IN THE HON’BLE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CM No. __________ of 2019 in

RSA No. 976 of 2008

K.S. Kang Versus Sukh Raj Soni

INDEX

Sr. Particulars Date Page No. Court

No. Fees
1. Urgent Form 06.04.2019 -- 2.65
2. Application under Order 22 06.04.2019 1-2 2.65
Rule 4 CPC r/w Section 151
CPC for impleadment
3. Affidavit 06.04.2019 3-4 --
4. Amended Memo of Parties 06.04.2019 5 --
5. Annexure A-1 (Copy of Will) 27.03.2012 6-7 1.30
6. Vernacular of Annexure A-1 27.03.2012 8-9 --
(Copy of Will)
Total Court fee affixed Rs. 7/-

Note:

1. Main case is pending after its admission.

2. Power of attorney is already on record.

3. Advance copy has already been supplied to the counsel for the

respondent.

Chandigarh
Dated: 6.4.2019

(ASHOK SINGLA) (AAKASH SINGLA)

P-495/1988 P-989/2012

(VAISHALI SINGLA) (ANKUSH SINGLA) (PARUL)

P-2318/12 P-1378/15 P-3057/15
Advocates/Counsels for the Appellant/Applicant
IN THE HON’BLE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CM No. __________ of 2019 in

RSA No. 976 of 2008

K.S. Kang Versus Sukh Raj Soni

Total Court fee affixed Rs. 7/-

Chandigarh
Dated: 6.4.2019

(ASHOK SINGLA) (AAKASH SINGLA)

P-495/1988 P-989/2012

(VAISHALI SINGLA) (ANKUSH SINGLA) (PARUL)

P-2318/12 P-1378/15 P-3057/15
Advocates/Counsels for the Appellant/Applicant
IN THE HON’BLE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CM No. __________ of 2019 in

RSA No. 976 of 2008

K.S. Kang Versus Sukh Raj Soni

Application under Order 22 Rule 4 CPC r/w Section

151 CPC for impleading legal representative of

deceased K.S. Kang (original defendant-appellant),

during the pendency of the present appeal and for

taking on record the amended memo of parties, in

the interests of justice.

Respectfully Showeth:

1. That the above titled main case is pending in this Hon’ble Court

after its admission. The present main case is now listed at Sr. No.

666 on the regular list of Hon’ble Mr. Justice Amol Rattan Singh.

2. That during the pendency of the present main appeal, the

defendant appellant namely K.S. Kang had expired on 21.10.2016.

Deceased appellant left behind applicant (widow), Samarth Singh

(son) and Urvashi Singh (daughter) as his legal heirs and Sada

Kaur (mother of the deceased appellant) had predeceased him.

3. That defendant appellant Sh. K.S. Kang during his lifetime had

executed a Will dated 27.3.2012 Annexure A-1 and had

bequeathed the suit property in favour of the present applicant

namely Nirmala Sharma widow of K.S. Kang aged about 70 years

resident of Plot No. H.E. 231, Saryu Marg, Hanuman Nagar, Sirsi

Road, Khatipura, Jaipur.

4. That in view of the above, there is no other legal representative of

the deceased appellant Sh. K.S. Kang except his widow/present

applicant.
 5. That after incorporating the name of the present applicant/legal

representative of deceased appellant and after duly inspecting the

records of the case, the amended memo of parties is being placed

on record and the same may kindly be taken on record.

It is therefore most respectfully prayed that the present application

may kindly be allowed as prayed for in the heading and present

applicant Nirmala Sharma aged about 70 years widow of K.S. Kang

resident of H.E. 231, Saryu Marg, Hanuman Nagar, Sirsi Road,

Khatipura, Jaipur may kindly be impleaded as legal representative of

the deceased appellant.

It is further prayed that the certified copy of the Annexure A-1 may

kindly be exempted and its true photocopy may kindly be permitted to

be placed on record, in the interests of justice.

It is further prayed that the amended memo of parties appended

alongwith the present application may kindly be taken on record, in

the interests of justice.

Note: Affidavit is attached.

Chandigarh
Dated: 6.4.2019

(ASHOK SINGLA) (AAKASH SINGLA)

P-495/1988 P-989/2012

(VAISHALI SINGLA) (ANKUSH SINGLA) (PARUL)

P-2318/12 P-1378/15 P-3057/15
Advocates/Counsels for the Appellant/Applicant
IN THE HON’BLE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CM No. __________ of 2019 in

RSA No. 976 of 2008

K.S. Kang Versus Sukh Raj Soni

Affidavit of Nirmala Sharma aged about

70 years widow of K.S. Kang resident of

H.E. 231, Saryu Marg, Hanuman Nagar,

Sirsi Road, Khatipura, Jaipur.

I the above named deponent do hereby solemnly affirm and declare as

under :

1. That the above titled main case is pending in this Hon’ble Court

after its admission. The present main case is now listed at Sr. No.

666 on the regular list of Hon’ble Mr. Justice Amol Rattan Singh.

2. That during the pendency of the present main appeal, the

defendant appellant namely K.S. Kang had expired on 21.10.2016.

Deceased appellant left behind applicant (widow), Samarth Singh

(son) and Urvashi Singh (daughter) as his legal heirs and Sada

Kaur (mother of the deceased appellant) had predeceased him.

3. That defendant appellant Sh. K.S. Kang during his lifetime had

executed a Will dated 27.3.2012 Annexure A-1 and had

bequeathed the suit property in favour of the present applicant

namely Nirmala Sharma widow of K.S. Kang aged about 70 years

resident of Plot No. H.E. 231, Saryu Marg, Hanuman Nagar, Sirsi

Road, Khatipura, Jaipur.

4. That in view of the above, there is no other legal representative of

the deceased appellant Sh. K.S. Kang except his widow/present

applicant.

5. That after incorporating the name of the present applicant/legal

representative of deceased appellant and after duly inspecting the

 records of the case, the amended memo of parties is being placed

on record and the same may kindly be taken on record.

DEPONENT

Verification:

Verified that the contents of the present affidavit are true and

correct as per my knowledge and no part thereof is false and nothing

relevant has been concealed herein. Verified at Patiala on 6.4.2019.

DEPONENT
IN THE HON’BLE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CM No. __________ of 2019 in

RSA No. 976 of 2008

AMENDED MEMO OF PARTIES

K.S. Kang (since deceased) son of Sh. Bhagwant Singh @ Bhagat Singh,

now represented through following legal representative:

Nirmala Sharma aged about 70 years widow of K.S. Kang resident

of H.E. 231, Saryu Marg, Hanuman Nagar, Sirsi Road, Khatipura,

Jaipur.

…Appellant/Defendant

Versus

Sukh Raj Soni son of Rattan Lal Soni, resident of H. No.MIG-720/B, Phase-

2, SAS Nagar (Mohali), Tehsil Kharar now Tehsil & Distt. Mohali.

…Respondent/ Plaintiff

Chandigarh
Dated: 6.4.2019

(ASHOK SINGLA) (AAKASH SINGLA)

P-495/1988 P-989/2012

(VAISHALI SINGLA) (ANKUSH SINGLA) (PARUL)

P-2318/12 P-1378/15 P-3057/15
Advocates/Counsels for the Appellant/Applicant
 Annexure A-1

Stamp Paper of Rs. 50

Rajasthan D153515

PHOTO PHOTO
Notary Register
Serial No. 561
Dated 27/3/12
Will (Special)
I am Kuldeep Singh Kang, aged 78 years, (Retd.) Son of Late Sh. Bhagat

Singh Kang, now r/oPlot No. H.E 231, Saryu Marg, Hanuman Nagar, Sirsi

Road, Khatipura, Jaipur, 302012 Rajasthan.

Whereas a piece of land No. 34 of my ownership, right and

possession is situated in Sector 70 Mohali, Chandigarh, Punjab. There is

no trust of my life. So in my lifetime, I want to make such arrangements,

so that after my death, no dispute shall arise, between my legal heirs with

regard to my abovesaid movable and immovable properties. Therefore I

am executing this will (Special) in my senses and sound mind and declare

that only they will be able to consume my abovesaid movable and

immovable property.

That one of my immovable property, plot No. 34 is situated at

Sector 70 Mohali, Chandigarh, Punjab, I am giving ownership rights of

which to my wife Nirmala Sharma .

That all rights which are available to me regarding above property, all

those rights are now available to Smt. Nirmala Sharma and Nirmala

Sharma has rights all the rights like, She can appoint a lawer, execute a

contract, in government and semi Government departments, can execute

a rent deed, Sale, mortgage, transfer, enter their names in the

government departments and perform all judicial and non judicial work. I

am giving all the above rights to Nirmala Sharma, All the abovesaid works

shall be executed under her signatures consent and rights of which has

been given to her. It is my Will (special), which I have executed regarding

only abovesaid Plot No. 34, Sector 70 Mohali, Chandigarh, Punjab in which

none of my legal heirs have any right to object. This is my first and last

Will (Special) which may not be revocable.

I have executed this Will (Special) voluntarily without any pressure,

by thinking about my good or bad. Against which any of my legal heris,

successor or other persons shall have no right to object.

Therefore, this testament has been executed after reading with

healthy heart and sound mind, on a stamp papers of Rupees 50 and

another green paper in front of two witnesses, so that it may be used at

the relevant time. Dated 27.03.2012.

Sd/-

Signature and thumb marked by executant

Kuldeep Singh Kang

(Retired) Chief Engineer

(Thumb Impression)

Sd/- Sd/-
IDENTIFIED BY IDENTIFIED BY
Witness No. 1 Witness No. 2
Name Khagendra Adhikari Abhay Singh Shekhawat
Father’s Name – Sh. Lekhnath Adhikari S/o Sh. Ranveer Singh Shekhawat
HE 231 Saryu Marg 16 Vrindavan Colony
Hanuman Vistar Satya Nagar Jhotwara
Jaipur Jaipur

True translated copy

Advocate
GROUNDS OF APPEAL

1. That this appeal is of defendant/appellant.

2. That the impugned judgments and decree of the Ld. courts below

are illegal and passed upon surmises and conjectures.

3. That for the proper decision of the case, it is first utmost necessary

to notice the facts born out from the pleadings and evidence that

defendant/appellant K.S.Kang, in 1974, had applied to the Punjab Housing

Board/PUDA in view of its scheme, for allotment of a plot and Rs.10,000/-

was deposited as registration amount against registration no.R-8186 and

the appellant kept on waiting for the allotment along with many other

similarly situated persons with a hope of allotment of plot to fulfill his

dream in the life to settle in Chandigarh/Mohali.

Since the appellant had started residing at Jaipur, he had to come

Mohali to pursue the matter of allotment of plot. In the said process,

plaintiff and his friend Jatinder Anand, PW1, who in fact are property

dealer and are known for their links in PUDA, came in contact of

defendant and they took the defendant into confidence and defendant to

great extent was influenced from the contacts of the aforesaid persons in

PUDA. Ultimately they in September 1993, being stationed at Mohali and

because of their links in PUDA, came to know about the general decision

of the government for considering the applications of 1974 for allotment

of plots, however, the said decision of the government did not come to

the notice of the defendant-appellant while residing at Jaipur, a distant

place from Mohali. Plaintiff and aforesaid Jatinder Anand, on 24.9.93,

taking undue and unfair advantage of the above said facts, came to

defendant/appellant at Jaipur under the planned conspiracy and equipped

with some documents on stamp papers already prepared and typed at

Mohali including some documents with blank columns and they, with their

conversation, put the defendant-appellant on a wrong track and made him

to understand that the registration No. is like a waste paper and hardly

there is any chance of allotment of plot due to about 20 years delay on

the part of government to take decision for allotment of plots and the

appellant was not disclosed about the government steps to consider the

applications in 1993 and the appellant was made to believe that help of

other side is utmost necessary and ultimately, the other side/plaintiff,

taking undue benefit of peculiar circumstances including that of long delay

in government decisions, other sides’ residence and business of property

dealer at Mohali coupled with their links in PUDA, defendant residing at

Jaipur, convinced the defendant/appellant that they can get the plot

allotted with their efforts subject to sharing 25% of the market premium

by them in case of allotment of the plot to which the defendant agreed in

good faith but on account of false representations and he had signed

some documents including documents with blank columns at Jaipur and

most of them were already ready with the plaintiff as submitted above as

the plaintiff side had insisted upon the need of such documents on

account of security of payment of 25% of the premium as was agreed

above and also with the plea that such documents in case of need of

selling the plot after allotment to any prospective buyer to recover said

premium than the documents, shall be required and the premium shall be

shared in the ratio of 25 : 75 and this all happened because of the created

circumstances by the plaintiff side and because of cleverness of the other

side and on account of mis-representations and unfairness on the part of

the other side. Thereafter, the plaintiff side misused the documents and

the defendant later came to know about the general decision of the

government of allotment of plots and when other side started harassing

the defendant taking undue benefit of his residence at Jaipur then the

defendant, vide his letter dated 11.4.1994, cancelled the G.P.A. dated
24.9.1993 which letter, the plaintiff/respondent has impugned in the suit

and the plaintiff filed the suit for declaration of his ownership, permanent

injunction and in the alternative, claiming relief for specific performance

that too without paying court fee for such a relief and such a unjust suit

has been decreed in favour of the plaintiff granting him decree of specific

performance on the basis of unjust, unfair, alleged agreement to sell

dated 24.9.93 and the aforesaid discretionary relief has been given to the

other side ignoring and without considering the fact that terms of the

contract as well as conduct of other side and all other attending

circumstances of signing the documents including alleged contract, gives

the plaintiff an unfair advantage over the defendant/appellant and further

the ld. courts below have not considered that the peculiar circumstances

of the case make it inequitable to enforce the specific performance and

further the fact has not been considered that the performance of the

alleged contract would involve great hardship on the defendant/appellant

which he could not foresee as the defendant, who waited for long 20

years for the allotment of a plot, was left to nowhere with the misdeeds of

other side and further the ld. courts below did not consider that all the

facts and circumstances clearly show undue influence, fraud,

misrepresentation on the part of the other side and in these

circumstances, the impugned judgments and decree are not sustainable

especially in view of Section 20 of the Specific Relief Act which clearly says

that relief of specific performance is a discretionary one and should not be

granted merely for the reason that it is lawful to be granted and the ld.

courts below did not view all the facts and circumstances of the case and

has erred in granting the discretionary relief to the other side.

4. That to show that the plaintiff side even without finalisation of any

deal, and even before reaching at Jaipur and got signing the documents

there, got manufactured/typed the said documents at Mohali, purchasing

stamp papers from Chandigarh, the relevant portion of the statement of

Jatinder Anand, PW1 who had accompanied the plaintiff to Jaipur,

reads as under:-

“since sufficient time had passed and no

plots were allotted, therefore, people who

had applied and had got registration No.

had lost faith for allotment or even about

refund of money. Then I contacted the

defendant through phone and then myself

and Sukh Raj Plaintiff went to Jaipur for

the completion of bargain. As desired by

the defendant on the phone I got the

requisite papers typed on stamp papers at

Mohali itself, and thereafter, went along

with the plaintiff to Jaipur. I have seen

the original agreement to sell dated 24th

September, 1993. It was admitted tobe

correct by the plaintiff as well as by the

defendant and thereafter was signed by

both the parties in my presence.”

Xx xx xx xx

Xx xx xx xx

“It is correct that in the Endst. made by

the stamp vendor on all the documents

regarding the purchase of stamp do not

have the signatures of the defendant. I

had purchased these stamp paper from Inder

 Singh, Stamp Vendor, Chandigarh. It is

correct that no agreement to sell the plot

was made Voltd. It was mentioned in the

agreement that what ever plot is allotted

against this registration no. the same

shall stand transferred to the plaintiff.

It is incorrect that the G.P.A. was

revocable rather it was irrevocable. It

is correct that in the GPA in hand, it has

been added that the GPA is revocable and I

know that now it has been revoked by the

defendant.”

5. That it has been repeatedly held by this Hon’ble court as well as

Hon’ble Supreme Court that the plaintiff is not entitled to decree of

specific performance merely on the ground that the signatures of the

defendant over the document are proved. Had it been the intention of

the law makers, then Section 20 would not have been part of Specific

Relief Act.

6. That the defendent, by appearing as DW1 on 25.2.2002 clearly

deposed that the plaintiff and one Jatinder of their own, came to Jaipur

from Mohali and they misrepresented the defendant that his registration

number has been cancelled and it is waste paper and no plot is going to

be allotted and they, because of their link in government, can get the plot

allotted despite the registration no being waste document but subject to

sharing by them 25% of the premium and they made other

misrepresentations as deposed in chief examination and the plaintiff even

did not cross examine the defendant/DW1 with regard to defendant’s

examination-in-chief about the plaintiff’s misrepresentation of registration

number being waste and cancelled document and no hope of allotment of

plot and it is well settled law that portion of examination-in-chief which is

left to be cross examined, should be deemed to be admitted by the party

who was supposed to cross examine the witness.

7. That Ld. Courts below have erred in not considering that in various

cases including the cases/judgments reported as AIR-1997-SC-2702, AIR-

2001-SC-2783, AIR-2003-SC-2362, AIR-2002-SC-1279, 1999-AIR-SCW-

4818, AIR-1987-SC-2328, AIR-1995(SC)-1769, AIR-1996-SC-2814, AIR-

1996-SC-2150, AIR-2003-SC-1989, 1997(1)-RCR (Civil)-286 (SC), 2001(4)-

RCR Civil-175, 2004(1)-RCR(Civil)-263, the Hon’ble courts despite proof of

bearing of thumb impressions or signatures of the defendant over the

agreement to sell/contract, did not grant the relief of specific performance

mainly keeping in view the discretionary nature of relief and principles

contained in Section 20 of the Specific Relief Act and to refrain it to be

used by the plaintiff to enforce agreement which is unfair or does not

appeal to the conscious of the court to be a bona fide transaction.

8. That the ld. courts below further did not consider that the plot

related to the alleged contract was allotted in the name of the defendant

and the defendant had deposited the balance amount and even the

possession of the plot was delivered to the defendant and the entire price

of the plot no.34 measuring 400 sq.yds. in Sector 70, Mohali i.e.

Rs.4,80,000/- has been deposited by the defendant but the plaintiff has

failed to seek the relief of possession of the plot rather he approached the

court not with clean hands as he, in his suit claimed him to be owner in

possession of the plot whereas, possession of the plot at the time of filing

the suit was not allotted at all to anybody by the authority and whereas,

the same was delivered by PUDA to the defendant on 12.10.1994 vide

Ex.D5 whereas, the suit was filed on 7.5.1994 with the following

assertions in Para no.8 of the plaint:-

“8. That now that when everything has

been completed and actually the

plaintiff is now the owner in

possession of the said plot, the

defendant with malafide intention and

to extract more money from the

plaintiff, through his letter dated

12.4.94, sent a copy of the cancelled

power of attorney dated 11.4.94

thereby canceling the irrevocable

power of attorney dated 24.9.93

already executed in favour of the

plaintiff by the defendant.”

Thus, it is clear that the plaintiff with regard to possession of the property,

did not reach to the court with clean hands and thus, the plaintiff in view

of judgment reported as 1997(1)-RCR (Civil)-286(SC), is not entitled to

discretionary relief of specific performance as in the said case also, the

plaintiff had alleged his possession over the property but his possession

was not found to be there and the Hon’ble Supreme Court had pleased to

held that this is sufficient to disentitle the plaintiff of specific relief.

Similarly, this Hon’ble High Court in judgment reported as 2004(1)-

RCR(Civil)-263, has held that where plaintiff set up a false plea of to be in

possession then he is not entitled to relief of specific performance on

account of conduct of the plaintiff but this aspect of the matter though

was specifically pressed, has not been considered and decided.

9. That para No. 2 of the plaint says that since there was no hope of

allotment of plot thus, the defendant had sold the registration No. for

10,000 on 24.09.1993 i.e. the exact amount deposited by the defendant

20 years back i.e. 1973 and this reflects atleast that the defendant was

kept in dark about the government steps of considering the applications of

1973 and allotting the plots in 1993-94 otherwise a person like

defendant/appellant who waited for 20 years of allotment by partying with

amount of Rs. 10,000, was not expected to sell the registration No. at the

time when allotment process reached at his door and that too for 10,000

which he had deposited 20 years back and especially when market price

of plot of 400 sq.yard in Mohali in the year of 1993-94 was about 20 lac

and at present the market price of the plot in question which later to the

alleged contract dated 24.09.1993 was allotted to the defendant/appellant

vide allotment letter dated 21-03-1994 Ex.-PW8/A for the tentative price

of Rs. 4,80,000, is more than Rs. 1 crore and the defendant/appellant has

already deposited the entire payment and its possession was delivered by

the defendant/appellant on 12-10-1994 vide letter/order dated 12-10-

1994 Ex.-D5. There are other various circumstances available on the file

which show the alleged transaction to be unfair one and not result of free

will rather result of misrepresentations and enforcing the alleged contract

shall amount to injustice and great hardship to the defendant/appellant.

10. That Section 20(1), Specific Relief Act provides that “the jurisdiction

to decree specific performance is discretionary and the court is not bound

to grant, such relief merely because it is lawful to do so” it has been

repeatedly held that the ld. courts will not exercise its jurisdiction (a)

where (i) the terms of the contract, or (ii) the conduct of the parties at

the time of entering into the contract, or (iii) the other circumstances

under which the contract was entered into are such that the contract,

though not avoidable gives the plaintiff an unfair advantage over the
defendant, or (b) where the performance of the contract would involve

some hardship on the defendant which he could not foresee, whereas its

non-performance would involve no such hardship on the plaintiff, or (c)

where having regard to the circumstances, it would be inequitable to

enforce specific performance. The Hon’ble Supreme Court, in judgment

AIR-1987-SC-238, held that the court should take care to see that it is not

used as an instrument of operation to have an unfair advantage to the

plaintiff.

The aforesaid principles of law have fully been ignored by the ld.

courts below granting the decree of specific performance to the plaintiff-

respondent in his suit for a declaration, permanent injunction and in the

alternative, for specific performance with its following head note:-

“Suit for declaration that the plaintiff is

now the owner in possession subject to all

conditions laid down by the Punjab Housing

Board relating to the plot no.34 measuring

400 sq.yds. in Sector 70, Urban Estates,

Mohali allotted against Registration No.R-

8186 and that now the defendant has got no

concern with the same with further

declaration that the cancellation of power of

attorney through cancellation deed dated

11.4.94 by the defendant has got no effect

upon the legally constituted power of

attorney given by the plaintiff by

irrevocable general power of attorney dated

24.9.93 executed by the defendant in favour

 of the plaintiff with a consequential relief

of injunction restraining the defendant not

to alienate the suit property by way of sale,

gift, mortgage or in any other manner in

favour of anybody else except the plaintiff

and in alternative suit by way of specific

performance directing the defendant to get

the suit property transferred in the name of

the plaintiff on the basis of agreement to

sell dated 24.9.93 by executing necessary

transfer deeds himself.”

11. That the ld. courts below did not consider the judgment of the

Hon’ble Supreme Court in case A.S. Arulappan Versus Smt. Ahalya Naik

reported as 2001(5)-Supreme-730 in which the Hon’ble Supreme Court

pointed out that he jurisdiction to decree specific performance was

discretionary and the court should consider various circumstances to

decide whether such relief was to be granted. If under the terms of the

contract, the plaintiff got an unfair advantage over the defendant and if

the defendant would be put to undue hardship which he did not foresee at

the time of the agreement, it was inequitable to grant specific relief and

the court could desist from granting the decree to the plaintiff.

12. That decree for specific performance was granted by the ld. trial

court despite the fact that plaintiff’s main relief in the suit was for

declaration of his ownership of plot and even total court fee of Rs.32.50

paise i.e. only for the relief of declaration was consciously paid and not

even a penny was paid on account of court fee for the relief of specific

performance which was claimed in the alternative nature. Despite specific

objection in the written statement about maintainability and non-payment

of court fee and despite the trial of suit for about 10 years, the plaintiff

did not pay the court fee for the relief of specific performance as he

simply wanted his decision with regard to relief of declaration and this

aspect which affects the bona fide, fairness of the other side in seeking

discretionary relief of specific performance effects the limitation aspects,

readiness and willingness condition of Section 16(ii) of the Specific Relief

Act but the same has not been considered by the ld. courts below and

thus, the impugned judgments and decree are not sustainable in the eyes

of law.

13. That impugned judgments and decree are violative of the principles

of justice, equity & good conscious and the ld. courts below have

misunderstood and misconstrued the facts of the case. The evidence on

the file has been misconstrued and the ld. courts below have not decided

the matter taking the law of specific performance from its right angle and

the ld. courts below did not consider the object of the law makers as to

why, it has been provided u/s 20 of the Specific Relief Act that Relief of

Specific Performance is a discretionary one and it should not be granted

merely for the reasons that it is lawful to do so and in fact, such provision

was made by the law makers to deny grant of relief of specific

performance to the person like plaintiff whose overall act and conduct

about the alleged transaction is full of doubt and doubt only. The legal

and factual position highlighted in this appeal was pressed before the ld.

courts below but the same has not been properly noticed, considered and

decided.

14. That the ld. courts below failed to consider that the agreement is

giving undue advantage to the plaintiff side as the said agreement in case

of its breach, prescribes the remedy of filing the suit and of compensation
only for the plaintiff and not for the defendant and thus, the said

agreement cannot said to be fair and its terms cannot said to be equitable

and thus, it should not be enforced. The appellant, in the court below,

under the compelling circumstances, had given the offer of return of

alleged consideration under the alleged contract with interest and had

prayed that discretionary relief of specific performance should not be

given to the plaintiff because of various circumstances including that at

the time of alleged contract, the defendant was not allotted any plot and

he was not having any interest in any property and even no permission to

transfer or alienate such property was there, the alleged contract cannot

said to be valid and enforceable but the said submissions have not been

noticed, considered and decided.

15. That the ld. courts below have erred in not considering that

registration number of an application for allotment of a plot is not

something which can be transferred and qua which any valid contract can

be entered into and since at the time of alleged contract, no plot was

actually allotted to the defendant and the defendant has no interest in the

property, the question of any valid contract with regard to the plot in

question does not arise.

16. That the approach of the Ld. Courts below to reach to the

conclusion that GPA was irrevocable is factually incorrect and contrary to

contents of alleged GPA Ex-P4 as it clearly says with special note “This

GPA is revocable” and otherwise also the said approach is totally wrong

as the perusal of GPA does not show it to be for consideration or it does

not show any interest of the plaintiff/agent in the subject matter of the

agency and thus, neither Section 202 of the Contract Act nor authorities

under the said Section are applicable to the present case and the

defendant/principal was well within his rights u/s 203 of the Contract Act
to revoke the GPA. Had this GPA been on account of any consideration or

interest of the plaintiff in the subject matter of the agency i.e. registration

No. and not the plot then it would have been easily recited about such

interest in the GPA itself. Said GPA shows that it was only to manage the

affairs and exactly the other side at that time and again had convinced the

defendant that he need not worry as GPA which is the only registered

document and has value in the eyes of law, does not find mention about

any sale etc. and infact at that time clause in other documents which

infact was mainly read, was reciting that final documents shall be

executed upon the allotment of plot and the defendant because of his age

harassment and other attending circumstances did not take the things

seriously in good faith and he was driven by the other side in a way they

liked. This aspect of the matter goes a long way to disentitle the plaintiff

from the relief but it has not been considered.

17. That the ld. court below has misconstrued the GPA to say that it

was irrevocable whereas, GPA itself recites that it is revocable and

otherwise also, the ld. court below has erred in not considering the fact

that GPA with powers to alienate the property can said to be valid only if

the same is registered in the concerned tehsil and with the concerned

Registrar in whose territorial jurisdiction, the property is situated unless

the principle/owner of the property is residing abroad as clear from the

combined perusal of Sections 28 to 35 of the Registration Act and since

the questioned GPA was not registered at Mohali and it was manufactured

only at Jaipur, thus, the same is in-admissible and not valid document.

18. That the agreement otherwise also could not have been ordered to

be enforced because of its uncertain illegal and vague terms and also due

to its terms being opposed to public policy and result of misrepresentation

and undue influence and also on account of its non-registration despite

involving the property more than Rs. 100 and also the same being

violative of Section 17 of the Registration Act and the said document

being void due to its fraudulent nature and it being result of false

representations and its nature being totally unfair and not bonafide but all

these aspects have been left to be considered whereas the same were

specifically arranged and pressed.

19. That the Ld. Courts below have erred in decreeing the specific

performance without there being issues framed in the case which are

necessary to be framed and proved for the grant of relief of specific

performance. There is no issue of specific performance and of readiness

and willingness of the plaintiff. All this show that the case has been tried

and decided arbitrarily and simply from influencing the signatures of the

defendant over the documents and by not considering and deciding the

various objections of the defendant/appellant in his written statement and

about the alleged agreement being unregistered, opposed to public policy,

without consideration, result of undue influence etc. and the suit being

bad on account of maintainability, non-payment of court fee and being

violative of proviso of Section 34 of the Specific Relief Act and various

other grounds.

20. That circumstances of the case do not allow to term the questioned

documents to be volunteered one and out of free consent and for lawful

consideration and with lawful object and thus, the questioned agreement

cannot said to be a lawful contract.

21. That the alleged contract was not with regard to plot No. 34 Sector

70, Mohali thus, specific relief could not have been ordered with regard to

the said contract and it cannot be enforced qua plot No. 34.
22. That entire money required for allotment and thereafter for

issuance of final allotment letter and even thereafter till date was paid by

the defendant/appellant either himself, through his wife etc. Even

payment of 75% of the total tentative sale price, could not be denied to

have been made by the defendant. In fact the entire amount was

deposited by the defendant through himself or his agents and the

approach of the Ld. Courts below with regard to the payment of 25% of

the sale price having been made by the plaintiff, is totally wrong and

against the facts and regard of the PUDA. The evidence with regard to

said payments has not been properly read rather the same has been

misconstrued resulted into impugned approach.

23. That the Ld. Courts below have not considered another aspect of

the mater that allotment of plot No. 34 was made in the name of the

defendant by PUDA on 21.03.1994 and had it been real contract of sale

then, the plaintiff would not have consumed any time issuing notice to the

defendant and calling upon him to execute the final documents of transfer

and in fact the plaintiff along with other property dealer Mr. Anand, after

allotment became greedy and they instead of confining to the share of

premium at that time, had started acting illegally to dispose off the

property and they created other unreasonable circumstances due to which

POA had to be cancelled.

24. That though the agreement is void but in any case, the Ld. Courts

below in view of circumstances and in view of the compensation clause in

the said agreement in case of its breach, and in view of all other attending

circumstances, should not have granted the decree of specific

performance as held by the Hon’ble Supreme Courts in some judgments.

25. That the Ld. Trial Court granted the decree of alternate relief of

specific performance whereas neither there was any legal plaint for the

relief for specific performance affixed with court fee for the said relief nor

the issues with regard to the relief for specific performance were framed.

26. That the Ld. Lower Appellate Court illegally and wrongly dismissed

the first appeal without noticing and considering the various important

facts and also legal aspects and it erred in receiving the court fee from the

plaintiff/respondent for the suit for specific performance at the stage of

arguments of the appeal and it illegally passed the judgments and decree

dated 28.11.07 even without considering the effect of non-payment of

court fee for the suit for specific performance during trial of the case from

7.5.94 till the decision of the Trial Court on 31.3.03 as the matter of

payment of court fee in such cases is not simple one rather it makes the

relief of specific performance time barred. The said action of the Ld.

Appellate Court is totally wrong, illegal and is not sustainable.

27. That the Ld. Trial Court arbitrarily framed the issues and despite

specific and detailed written statement, issue of maintainability, court fee

and even that of plaintiff’s entitlement of specific performance and various

other issues were left to be framed which otherwise are emerging from

the pleadings.

28. That affixing of court fee for the suit for specific performance after

three years from the alleged cause of action even after three years from

filing of such suit that too without seeking the amendment of plaint clearly

makes the suit time barred as the plaintiff at the time of filing of the suit

on 07-05-1994 had simply paid the fixed court fee of Rs.32.50 paise only

for the relief of declaration that he is owner in possession of the plot and

he despite specific objections in the written statement about court fee and
maintainability of the suit for declaration, opted for not affixing the court

fee during trial and within three years from the alleged cause of action for

such suit and the first appellate court by receiving the court fee at the

argument stage that too without seeking amendment of plaint and

payment of court fee after more than 10 years from the accrual of alleged

cause of action for the suit of specific performance, cannot justify the

grant of relief of specific performance and it cannot cure the defect in the

suit and it cannot bring the suit within limitation and the non-payment of

court fee in a suit for specific performance goes a long way as it seriously

effect the limitation aspect of the matter and also readiness and

willingness on the part of plaintiff and in this regard the Ld. appellate

court has failed to consider the judgment of the Hon’ble Supreme Court

reported as AIR 1995 SUPREME COURT 1945 "Buta Singh v. Union

of India" relevant portion of which for kind perusal of this Hon’ble Court

reads as under:-

“The aid of section 149, could be

taken only when the party was not able

to pay Court-fee in circumstances

beyond his control or under

unavoidable circumstances and the

Court would be justified in an

appropriate case to exercise the

discretionary power under S. 149 after

giving due notice to the affected

party. But in an appeal under Section

54 of the Land Acquisition Act the

amount is initially kept low and then

depending upon the mood of the

appellate Court, payment of deficit

 Court-fee is sought to be made, it

would create unhealthy practice and

would become a game of chess and a

matter of chance. That practice would

not be conducive and proper for

orderly conduct of litigation.” (From

Para 9)

29. That at the time of alleged contract and even at the time of filing of

the suit, the ownership of the plot continued to vest in the board/PUDA as

at that time wholesale price was not deposited but, neither the said

board/PUDA was made party to the suit nor any permission to transfer

plot was sought and otherwise also as per bylaws and stipulation/clause

12 in the allotment letter, the plot could not have been sold without

requisite permission of the authority and on this account also alleged

contract is not enforceable.

30 That the alleged agreement Ex.-P1 which is inadmissible in

evidence has wrongly been taken into account. Registration No. was

inalienable and any sale thereof is void. It is unfair and result of fraud.

Had it been conscious intentional, voluntary and uninfluenced act of free

will the defendant would have asked for premium or interest on the

registration amount of Rs. 10,000 to which the defendant was legally

entitled even from the authority in case of non-allotment of plot on

account of its delayed decision and using public amount for a long period.

31. That the following substantial law points involve in the present RSA

fro the kind consideration and decision of this Hon’ble Court :-

i) Whether grant of specific performance without there being

any lawful plaint for the relief of specific performance and

without there being issues of specific performance and

readiness and willingness framed in the case, is justified ?

ii) Whether the decree of specific performance could have been

granted when the plaintiff did not affix even single paise

court fee for the relief of specific performance during trial of

the suit for about 10 years despite specific objection of court

fee in the written statement what to talk of such payment

within a period of three years of limitation ?

iii) Whether the discretionary relief of specific performance can

be granted in favour of a person whose conduct is

apparently doubtful and who does not approach the court

with clean hands and who makes false claim of ownership

and possession over the property when in such

circumstances as per judgment 1997(1) RCR Civil 286 (SC)

and 2004(1) RCR Civil 263 such a discretionary relief should

not be granted in favour of a person who makes false

averments of possession over the property ?

iv) Whether the relief of specific performance to the plaintiff in

view of the facts and circumstances of the case, is justified

especially in view of Section 20 of the Specific Relief Act and

judgments reported as AIR-1997-SC-2702, AIR-2001-SC-

2783, AIR-2003-SC-2362, AIR-2002-SC-1279, 1999-AIR-

SCW-4818, AIR-1987-SC-2328, AIR-1995(SC)-1769, AIR-

1996-SC-2814, AIR-1996-SC-2150, AIR-2003-SC-1989,

1997(1)-RCR (Civil)-286 (SC), 2001(4)-RCR Civil-175,

2004(1)-RCR(Civil)-263 ?

v) Whether the alleged agreement can said to be executed in a

fair manner and out of free will especially when a plaint read
 with statement of PW-1 Jatinder Anand show that the

alleged agreement was executed having been given

impression to the defendant that no plot shall be allotted to

him and the registration number is like a waste paper and

when the plaintiff did not cross examine the defendant/DW-

1 with regard to his chief examination to the effect that

plaintiff represented the defendant at Jaipur that his

registration number is like a waste paper and there is no

likelihood of allotment of plot whereas the government and

PUDA at Mohali had taken the decision to allot the plots and

said decision of the PUDA was not made to known to the

defendant and when the plaintiff took the undue advantage

of the facts and he kept the defendant in dark ?

vi) Whether the power of attorney can said to be irrevocable

especially when specifically says that it is revocable ?

vii) Whether an agreement can be ordered to be specifically

enforced which contains a clause of adequate compensation

in the event of breach of the same ?

viii) Whether a suit for declaration alone without seeking

consequential relief can be held to be maintainable

particularly when the declaration follows the consequential

relief ?

ix) Whether the registration of an application for allotment of a

plot can be sold, alienated or transferred particularly when

rule does not permit to do so and neither any such

application was moved by the plaintiff either before the

concern authority i.e. PUDA or before the Ld. Trial Court or

appellate court and also ?

x) Whether an agreement can be ordered to be specifically

enforced when the terms of the same are uncertain, illegal

 and oppose to Public Policy and suffers from

misrepresentation and undue influence?

xi) Whether the registration of a document involving the

property more than Rs.100/- is must and if yes, despite the

non registration of the same can be looked into by the court

for ascertaining terms and conditions ?

xii) Whether the fraudulent representation and

misrepresentation as to the character of document and

contents thereof makes the transaction void?

xiii) Whether the appellate court can cure the basic defect in the

suit pertaining to the valuation without any application on

record for making the defect good at the stage of passing of

final judgment and whether the action of allowing the

plaintiff to affix court fee on suit in the appeal of

defendant/appellant is sustainable ?

xiv) Whether the Ld. Courts below have erred in not framing the

proper issues and also in misconstruing and misreading the

evidence on the file and also relying upon inadmissible

evidence on the file ?

xv) Whether in view of the payment of court fee for the relief of

specific performance after about more than 12 years from

the cause of action, the suit for specific performance can

said to be within limitation?

32. That the submissions made in this appeal were made, raised and

pressed before the Ld. Courts below but the same have not been properly

noticed, considered and decided and the Ld. Courts below have passed

the impugned judgments and decree on the basis surmises and

conjectures and the whole issue has been inter-mingled whereas the Ld.

Courts below should have framed proper issues and decided the case by

giving findings on each issue.

 It is, therefore, respectfully prayed that the appeal may kindly be

accepted and the impugned judgments and decree may kindly be

accepted with costs and the suit of the plaintiff may kindly be dismissed

with cost throughout. Any other relief to which this Hon’ble court may

deem fit and proper may also be granted to the defendant/appellant.

Chandigarh.
Dated:07.03.08 (Ashok Singla) (Jatinder Singla)
P-495/88 P-880/81
Counsels for the Appellant

IN THE COURT OF MRS. HARINDER SIDHU, PCS, CIVIL JUDGE (JUNIOR

DIVISION), KHARAR.

CIVIL SUIT NO.106/7.5.94/10.2.96

Decided on: 31.3.2003
Sukh Raj Soni son of Rattan Lal Soni, resident of H. No. MIG-720/B,

Phase-2, SAS Nagar (Mohali), Tehsil Kharar.

..Plaintiff

Versus

K.S.Kang son of Sh. Bhagwant Singh @ Bhagat Singh former Chief

Engineer, Irrigation, 17, Jai Ambey Colony, Ajmer Road, Jaipur.

..Defendant

Suit for declaration that the plaintiff is now the owner

in possession subject to all conditions laid down by

the Punjab Housing Board relating to the plot no.34

measuring 400 sq.yds. in Sector 70, Urban Estates,

Mohali allotted against Registration No.R-8186 and

that now the defendant has got no concern with the

same with further declaration that the cancellation of

power of attorney through cancellation deed dated

11.4.94 by the defendant has got no effect upon the

legally constituted power of attorney given by the

plaintiff by irrevocable general power of attorney

dated 24.9.93 executed by the defendant in favour of

the plaintiff with a consequential relief of injunction

restraining the defendant not to alienate the suit

property by way of sale, gift, mortgage or in any

other manner in favour of anybody else except the

plaintiff and in alternative suit by way of specific

performance directing the defendant to get the suit

property transferred in the name of the plaintiff on

the basis of agreement to sell dated 24.9.93 by

executing necessary transfer deeds himself.

 …..

Present: Mr. T.C.Gupta, counsel for plaintiff.

Mr. M.L.Saitia, counsel for defendant.
….

Judgment:

This suit has been filed by the plaintiff on the facts that the

defendant has applied for the allotment of a plot to the Estate Officer,

Urban Estates, Punjab, Chandigarh (Mohali) and deposited an amount of

Rs.10,000/- along with an application on the basis of which he was

allotted registration No.R-8186 in 1974. Since sufficient time has passed

and no plot was being allotted, rather people had started thinking that the

deposit of Rs.10,000/- may also not be refunded by the Govt. Under

these circumstances, so many people started selling their registration

numbers to the prospective buyers. Accordingly, the defendant also sold

his registration No.8186 to the plaintiff for a sum of Rs.10,000/- and

entered into an agreement to sell dated 24.9.93 at Jaipur itself. The

defendant also executed a receipt in consideration of Rs.10,000/- thereof.

In the agreement dated 24.9.93 which is filled in the hand of the

defendant himself it has been specifically provided that the total sale price

of the said registration No.R-8186 has been fixed at Rs.10,000/- and the

same has been received by the seller from the plaintiff in cash as full and

final payment. The purchaser was made responsible to pay the balance

amount of 25% price of the said plot to the Government and after its

allotment to pay the next due installments and to construct building within

a stipulated time. The purchaser was given full rights and powers and

authorities to get the said plot allotted or to get any other size of no.8186

from the office of the State Officer. All the expenses on the conveyance

deed are to be borne by the purchaser. Purchaser has right to get the

sale deed effected in his name or in the name of his/her nominee(s) or

any other person(s) whatsoever and the seller shall have no objection for

the same. After the allotment of the plot, the purchaser shall become
absolute owner of the said plot subject to payment of the balance/price

installments of the said plot to the Government. The seller had to execute

the will and general power of attorney and all other necessary documents

to do all acts, deeds and things for the allotment, proper management,

construction and disposal/transfer/sale of the said plot and the building to

be erected upon. The power of attorney was not revocable and could not

be cancelled at any later stage by the seller till the ownership of the plot is

transferred in the name of the purchaser. Immediately, after the

allotment of the exact number of the plot by the State Officer, seller shall

execute and sign agreement to sell, GAP, affidavit and will indicating

therein the exact number of the plot and shall present himself in person

and shall get these documents registered in the office of Sub Registrar,

Chandigarh in favour of the purchaser of his nominee. However, the

purchaser was to provide expenses for traveling by Ist Class and boarding

and lodging in a view star hotel by the purchaser. It is further stated that

the defendant also executed registered will dated 24.9.93 duly attested by

the Notary Public, Jaipur, general power of attorney duly attested with a

condition not to be revoked, an affidavit giving his specimen signatures,

application for change of address for correspondence with plaintiff

addressed to Estate Officer, Mohali etc., affidavit regarding admission of

the sale of all rights in registration no.8186 and regarding the admission

of the execution of these documents. On the basis of the efforts made by

the plaintiff thereafter, the allotment letter was received from the State

Officer, Urban Estates, Mohali vide memo No.8/R-8186/GC/94/4144

whereby allotment no.34 measuring 400 sq.yds. in Section 70, Urban

Estates, Mohali has been allotted against the said registration number in

the name of the defendant for a tentative price of Rs.4,80,000/- with

certain conditions. Further it is stated that in order to fulfill the said

conditions of allotment, the plaintiff accordingly deposited an amount of

Rs.38,000/- first through a draft dated 29.10.93 for Rs.28,000/- issued by

State Bank of Patiala and thereafter, through another draft of Rs.10,000/-

dated 2.11.93 issued by Indian Overseas Bank. Both these drafts were

accordingly deposited by the plaintiff in the office of Estate Officer, Urban

Estates, Punjab Housing Development Board, Mohali. The plaintiff even

deposited another amount of Rs.72,000/- through another draft dated

30.3.94 issued by the Punjab & Sind Bank in favour of Estate Officer,

Punjab Housing Development Board. The condition of 25% deposit as

laid by the Estate Officer for allotment was completed and fulfilled by the

plaintiff with the deposit of Rs.1,20,000/-. The remaining 75% price is to

be paid by the plaintiff as per schedule given by the Estate Officer in the

allotment letter itself by way of its installments. Now that when

everything has been completed and actually the plaintiff is now the owner

in possession of the said plot, defendant with a mala fide intention and to

extract more money from the plaintiff, through his letter dated 12.4.94

sent a copy of the cancelled power of attorney dated 11.4.94 thereby

canceling the irrevocable power of attorney dated 24.9.93 already

executed in favour of the plaintiff by the defendant. This cancellation of

power of attorney through the deed of cancellation dated 11.4.94 is

altogether illegal, null and void and is to be ignored and the plaintiff

continues to be the owner in possession of the said plot on the grounds

that the plot in question has already been sold to the plaintiff and all

necessary formalities in this regard have already been completed and

entire sale consideration has been received by the defendant and the

plaintiff is now the owner in possession of the said plot except that formal

documents of transfer/registration deed etc. are to be executed in favour

of the plaintiff. The plaintiff continues to be the agent and the defendant

is bound under Section 202 of the Indian Contract Act by his irrevocable

power of attorney and the plaintiff still continues to be the agent on

behalf of the defendant. Since somebody else has given higher offer to

the defendant, the defendant is now threatening to sell the suit property
to somebody else whereas he is no more the owner of the same and is

bound by his agreement to sell dated 24.9.93. On these averments, the

present suit has been filed.

2) Upon notice, the defendant appeared and filed written statement

taking up preliminary objections that the agreement in question is against

Public Policy and as such is not enforceable, the registration number is not

transferable and as such the agreement is illegal. The agreement is

without consideration, the suit is not maintainable. The power of attorney

given to the plaintiff stands revoked. The plaintiff had obtained this

power of attorney by exercising undue influence on the defendant. The

plaintiff ceased to be a power of attorney holder of the defendant and as

such he has no right to file the present suit, the suit is not property valued

for the purpose of jurisdiction and court fee, the suit by an attorney

against the principal does not lie and no attorney can set up a claim to

ownership on the basis of power of attorney which is a revocable

documents and in the present case, power of attorney has been cancelled

by the registered document. The plaint is liable to be rejected under

Order VII Rule 11 of the CPC. The suit in the present form is not

maintainable and the plaintiff has not acquired any right, title or interest

which could entitle him to seek declaration as contemplated by Section 34

of the Specific Relief Act, 1963. The agreement and the sale of the

registration number or other documents being relied upon by the plaintiff

do not ipso facto create transfer or bestow the title of the allotted land of

the plaintiff and at the most, the plaintiff acquires bare chose-in-action of

which the remedy is not under Section 34 of the Specific Relief Act, 1963.

The so called sale of the registration was not permissible. The registration

number was inalienable and any sale thereof would be void. The

registration number was in favour of the defendant and is continuing in

his favour. The plaintiff did not seek substitution of his name in place of
the defendant, since the plaintiff was aware of the rules and conditions

governing allotment of the land by the Board prohibiting such sale, he

intentionally does not seek substation of his name. The plaintiff made

false representation to the defendant that there was no chance of

allotment of land at all and he should hand over the registration to him

since the plaintiff was prepared to wager and gamble on the remote

possibility of allotment. It was a clear manipulation of the plaintiff to

which the defendant succumbed. The plaintiff asserted that the

defendant would not have the land, therefore, he would retrieve his

registration amount and had it been a conscious intentional, voluntary and

uninfluenced act of free will, the defendant would have asked for premium

of interest on the registration amount of Rs.10,000/-. The so called sale

of the registration number took place at Jaipur and other documents on

which the plaintiff is relying were executed at Jaipur. The cancellation of

the power of attorney also took place at Jaipur. The defendant also

resides at Jaipur and hence this court has no territorial jurisdiction to

entertain the present suit. Another objection of the defendant is that if

the claim of the plaintiff that the general power of attorney was

irrevocable which was repository of his rights vis a vis the land allotted to

the defendant in lieu of the said registration number is accepted then this

instrument has not been properly stamped and is liable to be impounded.

The impugned agreement is invalid, unenforceable, void, inoperative and

inconsequential. Even if the agreement is treated as enforceable then the

only remedy available to the plaintiff was to sue for specific performance

of the contract. The impugned agreement was entered into at the time

when allotment had not yet been made. The ownership is still continuing

to vest in the Board till the whole consideration money and all the

amounts due are finally paid and there is clear bar against the transfer by

way of sale or otherwise save with the permission of the Board and till

such time as the full sale price is paid and building is completed. Even if
the defendant pays off the entire sale consideration amount, the

permission cannot be obtained till building is constructed and in view of

this rigorous and mandatory stipulation the contract has become

incapable and impossible of performance. The defendant was not aware

of the conditions 11, 12 and 15 set out in the said letter of allotment

when the impugned agreement was made. The plaintiff is not in

possession of the land and as such suit for declaration alone is not

maintainable. Plaintiff having secured a Will from the replying defendant

wanted to take no chance in case of cancellation of that will by defendant

and it was for this reason that he had arranged to get an agreement to

sell executed and the agreement to sell as such would deemed to be a

collateral document to the will and as such unenforceable at law. There

can be no valid transfer of immovable property of the value of more than

Rs.100/- without a registered sale deed. No sale deed having been

executed the plaintiff cannot claim the ownership. The defendant has

affection for the plaintiff and was under his influence. The defendant was

under depression on account of his own family circumstances. The

plaintiff had taken undue advantage of that affection and by exercising

undue influence got executed a will in his favour. The defendant had duly

cancelled that will after he got out of that influence. At the time of

execution of that Will, the plaintiff had obtained the signatures of the

defendant on various document, the transaction relied upon by the

plaintiff is also unconscionable as the defendant was not to get any profit

under the transaction. On merits, it is stated that the plaintiff along with

Jatinder son of Rattan Lal came to the house of the defendant and

represented that no plot is going to be allotted against the registration

No.R-8186 of the defendant by the PUDA. They further represented that

his registration number has been cancelled by the PUDA authorities and it

has been decided by PUDA that no plot is to be allotted against the

registration number of the defendant. They further represented to the

defendant that they have got sufficient approach in Punjab Government

and in Estate Office and as such, can get the case revived and further can

also get the plot allotted to the defendant against the registration number.

They further represented that in case, the said plot is allotted then it can

be sold and a premium of about 15 lacs can be obtained. Plaintiff and

said Jatinder further represented that in that case they can divide the

profit so obtained by selling the plot by 75% to 25% meaning thereby

that out of the profits 75% of the profit amount shall got to the defendant

and 25% profit shall go to the plaintiff. They further represented that

they can only do the above said job in case the defendant gives them the

general power of attorney and other necessary documents which are

necessary in this regard. Taking their representation as correct, the

defendant executed general power of attorney, will in favour of the

plaintiff. It was also decided between the plaintiff and the defendant that

the entire amount due against plot shall be deposited by the plaintiff

which shall be adjusted at the time of final division of the profits meaning

thereby that whatever amount is deposited by the plaintiff against the plot

it shall be first given to him out of the sale proceeds of the plot and the

remaining profit is to be shared. The plaintiff wanted to have irrevocable

power of attorney. The defendant also signed an agreement to sell which

was blank at the time of signing by the defendant. The plaintiff and

Jatinder represented that this agreement to sell will be filled in at the

appropriate time when the plot is allotted and specially in the name of the

intending purchaser. Taking their representation as correct, the

defendant signed the agreement to sell which was blank at that time.

After a lapse of about 4/5 months, the defendant tried to contact the

plaintiff and said Jatinder but both of them when contacted did not give

proper replies to the defendant with regard to the allotment of the plot.

The plaintiff and Jatinder have been assuring the defendant that they are

doing their best to get their plot allotted by still have no hope for it. The
defendant through his own sources got the actions of the plaintiff and

Jatinder confirmed but came to know that they after playing a fraud and

after making misrepresentation have got the general power of attorney,

Will and other documents signed from him. The defendant came to know

that in fact the plots are to be allotted against the registration number as

per the policy of the Punjab Government. After coming to know about the

fraud of the plaintiff, the defendant cancelled the general power of

attorney through cancellation deed dated 11.4.94 registered in the office

of Sub Registrar, Jaipur and cancelled the will also and sent the intimation

in this regard to the Estate Officer. The defendant appointed his wife

Nirmala Sharma as his general attorney who took up the matter with the

department and the defendant deposited the amounts towards the

payment of the price of the plot. The Estate Officer after being satisfied

gave the possession of plot no.34, Section 70 to Nirmala Sharma on

12.10.94. The blank agreement to sell has been now filled in by the

plaintiff or has been got filled in from some other person in his own name

and as such this agreement to sell dated 24.9.93 is thus forged and

fictitious document prepared by the plaintiff with the active connivance of

the witnesses. The will was got executed by the plaintiff by undue

influence, the will is a document which comes into operation only after the

death of testator and as such the alleged will dated 24.9.93 is of no value

moreover, the same has been duly cancelled. It is denied that there was

any condition that the general power of attorney could not be revoked. It

is clear from the general power of attorney that it could be revoked. The

allotment of plot no.34 measuring 400 sq.yds. in Sector 70 Urban Estate,

Mohali has been allotted to the defendant against the registration no.8186

and there is no question of any efforts having been made by the plaintiff

for the said allotment. It may also be added that any act done by the

attorney is an act deemed to have been performed on behalf of and for

the principal. It is the defendant who provided him a sum of Rs.72,000/-

of which a draft was got prepared by the plaintiff and likewise the

defendant gave a sum of Rs.28,000/- and Rs.10,000/- to Sukhraj Soni

who deposited the same with PUDA towards the payment of the plot. In

this way, it is the defendant who deposited a sum of Rs.1,10,000/-

through Sukhraj Soni towards the payment of the price of the above said

plot. Besides the above said amount, the defendant deposited a sum of

Rs.60,606/- through demand draft No.75859 dated 15.5.95 issued by

State Bank of Podia Hatwara Khatipura Road, Jaipur. The defendant has

also deposited a sum of Rs.90,000/- through demand draft no.027633

issued by the Central Bank of India, S.C.Road, Jaipur. Another amount of

Rs.1,00,000/- was deposited by the defendant through demand draft

no.032235 dated 5.6.97 issued by the Central Bank of India, S.C. Road

and lastly a sum of Rs.60,000/- was paid through demand draft

no.041850 dated 2.11.98 issued by Central Bank of India, S.C. Road,

Jaipur. The Estate Officer, after receiving the above said amounts,

through demand draft from the defendant, issued receipt no.61/1130

dated 29.6.95 for Rs.60,606/- 45/160 dated 12.12.96 for Rs.90,000/-,

49/443 dated 10.7.97 of Rs.1,00,000/- and lastly 1/1724/11.11.98 for

Rs.60,000/-. It is the defendant who has deposited a sum of

Rs.4,30,606/- towards the payment of the price of the plot to PUDA. The

possession of the plot was also given by PUDA to Nirmala Sharma, the

general attorney of the defendant. Remaining material averments have

been denied and the defendant has prayed for dismissal of the suit.

3) Replication was filed wherein all the averment of the written

statement were denied and those of the plaint were reiterated.

4) From the pleadings of the parties, the following issues were

framed:-

1) Whether the defendant sold his registration no.8186 to the

plaintiff for a sum of Rs.10,000/- and entered into an

agreement to sell dated 24.9.93 as alleged? OPP

 2) Whether the general power of attorney executed by

K.S.Kang was irrevocable as alleged? OPP

3) Whether the plaintiff deposited a sum of Rs.1,20,000/- as

alleged in the agreement? OPP

4) Whether the cancellation of power of attorney dated 11.4.94

is illegal, null and void as alleged? OPP

5) Whether the agreement to sell dated 24.9.93 is against the

public policy and is unenforceable, without consideration and

is based upon misrepresentation, fraud as alleged? OPD

6) Whether the defendant has deposited the amount as alleged

in Para no.7 of the written statement with PUDA? If so its

effect. OPD

7) Relief.

5) In support of his case, the plaintiff has examined Jatinder Anand as

PW1, Arjan Singh as PW2, Ved Kumar as PW3, Randhir Singh as PW4,

Kuldeep Singh as PW5, Harinder Kaur as PW6, Jagdish Kaur as PW7,

Sukhraj Soni plaintiff himself examined as PW8 and closed his evidence.

The defendant Kuldip Singh Kang himself has appeared as DW1 and

examined T.A. Khan as DW2, and closed his evidence. The plaintiff in

rebuttal evidence has examined Sajjan Singh as PW9.

6) I have heard the ld. counsel for the parties and have gone through

the record. My findings on each issue taken up separately are elaborated

as follows:-

Issues No.1, 2, 3 and 4

7) These four issues can be disposed off with the same observations,

hence they are taken up altogether to avoid repetition.

8) The admitted facts in the controversy between the parties are that

the defendant K.S.Kang had applied for the allotment of a plot to the

State Officer, PUDA and had deposited an amount of Rs.10,000/- with an

application and on the basis of which, he was allotted a registration no.R-

8186 in the year 1974. As per the plaintiff, since sufficient time had

passed and no plot was being allotted to the plaintiff and other people

who had also sought allotment of plots they had started thinking that no

plot would be allotted to them and they would also lost the deposit of

Rs.10,000/- which would not be refunded to them and under these

circumstances, people started selling their registration number to

prospective buyers and as such the defendant had also sold his

registration no.8186 to the plaintiff for a sum of Rs.10,000/- and entered

into an agreement to sell dated 24.9.93 at Jaipur itself. The defendant

also executed a receipt in consideration of Rs.10,000/- thereof. It is also

the case of the plaintiff that the agreement dated 24.9.93 was filled in by

the defendant himself and it was agreed amongst them that the total sale

price of the registration number would be Rs.10,000/- and the same was

received by the seller. The purchaser was made responsible to pay the

balance amount of 25% and after its allotment to pay the next due

installment and to construct the building within the stipulated time. All

the expenses on the conveyance deed were to be borne by the purchaser

and the purchaser had a right to get the sale deed effected in his name or

in the name of his or her nominee or any other person and the seller had

to execute the will and general power of attorney and all other necessary

documents. The seller also undertook to execute and signed the

agreement to sell, general power of attorney, affidavit and will and also

agreed to present himself in person and get the documents registered in

the office of the Sub Registrar and the purchaser was to provide the

expenses for traveling by Ist Class and boarding and lodging in five star

hotel by the purchaser. It is also the case of the plaintiff that the

defendant executed a registered will dated 24.9.93 general power of

attorney duly attested with the condition not to be revoked, an affidavit

giving his specimen signatures, an application for change of address for

corresponding with the plaintiff addressed to Estate Officer, Mohali,

affidavit regarding the selling of all the rights in the registration number

and regarding the admission of the execution of the documents. It is the

case of the plaintiff that now with his efforts vide memo

no.8/R-8186/GC/94/4144, the Estate Officer has allotted a plot measuring

400 sq.yds. in Sector 70, Mohali against the said registration number for a

tentative price of Rs.4,80,000/-. The plaintiff has deposited 25% which

was the condition for the allotment of the plot and the remaining 75% is

to be paid by the plaintiff as per the schedule of the Estate Officer but

now the defendant, vide letter dated 12.4.94 has cancelled the power of

attorney vide a cancellation deed dated 11.4.94. The plaintiff has

challenged this cancellation deed and claims to be the owner in

possession of the allotted plot as per the averments aforesaid. The

defendant on the other hand denies all these averments, it is his plea that

the documents were got executed by him under misrepresentation and

undue influence. He was made to understand by the plaintiff that there

were no chance of any plot being allotted to him. They also represented

to him that they have sufficient approach in the Punjab Government and

they could get allotted a plot to the defendant against registration number

and in case the plot is allotted then it could be sold and a premium of

about Rs.15 lacs could be obtained and in case they divide the profits so

obtained by selling the plot 75% amount of the profit would got o the

defendant and 25% would go to the plaintiff. On this misrepresentation,

the defendant executed a general power of attorney, will in favour of the

plaintiff. The defendant admits that it was decided that the entire amount

due against the plot would be deposited by the plaintiff which would be

adjusted at the final division of the profits. It is the plea of the defendant

that the agreement to sell was never signed by him and it was blank at

the time it was signed and the blank agreement to sell has now been filled

and signed by the plaintiff.

9) In order to prove his case, the plaintiff has examined Jatinder

Anand as PW1 and he has deposed that he used to run business of

property dealing at Mohali as well as Jaipur. He know Mr. K.S. Kang

defendant who contacted him in September 1993 when he came to Mohali

in connection with the sale of his registration no.8186 and he asked him

that either his money of Rs.10,000/- deposited with the Estate Officer

while applying for registration be got refunded or his registration number

be sold to somebody else if any customer is available and he handed over

the receipt to him which is mark A that if the registration number is not

sold, the money be got refunded. The option letter mark was also handed

over to him. He has further deposed that in the meantime, the plaintiff

who was interested in the purchase of the plot/registration number

contacted him for getting the bargain settled. Since sufficient time had

passed and no plot was allotted, there were many people who were ready

to sell their registration numbers. He has also deposed that he contacted

the defendant through phone and he and Sukhraj Soni went to Jaipur for

the completion of bargain and as desired by the defendant on phone, he

got the requisite papers typed on stamp papers at Mohali itself. This

witness has further deposed that the original agreement to sell dated

24.9.93 copy of which is Ex.P1 was signed by the plaintiff and defendant

after admitting its correctness and both the parties had signed in his

presence and he and the driver of the defendant had signed as witnesses.

He has further stated that the endorsement at page no.4 on Ex.P1 which

is mark ‘X’ was made by the defendant in his own hand. He has also

deposed that the defendant received Rs.10,000/- in his presence and he

executed the receipt upon which he had also signed as an attesting

witness copy of which is Ex.P2. He has also stated that on that day, an

affidavit was given the column of which was filled up by the defendant

and was got attested from Notary public at Jaipur which was signed by

the defendant in his presence and the copy of the same is Ex.P3. Another
affidavit sworn on the same day by Sh. K.S.Kang giving his specimen

signatures is mark ‘C’. The original of which has been given to the State

Officer. This witness also testified regarding the general power of

attorney, he stated that it was signed in his presence by the defendant

and he has signed as attesting witness of the same. It was signed and

got attested by the defendant after admitting the same as correct in his

presence and photocopy of the same is Ex.P4. He deposed that the

deficiency of stamp while getting the general power of attorney was made

up by purchase of additional stamp from Jaipur itself and the photocopy

of the same is Ex.P4/A and Ex.P4/B which are part of the general power

of attorney. The general power of attorney was also got attested from

the Notary Public. Jatinder Anand had also deposed regarding the original

will upon which he has signed as an attesting witness. He stated that this

document had been executed by K.S.Kang in sound disposing mind in his

presence. He identified his signatures on the document as well as

signatures of testator. Jatinder Anand has also deposed regarding draft

purchased by them for Rs.28,000/- on 29.10.93 for the plaintiff for making

payment to the Estate Officer. Further the plaintiff has examined himself

as PW8 and reiterated on oath the averments of his plaint. He has also

deposed regarding sale of the registration number in his favour and the

execution of the agreement to sell Ex.P1/A. The original receipt Ex.P2/A.

Affidavit regarding receiving of full and final payment Ex.P3/A. He also

brought on record the general power of attorney Ex.P4 executed by the

defendant in his favour. He also brought on record the original will Ex.P5

signed by K.S.Kang. Sukhraj

Soni plaintiff has also deposed that his efforts a plot for tentative price of

Rs.4,80,000/- had been allotted in the name of the defendant at his

address through Ex.PW8/A and the envelope through which it was

received is Ex.PW8/B. Regarding the payments the plaintiff has deposed

that draft of Rs.28,000/- was purchased by him on 29.10.94 and another

amount of Rs.10,000/- was paid by him through draft dated 2.11.93

purchased from Indian Overseas Bank copy of which is mark Y. The

voucher regarding purchase of this draft was brought on record as

Ex.PW2/A, PW2/B, PW2/Constitution, PW3/A. He has also deposed that he

even deposited another amount of Rs.72,000/- through another draft

dated 30.3.94 purchased from Punjab & Sind Bank, copy of which is mark

X1. This draft was purchased on his behalf by his friend Kirpal Singh and

the voucher in this regard is EX.PW5/A and record regarding the draft is

Ex.PW5/B. The allotment letter is also on the record which is Ex.PW6/A.

He deposed that as per the allotment be deposited Rs.72,000/- and the

condition of 25% was completed by him with the total deposit of

Rs.1,20,000/- and the amount of Rs.10000/- deposited by the defendant

was adjusted and the remaining 75% was to be deposited by him as per

the schedule given in Ex.PW8/A and accordingly he had deposited

Rs.96,000/- the first instalment on 20.3.95 through a draft and the

voucher in this regard is Ex.PW4/A and Ex. PW/B and while depositing the

amount of Rs.96,000/- he had sent a letter to the Estate Officer which is

Ex.PW6/C. The plaintiff has also deposed that he deposited Rs.90,000/- in

cash with PUDA vide receipt No.53. The original receipt which was issued

to him by PUDA was with him and thereafter he deposited another

Rs.84,000/- vide receipt No.35 on 11.11.97 and Rs.78,000/- on 23.4.98

through receipt No.68, Rs.84,000/- deposited by him after purchase of

draft from Punjab and Sind Bank since these deposites were made by him

therefore the receipts were issued to him by PUDA and the original

receipts are Ex.PW8/Constitution, PW8/D and Ex.PW8/E and when

everything was completed the defendant with malafide intention wrote a

letter dated 12.4.94 informing that he had cancelled the power of

attorney, will and the letter in this regard is Ex.P4. Further in order to

prove the deposits made by him the plaintiff has examined Arjan Singh

Clerk of the State Bank of Patiala, Mohali who proved the draft of
Rs.28,000/- which was purchased by Jatinder Anand and the voucher

regarding this is Ex.PW2/A which was prepared in their bank and this

entry is in the register maintained in the bank, certified copy of the same

is Ex.PW2/C. Ved Kumar Clerk Indian Overseas Bank has been examined

as PW3 to prove the draft of Rs.10,000/- dated 2.11.93 which was

purchased by Ashutosh from their bank in favour of the Punjab Housing

Development Board, Mohali and the original voucher pertaining to this is

Ex.PW3/A and the certificate of the bank is Ex.PW3/B. Randhir Singh Clerk

of the Punjab & Sind Bank Sector – 17, Chandigarh was examined as PW4

and he has deposed that as per his record Jagdish Kaur from account

No.13362 had got a draft of Rs.96,000/- made in favour of Punjab

Housing Development Board, Mohali. The original voucher pertaining to

this draft dated 20.3.95 was produced by this witness and the certified

copies of which is Ex.PW4/A and Ex.PW4/B. Kuldeep Singh was examined

as PW5. He has deposed that according to his record on 30.3.94 a draft of

Rs.72000/- No.083443/47/94 was got made by Kirpal Singh in favour of

Punjab Housing Development Board, Mohali. He had brought the original

voucher certified copy of which is Ex.PW5/A and Photostat of the cheque

is Ex.PW5/B. Harinder Kaur Senior Assistance Estate Office, PUDA Mohali

was examined as PW6. She produced the record pertaining to registration

No.8186 which was allotted to Sh.K.S.Kang. She has stated that initially

he depositing Rs.1350/- then he deposited Rs.8650/- on 30.4.94 for the

completion of Rs.10,000/- against the registration number. She stated

that the plot against this registration was allotted to K.S.Kang son of

Bhagwant Singh care of Sukhraj son of Rattan Lal Soni house No.HIG-

720/P-II-B-II/Mohali on 21.3.94. This plot No.34, Sector 70 was allotted

against the registration number and for getting this allotment as per rule

Rs.38,000/- were deposited before the allotment of the said plot by

Sh.K.S.Kang giving his new address as resident of MIG-720/B, Phase-11

on 10.11.1993. He had earlier showed his address as K.S.Kang, 70 Jai

Ambe Colony, Ajmer Road, Jaipur. She also deposed that this amount of

Rs.38,000/- was deposited through two d5rafts worth Rs.28,000/- on

29.10.93 issued by State Bank of Patiala and through an other draft of

Rs.10,000/- dt. 2.11.93 issued by Indian Overseas Bank. The tentative

price according to the allotment letter is Rs.4,80,000/-. She stated that it

was essential that before issuance of allotment letter 10% of tentative

amount i.e. Rs.38,000/- was to be deposited and there is office copy of

the allotment letter No.4144 dated 21.3.94 on the file and the Photocopy

of which is Ex.PW6/A. She stated that another amount of Rs.72,000/-

through draft dated 30.3.94 was deposited against this plot by Sukhraj

Soni and the photostat copy of the said letter submitted by Sukhraj Soni is

Ex.PW6/B as general power of attorney holder of K.S.Kang. She also

stated that first instalment of Rs.96,000/- was to be deposited by 21.3.94

and the same has been deposited by Sukhraj Soni through a letter dated

21.3.95, photocopy of which is Ex.PW6/C. She has also deposed that on

19.6.95 an amount of Rs.60,606/- has been deposited by one Jasbir Singh

Chahal advocate House No.589, sector 10-D, Chandigarh against the

allotment of this plot and according to her record this deposit was made in

the name of Sh.K.S.Kang. She also deposed that as per her file earlier the

GPA was given to Sukhraj Sini by Sh.K.S.Kang and same was got

cancelled by him and had now been given to Smt. Nirmala Sharma wife of

Kuldeep Singh Kang on 11.3.94. She stated that there is another

document showing that Kuldeep Singh has given cancellation deed vide

which he has cancelled his earlier will given in favour of Sukhraj Soni

which was given by him on 24.9.93. She stated that as per their record

this allotment still continued in the name of Kuldeep Singh Kang and

whatever instalment is due has been paid. In her cross examination she

admitted that the new address given by Sh.K.S.Kang is Ex.PW6/A. Jagdish

Kaur was examined as PW7. She has stated that she knew Sukhraj Soni

plaintiff. She deposed that she had got a draft prepared from her
accountant on the asking of the plaintiff in favour of Punjab Housing

Development Board, Mohali for payment towards the plot.

10. On the other hand in order to rebut the evidence of the plaintiff

defendant has examined himself as DW1. He has stated that he never

entered into agreement for sale of his plot with the plaintiff and he had

given a power of attorney to the plaintiff which had been got cancelled by

him and he had also executed a will, affidavit in favour of the plaintiff and

the same have also been got cancelled. In his cross-examination

defendant admitted that he retired as Chief Engineer from Irrigation

Department. He had applied for the allotment of a plot/registration

No.8186. He admitted the original agreement Ex.P1 and stated that the

blanks of the same were filled by him. He admitted that mark X on Ex.P1

was also written by him in his own hand. He also admitted the receipt,

Ex.P2 and stated that he had signed it after receiving Rs.10,000/-. He also

admitted the will ex.PW5/A stating that he had executed the same in

favour of the plaintiff. The defendant admitted the execution of the

affidavit Ex.P3/A and admitted his signature and stated that it was correct.

Affidavit mark C regarding the specimen signatures was also admitted by

him and he stated that he had given the same and the original mark ‘C’

had been submitted to PUDA. Ex.M1/A the allotment letter issued by

PUDA was also admitted by him. He stated that he deposited

Rs.3,73,000/- against the plot but he did not have any receipt with him

regarding the deposits. He stated that the some amount was deposited by

demand draft and some by cash through his attorney the plaintiff. He has

not brought any pass book and he stated that he had withdrawn this

amount from his account in the bank. The defendant stated that he did

not know if the registration number could be transferred in the name of

purchaser after payment of Re.1 per sq.yds. He stated that he did not

know if the plaintiff is in possession of the plot at the spot but his wife

was given the possession by the Department. The witness admitted all the
documents and he stated that he had signed to these documents after

going through the same. He had seen Ex.P3 which is signed by him and

admitted it was correct. He also admitted the original general power of

attorney Ex.P4 and stated that it was signed by him and mark X

mentioned in Ex.P4 was by his own hand. The defendant stated that he

had cancelled the general power of attorney vide cancellation deed

Ex.DW1/A. Subsequently after the amendment of the written statement

the defendant was examined and he reiterated the averments of his

amended written statement. In his cross-examination he again admitted

the execution of the documents. He stated that he could not produce any

document regarding dividing of 75% and 25% share with the plaintiff

since no document was prepared. He admitted that the cancellation was

made on 11.4.94 whereas the payments have been made in 1995-1996,

1997 and 1998 and this litigation had already started when he made the

payment. The defendant has also examined T.A.Khan to prove the

deposits made by the defendant.

11. The counsel for the plaintiff argued that the registration No.8186

was sold by the defendant to the plaintiff and the plaintiff had paid

Rs.10,000/- to the defendant and the receipt had been executed

regarding this and the defendant himself admits that he had received the

payment and had executed the receipt. The counsel for the plaintiff also

argued that the defendant has not denied the execution of the agreement

to sell Ex.P1, the affidavit Ex.P3/A, the power of attorney Ex.P4 and the

will Ex.P5 the counsel for the plaintiff most vehemently argued that the

defendant does not deny his signatures on the agreement to sell but he

states that he had never signed the same and the blanks were to be filled

in when the prospective buyers was found but at the same time the

defendant admits the affidavit Ex.P3 the execution of the power of

attorney Ex.P4 and the will Ex.P5 but he states that the general power of

attorney and the will had been cancelled by him. The counsel for the
plaintiff argued that the agreement to sell Ex.P1/A has the signatures of

the defendant and he has not denied this fact. He has also admitted that

in para No.9 at mark A the addition has been made by him in his

handwriting. The counsel for the plaintiff pointed out that in the same ink

there are other additions throughout in the agreement to sell which would

support the fact that the agreement to sell had been filled in and the

defendant at the time of signing the document had filled in the lacuna

whenever he felt the need. Since in his cross-examination conducted on

27.9.99 the defendant admitted that he had seen Ex.P1/A which was

signed by him on each page. He has seen the receipt of Rs.10,000/- and it

was also signed by him and he had signed all these documents after going

through, which would mean that the defendant had signed the documents

after going through the same and he could now not take up the plea that

he had signed a blank document. The counsel for the plaintiff also argued

that the defendant also admits the receipt Ex.P2 if the agreement to sell

was not entered into by the plaintiff then what was the need to execute

the receipt. More so once the defendant admits that he executed this

receipt after receiving Rs.10,000/-. The counsel most vehemently argued

that the defendant retired as a Chief Engineer in the Irrigation

Department. He was a responsible person highly qualified and well

educated why would a person of his status and qualification signed a

blank document. Regarding the allegation of the defendant that the

plaintiff had misrepresented to him and he had signed the document

under influence the counsel for the plaintiff argued that man of the status

of the defendant could not be influenced by an ordinary layman such as

the plaintiff and there is no evidence on the record to prove these facts.

The counsel for the plaintiff argued that the written statement of the

defendant itself shows waivering pleas taken by the defendant in order to

wriggle out of the transactions. The counsel for the plaintiff referring to

the affidavit Ex.P3 argued that this affidavit admits the same and the
transaction. Sale of the registration number in favour of the plaintiff and

the defendant when confronted with this document admitted the

execution of the same. Moreover the counsel pleaded that this document

is attested by a Notary. Had this document been blank no Notary would

have attested the same. The execution of the general power of attorney

and the will is not denied by the defendant but the counsel for the plaintiff

pleased that even though in his hand the defendant had written that the

power of attorney was revocable yet considering the facts and the

circumstances that the defendant had executed all the relevant

documents including document affidavit Ex.P3. Power of attorney was to

be presumed to be irrevocable. The counsel also argued that the

payments were made by the plaintiff right upto the allotment to the

plaintiff and subsequently the instalments as per the schedule have been

proved on record by the witnesses of the bank through the various papers

and the vouchers and the payments made by the defendant were made

after the litigation commenced and were made only to create the

evidence. The counsel for the plaintiff also vehemently contended that the

power of attorney given by the defendant to Sukhraj Soni plaintiff was

irrevocable, although it was not specifically provided and even though the

defendant had written in his own hand that the power of attorney was

revocable. It was the contention of the counsel for the plaintiff that the

agreement to sell was not a mere agreement to sell but it was more than

that because always with the execution of the agreement to sell there

were other comments such as the will Ex.PW5/A, the affidavit Ex.P3/A and

the power of attorney Ex.P4 which were executed which would mean that

the transaction was completed in all respects except the execution of a

regular sale deed and the registration thereof and thereafter an interest

was created in the property under the agreement and the provisions of

Section 202 of the Contract Act would be applicable. The counsel for the

plaintiff argued that the affidavit Ex.P3 signed by the defendant which he
admits and attested by the Notary supports the sale of the registration

number. The counsel for the plaintiff argued that the affidavit Ex.P3

signed by the defendant which he admits and attested by the Notary

supports the sale of the registration number. The counsel for the plaintiff

thus argued that in the present case from the peculiar circumstances and

in view of the provisions under Section 202 of the Contract Act and also

because of the execution of the affidavit and the will and GPA and the

agreement itself, the power of attorney Ex.P4 was irrevocable and Sukhraj

Soni plaintiff would remain the agent of the defendant inspite of any

cancellation of power of attorney. In this context the counsel for the

plaintiff referred to RAMESH MOHAN & ORS. VS. RAJ KRISHAN & ORS.

Reported in 1984 P.L.R. PAGE 211.

12. On the other hand the counsel for the defendant argued that the

power of attorney and the will as well as the affidavit were executed by

the defendant under mis-representation and undue influence and he was

made to believe that his registration number would never lead to

allotment of a plot and he would infact forfeit his Rs.10,000/- and as such

he had agreed to transfer the registration number to some prospective

buyer and the profits were to be shared with the plaintiff i.e. 75% of the

share would go to the defendant and plaintiff would get 25%. The counsel

argued that the agreement to sell though it bears the signatures of the

defendant, the same was filled in later and the number of cuttings and

inter-polations and there are no initials or signatures on the cuttings and

the additions. The counsel for the defendant argued that the mere fact

that the registration number was purchased in the year 1974 for

Rs.10,000/- if it had to be sold after 20 years it would definitely have been

sold on interest which is not so in the present case and hence this alone

reveals the misrepresentation and the influence the plaintiff exercised

over the defendant. The Learned counsel for the defendant argued that

the power of attorney no doubt was given to Sukhraj Soni plaintiff but the
same was subsequently revoked by the cancellation deed Ex.DW1/A and

he informed Sukhraj Soni through the registered letter Ex.D1/E. The

counsel also argued that subsequently all the payments were made by the

defendants to the Estate Officer, PUDA the receipts Ex.D1/I, D1/J, D1/K,

D1/L and subsequently the possession had been handed over to the wife

of the defendant who was his general attorney and the copy of the taking

over of the possession from PUDA is Ex.D5. The counsel for the

defendant argued that the plaintiff had no right tile or interest in the plot

allotted upon the registration, he having played fraud upon the defendant

and his power of attorney having been cancelled he was no more the

agent of the defendant and the defendant had made the payment earlier

through the plaintiff and subsequently himself and possession had been

handed over to yhim and the plaintiff as such could not claim any right.

The counsel for the defendant most vehemently argued that the

agreement to sell itself does not create any interest in the property.

13. Having heard the submissions of the counsel for the parties and

having gone through the record, the questions which come up for

determination primarily are whether the documents upon which the

plaintiff claims ownership and possession were executed by the

defendant. Secondly whether these documents have been executed with

the free will and consent of the defendant. The plaintiff has brought on

record the original power of attorney Ex.P4, the will Ex.PW5/A and

affidavit Ex.P3/A and alongwith agreement to sell Ex.P1/A. The defendant

when he entered the witness box as his witness admitted the execution of

the power of attorney Ex.P4, the affidavit Ex.P3/A and the will Ex.P5/A but

regarding agreement to sell Ex.PW1/A it was his plea that this agreement

to sell had never been signed by him and the blanks were filled in

subsequently and he had signed the blank agreement as the blanks were

to be filled in after the prospective buyer was found. I have perused the

agreement to sell Ex.P1/A, in the said agreement there are additions and
cuttings with the same ink which has been used by the defendant for his

signatures infact in para No.9 there is an addition at mark A which the

defendant specifically admitted was in his handwriting. This could lead to

a presumption that the defendant after reading the contents of the

agreement made additions wherever he felt that they were lacunas infact

in his cross-examination recorded on 27.9.99 the defendant Mr.K.S.Kang

admits that mark ‘X’ on page 4 in Ex.P1/A has been filled up in his had. He

also admits that Ex.P1/A was signed by him on each paper and receipt of

Rs.10,000/- Ex.P2/A is also signed by him and he had signed all these

documents after going through. An extract of this part of cross

examination recorded on 27.9.99 is reproduced “Mark X on page in

Ex.P1/A has been filled up in my hand. I have seen the will Ex.P1/A it is

signed by me. I have seen Ex.P1/A it is signed by me on each page. I

have seen the receipt of Rs.10,000/- Ex.P1/A it is also signed by me. I

have signed all these documents after going through. I have seen Ex.P3

which is signed by me and is correct. I have seen the original general

power of attorney, it is signed by me the Photostat copy Ex.P4 is already

on the file ”. From a reading of this para of the cross examination it would

reveal that the plaintiff admits receiving Rs.10,000/- vide a receipt

Ex.P2/A. He also admits specifically that he read the contents of the

agreement to sell and then signed the same. Ex.P3/A is an affidavit of the

defendant in which he has specifically admitted on oath that he has sold

his registration No.8186 to Sh.Sukhraj Soni plaintiff son of Rattan Lal

resident of MIG-720/B, Phase – XI, Mohali and had received full and final

payment from him. This affidavit is not disputed by the defendant.

Moreover it is attested by the Notary. Even if the defendant takes up the

plea that this document was also blank when he signed it the plea would

not sustainable in the light of the fact that the Notary would not attest a

blank document. The execution of the general power of attorney and the

will are not challenged or contested by the defendant but it is his plea that
he ahs revoked these documents. The question now arises whether the

general power of attorney was revocable or not. A reading of the affidavit

of the defendant which is admitted by him alongwith the agreement to

sell and the facts stated above, it would sufficiently prove that the

transaction between the parties was completed with the execution of the

agreement to sell. Undisputedly an agreement to sell does not convey a

title to a person and an agreement to sell itself does not create any

interest in the property but in the present case in the affidavit Ex.PW3/A

the defendant himself admits on sole affirmation that he had sold the

registration number of Sukhraj Soni plaintiff and has received full and final

payment and it would itself reveal that the transaction between the

parties was completed. The general power of attorney Ex.P4 pertains to

this registration No.8186 and the terms of the power of attorney read

collectively with the agreement to sell would show that the power of

attorney was infact irrevocable. The defendant having executed the power

of attorney, agreement to sell and the affidavit and the will specifically

admit that he had received the full and final payment subsequently be

could not revoke the GPA and Sukhraj Soni plaintiff continued to be the

agent of the defendant since he had performed all the duties assigned to

him under the power of attorney as well as of the clauses of the

agreement to sell had been not made with by him. There is sufficient

evidence on the record to prove that till filing of the suit the payments

were all made by Sukhraj Soni plaintiff infact even in his written statement

the defendant admits that as per the clauses of the agreement to sell and

the GPA the payments were to be made by Sukhraj Soni which were as he

had alleged were to had been adjusted later. Otherwise through the oral

testimony of witnesses PW2, PW3, PW4, PW5 and PW6 who are witnesses

of the bank and who brought on record the various copies of the drafts,

vouchers proved that these payments had been made by Sukhraj Soni

plaintiff and it was due to his efforts that the allotment of the plot was
made. The cancellation deed Ex.DW1/A is of the year 11.4.94 which could

amply show that subsequent to the allotment of the plot and after all the

conditions were filled by the plaintiff, the defendant with the mala fide

intention revoked the power of attorney through a cancellation deed.

Admittedly the defendant retired as Chief Engineer of the Irrigation

Department. A man holding such a post and with the qualification such as

that of the defendant could not be believed to have been lured by an

ordinary layman nor could he have been influenced easily. More over no

person with the qualification such as the defendant and the status that he

had been holding would have signed blank documents as has been

alleged by the defendant. The defendant pleads frauds, misrepresentation

and undue influence but there is no evidence on the record to prove these

facts. Infac6t the defendant retired as Chief Engineer in the Irrigation

Department and the plaintiff was an ordinary layman. What influence he

had over the defendant has not been proved. The defendant specifically

admits the receipts vide which he received Rs.10,000/- and the affidavit

Ex.P3/A sufficiently proves the fact that the sale of the registration

number had been effected by the defendant in favour of the plaintiff and

full and final payment was received by him. In RAMESH MOHAN &

ANOTHER VS. RAJ KRISHAN & ORS. Reported in 1984 P.L.R. 211 our own

Hon’ble HIGH COURT has held that :-

“Held, that it is always to be borne in mind that while administering

justice, equity always plays an important part and the courts

cannot loose sight of the equities and, thus, help a wrongdoer on

mere technicalities. There is seldom any conflict between equity

and statutory law because the law aims at securing justice and,

therefore, the courts dispense justice to the party in whose favour

justice lies though in accordance with law”

14. Keeping in view the aforesaid findings it can safely be concluded

that the defendant having sold his registration number 8186 the plaintiff
and after entering into agreement to sell and receiving the sale

consideration amount could not have revoked the GPA and the

cancellation of the power of attoney dated 11.4.94 is illegal, null and void.

The fact that the plaintiff deposited a sum of Rs.1,20,000/- as alleged in

the agreement is sufficiently proved from the oral evidence of PW2, PW3,

PW4, PW5 and PW6 and through the vouchers and copies of the drafts

brought on record by them. The testimony of these witnesses has not

been rebutted and accordingly these issues are decided in favour of the

plaintiff and against the defendant.

15. The counsel for the defendant had most vehemently argued that

the agreement to sell dated 24.9.94 is against public policy is enforceable

and without consideration, based on misrepresentation and fraud. It was

most vehemently argued by him that the registration number was

inalienable property it could not be sold and hence the agreement to sell

itself was against public policy. On the other hand the counsel for the

plaintiff argued that the registration number could be sold and this fact

has been abundantly proved from the testimony of Mr. Sajjan Singh

Senior clerk PUDA who was examined in rebuttal as PW9. The counsel for

the plaintiff referring to the testimony of this witness argued that he has

stated that the original letter No.23941 dated 29.10.93 regarding transfer

of registration number of pending applicants for the allotment of plots for

which a fee of Re.1/- per sq.yrds is lying with the vigilance bureau Punjab

in connection with some other case and its certified copy was brought on

record by this witness which is Ex.PX/1. The Ld. counsel for the plaintiff

stated that as per Ex.PX/1 the registration number could be transferred as

per rules of the Punjab Housing Development Board and as such there

was no dispute that the registration number was not saleable. The

counsel for the defendant, however, argued that registration number was

inalienable and any sale thereof would be void.

16. I have carefully considered the aforesaid averments of the counsel

for the parties. EX.PX/1 produced by the official of the Punjab Housing

Development Board showed that the registration number could be

transferred after payment of fee of Re.1/- per sq.yards and this document

specifically stated that the department which allotted the registration

number and thereafter the plots has specifically allowed the sale of the

registration number and hence it cannot be disputed that the registration

number was inalienable. The counsel for the defendant had also argued

that the agreement to sell did not confer any title since the agreement

itself does not create interest in the property and in this context he

referred to 1998(2) CCC PAGE 6. He further argued that even if this

instrument i.e. the agreement to sell is construed per se as conveying title

to the plaintiff with regard to the land allotted to the defendant, then the

stamp on the market value was leviable and the agreement to sell was

subject to registration. The said documents have not been registered and

was inadmissible in evidence. To this counsel for the plaintiff argued that

Section 17 of the Indian Registration Act deals with various situations

where the document so executed is required to be registered and not

required to be registered. As per Section 17(2) (V) any document not

itself creating, declaring, assigning, limiting or extinguishing any right, title

or interest of the value of Rs.1000/- and above or in any immovable

property but merely creating right to obtain another document which will,

when executed, create, declare, assign, limit of extinguish any such right,

title or interest does not require registration. The counsel for the plaintiff

argued that when an agreement to sell had been entered into on a date

when the seller is not owner of the property Section 43 of the Transfer of

Property Act comes into play and in the present case too the property is

not being transferred but a right to get the property subsequently is being

transferred through the agreement to sell thus does not require

registration. The Ld. counsel also argued that the vendor cannot put
forward the defence that he has not title to the property or that he has no

right to sell his title. It is settled law that the vendor cannot challenge his

own title or dispute the same.

17. I have carefully considered the contentions put forth by the counsel

for the parties and I have gone through the record. As discussed earlier

registration number is saleable as per Ex.PX/1, a letter of the Punjab

Housing Development Board and hence it cannot be said that the

registration number was inalienable. The agreement to sell as per Section

17(2) (v) alongwith the appended explanation does not require

registration since Section 17(2) (v) with its explanation reads as :-

“As per Section 17(2) (V) : any document, not itself creating,

declaring, assigning, limiting or extinguishing any right, title or

interest of the value of one hundred rupees and upwards to or in

immovable property, but merely creating right to obtain an another

document which will, when executed, create, declare, assign, limit

or extinguish any such right, title or interest …………………

The explanation appended to this Section further reads as :-

Explanation ----- A document purporting or operating to affect a

contract for sale of immovable property shall not be deemed to

require or ever to have required registration by reason of the fact

that such document contains a recital of the payment or any

earnest money or of the whole or any part of the purchase money”

18. The agreement to sell dated 24.9.93 thus cannot be said to be

against public policy or enforceable. Regarding the same being made

without consideration and based upon mis-representation and fraud

findings have already been ascribed in the earlier issue. Accordingly this

issue is decided in favour of the plaintiff and against the defendant.

ISSUE NO.6

19. The defendant in para No.7 of the written statement has

specifically stated that it was the defendant who provided the plaintiff for
a sum of Rs.72,000/- for which a draft was got prepared by the plaintiff

and defendant also gave a sum of Rs.28,000/- and Rs.10,000/- to Sukhraj

Soni who deposited the same with PUDA towards the payment of the plot.

In this way, it is the defendant who deposited the sum of Rs.1,20,000/-

through Sukhraj Soni towards the payment of the price of the plot. These,

however, are only averments of the defendant which have not been

proved on record. To the contrary the plaintiff has examined Jatinder

Anand as PW1 who has stated that he had purchased a draft for the

plaintiff for Rs.28,000/- from the State Bank of Patiala on 29.10.93 for

payment to the Estate Officer and he handed over the same to the

plaintiff and this draft was purchased by him as the plaintiff had given

money to him. Further Arjan Singh Clerk of the State Bank of Patiala

produced in the court the original voucher regarding this draft purchased

by Jatinder Anand copy of the voucher is Ex.PW2/A Photostat copy of the

draft memo is Ex.PW2/B and the entry in the register certified copy of the

same is Ex.PW2/C. Regarding Rs.10,000/- deposited on 3.11.93 PW2 Ved

Kumar Clerk of the Indian Overseas Bank Mohali stated that the said draft

had been got prepared by Ashutosh in favour of Punjab Housing

Development Board copy of the original voucher was Ex.PW3/A and the

certificate was Ex.PW3/B. Randhir Singh of the Punjab & Sind Bank has

proved the voucher Ex.PW4/A and PW/B for the draft of Rs.96,000/- got

prepared by Jagdish Kaur and Jagdish Kaur has been examined to prove

these and stated that she had got this draft prepared from her accountant

on the asking of the plaintiff in favour of Punjab Housing Development

Board. Kuldeep Singh clerk of Punjab & Sind Bank, Sector 22/B,

Chandigarh has deposed regarding the draft of Rs.72,000/- of 30.3.94 and

he stated that this was got prepared by Kirpal Singh in favour of Punjab

Housing Development Board and the voucher is Ex.PW5/A and the

Photostat copy of the cheque is Ex.PW5/B. The oral testimony of these

witnesses coupled with the documentary evidence brought on record by

them shows that the payment was not made by defendant Sh.K.S.Kang

but on the contrary by Sukhraj Soni plaintiff. Harinder Kaur PW6 Senior

Assistance of Estate Office PUDA has also deposed as to how these

payments were made and these tally with the draft proved by witnesses

PW2 to PW5. She has specifically stated that these amounts were

deposited by Sukhraj Soni plaintiff. Though the defendant alleges that

these payments were made by him to Sukhraj Soni yet there is no

evidence on record to prove this fact. The defendant no doubt has tried to

bring on record the evidence regarding the payments made by him

subsequent to the filing of the suit. These amounts which the defendant

states were paid by him through receipts Ex.DW1/I, Ex.DW1/J, EX.DW1/K,

Ex.DW1/L are all made during the pendency of the proceedings and the

defendant has made these payments during the pendency of the case and

as alleged by the counsel for the plaintiff the same was done to create

evidence. The defendant has thus failed to prove that the amount of

Rs.1,20,000/- as alleged by him in para no.7 was deposited by him, to the

contrary it has been proved that it was deposited by the plaintiff. Hence

this issue is decided in favour of the plaintiff and against the defendant.

ISSUE NO.7 (RELIEF)

20. In view of my detailed discussion aforesaid the suit of the plaintiff

must succeed and is accordingly decreed with costs for the alternative

relief for specific performance of the agreement to sell dated 24.9.93 and

the defendant is directed to get transferred the suit property in the name

of the plaintiff on the basis of the agreement to sell dated 24.9.93 by

executing the necessary transfer deeds upon the plaintiff fulfilling all the

conditions laid down by the Punjab Housing Board relating to the plot

No.34 measuring 400 sq.yrds in Sector – 70, Urban Estates Mohali allotted

against registration No.R-8186. Decree sheet be prepared and file be

consigned to the record room.

Announced Sd/-
31.3.2003. Civil Judge (Junior Division)
Kharar
TRUE COPY

ADVOCATE

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

R.S.A. No.__________of 2008

(District Mohali)

MEMO OF PARTIES

K.S.Kang son of Sh. Bhagwant Singh @ Bhagat Singh, 17, Jai Ambey

Colony, Ajmer Road, Jaipur through her wife/GPA Smt. Nirmala Sharma.

..Appelant/Defendant

Versus

Sukh Raj Soni son of Rattan Lal Soni, resident of H. No.MIG-720/B, Phase-

2, SAS Nagar (Mohali), Tehsil Kharar now Tehsil & Distt. Mohali.

… Respondent/ Plaintiff

Chandigarh.
Dated:7.03.2008 (Ashok Singla) (Jatinder Singla)
P-495/88 P-880/81
Counsels for the appellant .
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

R.S.A. No.__________of 2008

(District Mohali)

K.S.Kang Versus Sukh Raj Soni

INDEX

SR.NO. PARTICULARS DATED PAGES

1. Application u/s 151 C.P.C. 7.03.08 1

2. Application u/o 41 r.5 C.P.C. 7.03.08 2

3. Affidavit 7.03.08 3

4. Grounds of appeal 7.03.08 4-27

5. Memo of Parties/Court fee 7.03.08 28-28C

6. Judgment (ld. trial court) 31.03.03 29-62

7. Decree Sheet (-do-) 31.03.03 63-65

8. Judgment (ld. ADJ, Ropar) 28.11.07 66-90

9. Decree Sheet (-do-) 28.11.07 91-92

10. Power of Attorney 17.02.08 93

Notes: 1) Caveat has been received through Shri. Sanjay Kr. Gupta,
Adv. of the respondent and he has been supplied advance
copy of R.S.A. in this case.
2) Similar case, if any: Nil

Chandigarh.
Dated: 7.03.08 (Ashok Singla) (Jatinder Singla)
P-495/88 P-880/81
Counsels for the appellant.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

C.M. No.___________of 2008 in

R.S.A. No.__________of 2008

K.S.Kang Versus Sukh Raj Soni

Application under Order 41 Rule 5 CPC for staying the

operation and implementation of the judgments and

decrees passed by ld. Courts below during the

pendency of the present appeal.

……..

RESPECTFULLY SHOWETH :-

1. That the accompanying grounds of appeal may kindly be read as

part of this application to avoid repetition.

2. That there is every likelihood of acceptance of appeal whereas, the

other side is out to execute the impugned judgments and decree and is

threatening to take possession of the plot and further alienate the same

on the basis of impugned judgments and decree and if their operation is

not stayed then the appellant will suffer irreparable loss and substantial

injury.

3. That the appellant has got a prima facie case and balance of

convenience also lies in his favour.

It is, therefore, respectfully prayed that the application may kindly

be accepted as prayed for in its head note.

Note : Affidavit is attached

Chandigarh.
Dated:7.03.08 (Ashok Singla) (Jatinder Singla)
P-495/88 P-880/81
Counsels for the appellant .
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Re. C.M. No.___________of 2008 in

R.S.A. No.__________of 2008

K.S.Kang Versus Sukh Raj Soni

Affidavit of Nirmal Sharma wife/GPA of appellant K.S.Kang

son of Sh. Bhagwant Singh @ Bhagat Singh, 17, Jai Ambey
Colony, Ajmer Road, Jaipur.
…..

I, the above named deponent do hereby solemnly affirm & declare as

under:-

1. That deponent being wife and GPA of appellant is fully conversant

with the facts and competent to file this affidavit.

2. That there is every likelihood of acceptance of appeal whereas, the

other side is out to execute the impugned judgments and decree and is

threatening to take possession of the plot and further alienate the same

on the basis of impugned judgments and decree and if their operation is

not stayed then the appellant will suffer irreparable loss and substantial

injury.

3. That the appellant has got a prima facie case and balance of

convenience also lies in his favour.

Deponent

Verification:

Verified that the contents of my above affidavit are true and correct

to my knowledge and no part of it is false and nothing relevant has been

kept concealed therein. Verified at Chandigarh on 7.03.08.

 Deponent

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

C.M. No.___________of 2008 in

R.S.A. No.__________of 2008

K.S.Kang Versus Sukh Raj Soni

Application u/s 151 C.P.C. to take on record true typed copy

of the judgment and decree of the Ld. Trial Court and to

exempt the filing of their certified copies and to exempt the

filing of true typed copy of judgment and decree of the Ld.

lower Appellate Court.

RESPECTFULLY SHOWETH :-

1. That the true typed copy of the judgment and decree of the Ld.

Trial Court is being filed which is prepared from the photocopy of their

certified copies which were obtained at the time of filing first appeal but

were filed along with the first appeal and in these circumstances filing of

their certified copies may be exempted.

2. That certified copies of judgment and decree of the Ld. lower

Appellate Court are legible and clear and fairly typed and thus, the filing

of true typed copies of the same may be exempted.

It is, therefore, respectfully prayed that the application may kindly

be accepted as prayed for in its head note.

Note : Affidavit is not necessary.

Chandigarh.
Dated:7.03.08 (Ashok Singla) (Jatinder Singla)
P-495/88 P-880/81
Counsels for the appellant

.
Decree sheet

IN THE COURT OF MRS. HARINDER SIDHU, PCS, CIVIL JUDGE (JUNIOR

DIVISION), KHARAR.

CIVIL SUIT NO.106/7.5.94/10.2.96

Decided on: 31.3.2003

Sukh Raj Soni son of Rattan Lal Soni, resident of H. No.MIG-720/B, Phase-

2, SAS Nagar (Mohali), Tehsil Kharar.

..Plaintiff

Versus

K.S.Kang son of Sh. Bhagwant Singh @ Bhagat Singh former Chief

Engineer Irrigation, 17, Jai Ambey Colony, Ajmer Road, Jaipur.

..Defendant

Suit for declaration that the plaintiff is now the owner in

possession subject to all conditions laid down by the Punjab

Housing Board relating to the plot no.34 measuring 400

sq.yds. in Sector 70, Urban Estates, Mohali allotted against

Registration No.R-8186 and that now the defendant has got

no concern with the same with further declaration that the

cancellation of power of attorney through cancellation deed

dated 11.4.94 by the defendant has got no effect upon the

legally constituted power of attorney given by the plaintiff by

 irrevocable general power of attorney dated 24.9.93

executed by the defendant in favour of the plaintiff with a

consequential relief of injunction restraining the defendant

not to alienate the suit property by way of sale, gift,

mortgage or in any other manner in favour of anybody else

except the plaintiff and in alternative suit by way of specific

performance directing the defendant to get the suit property

transferred in the name of the plaintiff on the basis of

agreement to sell dated 24.9.93 by executing necessary

transfer deeds himself.

Plaint present on 7.5.1994

Value of the suit for the purchase of court fee is Rs.32.50 p.

Value of the suit for the purpose of jurisdiction is Rs.325/-

This suit is coming today i.e. the 31st day of March, 2003. For its

disposal before me (Mrs. Harinder Sidhu, PCS, Civil Judge Junior Division,

Kharar). In the presence of Mr. Tara Chand Gupta, Advocate counsel for

the plaintiff and Mr.M.L.Sethia Advocate counsel for the defendant. It is

hereby ordered that suit of the plaintiff must succeed and is accordingly

decreed with cost for the alternative relief for specific performance of the

agreement to sell dated 24.9.93 and the defendant is directed to get

transferred the property in the name of the plaintiff on the basis of

agreement to sell dated 24.9.93 by executing the necessary transfer

deeds upon the plaintiff fulfilling all the conditions laid down by the

Punjab Housing Board relating to the Plot No.34 measuring 400 sq.yards

in Sector – 70, Urban Estate, Mohali allotted against registration

No.R8186.

MEMO OF COSTS

Plaintiff Defendant

Rs. P Rs. P

1. Stamp for plaint 32 . 50 00 00

2. Stamp for power 1 . 25 3 75

3. Stamp for process fee 1 . 50 00 00

4. Misc. 2 . 50 12 . 75

5. Court fee NIL NIL

Total Rs. 37 . 75 16 . 50

Given under my hand and the seal of this court the 31 st day of

March, 2003.

Sd/-
Civil Judge (Junior Division)
Kharar
TRUE COPY

ADVOCATE
 LIST OF IMPORTANT EVENTS

 Suit For Declaration that plaintiff is owner in possession of plot no

34, sector 70, Mohali

 Declaration that cancellation of POA vide cancellation deed dated

11.4.1994 is of no legal consequence Whereby Irrevocable POA

dated 24.9.93 has been revoked

 Consequential Relief of Permanent Injunction that def. should not

alienate the suit property in any manner

 In alternative suit by way of specific performance directing def. to

transfer property on the basis of ATS dated 24.9.1993

1974 Defendant applied to Punjab Housing board for allotment of

plot and deposited Rs. 10,000, and were allotted

registration no.R-8186.

------ Defendants were hopeful of getting allotment of plot and

waited for allotment in their favour.

-------  Plaintiff came to know that the plots are to be

allotted of the policy of 1974 and with ill motive

contacted the defendant to make them sell their

registration no R-8186 under undue influence.

 Plaintiff’s ill motive is shown by the fact that he along

with PW1 got prepared the documents on stamp

paper from Mohali Itself even before the offer was

made to the defendant for sale of their registration

no. and after preparing the ATS and other

documents, in order to befool defendants, went to

Jaipur.

24.9.1993  They made the defendants realize that there number

 is not likely to come and they wont even get their

10,000 back; but they can get their file moved only

in case the defendants appoint plaintiff as their GPA

and let him pursue the matter as they are having

links with the officials of PUDA.

 On the same date they made undue influence on def.

and made def. execute :-

1. Agreement to Sell Ex P-1 ( - Executed at

Jaipur, but stamped and typed at Chandigarh

on 22.9.1993 i.e. before 2 days of even

making the offer to the defendant, thus shows

that it was complete planned and hatched

conspiracy.

- Clause 7 States “ Said purchaser shall

become the absolute owner of the said

plot subject to payment of the balance

installment”

2. Recipt Ex P-2

3. Affidavit ExP-3 ( attested at Jaipur stating that

Defendant in full senses is transferring his

registration no.)

4. Revocable General Power of Attorney Ex P4,

5. Will Ex P5 ( only regarding Registration no R-

8186 in favour of Sukh Raj Soni)

in plaintiff’s favour.

 The whole idea was to commit fraud with the def.

and keep him in lurch.

 The real terms were that plaintiff will get done the

work of plot allotment and after the plot is allotted,

plaintiff will sell it further and the premium amount

 will be shared by the def. and plaintiff.

 That is why def. agreed to sell the registration no. R-

8186 only for sum of Rs. 10,000 and did not charge

any interest for 20 years.

 Contents of ATS, plaintiff will have all rights

after allotment, 25% of the sale price to be

paid by plaintiff and further 75% price also ;

def. to be present for getting the plot allotted.

29.10.1993 Plaintiff deposited 28,000 through draft as part of 25%

amount Ex PW2/B

2.11.1993 Plaintiff deposited 10,000 through another draft as part of

25% amount PW3/A

21.3.1994 Allotment letter ExPW6/A in favour of Def. vide memo 8/R-

8186/GC/94/4144 whereby allotting plot no.34, sector 70

mohali of 400 Sq.Yds. for a tentative price of Rs.4,80,000.

(Clause. 12 You shall not transfer by way of sale,

mortgage, Gift or otherwise the site of any right,

title or interest therein except by way of lease on

monthly basis save with the permission of the Estate

Officer, till such time as the full price is paid and

building is completed. No fragmentation of the plot or

any structure thereon will be permitted. While according

such permission on the application of the allottee, the

Estate Officer may impose fee/charges as maybe determine

by the Board)

30.3.1994 Plaintiff deposited another 72,000 through draft Ex PW5/B (

Hence 25% payment made till 30.3.1994

{28000+10000+72000+(10000 paid in 1974)}

Plaintiff alleges to have paid rest 75% too. Ex P/8 C-E

11.4.1994 Def. cancelled GPA dated 24.9.1993 by cancelled POA after

 gaining knowledge of the nefarious act of the plaintiff. And

Nirmala Devi Made GPA of Def.

12.4.1994 Abovementioned Cancelled GPA dated 11.4.1994 sent

through letter

12.10.1994 Possession of plot no 34, Sector 70 given to GPA/wife of

def.

15.5.1995 Def. deposited 60,606 through draft for balance 75% of

tentative amount of 4,80,000

12.12.1996 Def. deposited 90,000 through draft for balance 75% of

tentative amount of 4,80,000

5.6.1997 Def. deposited 1,00,000 through draft for balance 75% of

tentative amount of 4,80,000

1.11.1998 Def. deposited 60,000 through draft for balance 75% of

tentative amount of 4,80,000

( No amount paid by plaintiff for 75% balance of tentative

price )

W.S  Agreement against public policy

 Registration number is non transferable – Inalienable

 Agreement without consideration

 POA stands revoked – Obtained by undue influence

 Suit against principal debtor does not lie

 ATS does not bestow title of allotted Land to plaintiff

 No jurisdiction

 Not properly stamped

 Registration

 Nirmal Sharma wife of def appointed GPA deposited

further amount

 Estate officer allotted and gave possession of plot no

 34, sec 70 to Nirmal Sharma on 12.10.94

 GPA itself is revocable

 Def got prepared draft of 1,20,000

LIST OF PLAINTIFF WITNESSES

PW1 Jatinder Anand property dealer

 Puts up a new story that K.S Kang visited him at

mohali and showed his intention to sell the

registration no.( no proof of such offer made or

alleged Photostat copy of registration no. given)

 “ it is correct that I purchased the stamp papers for

the documents reffered above and got the same

typed at mohali.”

PW2 Arjun Singh clerk state bank

 Official witness of SBOP stated about Draft of

rs.28000

PW3 Ved Kumar clerk Indian Overseas Bank( Official witness

stated about the draft made by plainiff)

PW4 Randhir Singh clerk Punjab And Sind bank( Official witness

stated about the draft made by plainiff)

PW5 Kuldeep Singh clerk Punjab And Sind bank( Official witness

stated about the draft made by plainiff)

PW6 Harinder Kaur Senior Assistant State office PUDA Mohali

 Witness from the office of PUDA, testified that

installments were paid by K.S. Kang either through

GPA Sukhraj Soni or Through newly appointed GPA

and also stated that the allotment is still in the name

of the K.S.Kang in official record.

 Stated in cross that on 12.10.1994 possession of the

 plot was given to K.S. Kang.

 No cross regarding payments made by plaintiff after

allotment of plot

PW7 Jagdish Kaur ( No Cross available and nothing in chief too)

PW8 Sukhraj Soni plaintiff himself

 Admits that the GPA and Will has been revoked

 Admits that agreement only for registration no was

done and not plot

PW9 Sajjan Singh Senior clerk PUDDA Mohali (in rebuttal)

 Puts up a letter Ex PX/1 whereby states that plot can

be tranfered subject to payment of Rs1 per sqaure

yard

 In cross says that he is not aware whether plaintiff

has applied for transfer in this sheme

LIST OF DEFENDANT WITNESSES

DW1 Def Kuldeep Singh himself

DW2 T.A Khan Senior Assistant PUDA

LIST OF EXHIBITS

EXP1 Agreement to sell dated 24/9/93

EXP2 Receipt of receiving Rs 10,000

EXPW2/A Voucher regarding purchase of draft

EXPW2/B Voucher regarding purchase of draft

EXPW2/C Voucher regarding purchase of draft

EXP3 Affidavit dated 24.9.93

EXP3/A Affidavit

Ex. PW3/A Original voucher issued by bank

Ex. PW3/A Certificate of the bank

EXP4 General power of Attorney

EXP4/A Stamp paper attached with GPA

EXP4/B Additional Stamp paper attached with GPA

Ex PW4/A Certified copy of the original voucher

Ex.PW4/B Certified copy of the original voucher

EXP5 Will dated 24/9/93

EX PW5/A Voucher regarding the draft

Ex PW5/B Record regarding the draft

EX PW6A Photocopy of Allotment letter

EX PW6/B Letter to estate officer conforming payment of 25%

premium amount

EX PW6/C Application form for deposit of payment of plot

EX PW6/D Option form

EX PW8/A Letter from Estate office to K.S Kang

EX PW8/B Envelop through which letter was received

EX PW8/C Receipt issued by PUDDA

EX PW8/D Receipt issued by PUDDA

EX PW8/E Receipt issued by PUDDA

Ex PX Affidavit(examination in chief) in the court of Mrs. Harinder

Sidhu PCS civil Judge Jr. division Kharar

Ex PX/1 Punjab housing development board letter

Ex PY Application form for the deposit of plot

Ex PY/1 Punjab housing development board slip/ receipt

DEFENDANT EXHIBITS

EXDW1/A Cancellation deed revoking the GPA

EX D2 Affidavit

EXD3 Letter to estate office for not transferring the allotted plot

to Sukhraj Soni

EXD4 Cancellation of power of attorney letter

EXD5 Copy of taking over possession from PUDDA

Ex. D1/I to Receipts regarding payments made by the def to PUDDA

Ex. D1/L

Ex. DW1/M State bank declaration

Ex. DW1/N Central bank declaration

Ex. DW1/O Letter regarding construction of building

24.9.1993 ATS Ex. P/1/A (Pg-64)

Receipt Ex. P/2/A (Back of 64)

Affidavit Ex. P/3/A( Pg- 73)

GPA (Photocopy) Ex. P4 (pg-79)

Stamp P from Jaipur Ex. P4/A (pg-84)

Stamp P from Jaipur Ex. P4/B (pg-87)

Will Ex. P5 (pg-90)

A. Ex P1 to Ex P4 are on stamp papers dated

22.9.1993 purchased at Chandigarh

B. PW1 (pg-137) Jatinder Anand a property dealer

of Mohali says that all documents were got typed

on stamp papers at Mohali.

C. All said documents pre- typed on 22.9.1993 were

got signed at Jaipur from Def.

D. GPA Ex P4 alone is got registered on 24.9.1993

 before registrar Jaipur.

E. It is of great suspicion why the Will Ex P5 was

not got registered.

F. It shows the old man/ defendant was kept in

dark and on the pretext of GPA, other documents

were got signed. Main purpose of GPA is to

pursue the matter with PUDA

G. GPA has no reference of any ATS, Will, Affidavit

etc.

H. In concluding part of GPA hand written addition

is that GPA is revocable, had ATS been there and

entire amount been paid then plaintiff/alleged

agent would not have allowed the principle to

make this addition as he could have pressed the

irrevocable GPA as is permissible under section

202 of the Contract Act.

I. Two stamp papers Ex P4/A and Ex P4/B of GPA

are purchased from Jaipur stamp vendor and

others are from Chandigarh which is again

abnormal act and shows all acts in hurried and

unnatural manner.

J. Will Ex P5 is shown to have been drafted by

some advocate at Jaipur whereas PW1 says that

the documents were got typed at Mohali and that

is why on the back page of the Will as well as on

its first page, blank columns are left, had it been

drafted at Jaipur the said blank columns like ATS

etc would not have been

 ATS has following serious infirmities:-

a) Its subject matter was not in existence

b) No plot no is mentioned

c) Nor any plot by that time was allotted

d) It is vague with regard to its subject

e) What was sold was not property being

only registration number and was not

capable of transfer and is hit by section 6

(a) of TPA and section 30 of contract act

f) It is not a valid contract u/s 10 of the

contract act

g) It was not result of free consent as PW1

himself says that there was no hope of

allotment and thus consent hit by section

17 and 18 r/w section 14 and 10 of the

contract act

h)