Sher Singh Through Lrs Amarjit Kaur And Others v. Krishan Kumar, Punjab & Haryana High Court, Judgment, Law, casemine.com

Factual and Procedural Background

The plaintiff alleged that the defendant agreed to sell 11 bighas 16 biswas of land (1/6th share of a larger 70 bighas 16 biswas property) in village Basantpura for Rs. 40,000 through agreements dated 10.6.1983 and 19.6.1984. The defendant received Rs. 32,000 as earnest money initially and Rs. 6,000 later, with the plaintiff ready and willing to perform his part of the contract. The defendant contested the suit, denying the existence of the agreement dated 10.6.1983, the receipt of earnest money, and the extension of time for executing the sale deed, asserting the agreement was without consideration and alleging entitlement to compensatory costs under Section 35-A CPC.

The trial court framed issues regarding the execution, terms, and effect of the agreement, allegations of fraud, entitlement to possession through specific performance, and relief. After hearing evidence, the trial court decreed specific performance in favor of the plaintiff on 28.11.1988. The defendant appealed, but the first appellate court dismissed the appeal on 30.3.1989. The defendant then preferred a regular second appeal. During the pendency of the appeal, the appellant died and his legal representatives were brought on record.

Legal Issues Presented

Whether the judgments and decrees passed by both the Courts below are the result of misreading and misinterpreting the evidence and whether they are perverse?

Whether the Court should exercise its discretion under Section 20 of the Specific Relief Act to disallow the relief of specific performance considering the hardship to the defendant/appellant in executing the sale deed?

Arguments of the Parties

Appellant's Arguments

Both courts erred in finding that the defendant executed the agreement of sale in favor of the plaintiff.

The plaintiff is a Commission Agent, and the large payments alleged (Rs. 32,000 and Rs. 6,000) contradict the postponement of the sale deed registration.

The recital of possession delivery is false as no possession passed at the time of the agreement.

The agreement is inadmissible as it was unregistered and lacks a clause for specific performance.

PW-4 Kapoor Singh was a stock witness for the plaintiff, indicating no genuine intention to purchase the land.

Specific performance is discretionary and would cause hardship to the defendant.

The defendant-appellant died in 1994; his legal heirs sold the property in 2007, making the purchasers bona fide for valuable consideration.

Reliance on Section 20 of the Specific Relief Act to argue that hardship to the defendant should preclude specific performance relief.

Relied on authorities: Tejram v. Patirambhau (1997), Gurbachan Singh v. Raghubir Singh (2010), Ganesh Shet v. Dr. C.S.G.K Shetty (1998), and Azhar Sultana v. B. Rajamani (2009).

Respondent's Arguments

Supported the judgments and decrees of both lower courts.

Asserted that the legal heirs sold the property during the pendency of appeal, negating the applicability of Section 20 of the Specific Relief Act.

Contended that the sale deed was executed by the appellant during the appeal pendency.

Maintained that there is concurrent finding of fact regarding execution of the agreement and payment of consideration.

Argued that the plaintiff being a Commission Agent is not a ground to withhold specific performance relief.

Prayed for dismissal of the appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tejram v. Patirambhau, 1997 (Suppl.) Civil Court Cases 184	Distinction between money transactions and agreements to sell	Distinguished on facts; plaintiff here did not plead transaction was a money transaction, so authority not applicable.
Gurbachan Singh v. Raghubir Singh, 2010 (3) Civil Court Cases 0731	Registration law for agreement to sell	Distinguished as there was no law requiring registration of agreement to sell in 1983-84.
Ganesh Shet v. Dr. C.S.G.K Shetty, 1998 (2) Civil Court Cases 0711	Variation between pleaded contract and proved contract	Distinguished as no such dispute existed in the present case.
Azhar Sultana v. B. Rajamani, 2009 (2) RCR (Civil) 123	Requirement of readiness and willingness to perform contract for specific performance	Distinguished as concurrent finding here was that plaintiff was ready and willing to perform.
Yogeshwar Education Trust v. Gurmeet Kaur, 2009 (2) Civil Court Cases 0345	Principles of lis pendens and protection of bona fide purchasers under Order 1 Rule 10 CPC	Applied to nullify argument that bona fide purchasers without stay are protected; lis pendens begins from plaint presentation date.

Precedent

Rule or Principle Cited For

Application by the Court

Tejram v. Patirambhau, 1997 (Suppl.) Civil Court Cases 184

Distinction between money transactions and agreements to sell

Distinguished on facts; plaintiff here did not plead transaction was a money transaction, so authority not applicable.

Gurbachan Singh v. Raghubir Singh, 2010 (3) Civil Court Cases 0731

Registration law for agreement to sell

Distinguished as there was no law requiring registration of agreement to sell in 1983-84.

Ganesh Shet v. Dr. C.S.G.K Shetty, 1998 (2) Civil Court Cases 0711

Variation between pleaded contract and proved contract

Distinguished as no such dispute existed in the present case.

Azhar Sultana v. B. Rajamani, 2009 (2) RCR (Civil) 123

Requirement of readiness and willingness to perform contract for specific performance

Distinguished as concurrent finding here was that plaintiff was ready and willing to perform.

Yogeshwar Education Trust v. Gurmeet Kaur, 2009 (2) Civil Court Cases 0345

Principles of lis pendens and protection of bona fide purchasers under Order 1 Rule 10 CPC

Applied to nullify argument that bona fide purchasers without stay are protected; lis pendens begins from plaint presentation date.

Court's Reasoning and Analysis

The court analyzed the evidence and found that both lower courts correctly concluded that the plaintiff proved execution of the agreement dated 10.6.1983 and payment of consideration. The defendant's claim of fraud was unsupported by particulars, and the courts found no misreading or misinterpretation of evidence. The court noted that the defendant was literate and signed the agreement in both English and Punjabi. The plaintiff's status as a Commission Agent did not bar specific performance. The hardship plea was not raised at trial and thus could not be considered. Moreover, since the legal heirs sold the property during the appeal pendency, the appellants could not claim protection under Section 20 of the Specific Relief Act. The court distinguished all cited precedents on their facts and reaffirmed the applicability of the lis pendens principle as per Yogeshwar Education Trust v. Gurmeet Kaur, rejecting the bona fide purchaser defense.

Holding and Implications

The appeal was dismissed.

The court upheld the findings of fact by the lower courts regarding the execution of the agreement and payment of consideration, thereby granting specific performance to the plaintiff. The decision nullifies the appellant's hardship and bona fide purchaser arguments, reinforcing the principle that lis pendens protects the plaintiff's rights from the date of suit presentation. No new precedent was set; the ruling affirms existing legal principles and the discretion exercised by courts in specific performance suits.

Sher Singh Through Lrs Amarjit Kaur And Others v. Krishan Kumar

K.C PURI. J.

Sher Singh appellant (now represented through legal representatives) had directed the present appeal against the judgment and decree dated 30.3.1989 vide which the appeal preferred by him against the judgment and decree dated 28.11.1988 was dismissed.

2. The case of the plaintiff in brief is that defendant vide agreements dated 10.6.1983 and 19.6.1984 agreed to sell his land measuring 11 bighas 16 biswas, being 1/6th share of the land measuring 70 bighas 16 biswas, situated in village Basantpura, fully detailed in the head-note of the plaint for a sum of Rs. 40,000/-, out of which the defendant received Rs. 32,000/- as earnest money from the plaintiff. Again on 19.6.1984, the defendant approached the plaintiff and got the date of execution and registration of the sale deed extended and executed an agreement to this effect in favour of the plaintiff on 19.6.1984 and received Rs. 6000/- more from the plaintiff towards the sale consideration. The plaintiff has through out been and is still ready and willing to perform his part of the contract but the defendant has committed the breach thereof. Hence, the suit. The plaintiff has also claimed Rs. 40,000/- in the alternative from the plaintiff.

4. The suit is contested by the defendant. It is alleged that the defendant never entered into any agreement to sell on 10.6.1983 in favour of the plaintiff. The agreement is without consideration. The plaintiff is a Commission Agent and the defendant used to sell his produce through the plaintiff in the market. The market value of the land in the village was more than Rs. 15,000/- per bigha in the year 1982-83. It is also denied that he receive Rs. 38,000/- as earnest money out of the total sale consideration of Rs. 40,000/-. He has also denied the extension of time for executing the sale deed. All other averments made in the plaint have also been denied. It is also pleaded that the defendant is entitled to the compensatory costs under Section 35-A CPC.

5. In the replication the plaintiff has re-iterated his pleas taken in the plaint and has denied those of the written statement.

6. The controversies between the parties are reflected from the following issues framed in this case:-

1. Whether the defendant had executed the agreement dated 10.6.1983 in favour of the plaintiff. If so, its terms and effect? OPP

2. Whether the agreement was the result of fraud.

3. Whether the plaintiff is entitled to possession through specific performance of the agreement? OPP

4. Relief.

7. The parties have led their respective evidence on the aforesaid issues. The trial Court after hearing the learned counsel for the parties and appraisal of the evidence decreed the suit of the plaintiff for specific performance of the contract vide judgment and decree dated 28.11.1988

8. Feeling dissatisfied with the aforesaid judgment and decree dated 28.11.1988, the defendant-appellant preferred the appeal before the First Appellate Court, who vide judgment and decree dated 30.3.1989 dismissed the appeal of the defendant-appellant.

9. Still feeling dissatisfied with the aforesaid judgments and decrees dated 28.11.1998 and 30.3.1989, the instant regular second appeal has been preferred by the defendant-appellant.

10. During the pendency of the appeal, the appellant died. Therefore, his legal representatives were ordered to be brought on the record.

11. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.

12. The learned counsel for the appellant has submitted that following substantial questions of law have arisen in the present appeal:-

1. Whether the judgments and decrees passed by both the Courts below are the result of misreading and misinterpreting the reading the evidence and on that account are perverse?

2. Whether the Court should exercise its discretion in view of Section 20 of the Specific Relief Act in disallowing the relief of specific performance, keeping in view the hardship of the defendant/appellant in excluding the sale deed?

13. Learned counsel for the appellant has submitted that both the Courts below have committed error in returning a finding that defendant executed agreement to sell in favour of the plaintiff. The plaintiff is running a shop of Commission agent. An amount of Rs. 32,000/- is stated to have been paid at the time of execution of the agreement and Rs. 6000/- thereafter. In case the parties had intention to execute the sale deed, in that case they would not have postponed the registration of the sale deed as out of sale consideration of Rs. 40,000/-, Rs. 38,000/- have already been alleged to be paid. The recital of delivery of possession proved to be wrong as no possession has passed at the time of agreement. The agreement is inadmissible in evidence being unregistered. There is no clause in the agreement for specific performance. PW-4 Kapoor Singh is the stock witness of the plaintiff. The plaintiff did not want to purchase the land which can also prove that there was no intention to execute the sale deed.

14. It is further submitted that relief of specific performance is a discretionary relief. It will cause great hardship to the defendant. Sher Singh died on 25.10.1994 There was no stay regarding alienation of the suit property and as such the applicants purchased the property from legal heirs of Sher Singh on 4.7.2007 So, they are bona fide purchasers for valuable consideration. Section 20 of the Specific Relief Act lays down that where there is hardship to the defendant in that case, the Court may not exercise its jurisdiction to grant the relief of specific performance. Learned counsel for the appellant has relied upon following authorities in support of his contentions:-

1. Tejram v. Patirambhau 1997 (Suppl.) Civil Court Cases 184;

2. Gurbachan Singh… v. Raghubir Singh…. 2010 (3) Civil Court Cases 0731;

3. Ganesh Shet v. Dr. C.S.G.K Shetty 1998 (2) CIVIL Court Cases 0711;

4. Azhar Sultana v. B. Rajamani 2009 (2) RCR (Civil) 123.

15. In reply to the above noted submission, learned counsel for the respondent-plaintiff has supported the judgments and decrees of both the Courts below. It is submitted that the legal heirs have sold the property during the pendency of the appeal and as such the question of applicability of Section 20 of the Specific Relief Act is not available. The sale deed during the pendency of appeal has been executed by the appellant. There is concurrent finding of fact recorded regarding execution of the agreement to sell and passing of Rs. 32,000/- and Rs. 6000/- respectively. Mere fact that plaintiff is a Commission Agent is not a ground of withholding the specific relief Act as held by both the Courts below. Prayer has been made for dismissal of appeal.

16. I have considered the submissions made by both the sides and have gone through the records of the case.

17. This is a civil case and has to be decided on the preponderance of the evidence. Both the Courts below after appraisal and reappraisal of the evidence reached to the conclusion that plaintiff has been able to prove the execution of agreement dated 10.6.1983 and for passing of the consideration. That being a finding of fact cannot be interfered in the regular second appeal. The stand taken by the defendants is that the agreement is the result of fraud. Both the Courts below have given a concurrent finding that no particulars of fraud have come. The first Appellate Court has observed that defendant is a literate person and he has signed in English as well as Punjabi. Both the Courts below have further observed that there is no bar by the Commission Agent to purchase the property. There is nothing on the file that judgments of both the Courts below is a result of misreading and misinterpreting the evidence on the file. The plea of hardship to the defendant is not taken in the trial Court and anything beyond pleading cannot be looked into. Otherwise also the legal heirs of defendant have sold the property and as such the appellants are debarred from taking the protection of Section 20 of the Specific Relief Act.

18. So far as the authority Tejram ‘s case (supra) relied upon by the learned counsel for the appellant is concerned, that authority is distinguishable to the facts of the present case. In that case plaintiff was a money lender and it was proved that transaction between the parties are money transaction and not transaction of agreement to sell. The defendant has not taken a plea that transaction in question was a money transaction. The particulars of fraud have not been given. So, the authority Tejram ‘s case (supra) will not come to the rescue of the appellant.

19. Authority Gurbachan Singh's case (supra) is also distinguishable from the facts of the present case. There was no law for registration of agreement to sell in the year 1983-84.

20. Authority Ganesh Shet's case (supra) is also distinguishable to the facts of the present case as in that case there is a variation between the contract pleaded and contract proved. There is no such dispute in the present case.

21. Authority Azhar Sultana's case (supra) is also distinguishable as in that case plaintiff failed to establish that he was ready and willing to perform his part of the contract. In the present case, there is concurrent finding of fact that plaintiff is ready and willing to perform his part of the contract. So, that authority is also not applicable to the facts of the present case.

22. So far as the plea taken by the applicants that the rights of the applicants under Order 1 Rule 10 CPC are protected being bona fide purchaser is concerned that argument stands nullified in view of authority Yogeshwar Education Trust v. Gurmeet Kaur 2009 (2) Civil Court Cases 0345 (Division Bench of Punjab & Haryana High Court). In that authority it has been held by the Division Bench of this Court that principles of lis pendens shall commence from the date of presentation of the plaint. Mere fact that there was no stay for alienation of the property does not protect the rights of applicant being bona fide purchaser.

23. So, in view of the above discussion, the substantial questions of law raised by the appellant stand determined against the appellant.

24. Consequently, there is no merit in the appeal, the same stands dismissed.

25. A copy of this judgment be sent to the trial Court for strict compliance.

RSA No. 2260 of 1989

Sher Singh Through Lrs Amarjit Kaur And Others v. Krishan Kumar

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sher Singh Through Lrs Amarjit Kaur And Others v. Krishan Kumar

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