IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT

CHANDIGARH

REGULAR SECOND APPEAL NO.________OF 2012

M E M O O F P A R T I E S

Kanahya Lal son of Sh. Tarsem Lal, resident of Maharana Partap Nagar, Palahi
Road, Phagwara, Tehsil Phagwara, District Kapurthala.
Appellant (Plaintiff)
Versus
1. Harjit Singh,
2. Balwinder Singh,
both sons of S. Balkar Singh (since deceased), residents of Village and Post
Office Rawalpindi, Tehsil Phagwara, District Kapurthala.
3. Raghbir Singh minor son of Avtar Singh son of S. Balkar Singh (since
deceased) through his mother Smt. Paramjit Kaur, resident of Village and Post
Office Rawalpindi, Tehsil Phagwara, District Kapurthala.
4. Amarjit Singh son of Sh. Kartar Chand, resident of Mohalla Bhagatpura,
Phagwara, District Kapurthala.
5. Sarabjit Singh Walia son of S. Harbans Singh, resident of Village and Post
Office Bhullarai, Tehsil Phagwara, District Kapurthala.
Respondents


CHANDIGARH. (SUNIL CHADHA)
DATE: 29.08.2012 ADVOCATE
COUNSEL FOR THE APPELLANT
G R O U N D S O F A P P E A L


1. That vide the impugned judgment and decree dated 14.05.2012, the Court of
learned Additional District J udge, Kapurthala, has acted illegally and with
material irregularity in accepting the appeal filed by respondents no. 1 to 4
against a well reasoned judgment and decree dated 13.12.1999 passed by the
Court of learned Additional Civil J udge (Senior Division), Phagwara and
consequently, dismissing suit of the appellant/plaintiff, on surmises and
conjectures. Vide judgment and decree dated 13.12.1999 passed by the Court of
learned Additional Civil J udge (Senior Division), Phagwara, suit of the
appellant/plaintiff for specific performance of agreement to sell dated 11.12.1995
executed by Smt. Piar Kaur and his son S. Balkar Singh (predecessor-in-interest
of respondents no. 1 to 3) in respect of the suit land was decreed in favour of the
appellant/plaintiff.

2. That stating briefly, vide an agreement to sell dated 11.12.1995, Smt. Piar
Kaur through her son-cum-attorney Balkar Singh and her son Balkar Singh (since
deceased and now being represented by his legal heirs-respondents no.1 to 3)
himself agreed to sell land measuring 8 Kanals 02 Marlas (wrongly mentioned as
8 Kanals 12 Marlas in the agreement) admeasuring 36 x 40 Karams, comprised
in Khasra No. 510, Khata no. 23/30, situated in Village Khati, Tehsil Phagwara,
District Kapurthala @ Rs. 1,25,000/- per Kanal; appellant/plaintiff paid an amount
of Rs. 2,25,000/- as earnest money and as per the said agreement, sale deed in
respect of the said land (hereinafter referred to as the suit land) was agreed to be
executed on or before 11.02.1996; day to execute sale deed was extended from
11.02.1996 to 09.04.1996, then to 19.04.1996 and finally to 10.05.1996; while
extending the day to execute the sale deed on 12.02.1996 to 09.04.1996, an
additional amount of Rs. 75,000/- was paid by the appellant/plaintiff to the
aforesaid vendors towards earnest money; thus, making total earnest money
paid to the vendors as Rs. 3 lacs; however, on the schedule date i.e. 10.05.1996,
despite the fact that the appellant/plaintiff remained present in Tehsil Complex
with the balance sale consideration amount to get the sale deed executed,
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vendors failed to turn up to execute the sale deed; when the repeated requests of
the appellant/plaintiff to the vendors to execute sale deed including a legal notice
dated 11.05.1996 served upon them to this effect failed to evoke any response,
appellant/plaintiff filed the suit dated 16.12.1996 against the aforesaid vendors
seeking specific performance of the aforesaid contract/agreement to sell dated
11.12.1995; it is pertinent to mention here that since Smt. Piar Kaur had sold a
part (2 Kanals 2 Marlas out of Khasra No. 510) through sale deed dated
15.05.1996 in favour of Sarabjit Singh and still further, both the vendors further
sold an area measuring 4 Kanals 14 marlas including land comprised in Khasra
no. 510 in favour of Amarjit Singh vide yet another sale deed dated 16.05.1996,
both the said subsequent vendors, namely, Amarjit Singh and Sarabjit Singh
were also arrayed as defendants no.3 and 4 in the said suit by making challenge
to their aforesaid respective sale deed.

On receiving notice of the aforesaid suit filed by the appellant/plaintiff, both
the vendors filed a joint written statement. The stand taken by both the vendors
in their said joint written statement was a complete denial in respect of execution
of the agreement to sell dated 11.12.1995. They even denied having received
earnest money of Rs. 2,25,000/- on 11.12.1995 and Rs. 75,000/- on 12.02.1996.

Defendant no. 3 i.e. Amarjit Singh filed a separate written statement, wherein he
also denied execution of the agreement in question by the vendors in favour of
the appellant/plaintiff and at the same time he alleged that he is a bonafide
purchaser for valuable consideration and without notice. It is also not out of place
to mention here that defendant no. 3 Amarjit Singh is none other than the brother
of son-in-law of Balkar Singh (defendant no.1).

Defendant no.4 since never appeared before the learned Court below,
therefore, he was proceeded against ex-parte.

Appellant/plaintiff filed replication to the aforesaid written statements i.e.
one filed by defendants no. 1 and 2 and the other filed by defendant no. 3.
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Vide judgment and decree dated 13.12.1999, the Court of learned
Additional Civil J udge (Senior Division), Phagwara while holding that the
appellant/plaintiff has proved on record due execution of the agreement to sell
dated 11.12.1995, decreed the suit of the appellant/plaintiff with costs for
possession by way of specific performance of the agreement to sell dated
11.12.1995 by directing him to deposit the remaining sale consideration with
other expenses in the Court within one month. Since Smt. Piar Kaur, one of the
vendors had died, therefore, Balkar Singh (defendant no.1), the other vendor
being the attorney of Smt. Piar Kaur, was directed to execute the sale deed as
attorney of Smt. Piar Kaur and also on his behalf in favour of the
appellant/plaintiff after receiving the sale consideration and in the event of failure
of defendant no.1 to execute the sale deed within two months, the
appellant/plaintiff was held entitled to get the sale deed executed through Court.
It is pertinent to mention here that in pursuance to the said judgment and decree
dated 13.12.1999, the appellant/plaintiff deposited the remaining sale
consideration of Rs. 7,13,500/- with the Court.

Feeling aggrieved from the aforesaid judgment and decree dated
13.12.1999 passed by the Court of learned Additional Civil J udge (Senior
Division), Phagwara, legal heirs of Balkar Singh i.e. respondents no. 1 to 3 and
Amarjit Singh filed R.F.A. No. 611 of 2004 before this Honble Court as at that
point of time, pecuniary jurisdiction was with this Honble Court as the subject
matter of the case in hand was beyond Rs. 5 lacs. However, in view of the
Notification dated 26.08.2006, the said appeal (R.F.A. No. 611 of 2004) was
transferred to the court of learned District & Sessions J udge, Kapurthala for its
adjudication. Vide the impugned judgment and decree dated 14.05.2012, the
Court of learned Additional District J udge, Kapurthala, while illegally accepting
the said appeal of respondents no. 1 to 4, set aside a well reasoned judgment
and decree dated 13.12.1999 passed by the Court of learned Additional Civil
J udge (Senior Division), Phagwara and consequently, dismissed the suit of the
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appellant/plaintiff, on surmises and conjectures. Hence, the present appeal
seeking setting aside of the judgment and decree dated 14.05.2012 passed by
the Court of learned Additional District J udge, Kapurthala and consequently
decreeing the suit of the appellant/plaintiff in toto with costs throughout by
restoring the judgment and decree dated 13.12.1999 passed by the Court of
learned Additional Civil J udge (Senior Division), Phagwara.

3. That in order to appreciate the controversy in dispute, it is worthwhile to
reproduce paragraph no. 4 of the civil suit filed by the appellant/plaintiff and the
stand taken in respect thereof in the aforesaid two separate written statements
filed thereto at the instance of the vendors and the subsequent vendee and the
same reads as per under:-

Paragraph no.4 of the Civil Suit:-

4. That the plaintiff has always been read and willing to perform his
part of the contract and on 10.5.1996 the last appointed day, came
to Tehsil Complex ready with the balance amount to get the sale
deed executed and remained present there throughout the day but
the defents No.1 and 2 did not turn to execute the sale deed. The
plaintiff gave notice telegraphically on 11.5.1996 calling upon the
defendants to execute the sale deed but even then the defendants
No. 1 and 2 did not care at all and then the plaintiff approached
personally but they expressed their reluctance to execute the sale
deed.

Paragraph no.4 of Written Statement of defendants no. 1 and
2:-

4. That para No. 4 of the plaint is not admitted, hence denied. As
submitted above, the defts. No. 1 & 2 never executed any alleged
agreement to sell with the plf., So the willingness on the part of the
plf. to perform his part is meaningless. Rest of the para is denied in
the light of above reply.

Paragraph no.4 of Written Statement of defendant no. 3:-


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4. That para No. 4 of the plaint is not admitted, hence denied. As
submitted above, the defts. No.1 & 2 never executed any alleged
agreement to sell with the plf., So the willingness on the part of the
plf. to perform his part is meaningless. Rest of the para is denied in
the light of above reply.


4. That in order to appreciate the controversy in dispute in a more effective
manner, it is quite relevant to reproduce the various issues framed by the learned
trial Court on the basis of respective pleadings of the parties to the lis and the
same read as under:-

i) Whether the defendant no.1 and 2 executed an agreement to sell dated
11.12.1995? OPD.

ii) Whether the plaintiff is entitled to decree of possession by way of
specific performance of the contract/agreement to sell dated 11.12.1995,
of the land measuring 8K-2M? OPP.

iii) Whether the plaintiff is entitled to the recovery of Rs. 6,00,000/- being
the amount of earnest money in the alternative? OPP.

iv) Whether the plaintiff has no cause of action to file the present suit?
OPD.

v) Whether the alleged agreement is without consideration? OPD.

vi) Whether the suit is bad for mis-joinder and non-joinder of necessary
parties? OPD.

vii) Whether the plaintiff is debarred to file the present suit by his act and
conduct? OPD.

viii) Whether the plaintiff has suppressed the true and actual facts from the
Honble Court? OPD.

ix) Whether the answering defendant no. 3 is a bonafide purchaser for
value and consideration and without notice? OPD.

x) Relief.


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5. That in the impugned judgment and decree dated 14.05.2012, though the
learned lower Appellate court has rightly upheld the findings of the learned trial
Court to the extent that appellant/plaintiff has been able to prove due execution
of the agreement to sell dated 11.12.1995 but committed a serious illegality in
dismissing the suit of the appellant/plaintiff only on the ground that the
appellant/plaintiff has failed to establish that he had been ready and willing to
perform his part of said agreement to sell dated 11.12.1995.

6. That a bare perusal of the aforesaid issues clearly shows that there had been
no issue regarding the readiness and willingness on the part of appellant/plaintiff
to perform his part of the contract and there is a valid reason not to frame such
an issue in as much as a bare perusal of the contents of paragraph no. 4 of the
civil suit as well as the replies filed thereto by defendants no.1 to 3, which have
reproduced above, it is quite clear that the contesting defendants no.1 to 3 while
denying the very execution of the agreement to sell dated 11.12.1995 in favour of
the appellant/plaintiff by the vendors took the plea that since there has been no
execution of agreement dated 11.12.1995, there arises no question of readiness
and willingness on the part of the appellant/plaintiff to perform his part of the
contract. Thus, once there was no issue with regard to readiness and willingness
on the part of the appellant/plaintiff to perform his part of the contract, it cannot
be said that the learned lower Appellate Court was even called upon to decide
such an issue. On this ground alone, the finding of the learned lower Appellate
Court to the effect that the appellant/plaintiff was not ready and willing to perform
his part of the contract dated 11.12.1995, is liable to be set aside.

7. That while holding that the appellant/plaintiff was willing to perform his part of
the contract/agreement, the learned lower Appellate Court has relied upon the
evidence produced on record by respondents no.1 and 3 to the effect that their
predecessor-in-interest (Balkar Singh) remained present in the Tehsil Complex
on 10.05.1996 to execute the sale deed and it is the appellant/plaintiff, who never
came there to perform his part of the contract. In this regard, suffice is to submit
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that such an evidence produced on record by the respondents no.1 to 3 could not
have even been looked upon, much less relied upon for the simple reason that
the same was quite contrary to the pleaded case of the vendors. The positive
case of the vendors in their joint written statement filed before the learned trial
Court was that since agreement to sell in question was never executed in favour
of the appellant/plaintiff, therefore, there arises no question of readiness and
willingness on the part of the appellant/plaintiff to perform his part of the contract.
Once it is not even the pleaded case of the vendors that any of them remained
present in the Tehsil Complex for the execution of sale deed in respect of the
agreement to sell dated 11.12.1995 in favour of the appellant/plaintiff, they could
not be allowed to lead any evidence in support of their alleged stand that one of
them remained present in Tehsil Complex on 10.05.1996 to execute the sale
deed in favour of the appellant/plaintiff and even if any such evidence has been
brought on record, the same could not be taken into consideration at all. On this
ground as well, the finding of the learned lower Appellate Court to the effect that
the appellant/plaintiff was not ready and willing to perform his part of the contract
dated 11.12.1995, is liable to be set aside.

8. That had there been any issue with regard to readiness and willingness on the
part of the appellant/plaintiff to perform his part of the contract, appellant/plaintiff
would have surely proved on record his affidavit dated 10.05.1996, which he got
prepared on the same very date i.e. 10.05.1996 and got the same duly notorised
from the Notary Public on the same day, wherein it has been deposed/averred
that the appellant/plaintiff remained present from 9:00 AM to 5:00 PM in the
Court Complex to execute the sale deed but the vendors did not come present.
In his said affidavit, the appellant/plaintiff has further deposed that the Sub-
Registrar is about to rise for the day and therefore, neither the sale deed can be
executed nor requisite stamp papers to execute said sale deed can be got
purchased.


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9. That in support of his pleaded case, appellant/plaintiff has stated in his
statement itself that he remained present in the Tehsil complex on 10.05.1996 to
execute the sale deed in question, which evidence has not been appreciated at
all by the learned lower Appellate Court while holding that appellant/plaintiff was
not ready and willing to perform his part of the contract/agreement. It is also not
out of place to mention here that when the appellant/plaintiff stepped into the
witness box as PW-4, not even a suggestion has put to him that he was not
ready and willing to perform his part of the contract/agreement and rather the
whole thrust of the defendants while cross-examining the appellant/plaintiff was
on the point that the agreement in question was never executed by the
defendants no.1 and 2 in favour of the appellant/plaintiff.

10. That keeping in view the totality of the facts and circumstances mentioned
above, following are the substantial questions of law, which arise in the present
Regular Second Appeal for the kind consideration of this Honble Court:-

(i) Whether the learned lower Appellate court has committed a serious
illegality in passing the impugned judgment and decree whereby while
setting aside a well-reasoned judgment and decree passed by the learned
trial court, suit of the appellant/plaintiff has been dismissed by rending
finding on such an issue, which was never even framed?

(ii) Whether the evidence, either oral or documentary, which is absolutely
inconsistent with the pleaded case of a party can be looked upon and
appreciated?

(iii) Whether in view of the specific stand taken by the defendants in reply
to paragraph no. 4 of the civil suit, wherein they have taken a categorical
stand in unison that since agreement to sell in question was never
executed in favour of the appellant/plaintiff, therefore, there arises no
question of readiness and willingness on the part of the appellant/plaintiff
to perform his part of the contract, the learned lower Appellate court could
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have accepted the plea of vendors or for that reason even of the
subsequent purchaser to the effect that the appellant/plaintiff was not
ready and willing to perform his part of the contract/agreement?

11. That keeping in view the totality of the facts and circumstances mentioned
above as well as legal aspect of the matter, judgment and decree passed by the
learned lower Appellate court is liable to be set aside.

It is, therefore, respectfully prayed that the present Regular Second
Appeal may kindly be allowed and the impugned judgment and decree dated
14.05.2012 passed by the Court of learned Additional District J udge, Kapurthala,
may kindly be set aside and consequently, while restoring the judgment and
decree dated 13.12.1999 passed by the Court of learned Additional Civil J udge
(Senior Division), Phagwara, suit of the appellant/plaintiff be decreed in toto with
costs throughout.

CHANDIGARH. (SUNIL CHADHA)
DATE: 29.08.2012 ADVOCATE
COUNSEL FOR THE APPELLANT