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PIRU versus FAKIR CHAND

High Court of Punjab and Haryana, Chandigarh

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Piru v. Fakir Chand - RSA-2089-2005 [2006] RD-P&H 5226 (4 August 2006)

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

RSA No. 2089 of 2005

Date of decision : 17.8.2006.

...

Parties Name

Piru

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

vs.

Fakir Chand

.................Respondent

Coram: Hon'ble Mr. Justice S.N. Aggarwal Present: Sh. R.M. Singh, Advocate

for the appellant.

Sh. M.L. Sarin, Senior Advocate with

Sh. D.B. Singh, Advocate for the respondent.

...

S.N. Aggarwal, J.

The appellant is the owner of the suit land. He executed an agreement of sale dated 29.10.1993 in favour of the respondent. The land was to be sold for a sum of Rs. 1,10,000/- per acre. And Rs.85,000/- was paid as earnest money. The sale deed was to be executed on or before 15.6.1996. The respondent filed the civil suit on 15.6.1999 for possession by way of specific performance of the agreement of sale dated 29.10.1993.

The suit was contested by the appellant. The execution of agreement of sale dated 29.10.1993 was denied specifically. The receipt of earnest money was also denied.

Issues were framed. The parties led the evidence. The learned trial Court decreed the suit for possession by way of specific performance vide judgment and decree dated 10.9.2002.

The appellant filed an appeal. The learned Lower Appellate Court upheld the finding of fact recorded by the learned trial Court and dismissed the appeal vide judgment and decree dated 14.1.2005.

Hence, the present appeal.

The submission of the learned counsel for the appellant was that the suit for possession by way of specific performance was filed by the respondent almost on the last date of the period of limitation i.e. on 15.6.1999, hence it was prayed that the appeal be accepted and the judgments of the Courts below be set aside.

This submission has been considered. It has no merits at all.

It was not disputed by the learned counsel for the appellant that the appeal could be filed within a period of three years and admittedly, the appeal has been filed within a period of three years. The mere plea that it was filed on the last day, does not defeat the right of the respondent to seek specific performance. It was held by the Hon'ble Division Bench of the Rajasthan High Court in the judgment reported as Surendra Singh vs. L.Rs of Bhanwar Lal and others 2006 (2) Indian Civil Cases 606 that merely filing of the suit on the last day of limitation when seen in isolation does not defeat the suit.

At the same time, if the delay is related to the conduct of the respondent or some motive is also proved, then that date may become relevant and important. But this date has been referred only in isolation. No other circumstance is proved on the file how the filing of the suit for specific performance of the agreement of sale on the last date of limitation could defeat the right of the respondent to seek specific performance. Therefore, the submission of the learned counsel for the appellant is found to be of no merit.

The next submission of learned counsel for the appellant was that the agreement proved by the respondent only relates to specific khasra numbers and specific khewat/khatauni numbers, in which the appellant is a co-sharer and his share comes only to 1/6th share in the

land measuring 57 kanals 6 marlas. It was further submitted that the respondent has filed the suit for more khasra numbers and more khewat/khatauni numbers which were not stated in the agreement of sale dated 29.10.1993. Hence, it was prayed that the suit of the respondent deserves to be dismissed.

This submission has also been considered. This plea has nowhere been taken by the appellant in the written statement.

Admittedly, the appellant is a co-sharer in a large number of khewat/khatauni/khasra numbers and his share, is much more than 57 kanals 6 marlas. Therefore, merely, because some limited kharsra numbers, khewat/khatauni numbers have been stated in the agreement of sale, it does not defeat the right of the respondent to claim specific performance. The reason is that even if the appellant had sold these khasra/khewat/khatauni numbers, still the respondent would have stepped into the shoes of the appellant and would have become a co-sharer in the total land and would not have become the owner exclusively, for these specific khasra numbers which were referred in the agreement of sale dated 29.10.1993. Of course, the specific area and the khasra numbers of the land purchased by the respondent could have been decided only in partition proceedings.

Therefore, merely because limited khasra numbers are mentioned in the agreement of sale and the suit for specific performance has been filed against the share of the appellant in the total land, it does not defeat the right of the respondent.

Since, the execution of the agreement dated 29.10.1993 by the appellant in favour of the respondent has been upheld by both the Courts below by recording well reasoned judgments, this Court does not feel inclined to interfere with the said judgments.

No merits. Dismissed.

( S.N.Aggarwal )

Judge

17.8.2006.

chug


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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