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2018 Supreme(P&H) 2975
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Anil Kshetarpal
RSA No.486 of 2000 (O&M)
Harbhajan Singh
v.
Hazur Singh & Anr.
{Decided on 22/11/2018}
Mr. R.C. Takoria, Advocate for respondent No.1.
Mr. R.K. Sharma, Advocate for respondent No.2.
Agreement to Sell--Bar to Suit--Once a suit for injunction has been filed when the plaintiff had a notice of final refusal on the part of the defendant to honour the agreement to sell, the plaintiff is required to include the relief of specific performance in the first suit for injunction itself - Agreement to Sell--When the date on which the alleged agreement to sell was executed is found doubtful, it would not be appropriate to grant decree for specific performance of the agreement to sell
Headnote:
(A) Civil Procedure Code, 1908, O.2 R.2--Agreement to Sell--Specific Performance--Suit for Injunction--Bar to Suit--Once a suit for injunction has been filed then the plaintiff had a notice of final refusal on the part of the defendant to honour the agreement to sell; the plaintiff was required to include the relief of specific performance in the first suit for injunction itself, failing which the subsequent suit would be barred under Order 2 Rule 2 CPC--Specific Relief Act, 1963, S.20 and S.38. (Para 16 & 17)
On the day plaintiff filed suit for permanent injunction, he knew that defendant refused to honour the agreement to sell finally and she has entered into a compromise with defendants No.2 and 3-appellants cause of action for filing the suit for specific performance of the agreement to sell had arisen, however, the plaintiff did not include relief of specific performance--Defendant had finally refused to honour the agreement to sell, therefore, on the date of the filing of the suit, cause of action to file the suit for specific performance of the agreement to sell had already arisen.
(B) Specific Relief Act, 1963, S.20--Specific Performance--Agreement to Sell--When the date on which the alleged agreement to sell was executed is found doubtful, it would not be appropriate to grant decree for specific performance of the agreement to sell.
Courts have failed to examine the evidence in detail but for referring that Scribe has been examined, the courts have over looked that the Scribe has failed to prove that the agreement to sell was executed on 20.7.1984. Evidence of Scribe has been noted above and need not be repeated. It is apparent that Chander Bhan could not prove that the agreement to sell was executed on 20.7.1984. Still further, stamp vendor has not been examined or his register has not been produced to prove that the non-judicial stamp paper was purchased on 20.7.1984. Only oral evidence has been produced. Both courts below looked that as per the alleged agreement to sell, possession of the land is stated to have been delivered to the plaintiff on the date of contract itself.
(C) Specific Relief Act, 1963, S.20--Specific Performance--Agreement to Sell--Courts are required to examine the evidence in detail before passing any judgment.
Plaintiff when filed the suit for permanent injunction also claimed that he has been delivered possession, however, his counsel made a statement on 13.5.1991 that defendants No.2 and 3-appellants herein have taken forcible possession and thereafter an application for amendment was moved and allowed. However, when the plaintiff appeared in evidence on 12.6.1991, he does not utter a word that he has been dispossessed during the pendency of the suit. Both the courts have over looked this aspect. Courts below not correct in granting decree for possession by defendant way of specific performance of agreement to sell particularly when are owners of property pursuant to a compromise decree. Plaintiff held not entitled to relief of possession by way of specific performance of the agreement to sell. Findings of the court with regard to agreement to sell having been proved by examination of one attesting witness and Scribe found erroneous. Plaintiff has not pleaded that defendant No.1 on the one hand and defendants No.2 and 3 on the other hand have colluded. Decree for possession by way of specific performance of substituted with a decree for recovery of the earnest money along with interest @ 9%. (Para 19, 20, 23, 24, 26, 27 & 28)
JUDGMENT
Mr. Anil Kshetarpal, J.:- Defendants-appellants are in the regular second appeal against the concurrent findings of fact arrived at by the courts below, while decreeing the suit for specific performance of the agreement to sell as also relief of possession.
2. In the considered view of this Court, following substantial questions of law arise in the present case:-
(i)Whether a subsequent suit for specific performance of the agreement to sell would be barred under Order 2 Rule 2 of the Code of Civil Procedure if in the previous suit for injunction, the plaintiff has pleaded that defendant has finally refused to honour the agreement to sell and has suffered a compromise decree in favour of other persons?
(ii)Whether the courts are required to examine the evidence in detail before passing any judgment?
(iii)Whether in the facts and circumstances of the case particularly when the date on which the alleged agreement to sell was executed is found doubtful, it would be appropriate to grant decree for specific performance of the agreement to sell?
3. The parties are being referred to by their name. Pala Singh was owner of the property. He sold the property to defendants No.2 and 3 namely Sewa Singh and Harbhajan Singh, sons of Gulzar Singh-appellants herein. Ash Kaur, daughter of Pala Singh, filed a suit, claiming superior right of pre-emption. The aforesaid suit was decreed on 1.4.1983, upheld in the appeal as well as in the second appeal.
4. Sewa Singh-defendant No.2/appellant herein filed a suit against Ash Kaur, challenging the decree for pre-emption on 27.8.1984 on the ground that Sewa Singh was a minor and he was not represented by his father properly in the suit for pre-emption. A compromise was arrived at during the pendency of the suit and through a compromise, effect of decree for pre-emption of the sale-deed was nullified. Ash Kaur even withdrew her amount i.e. 1/5th of sale consideration deposited in the court while filing a suit for pre-emption.
5. The plaintiff-respondent claims that Ash Kaur had entered into an agreement to sell with respect to land measuring 50 kanals and 10 marlas being half share of 101 kanals and 1 marla in his favour on 20.7.1984. Out of total sale consideration of Rs.1,26,250/-, Rs.80,000/- is stated to have been paid in cash and it was agreed that the sale-deed would be executed and registered on 12.6.1985. The plaintiff-respondent herein Hazoor Singh filed a civil suit for grant of decree for injunction on 6.4.1985. Defendants- appellants were defendants in the suit for grant of decree of injunction. The pleadings of the plaintiff, as mentioned in para 5 to 9 of the plaint, are extracted as under:-
“XXX XXX XXX XXX XXX
XXX XXX XXX XXX
5. That the plaintiff has come to know that defendant no.1 has got a collusive and compromise decree after the execution of the abovesaid agreement of sale with a view to harm the plaintiff in favour of defts. no. 2 & 3.
6. That on the basis of the abovesaid collusive decree recurred by collusion by defendants no. 2 & 3. They are threatening to dispossess the plaintiff forcibly and illegally because the plaintiff is not a party to that decree and is not bound by the same.
7. That plaintiff is bound to suffer an irreparable loss and injury in case defendant no.2 and 3 succeed in dispossessing the plaintiff on the basis of above said collusive decree.
8. That the defendants have been repeatedly requested not to dispossess the plaintiff from the land in suit forcibly and illegally, but the defts. are adament and have finally refused to do so on 27.3.85 at village Masat Garh tehsil Guhla. Hence this suit.
9. That the cause of action has accrued to the plaintiff and against the defendants on 20.7.84 the date of agreement of sale and finally on 27.3.1985 the date of final refusal by the defendants and is daily arising at village Masatgarh tehsil Guhla, Distt. Kurukshetra, within the territorial jurisdiction of this court and this Court has therefore
