Tara Chand vs Parkash

L.N. Mittal, J.—This is second appeal by Tara Chand defendant.

Respondent-plaintiff Parkash filed suit against defendant-appellant for possession of 5 Kanals 4 Marias land being l/4th share of 20 Kanals 16 Marias land, by way of specific performance of agreement to sell dated 26.04.1994. The plaintiff also claimed ancillary relief of permanent injunction.

Plaintiffs case is that the defendant agreed to sell the suit land to the plaintiff for Rs. 95,415/- and received the entire sale consideration and executed the impugned agreement dated 26.04.1994. The defendant had preempted the suit land and other land vide judgment and decree dated 15.04.1994 in preemption suit No. 209 of 1992. It was stipulated in the impugned agreement that sale deed would be executed in favour of the plaintiff after sanctioning of mutation in favour of defendant pursuant to preemption decree. Appeal against the preemption decree was dismissed vide judgment and decree dated 11.09.2002. Thereafter, in execution proceedings, possession of the suit land was delivered to the defendant and mutation was sanctioned in his favour on 20.05.2003. Thereupon the plaintiff asked the defendant to execute the sale deed in terms of the agreement. The plaintiff always remained ready and willing to perform his part of the contract but the defendant did not perform his part of the contract, necessitating the filing of the instant suit.

The defendant in his written statement while broadly denying the plaint allegations, inter alia pleaded that the plaintiff who was posted as Sentry Constable in Treasury Office, Jagadhri, suggested that he would prosecute the preemption suit on behalf of defendant. For this purpose, the plaintiff obtained signatures of defendant on certain papers. Intention of the defendant was to execute only power of attorney in favour of the plaintiff for prosecuting the preemption suit. The defendant never agreed to sell the suit land to the plaintiff nor received any sale consideration from the plaintiff. The impugned agreement is result of fraud and misrepresentation. However, proceedings of the preemption case were admitted. By amendment of written statement, the defendant also pleaded that the plaintiff was government employee at the time of execution of impugned agreement, but had not obtained permission from his department for entering in to the said agreement. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Yamuna Nagar at Jagadhri vide judgment and decree dated 07.05.2010 decreed the plaintiffs suit for recovery of Rs. 95,415/- with interest, instead of granting relief of specific performance of the agreement. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated 19.01.2011 and thereby plaintiffs suit has been decreed for specific performance of the impugned agreement. Feeling aggrieved, defendant has preferred instant second appeal.

I have heard learned counsel for the appellant and perused the case file.

Plaintiff-respondent led sufficient cogent evidence to prove execution of the agreement by the defendant. Even the defendant by his pleading in the written statement impliedly admitted his signatures on the impugned agreement. The plaintiff himself appeared in the witness box and examined an attesting witness of the agreement. Both of them stated according to plaintiff s version. On the other hand, there is sole self-serving oral statement of the defendant, which is not sufficient to rebut the plaintiffs evidence, particularly because signatures of the defendant on the impugned agreement stand admitted. Plea of fraud and mis-representation set up by the defendant is not proved from his self-serving bald oral statement. Moreover, the defendant has not led any evidence to depict that the plaintiff herein pursued the preemption suit on behalf of defendant herein as his attorney, although the defendant''s case is that he purported to execute power of attorney in favour of plaintiff herein for the preemption suit. In addition to it, even the trial court held the execution of the impugned agreement to be duly proved and the defendant did not prefer any first appeal against judgment and decree of the trial court. It is thus manifest that execution of the impugned agreement by the defendant stands fully proved. There is unchallenged finding of the trial court in this regard. Moreover, there is concurrent finding by both the courts below on this aspect. The said finding is fully justified by the evidence on record and does not suffer from any illegality or perversity so as to warrant interference in second appeal.

Learned counsel for the appellant vehemently contended that according to Rule 18 of the Government Employees (Conduct) Rules, 1966 (in short the Conduct Rules), no government employee shall, except with previous knowledge of the prescribed authority, acquire or dispose of any immovable property either in his own name or in the name of any member of his family, but the plaintiff in the instant case did not obtain any sanction from the employer for acquiring the suit property although the plaintiff at the time of impugned agreement, was posted as Police Constable. It was contended that the impugned agreement is, therefore, in violation of public policy contained in the Conduct Rules and, therefore, the same cannot be specifically enforced. Reliance in support of this contention has been placed on judgment of this Court in the case of Jagir Singh & Another v. Chanchal Singh, 1984 SLJ (P&H) 471. I have carefully considered this contention but the same cannot be accepted. Firstly, the plaintiff being Police Constable was governed by Punjab Police Rules (in short Police Rules). Rule 14.23 of the Police Rules simply requires making of report of the immovable property acquired by Police Officer of the rank above that of Constable. Thus only report of the immovable property acquired is required to be intimated and that too by Police Officer above the rank of Constable and not by Police Officer of the rank of Constable. The plaintiff was only Constable at the time of impugned agreement. Moreover, no previous intimation or sanction was required to be obtained according to Rule. 14.23 of the Police Rules and only report of acquiring property was to be made. In other words, the said report was to be made after acquiring the immovable property and not before acquiring it. Rule 14.23 of the Police Rules being special rule applicable to Police employees would prevail over the Conduct Rules, which are general in nature. Secondly, even assuming the Conduct Rules to be applicable to the plaintiff as Police Constable, even Rule 18(2) of the Conduct Rules simply stipulates that no government employee shall, except with previous knowledge of the prescribed authority, acquire or dispose of any immovable property either in his own name or in the name of any member of his family. Thus even according to this provision, no previous sanction is required to be obtained and only prior intimation is required to be given. However, the said intimation is required to be given for acquiring or disposing of any immovable property and not for entering into an agreement to sell. In other words, the plaintiff before getting the sale deed of the suit land executed in his favour pursuant to the impugned agreement, was required to intimate the same to the prescribed authority. However, before the sale deed could be executed, the plaintiff had retired from service and, therefore, this rule no longer remained applicable to the plaintiff. In this view of the matter, judgment in the case of Jagir Singh (supra) is not applicable to the facts of the present case. Plaintiff had retired before sale deed pursuant to impugned agreement could be executed after delivery of possession of the suit land to the defendant pursuant to preemption decree. Consequently, there was no occasion for applicability of Rule 18 of the Conduct Rules in the case of the plaintiff.

Learned counsel for the appellant also contended that plaintiff is uncle of the defendant and in fact the defendant after the death of his father was brought up by the plaintiff. However, this circumstance can have no bearing on the result of the instant list, because this circumstance would not depict that the impugned agreement is result of fraud or misrepresentation. In fact, no such plea was even taken by the defendant in the written statement that he had been brought up by the plaintiff. Moreover, the defendant alleged that he was persuaded to execute power of attorney to pursue preemption suit on his behalf, because the plaintiff was posted at Jagadhri where the preemption suit was pending. However, the defendant himself is also residing in a village within Tehsil Jagadhri. In other words, defendant himself was residing not at a far off place from Jagadhri and, therefore, there was no necessity of executing power of attorney by the defendant in favour of the plaintiff for pursuing the preemption suit nor there is any evidence to depict that the plaintiff herein at any stage pursued the preemption suit on behalf of defendant herein. Moreover, finding of trial court regarding execution of agreement was not challenged by defendant by filing first appeal and so the said finding has attained finality.

Learned counsel for the appellant also contended that defendant-appellant deposited Rs. 1,90,830/- as total preemption money for 10 Kanals and 8 Marias land i.e. double the area of the suit land and, therefore, defendant could not have agreed to sell the suit land to the plaintiff for the proportionate sale consideration only. The contention cannot be accepted, because as per contention of counsel for the appellant himself, defendant-appellant is real nephew of the plaintiff-respondent. In view of said close relationship, it is not improbable that the defendant agreed to sell the suit land to the plaintiff for the proportionate preemption money paid by the defendant himself.

For the reasons aforesaid, I find no merit in the instant second appeal. Trial court erroneously declined the relief of specific performance of the agreement to the plaintiff on the basis of Rule 18 of the Conduct Rules. Lower appellate court has rightly granted the relief of specific performance of the agreement to the plaintiff, because Rule 18 of the Conduct Rules is not applicable to the plaintiff, who had since retired before the filing of the suit. Consequently, finding of the lower appellate court does not warrant interference in second appeal as the same is not shown to be illegal or perverse in any manner. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. Accordingly the appeal is dismissed in limine.