Judgment:
Rs.No.3255 of 2012(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.3255 of 2012(O&M) Date of decision: 31.03.2014 Vidya Sagar ......Appellant(s) Versus Kamla Devi & ors......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr.Ashish Gupta, Advocate for the appellant.
Rakesh Kumar Garg, J.
The appellant filed a suit for possession by way of specific performance of an agreement to sell dated 18.10.1999 against the defendant-respondents on the averments that the suit property was purchased by them vide sale deed dated 15.4.1998.
The defendants agreed to sell the plot in question to the plaintiff on 18.10.1999 @ Rs.4100/- per square yard for a total sale consideration of Rs.19,68,000/-.
The defendants were paid two cheques for Rs.95,000/- each and Rs.10,000/- were paid in cash.
The said cheques were duly encashed.
The date for execution of the sale deed was stipulated as 20.2.2000 and the balance sale consideration of Rs.17,68,000/- was to be paid at the time of execution of the sale deed on the stipulated date.
The plaintiff has always been ready and willing to perform his part of the contract.
The defendants represented that a civil litigation on behalf of the vendor of the defendants was pending in which some stay order was issued and thus, they cannot execute the sale deed and that they would get the sale deed executed and registered whenever the stay order is vacated.
The plaintiff believed the Saini Pushpinder 2014.04.07 09:54 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3255 of 2012(O&M) 2 said representation of the defendants to be correct.
In the last week of November, 2002, he came to know that the stay order was vacated.
He tried to contact the defendants but they avoided and as such a notice was issued on 25.11.2002 which was duly received by the defendants.
The defendants did not respond to the notice and the plaintiff-appellant came to know that they were trying to back out from the agreement to sell and alienate the suit property to someone else.
Since the defendants had refused to execute and register the sale deed, necessity arose to file the present suit.
In pursuance of the notice, the defendants appeared and filed written statement raising various preliminary objections.
It was stated that the plaintiff was not ready and willing to perform his part of the contract as he was not having sufficient funds and that the defendants were left with no other alternative but to sell the portion of the plot i.e.192 sq.yard to Deen Dayal Sharma, vide sale deed dated 16.5.2003 and suffered loss as they had sold the plot at the rate of Rs.2000/- per sq.yard.
The defendants had already informed the plaintiff but he did not turn up for the purpose of the execution of the sale deed.
It was admitted that the suit property was purchased on 15.4.1998.
The execution of the agreement to sell was also admitted.
It was further admitted that the suit property was agreed to be sold at the rate of Rs.4100/- per sq.yards.
It was also admitted that two cheques for Rs.95,000/- each and Rs.10,000/- in cash were paid as earnest money as the last date for execution of the sale deed was 20.2.2000.
It was alleged that they were making the request to the plaintiff to execute the sale deed and pay the balance amount but he failed to do so.
So the defendants were always ready and willing to perform their part of the contract.
It was denied that any litigation was going on with regard to Saini Pushpinder 2014.04.07 09:54 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3255 of 2012(O&M) 3 the suit plot on the date for registration of the sale deed and the plaintiff had concocted a false story.
In fact, the plaintiff was not ready and willing to perform his part of the contract.
He also failed to pay the balance amount.
The other material averments made in the plaint were controverted and dismissal of the suit was prayed.
The plaintiff through replication had reasserted the averments made in the plaint and controverted the pleas taken by the defendants in the written statement.
From the pleadings of the parties, the following issues were framed: “1.
Whether the defendants executed an agreement to sell dated 18.10.1999 in favour of the plaintiff and have received Rs.2 lacs as earnest money?.
OPP2 Whether the plaintiff is entitled to the specific performance of the contract on the basis of agreement dated 18.10.1999?.
OPP.
3.
Whether the plaintiff has always been ready and willing to perform his part of the agreement?.
OPP4 Whether the suit is within limitation?.
OPD5 Whether the suit is not maintainable?.
OPD6 Whether the plaintiff has no cause of action to file the present suit?.
OPD7 Relief.”
.
The suit was dismissed by the trial Court vide judgement and decree dated 2.2.2010.
Saini Pushpinder 2014.04.07 09:54 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3255 of 2012(O&M) 4 Aggrieved from the aforesaid judgement and decree of the trial Court, the plaintiff filed an appeal before the FiRs.Appellate Court which was also dismissed vide impugned judgment and decree dated 11.4.2012.
It may be noticed that both the Courts below have recorded a concurrent finding to the effect that the plaintiff has not been able to prove and establish his readiness and willingness to perform his part of the contract on the stipulated date and the plea taken by the plaintiff-appellant regarding pendency of litigation with regard to the suit plot between the vendor of the defendants and third-party was not proved.
Still not satisfied, the plaintiff has filed the instant appeal submitting that the following substantial questions of law arise in this appeal: (A) Whether the finding given by the learned Courts below are totally illegal and perveRs.to the pleadings, evidence and material placed before the Courts below?.
(B) Whether the judgements of the Courts below are liable to be sustained in the absence of any observation on the arguments being raised by the plaintiff/appellant?.
(c) Whether the judgements of the Courts below are totally perveRs.due to the reason that Ex.P-12 has not been considered at all which was very relevant to show that why the sale deed could not be got executed on 20.2.2000?.
(D) Whether the application and affidavit of the defendants/respondents could be given any Saini Pushpinder 2014.04.07 09:54 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3255 of 2012(O&M) 5 importance in the absence of the fact that the same has not been got recorded in the official record?.
In support of his case, learned counsel for the appellant has vehemently argued that the Courts below have failed to appreciate the document Ex.P12, which is the copy of the order dated 14.6.1997 passed by MRS.Preeti Sahni, Sub Judge 1st class, wherein Indermohan Singh and another were restrained from alienating the suit property till further ordeRs.The copy of the said order was duly exhibited on record as Ex.P7 and from the aforesaid order, it stands proved that the stay order was continuing till 3.11.2000 in respect of the suit property and hence, the vendors of the appellant were not in a position to execute the sale deed in his favour whereas the Courts below have failed to appreciate the said fact.
However, while dealing with the aforesaid argument, the trial Court has observed as under: PW1 plaintiff Vidya Sagar in his cross examination also stating at the same time that he was told by the Patwari that there is some disputes regarding the plot and even that Patwari told him that the injunction order regarding alienation have been issued by the civil Courts.
However, the revenue record that is Jamabandi for the year 1996-97 Ex.D8 speaks otherwise that there is no mention of any orders of the court regarding stay/injunction in the remarks column.
Had that been the case that injunction order was conveyed to that Patwari it would have certainly been reflected in the Saini Pushpinder 2014.04.07 09:54 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3255 of 2012(O&M) 6 revenue record.
Moreover, the plaintiff has not examined said Patwari on the basis of whose information he claims to have been in the knowledge of some injunction order.
Even otherwise that factor is beyond the pleadings of the case of the plaintiff, since the plaintiff claims the knowledge about the litigation qua the plot in question and regarding injunction order from none other than the defendants only.
Even that knowledge has been pleaded without any details of the case with the details of the order.
It is settled principle of law then that party cannot make out a case which was never pleaded.
In that sense the document so relied in this respect i.e.Ex.P7 to Ex.P11 losses any significance while relying upon Ex.D1, it has been contended that property in dispute was also part of that site plan.
Again for the sake of repetition the Court is again to observe that even that has not been pleaded case of the plaintiff that the property so purchased by him with specific boundaries was part of some property which was subject matter of litigation in what Court and by what order any alienation was stayed”.From the perusal of the aforesaid paragraph, it may be noticed that the plea taken by the appellant is beyond the pleadings.
The appellant has claimed that he came to know about the litigation qua the plot in Saini Pushpinder 2014.04.07 09:54 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3255 of 2012(O&M) 7 question and regarding injunction order from the defendants themselves.
However, he failed to plead any details of such case/order.
It is well settled that a litigant cannot make out a case which was never pleaded.
Though it has been submitted before this Court that the property in dispute was also part of the earlier property which was under litigation between Indermohan Singh and Surinder Singh Sibia yet there is nothing on record to connect the plot in dispute with regard to the subject matter of the alleged litigation between Indermohan Singh and Surinder Singh Sibia The stand of the appellant is further falsified from his statement wherein he has stated that he was informed by the Patwari with regard to the dispute regarding the said plot.
However, revenue record Ex.
D8 i.e.Jamabandi for the year 1996-97 does not speak of any injunction/stay order in the remarks column.
Had that been the case that injunction order was conveyed to that Patwari, it would have certainly been reflected in the revenue record.
Moreover, the plaintiff had not examined said Patwari on the basis of whose information, he claimed to have been in the knowledge of stay order.
In view of the aforesaid stand taken, the plea, as raised, cannot be accepted.
No other point has been argued.
No substantial question of law, as raised, arises in this appeal.
Dismissed.
March 31, 2014 (RAKESH KUMAR GARG) ps JUDGE Saini Pushpinder 2014.04.07 09:54 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3255 of 2012(O&M) 8 Saini Pushpinder 2014.04.07 09:54 I attest to the accuracy and integrity of this document High Court Chandigarh