Baxis Singh vs Sukhdev Singh (D) Thr Lrs .

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURSIDCITON

CIVIL APPEAL NO.6303 OF 2012

BAXIS SINGH … APPELLANT

VERSUS

SUKHDEV SINGH (DEAD) THRU. LRS. & ORS. … RESPONDENTS

JUDGMENT

S.ABDUL NAZEER, J.

1. This appeal by special leave is directed against the judgment and decree

dated 24.1.2006 in S.B. Civil First Appeal No. 296 of 2003 whereby the High

Court of Judicature of Rajasthan at Jodhpur has allowed the appeal in part and

directed the defendant No.1 to refund the amount received by her along with

interest @ 6% p.a. from the date of filing of the suit till the date of the payment.

2. Baxis Singh (the appellant herein), was the plaintiff in the suit, Sukhdev Signature Not Verified

Singh (dead) through LRs. (the first respondent herein) was the second defendant Digitally signed by VISHAL ANAND Date: 2018.04.10 16:51:51 IST Reason:

and Smt. Gurdev Kaur, widow of Buta Singh (the fourth respondent herein) was 2

the first defendant. The appellant-plaintiff filed a Civil Suit No.114 of 2002 on the

file of Additional District Judge No.1, Hanumangarh for specific performance of

the sale agreement dated 27.5.1996 against the first defendant. Sukhdev Singh got

impleaded as the second defendant. In the suit, the plaintiff contended that

defendant no.1 was the tenant of the suit schedule property. The first defendant

had appointed her nephew Baga Singh as her General Attorney for supervision and

cultivation of the land in question. The General Attorney executed a sale agreement

dated 27.5.1996 for sale of the suit schedule property in favour of the plaintiff. It

is further contended that the plaintiff was always ready and eager for payment of

balance of the sale consideration and getting the execution of the sale deed in his

favour but the defendant refused to execute the sale deed.

3. The second defendant filed the written statement stating that the disputed

agricultural land does not belong to the Khatedari of defendant No.1 and that the

said land is in his Khatedari of which the plaintiff had full knowledge and he

conspired with defendant No.1 and got the sale agreement executed from alleged

General Attorney of defendant No.1 in an unlawful manner and without any right.

It was further contended that the Khatedari of the land in question was recorded in

his favour on 4.5.1979 on the basis of registered Will dated 15.1.1979 executed by

late Buta Singh and on having proceedings of Section 145 Cr.P.C. on it, declaration

of possession in respect of the disputed land was issued in favour of defendant 3

No.1 as final order. The second defendant filed a Revenue suit No. 214/95 against

defendant No.1 under Section 183 of Rajasthan Tenancy Act before Sub-Divisional

Officer, Hanumangarh for getting possession of the land. This suit was decided on

11.3.97 in his favour and he got possession of the land by execution of the said

decree. The appeal filed by the plaintiff against the said decree was dismissed on

3.11.78. The Will executed in his favour was also challenged unsuccessfully by

the plaintiff. The present suit has been filed suppressing all these material facts.

4. On the basis of the pleadings of the parties, the trial court framed relevant

issues. The parties led evidence in support of their respective contentions. On

appreciation of the materials on record, the trial court decreed the suit by directing

defendant No.1 to execute the sale deed in respect of the land in question in favour

of the plaintiff. The decree of the trial court directing the first defendant to execute

the sale deed was set aside by the High Court and defendant no.1 was directed to

refund the amount received by her under the aforesaid agreement.

5. The main contention of learned counsel for the appellant is that defendant

No.2 relied on a Will said to have been executed by Buta Singh, husband of the

first defendant. He has failed to produce the said Will in the proceedings before the

trial court or before the High Court. Therefore, the High Court was not justified in

dismissing the suit in so far as specific performance of the agreement dated

27.5.1996 is concerned.

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6. The contention of defendant no.2 is that the suit land had already been

mutated in his favour on the basis of the aforesaid Will. It is clear from the

materials on record that certain proceeding under Section 145 of the Cr.P.C. were

initiated by defendant No.1 against defendant No.2 in relation to the land in

question. Since the said proceedings did not determine the title or ownership in the

land, the second defendant filed a revenue suit under Sections 88 and 183 of the

Tenancy Act against the first defendant. In these proceedings, the aforesaid Will

was produced. There was yet another proceeding between the parties. In the said

proceedings it was concluded that defendant no.2 was in possession of the property

in question. There was yet another proceeding in relation to the record of Samvat

Year 2057 to 2060 corresponding to the year 2000 to 2003. On the basis of the

judgment and decree of the Revenue Court in favour of the appellant-defendant,

possession was also given by the Tehsildar on 25.4.1997. Relying on these two

orders of the competent court, the High Court has concluded that second defendant

is the owner and in possession of the property on the basis of the Will. We do not

find any error in the aforesaid finding. The High Court, in our view, has rightly

denied specific performance of the agreement in favour of the plaintiff and directed

refund of the amount by the first defendant with interest @ 6% p.a. In view of our

conclusion as above, it is unnecessary to consider the other contentions of the

parties.

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7. The appeal is devoid of merit and is hereby dismissed without any order as

to costs.

……………………………J. (N.V. RAMANA)

……………………………J. (S. ABDUL NAZEER) New Delhi;

April 10, 2018.