Suresh Kumar Tr.Gpa vs Anil Kakaria

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.4383 OF 2009

Suresh Kumar through GPA ….Appellant(s)

VERSUS

Anil Kakaria & Ors. .…Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) This appeal is filed by the plaintiff against the

judgment and order dated 02.05.2006 passed by the

High Court of Punjab and Haryana at Chandigarh in

R.S.A. No. 1522 of 2006 whereby the High Court

dismissed the second appeal filed by the appellant herein

and affirmed the judgment and decree dated 21.10.2005

passed by the Additional District Judge, Panchkula in

C.A. No.20 of 2005.

Signature Not Verified

2) Digitally signed by ANITA MALHOTRA Date: 2017.11.07 The appellant is the plaintiff whereas the 15:47:28 IST Reason:

respondents are the defendants in the civil suit out of

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which this appeal arises.

3) The dispute in this appeal relates to plot No.28,

measuring 1/4th acre in Industrial Area Phase-I Urban

Estate, Panchkula(hereinafter referred to as “the suit

land”).

4) Haryana Urban Development Authority (hereinafter

referred to as “HUDA”) had allotted the suit land to one

Shri Ved Prakash Kakaria in the year 1973. Thereafter

Shri Ved Prakash Kakaria, on 24.04.1980, entered into

an agreement with the appellant to sell the suit land to

him on certain terms and conditions.

5) On 05.02.1985, Shri Ved Prakash Kakaria expired,

leaving behind two sons and one daughter (respondent

Nos.1 to 3) as his legal heirs. Respondent Nos.1 to 3

however, sold the suit land to respondent No.4.

6) On 10.10.1992, the appellant filed a suit against the

respondents for a declaration that the transfer made by

respondent Nos.1 to 3 in favour of respondent No.4 is

null and void and not binding on the appellant, that the

respondents be restrained from interfering in appellant's

possession over the suit land as he claimed to be in

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possession of the suit land, and lastly, for issuance of

mandatory injunction against respondent Nos.1 to 3

directing them to transfer the suit land in favour of

appellant.

7) The suit was essentially based on an agreement

dated 24.04.1980 and the Will alleged to have been

executed by late Shri Ved Prakash Kakaria in his favour

for claiming the aforementioned reliefs against the

respondents.

8) The respondents filed their respective written

statements and denied the plaintiff's claim. The

respondents denied the agreement dated 24.04.1980 and

also denied the execution of alleged Will said to have

been executed by Ved Prakash Kakaria in favour of the

plaintiff. The respondents defended the sale of the suit

land made by respondent Nos.1 to 3 in favour of

respondent No.4 for valuable consideration and

contended that respondent No.4 was put in its actual

possession and has also set up their factory over the suit

land and running the same.

9) The Trial Court framed the issues and the parties

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adduced their evidence. The Trial Court, by its judgment

and decree dated 22.01.2005, dismissed the suit. It was

held that the appellant (plaintiff) failed to prove the

agreement dated 24.04.1980, that the Will was also not

proved, that respondent Nos.1 to 3 being the owner of the

suit land rightly sold the suit land to respondent No. 4

for consideration, and lastly, that respondent No.4 was in

possession of the suit land and has set up their factory

over the suit land.

10) Felt aggrieved, the appellant filed first appeal before

the Additional District Judge, Panchkula. By

judgment/decree dated 21.10.2005, the First Appellate

Court dismissed the appeal and upheld the

judgment/decree of the Trial Court. Felt aggrieved, the

appellant pursued the matter in second appeal before the

High Court. The High Court, by impugned judgment,

dismissed the second appeal holding that the concurrent

findings of two Courts below are binding on the High

Court and that the appeal does not involve any

substantial question of law under Section 100 of Code of

Civil Procedure. It is against this judgment of the High

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Court, the appellant (plaintiff) felt aggrieved and filed this

appeal by special leave before this Court.

11) Heard Mr. Jaideep Gupta, learned senior counsel

for the appellant and Mr. Sanjay Kumar Visen, learned

counsel for the respondents.

12) Having heard the learned counsel for the parties

and on perusal of the record of the case including written

submissions, we find no merit in the appeal.

13) In our considered view, the three Courts below have

rightly rendered the aforementioned findings in favour of

the respondents and we find no difficulty in concurring

with the findings which, in our view, do not call for any

interference by this Court.

14) In our considered opinion, the findings recorded by

the three Courts on facts, which are based on

appreciation of evidence undertaken by the three Courts,

are essentially in the nature of concurrent findings of fact

and, therefore, such findings are binding on this Court.

Indeed, such findings were equally binding on the High

Court while hearing the second appeal and it was rightly

held by the High Court also.

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15) It is more so when these findings were neither found

to be perverse to the extent that no judicial person could

ever record such findings nor these findings were found

to be against the evidence, nor against the pleadings and

lastly, nor against any provision of law.

16) Even apart from what is held above, we are of the

considered opinion that the appellant's suit is wholly

misconceived and was, therefore, rightly dismissed by the

three Courts below. We concur with the reasoning of the

Courts below and also add the following three reasons in

addition to what is held by the Courts below.

17) In the first place, the appellant had no title to the

suit land. All that he had claimed to possess in relation

to the suit land was an agreement dated 24.04.1980 to

purchase the suit land from its owner (Shri Ved Prakash

Kakaria). The appellant, as mentioned above, failed to

prove the agreement. In this view of the matter, the

appellant had no prima facie case in his favour to file a

suit nor he had even any locus to file the suit in relation

to the suit land once the agreement was held not proved.

18) Second, the proper remedy of the appellant in this

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case was to file a civil suit against respondent Nos.1 to 3

to claim specific performance of the agreement in

question in relation to the suit land and such suit should

have been filed immediately after execution of agreement

in the year 1980 or/and within three years from the date

of execution. It was, however, not done. The suit was,

however, filed by the appellant almost after 12 years from

the date of agreement and that too it was for declaration

and mandatory injunction but not for specific

performance of agreement. It was, in our opinion, a

misconceived suit and was, therefore, rightly dismissed.

19) Third, the suit was otherwise hopelessly barred by

limitation because, as mentioned above, the date of

agreement is 24.04.1980 whereas the suit was filed on

10.10.1992. There is nothing to show that the agreement

was to be kept alive for such a long time. It is apart from

the fact that the alleged agreement itself was not held

proved and, therefore, no suit for claiming any relief in

relation to the suit land could be filed by the appellant.

Even the Will was rightly held not proved by the Courts

below and we are inclined to uphold the finding on this

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issue too. Indeed when the deceased has two sons and

one daughter (respondent Nos.1-3), why should he

execute a Will in appellant’s favour, who was not related

to him.

20) We are, therefore, of the view that keeping in view

the concurrent findings of three Courts below, which

were rendered against the appellant (plaintiff) coupled

with our three reasonings mentioned supra, the appeal

has no merit.

21) In view of foregoing discussion, we find no merit in

this appeal. The appeal thus fails and is accordingly

dismissed.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

November 06, 2017

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