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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Jagan Nath - Appellant
Versus
Hari Kishan - Respondent
RSA No.3201 of 2010 (O&M)
Decided On : 16-08-2017
specific performance - agreement to sell - Income Tax Act, 1961 - Registration Act - Transfer of Property Act - [specific performance] - [agreement to sell] - [Income Tax Act, 1961, Section 269 P, Section 269AB] - [The judgment discusses the enforceability of the agreement to sell in light of the Income Tax Act, the requirements of the Registration Act, and the rights protected under the Transfer of Property Act. The court also addresses issues related to the admissibility of evidence, the bar of limitation, and the principles of Order 2 Rule 2 CPC.]
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement to sell a half share of a property. The defendant counterclaimed for declaration of co-ownership and sought a relief of permanent injunction. The plaintiff and defendant are brothers. The trial court decreed the suit for specific performance and the counterclaim was partially accepted. The first appellate court upheld the trial court's decision.
Finding of the Court:
The court found that the agreement to sell was proved and enforceable. It held that the judgment passed by the lower courts was reasoned and detailed, and there was no misreading of evidence or reliance on inadmissible evidence. The court also ruled that the suit was not barred by limitation and that the relief claimed was not barred under Order 2 Rule 2 CPC. The court modified the decree to include payment of the balance amount with interest.
Issues: Enforceability of the agreement to sell, admissibility of evidence, bar of limitation, and compliance with statutory provisions.
Ratio Decidendi: The court emphasized that the agreement to sell was proved and enforceable, and there was no misreading of evidence or reliance on inadmissible evidence. It also clarified that the suit was not barred by limitation and that the relief claimed was not barred under Order 2 Rule 2 CPC.
Final Decision: The appeal filed by the appellant was dismissed, and the plaintiff was directed to pay the balance amount with interest.
ANIL KSHETARPAL, J.
1. The defendant-appellant has filed this Regular Second Appeal against the concurrent findings of fact arrived at by the Courts below.
2. The plaintiff-respondent filed a suit for specific performance of agreement to sell dated 09.04.1983 with respect to half share of House No.582, Sector-8B, Chandigarh constructed on a plot of 5 marlas and for permanent injunction restraining the defendant Jagan Nath from receiving and collecting the rent regarding the aforesaid house from Amar Nath, tenant son of the plaintiff.
3. The defendant filed a counter claim seeking declaration that the defendant is owner and landlord in possession through his tenant Amar Nath son of the plaintiff. The defendant further sought a relief of permanent injunction restraining the plaintiff or anyone else from interfering with peaceful possession of the defendant through his tenant.
4. The plaintiff and defendant are brothers.
5. As per the agreement to sell dated 09.04.1983, the defendant had agreed to sold the half share of house in question for a total sale consideration of Rs.1,00,000/-, received Rs.80,000/- as earnest money, delivered the actual and physical possession of his share to the plaintiff in part performance of the agreement to sell and shifted to house No.1541, Sector-7C, Chandigarh. No date for execution of the sale deed was fixed in the agreement to sell.
6. In defence, apart from usual objections, the defendant took a stand that 5 marlas of plot underneath house No.582, Sector-8B, Chandigarh was purchased through joint funds of the parties. It was further claimed that the plaintiff had not constructed ground floor of the house from his resources in the year 1967. It was further pleaded that in the year 1969, there was a family settlement that ground floor of the house in question fell to the share of the plaintiff whereas remaining two floors fell to the share of the defendant.
7. The defendant has taken a stand that since accommodation was not sufficient for growing needs of the family of plaintiff and defendant, therefore, decision was taken to jointly sell the house in question. Consequently, defendant executed a General Power of Attorney on 09.04.1983 in favour of Amar Nath which was duly registered on 04.05.1983. The defendant further asserts that the plaintiff had informed the defendant that he had also executed similar power of attorney in favour of his son Satya Dev. Execution of the agreement to sell dated 09.04.1983 and receipt of earnest money to the extent of Rs.80,000/- was denied. Agreement to sell was said to be result of fraud and forgery. The transaction of exchange of Rs.80,000/- so claimed was barred by the provision of Income Tax Act, 1961.
8. Although, the plaintiff had claimed that the property belongs exclusively to him. However, it is established from sale deed and Joint Ownership Certificate that the property originally belongs to the plaintiff and defendant jointly.
9. The trial Court after appreciating the evidence available on the file decreed the suit filed by the plaintiff for specific performance of the agreement to sell and defendant No.1 was directed to execute and get the sale deed registered as per the agreement to sell dated 09.04.1983 on receipt of balance sale consideration of Rs.20,000/-. A counter claim filed by the defendant was accepted by declaring that he is co-owner of the disputed property to the extent of half share. The remaining relief claimed through counter claim was rejected.
10. The defendant filed the first appeal. The learned First Appellate Court after appreciating the evidence available on the file reiterated the findings of the trial Court and held that the judgment passed by the trial Court is correct.
11. Counsel for the appellant has filed a detailed synopsis. Counsel for the appellant has also filed copy of the written arguments submitted by the appellant before the First Appellate Court.
12. The defendant executed four documents which prove that there was a
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