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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURSIDCITON

CIVIL APPEAL NO.6303 OF 2012

BAXIS SINGH  … APPELLANT  

VERSUS

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

J U D G M E N T

S.ABDUL NAZEER, J.

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

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

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

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

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

2. Baxis Singh (the appellant  herein),  was the plaintiff  in the suit,  Sukhdev

Singh (dead) through LRs. (the first respondent herein) was the second defendant

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

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

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

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

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

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

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

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

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

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

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

favour but the defendant refused to execute the sale deed.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

refund the amount received by her under the aforesaid agreement.

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

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

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

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

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

27.5.1996 is concerned.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

parties.  

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

to costs.       

                 ……………………………J.

  (N.V. RAMANA)

       ……………………………J.    (S. ABDUL NAZEER)

New Delhi; April 10, 2018.