Chander Dass and anr. Vs. Tarsem Singh and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/633995
SubjectCivil;Contract
CourtPunjab and Haryana High Court
Decided OnSep-11-2009
Judge Sabina, J.
Reported in(2009)156PLR602
AppellantChander Dass and anr.
RespondentTarsem Singh and ors.
DispositionAppeal dismissed
Excerpt:
- sabina, j.1. plaintiffs-respondents no. 1 to 4 filed a suit for possession by way of specific performance of agreement of sale deed, which was dismissed by the additional civil judge (sr. divn.) ambala city vide judgment and decree dated 21.3.2001. in appeal, the said judgment and decree were set aside by the additional district judge, fast track court, ambala vide judgment and decree dated 5.11.2004 and the suit of the plaintiffs for possession by way of specific performance was decreed conditionally that they shall deposit the remaining amount of the sale consideration. hence, the present appeal by defendants no. 4 and 5.2. brief facts of the case, as noticed by the lower appellate court in para nos. 2 to 9 of its judgment, are as under:2. the appellants were the plaintiffs before learned trial court (herein referred to as the plaintiffs), founded the suit for possession by way of specific performance of agreement of sale deed dated 14.6.1989 and 7.7.1989 and for declaration that the sale deeds dated 19.6.1992 and 201.6.1992 are illegal, null and void in operative and not binding upon the rights of the plaintiffs in the suit land against the respondents/ defendants (herein referred to as the defendants) on the material facts that defendants no. 1 to 3 entered into an agreement of sale of the suit land measuring 114k 10 m vide agreement dated 14.6.1989 and received sum of rs. 1,50,000/- as earnest money and agreed to execute the sale deed in favour of the plaintiffs on the basis of the agreement to sell on/before 15.6.1990. it is further pleaded by the plaintiff that defendant no. 3 in furtherance of the agreement dated 14.6.1989 executed the agreement dated 7.7.1989 and received sum of rs. 20.000/- on behalf of himself and his other brothers (defendants no. 1 and 2 and defendants received total earnest of rs. 1,70,000/- from the plaintiffs.3. it is further pleaded by the plaintiffs that in pursuance of the part performance of the agreement, all the defendants executed the sale deed in favour of the plaintiffs of the land measuring 83k 14m for sale consideration of rs. 2,80,000/- on 26.12.1989.4. the plaintiffs further pleaded that the land mentioned in the agreements to sell was under mortgage with state bank of india and the amount of loan including interest had swelled to rs. 1,29,964/- and the said amount was paid by the plaintiffs to the bank of the vendors and recital to the said respect was scribed in the sale deed. but due to inadvertence, rs. 1,18,828/- was written whereas the plaintiffs paid rs. 1,29,964/- and the said amount was drawn from saving account of the plaintiff no. 1 tarsem singh and the plaintiffs paid rs. 11,136/- in excess to the defendants in order to clear the loan of the defendants, so outstand against them on the date of execution of the sale deed dated 26.12.1989. it is further pleaded that sum of rs. 161,172/- had already received by defendants/vendors from the plaintiffs and said fact was also got mentioned in the sale deed and in view of the fact the defendants vendors received rs. 3,11,136/- from the plaintiffs and against total sale consideration rs. 2,80,000/- of the land 83 k 14 m and as such rs. 31,136/- were left with the defendants as earnest money for remaining land measuring 30 k 16 m which under the agreement to sell, had agreed to be executed vide sale deed on/ before 15.6.1990 by adjusting the amount of rs. 31,136/-.5. it was further the plea of the plaintiffs that they contacted the defendants to get the sale deed of the remaining land measuring 30 k 16 m executed in pursuance of the agreement to sell and the plaintiffs also purchased stamp papers and it was agreed that the sale deed would be executed on 2.6.1990. all the parties to the agreement reached in the compound in the sub registrar ambala but found that the land of the share of rajbir (defendant no. i/vendor) was under mortgage with possession with swaran singh son of data singh for consideration of rs. 30,000/- vide two mortgage deeds dated 17.6.1985 and 20.6.1986. the plaintiffs averred that they paid sum of rs. 30,000/- to swaran singh and got the land redeemed from him in presence of the vendors and recital was written by swaran singh on the back of the mortgage deed relinquishing his rights of the mortgage in favour of the plaintiffs and also acknowledge the receipt of the mortgage amount from the plaintiffs. the plaintiffs averred that the defendants received rs. 61,136/- as earnest money. the plaintiffs further averred that they requested the defendants to get the sale deed executed several times and perform their part of the contract but they refused which constrained the plaintiffs to file the suit for permanent injunction against them.6. the plaintiffs further pleaded that they had always been ready and willing to perform their part of the contract and on 15.6.1990 the plaintiffs visited the office of sub-registrar, ambala with balance sale consideration and other amount for miscellaneous expenses but the defendants failed to perform their part of the contract. the plaintiffs averred the defendants/vendors erroneously sold the suit land measuring 30k 16 m to defendants no. 4 to 5. the plaintiffs challenged the said sale deed as illegal, null and void and not binding upon their rights in the suit land and further averred that they requested the defendants to get the sale deed executed several times and perform their part of the contract. it is stated that all the facts as narrated has given the cause of action to the plaintiffs to file the present suit against the defendants and prayed that the decree for possession by way of specific performance agreements dated 14.6.1989m 7.7.1989 for the land 30 k 16m be passed in their favour and sale deed in favour of the defendants no. 4 and 5 be declared as illegal, null and vid.7. before learned trial court defendants no. 1 and 2 put up appearance and filed the written statement and contested the suit of the plaintiffs. it may be mentioned herein that defendant no. 1 rajbir submitted two written statements, one in reply to the main plaint of the plaintiffs and other to the emended plaint of the plaintiffs. in the first written statement defendant no. 1 rajbir pleaded that the plaintiffs are not entitled for the relief: that the suit is not legally maintainable against the answering defendants; that the suit of the plaintiff has become infructuous as the suit land has already been sold to chander prakash and rajinder kumar vide sale deeds dated 19.6.1992 and 20.6.1992 and as such the answering defendants are not the owners in possession of the land; that the plaintiffs have not come with clean hands in the court and has no locus standi to file the present suit; the plaintiffs are estopped by their own act and conduct for filing the suit. on merits, the answering defendants made complete denial of execution of any agreement of sale with the plaintiffs and receipt of any earnest money thereunder and pleaded that the suit of the plaintiff is false and frivolous.8. in the written statement to the amended plaint, the defendants no. 1 and 2 took similar preliminary objections, which were taken in the earlier written statement. in addition to that the defendants pleaded that the suit of the plaintiffs is not maintainable being hit by the provisions of order 2 rule 2 cpc and by the principle of resjudicata. however, on merits, the answering defendants took somersault and admitted the execution of the agreement to sell with the plaintiffs. however, the defendants pleaded that due to shortage of the funds the plaintiffs purchased only 83 k 14 m of land and as such the agreement to sell was fulfil and completed. the defendants pleaded that there was no any further agreement to sell in question came to an end on the execution of the sale deed dated 26.12.1989. the defendants denied that any amount of earnest money was outstanding as pleaded by the plaintiffs. however, they pleaded that the land was under mortgage with swaran singh out denied that the mortgage amount was ever paid by the plaintiffs to swaran singh to redeem the land. they also denied that the plaintiffs were ever put in possession of the said land and also pleaded that the plaintiffs were never ready and willing to purchase the land. on these averments, it was averred that the suit of the plaintiffs merits dismissal.9. defendants no. 4 and 5 the vendees also put up appearance before learned trial court and contested the suit of the plaitniffs by stating that the suit of the plaintiff is not maintainable against them and the plaintiffs have no cause of action to file the present suit. the defendants are bonafide purchaser without any notice of the previous agreement to sell or litigation between the plaintiffs and the vendors and prayed that the suit of the plaintiffs be dismissed.3. on the pleadings of the parties, following issues were framed by the trial court:1. whether the plaintiffs are entitled to the decree for possession by way of specific performance of the contract dated 14.6.1989 and 7.7.1989 of the land in dispute on the grounds taken in the plaint? opp2. whether the plaintiffs were ready and willing to perform their part of the contracts? opd3. whether the sale deeds no. 2451 and 2463 dated 19.6.1992 and 20.6.1992 executed by luxmi chand defendant in favour of defendants no. 4 and 5 respectively of the land in dispute are wrong, illegal, null and void and not binding upon the rights of the plaintiffs on the grounds taken in the plaint? opd4. whether the plaintiffs have no locus standi to file and maintain the present suit? opd5. whether the present suit is not maintainable in the present form, as alleged? opd6. whether the present suit is hit by provisions of order 2 rule 2 cpc as alleged? opd7. whether the plaintiffs are estopped to file and maintain the present suit on their own act and conduct? opd8. whether the suit is false and frivolous and the defendants are entitled to special costs? opd8-a whether the suit of the plaintiffs is hit by the provisions of order 7 rule 1 (j) cpc? opd9. relief.4. after hearing learned counsel for the parties, i am of the opinion that the present appeal deserves to be dismissed. the plaintiffs had filed a suit for specific performance of agreements to sell dated 14.6.1989 and 7.7.1989. in order to establish the due execution of the agreement to sell dated 14.6.1989 ex.p-5, the plaintiffs examined pw-3 kashmiri lal, deed writer.5. plaintiffs also examined pw-5 dharam pal, deed writer to prove agreement to sell dated 7.7.1989 ex.p-6. pw-4 balwant singh, attesting witness to both the agreements to sell was also examined to prove due execution of the same. tarsem singh, plaintiff no. 1 himself appeared in the witness box as pw-6 and deposed as per the contents of the plaint.6. learned additional district judge, fast track court, after appreciating the evidence on record led by the parties, held that the execution of both the agreements to sell was duly proved by the plaintiffs. the plea of the appellants was that they were bona fide purchasers and had no notice of the previous litigation or the agreements to sell in question. since the appellants had purchased the land vide sale deeds ex.d-1 and ex.d-2 dated 19.6.1992 and 20.6.1992 respectively during the pendency of the suit, learned additional district judge, fast track court rightly held that the appellants could not be said to be bona fide purchasers of the suit land.7. learned counsel for the appellants, during the course of arguments, submitted that the plaintiffs had filed a suit challenging the sale deeds executed in favour of the appellants. the said suit was dismissed on account of non-compliance of order 39 rule 3 of the code of civil procedure and hence, the present suit was liable to be dismissed. however, there is no force in the argument raised by learned counsel for the appellants as the present suit was filed in the year 1991. the suit filed by the plaintiffs, challenging the sale deed in favour of the appellants in the year 1992, was thus filed after the filing of the present suit and the fact that it was dismissed does not render the present suit not maintainable. since the plaintiffs had been successful in proving the execution of the agreements to sell in question and further that they were ready and willing to perform their part of the contract, learned additional district judge, fast track court rightly decreed the suit of the plaintiffs. the plaintiffs in order to establish that they were ready and willing to perform their part of the contract had proved on record the affidavit to establish that they were present in the office of sub registrar on 15.6.1990 to perform their part of the contract, whereas, the defendants had failed to turn up to perform their part of the contract.8. no substantial question of law arises in this regular second appeal. accordingly, the same is dismissed.
Judgment:

Sabina, J.

1. Plaintiffs-respondents No. 1 to 4 filed a suit for possession by way of specific performance of agreement of sale deed, which was dismissed by the Additional Civil Judge (Sr. Divn.) Ambala City vide judgment and decree dated 21.3.2001. In appeal, the said judgment and decree were set aside by the Additional District Judge, Fast Track Court, Ambala vide judgment and decree dated 5.11.2004 and the suit of the plaintiffs for possession by way of specific performance was decreed conditionally that they shall deposit the remaining amount of the sale consideration. Hence, the present appeal by defendants No. 4 and 5.

2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 9 of its judgment, are as under:

2. The appellants were the plaintiffs before learned trial Court (herein referred to as the plaintiffs), founded the suit for possession by way of specific performance of agreement of sale deed dated 14.6.1989 and 7.7.1989 and for declaration that the sale deeds dated 19.6.1992 and 201.6.1992 are illegal, null and void in operative and not binding upon the rights of the plaintiffs in the suit land against the respondents/ defendants (herein referred to as the defendants) on the material facts that defendants No. 1 to 3 entered into an agreement of sale of the suit land measuring 114K 10 M vide agreement dated 14.6.1989 and received sum of Rs. 1,50,000/- as earnest money and agreed to execute the sale deed in favour of the plaintiffs on the basis of the agreement to sell on/before 15.6.1990. It is further pleaded by the plaintiff that defendant No. 3 in furtherance of the agreement dated 14.6.1989 executed the agreement dated 7.7.1989 and received sum of Rs. 20.000/- on behalf of himself and his other brothers (defendants No. 1 and 2 and defendants received total earnest of Rs. 1,70,000/- from the plaintiffs.

3. It is further pleaded by the plaintiffs that in pursuance of the part performance of the agreement, all the defendants executed the sale deed in favour of the plaintiffs of the land measuring 83K 14M for sale consideration of Rs. 2,80,000/- on 26.12.1989.

4. The plaintiffs further pleaded that the land mentioned in the agreements to sell was under mortgage with State Bank of India and the amount of loan including interest had swelled to Rs. 1,29,964/- and the said amount was paid by the plaintiffs to the bank of the vendors and recital to the said respect was scribed in the sale deed. But due to inadvertence, Rs. 1,18,828/- was written whereas the plaintiffs paid Rs. 1,29,964/- and the said amount was drawn from saving account of the plaintiff No. 1 Tarsem Singh and the plaintiffs paid Rs. 11,136/- in excess to the defendants in order to clear the loan of the defendants, so outstand against them on the date of execution of the sale deed dated 26.12.1989. It is further pleaded that sum of Rs. 161,172/- had already received by defendants/vendors from the plaintiffs and said fact was also got mentioned in the sale deed and in view of the fact the defendants vendors received Rs. 3,11,136/- from the plaintiffs and against total sale consideration Rs. 2,80,000/- of the land 83 K 14 M and as such Rs. 31,136/- were left with the defendants as earnest money for remaining land measuring 30 K 16 M which under the agreement to sell, had agreed to be executed vide sale deed on/ before 15.6.1990 by adjusting the amount of Rs. 31,136/-.

5. It was further the plea of the plaintiffs that they contacted the defendants to get the sale deed of the remaining land measuring 30 K 16 M executed in pursuance of the agreement to sell and the plaintiffs also purchased stamp papers and it was agreed that the sale deed would be executed on 2.6.1990. All the parties to the agreement reached in the compound in the Sub Registrar Ambala but found that the land of the share of Rajbir (defendant No. I/vendor) was under mortgage with possession with Swaran Singh son of Data Singh for consideration of Rs. 30,000/- vide two mortgage deeds dated 17.6.1985 and 20.6.1986. The plaintiffs averred that they paid sum of Rs. 30,000/- to Swaran Singh and got the land redeemed from him in presence of the vendors and recital was written by Swaran Singh on the back of the mortgage deed relinquishing his rights of the mortgage in favour of the plaintiffs and also acknowledge the receipt of the mortgage amount from the plaintiffs. The plaintiffs averred that the defendants received Rs. 61,136/- as earnest money. The plaintiffs further averred that they requested the defendants to get the sale deed executed several times and perform their part of the contract but they refused which constrained the plaintiffs to file the suit for permanent injunction against them.

6. The plaintiffs further pleaded that they had always been ready and willing to perform their part of the contract and on 15.6.1990 the plaintiffs visited the office of Sub-Registrar, Ambala with balance sale consideration and other amount for miscellaneous expenses but the defendants failed to perform their part of the contract. The plaintiffs averred the defendants/vendors erroneously sold the suit land measuring 30K 16 M to defendants No. 4 to 5. The plaintiffs challenged the said sale deed as illegal, null and void and not binding upon their rights in the suit land and further averred that they requested the defendants to get the sale deed executed several times and perform their part of the contract. It is stated that all the facts as narrated has given the cause of action to the plaintiffs to file the present suit against the defendants and prayed that the decree for possession by way of specific performance agreements dated 14.6.1989m 7.7.1989 for the land 30 K 16M be passed in their favour and sale deed in favour of the defendants No. 4 and 5 be declared as illegal, null and vid.

7. Before learned trial Court defendants No. 1 and 2 put up appearance and filed the written statement and contested the suit of the plaintiffs. It may be mentioned herein that defendant No. 1 Rajbir submitted two written statements, one in reply to the main plaint of the plaintiffs and other to the emended plaint of the plaintiffs. In the first written statement defendant No. 1 Rajbir pleaded that the plaintiffs are not entitled for the relief: that the suit is not legally maintainable against the answering defendants; that the suit of the plaintiff has become infructuous as the suit land has already been sold to Chander Prakash and Rajinder Kumar vide sale deeds dated 19.6.1992 and 20.6.1992 and as such the answering defendants are not the owners in possession of the land; that the plaintiffs have not come with clean hands in the Court and has no locus standi to file the present suit; the plaintiffs are estopped by their own act and conduct for filing the suit. On merits, the answering defendants made complete denial of execution of any agreement of sale with the plaintiffs and receipt of any earnest money thereunder and pleaded that the suit of the plaintiff is false and frivolous.

8. In the written statement to the amended plaint, the defendants No. 1 and 2 took similar preliminary objections, which were taken in the earlier written statement. In addition to that the defendants pleaded that the suit of the plaintiffs is not maintainable being hit by the provisions of Order 2 Rule 2 CPC and by the principle of resjudicata. However, on merits, the answering defendants took somersault and admitted the execution of the agreement to sell with the plaintiffs. However, the defendants pleaded that due to shortage of the funds the plaintiffs purchased only 83 K 14 M of land and as such the agreement to sell was fulfil and completed. The defendants pleaded that there was no any further agreement to sell in question came to an end on the execution of the sale deed dated 26.12.1989. The defendants denied that any amount of earnest money was outstanding as pleaded by the plaintiffs. However, they pleaded that the land was under mortgage with Swaran Singh out denied that the mortgage amount was ever paid by the plaintiffs to Swaran Singh to redeem the land. They also denied that the plaintiffs were ever put in possession of the said land and also pleaded that the plaintiffs were never ready and willing to purchase the land. On these averments, it was averred that the suit of the plaintiffs merits dismissal.

9. Defendants No. 4 and 5 the vendees also put up appearance before learned trial Court and contested the suit of the plaitniffs by stating that the suit of the plaintiff is not maintainable against them and the plaintiffs have no cause of action to file the present suit. The defendants are bonafide purchaser without any notice of the previous agreement to sell or litigation between the plaintiffs and the vendors and prayed that the suit of the plaintiffs be dismissed.

3. On the pleadings of the parties, following issues were framed by the trial Court:

1. Whether the plaintiffs are entitled to the decree for possession by way of specific performance of the contract dated 14.6.1989 and 7.7.1989 of the land in dispute on the grounds taken in the plaint? OPP

2. Whether the plaintiffs were ready and willing to perform their part of the contracts? OPD

3. Whether the sale deeds No. 2451 and 2463 dated 19.6.1992 and 20.6.1992 executed by Luxmi Chand defendant in favour of defendants No. 4 and 5 respectively of the land in dispute are wrong, illegal, null and void and not binding upon the rights of the plaintiffs on the grounds taken in the plaint? OPD

4. Whether the plaintiffs have no locus standi to file and maintain the present suit? OPD

5. Whether the present suit is not maintainable in the present form, as alleged? OPD

6. Whether the present suit is hit by provisions of Order 2 Rule 2 CPC as alleged? OPD

7. Whether the plaintiffs are estopped to file and maintain the present suit on their own act and conduct? OPD

8. Whether the suit is false and frivolous and the defendants are entitled to special costs? OPD

8-A Whether the suit of the plaintiffs is hit by the provisions of Order 7 Rule 1 (J) CPC? OPD

9. Relief.

4. After hearing learned Counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiffs had filed a suit for specific performance of agreements to sell dated 14.6.1989 and 7.7.1989. In order to establish the due execution of the agreement to sell dated 14.6.1989 Ex.P-5, the plaintiffs examined PW-3 Kashmiri Lal, deed writer.

5. Plaintiffs also examined PW-5 Dharam Pal, deed writer to prove agreement to sell dated 7.7.1989 Ex.P-6. PW-4 Balwant Singh, attesting witness to both the agreements to sell was also examined to prove due execution of the same. Tarsem Singh, plaintiff No. 1 himself appeared in the witness box as PW-6 and deposed as per the contents of the plaint.

6. Learned Additional District Judge, Fast Track Court, after appreciating the evidence on record led by the parties, held that the execution of both the agreements to sell was duly proved by the plaintiffs. The plea of the appellants was that they were bona fide purchasers and had no notice of the previous litigation or the agreements to sell in question. Since the appellants had purchased the land vide sale deeds Ex.D-1 and Ex.D-2 dated 19.6.1992 and 20.6.1992 respectively during the pendency of the suit, learned Additional District Judge, Fast Track Court rightly held that the appellants could not be said to be bona fide purchasers of the suit land.

7. Learned Counsel for the appellants, during the course of arguments, submitted that the plaintiffs had filed a suit challenging the sale deeds executed in favour of the appellants. The said suit was dismissed on account of non-compliance of Order 39 Rule 3 of the Code of Civil Procedure and hence, the present suit was liable to be dismissed. However, there is no force in the argument raised by learned Counsel for the appellants as the present suit was filed in the year 1991. The suit filed by the plaintiffs, challenging the sale deed in favour of the appellants in the year 1992, was thus filed after the filing of the present suit and the fact that it was dismissed does not render the present suit not maintainable. Since the plaintiffs had been successful in proving the execution of the agreements to sell in question and further that they were ready and willing to perform their part of the contract, learned Additional District Judge, Fast Track Court rightly decreed the suit of the plaintiffs. The plaintiffs in order to establish that they were ready and willing to perform their part of the contract had proved on record the affidavit to establish that they were present in the office of Sub Registrar on 15.6.1990 to perform their part of the contract, whereas, the defendants had failed to turn up to perform their part of the contract.

8. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed.