Sohan Singh & Ors. v. Savinder Kaur & Ors.

Defendant Nos.3 to 5 have filed the instant second appeal after remaining unsuccessful in both the Courts below. Respondent No.1-plaintiff Savinder Kaur filed suit against respondent Nos.2 and 3 as defendant Nos.1 and 2, the appellants as defendant Nos.3 to 5 and respondent No.4 as defendant No.6. Defendant Nos.2 to 6 are sons of defendant No.1-Ran Singh. Plaintiffs' case is that defendant Nos.1 and 2 agreed to sell the suit land measuring 8 kanals to the plaintiff for Rs.1,50,000/- and received Rs.40,000/- as earnest money and executed agreement to sell dated 19.06.1997. Sale deed was to be executed upto 30.12.1997. Defendants No.3 to 6, who are sons of defendant No.1 and brothers of defendant No.2, were well aware of the aforesaid agreement. However, defendant No.1 in order to defeat the agreement executed sale deed RSA No.2859 of 2010 (O & M) -2- dated 06.11.1997 of his share in the suit land in favour of defendant Nos.3 to 6. The said sale deed is paper transaction without any consideration. On coming to know of the said sale deed, plaintiff sent notice dated 27.11.1997 to the defendants. As per terms of the agreement, the plaintiff went to the office of Sub-Registrar on 30.12.1997 with requisite money to get the sale deed executed, but the defendants failed to turn up. The plaintiff accordingly sought relief of possession of the suit land by specific performance of the aforesaid agreement. Defendant Nos.1 and 2 in their separate written statements admitted the execution of the agreement and receipt of earnest money by them. Defendant No.1 controverted the other plaint averments. Defendant No.2 alleged that he never refused to abide by the terms of the agreement. It was, however, admitted by defendant No.2 that defendant Nos.3 to 6 had knowledge of the said agreement. It was also admitted that sale deed dated 06.11.1997 is a paper transaction without consideration. Defendant Nos.3 to 6 broadly denied the plaint allegations. They alleged that agreement in question is result of fraud. The agreement is false and fabricated. Defendant No.2 colluded with plaintiff to cheat the remaining defendants. It was also pleaded that defendant Nos.3 to 6 are bona fide purchasers of the suit land vide sale deed dated 06.11.1997 for valuable consideration without knowledge of the alleged agreement. Said defendants are residing separately. Various other pleas were also raised. Learned Civil Judge (Junior Division), Patiala vide judgment and decree dated 02.06.2006 decreed the plaintiff's suit. First appeal preferred by the defendant Nos.3 to 5 has been dismissed by learned RSA No.2859 of 2010 (O & M) -3- Additional District Judge, Patiala vide judgment and decree dated

14.11.2009. Feeling aggrieved, defendant Nos.3 to 5 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. The plaintiff besides herself stepping into the witness-box examined Tej Pal Singh Puri PW-2 Document Writer, who scribed the agreement and Gurnam Singh PW-3 and Bharpur Singh PW-4 both attesting witnesses of the agreement. All of them have stated according to version of the plaintiff. On the other hand, Harmesh Singh- defendant No.5 appeared as DW-4. Defendants also examined Jarnail Singh DW-1, Shivi Chand DW-2 and Gurnam Singh DW-3. All of them broadly stated according to version of the defendants. Plaintiff's evidence is sufficient to prove due execution of the agreement by defendant Nos.1 and 2 and receipt of earnest money by them. Scribe of the said agreement has been examined. He not only proved execution of the agreement, but also proved entry in his register regarding the said agreement. Both attesting witnesses of the agreement have also been examined by the plaintiff. They have also stated about due execution of the agreement by defendant Nos.1 and 2 and receipt of earnest money by them. Gurnam Singh PW-3 is Ex- Sarpanch whereas Bharpur Singh PW-4 is Lambardar. There is no ground to discard their statements. Their testimony could not be impeached in cross-examination. On the other hand, all witnesses of the defendants including defendant No.5 stated that they had no knowledge about the impugned agreement. They did not know if the said agreement had been executed by the defendant Nos.1 and 2. Consequently, there is not RSA No.2859 of 2010 (O & M) -4- even an iota of evidence to depict that the said agreement was not executed by defendant Nos.1 and 2 whereas there is sufficient cogent and reliable evidence led by the plaintiff to prove due execution of the said agreement by defendant Nos.1 and 2. In addition to the aforesaid, there is another significant aspect of the matter. Both defendants No.1 and 2 in their written statements have admitted the execution of the aforesaid agreement and also receipt of earnest money of Rs.40,000/- by them. Defendant No.2 even expressed his readiness and willingness to perform his part of the contract. He also alleged that sale deed dated 06.11.1997 by defendant No.1 in favour of defendant Nos.3 to 6 is a paper transaction executed without any consideration. Defendant No.2 is none-else, but real brother of contesting defendant Nos.3 to 6. From the aforesaid discussion, it emerges that plaintiff has successfully proved execution of the agreement by defendant Nos.1 and 2 and receipt of earnest money by them. Concurrently finding of the Courts below to this effect does not suffer from any infirmity much less illegality or perversity. Learned counsel for the appellants vehemently contended that defendant Nos.3 to 6 are bona fide purchasers of the suit land for valuable consideration and they were not aware of the alleged agreement in favour of plaintiff. The contention cannot be accepted. Defendant Nos.3 to 6 are none-else but real sons of defendant No.1, who executed the sale deed in question in their favour. In these circumstances, defendant Nos.3 to 6 cannot be said to be bona fide purchasers of the suit land. It may be added that Shivi Chand DW-2 specifically admitted in cross-examination that defendant No.1 and his sons were living together in the year 1997 i.e at the time of agreement RSA No.2859 of 2010 (O & M) -5- as well as at the time of impugned sale deed. For this added reason as well, it cannot be said that defendant Nos.3 to 6 were not aware of the impugned agreement nor it can be said that defendant Nos.3 to 6 are bona fide purchasers of the suit land. Whole claim of defendant Nos.3 to 6 is mala fide and result of sheer dishonesty. Sale deed in their favour was executed by their father defendant No.1 as a result of mala fide intention to defeat the agreement in favour of the plaintiff. Entire conduct of the defendant Nos.3 to 6 is mala fide. The instant second appeal is completely frivolous and is required to be dismissed with exemplary costs to curtail as such frivolous litigation. Concurrent finding recorded by both the Courts below is based on proper appreciation of evidence and is fully justified by evidence on record and is supported by cogent reasons. The same cannot be said to be erroneous, illegal or perverse in any manner so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is frivolous and meritless and is accordingly dismissed in limine with exemplary costs of Rs.10000/- to be deposited by the appellants with the Registry of this Court within one month from today. If the costs amount is not so deposited, the case shall be listed for this purpose.

09.12.2010. A. Kaundal ( L. N. MITTAL ) JUDGE