17.03.2025 Kamal Kumar and others v. CORAM:- HON'BLE
Case Details
(cid:1)(cid:2)(cid:3)(cid:4)(cid:1)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:1)(cid:6)(cid:12)(cid:1)(cid:13)(cid:10)(cid:11)(cid:9)(cid:1)(cid:14)(cid:15)(cid:16)(cid:17)(cid:18) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3401 of 2014 (O&M) Reserved on:07.03.2025 Pronounced on: 17.03.2025 Kamal Kumar and others .....Appellants Bhupinder Singh and another .....Respondents Vs. CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA Present:- Mr. Sanjiv Gupta, Advocate for the appellants. Mr. Samar Ahluwalia, Advocate and Mr. Akshay Jindal, Advocate for the respondents. **** DEEPAK GUPTA, J. Defendants of the case are before this Court in the present Regular Second Appeal against the concurrent findings of the Courts below, inasmuch as suit for possession by way of specific performance regarding the property in dispute filed by plain(ffs (respondents herein) was decreed by the trial Court on 01.03.2011 and the First Appellate Court upheld the said findings vide judgment dated 07.09.2013, dismissing the appeal of the defendants (appellants herein). 2. Trial Court record was called. Same has been perused. In order to avoid confusion, the par(es shall be referred as per their status before the trial Court. 3. As per the case pleaded by the plain(ffs, Surinder Kumar (defendant No.1) and his brother Mohinder (predecessor-in-interest of defendants No.2 to 4) agreed to sell 24 kanal of their land detailed in the plaint @ ₹4,65,000/- per acre vide an agreement dated 31.05.2005 Ex.P1. They received an amount of ₹2 lakhs as earnest money. Sale deed was agreed to be executed and got registered on or before 26.12.2005 on payment of the balance sale considera(on. It was claimed by plain(ffs that they have always been ready and willing to perform their part of contract. Prior to the target date, one of the vendor – Mohinder expired on RENU 2025.03.18 15:40 I attest to the accuracy and integrity of this document Chandigarh Page No.1 out of 10 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:1)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:1)(cid:6)(cid:12)(cid:1)(cid:13)(cid:10)(cid:11)(cid:9)(cid:1)(cid:14)(cid:15)(cid:16)(cid:17)(cid:18)
Facts
22.10.2005 and his rights were inherited by defendants No.2 to 4. On the target date of 26.12.2005, plain(ffs appeared in the Office of Sub-Registrar, Barara but since it was a holiday, defendants did not turn up. Plain(ffs got an affidavit prepared from the Deed Writer. On the next day, i.e. 27.12.2005, the plain(ffs again visited the Office of Sub Registrar, Barara and waited for the defendants whole of the day but they did not turn up, though plain(ffs were having the balance sale considera(on and the remaining amount necessary for execu(on and registra(on of the sale deed. Plain(ffs then got their presence marked in the Office of Sub Registrar in this regard. It is submiDed that they requested the defendants several (mes to execute the sale deed and get it registered in terms of the agreement but they refused, compelling the plain(ffs to file the suit. 4. Contes(ng the suit, defendants in their wriDen statement, denied execu(on of the agreement to sell. They further denied receipt of any earnest money. They further claimed that suit property was ancestral in nature and that defendants did not have any legal necessity to sell the suit land. The consent of the major members of the family was not taken by Mohinder Kumar & Surinder Kumar before execu(ng the alleged agreement to sell. With the stand and controver(ng all other averments in the plaint, they prayed for dismissal of the suit. 5. Necessary issues were framed. Evidence produced by the par(es was taken on record. Trial Court decreed the suit and the Appellate Court upheld the findings, as have been no(ced earlier. 6.1
Legal Reasoning
judgment of this Court in Surinder Mohan Batra and others Vs. Gurbinder Pal Singh Tiwana and another, Law Finder Doc Id # 2506139. By contending that both the Courts below have rightly appreciated the evidence on record and that there is no scope for interference, prayer is made for dismissal of the appeal. 8. This Court has considered submissions of both the sides and have appraised the record carefully. 9. Although defendants denied the execu(on of agreement to sell dated 31.05.2005 (Ex.P1) but it is duly proved on record, as has been found by the Courts below. Not only plain(ff - Bhupinder Singh examined as PW2 proved the same, plain(ffs even examined Gian Chand Verma, Deed Writer as PW3 and one of the aDes(ng witness Shish Pal as PW1, who duly proved the execu(on of the agreement to sell. Counsel for the appellants tried to convince this Court that amount of ₹2 lakhs was not received by Surinder Kumar but the said conten(on has absolutely no merit. The perusal of the agreement to sell-cum-receipt Ex.P1 would reveal that on the revenue stamp, signatures of both Surinder Kumar and Mohinder Kumar appear. Not only this, the receipt of the earnest money as well as execu(on of the agreement to sell is duly proved by the tes(mony of aDes(ng witness PW1- Shish Pal. He has been grilled at length during his cross-examina(on but withstood the said test. There is no reason to disbelieve him. As such, conten(on of the counsel for the appellants that agreement to sell or RENU 2025.03.18 15:40 I attest to the accuracy and integrity of this document Chandigarh Page No.4 out of 10 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:1)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:1)(cid:6)(cid:12)(cid:1)(cid:13)(cid:10)(cid:11)(cid:9)(cid:1)(cid:14)(cid:15)(cid:16)(cid:17)(cid:18) receipt of earnest money was not proved, has absolutely no merit. 10. Based on the evidence produced on file, it has been observed by the First Appellate Court that Muta(on No.961 Ex.DY/3, Surinder Kumar and Mohinder Kumar had got the land in dispute by virtue of a Will of their father Shri Vidya Parkash and once it is so, by no stretch of imagina(on, the suit property in the hands of Mohinder Kumar and Surinder Kumar can be said to be the ancestral property. It assumes the character of self-acquired property. Defendants failed to produce any evidence on record to show that Mohinder Kumar and Surinder Kumar had inherited the property form their father and who had inherited it from his father and then his grandfather had inherited it from his father. In these facts and circumstances, Courts below rightly held that suit property was not ancestral in nature. 11. Coming to the next conten(on, as per the legal no(ce dated 19.12.2005 (Ex.P5), sent by defendants through their counsel to the plain(ffs, which has been placed on record during evidence by the plain(ffs, it was alleged by the defendants that agreement to sell was got executed under pressure but s(ll they were ready to refund double the amount as per the agreement. The said legal no(ce was sent prior to the target date of 26.12.2005 and based upon this no(ce, it is contended by learned counsel for the appellants- defendants that agreement to sell stood terminated and that plain(ffs were required to challenge the said termina(on. 12. There is no merit in the afore-said conten(on due to many reasons. Firstly, the contents of the agreement to sell Ex.P1 would reveal that it is clearly s(pulated therein that in case of failure of the vendees to get the sale deed executed, the earnest money paid by them shall stand forfeited and the bargain stand cancelled. However, in case the vendors failed to execute the sale deed, in that eventuality, the vendees have been given two op(ons, firstly, to get the agreement enforced through the Court; RENU 2025.03.18 15:40 I attest to the accuracy and integrity of this document Chandigarh Page No.5 out of 10 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:1)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:1)(cid:6)(cid:12)(cid:1)(cid:13)(cid:10)(cid:11)(cid:9)(cid:1)(cid:14)(cid:15)(cid:16)(cid:17)(cid:18) and secondly, to get double the amount of the earnest money. Plain(ffs have opted for the first op(on i.e. by preferring the suit for geNng enforced the agreement through the Court of law. 13. The defendants were not en(tled to cancel the bargain unilaterally by sending a no(ce to the plain(ffs. In I.S. Sikander's case (supra), relied by counsel for the appellants, the seller terminated the agreement. Suit for specific performance was filed by the purchaser. It was held that plain(ff was first required to seek declaratory relief to declare the termina(on of the agreement to sell as bad in law. However, facts of I.S. Sikander's case (supra), are quite dis(nguishable from the facts of the present case. 14. Similar conten(on was dealt in at length by a Co-ordinate Bench of this Court in Surinder Mohan Batra's case (supra), wherein also conten(on was raised that communica(ons dated 21.05.2005, 23.05.2005 and 24.05.2005, whereby vendors had pressed their desire to back out from the agreement was raised. It was held by this Court as under:- “16. The second argument of the learned counsel is with respect to failure of the plain(ffs to challenge the alleged communica(ons dated 21.05.2005, 23.05.2005 and 24.05.2005. In fact, this issue has been examined in detail by this Court in Suksham Lata @ Kusum Lata and another vs. Jagdish Ram, (RSA No.1783 of 2014, decided on 10.12.2018) and Ashok Kumar and others vs. Purshotam Bansal (Regular Second Appeal No.4201 of 2012, decided on 02.02.2018), in the following manner:- "Secondly, the facts in the case of I.S.Sikandar (supra) are en(rely different. In that case, within the s(pulated period, the plain(ff did not come forward to execute the sale deed, despite this fact, the defendants got issued a no(ce, calling upon the plain(ff to come and execute the sale deed but the plain(ff did not come forward. Plain(ff in reply admiDed his fault in performing his part of the contract and sought extension. The defendants once again sent a RENU 2025.03.18 15:40 I attest to the accuracy and integrity of this document Chandigarh Page No.6 out of 10 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:1)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:1)(cid:6)(cid:12)(cid:1)(cid:13)(cid:10)(cid:11)(cid:9)(cid:1)(cid:14)(cid:15)(cid:16)(cid:17)(cid:18) no(ce to the plain(ff, extending (me and asking him to pay the sale considera(on amount and get the sale-deed executed and on failure to comply with the same, the agreement to sell would stand terminated/cancelled. The plain(ff did not even come forward to perform his part within the extended (me. Under these circumstances, the Hon'ble Supreme Court has held that the plain(ff was required to seek a declara(on that the cancella(on/termina(on of the agreement to sell was illegal while filing a suit for specific performance of the agreement to sell. 17. Addi(onally the aDen(on of the Supreme Court was not drawn to the dis(nc(on between the suit filed for the cancella(on of an instrument and the suit filed for declara(on. The first category of the suits are governed by Sec(on 31 of the Specific Relief Act, 1963 (hereinaRer referred to as 'the 1963 Act'), whereas the second category of the suits are governed by Sec(on 34 of the 1963 Act. Sec(on 31 of the 1963 Act envisages a wriDen instrument. The ques(on of a no(ce sent, cancelling the agreement to sell would not fall within the purview of a wriDen instrument. The expression "wriDen instrument" has been used in the context of an agreement, giR deed, mortgage deed, sale deed etc. which are signed by the par(es and if such instrument is void or voidable, the court is required to cancel the instrument. Whereas, in the second category of cases, a person en(tled to any legal declara(on or as to right to any property may file a suit for grant of decree of declara(on. This dis(nc(on has been drawn by the Hon'ble Supreme Court in Suhrid Singh alias Sardool Singh vs. Randhir Singh and others, (2010) 12 SCC 112, in context of liability to pay ad-valorem court fee. 18. This maDer can be examined from yet another angle. Sec(on 22 of the 1963 Act enables the court to grant relief for possession, par((on and refund of earnest money etc. Clause (b) of sub-Sec(on (1) of Sec(on 22 enables the court to grant any other relief to which any person suing for specific performance is found en(tled to. No doubt, sub-Sec(on (2) provides that such relief shall not be granted by the Court unless it has been specifically prayed for. However, the mandatory nature of sub-sec(on RENU 2025.03.18 15:40 I attest to the accuracy and integrity of this document Chandigarh Page No.7 out of 10 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:1)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:1)(cid:6)(cid:12)(cid:1)(cid:13)(cid:10)(cid:11)(cid:9)(cid:1)(cid:14)(cid:15)(cid:16)(cid:17)(cid:18) (2) is taken away by the proviso which has been explained in a recent judgment passed by the Supreme court in Manickam @ Thandapani and another vs. Vasantha, 2022 (2) RCR (C) 862. Moreover, in Mrs. A.Kanthamani vs. Mrs. Nasreen Ahmed, 2017(4) SCC 654, the Supreme Court dis(nguished the judgment passed in I.S. Sikander(dead) by LRs vs. K. Subramani and others, (2013) 15 SCC 27. 19. In these circumstances, it would not be appropriate to non-suit the plain(ff on a hyper-technical objec(on which does not affect the merits of the case. Moreover, it is a well seDled principle that the Court in the facts and circumstances of the case is en(tled to mould the relief keeping in considera(on the peculiar facts of the case. 20. Addi(onally, the aDen(on of the Supreme Court in I.S.Sikander's case (supra) was not drawn to Order VII Rule 7 CPC which provides that it shall not be necessary to ask for general or other relief which may always be given as the court may think just and proper. In common parlance, this is called the moulding of relief. In Neelawwa vs. Shivawwa, ILR 1988 KAR 2761, a Division Bench of the Karnataka High Court explained the scope of Order VII Rule 7 CPC to hold that the Court even in absence of a specific prayer for par((on and separate possession should have passed a preliminary decree for par((on. In this judgment, the Division Bench relied upon a previous judgment passed in Rangappa vs. Jayamma , ILR 1987 Karnataka 2889, to the same effect. In fact, this issue was also examined in a different context by the Supreme Court in Kidar Lal Seal and another vs. Hari Lal Seal , AIR 1952 SC 47, it was held as under:- "The Court would be slow to throw out a claim on a mere technicality of pleading when the substance of a thing is there and no prejudice is caused to the other side and it is always open to a Court to give the plain(ff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs." 21. Similarly, other High Courts have also taken the same view. RENU 2025.03.18 15:40 I attest to the accuracy and integrity of this document Chandigarh Page No.8 out of 10 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:1)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:1)(cid:6)(cid:12)(cid:1)(cid:13)(cid:10)(cid:11)(cid:9)(cid:1)(cid:14)(cid:15)(cid:16)(cid:17)(cid:18) Furthermore, the judgment passed in I.S.Sikander's case (supra), it was held that the aforesaid judgment has been passed on the facts involved therein and is thus dis(nguishable. Reliance in this regard can be placed on a judgment passed in Mrs.A.Kanthamani vs. Mrs. Nasreen Ahmed, 2017(40) SCC 654. In such circumstances, it will not be appropriate to dismiss the suit filed by the plain(ffs only on a hyper technical objec(on which does not affect the merits of the case.” 15. In the facts and circumstances of the present case, I.S. Sikander's case (supra) is absolutely not applicable to this case. Rather, it is the legal posi(on explained by co-ordinate Bench of this Court in Surinder Mohan Batra's case (supra), which shall be applicable and by relying upon the same, it is held that plain(ffs cannot be non-suited for not seeking any declara(on regarding the legal no(ce dated 19.12.2005 (Ex.P5). 16. The last conten(on of learned counsel for the appellants is that both the vendors Mohinder Kumar and Surinder Kumar had expired during pendency of the suit, therefore, Court should not have exercised its discre(on to grant relief of specific performance. It may be noted that though Mohinder Kumar expired prior to filing of the suit but as far as Surinder Kumar is concerned, he filed the wriDen statement and contested the suit. It is only on 01.03.2011, when the case was fixed for arguments before the trial Court that it was brought to the no(ce of the Court that Surinder had expired and so amended (tle was filed by impleading his legal representa(ves as par(es. 17. In Hemanta Mondal's case (supra), on which counsel for the appellants has placed reliance, the possession had not been given to the plain(ff at the (me of execu(on of the agreement nor the area of the land agreed to the sold was clear and it was in these circumstances that it was held that plain(ff had not done substan(al acts or suffered any losses due to expenditure in construc(on etc., in consequence of the contract capable of specific performance and so, the relief of specific performance was declined. RENU 2025.03.18 15:40 I attest to the accuracy and integrity of this document Chandigarh Page No.9 out of 10 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:1)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:1)(cid:6)(cid:12)(cid:1)(cid:13)(cid:10)(cid:11)(cid:9)(cid:1)(cid:14)(cid:15)(cid:16)(cid:17)(cid:18) 18. However, in the present case, defendants- appellants could not point out any act, which was required to be done by the plain(ffs- vendees and which they did not do prior to filing of the suit. Whatever they were required to do, as per the agreement to sell, they did. They appeared before the Sub Registrar along with the balance sale considera(on and expenses required for execu(on and registra(on of the sale deed, but defendants did not turn up. Counsel for the appellants could not point out any such hardship, which would be caused to the appellants in case of grant of relief of specific performance. 19. In the afore-said facts and circumstances and the en(re discussion as above, this Court does not find any ground whatsoever so as to interfere in the well-reasoned concurrent findings as recorded by the Courts below, decreeing the suit of the plain(ffs- respondents for grant of specific performance. There is no scope calling for any interference, as there is neither any mis-apprecia(on of evidence nor any misreading of evidence nor any such evidence has been pointed out by counsel for the appellants, which has not been taken into considera(on. As such, holding the present appeal to be devoid of any merit, the same is hereby dismissed. March 17 , 2025 renu (DEEPAK GUPTA) JUDGE Whether Speaking/reasoned Whether Reportable Yes/No Yes/No RENU 2025.03.18 15:40 I attest to the accuracy and integrity of this document Chandigarh Page No.10 out of 10 pages
Arguments
Assailing the afore-said concurrent findings, it is contended by learned counsel for the appellants- defendants that Courts below have failed to properly appreciate the en(re facts and circumstances. Both the alleged vendors i.e. Mohinder Kumar as well as Surinder Kumar had expired during pendency of the suit and so, the alleged agreement to sell was not binding on their legal heirs. It is contended that suit property was ancestral in nature and that there was no legal necessity for Mohinder Kumar and RENU 2025.03.18 15:40 I attest to the accuracy and integrity of this document Chandigarh Page No.2 out of 10 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:1)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:1)(cid:6)(cid:12)(cid:1)(cid:13)(cid:10)(cid:11)(cid:9)(cid:1)(cid:14)(cid:15)(cid:16)(cid:17)(cid:18) Surinder Kumar to sell the suit property nor the consent of other legal heirs was obtained. Further conten(on of learned counsel is that in fact suit property was on lease with the plain(ffs. The lease period had expired. Defendants had even offered an amount of ₹4 lakhs i.e. double the amount as men(oned in the alleged agreement to sell, so as to terminate the agreement by way of legal no(ce dated 19.12.2005 (Ex.P5). However, plain(ffs did not challenge the said no(ce Ex.P5 termina(ng the agreement and to receive double the earnest money and, therefore, the suit itself is not maintainable. Learned counsel has relied upon a judgment of Hon'ble Supreme Court in I.S. Sikander (D) By LRs Vs. K. Subramani and others, 2013 (15) SCC 27. 6.2 It is further the conten(on of learned counsel that relief of specific performance is a discre(onary in nature. Both the vendors have since expired and, therefore, the Courts below were not jus(fied in exercising the discre(on for decreeing the suit for specific performance. He relied upon another judgment of Hon'ble Supreme Court in Hemanta Mondal and others Vs. Sri Ganesh Chandra Naskar, 2015 AIR (SC) 3757. 6.3 It is further argued that the Court will not grant the decree of specific performance, if it would give an unfair advantage to the plain(ff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. Learned counsel for this reasoning has referred Bal Krishna and another Vs. Bhagwan Dass (Dead) & others, 2008(2) RCR (Civil) 732. 6.4 With all these conten(ons, prayer is made for dismissing the suit as filed by the respondents- plain(ffs by allowing this appeal. 7. Refu(ng the afore-said conten(ons, it is argued by learned counsel for the respondents- plain(ffs that there is no scope for interference in the concurrent findings of facts, inasmuch as there is definite finding that suit property was not ancestral in the hands of Surinder Kumar and Mohinder Kumar, as they had got it by way of Will of their RENU 2025.03.18 15:40 I attest to the accuracy and integrity of this document Chandigarh Page No.3 out of 10 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:1)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:11)(cid:1)(cid:6)(cid:12)(cid:1)(cid:13)(cid:10)(cid:11)(cid:9)(cid:1)(cid:14)(cid:15)(cid:16)(cid:17)(cid:18) father. Further, in legal no(ce dated 19.12.2005 (Ex.P5), which is false and frivolous, defendants had admiDed the agreement as well as the receipt of the earnest money and it is for this reason that they had asked the plain(ffs to accept double the amount of the earnest money i.e. ₹4 lakhs and had asked them to return the original deed of agreement to sell dated 31.05.2005. S(ll further, it is contended that authority in I.S. Sikander's case (supra) is clearly dis(nguishable on facts and that in the facts of the present case, it was not required for the plain(ffs to challenge the no(ce dated 19.12.2005 (Ex.P5). For that, learned counsel has relied upon a