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2023 DIGILAW 1436 (PNJ)

Baldev Singh v. Mohd. Saghir

2023-04-24

RAJBIR SEHRAWAT

body2023
JUDGMENT Rajbir Sehrawat, J. (Oral) - CM NO.7869-C-2015 in RSA No.3266 of 2015 This is an application filed by the appellant under Order 41 Rule 27 read with Section 151 CPC for leading additional evidence. The application is allowed as prayed for. CM-2574-C-2019 in RSA No.3266 of 2015 This is application filed by the appellant under Order 22 Rule 4 read with Section 151 of CPC for bringing on record legal heir/representatives of respondent No.6-Gurmit Kaur, since deceased. It is asserted in the application that she has left behind the persons mentioned in paragraph 2 of the application as her only legal heirs. The application is accompanied by affidavit. Accordingly the application is allowed, subject to all just exceptions and the names of the persons as mentioned in paragraph 2 of the application are ordered to be brought on record as legal heir/representatives of respondent No.6, since deceased, for the purpose of present appeal. Amended memo of the parties annexed with the application is ordered to be taken on record. RSA No.1951 of 2015 & RSA No.3266 of 2015 1. This shall dispose of two appeals i.e. RSA 1951 filed by the defendants in the suit for possession by way of specific performance of agreement to sell dated 25.02.2003, challenging the judgment of reversal whereby the judgment and decree passed by the trial court dated 09.04.2011 partly decreeing the suit qua return of earnest money was reversed and the suit filed by the plaintiff was ordered to be decreed for specific performance. Another RSA No. 3266 of 2015 has been filed by the plaintiff of the connected suit, challenging the judgment of reversal whereby the judgment and decree passed by the trial court, decreeing her suit; have been reversed and the suit filed by her has been ordered to be dismissed. Both the appeals are arising from common judgment passed after consolidation of two suits. 2. The facts as involved in the present case are that Mohd. Saghir, Mohd. Sharif and Mohd. Both the appeals are arising from common judgment passed after consolidation of two suits. 2. The facts as involved in the present case are that Mohd. Saghir, Mohd. Sharif and Mohd. Mushtaq filed a civil suit No.310 dated 11.09.2004 for specific performance of agreement to sell dated 25.02.2003 against Baldev Singh, Smt. Charanjit Kaur and Grumit Kaur asserting therein that the defendants mentioned above had entered into agreement to sell dated 25.02.2003, whereby they had agreed to sell land to the extent of half share in the suit land to plaintiff No. 1 and 1/4* share each to the plaintiffs No.2 & 3. An amount of Rs. 2 lacs was taken as earnest money from the plaintiff. The target date fixed for execution of the sale deed was fixed to be 25.10.2003. The plaintiffs were always ready and willing to perform their part of contract. As a result, since 25.10.2003 was a holiday, therefore, they appeared before the SubRegistrar with requisite balance consideration on 24.10.2003, however, the defendant did not come present. On 28.10.2003 being next working day, the plaintiffs again appeared and got marked their presences before notary public. However, on 28.10.2003 as well, the defendants did not appear. Hence, the suit was filed praying a decree for specific performance. 3. On being put to notice the defendants filed written statement in which the agreement to sell was not disputed. It was asserted that the total consideration for the transaction was fixed to be Rs. 8,66,250/-; at the rate of Rs. 3,30,000/- per bigha. An amount of Rs. 2,00,000/- was received as earnest money from the plaintiff. Other details were also admitted. However, it was asserted that since 25.10.2003 was the holiday, therefore, to be doubly sure the defendant sent a telegram to the plaintiffs on 24.10.2003 requesting them to come before the sub-Registrar on 28.10.2003. At the office of the Sub-Registrar, Malerkotla the defendant waited from morning till evening. However, the plaintiff did not come present. Accordingly, it was asserted that since the plaintiffs were not ready and willing to get the sale deed executed, therefore, their suit was rightly dismissed by the trial court. 4. Parallely, another suit was filed by Karamjit Kaur for specific performance of agreement dated 15.12.2002 at the rate of Rs. 2,50,000/- per bigha. Earnest money of Rs. 1,00,000/- was stated to have been paid. 4. Parallely, another suit was filed by Karamjit Kaur for specific performance of agreement dated 15.12.2002 at the rate of Rs. 2,50,000/- per bigha. Earnest money of Rs. 1,00,000/- was stated to have been paid. The target date for execution of the sale deed was fixed to be 15.12.2004. However, the same was further extended to 15.12.2006 when an amount of Rs. 1,50,000/- more was paid. It was further asserted that the plaintiff Karamjit Kaur had always been ready and willing to get the sale deed executed, however, the defendants were not coming forward to execute the sale deed. Accordingly, the suit was filed. 5. On being put to notice, defendants Baldev Singh, Charanjit Kaur and Gunnit Kaur came present and filed their written statement in this suit; denying the execution of agreement to sell dated 15.12.2002 in favour of Karamjit Kaur as also the receipt of Rs. 1,00,000/- as earnest money. They had asserted that the agreement dated 15.12.2002 was forged and fictitious document and without any consideration. Even the extension of date was denied by them. 6. In the first instance the suit of Mohd. Saghir and others was being tried separately. However, when subsequently suit was filed by Karamjit Kaur, both the suits were consolidated on application filed by Karamjit Kaur vide order dated 18.12.2007. Thereafter the evidence has been jointly recorded in both the suites. 7. After considering the material on record and hearing the arguments of the parties the trial court partly decreed the suit filed by Mohd. Saghir and others and ordered the return of earnest money with interest, whereas the suit filed by Karamjit Kaur was decreed qua specific performance. The broad reason given for not granting specific performance to Mohd. Saghir and others, was that they had not proved their readiness and willingness to get the sale deed executed. Mohd. Saghir and others filed appeal in their own case seeking decree for specific performance of the agreement to sell and they also filed appeal against judgment and decree passed in favour of Karamjit Kaur-the plaintiff of another suit. Aggrieved against the said judgment and decree passed by the trial court, the defendants in the suit filed appeal against the judgment and decree passed in suit of Karamjit Kaur, whereby the specific performance was awarded. However, no appeal was filed by the defendants in case of Mohd. Saghir and others. Aggrieved against the said judgment and decree passed by the trial court, the defendants in the suit filed appeal against the judgment and decree passed in suit of Karamjit Kaur, whereby the specific performance was awarded. However, no appeal was filed by the defendants in case of Mohd. Saghir and others. The lower appellate court has allowed both the appeals filed by Mohd. Saghir and others. It has ordered the decreeing of the suit filed by Mohd. Saghir and others for specific performance and has ordered dismissal of the suit filed by Karamjit Kaur. Hence, the present appeals have been filed. 8. Arguing the case learned counsel for the appellants-Baldev & others has submitted that the lower appellate court has wrongly reversed the cogent findings recorded by the trial court. There has absolutely not been any material on record to show that plaintiffs Mohd. Saghir and others had been ready and willing to get the sale deed executed. On the contrary, the defendants-appellants have led the evidence qua their readiness and willingness by sending three telegrams on 24.10.2003 to Mohd. Saghir and others to come present on 28.10.2003; because from 25.10.2003 to 27.10.2003 there happened to be holidays. Even on 28.10.2003, though the appellants were before the sub-Registrar, however, the plaintiffs-respondents did not come present. The court below has wrongly recorded the finding on readiness and willingness on the part of the plaintiffs-Mohd. Saghir and others despite there being no evidence to show the availability of balance sale consideration with them. The counsel has further submitted that the lower appellate court has committed a legal fallacy in its approach by proceeding further with the case as if it was the readiness and willingness on the part of the defendants-vendor, which was to be seen and was relevant. The suit was filed by the plaintiffs, therefore, it was for the plaintiffs, to show their readiness and willingness to get their suit decreed. The counsel for the appellants has relied upon the judgment of Hon'ble the Supreme Court in the case of Man Kaur (dead) by LRs Versus Hartar Singh Sangha, 2010(10) SCC 512 and two judgments of this court passed in: RSA No.3165 of 2015 passed on 19.09.2017 titled as Mohinder Singh & others Versus Baldev Singh and Jamal Versus Naresh Kumar, 2023(1) RCR (Civil) 364, to buttress his arguments. Accordingly, it is submitted that the judgment and decree passed by the lower appellate court deserves to be set aside. 9. The counsel for the appellant-Karamjit Kaur in RSA No.3266 of 2015, has submitted that the decree passed in her favour has been wrongly set aside at the instance and in the appeal filed by Mohd. Saghir and others. They were not even party in the suit filed by Karamjit Kaur. Despite the suits having been consolidated, they did not even file an application to become party in the suit and to question the agreement or the readiness and willingness of Karamjit Kaur during the proceedings of the suit. Since they were not party to the suit, despite having full knowledge of the suit, therefore, the appeal at their behest was wrongly entertained by the court below. Otherwise, the trial court had rightly decreed the suit in her favour after finding the agreement to be genuine and the readiness and willingness of Karamjit Kaur having been established before the court in accordance with law. It is further submitted that since no stay was granted by the lower appellate court against execution of the judgment and decree in favour of Karamjit Kaur, therefore, even sale deed has been executed in her favour on 17.02.2012. Therefore, she has already become registered owner of the property through the due process of law. Hence, the judgment and decree in her favour cannot be now set aside at the behest of a stranger to the agreement and a stranger to the suit filed by her. 10. On the other hand, the counsel for the plaintiffs of another suit, namely, Mohd. Saghir and others has submitted that the agreement in their favour is not even disputed by the defendant-vendor. The agreement in favour of Karamjit Kaur was an afterthought and concocted after filing of the suit by Mohd. Saghir and others. In any case Mohd. Saghir and others have always been ready and willing to get the sale deed executed in their favour and the findings have rightly been recorded by the lower appellate court in that regard. The plaintiffs-Mohd. Saghir and others had gone to the office of sub-Registrar on 24.10.2003 because 25.10.2003 was a holiday and they even got their affidavit attested from Notary on 24.10.2003. Since there were intervening 2/3 days holidays, therefore, on 28.10.2003 once again they appeared before the subRegistrar. The plaintiffs-Mohd. Saghir and others had gone to the office of sub-Registrar on 24.10.2003 because 25.10.2003 was a holiday and they even got their affidavit attested from Notary on 24.10.2003. Since there were intervening 2/3 days holidays, therefore, on 28.10.2003 once again they appeared before the subRegistrar. However, the defendants-vendors did not come present. After waiting for them till evening they got their affidavits attested in the Tehsil complex from Notary Public on 28.10.2003 as well. The counsel has further submitted that the plaintiffs Mohd. Saghir had duly appeared as witness before the court and made a statement on oath saying that he was ready and willing to get the sale deed executed. There is no crossexamination on this aspect from the defendants-vendors. Therefore, the said aspect has to be taken as having been duly proved. The affidavits attested by the Notary Public, in this regard, have been duly led in evidence. The plaintiffs Mohd. Saghir and others are agriculturist, therefore, they had the requisite money at the relevant time. Therefore, the judgment and decree has rightly been passed by the lower appellate court. The counsel has further submitted that since the defendants have exhibited dishonesty by fabricating another agreement, therefore, the readiness and wiliness on the part of plaintiffs Mohd. Saghir and others have to be assumed as an unrebutted fact. The counsel for the respondents has relied upon judgment rendered by Hon'ble the Supreme Court in the case of P.Ramasubbamma Versus V. Vijayalakshmi & others, 2022(2) RCR (Civil, 739, to buttress his arguments. The counsel for the respondents has also submitted that there is no discretion any more with the trial court not to order specific performance after amendment of the Act, though the amendment may have come subsequently. The counsel for the respondents has relied upon judgment of Hon'ble the Supreme Court in the cases of Sughar Singh Versus Hari Singh (dead) through LRs and others, 2021(4) RCR (Civil) 632 in this regard. It is also pointed out that the respondents have even deposited the balance sale consideration after passing of the judgment and decree in their favor and the same is lying deposited with the court. 11. Having heard the counsel for the parties and having perused the record this court finds substance in the arguments raised by counsel for the appellants-defendants-Baldev Singh and others. 11. Having heard the counsel for the parties and having perused the record this court finds substance in the arguments raised by counsel for the appellants-defendants-Baldev Singh and others. The dispute in the present case falls in a very narrow scope. The agreement to sell is not even disputed by the defendants-vendors. Even the receipt of the earnest money is not disputed. The net dispute between the parties is regarding the readiness and willingness to execute the sale deed as per the agreement to sell. The defendants have led in evidence the postal receipts of the telegram having been sent to the plaintiffs on 24.10.2003 requesting them to come present on 28.10.2003 because the intervening days happened to be holidays. This clearly shows the intention of the defendants to execute the sale deed by honouring the agreement to sell. Still further it is the case of the defendants that they had approached the sub-Registrar on 28.10.2003 for executing the sale deed. To prove this fact defendant himself appeared as witness before the court and deposed in that regard. However, despite cross-examination nothing substantial could be extracted from this witness to impeach his assertions qua the sending of the telegram or he being present before Sub-Registrar on 28.10.2003. The defendants were not required to do anything more than this; for showing their readiness and willingness to execute the sale deed by honouring the agreement to sell. Therefore, no fault can be found with the conduct of the defendants in this regard. 12. On the other hand, the plaintiffs-Mohd. Saghir and others asserted that they appeared before the sub-Registrar even on 24.10.2003, i.e. prior to the target date of the sale deed. However, there is no assertion in this regard that they had ever intimated the defendants-vendors to come present for execution of sale deed on that date, by any means of communication. Further, Mohd. Saghir and others asserted that they were present before the sub-Registrar again on 28.10.2003, and to prove their assertion qua their presence before the sub-Registrar on 28.10.2003, they examined Rafi Ahmed Notary Public, Malerkotla as PW-2. However, even his statement shows that he is not sure either qua identity of the plaintiffs or qua the readiness and willingness of the plaintiffs to get the sale deed executed. However, even his statement shows that he is not sure either qua identity of the plaintiffs or qua the readiness and willingness of the plaintiffs to get the sale deed executed. On the contrary, he has deposed that on 24.10.2003 the plaintiffs had come to him at 5.00 pm, i.e., after office hours; and for 28.10.2003 he has not even mentioned the time, as such. Therefore, his statement, as such, is of not much help to the case of the plaintiffs. Moreover, at the best, his statement can show that the plaintiffs visited the Notary Public. However, that by no means would be an evidence of the fact that they ever approached the sub-Registrar on that day or that they were present during office hours in the office of subRegistrar. In the cross-examination even the plaintiff have admitted that they never got their presence marked before the sub-Registrar, and that even before the Notary Public they had gone in evening. Therefore, the evidence qua their presence in the office of the sub-Registrar for getting the sale deed executed on 28.10.2003, itself is sketchy one and leads the court to draw inference adverse to the plaintiffs. 13. So far as the readiness and willingness on the part of the plaintiffs-Mohd. Saghir and others is concerned, except the self-serving statement of Mohd. Saghir, there is nothing on record to show that the plaintiffs were having any money on the date when the sale deed was to be executed. On the contrary, in the cross-examination conducted on behalf of other plaintiff-Karamjit Kaur, it has been stated by the plaintiff-Mohd. Saghir that on 28.10.2003 one Mohd. Ramzan, Lambardar was accompanying him, who was aware of the fact that plaintiffs were having money with them. However, the said Mohd. Ramzan, Lambardar, has not even been examined as a witness. Another witness who can have some bearing qua availability of money with the plaintiffs on 28.10.2003, is the Notary Public, who says that the plaintiffs were having a bag in their hands. However, even this witness has stated in further cross examination that he was not sure whether the bag was having money or not. Not only that, he has shown total ignorance of any knowledge qua the plaintiffs having any balance sale consideration on 28.10.2003 when they approached him. However, even this witness has stated in further cross examination that he was not sure whether the bag was having money or not. Not only that, he has shown total ignorance of any knowledge qua the plaintiffs having any balance sale consideration on 28.10.2003 when they approached him. Hence, the defendants-appellants have rightly relied upon the judgment rendered by this court in the case of Mohinder Singh & others (supra) and Jamal (supra). The findings recorded by the lower appellate court qua readiness and willingness of plaintiffs are not supported by any material on record. The same being perverse and without any basis deserve to be set aside. Moreover, the only reasoning given by the lower appellate court to infer the readiness and willingness on the part of the plaintiffs-Mohd. Saghir and others, is the perceived deficiency in readiness and willingness of the defendants. However, in a suit for specific performance where the agreement is admitted by the vendor, then it is the readiness and willingness of the plaintiff which is the material aspect for deciding whether he deserves to get a decree of specific performance or not. In any case, the plaintiff has to stand on his own feet. It was for the plaintiffs to prove their readiness and willingness by leading independent evidence. Lower appellate court could not have assumed the readiness and willingness on the part of the plaintiffs only because there was some or similar deficiency in readiness and willingness of the defendants. On this aspect as well the court finds the reliance of the counsel for the appellants-defendants on judgment rendered in Man Kaur (dead) by LRs (supra) to be well placed. 14. The judgments cited by the learned counsel for the plaintiffs-respondents, are of no help to the plaintiffs-respondents. Since the readiness and willingness itself is not established, therefore, the trial court could not have decreed the suit in toto. Since the agreement to sell has not been denied by the defendants, therefore, return of the money has rightly been ordered, in accordance with law. The readiness and willingness of plaintiffs is not a matter of assumptions, rather, the same has to be proved by evidence to be led before the court. Since the agreement to sell has not been denied by the defendants, therefore, return of the money has rightly been ordered, in accordance with law. The readiness and willingness of plaintiffs is not a matter of assumptions, rather, the same has to be proved by evidence to be led before the court. As observed above, except the solitary and self-serving statement of the plaintiff, there is no material on record to show either the factum of availability of the money with the plaintiffs on the said date when they have claimed to have appeared before the Sub-Registrar, or show that they even visited office of Sub-Registrar for the purpose of getting the sale deed executed. 15. So far as the case of Karamjit Kaur is concerned, undisputedly, the plaintiffs of the other suit, namely, Mohd. Saghir and others were not even party in the suit filed by her. Moreover, despite the suits having been consolidated Mohd. Saghir and others chose not to become party in suit filed by her, nor did they file any written statement or pleadings in her suit to dispute her claim. On appreciation of the material before the court the trial court had decreed the said suit. Though the defendant-vendor filed the appeal, however, even the same has been dismissed. Moreover, when no stay was granted, even the sale deed has been executed in execution of the court decree. So far as the plaintiffs of the other suit, namely, Mohd. Saghir and others are concerned, unless their readiness and willingness is taken to have been proved in their own suit their status is totally immaterial so far as the suit between the Karamjit Kaur and her vendors is concerned. Therefore, since this court has not found readiness and willingness on the part of the plaintiffs-Mohd. Saghir and others, therefore, as a corollary, this court also finds that the decree passed in favour of Karamjit Kaur has wrongly been set aside by the lower appellate court. 16. In view of the above, both the appeals are allowed. The judgment and decree passed by the lower appellate court are set aside. The judgments and decrees passed by the trial court are restored.