RSA No.1249 of 2015 (O&M)

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IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH

RSA No.1249 of 2015 (O&M)

Date of decision:19.08.2016

Usha Malhotra

... Appellant

Vs.

Rajender Singh and another

... Respondents

CORAM:

HON'BLE MR. JUSTICE AMIT RAWAL

Present:-

Mr. H.S.Sirohi, Advocate

for the appellant.

Mr. A.S.Syan, Advocate

for the respondent-caveator (s).

AMIT RAWAL J. (Oral)

Appellant-subsequent vendor/defendant, who alleged to have

purchased the property in dispute, vide sale deed dated 09.03.2010 is

aggrieved of the concurrent findings of facts and law, whereby, suit of the

respondent-plaintiff seeking specific performance of the agreement to sell

dated 13.08.2002, has been decreed.

Mr.H.S.Sirohi, learned counsel appearing on behalf of the

appellant submits that the appellant is a bonafide purchaser for a valuable

consideration without notice of the aforementioned litigation. The vendor is

the third vendee as the property has exchanged between two subsequent

vendees. In the aforementioned case, defendant No.1 had entered into

agreement to sell the property in dispute for a total valuable consideration of

`4,60,000/-. As per the pleadings in the plaint, a sum of `2,00,000/- as

Savita

2016.08.30 10:06

I attest to the accuracy and

integrity of this document

High Court Chandigarh

RSA No.1249 of 2015 (O&M)

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earnest money was paid and the target date for execution and registration of

the sale deed was 05.08.2003. On the said date, another amount was paid to

vendor and the date was extended to 27.08.2003. He further submits that the

trial Court passed the judgment and decree on 17.11.2008 and the appeal at

the instance of the bonafide purchaser was instituted in the year 2014,

whereas, the appellant after passing of the judgment and decree, is the third

purchaser. Rajinder Singh alleged plaintiff/vendor had been indulging into

such acts as he had been convicted in respect of forging of the agreements

to sell, thus, having criminal background as all those judgments have been

placed on record by way of additional evidence to show his conduct, much

less, the background. The respondent-plaintiff had not been able to show the

readiness and willingness throughout, much less, the adequate consideration

on the alleged date, i.e., 27.08.2003. The trial Court has also gone into

realm of surmises and conjectures by holding that the copy of FIR has not

been produced on record which was cancelled, whereas, on the contrary,

Ex.D4 shows that the plaintiff was convicted. All these factors were

essential and necessary and should be pondered upon by the Lower

Appellate Court for declining the discretionary relief and thus, urges this

Court for setting aside the findings of the Courts below by allowing the

application for additional evidence filed under Order 41 Rule 27 of Code of

Civil Procedure and by formulating the substantial questions of law as

culled out in the memorandum of appeal.

In support of his aforementioned contentions, he relies upon the

judgment of the Hon'ble Supreme Court in Mrs Vijaya Shrivastava vs.

Savita

2016.08.30 10:06

I attest to the accuracy and

integrity of this document

High Court Chandigarh

RSA No.1249 of 2015 (O&M)

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M/s Mirahul Enterprises and others 2006 (3) R.C.R.(Civil) 740.

Mr. A.S.Syal, learned counsel appearing on behalf of the

respondents submits that in the judgment dated 13.03.2014, whereby, the

respondent-plaintiff was convicted under Sections 406, 420, 468 and 471 of

Indian Penal Code has been acquitted in appeal by the Additional Sessions

Judge, vide judgment dated 05.07.2011. As regards, the other cases,

judgment at page 83 of the paper book, criminal appeal No.43 of 2009, the

conviction is in respect of an offence under Sections 342, 353, 332 and 186,

IPC which has nothing to do with offence under Sections 406, 420, 468, 471

IPC. Ex.D4 was also with regard to FIR under the same provisions of Act.

In one of the cases, so