RSA No.3399 of 2009 (O&M)

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IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

R.S.A. No. 3399 of 2009 (O&M)

Date of Decision: December 07, 2009

Karnail Singh

...........Appellant

Versus

Amarjeet Kaur and others

..........Respondents

Coram:

Hon'ble Mrs. Justice Sabina

Present: Mr.O.P.Hoshiarpuri, Advocate for the Appellant.

**

Sabina, J.

Plaintiff-Karnail Singh filed a suit for possession by way of

specific performance. The suit of the plaintiff was dismissed by the Civil

Judge (Junior Division) Ferozepur vide judgment and decree dated

16.2.2008. The appeal filed by plaintiff was dismissed by the Additional

District Judge Ferozepur vide judgment and decree dated 26.5.2009.

Hence, the present appeal by the plaintiff.

The facts of the case, as noticed by the Additional District

Judge in paras 2 to 4 of its judgment, read as under:-

“ 2.The physical contours of the plaintiff's case, as reflected in the

plaint, in brief is that defendant no.1 Gurnam Kaur, being owner

of the suit land, entered into an agreement to sell dated

13.11.1997 in favour of the plaintiff for sale of the suit land at the

rate of Rs. 1,00,000/- per killa and received Rs. 4,00,000/- as

RSA No.3399 of 2009 (O&M)

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earnest money.The possession of the suit land was delivered to the

plaintiff at the time of execution of the agreement. The sale deed

was agreed to be executed on or before 4.2.1998 on payment of

balance sale consideration. Since the date of agreement, the

plaintiff has always willing and is still ready and willing to

perform his part of agreement. In the month of January,1998, the

plaintiff came to know that defendant no.1 is intending to alienate

the suit land in favour of defendants no.2 and 3,whereupon the

plaintiff presented the original agreement in question but to no

effect and ultimately defendant no.1 executed sale deed dated

19.8.1990 qua 24 kanals of land out of the land in dispute in

favour of defendant no.2. Similarly, she executed another sale

deed dated 20.1.1998 regarding the sale of land measuring 24

kanals in favour of defendant no.3. These sale deeds are illegal,

null and void. Subsequently, defendant no.2 further sold land

measuring 23 kanals 19 marlas to Gurdev Singh and Maan Singh.

Vide sale deed dated 23.2.1998 and defendant no.3 sold land

measuring 16 kanals 2 marlas to aforesaid Gurdev Singh and

Maan Singh vide sale deed dated 9.3.1998, during pendency of

the suit. Defendant no.1 further sold remaining 4 kanals of land

out of the suit land to Gurmukh Singh vide sale deed dated

4.3.1998. However, on the stipulated date, the plaintiff attended

the office of Sub Registrar alongwith balance sale consideration

and other expenses for registration of the sale deed in his favour,

as per agreement in question but the defendant no.1 did not turn

up.Ultimately, the plaintiff got his presence marked by moving an

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application before the Sub Registrar. The plaintiff requested the

defendant no.1 to execute the sale deed in his favour but to no

effect, hence, the suit.

3. Before filing written statement, defendant no.1 expired and

her estate is represented by defendants no. 2,3 and 7. Defendants

no. 2 and 3 filed their separate written statement and contested the

suit primarily on the ground that the alleged agreement dated

13.11.1997 is forged and fabricated document set up by the

plaintiff with a view to grab the property of Gurnam Kaur.

Defendant no.1 (since deceased) in connivance with marginal

witnesses. The defendants are bona fide purchaser of the suit land

for valuable consideration without notice of the alleged

agreement. The sale in their favour is protected under Section 53

of the Transfer of Property Act. They asserted that Gurnam Kaur

never executed any agreement nor received any earnest money.

Even otherwise also no prudent person would have paid such a

huge amount without taking the possession o