Rikhia v. Som Raj & Ors.

performance, have been dismissed by learned first Appellate Court vide its judgment and decree dated 24.8.2009. For the purpose of decision of these cases, facts are extracted from RSA No.159 of 2010 (Rikhia Vs.Som RSA No.159 of 2010 (O&M) 2 Raj and others). Pleaded case of the parties is that Som Raj plaintiff, filed a suit for confirmation of possession/ for possession as owner of land measuring 27 kanals 5 marlas alongwith proportionate share in the Mushtarka Malkan land and Shamlat land by way of a decree for specific performance of an agreement to sell dated 11.12.1994 on payment of balance sale consideration and in the alternative, prayed for recovery of Rs.60,000/-. The case set up by plaintiff Som Raj is that defendant No.1 (Rikhia) agreed to sell aforesaid land to him vide agreement dated

11.12.1994 for a total sale consideration of Rs.50,000/- against which they paid Rs.40,000/- as earnest money to him and got the possession of the suit land. Sale deed was to be executed on or before 15.6.1995 on payment of balance sale consideration of Rs.10,000/-, but in the meantime, on

3.2.1995, plaintiff came to know that defendant No.1. (Rikhia) has executed the sale deed in respect of the remaining land to defendant Nos. 2 and 3 (Suresh Kumar and Kewal Krishan). Plaintiff approached the Joint Sub Registrar, Talwara and after disclosing the agreement in his favour requested him not to entertain the sale deed dated 3.2.1995 for registration which was refused by Joint Sub Registrar, Talwara to be registered. Defendants then started negotiations for settlement/compromise with the plaintiff which continued till 25.4.1995 on which date, defendants undertook that if the plaintiff did not object to the registration of sale deed dated 03.2.1995 in favour of defendant Nos. 2 snd 3, then after registration of sale deed dated 3.2.1995, defendant No.2 and 3 shall transfer 20 kanals of land out of the suit land to the plaintiff for Rs. 38,500/- after RSA No.159 of 2010 (O&M) 3 adjustment in Rs.40,000/- already paid by plaintiff to defendant No.1 as earnest money. Plaintiff agreed to the said undertaking and did not raise objection against registration of the sale deed dated 3.2.1995 which was registered on 25.4.1995. On the same date, defendant Nos. 2 and 3 with the consent of defendant No.1 purchased stamp papers worth Rs.5000/- given by the plaintiff for the purpose of execution of sale deed dated

25.4.1995 in favour of the plaintiff in respect of 20 kanals of land. However, the sale deed could not. be registered on that date because it already became very late and Joint Sub Registrar, Talwara had left his office. Defendants told the plaintiff that they would get the sale deed registered on Thursday as per practice because the document used to be registered by Sub Registrar, Talwara, on Tuesdays and Thursdays i.e.

27.4.1995. Plaintiff kept on waiting for the defendants in the office of Joint Sub Registrar but they did not turn up. Plaintiff had been requesting the defendants to register the sale deed dated 25.4.1995 which was ultimately refused on 28.5.1995. Plaintiff then served a registered notice dated

29.5.1995 upon defendant No.1 asking him to come present in the office of Sub Registrar, Talwara on 15.6.1995 for the purpose of execution of sale deed as per agreement but he did not come. Plaintiff got his affidavit dated

15.6.1995 attested from the Executive Magistrate/Sub Registrar, Talwara and hence filed this suit. Defendant Nos.1,2 and 3 and 4 filed their separate written statements. In the written statement filed by defendant No.1, it was alleged that defendant Nos. 2 and 3 are owner in possession of the suit land. He denied the execution of the agreement in favour of the plaintiff and receipt of earnest money. He alleged the agreement was result of fraud and RSA No.159 of 2010 (O&M) 4 claimed that possession of the suit land was never delivered to the plaintiff. Defendant Nos. 2 and 3 alleged that plaintiff had agreed to substitute a new contract for the contract in dispute to which none of the parties is bound having been substituted. It was alleged that defendant No.1. had executed the sale deed of his entire property in village Bari in favour of defendant Nos. 2 and 3 on 3.2.1995 and when the plaintiff learnt then he won over the marginal witnesses not to accompany the executant of the document i.e. Defendant No.1. before Joint Sub Registrar, Talwara, as a result of which the document could not be executed. It was also claimed that on 25.4.1995, the matter was negotiated. Defendant No.1 denied his liability under disputed agreement dated 11.12.1994, but defendant Nos.2 and 3 who had purchased the land from defendant No.1. orally agreed to transfer 5 kanals of land out of 27 kanals 5 marlas to the plaintiff. It was agreed that defendant Nos. 2 and 3 would execute the sale deed after mutation is sanctioned in their favour and in order to put a check on defendant Nos. 2 and 3 they (defendant Nos. 2 and 3) were asked to purchase stamp paper worth Rs.5000/- and for Rs.5/- from Sub Treasury, Talwara. Signatures of defendant Nos.2 and 3 were obtained on blank stamp papers as well as in the Register of Ajay Parmar, petition writer, Talwara. The blank stamp papers were handed over in trust to the petition writer to keep them in safe custody till the parties again come after mutation of land. It was alleged that it is the plaintiff who had committed breach of trust in connivance with the petition writer and got scribed the sale deed on stamp paper worth Rs.5000/- as well as affidavit on stamp paper worth Rs.5/- later on by incorporating wrong terms and conditions to the extent of land sold. Thus, it was alleged that plaintiff's conduct is sufficient to RSA No.159 of 2010 (O&M) 5 debar him from seeking specific performance of an agreement dated

11.12.1994. It was also alleged that defendant No.1. was owner as well as in possession of the suit land which was sold to defendant Nos. 2 and 3 on

3.2.1995 who were not aware of the contract dated 11.12.1994. The parties to the agreement dated 11.12.1994 did not appear before Sub Registrar on

3.2.1995 as the plaintiff had won-over the marginal witnesses which was on the basis of compromise vide which defendant Nos. 2 and 3 had agreed to execute the sale deed and got the same registered in respect of 5 kanals of land. Sale deed dated 3.2.1995 was duly presented to the Joint Sub Registrar and was registered. It was alleged that draft sale deed dated

25.4.1995 in favour of the plaintiff is against law and terms settled between the parties in the presence of Tarsem Singh and Ranjit Singh. In the written statement filed by defendant No.4, he has alleged that he had purchased the land measuring 6 kanals 17 marlas from defendant Nos. 2 and 3 for consideration of Rs.86,000/- on 13.11.1997 and had no knowledge about the pendency of the suit. Thus, he is a bonafide purchaser for consideration without notice. Plaintiff filed replication to separate written statements filed by the defendants reiterating the averments made in the plaint and denying the assertions made in the written statements. On the pleadings of the parties, following issues were framed:-

1.Whether the suit of the plaintiff is not maintainable in the present form ? OPD

2.Whether the plaintiff is estopped to file this suit by his act and conduct? OPD

3.Whether the defendant no.1 execute an agreement to sell RSA No.159 of 2010 (O&M) 6 dated 11.12.1994 in favour of the plaintiff and he received Rs.40,000/- as earnest money at the time of execution of the agreement in question ? OPP

4.Whether the possession of the suit land was delivered to the plaintiff at the time of execution of the agreement in question? OPP

5.Whether the plaintiff had been ready and willing to perform his part of the contract / agreement? OPP.

6.Whether the defendants committed breach of agreement dated

11.12.1994 ?OPD

7.Whether the defendants Nos.2 and 3 are bonafide purchasers of the suit property for consideration without notice of the alleged rights of the plaintiff as per alleged agreement? OPD Nos.2 & 3.

8.Whether the plaintiff is entitled to specific performance of the agreement, if so on what terms ? OPP

9.Whether the plaintiff is entitled to the alternative relief of refund of earnest money and payment of damages? If so to what amount?OPP.

10.Relief. On 29.4.1999, the issue were re-casted as under:-

1.Whether the defendant no.1 agreed to sell the suit properties to the plaintiff vide agreement dated 11.12.1994 for consideration of Rs.50,000/- and received Rs.40,000/- as earnest money? OPP. RSA No.159 of 2010 (O&M) 7

2.If issue no.1 is proved whether the plaintiff had all along been ready and willing to perform his part of contract? OPP.

3.Whether the plaintiff is entitled to specific performance of contract or for alternative recovery of Rs.60,000/-? OPP

4.Whether agreement dated 11.12.94 was superseded and substituted by a written agreement on 25.4.1994 as prayed? OPD.

5.Relief. In order to substantiate its case, plaintiff examined Ajay Kumar as PW-1, Vijay Kumar as PW-2 and himself appeared as PW-3 and also examined PW-4 Ved Parkash and PW-5 Ram Nath and thereafter closed his evidence after tendering jamabandi for the year 1994-95 as Ex.P-12 and certified copy of general power of attorney dated 2.11.2000 Mark BX. Whereas defendants examined Ranjit Singh as DW-1, defendant No.4 Gurdev Singh himself appeared as DW-2, defendant No.1. Rikhia appeared as DW-3 and Suresh Kumar appeared as DW-4. The defendants closed their evidence after tendering copy of jamabandi for the year 1999-2000 as Ex.D5, copy of khasra girdawari as Ex.D-6, copy of khasra girdawari as Ex.D-7 and copy of order as Ex.D-8. Learned trial Court after taking into consideration both oral as well as documentary evidence available on record decreed the suit of the plaintiff against which Civil Appeal No.104 of 2004 was filed by Rikhia (defendant No.1) and Civil Appeal No.105 of 2004 was filed by Suresh Kumar and others (defendant Nos. 2 to 4). Both the appeals were taken up together by the learned first RSA No.159 of 2010 (O&M) 8 Appellate Court as they pertain to judgment and decree of the trial court and after discussing the facts once again in extenso, both the appeals have been dismissed vide judgment and decree dated 24.8.2009. Insofar as agreement to sell is concerned which has been denied to have been executed by defendant No.1.(Rikhia), learned first Appellate Court has returned following findings. “I have carefully considered the submissions made before me. The agreement dated 11.12.1994 has been proved on file as Exhibit P6. This agreement was executed by defendant no.1 in favour of plaintiff, agreeing to sell 27 kanals 5 marlas of land, in favour of plaintiff, for a total sale consideration of Rs.50,000.00. Defendant no.1 also received Rs.40,000.00 as earnest money on the date of execution of agreement to sell. PW4 Ved Prakash is the attesting witness of the agreement. He has filed an affidavit in support of his examination in chief, stating therein that the agreement was scribed by Parkash Chand Patwari, on the instructions of defendant no.1 Rikhia and after the scribing of the agreement, it was read over by Parkash Chand and after admitting the same to be correct, Rikhia had put his thumb impressions on the agreement and a sum of Rs.40000.00 was then paid by the plaintiff Som Raj and Rikhia, out of total sale consideration of Rs. 50,000.00. The witness also stated that Sarpanch Ram Nath of Village Bari was also present at the time of execution of the agreement, who also put his signatures as a witness. PW4 also identified his signatures on the agreement. PW5 Ram Nath is the other attesting witness of the agreement. He has also deposed on the similar lines as deposed by PW4. Besides these two witnesses, plaintiff himself stepped into witness box and deposed about the agreement to sell and stated that RSA No.159 of 2010 (O&M) 9 defendant no.1 had entered into agreement for sale of land measuring 27 kanals 5 marlas and received Rs.40,000.00 as earnest money. As agreement to sell (Ex.P6) has been proved, there is no explanation as to why Joint Sub Registrar, Talwara, would refuse to register the sale deed dated 03.2.1995 executed by defendant No.1 in favour of defendant Nos. 2 and 3. It was also held by learned Court below that had the marginal witnesses of the sale deed been won over by the registration of the sale deed dated 3.2.1995, the defendants could have arranged new witnesses and got the sale deed registered. The cumulatively, learned Court below found that the defence taken by the defendant is an after-thought because there was no question of defendant Nos 2 and 3 agreeing to sell only 5 kanals of land to plaintiff as there is no explanation why they did sign document Ex-P1 with regard to 20 kanals of land as their 0signatures are available on original sale deed as well as on its second copy”. As far as super-session of original document is concerned, it has been held by learned first Appellate Court as under:- “Original agreement in the given circumstances cannot be said to be substituted by oral agreement. It would have been so, if defendants no.2 and 3 admitted their liability to execute the sale deed in respect of 20 kanals of land and not 5 kanals of land, on the basis of which, it could be said that agreement stood substituted by a new agreement. When there is difference about terms and conditions orally agreed then there is no question of new agreement substituting the original agreement. The findings of learned trial court on various issues are accordingly up held”. In the present case, learned counsel for the appellant could RSA No.159 of 2010 (O&M) 10 not raise any substantial question of law as envisaged under Section 100 of Code of Civil Procedure, 1908 (for short,'CPC') because all that has been argued is the repetition of submissions made before learned Courts below which have been duly taken care of by both the learned Courts below and concurrent finding has been recorded. In view of the above. I do not find any merit in the present appeals and the same are hereby dismissed upholding the judgment and decree of both the Courts below,however, with no order as to costs. February 03,2010 RR (Rakesh Kumar Jain) Judge