High Court
Case Details
Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 this, appellant of RSA 6062-2018 namely Sa(cid:25)sh is neither a party to the other appeal nor he has any concern with the subject ma er of property involved in RSA 2191-2017. As such, RSA 2191-2017 is being disposed of separately. 3. Present regular second appeal is directed by the plain(cid:25)ff of the suit against the judgment & decree dated 31.05.2018 of the First Appellate Court of learned Addl. District Judge, Sonepat, affirming the judgment & decree dated 30.11.2016 of the trial Court, whereby suit filed by the plain(cid:25)ff (appellant herein) seeking decree for possession of the suit property by way of specific performance of an agreement to sell, was partly decreed by ordering refunding of the earnest money, but declining the relief of specific performance. 4. Trial Court record was called. The same has been perused. In order to avoid confusion, the par(cid:25)es shall be referred as per their status before the trial Court. 5.1 Defendant No.1 – Kanwar Bhan (now respondent through his LRs) was owner of the suit property, i.e. a house measuring 300 sq. yards, the plot underneath of which was purchased by him by virtue of a registered sale deed No.3438 dated 27.10.1976. 5.2 According to plain(cid:25)ff Sa(cid:25)sh, said Kanwar Bhan agreed to sell the suit property to him (plain(cid:25)ff) vide an agreement to sell dated 14.07.2000 for total sale considera(cid:25)on of ₹3,60,000/-. En(cid:25)re sale considera(cid:25)on was paid and the possession was delivered to him. Vendor – Kanwar Bhan was required to pay all the outstanding dues and obtain the necessary NOC and inform the vendee-plain(cid:25)ff. No target date was fixed for execu(cid:25)on of the sale deed. It was pleaded further by the plain(cid:25)ff that he was always ready and willing to perform his part of contract and s(cid:25)ll ready and willing to do so. He requested defendant – Kanwar Bhan many (cid:25)mes to obtain the NOC from the concerned departments; and that he was ready to pay the necessary expenses for geEng the sale deed executed and registered in his favour, but the defendant avoided to do so. Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 2 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 5.3 It was pleaded further that the plain(cid:25)ff came to know that
Legal Reasoning
defendant Kanwar Bhan had suffered two consent decrees both dated 18.12.2008 in Civil Suit No.867 and 868 both ins(cid:25)tuted on 15.09.2008 in
Legal Reasoning
favour of his two daughters, namely Bimla Devi and Smt. Laxmi (impleaded in the suit as defendants N: 2 & 3 – respondents N: 1 (iii) & (iv) herein) regarding ½ share each of the suit property, to wriggle out of the agreement to sell and those decrees were got registered on 12.01.2009. These judgments & decrees are alleged by the plain(cid:25)ff to be null, illegal and void and not binding on his rights. He requested the defendant N: 1 many (cid:25)me to execute the sale deed in his favour in performance of the agreement to sell and further requested him to obtain the NOC from the concerned department and to treat the decrees dated 18.12.2008 registered on 12.01.2009 to be not crea(cid:25)ng any (cid:25)tle in favour of defendant Nos.2 and 3, i.e. Bimla Devi and Smt. Laxmi, but they avoided his request. 5.4 Plain(cid:25)ff pleaded further that with the interven(cid:25)on of the respectables, a compromise dated 04.08.2010 was executed between plain(cid:25)ff and defendant No.1, wherein said defendant agreed to execute the sale deed in his favour up to 15.09.2010 aIer obtaining NOC from the concerned department. However, defendant avoided to do so. Plain(cid:25)ff then served a legal no(cid:25)ce and as defendant s(cid:25)ll did not execute the sale deed, he appeared in the office of Sub Registrar on 30.09.2010 along with all the necessary expenses for geEng the sale deed executed and registered in his favour, but defendant did not turn up. 5.5 With all the aforesaid averments, plain(cid:25)ff prayed for decree of possession by way of specific performance of agreement to sell dated 14.07.2000 in respect of the house in ques(cid:25)on. He further prayed for decree of declara(cid:25)on that Civil Court decrees dated 18.12.2008 got registered on 12.01.2009 passed in Civil Suit No.867 of 2008, and 868 of 2008 in favour of defendant Nos.2 and 3, i.e. Bimla Devi and Smt. Laxmi, were null, illegal and void and were not binding on his rights in any manner. Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 3 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 6.1 Defendant No.1 – Kanwar Bhan filed wri en statement and admi ed the execu(cid:25)on of the agreement dated 14.07.2000, but claimed that total sale considera(cid:25)on was ₹5,60,000/-, out of which he had been paid ₹3,60,000/- and that the plain(cid:25)ff had agreed to pay the balance amount of ₹2,00,000/-. He denied that the possession was delivered to the plain(cid:25)ff. He further pleaded that he requested the plain(cid:25)ff many (cid:25)mes to get the sale deed executed and registered on making payment of balance considera(cid:25)on of ₹2,00,000/-, but plain(cid:25)ff showed no interest in the sale and ul(cid:25)mately, the agreement was rescinded in the year 2006. Defendant N: 1 also pleaded that the plain(cid:25)ff was estopped to file the present suit by his own act and conduct. 6.2 Regarding the two consent decrees favouring defendant Nos.2 and 3 – Bimla Devi and Smt. Laxmi, i.e. his two daughters, it was claimed by defendant No.1 that these were result of fraud, collusion and misrepresenta(cid:25)on, as by taking advantage of his old age and health issues, these defendants ac(cid:25)ng in fiduciary capacity by playing fraud, obtained the said consent decrees and that he (defendant N: 1) had already challenged the same by filing two separate civil suits. He prayed for dismissal of the suit. 7. Defendant Nos.2 and 3, Bimla Devi and Smt. Laxmi, i.e. daughters of Kanwar Bhan, in their joint wri en statement, claimed that suit property had fallen to their share in a family se lement and consequently, separate decrees in their favour were passed in the Lok Adalat and the same were got registered by Kanwar Bhan. They further pleaded that due to temperamental differences, Kanwar Bhan challenged both the judgment & decrees dated 18.12.2008 by filing Civil Suit No.187 of 2009 (cid:25)tled “Kanwar Bhan v. Laxmi Devi”, which was dismissed on 21.05.2010; and another Civil Suit (cid:25)tled “Kanwar Bhan v. Bimla”, which was also dismissed. It was further pleaded by these defendants that aIer the outcome of civil suit (cid:25)tled “Kanwar Bhan v. Laxmi Devi”, defendant No.1 – Kanwar Bhan in connivance with the plain(cid:25)ff, Katar Singh, Advocate and his son Ramesh has prepared forged and fac(cid:25)(cid:25)ous agreement to sell with back date with malafide inten(cid:25)on to grab the suit property. The said fabrica(cid:25)on finds corrobora(cid:25)on Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 4 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 from the fact that the compromise dated 4.8.2010 was later on prepared in connivance with one Suresh s/o Mool Chand. With this stand, both these defendants prayed for dismissal of the suit. 8.1 During pendency of the suit, defendant N: 1 Kanwar Bhan expired. His legal representa(cid:25)ves – 2 sons namely, Ramesh & Ashok; and 3 daughters namely, Bimla, Laxmi & Anju, were brought on record. Thus, LRs of deceased defendant N: 1 includes contes(cid:25)ng defendant Nos.2 and 3, 8.2 Necessary issues were framed. Evidence led by both the par(cid:25)es was taken on record. 8.3 Trial Court came to the conclusion that agreement to sell dated 14.7.2000 Ex.P1 was duly proved for considera(cid:25)on of ₹3,60,000/- and that the stand of defendant No.1 to the effect that sale considera(cid:25)on was ₹5,60,000/-, was not proved. It was further held by the trial Court that no cogent evidence was produced by any of the par(cid:25)es regarding the subsequent compromise dated 04.08.2010 Ex.P4. The trial Court also found that the suit had been filed aIer more than 10 years from the date of execu(cid:25)on of the agreement to sell and that plain(cid:25)ff never appeared to be ready and willing to perform his part of contract. As such, declining the relief for specific performance, the trial Court partly decreed the suit on 30.11.2016 by ordering defendant No.1 (through his LRs) to refund the earnest money of ₹3,60,000/- along with interest. Since it was found that consent decrees had been suffered by Kanwar Bhan in favour of his daughters Bimla Devi and Smt. Laxmi; and the suit filed by Kanwar Bhan against those consent decreed had already been dismissed, therefore, these LRs, i.e. Bimla Devi and Smt. Laxmi, were directed to refund the earnest money of ₹3,60,000/- to the plain(cid:25)ff out of the estate of Kanwar Bhan. 9.1 Both the par(cid:25)es went in appeal against the above-said judgment and decree dated 30.11.2016 of the trial Court. While plain(cid:25)ff challenged the decree of the trial Court by claiming that he was en(cid:25)tled for the relief of Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 5 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 specific performance; defendant Nos.2 and 3, i.e. Bimla Devi & Smt. Laxmi prayed for dismissing the suit in toto. 9.2 Both the appeals were heard together by the First Appellate Court and the same were dismissed by a common judgment dated 31.05.2018, which has led to the filing of present regular second appeal by plain(cid:25)ff of the case – Sa(cid:25)sh. 10.1 It is vehemently contended by learned counsel for the appellant that execu(cid:25)on of the agreement to sell dated 14.07.2000 was duly admi ed by defendant No.1 – Kanwar Bhan in his wri en statement filed during his life (cid:25)me. It is further submi ed that the claim of said defendant No.1 that total sale considera(cid:25)on was of ₹5,60,000/- and not ₹3,60,000/-, is not proved from the record because as per the agreement to sell (Ex.P1) and receipt Ex.P2, total sale considera(cid:25)on was agreed to be ₹3,60,000/-. It is pointed out that there is concurrent finding of both the Courts below in this regard. It is argued further that as per the agreement (Ex.P1), possession of the suit property was delivered to the plain(cid:25)ff and thus, the only part to be performed on behalf of the plain(cid:25)ff was to pay the necessary expenses for stamp & registra(cid:25)on charges, for which he was always ready, but as per the agreement, it was the duty of the defendant-vendor – Kanwar Bhan to obtain necessary NOC and inform the plain(cid:25)ff in this regard. Learned counsel argues that no target date was fixed for execu(cid:25)on of the agreement and despite reques(cid:25)ng the defendant many (cid:25)mes, defendant failed to obtain necessary NOC and get the sale deed executed and registered in favour of the plain(cid:25)ff. 10.2 Learned counsel contends further that during the subsistence of the agreement to sell, defendant N: 1 had suffered the consent decrees dated 18.12.2008 in favour of his two daughters regarding ½ share each of the suit property and that these decrees are not binding upon him. It is argued that the findings of the Courts below to the effect that the plain(cid:25)ff has no right to challenge these decrees, is not sustainable, as it is the plain(cid:25)ff, who is affected by those decrees, which had been suffered by Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 6 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 defendant – Kanwar Bhan during the subsistence of the agreement to sell in favour of the plain(cid:25)ff. 10.3 With these submissions, learned counsel has prayed for seEng aside the judgments of the Courts below, whereby the relief for specific performance has been declined to him. Prayer is made for decreeing the suit for specific performance, by allowing this appeal. 11. Refu(cid:25)ng the aforesaid conten(cid:25)ons, it is argued by learned counsel for the contes(cid:25)ng respondents-defendants, i.e. Bimla Devi and Smt. Laxmi that (cid:25)ming of filing the suit is very important to be no(cid:25)ced. The suit had been filed on 13.10.2010, i.e. aIer more than 10 years from the date of alleged execu(cid:25)on of the agreement to sell (Ex.P1). It is argued that pursuant to the family se lement effected between defendant No.1, i.e. father Kanwar Bhan, and daughters Bimla Devi & Smt. Laxmi, the suit property had fallen to their share and consequent thereto, consent decrees were passed in their favour as suffered by Kanwar Bhan and both these decrees were got registered by Kanwar Bhan himself before the Sub Registrar, Sonepat. At that (cid:25)me, plain(cid:25)ff Sa(cid:25)sh did not have any right or (cid:25)tle in the suit property, as agreement to sell in itself does not create any (cid:25)tle in favour of prospec(cid:25)ve vendee. 12. It is argued further that it is on account of temperamental differences that Kanwar Bhan challenged both the consent decrees by filing two separate civil suits, but both of them have been dismissed. Learned counsel has specifically pointed out that civil suit (cid:25)led “Kanwar Bhan v. Laxmi” was dismissed on 21.05.2010 and it is only thereaIer that the subsequent compromise dated 04.08.2010 (Ex.P4) has been fabricated by the plain(cid:25)ff in connivance with Kanwar Bhan and one Suresh. It is argued that it is only thereaIer that present suit has been filed on 13.10.2010 in collusion with defendant No.1 – Kanwar Bhan and the sons of said Kanwar Bhan, i.e. brothers of respondents - Bimla Devi and Smt. Laxmi, to deprive these defendants of the suit property. With these submissions, prayer is made for dismissal of the appeal. Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 7 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 13. Vide an order dated 24.01.2020, this Court had directed the par(cid:25)es to maintain status quo qua the property in dispute. Ma er was also referred for media(cid:25)on vide order dated 19.01.2023 but it appears that media(cid:25)on proceedings did not fruc(cid:25)fy. 14 The plain(cid:25)ff – appellant brought COCP No.1645 of 2021 under Sec(cid:25)on 10 read with Sec(cid:25)on 12 of the Contempt of Court Act for ini(cid:25)a(cid:25)ng proceedings against the respondents by alleging that despite status quo order dated 24.01.2020, which was directed to be con(cid:25)nued from (cid:25)me to (cid:25)me, the respondents were raising construc(cid:25)on over the suit property, as was evident from photographs (Annexures P-4). 15. Opposing the aforesaid contempt pe(cid:25)(cid:25)on, it is contended by the respondents that in the appeal as well as in the applica(cid:25)on bearing CM No.16929-C-2018 in RSA-6062-2018, the only prayer made by the appellant was to restrain the respondents from aliena(cid:25)ng, transferring, crea(cid:25)ng any encumbrance and/or changing the nature of the suit property during the pendency of the appeal and that status quo was accordingly granted by this Court. It is contended that as there was no specific order qua construc(cid:25)on/ repair work by this Court and as the respondents were only repairing their property, since the roof had collapsed due to rain and were not raising any new construc(cid:25)on, therefore, pe(cid:25)(cid:25)on deserved to be dismissed, as making repairs does not amount to contempt. 16. This Court has considered submissions of both the sides and has appraised the en(cid:25)re record carefully. 17. The en(cid:25)re basis of the plain(cid:25)ff’s claim is agreement to sell dated 14.07.2000 (Ex.P1) regarding which both the Courts below have given concurrent finding to the effect that the same has been proved. However, on perusal of the en(cid:25)re evidence on record, this Court finds that both the Courts below have miserably failed to no(cid:25)ce the (cid:25)ming of bringing the suit and behind the scene ac(cid:25)vi(cid:25)es of plain(cid:25)ff – Sa(cid:25)sh in connivance and collusion with defendant Kanwar Bhan and his son Ramesh, in fabrica(cid:25)ng this Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 8 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 agreement to sell in an a empt to deprive defendants Bimla Devi and Smt. Laxmi of their property, which had been given to them by Kanwar Bhan by suffering decrees on 18.12.2008 and which were got registered by Kanwar Bhan himself on 12.01.2009. 18. Perusal of agreement to sell (Ex.P1) and receipt (Ex.P2) would reveal that these are purported to be executed between plain(cid:25)ff Sa(cid:25)sh and defendant Kanwar Bhan and witnessed by Katar Singh, Advocate and Ramesh S/o Kanwar Bhan. Ex.P1 is purported to be typed on a stamp paper, but no date is men(cid:25)oned on the stamp paper regarding its purchase. 19. To prove the afore said agreement to sell, plain(cid:25)ff – Sa(cid:25)sh appeared in the witness box as PW1 and further examined Katar Singh, Advocate as PW2. Though, both of them deposed about its execu(cid:25)on, but none of them is able to disclose, as to who had purchased the stamp paper for the said agreement to sell (Ex.P1) and from whom it was purchased and on which date. Both of them concede that except the digit 14, nothing else is visible on the stamp paper to show the date of its purchase. None of them is able to depose that from whom it was purchased. No such stamp vendor has been examined. 20. Further, none of these witnesses are able to tell, as to who had draIed the agreement Ex.P1. Neither the name of the person, who had draIed the agreement, is men(cid:25)oned on the agreement nor any of these witnesses was able to disclose his name. None of them is able to tell as to whether the draIsman, who had prepared this agreement, had got it entered in his register and whether it was notarized or not. In the later part of his cross-examina(cid:25)on, PW2 – Katar Singh candidly admi ed that as per him, the agreement was neither entered by the document writer in his register nor it was got notarized. 21. S(cid:25)ll further, although it is men(cid:25)oned in the agreement to sell (Ex.P1) that aIer receipt of the sale considera(cid:25)on of ₹3,60,000/-, the possession was handed over to the prospec(cid:25)ve vendee, i.e. plain(cid:25)ff – Sa(cid:25)sh, Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 9 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 but both the witnesses admi ed that the possession was not delivered. As per PW1 – plain(cid:25)ff - Sa(cid:25)sh, it is Ramesh (son of Kanwar Bhan), who resides in the disputed house, though in the later part, he tried to improve by sta(cid:25)ng that possession was delivered to him. But in his cross-examina(cid:25)on, PW1 - plain(cid:25)ff admits that he resides in Chawla Colony. 22. PW2 Katar Singh pleads ignorance as to whether the possession of the house was delivered to the plain(cid:25)ff or not. PW2 also admits that he knew Kanwar Bhan for the last 15-16 years prior to the date of agreement. He further admits that Sa(cid:25)sh, i.e. plain(cid:25)ff also knew Kanwar Bhan, as he used to frequently come to his shop. 23. Case of the plain(cid:25)ff regarding delivery of possession is further demolished by the tes(cid:25)mony of DW3 – Ramesh, who being the a es(cid:25)ng witness proves the execu(cid:25)on of Ex.P1 and PW2, but stated in the cross- examina(cid:25)on that his father Kanwar Bhan used to reside in the same house, regarding which the agreement to sell was executed, (cid:25)ll his father expired. Kanwar Bhan had expired in December, 2013, which means that possession was not at all delivered to the plain(cid:25)ff at the (cid:25)me of agreement to sell or later. PW1 plain(cid:25)ff – Sa(cid:25)sh also admits during his cross-examina(cid:25)on that he had come to the Court with Ramesh. 24. Not only above, plain(cid:25)ff sought decree for possession of suit property by specific performance. In case, he had been actually delivered possession at the (cid:25)me of agreement to sell, he would have asked for symbolic possession and not actual possession. In case, s(cid:25)ll there was any doubt about delivery of possession, plain(cid:25)ff himself removed it by pleading in the contempt pe(cid:25)(cid:25)on that defendants - respondents were raising construc(cid:25)on over the suit property, which further establishes that it is the contes(cid:25)ng defendants, who are in possession of the suit property, which they got by way of the consent decrees suffered by their father – Kanwar Bhan in their favour Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 10 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 25. All the above circumstances clearly indicate that agreement to sell (Ex.P1) was prepared in the back date so as to deprive the defendants of their right in the suit property. As it appears that defendant – Kanwar Bhan gave a sham contest to the suit by pleading that sale considera(cid:25)on was ₹5,60,000/- and not ₹3,60,000/- just to show the Court that he was contes(cid:25)ng the case against the plain(cid:25)ff. 26. For the sake of arguments, let it be assumed that agreement to sell was actually executed considering the fact that defendant – Kanwar Bhan admi ed so in his wri en statement. S(cid:25)ll, evidence is absolutely lacking on record to prove the readiness and willingness on the part of the plain(cid:25)ff. No doubt that no target date is men(cid:25)oned in the agreement to sell for execu(cid:25)on and registra(cid:25)on of the sale deed, but as plain(cid:25)ff claims that en(cid:25)re sale considera(cid:25)on had been paid to him, there was no reason for not geEng the sale deed registered on the date of execu(cid:25)on of the agreement to sell itself or within reasonable (cid:25)me thereaIer. 27. As it is proved from the evidence on record, as discussed above that actual possession was never delivered to the plain(cid:25)ff, there was absolutely no ques(cid:25)on for the plain(cid:25)ff not to approach the Court for seeking specific performance of the contract within limita(cid:25)on period from the date of execu(cid:25)on of the agreement, par(cid:25)cularly when he had already paid the en(cid:25)re considera(cid:25)on to vendor Kanwar Bhan, as claimed by him. Plain(cid:25)ff claims that defendant – Kanwar Bhan was required to obtain the necessary NOC and clear the dues and then to inform him. Again, this appears to be a ruse so as to extent the period of limita(cid:25)on. In case, plain(cid:25)ff had paid en(cid:25)re sale considera(cid:25)on and as it is found that he was not delivered the possession of the suit property, he would have asked the defendant within reasonable (cid:25)me to execute the sale deed in his favour. 28. Plain(cid:25)ff claims that he asked the defendant several (cid:25)mes to obtain the NOC and get the sale deed executed and registered in his favour, but no date whatsoever is men(cid:25)oned in the plaint or in his evidence as to on what dates, he approached the defendant – Kanwar Bhan for geEng the NOC Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 11 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 and execute the sale deed in his favour. S(cid:25)ll further, if non-obtaining of the NOC by defendant – Kanwar was a reason for not earlier approaching the Court, same was the posi(cid:25)on when the suit was filed in October, 2010. 29. Plain(cid:25)ff claims that by way of a compromise (Ex.P4) executed on 04.08.2010, defendant agreed to obtain the necessary NOC and get the sale deed registered in his favour, but nothing has been placed on record that any NOC was obtained, but the plain(cid:25)ff s(cid:25)ll filed the present suit. In case, defendant had not obtained the NOC, why he filed the suit, is not clear, as same was the posi(cid:25)on earlier. 30. Further, the (cid:25)ming of the filing of the suit is very important. Kanwar Bhan had suffered two decrees both dated 18.12.2008 in favour of his daughters, Bimla Devi and Smt. Laxmi regarding ½ share each of the suit property and got these decrees registered on 12.01.2009. Later on, said Kanwar Bhan challenged the decrees by filing separate suits. The suit (cid:25)tled “Kanwar Bhan v. Laxmi” was dismissed on 21.05.2010 and it is only thereaIer that the purported compromise Ex.P4 dated 04.08.2010 was brought in existence and then the suit was filed on 13.10.2010. The other suit (cid:25)tled “Kanwar Bhan v. Bimla”, challenging the consent decree in favour of Bimla was also dismissed later on 23.7.2014. Evidently, frustrated by the dismissal of his suit (cid:25)tled “Kanwar Bhan v. Laxmi” on 21.5.2010, Kanwar Bhan & his son Ramesh colluded with plain(cid:25)ff Sa(cid:25)sh in preparing a pre-dated agreement to sell dated 14.7.2000 in collusion with Katar Singh Advocate to deprive the defendants Bimla & Laxmi of the suit property. 31. One of the conten(cid:25)ons raised by learned counsel for the appellant is that the Courts below have wrongly held that the plain(cid:25)ff did not have the locus standi to challenge the decrees suffered by Kanwar Bhan in favour of his daughters. This Court concurs with the view taken by courts below in this regard. It is Kanwar Bhan, who was aggrieved by the consent decrees, in case these were got suffered by Bimla Devi and Smt. Laxmi in any fraudulent manner. It has already come on record that Kanwar Bhan had filed separate suits so as to challenge both these decrees, but both those suit Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 12 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 were dismissed. Even otherwise, it has been found that agreement to sell (Ex.P1) was just a sham document prepared by plain(cid:25)ff – Sa(cid:25)sh in connivance and collusion with Kanwar Bhan and his son Ramesh so as to deprive Bimla Devi and Smt. Laxmi from their property, which they got by way of the consent decrees suffered by Kanwar Bhan in their favour. 32. Though, on account of the admission of defendant – Kanwar Bhan in his wri en statement regarding receipt of ₹3,60,000/-, it has been held by the Courts below that plain(cid:25)ff is en(cid:25)tled to the said amount from the estate of the deceased Kanwar Bhan, but it has been wrongly held that the said amount is recoverable from Bimla Devi and Smt. Laxmi, who had got the suit property. These defendants had become owner of the suit property by virtue of the consent decree dated 18.12.2008 registered on 12.01.2009. When the suit for refund of earnest money was decreed by the trial Court, Kanwar Bhan was no longer the owner of the property in dispute. As such, it cannot be stated that at the (cid:25)me when the decree was passed or when Kanwar Bhan expired in December, 2013, Bimla Devi and Smt. Laxmi inherited the suit property from Kanwar Bhan. As such, plain(cid:25)ff will be en(cid:25)tled to the refund of ₹3,60,000/- along with interest as ordered by the Courts below only from that estate leI behind by Kanwar Bhan at the (cid:25)me of his death, which was in existence at the (cid:25)me of his death and is in the hands of any of his legal heirs. Defendants Bimla Devi and Smt. Laxmi, who had become owner of the suit property by way of the consent decrees in 2009, cannot be held responsible for refund of the earnest money, as they did not inherit the suit property on the death of Kanwar Bhan as no(cid:25)ced above. 33. On account of the en(cid:25)re discussion as above, this Court does not find any merit whatsoever in the appeal as filed by the plain(cid:25)ff-appellant. The same is hereby dismissed. 34. As far as COCP is concerned, the whole basis of plain(cid:25)ff’s case since beginning was that he was in possession of the suit property as delivered to him at the (cid:25)me of agreement to sell (Ex.P1). It has been found from the discussion of evidence as above that the actual possession was Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 13 of 14 RSA No.6062 of 2018 (O&M) COCP No.1645 of 2021 (O&M) 2025:PHHC: 021615 2025:PHHC: 021618 never delivered to the plain(cid:25)ff. So much so, even in the suit, plain(cid:25)ff had prayed for decree for possession by way of a specific performance. He did not ask for the symbolic possession, in case the possession had already been delivered to him. This in itself shows that the plain(cid:25)ff was never in possession of the suit property. By pleading in the contempt pe(cid:25)(cid:25)on that defendants were raising construc(cid:25)on over the suit property, it further stands established that it is the contes(cid:25)ng defendants - respondent, who are in possession of the suit property, which they got by way of the consent decrees suffered by their father – Kanwar Bhan in their favour. 35. Thus, this Court finds that plain(cid:25)ff – appellant has not approached the Court with clean hands as his suit itself is based upon false suit. Therefore, this Court does not find it appropriate to exercise its discre(cid:25)on in ini(cid:25)a(cid:25)ng any contempt proceedings against the defendants - respondents simply because they did any repairs in the suit property. 36. Consequently, there is no merit in the contempt pe(cid:25)(cid:25)on and as such, the same is hereby dismissed.
Decision
Pending applica(cid:25)ons, if any stand disposed of. Photocopy of this order be placed on the connected case file. February 14, 2025 Sarita (DEEPAK GUPTA) JUDGE Whether speaking/reasoned? Whether reportable? Yes/No Yes/No Sarita Rani 2025.02.15 12:17 I attest to the accuracy of this document/order Page 14 of 14