Gurnaib Singh (since deceased) through LRs v. Mangal Singh & Ors.

Hon'ble Mr. Justice Ajay Tewari Present: Mr.Y.K.Sharma, Advocate for the appellants. Mr. G.S.Dhaliwal, Advocate for the respondents. ****

1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment of the Learned Lower Appellate Court reversing that of trial Courts dismissing the suit of the appellants for specific performance and injunction. The brief facts as set out in the plaint are that the appellants had agreed to purchase the land measuring 48 kanals 14 marlas from Mangal Singh-respondent No.1 on 12.5.1977 for a total consideration of Rs.22,000/-. On that date earnest money of Rs. 7000/- was paid and possession of 15 kanals 12 marlas of land was delivered. It was further agreed that the sale deed be executed on or before 31.05.1979. Thereafter RSA No. 1560 of 1983(O&M) 2 on 31.05.1978 another sum of Rs. 10,000/- was paid and possession of the remaining land was also delivered. However, before the last date for execution of the sale deed, the respondent No.1 sold the entire land to the respondent No.2 by two sale deeds dated 5.12.1978 and 22.12.1978 for a total consideration of Rs.15,000/-. Respondent No.1 admitted all the allegations and thereafter did not appear in the case. Respondent No.2 denied the transaction and alleged that the document Annexure P-1 was in fact created after the sale deed in his favour . He further pleaded the fact that all the witnesses of the different transactions between the appellant and the respondent No.1 were demonstrably hostile to him. He further pleaded that even the subsequent correction of Khasra Girdawari made in favour of the appellant was ex facie pre dated and clearly shown to have been got done in connivance with the revenue authorities. The learned trial Court held that the circumstances pointed out by the respondent No.2 would not conclusively prove the allegation of subsequent fabrication of the original agreement to sell Ex.P1 and decreed the suit. The learned Lower Appellate Court, however, on a redetermination of the evidence held that the trial Court had erred in taking the effect of the circumstances pointed out by respondent No.2 individually. The learned Lower Appellate Court further held that the collective effect of the circumstances pointed out by the respondent No.2 indeed proved that the original agreement to sell Ex.P1 was created subsequent to the sale deed in favour of respondent No.2 and thus could not effect the rights of the said respondent in the purchase of his land At the time when the appeal was filed no question of law was proposed, however, subsequently the learned counsel has proposed the RSA No. 1560 of 1983(O&M) 3 following questions:-

1. Whether the judgment and decree passed by the learned Appellate Court on the basis of non reading and misreading of statements of the witnesses and the documents produced on the record,a re not liable to be set aside?

2. Whether judgment and decree delivered by the learned lower Appellate Court, which remained totally ignorant and rather not making any effort to look into the procedure of maintaining and recording of entries in the Roznamcha Karguzari as envisaged by the provisions of the Punjab Land Record Manual and Punjab Land Administration Manual and thereafter recording an illegal and wrong finding in that eventuality, are not liable to be set aside?

3. Whether an admission qua facts made by a defendant is not binding on the other co-defendant, especially when the interests of such defendants is common and that such defendants are commonly contesting the plaintiff's case?

4. Whether the learned Appellate Court was not legally bound to decree the appellant's suit at least to the extent of recovering of Rs. 17,000/- from Mangal Singh defendant- respondents who had categorically admitted the factum of receiving an amount of Rs. 17,000/- and delivery of possession of disputed land to the plaintiff-appellant in pursuance of the execution of agreement to sell Ex.P-1?

5. Whether in the light of the factum of delivering of possession of the suit land by Mangal singh defendant to Gurnaib Singh plaintiff, the sale deed executed by Mangal Singh in favour of Mutaj Ali does not render the sale deed to be a mere paper transaction and therefore is not liable to be declared as having no effect and not binding on the rights of Gurnaib Singh, plaintiff? It would be seen that questions No.1, 3 and 5 are pure questions of fact. Question No.2 is indeed a question of law but in my opinion even if this question of law is decided in favour of the appellant and it is held that RSA No. 1560 of 1983(O&M) 4 on this question the learned Lower Appellate Court erred yet the same would not have the effect of wiping out the cumulative effect of circumstances which have been pointed out very cogently by the learned Lower Appellate Court in his judgment. Learned counsel has taken me through the findings of both the Courts below and has also persuaded me to peruse the original agreement to sell Ex.P1. On a conspectus of the entire facts as has been brought out in the judgments of the Courts below I have not been able to persuade myself to hold that the findings of fact recorded by the learned Lower Appellate Court are either based on no evidence or are based on such perverse misreading of evidence so as to render them liable for interference under Section 100 CPC. With regard to question No.4, learned counsel has argued that once respondent No.1 had admitted receipt of the amount, it was incumbent upon the Court to order refund thereof. In my opinion once it has been held that the document was actually created after the sale deeds in favour of the respondent No.2, the admission by respondent No.1 that he had received the money etc. could have no effect. Consequently question No.4 is also answered against the appellant. In the circumstances all the questions proposed are answered against the appellant. Consequently this appeal is dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. March 23, 2010 sunita (AJAY TEWARI) JUDGE