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2018 Supreme(P&H) 2783

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Anil Kshetarpal
RSA No.4181 of 2012 (O&M)
Lakhpat Singh & Ors v. Smt. Nirmal & Ors
{Decided on 27/11/2018}

Advocates Appeared:Mr. Kanwaljit Singh, Sr. Advocate, with Mr. Manoj Kumar Sood, Advocate, for the appellants (in RSA No.4181 and 4224 of 2012)
Mr. Adarsh Jain, Advocate, for respondent no.7(in RSA No.4181 of 2012) for respondent no.11(in RSA No.4224 of 2012)
Mr. S.K.Garg Narwana, Sr. Advocate, with Mr. Vishal Garg, Advocate, for respondent No.1 (in RSA No.4181 and 4224 of 2012)
Mr. Sanjay Vashisth, Advocate, for respondent no. 2 (in RSA No. 4181 of 2012) and for respondent no.6 (in RSA No. 4224 of 2012)

Specific Relief—Suit for Ownership—Courts must make sincere attempt to lift the veil and expose the sinister design even in civil litigation.
Amendment of Pleadings—After allowing of application, unamended/original pleadings remains part of record and can be considered by court while deciding the case

Headnote:(A) Specific Relief Act, 1963, S.34—Suit for Ownership—Courts must make sincere attempt to lift the veil and expose the sinister design even in civil litigation. (Para 26)
       (B) Civil Procedure Code, 1908, O.6 R.17—Amendment of Pleadings—After allowing of application, unamended/original pleadings remains part of record and can be considered while deciding the case—Held; that merely because the amendment in the pleadings have been permitted, the original pleadings does not lose its significance—The original pleadings and the statements given in evidence before the amendment of the pleadings has to be looked into and considered by the courts while deciding the case—Admission made in the unamended written statement can be used by the court unless it has been successfully explained to be erroneous in the subsequent pleadings and evidence. (Para 27)
       (C) Specific Relief Act, 1963, S.16—Agreement to Sell—Sale deed—Setting aside of—Once an agreement to sell is followed by execution and registration of the sale deed, the sale deed cannot be set aside only on the ground that there is some suspicion in the execution of the agreement to sell—The sale deed is executed and registered before the Registration Authority—Once a sale deed has been executed, the agreement to sell pales into insignificance—Transfer of Property Act, 1881, S.55. (Para 28)
       (D) Transfer of Property Act, 1881, S.55—Sale deed—Setting aside of—Judgment of conviction of a purchaser in entirely unconnected cases cannot be made basis to set aside a registered sale deed—The judgments passed by the courts in different litigations below are relevant only if such judgments falls within the parameters mentioned in Sections 41, 42 and 43 of the Indian Evidence Act, 1872. (Para 29)
       (E) Transfer of Property Act, 1881, S.55—Sale deed—Setting aside of—A report prepared in police investigation cannot be made basis to set aside a registered sale deed—A report prepared by the police after investigation can at the most be a piece of evidence but the civil court cannot base its decision on the basis of the said report. (Para 30)

JUDGMENT

Mr. Anil Kshetarpal, J. - By this judgment, two appeals i.e. Regular Second Appeal Nos. 4181 and 4224 of 2012 between the same parties represented by common counsels in an inter related suits shall stand disposed of. Counsel for the parties are also agreed that both the appeals can be disposed of by a common judgment.

2. Defendant no.1-appellant along with others are in the regular second appeal against the judgments passed by both the courts below granting decree for possession by way of specific performance of the agreement to sell and in the second suit decree for permanent injunction. In the considered view of this court, following substantial questions of law arise for consideration:-

(i) Whether courts must make sincere attempt to lift the veil and expose the sinister design even in civil litigation?

(ii) Whether application for amendment of pleadings is allowed, courts can overlook the unamended pleadings part of the record?

(iii) Whether an agreement to sell followed by execution and registration of the sale deed can be set aside on the basis of alleged suspicion which has no foundation at the time of entering into agreement to sell?

(iv) Whether the judgment of conviction of a vendees in entirely unconnected cases can be made basis to set aside a registered sale deed?

(v) Whether a report prepared in police investigation can be made basis to set aside a registered sale deed?

In the present appeals, since both the courts have failed to appreciate the facts of the suits in proper perspective, therefore, this court has considered it appropriate to notice the facts in proper perspective.

FACTS

A pedigree table of the parties shall be necessary which is drawn as under:-

Bhim Singh (dead)

Kalawati(dead) (Widow)

Yudhvir Singh

Tejvir Singh

Gir Raj

Nand Kishore

Nema

Lata

Bhagwati

Nirmal

3. Bhim Singh was Numberdar and on his death, he had left behind widow Kalawati and his children. Kalawati had executed a registered sale deed in favour of appellant Lakhpat on 13.03.1997 with respect to land measuring 7 kanals and 2 marlas. Three sons of Smt. Kalawati namely, Gir Raj Singh, Yudhvir Singh and Tejvir Singh are marginal witnesses to the aforesaid registered sale deed. Entire effort is to get the sale deed set aside in which the family of Kalawati has remained successful by filing various litigations. Nand Kishore, son of Kalawati filed a separate suit challenging the sale deed executed and registered by Kalanwati on 13.03.1997 in which he failed before the courts below and regular second appeal is being decided by a separate judgment of even date. Present suit was filed on 29.03.1997 by Nirmal, grand daughter of Kalawati. Nirmal is daughter of Bagwati daughter of Kalawati. Thus a grand daughter has filed the suit for specific performance of the agreement to sell against her own maternal grand mother.

4. Nirmal alleges that her maternal grand mother entered into an agreement to sell with respect to land measuring 12 kanals and 6 marlas and received an amount of Rs.50,000/- on 13.12.1995 at the time of execution of the agreement to sell and received Rs.30,000/- on 19.04.1996. She claims that since Kalawati is refusing to honor the agreement to sell, therefore, the suit was filed.

5. In the aforesaid suit, apart from Kalawati, Lakhpat, the appellant and other family members left by Bhim Singh were also impleaded as party defendants. Smt. Kalawati in the written statement (unamended) admitted execution and registration of the sale deed in favour of Lakhpat and denied execution of any agreement to sell in favour of Nirmal (her grand daughter).

6. Defendant no.4 Gir Raj Singh filed a written statement admitting the execution and registration of the sale deed, however denied payment of sale consideration. Howe

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Bhim Singh (dead)
Kalawati(dead) (Widow)
Yudhvir Singh	Tejvir Singh	Gir Raj	Nand Kishore	Nema	Lata	Bhagwati
						Nirmal

2018 Supreme(P&H) 2783

IN THE HIGH COURT OF PUNJAB AND HARYANABefore Hon’ble Mr. Justice Anil KshetarpalRSA No.4181 of 2012 (O&M)Lakhpat Singh & Ors v. Smt. Nirmal & Ors{Decided on 27/11/2018}

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Anil Kshetarpal
RSA No.4181 of 2012 (O&M)
Lakhpat Singh & Ors v. Smt. Nirmal & Ors
{Decided on 27/11/2018}