Specific Relief Act, 1963, S.38--Permanent Injunction--Possession--Agreement to sell--Two Agreements to sell

- 2010(2) LAW HERALD (P&H) 1441
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mahesh Grover
R.S.A.No.1827 of 2010 (O&M)
Magh Singh
v.
Balvir Singh & Ors.
{Decided on 13/05/2010}
For the Appellant: Mr. R.V.S. Chugh, Advocate.
Specific Relief Act, 1963, S.38--Permanent Injunction--Possession--Agreement to sell--Two Agreements to sell do not contain a recital regarding handing over of possession to appellant--No other material to show that possession was ever with appellant--Suit for permanent injunction for possession of land on basis of two agreements to sell rightly dismissed. (Para 7)

Limitation Act, 1963

Limitation Act, 1963
S.27--Adverse Possession--Facts which are necessary to be pleaded and proved when plea of adverse possession is raised laid down by Apex Court after analyzing law in Hemaji Waghaji Jat vs. Bhikabhai Khengarbhai Harijan & Ors. discussed.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether mere non-payment of rent would put to an end to relationship of landlord and tenant so as to assert hostile possession in favour of a person who claims adverse possession--No--Mere non-payment of rent will not put an end to relationship of landlord and tenant so as to declare possession to be open and hostile to true owner.; Jeet Singh through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether plea of adverse possession can be raised by filing suit for declaration by a person who pleads uninterrupted possession--No--Plea of adverse possession is available only as defence.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether plea of adverse possession can be accepted in absence of particulars regarding possession becoming upon and hostile to true owner--No--In absence of particulars regarding it becoming hostile and open such a plea cannot be answered--Plea of ownership and adverse possession cannot co-exits.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828

Limitation Act, 1963

Limitation Act, 1963
S.27--Adverse Possession--Facts which are necessary to be pleaded and proved when plea of adverse possession is raised laid down by Apex Court after analyzing law in Hemaji Waghaji Jat vs. Bhikabhai Khengarbhai Harijan & Ors. discussed.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether mere non-payment of rent would put to an end to relationship of landlord and tenant so as to assert hostile possession in favour of a person who claims adverse possession--No--Mere non-payment of rent will not put an end to relationship of landlord and tenant so as to declare possession to be open and hostile to true owner.; Jeet Singh through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether plea of adverse possession can be raised by filing suit for declaration by a person who pleads uninterrupted possession--No--Plea of adverse possession is available only as defence.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether plea of adverse possession can be accepted in absence of particulars regarding possession becoming upon and hostile to true owner--No--In absence of particulars regarding it becoming hostile and open such a plea cannot be answered--Plea of ownership and adverse possession cannot co-exits.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828

Limitation Act, 1963

S.27--Adverse Possession--Facts which are necessary to be pleaded and proved when plea of adverse possession is raised laid down by Apex Court after analyzing law in Hemaji Waghaji Jat vs. Bhikabhai Khengarbhai Harijan & Ors. discussed.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether mere non-payment of rent would put to an end to relationship of landlord and tenant so as to assert hostile possession in favour of a person who claims adverse possession--No--Mere non-payment of rent will not put an end to relationship of landlord and tenant so as to declare possession to be open and hostile to true owner.; Jeet Singh through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether plea of adverse possession can be raised by filing suit for declaration by a person who pleads uninterrupted possession--No--Plea of adverse possession is available only as defence.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether plea of adverse possession can be accepted in absence of particulars regarding possession becoming upon and hostile to true owner--No--In absence of particulars regarding it becoming hostile and open such a plea cannot be answered--Plea of ownership and adverse possession cannot co-exits.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828

Limitation Act, 1963

S.27--Adverse Possession--Facts which are necessary to be pleaded and proved when plea of adverse possession is raised laid down by Apex Court after analyzing law in Hemaji Waghaji Jat vs. Bhikabhai Khengarbhai Harijan & Ors. discussed.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether mere non-payment of rent would put to an end to relationship of landlord and tenant so as to assert hostile possession in favour of a person who claims adverse possession--No--Mere non-payment of rent will not put an end to relationship of landlord and tenant so as to declare possession to be open and hostile to true owner.; Jeet Singh through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether plea of adverse possession can be raised by filing suit for declaration by a person who pleads uninterrupted possession--No--Plea of adverse possession is available only as defence.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828
S.27--Adverse Possession--Whether plea of adverse possession can be accepted in absence of particulars regarding possession becoming upon and hostile to true owner--No--In absence of particulars regarding it becoming hostile and open such a plea cannot be answered--Plea of ownership and adverse possession cannot co-exits.; Jeet Singh (since deceased) through L.Rs. v. Molu Ram (since deceased) through L.Rs., ; 2010(1) Law Herald (P&H) 828

SPECIFIC RELIEF ACT, 1963

Agreement to sell--Specific Performance--Alternative Relief--Money decree--Execution of agreement to sell and receipt of earnest money of Rs.3,25,000/- proved--Condition in agreement that if vendor backed out from agreement and refused to execute sale deed in favour of vendee then he will be entitled to receive double amount of earnest money--Money decree passed by appellate Court of Rs.5,20,000/- (3,25,000/-as earnest money and Rs.1,95,000/- as damages) not harsh and against any law--Moreover, vendor not taken plea of hardship but simple plea of denial of execution of agreement to sell taken up--No interference.; Harcharan Singh v. Sohan Singh, ; 2010(1) Law Herald (P&H) 739
Agreement to sell--Specific performance--Discretionary relief--Relief of specific performance of agreement to sell is a discretionary relief and the discretion has to be exercised on the basis of sound judicial principles--Unless there is a ground for declining the relief of specific performance of the agreement, ordinarily the Courts would exercise discretion in favour of ordering specific performance of the agreement--Equity, justice and good conscience demand that the agreements, which have been entered into between the parties, should be honoured--If relief of specific performance of the agreement is declined without any reason, the very purpose of entering into agreement would be frustrated.; Smt. Raj Kanwar v. Gharsi Ram through LRs, ; 2010(1) Law Herald (P&H) 731
Specific Performance--Agreement to sell--Trial Court declined relief of specific performance of agreement by simply observing that value of property has since increased and that original owner of suit land has already died--Not sufficient grounds for declining relief for specific performance of agreement--Plaintiff agreed to purchase suit land to earn profit in case of increase in price--Said benefit cannot be declined without any valid reason--Plaintiff paid more than 90% of agreed sale price to vendor--Plaintiff remained deprived of amount as well as fruits of possession of suit land for more than a decade since date of agreement--No reason to decline relief of specific performance of agreement--Suit for possession by specific performance of agreement decreed.; Smt. Raj Kanwar v. Gharsi Ram through LRs, ; 2010(1) Law Herald (P&H) 731
S.12 & 20--Agreement to sell--Specific Performance of part of contract--Question with regard to relief of declaration being included in suit for specific performance not raised before Courts below--Plea even not taken by vendor appellant that he cannot execute a decree of 2.2 kanals of land as he has left with only to extent of 1.15 marla and therefore agreement to sell in question has become inequitable--However, vendee specifically mentioned about previous sales and that vendor concealed this fact from him and executed agreement to sell--Held; that Court can ask for specific performance of part of contract.; Manmohan Singh v. Hakam Singh etc., ; 2010(1) Law Herald (P&H) 753

SPECIFIC RELIEF ACT, 1963

S.34--Evidence Act, 1872--Expert Evidence--Permanent Injunction--Notice to plaintiff that he stood guarantor by mortgaging his house by deposite of original sale deed as collateral security for repayment of loan--Statement of plaintiff that he never signed documents to create mortgage duly supported by report of hand writing expert and finger print expert--Case of plaintiff that envelop containing original sale deed was left in house of defendant no.2 and in view to defraud him he gave it to defendant no.1 for securing loan--No person examined by defendants to prove that signature were appended by plaintiff in their presence on documents regarding deposit of title deeds--Mere fact that plaintiff did not lodge any complaint against defendant no.2 did not mean that liability could be fastened upon them which was otherwise not proved--Finding of Courts below that plaintiff created mortgage in respect of property in dispute by way of deposit of title dead as collateral security for repayment of loan advance set aside. ; Ranbir Singh & Ors. v. Haryana Financial Corporation & Ors.; 2010(1) Law Herald (P&H) 597
S.34--Permanent Injunction--Challenge to--Hand Writing Expert--Disputed signature appended in 1995--Specimen signature appended in 2001--There could be some variations, between the signatures appended by person, a few year earlier, and the signatures, appended by him after the gap of a few years of his earlier signatures--But, there cannot be complete dissimilarity, on account of the aforesaid reason.; Ranbir Singh & Ors. v. Haryana Financial Corporation & Ors.; 2010(1) Law Herald (P&H) 597

SPECIFIC RELIEF ACT, 1963

SPECIFIC RELIEF ACT, 1963
Injunction--Permanent injunction--Possession--Once it is proved that plaintiff were not in possession of suit property on date of filing of suit, suit for injunction not competent.; Tharu Ram v. Jatinde Singh, 2010(1) Law Herald (P&H) 530
Transfer of Property Act, 1882, S.41--Specific performance--Agreement to sell--Bonafide Purchaser--Specific stand taken by plaintiff/respondent no.1 that transaction of sale in favour of appellants was sham transaction to defeat rights of plaintiffs--It was specially pleaded that appellants are real brothers of vendor and sale deed in their favour could not affect legal of plaintiff to seek relief of specific performance--Appellant even did not claim an issue of bonafide purchasers for consideration--It cannot be said that appellants were bonafide purchaser for consideration without notice.; Kartar Singh & Anr. v. Kuldeep Singh & Anr.,: 2010(1) Law Herald (P&H) 512
S.13(1) (a)--Specific Performance--Agreement to sell--Right of Purchaser against person without title--Vendor neither owner nor in possession of suit land at time of agreement to sell--Whether suit for specific performance could be decreed--YES--On acquisition of title in property subsequently, vendee can enforce contract of specific performance.; Kartar Singh & Anr. v. Kuldeep Singh ,: 2010(1) Law Herald (P&H) 512
S.20--Bonafide transferee--Hardship--Sale deed in favour of appellants was subsequent to agreement to sell in favour of plaintiff/respondent--Cannot be said that appellants could not forsee hardship at that time, as admittedly they are real brothers of vendor--Also, cannot be said that appellants had no knowledge of agreement to sell--Plea of bonafide purchaser not raised either before learned trial Court or learned lower appellate Court though specifically impleaded as party on averment that transaction of sale in their favour was a sham transaction to defeat right of plaintiff/respondent--No ground to deny specific performance in terms of Section 20.; Kartar Singh & Anr. v. Kuldeep Singh : 2010(1) Law Herald (P&H) 512
S.34--Permanent injunction--Appellant filed suit for permanent injunction seeking to restrain the respondents from interfering in intended construction sought to be raised on first floor of tenanted premises--Respondent specifically pleaded that roof was part of tenanted premises--Held, that a party who pleads a fact is required to prove same by adducing cogent evidence--Respondent failed to discharge their onus which was specifically on them--No evidence to establish that roof was part of their tenancy--Besides, shops are divided into two blocks of four each with stair case in middle and its roof was part of tenanted premises then in that eventuality user of same would have been trespassing on premises in possession of other tenant which could never have intention of tenancy so cheated in favour of respondent--Apart in Civil Revision findings of Rent controller and Appellate Authority with regard to fact that roof was not part of tenanted premises were not to be disturbed.; Manjit Kaur v. M/S Punjab Sales Corporation, Mandi Gobindgarh & Ors.,: 2010(1) Law Herald (P&H) 496

Limitation Act, 1963, Art. 65

2009(3) LAW HERALD (P&H) 2313
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K. Sharma
RSA No.1401 of 2003
Kurdia
v.
Rameshwar Dass & Ors.
{Decided on 15/01/2009}
For the Appellant: Mr. Anil Khetarpal, Advocate.
For the Respondents: Mr. Arvind Singh, Advocate.
IMPORTANT POINT
Gift--Immovable property--In the absence of any cogent evidence in proof of delivery and acceptance of actual physical possession of the property under the gift; mere entry of mutation is not sufficient.
(A) Transfer of Property Act,1882, S. 122 & 123--Gift--Gift of immovable property without delivery and acceptance of possession is no valid gift--In the absence of any cogent evidence in proof delivery and acceptance of actual physical possession of the property under the gift, mere entry of mutation is not sufficient. (P. 39, 44 & 45)
(B) Civil Procedure Code,1908, S.11--Explanation IV--Civil Procedure Code, 1908 O. 41, R.22 and 33--Resjudicata--Appeal--If the earlier decision on the issue is still a subject matter of pending appeal, it cannot be said that the subsequent suit was barred by the principle of res judicata as the decision had not attained finality. (P.10 to 43)
(C) Limitation Act, 1963, Art. 65--Suit for possession filed by the plaintiff after 18 years--Suit held to be time barred.

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Sufficient cause--Limitation--Delay of 630 days

2010(1) LAW HERALD (P&H) 98
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
C.M. No. 1460-C of 2007 in RSA No. 509 of 2007
Rewati Devi & Ors.
v.
Ram Parshad & Ors.
{Decided on 17/08/2009}
For the Applicant/appellant: Mr. Rajiv Sharma, Advocate.
For the Respondent No. 1: Mr. Narender Kumar Sharma, Advocate,.
For the Respondent No.2: Ex-parte.
Limitation Act, 1963, S.5--Punjab and Haryana High Court Rules & Order Volume 5--Sufficient cause--Limitation--Delay of 630 days is refilling appeal--On ground that paper book of appeal was misplaced in office of counsel--Applicant/appellant and his counsel did not all bother about refilling of appeal--They were completely negligent--No ground made out for condonation of delay--Concurrent finding of facts by Court below dismissing suit of plaintiff for permanent injunction--No high stakes or arguable points or substantial questions of law involved. (P. 9 & 12)

Cancellation of auction--Forest land--Natural justice--Second appeal

2010(1) LAW HERALD (P&H) 93
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
Regular Second Appeal No.2734 of 2008
Ganga Singh & Ors.
v.
State of Haryana through Collector District Jind & Ors.
{Decided on 10/08/2009}
For the Appellant: Mr. R.N. Lohan, Advocate.
For the Respondents: Ms. Rajat Goyal, AAG, Haryana.
(A) Specific Relief Act, 1963, S.39--Mandatory injunction--Auction purchaser--Auction of land abandoned canal/water courses--Land covered under the protected forest area--Could not be sold--Relief of mandatory injunction directing the defendants to execute the conveyance deed, in his favour, on the basis of the auction could not be granted--Auction purchaser was only entitled to the recovery of amount. (P.11)
(B) Civil Procedure Code, 1908, S.100--Cancellation of auction--Forest land--Natural justice--Second appeal--Appellant purchased the land of abandoned canal/water courses in auction--Land in dispute formed part of the protected forest area and could not be sold--Issuance of notice before canceling the auction not necessary. (P.12)
(C) Specific Relief Act, 1963, S.39--Mandatory injunction--Auction of land abandoned canal/water courses--Later on, it had been discovered that the land formed part of the protected forest area, and could not be sold--Even if the sale deed had been executed--No ownership right in the plaintiff could vest.

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Agreement to sell--Merely because the suit was filed just a few days before the expiry of limitation period of three years, the plaintiff could not have been denied the relief of specific performance

2010(1) LAW HERALD (P&H) 460
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
R.S.A. No. 186 of 2010
Narinder Kaur
v.
Surjan
{Decided on 22/01/2010}
For the Appellant: Mr. Anil Kshetarpal, Advocate.
IMPORTANT POINT
Agreement to sell--Merely because the suit was filed just a few days before the expiry of limitation period of three years, the plaintiff could not have been denied the relief of specific performance.
(A) Specific Relief Act, 1963--Specific Performance--Agreement to sell--Execution of--Proof--Contention of appellant that mere admission by defendant of signatures of her husband on agreement and receipt not sufficient to prove due execution of agreement--Not acceptable as plaintiff-respondent led sufficient evidence to prove due execution of agreement--Suit of plaintiff for specific performance rightly decreed. (P.7 & 8)
(B) Specific Relief Act, 1963--Specific Performance--Agreement to sell--Execution of--Proof--Plaintiff in order to prove agreement not only stepped himself in witness box but also examined both marginal witnesses of agreement--He also examined advocate as witness who had drafted and got typed agreement--Due execution of agreement held to be proved. (P.9)
(C) Specific Relief Act, 1963--Agreement to sell--Specific Performance--Limitation--Merely because the suit was filed just a few days before the expiry of limitation period of three years, the plaintiff could not have been denied the relief of specific performance--Moreover, both the courts below have exercised the discretion of granting relief of specific performance to the plaintiff--Judgments of the courts below cannot be reversed in second appeal mere merely on account of delay in filing the suit, although the suit was filed within limitation period--Pendency of suit filed by defendant’s son against the plaintiff’s sons would also not disentitle the plaintiff to relief of specific performance on the ground of delay in filing the suit, when execution of the impugned agreement is fully proved. (P.10)

Specific Performance--Agreement to sell--Two agreements--Bonafide Purchaser

2010(1) LAW HERALD (P&H) 177
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
Regular Second Appeal No.3325 of 2007
Suresh Kumar & Ors.
v.
Ajit Singh & Ors.
{Decided on 17/08/2009}
Present: Mr. Sanjay Mittal, Advocate for the appellant.
Ms. Sushma Singh, Advocate for respondent nos. 1 and 2.
Respondent no.3 ex-parte.
Service of respondent no.4 dispensed with, vide order dt:27.01.2009.
Specific Relief Act, 1963, S.63--Specific Performance--Agreement to sell--Two agreements--Bonafide Purchaser--Earnest money--Refund of--Alternative relief--Sale deed dated 26.11.1998 executed in favour of defendant nos. 2 to 4 on basis of agreement to sell dated 30.9.1998 by attorney of defendant no.1--Payment of sale consideration by defendant no. 2 to 4 to attorney of defendant no.1 also proved--Plea taken by plaintiff that he was put in possession of property in dispute at time of agreement to sell dated 6.11.1998 not proved--Mere fact that defendant no.2 to 4 are related to defendant no.1 did not prove that agreement to sell dated 30.9.1998 and sale deed dated 26.11.1998 were in any way result of fraud--Plea taken by defendant no.1 regarding cancellation of power of attorney not substantiated through any evidence--Since agreement to sell in favour of plaintiff was proved and admitted by defendant no.1 though he is not entitled to decree for specific performance in peculiar facts and circumstances--Plaintiff entitled to recovery of amount of earnest money already paid by him alongwith interest. (P.13, 14 & 15)

suit for permanent injunction against co-sharer not maintainable.

2010(1) LAW HERALD (P&H) 168
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mahesh Grover
R.S.A. No. 3701 of 2009 (O&M)
Mohinder Singh
v.
Palwinder Singh & Ors.
{Decided on 06/01/2010}
For the Appellant: Mr. G.S. Nagra, Advocate.
IMPORTANT POINT
Co-sharer--Suit land continued to be joint between parties and since no partition had taken place suit for permanent injunction against co-sharer not maintainable.
Specific Relief Act, 1963--Civil Procedure--Injunction--Permanent Injunction--Joint Possession--Father of appellant had filed suit for joint possession for entire land which is pending adjudication--In that case appellant was awarded mesne profit on account of physical possession of suit property which is in hands of respondents--Brother of appellant had sold 5 kanals 19 marlas of land to respondents vide registered sale deed which had proved on record--No material that appellant inherited entire suit property from his father--Nothing to show that suit property stood partitioned amongst co-sharers--Therefore, respondents on strength of sale deed which is acted upon and find mention in revenue record become co-sharer in suit property and since land continues to be joint exclusive possession of appellant as pleaded and claimed cannot be said to be established--His status alongwith respondents can be said to be that of a co-sharer--Co-sharer who is not in equal physical possession of parcel of land cannot claim any injunction against other co-sharer--No infirmity in findings of Courts below that suit land continued to be joint between parties and since no partition had taken place suit for permanent injunction against co-sharer not maintainable. (P.11)

Permanent injunction--Exclusive possession--Proof of--Land in dispute shown as shamlat deh

2010(1) LAW HERALD (P&H) 29
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mrs. Justice Sabina
R.S.A. No. 3052 of 2008 (O&M)
Bhagta Rsm
v.
State of Haryana & Anr.
{Decided on 08/12/2009}
For the Appellant: Mr. C.B.Goel, Advocate.
Specific Relief Act, 1963--Permanent injunction--Exclusive possession--Proof of--Land in dispute shown as shamlal deh--Same vested in Municipal Committee vide amendment made in year 1999 in Section 61 in Haryana Municipal Act, 1973--There was cremation ground, a satsang bhawan and hotel in existence in suit land--Cremation ground and satsang bhawan were being used by public at large--Plaintiff could not till the exact area a of satsang bhawan and cremation ground nor could till exact area which was being used for agricultural purposes--Plaintiff failed to establish his exclusive possession over only specific portion of suit land--Suit for permanent injunction rightly dismissed.
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