Gurdial Singh v. Dharambir

In the High Court of Punjab and Haryana, at Chandigarh Date of Decision: 27.01.2016 Gurdial Singh ... Petitioner(s)

Versus

Dharambir ... Respondent(s)

CORAM:

Hon'ble Mr. Justice Shekher Dhawan.

1.

Whether reporters of local newspapers may be allowed to see judgment?

2.

To be referred to reporters or not?

3.

Whether the judgment should be reported in the Digest?

Present:

Mr. S.S.Dinarpur, Advocate for the petitioner(s).

Mr. Madan Gupta, Advocate for the respondent.

Shekher Dhawan, J.

Present petition is challenge to the order dated 16.4.2014, passed by learned Additional Civil Judge (Senior Division), Jagadhari, whereby application under Order 39 Rules 1 & 2 CPC was disposed of and against order dated 4.8.2015, passed by learned Additional District Judge, Yamuna Nagar at Jagadhri, whereby appeal filed by the respondent against the above said order was partly allowed. Relevant facts for the purpose of decision of the petition that respondent/plaintiff had filed suit for possession by way of specific performance of agreement of sale dated 7.5.2012 in respect of the land

measuring 5 bighas out of 6 bighas 10 biswas being 130/507 share out of total land measuring 25 bighas 7 biswas comprising khewat No. 2, khatoni No. 2, khasra No. 118 situated at village Garhi Mundo, Tehsil Jagadhri, District Yamuna Nagar. As per plaintiff, one Ram Kishan, grandfather of defendant, was owner of khasra No. 118. He had divided the said khasra number into plots and roads for ingress and outgress to the plots. He had sold several plots from the said khasra number to Devender Jeet Singh vide sale deed dated 16.11.1981 and Devender Jeet Singh transferred some part of the said plots to one Smt. Kavita Rani and remaining portion to her husband, namely Sat Pal Singh.

Both Kavita Rani and her husband Sat Pal Singh constructed a residential house on the said plot and have been using 20 feet wide rasta left by Ram Kishan on the spot. The said rasta is also being used by other inhabitants of the locality since long. After the death of Ram Kishan, Deva Singh, father of the petitioner/defendant had sold other plots to some other persons, who had raised construction on the respective plots and used the street left by the original owner at the spot. The defendant claimed to be owner in exclusive possession of the plot of khasra No. 118 situated immediately towards northern side of 20 feet wide street. The said plot is now shown as ABCD in the site plan. As per agreement dated 7.5.

2012, defendant agreed to sell the plot measuring 5 bighas equal to 5029 square yards marked by letters GHCD in the site plan in favour of plaintiff at the rate of ` 9,440/- per square yard. Defendant had undertaken to execute the sale deed in favour of the plaintiff on or before 10.11.2012.

defendant for execution and registration of the sale deed on 7.11.2012. But defendant shown his inability to get the sale deed executed because of marriage of his son in the end of November 2012. On the request of defendant, date of execution and registration of the sale deed was mutually extended upto 15.12.2012 and subsequently extended upto 27.12.2012. As per plaintiff, he was always ready and willing to perform his part of contract. On 27.12.2012, plaintiff remained present in tehsil compound to perform his part of the agreement but the defendant did not meet him. Plaintiff got his attendance marked by getting his affidavit attested. In the evening of 27.12.2012, plaintiff approached the defendant and asked him why he did not remove the wall from the plot in dispute and why he did not come to execute the sale deed.

Still defendant postponed the matter and assured to get the sale deed executed. Thereafter, defendant got issued legal notice dated 13.2.2013. Plaintiff also issued a legal notice dated 23.2.2013 but instead of executing the sale deed in favour of the plaintiff, defendant reiterated his stand by sending rejoinder dated 15.3.2013. Defendant took the plea that agreement dated 7.5.2012 could not be enforced as the plaintiff could not arrange for the balance sale consideration and the date was extended from 10.11.2012 to 15.12.2012 and then to 27.12.2012. Even on that date, plaintiff could not arrange the requisite funds and the sale deed could not be executed. However, defendant admitted that vide agreement dated 7.5.2012, he agreed to sell 5 bighas of land out of 6 bighas 10 biswas.

arrange for the balance sale consideration. Thereafter, registered notice was issued and the defendant prayed that application be dismissed. Having considered the above facts, the Court of first instance disposed of the application by restraining the defendant from alienating the suit property to any other person, except the plaintiff and in case the plaintiff fails to make the payment of balance sale consideration, the said order shall be deemed to have been vacated. First Appellate Court partly accepted the appeal but restrained the Court of first instance from passing any order to decree suit of the plaintiff in view of the statements dated 21.10.2013 and present revision against the said order.

Having considered the submissions made by learned counsel for the parties, this Court is of the considered view that the Court of first instance passed order on the basis of the statements of the parties recorded on 21.10.2013 and the same read as under:- "The defendant wants to sell 20 feet wide street to the plaintiff without having any right to do so and he is still ready ad willing to get the sale deed executed as per the draft sale deed produced by him on the said date. He may kindly be granted three months time for this purpose. XXXX XXXX XXXX XXXX XXXX He is ready to get the sale deed executed as per the agreement dated 7.5.2012. He further stated that he never demanded any money for the street as alleged nor he will demand any amount more than the agreed amount and he

is ready to get the sale deed executed as per the agreement."

The above fact reveals that the matter in controversy, in which application under Order 39 Rules 1 & 2 CPC was filed, was to the extent that defendant had executed an agreement of sale on 7.5.2012 with the plaintiff and thereafter failed to execute the sale deed in terms of the said agreement. So, defendant is restrained from selling the suit property to anybody else during pendency of the suit. It was for the Court to see whether a prima facie case and balance of convenience lies in favour of the plaintiff. However, the Court passed the order while considering the other facts, which are not relevant for the purpose of decision of the application for ad interim injunction. In the light of the above facts, agreement of sale was duly admitted by the defendant.

Readiness and willingness on the part of both the parties is disputed and that shall be the matter of evidence, which is yet to be recorded by the Court below. Merely on the statements of the parties recorded on 21.10.2013, no finding could be returned regarding readiness and willingness of the parties, thereby determining the rights of the parties. Even the First Appellate Court has not gone into the legality or otherwise of the said statement and the order passed by the Court of first instance.

As is the matter before this Court on the basis of application for ad interim injunction, present petition is disposed of with the direction that defendant has admitted the execution of the agreement dated 7.5.2012. The sale deed is yet to be executed in terms

of that agreement. The controversy regarding sale of 20 feet wide street to the plaintiff is again a matter of evidence to be adduced before the Court below to find out if that is a part of agreement or not. However, parties are required to get the sale deed executed strictly in terms of agreement dated 7.5.2012. If the defendant shall execute the sale deed to anybody else, during pendency of the litigation, then rights of the subsequent vendees shall be governed keeping in view the doctrine of lis pendens. The parties to the present litigation are required to abide by the terms & conditions of the agreement strictly. At the stage of passing of order on an application for ad interim injunction, there is no reason to give any direction to the parties or any Court finally determining the rights of the parties. With these directions, the present petition stands disposed of.

(Shekher Dhawan) Judge January 27, 2016 "DK"