Jaswant Singh vs Satnam Singh and Others

Kuldip Singh, J.

CM No. 3404-C of 2015

This is an application for condonation of delay of 3 days in refiling the present appeal.

For the reasons mentioned in the application, which is supported by the affidavit of the applicant-appellant, the delay of 3 days in refiling the present appeal is condoned.

Application is accordingly disposed of.

Main case

Impugned in the present regular second appeal is the judgment and decree dated 31.10.2014, passed by the learned Additional District Judge, Ludhiana, modifying the judgment and decree dated 17.8.2012, passed by the learned Additional Civil Judge (Senior Division), Samrala, to the effect that the plaintiff is entitled to alternative relief of recovery to the extent of 1/4th earnest money of Rs. 55,000/- alongwith interest at the rate of 9% per annum from the date of execution of the agreement dated 26.5.2003 till the date of passing of decree and at the rate of 6% per annum thereafter till realization.

Briefly stated, the plaintiff claims that Mohinder Singh (since deceased) had entered into an agreement of sale dated 2.6.2006 to sell his land measuring 15 kanals 13 marlas i.e. 1/4th share out of the land measuring 62 kanals 12 marlas at the rate of Rs. 3.50 lacs per killa. Rs. 2 lacs were paid as earnest money. The possession was delivered to the plaintiff at the time of execution of the said agreement i.e. 26.5.2003. The date of execution of the sale deed was fixed to be on or before 25.5.2006. It is stated that further a sum of Rs. 20,000/- was paid on 22.7.2004. In this way, the total earnest money paid to Mohinder Singh comes to Rs. 2.20 lacs. On the date fixed, Mohinder Singh did not turn up to execute the sale deed, despite legal notice having been served upon him earlier. It is further pleaded that said Mohinder Singh alongwith his brother Darshan Singh had executed agreement of sale dated 31.8.2002 in favour of Swaranjit Singh and Sarup Singh (defendants No. 2 and 3, respectively before the lower Court). It is stated that the said agreement of sale is ante dated on the stamp papers purchased in the black market. The said agreement of sale was regarding the land measuring 25 kanals 6 marlas. Swaranjit Singh filed a suit for specific performance, which was decreed by the learned Additional Civil Judge, (Senior Division), Samrala, on 2.6.2006. Swaranjit Singh was given two months'' time to deposit the balance sale consideration, which he failed to deposit. The present plaintiff had filed objection in the execution of the said decree on 30.9.2006 and that later on, the said execution was withdrawn by DH alongwith the application for extension of time for depositing balance sale consideration.

In the written statement, it was disclosed that defendant and his brother Darshan Singh are the real uncles of the plaintiff. In this way, the plaintiff is the nephew of said Mohinder Singh (defendant) and his brother Darshan Singh. The agreement was denied. It was stated that the plaintiff being the nephew of defendant was cultivating the land for the last many years by paying nominal rent to the defendant. The defendant is an illiterate person. In May, 2003, the defendant was in need of money. As such, he contacted his brother Piara Singh and nephew Jaswant Singh i.e. plaintiff for lending some money to him. The plaintiff asked the defendant to mortgage the land with him, to which the defendant agreed as the possession was already with the plaintiff. It was brought to the notice of the plaintiff that the defendant had already executed the agreement of sale in favour of Swaranjit Singh and Sarup Singh in the year 2002, but the plaintiff assured the defendant that as and when the defendant sells away the land and would return the loan amount, the mortgage document will stand cancelled. In this way, under the pretext of mortgage deed, the thumb impression of defendant was obtained on the said agreement of sale.

It also comes out that after filing the written statement, the defendants slipped away from the proceedings and did not contest. Later on, Mohinder Singh (defendant) died and his sons being his legal heirs were brought on record. The lower Court took the view that there is earlier judgment and decree dated 2.6.2006 (Ex. PH). It was observed that there is no evidence to prove that Swaranjit Singh had also played fraud upon the plaintiff in connivance with defendant No. 1. Therefore, in view of the said judgment and decree, the alternative relief qua 1/4th share of the earnest money was granted. It is claimed that three of the sons of deceased Mohinder Singh, namely, Kashmira Singh, Paramjit Singh and Manjit Singh @ Jeeta later on executed the sale deed in favour of the plaintiff and only Satnam Singh (fourth son of Mohinder Singh) did not execute the sale deed. Therefore, on this account, earnest money qua his 1/4th share was ordered to be refunded. The judgment and decree of the lower Court was modified in appeal.

I have heard the learned counsel for the revisionist and have also carefully gone through the file.

I am of the view that admittedly, there was close relationship between the plaintiff and Mohinder Singh (defendant). The plaintiff is none else than the real nephew of Mohinder Singh (deceased). The land is less than 2 acres. The total sale consideration thus comes around less than Rs. 7 lacs. However, it is surprising that merely on the payment of Rs. 2 lacs, the possession of the land was delivered to the plaintiff and further three years'' time was given to execute the sale deed. It indicates that it was basically a loan transaction. Had it been a normal agreement of sale, then on payment of such fraction of money, the vendor will never transfer the land to the prospective vendee nor after delivering such possession of the land, he will wait for three years to receive balance sale consideration. Therefore, the alternative relief of money decree was correctly granted by both the Courts below. This is in addition to the fact that there is a proved prior agreement of sale in favour of Swaranjit Singh and Sarup Singh. The lower appellate Court has held that the agreement of sale in favour of said persons was jointly executed by Mohinder Singh alongwith his brother Darshan Singh. In case, the judgment and decree in favour of Swaranjit Singh and Sarup Singh is set aside, the land would revert to Mohinder Singh as well as his brother Darshan Singh, who was not made party. Therefore, this additional ground was taken into consideration to refuse the specific performance of agreement of sale. The findings of facts have been recorded by both the Courts below. The judgments and decrees of both the Courts below are found to be well reasoned. There is no ground to interfere in the same. This is in addition to the fact that no substantial question of law arises in the present regular second appeal.

The learned counsel for the appellant has relied upon the authority of the Hon''ble Supreme Court in Zarina Siddiqui Vs. A. Ramalingam, and the authority of this Court in Baldev Singh (Deceased) Through LRs Versus Harbhajan Singh and others, 2015 (3) RCR (Civil) 59. However, in both the cases, the time little less than one and half year and little less than one year, respectively, was granted for execution of sale deed and not three years as in the present case. Therefore, both the authorities do not apply to the present case.

Accordingly, the present regular second appeal is dismissed.