 2 Marla. It is further averred that said case was contested on behalf of the defendant by her Power of Attorney, Shri Daulat Ram and total expenses of the said case were incurred by predecessor-in-interest of the plaintiffs. Plaintiffs further averred in the suit that on 30.5.1987, Daulat Ram, Power of Attorney of defendant entered into an agreement to sell the above said half share i.e. 12 Kanal 1 Marla for a sum of Rs. 18,000/- to the plaintiffs and received Rs. 12,000/- in lump sum after deducting Rs. 6,000/- i.e. litigation expenses incurred by their predecessor-in-interest in earlier litigation. Time for execution of sale deed was left open. It is further averred by the plaintiffs that the defendant despite repeated requests by them to execute sale deed, refused to do so, rather started demanding huge amount on the ground that the prices of the land have increased manifold. 3. Since the defendant Brahmi Devi expired during the pendency of the suit, her legal representative, namely Smt. Sudesh Kumar, came to be impleaded as defendant in place of Brahmi Devi, who while refuting the claim of the plaintiffs, on the grounds of maintainability, cause of action, limitation and estoppel, also denied the case of the plaintiffs on merit. Defendant while admitting that Hakam Singh was owner-in-possession to the extent of half share and Brahmi Devi was in possession of another half share also admitted that 12 Kanal 1 Marla was sold to Smt. Vinod Kumari etc. However, she denied that the litigation expenses were borne by predecessor-in-interest of the plaintiffs and Brahmi Devi (original defendant), had assured the predecessor-in-interest of the plaintiffs about payment of any expenses made by him in earlier suit. Defendant also claimed that Daulat Ram never executed agreement to sell the share of defendant nor he was authorized to do so by the defendant. Defendant claimed that neither Brahmi Devi nor her legal representative received any sale consideration rather, during her life time, Brahmi Devi had filed an application for partition of suit land, which was decided on 22.8.1997. 4. Defendant claimed that neither Brahmi Devi nor her legal representative received any sale consideration rather, during her life time, Brahmi Devi had filed an application for partition of suit land, which was decided on 22.8.1997. 4. On the basis of pleadings of the parties, learned trial Court framed following issues on 23.1.2004, for determination: “1. Whether the defendant had agreed to sell suit land vide agreement to sell dated 30.5.1987 in favour of the plaintiffs? OPP 2. Whether plaintiffs are ready and willing to perform their part of contract? OPP 3. Whether the defendant has failed to perform her part of contract? OPP. 4. Whether the plaintiffs are entitled in alternative for the relief of recovery of Rs. 36,000/- as prayed for? OPP 5. Whether plaintiffs have no cause of action? OPD 6. Whether the suit is not maintainable? OPD 7. Whether the suit is barred by limitation? OPD 8. Whether the suit is bad for non-joinder of parties? OPD 9. Whether the suit is not properly valued, as alleged? OPD 10. Relief.” 5. Subsequently, vide judgment and decree dated 6.9.2010, learned trial Court dismissed the suit of the plaintiffs on merits as well as on the ground of limitation. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, plaintiffs preferred an appeal in the court of learned Additional District Judge, Una, Himachal Pradesh i.e. Civil Appeal No. 68/2010, but the same also came to be dismissed vide judgment and decree dated 6.4.2011. In the aforesaid ground, plaintiffs have approached this Court in the instant Regular Second Appeal, praying therein to decree their suit for specific performance, after setting aside judgments and decrees passed by learned Courts below. 6. Instant appeal came to be admitted by this court on 10.8.2011, on the following substantial questions of law: “1. Whether the findings of the ld. Courts below are a result of complete misreading of pleadings, evidence and the law as applicable to the facts of the case and particularly documents Exhibits PW-5/A, PW-2/A, PW-3/A, PD and PE and as such, palpably erroneous and illegal and if so to what effect? 2. Whether the learned Courts have misinterpreted the Power of Attorney PW-3/A? 7. I have heard learned counsel for the parties and perused the material available on record. 8. 2. Whether the learned Courts have misinterpreted the Power of Attorney PW-3/A? 7. I have heard learned counsel for the parties and perused the material available on record. 8. Since both the substantial questions of law are inter linked and their answer can be explored by looking into entire pleadings and the evidence, same are taken up together for determination. 9. Having heard learned counsel for the parties and perused evidence, be it ocular or documentary, led on record by parties vis-a-vis the reasoning assigned learned Courts below, while dismissing the suit for specific performance filed by the plaintiffs, this court finds no force in the submission of learned senior counsel for the plaintiffs that the learned Courts below have failed to appreciate the evidence in its right perspective, rather, this court finds that both the learned Courts below, have dealt with each and every aspect of the matter meticulously and have rightly arrived at a definite conclusion that Daulat Ram, had no right or authority to enter in agreement with the plaintiffs to sell the land belonging to the original defendant, Brahmi Devi. In the case at hand, pleadings as well as evidence led on record by respective parries clearly reveals that the entire claim of the plaintiffs is based upon Power of Attorney, Ext. PW-3/A, allegedly executed by the original defendant, Brahmi Devi, in favour of Daulat Ram, authorizing him to transfer the land in favour of the plaintiffs. Both these documents are in Urdu but their Hindi versions have been placed on record and marked as “N” and “M.” Even if it is presumed that Power of Attorney executed by Brahmi Devi, Ext. PW-3/A (Hindi version marked as “N”) was executed by the original defendant, Brahmi Devi, this court having perused aforesaid document, finds substantial force in the submission of Mr. N.K. Thakur, learned senior counsel for the defendant that it has been specifically stated/recited in the Power of Attorney that the Attorney shall have no right to sell, mortgage or sell her property. Though, very execution of aforesaid Power of Attorney Ext. PW-3/A by late Brahmi Devi, is doubtful in view of the evidence available on record, but even otherwise, as has been taken note herein above, Daulat Ram had no right or authority to enter into agreement to sell the disputed land, belonging to Brahmi Devi, to the plaintiffs. Though, very execution of aforesaid Power of Attorney Ext. PW-3/A by late Brahmi Devi, is doubtful in view of the evidence available on record, but even otherwise, as has been taken note herein above, Daulat Ram had no right or authority to enter into agreement to sell the disputed land, belonging to Brahmi Devi, to the plaintiffs. Since very basis of suit of the plaintiffs is delirious, no fault, if any, can be found with the judgments and decrees passed by learned Courts below, dismissing the suit for specific performance of agreement to sell dated 30.5.1987, Ext. PW-3/A, having been filed by the plaintiffs. 10. Though, in the case at hand, plaintiffs have attempted to carve out a case that Daulat Ram had agreed to sell half portion of suit land for total consideration of Rs. 18,000/- and a sum of Rs. 12,000/- was paid in cash whereas, remaining amount was to be adjusted towards litigation expenses allegedly incurred by predecessor-in-interest of the plaintiffs in earlier suit titled Mehar Singh vs. Hakam Singh but aforesaid plea never came to be proved by the plaintiffs by leading cogent and convincing evidence on record. There is no evidence available on record suggestive of the fact that Daulat Ram allegedly paid the consideration, if any, received by him from the plaintiffs to the actual owner, Smt. Barhmi Devi. Besides above, there is no material collected on record by the plaintiffs suggestive of the fact that the agreement to sell, dated 30.5.1987, Ext. PW-3/A was entered into by Daulat Ram with express and/or implied consent of the actual owner, Brahmi Devi. 11. Malkiat Singh, plaintiff No. 3 entered into witness box as PW-6. In his affidavit, Ext. PW-6/A, filed under Order XVIII, rule 4 CPC, he reiterated the contents of the plaint in entirety. In his cross-examination, this witness admitted that he never appeared in the court during the pendency of the civil suit titled as Mehar Singh vs. Hakam Singh etc. filed by predecessor-in-interest of the plaintiffs. He admitted that the litigation expenses were not incurred by Hakam Singh in his presence. He further admitted that the agreement was not executed in his presence and money was not paid by the plaintiffs to Daulat Ram in his presence. filed by predecessor-in-interest of the plaintiffs. He admitted that the litigation expenses were not incurred by Hakam Singh in his presence. He further admitted that the agreement was not executed in his presence and money was not paid by the plaintiffs to Daulat Ram in his presence. He admitted that in the year 1987, they and their father started requesting Barhmi Devi (defendant) to execute the sale deed as per terms and conditions of the agreement but in vain. This witness feigned ignorance about the fact that Brahmi Devi had instituted a partition case during her life time in the court of Tehsildar. Otherwise also, it is not understood that once Brahmi Devi had agreed to sell her share in the suit land, where was the occasion for her to institute the partition case. 12. Ext. PA i.e. Jamabandi for the years 1994-95 clearly depicts that land is owned by defendant and others. possession of Vinod Kumari is also recorded over the entire land as Hissedaran. In the remarks column, a mention qua mutation No. 288 of partition has been made. Ext. PB is copy of Misal Hakiat Bandobast for the years 1988-89, which reflects that the land involved in suit is owned by Brahmi Devi and others. Possession of Joginder Singh etc. is also recorded as Hissedaran. In the remarks column, it has been mentioned that on the basis of sale made by the plaintiffs, Mutation No. 146 was sanctioned in favour of Vinod Kumari etc. 13. Malkiat Singh i.e. PW-6, admitted that part of suit land is in occupation of Smt. Vinod Kumari etc. which fact otherwise belies the case of the plaintiffs. Factum with regard to sale of land by the plaintiffs as well as their brother Bakshi Ram to Smt. Vinod Kumari and others completely falsifies the entire claim of the plaintiffs, as set up in the plaint. 14. There is yet another aspect of the matter i.e. limitation. PW- 6, in his statement deposed that the defendant refused to execute conveyance deed as per Ext. PW-5/A in the year 1987, as such, plaintiffs were required to file the suit within three years from the date of refusal, whereas, suit at hand, came to be instituted in the year 1999, as such, learned Courts below have rightly held the suit to be barred by limitation. 15. PW-5/A in the year 1987, as such, plaintiffs were required to file the suit within three years from the date of refusal, whereas, suit at hand, came to be instituted in the year 1999, as such, learned Courts below have rightly held the suit to be barred by limitation. 15. Consequently, for the reasons afore stated, this court finds it difficult to agree with learned Counsel appearing for the plaintiffs that the learned Courts below failed to appreciate the evidence in its right perspective, more particularly, Power of Attorney, Ext. PW-3/A, rather, this court is convinced and satisfied that both the learned Courts below have appreciated the pleadings as well as evidence in its right perspective, as such, no interference is called for. 16. Substantial questions of law are answered accordingly. 17. Now, it would be appropriate to deal with the specific objection raised by the learned counsel representing the defendants with regard to maintainability and jurisdiction of this Court, while examining concurrent findings of law and facts returned by both the Courts below. Learned counsel for the defendants, invited the attention of this Court to the judgment passed by Hon’ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 , wherein the Hon’ble Supreme Court has held: “16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’ right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” 18. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” 18. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Apex Court and true it is that in normal circumstances High Court, while exercising powers under Section 100 CPC, is restrained from re-appreciating the evidence available on record. 19. The Hon'ble Apex Court in Parminder Singh vs. Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held as under: “(14) In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal.” 20. It is quite apparent from the aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts below, rather same are based upon correct appreciation of evidence as such, deserve to be upheld. 21. Consequently, in view of detailed discussion made herein above, I find no merit in the appeal at hand, which is accordingly dismissed. Judgments and decrees passed by both the learned Courts below are upheld. 22. Pending applications, if any, are disposed of. Interim directions, if any, stand vacated.