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NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11070 OF 2018 [Arising out of SLP (C) No. 22667 of 2016]

Rakesh Malhotra .. Appellant

Versus

Kamaljit Singh Sandhu & Ors. .. Respondents

J U D G M E N T

M. R. Shah, J.

1. Leave granted.

2. Feeling  aggrieved  and  dissatisfied  with  the  impugned  judgment  and

order dated 29.2.2016 passed in R.S.A. No. 4015 of 2011 by the High Court of

Punjab and Haryana at Chandigarh, by which the High Court has allowed the

said appeal preferred by the original defendant Nos. 2 and 3 by setting aside

the  judgment  and  order  dated  10.8.2011  passed  by  the  Additional  District

Judge,  Gurgaon  and,  consequently,  has  dismissed  the  suit  preferred  by  the

appellant herein (original plaintiff).   The original plaintiff (appellant herein)

has preferred the present appeal.

3. The facts leading to this appeal in nutshell are as follows:

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That  the  appellant  herein  (hereinafter  referred  to  as  ‘the original  plaintiff’)

instituted Civil Suit No. 159 of 2004 against the respondents herein (original

defendants)  seeking  a  declaration  that  the  plaintiff  is  the  owner  and  in

possession of the suit property – Plot No. 336 (old) 548 (new), measuring 420

square meters  at  Block B in the residential  colony known as Sushant  Lok,

Guugaon.    It  was  also  prayed  to  declare  the  sale  deed  dated  28.1.2002

executed in favour of the original defendant nos. 2 and 3 by original defendant

no. 1 as illegal, null and void.  In the alternate, it was also prayed for decree of

possession of the suit property by directing the original defendant no. 1 to get

the sale deed executed and registered in favour of the plaintiff in respect of the

suit property, with consequential relief of permanent injunction restraining the

original defendant nos. 2 and 3 from further selling/alienating/transferring the

suit  property in question to anyone else, except the plaintiff, in any manner

whatsoever.

3.1 It was the case on behalf of the original plaintiff that the suit property

was booked by the original defendant no. 1 with the developers - M/s Ansal

Properties  and  Industries  Pvt.  Ltd.  (hereinafter  referred  to  as  ‘M/s  Ansal

Properties’)   However, by an Agreement to Sell dated 20.4.1987 executed by

the  original  defendant  no.  1  being  the  original  allottee  from  M/s  Ansal

Properties in favour of the plaintiff, original defendant no. 1 sold/agreed to sell

the suit property in favour of the plaintiff.    It was the case on behalf of the

original plaintiff that at the time of execution of the said written agreement

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dated 20.4.1987,  the plaintiff  paid the sale  consideration.   However,  it  was

agreed  to  execute  the  sale  deed  as  and  when  the  developers  M/s  Ansal

Properties fulfills its obligation and complete the formalities.   It was further

the case on behalf  of  the original  plaintiff  that  simultaneously one General

Power of Attorney was also executed in favour of the plaintiff by the original

defendant no. 1 empowering the plaintiff to get the transfer in his favour as and

when the plaintiff  will  deposit  all  installments of  M/s Ansal  Properties and

desires to get transferred the suit  property in his favour or in favour of his

nominee.    It  was  also  the  case  on behalf  of  the original  plaintiff  that  the

plaintiff was also put in possession.  It was also the case of the original plaintiff

that thereafter the plaintiff  paid the stamp duty.   It  was further the case on

behalf of the original plaintiff that, despite the above fact, when the developers

M/s Ansal Properties allotted the plot in question and executed the title deed in

favour of  original  defendant  no.  1 (being the original  allottee),  the original

defendant no. 1 did not transfer the plot in question in his name and, in fact,

illegally transferred the suit property in favour of defendant nos. 2 and 3 on a

meagre  amount  of  sale  consideration  by  executing  the  sale  deed  dated

28.1.2002.   With the above averments and prayers, the plaintiff instituted the

aforesaid  suit  in  the  Court  of  the  learned  Additional  Civil  Judge  (Senior

Division), Gurgaon.

3.2 The suit was resisted to by the original defendant nos. 2 and 3 by filing

the written statement.   It was the case of original defendant nos. 2 & 3 that

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they are the bona fide purchasers of the suit property for consideration.   It was

also the case on behalf of the original defendant nos. 2 and 3 that the suit filed

by the plaintiff seeking a decree of possession and permanent injunction shall

not  be  maintainable  unless  there  is  a  prayer  for  decree  for  specific

performance.  It was the case on behalf of defendant nos. 2 and 3 that unless

the plaintiff renounces the plea of his title, he cannot seek decree of specific

performance.    It was further the case on behalf of defendant nos. 2 and 3 that

the suit is collusive between the plaintiff and original defendant no. 1.  It was

further case on behalf of the defendant nos. 2 and 3 that the suit is not within

the limitation.  That, thereafter, original defendant nos. 2 and 3 also filed the

written statement denying the allegations and averments in the plaint.   

3.3 It appears that, thereafter, the original plaintiff submitted an application

to  amend  the  plaint  by  seeking  the  prayer  of  specific  performance  of  the

agreement to sell  dated 20.4.1987 submitted under Section 6 Rule 17 CPC.

However, the same came to be dismissed by the learned trial Court and attained

the finality.   

3.4 On the basis of the averments in the plaint and the written statement, the

learned trial Court framed the following issues:

“1. Whether the plaintiff is owner in possession of the suit property? 2. Whether  the  sale  deed  dated  28.1.2002  executed  by defendant no. 1 in favour of defendant no. 2 and 3 is illegal, null and void on the ground alleged in plaint?

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3. Whether the plaintiff is entitled to decree for possession in  the  alternative  with  consequential  relief  of  permanent injunction as prayed for? 4. Whether the suit is within limitation? 4A. Whether  the  defendant  no.  2  and  3  are  bonafide purchasers as alleged? 5. Whether  the  plaintiff  has  no  locus-standi  to  file  the present suit? 6. Whether  the  suit  has  not  been properly valued for  the purpose of jurisdiction of court fee?”   

3.5 Thereafter, both the parties adduced the evidence, both oral as well as the

documentary.  That, thereafter, on appreciation of evidence and considering the

submissions made on behalf  of  the respective parties,  by the judgment and

decree dated 19.10.2010 the learned trial Court partly decreed the suit in favour

of the original plaintiff.  The learned trial Court passed the decree for recovery

of Rs.2,46,645.50 with 9% interest throughout its realization.   That the learned

trial Court passed the aforesaid decree dated 19.10.2010 in favour of defendant

no. 1 only.  The suit and other reliefs came to be dismissed by the learned trial

Court.

4. Feeling aggrieved and dissatisfied with the judgment and decree dated

19.10.2010 passed by the learned trial Court in Civil Suit No. 159 of 2004, the

original  plaintiff  preferred  Civil  Appeal  No.  109  of  2010  in  the  Court  of

learned District Judge, Gurgaon.

4.1 That the first Appellate Court allowed the said appeal by quashing and

setting aside the judgment and decree passed by the learned trial Court and,

consequently, decreed the suit by holding that the original plaintiff is entitled to

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decree of declaration to the effect that the sale deed dated 28.1.2002 executed

by the original defendant no. 1 in favour of original defendant nos. 2 and 3 is

illegal,  null  and void  and that  the  original  plaintiff  is  entitled to  decree of

specific performance of agreement to sell to execute the sale deed as per the

agreement to sell dated 20.4.1987.

4.2 Feeling aggrieved and dissatisfied with the judgment and order of the

learned first Appellate Court setting aside the order of the learned trial Court,

original defendant nos. 2 and 3 preferred R.S.A. No. 4015 of 2011 before the

High Court.   By the impugned judgment and order dated 29.2.2016, the High

Court has allowed the said appeal and consequently set aside the judgment and

decree of the first Appellate Court and dismissing the suit qua other reliefs and

has restored the judgment and decree passed by the learned trial Court.   

4.3 Feeling  aggrieved  and  dissatisfied  with  the  impugned  judgment  and

order of the High Court, the original plaintiff has preferred the present appeal.

5. Heard Mr. Shyam Divan, learned senior counsel appearing on behalf of

the appellant and Mr. Dhruv Mehta, learned senior counsel appearing on behalf

of the respondents at length.

5.1 Learned counsel appearing on behalf of the appellant herein vehemently

submitted that, in the facts and circumstances of the case, the High Court has

committed  a  grave  error  in  quashing  and  setting  aside  a  well  reasoned

judgment  passed  by  the  first  Appellate  Court  and,  that  too,  in  the  second

appeal.   It  is  further  submitted  that,  as  such,  the  plaintiff  paid  the  entire

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consideration at the time of execution of the agreement/agreement to sell dated

20.4.1987 and, even thereafter, the entire stamp duty was paid by the plaintiff

and,  therefore,  as  such,  nothing  further  was  pending  to  be  done,  except

executing the deed in favour of the original plaintiff by original defendant no.

1.  It is submitted that even the plaintiff was also put in possession at the time

of execution of the agreement to sell dated 20.4.1987 and the General Power of

Attorney by original defendant no. 1 in favour of the original plaintiff.  It is

submitted that, therefore, the sale was complete in favour of the plaintiff and,

hence, the learned trial Court ought to have decreed the suit in toto and the

learned first Appellate Court, therefore, rightly decreed the suit, which ought

not to have been quashed and set aside by the High Court.

5.2 It is vehemently submitted by the learned counsel appearing on behalf of

the  appellant  herein  that  the  aforesaid  vital/material  aspects  have  not  been

considered  in  true  spirit  by  the  High  Court  and  that  the  High  Court  has

materially erred in quashing and setting aside a well reasoned judgment and

order passed by the first Appellate Court.

5.3 It  is  further  submitted  that  the  High  Court  has  materially  erred  in

quashing and setting aside the judgment and order passed by the first Appellate

Court on the ground that there was no prayer for specific performance of the

agreement to sell dated 20.4.1987 and, therefore, the plaintiff was not entitled

to any decree for specific performance which was granted by the learned first

Appellate Court.  It is submitted that, as such, there were necessary averments

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in the plaint and even the reliefs sought in the plaint can be said to be the relief

for specific performance and even the issue no. 3 would cover the relief with

respect to specific performance.  It is submitted that, therefore, the High Court

has committed a grave error in quashing and setting aside the order passed by

the first Appellate Court and, consequently, dismissing the suit.

5.4 It is further submitted by the learned counsel for the appellant that the

High Court has not properly appreciated the facts that not only the substantial

amount was paid at the time of execution of the agreement/agreement to sell

dated  20.4.1987,  even  the  subsequent  installments  were  also  paid  by  the

plaintiff and all the notices of demand of installments and other expenses were

directly between the plaintiff and the developer M/s Ansal Properties and that

the plaintiff paid the entire installments up to 20.4.1990.

5.5 It is further submitted that the High Court has not properly appreciated

the fact that after the title deed/sale deed was executed by the developers M/s

Ansal Properties in favour of defendant no. 1 by the sale deed dated 31.3.1994,

the original defendant no. 1 assured the plaintiff that he will get the sale deed

executed in his favour.  However, subsequently, the original defendant no. 1

did not execute the sale deed in favour of the original plaintiff  and, on the

contrary,  superciliously  sold  the  suit  property  in  favour  of  the  original

defendant nos. 2 and 3 and, therefore, the plaintiff was constrained to file the

suit.   It  is  submitted  that,  therefore,  the  sale  deed  executed  by  original

defendant no. 1 in favour of defendant nos. 2 and 3 was illegal, null and void

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and, therefore, the same was rightly declared to be illegal, null and void  ab

initio by the first Appellate Court.   

5.6 By making the above submissions, it is requested to allow the present

appeal and quash the impugned judgment and order passed by the High Court

and  consequently  restoring  the  judgment  and  order  passed  by  the  first

Appellate Court and to decree the suit.

6. The present appeal has been vehemently opposed by the learned counsel

appearing for the original defendant nos. 2 and 3.  It is vehemently submitted

on behalf of the original defendant nos. 2 and 3 that the High Court has rightly

allowed the appeal preferred by the original defendant nos. 2 and 3 and rightly

quashed  and  set  aside  the  judgment  and  order  passed  by  the  learned  first

Appellate Court granting relief for specific performance of agreement to sell

dated 20.4.1987.  It is submitted that in absence of any specific prayer in the

plaint/suit asking the decree of specific performance of Agreement to Sell, as

rightly observed by the High Court, the first Appellate Court was not justified

in  granting  the  relief  of  specific  performance  of  agreement  to  sell  dated

20.4.1987.

6.1 It is further submitted on behalf of the defendant nos. 2 and 3 that, even

otherwise, the suit was barred by limitation. It is submitted that the original

plaintiff  claimed  the  reliefs  on  the  basis  of  the  agreement  to  sell  dated

20.4.1987,  however,  the  suit  was  instituted  in  the  year  2004.   It  is  further

submitted that even the title deed/sale deed in favour of defendant no. 1 by the

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developers M/s Ansal Properties was executed in the year 1994 and that the

original plaintiff was in knowledge of the same since the year 1994, still he

instituted the suit in the year 2004 only, i.e. after a period of 10 years.   It is

submitted that, in the meantime, the original plaintiff did nothing to get the sale

deed executed in his favour and/or in favour of his nominee.  It is submitted

that thereafter even the sale deed in favour of original defendant nos. 2 and 3

was executed by the original defendant no. 1 in the year 2002, which was a

registered sale deed with value and on payment of full sale consideration and

the original plaintiff instituted the suit in the year 2004 only. It is submitted

that, therefore, on consideration of evidence and in the circumstances of the

case, the High Court has rightly interfered with the judgment and order passed

by the first Appellate Court and, consequently, has rightly dismissed the suit.

6.2 Learned  counsel  appearing  on  behalf  of  defendant  nos.  2  and  3  has

submitted that, in the facts and circumstances of the case, and to buy the peace

and to put an end to the entire litigation, they are even ready and willing to pay

Rs.10,00,000/- to the original plaintiff  as ex-gratia,  which may be over and

above the decreetal to be paid by the original defendant no. 1 pursuant to the

judgment and decree passed by the learned trial Court.

7. Heard the learned counsel for both the parties at length and perused the

judgment and decree passed by the learned trial Court and the judgment and

orders passed by the Courts below.   

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7.1 At  the  outset,  it  is  required  to  be  noted  that  in  the  suit  the  original

plaintiff  sought  the relief  of  declaration and permanent  injunction only and

there was no specific prayer of specific performance of the agreement to sell

dated 20.4.1987.     It is also required to be noted that even the original plaintiff

submitted the application under Order 6 Rule 17 CPC to amend the plaint by

seeking  relief  of  specific  performance  of  the  agreement  to  sell   dated

20.4.1987.  However, the same came to be dismissed and the same has attained

the finality.  Even there was no specific issue framed by the learned trial Court

for specific performance with respect to the agreement to sell dated 20.4.1987.

Nothing is on record that, at any point of time, the original plaintiff made any

grievance with respect to the non-framing of the issue with respect to specific

performance of the agreement to sell  dated 20.4.1987.  Even no effort  was

made before the learned trial Court to re-frame the issue.  Therefore, as such,

there was no specific prayer for specific performance of the agreement to sell

dated 20.4.1987.  Despite the above, the first Appellate Court granted relief of

specific performance of he agreement to sell dated 20.4.1987 for which there

was no prayer  in  the  plaint.     Therefore,  the High Court  was  justified  in

reversing the judgment and order passed by the first Appellate Court granting

relief for specific performance of the agreement to sell dated 20.4.1987.

7.2 Even the High Court is justified in not granting the other reliefs prayed

in the suit, namely, the declaration that the original plaintiff is the owner and in

possession of the suit property and even the suit for permanent injunction.   It

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is also required to be noted that the original plaintiff claimed reliefs on the

basis  of  the  agreement  to  sell  dated  20.4.1987  and  the  general  power  of

attorney executed in the year 1987.  The agreement dated 20.4.1987 is rightly

considered to be the agreement to sell only.   The case on behalf of the original

plaintiff that the agreement to sell dated 20.4.1987 was a complete sale and it

was  a  sale  deed  cannot  be  accepted  for  the  simple  reason  that  the  said

agreement/agreement to sell dated 20.4.1987 was not a registered one and even

the same was not on the proper stamp duty and, therefore, as such, the same is

not  admitted in  evidence  and the  same can be  used only for  the  collateral

purpose.    Therefore,  the  agreement  to  sell  dated  20.4.1987  is  rightly

considered to be the agreement to sell only.   Even considering the submissions

made by the  learned counsel  appearing on behalf  of  the plaintiff  and even

considering the averments made in the agreement to sell dated 20.4.1987, the

same can be said to be an agreement to sell only, as even the title deed/sale

deed in favour of the original defendant no. 1 was executed in the year 1994.

Therefore,  both  the  learned  trial  Court  and  the  High Court  are  justified  in

refusing to grant of declaration as sought in the plaint.   

7.3 Even otherwise, the plaintiff is not entitled to the reliefs sought in the

plaint even on the ground of limitation also.   It is required to be noted that the

agreement/agreement to sell and the general power of attorney were executed

in the year 1987, on the basis of which the plaintiff had sought for the reliefs in

the year 2004.   Even, according to the plaintiff also, the title deed/sale deed in

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favour of the original defendant no.1 executed by the developers M/s Ansal

Properties was in the year 1994.   Considering the evidence on record and even

considering the case on behalf of the plaintiff, it appears that throughout the

plaintiff was aware of the execution of the title deed/sale deed in favour of the

original  defendant  no.  1  executed  in  the  year  1994,  still  the  suit  has  been

instituted in the year 2004 only, i.e. after a period of 10 years.  Nothing is on

record that any steps were taken by the original plaintiff to get the sale deed

executed in his favour and/or in favour of his nominee.  Therefore, the suit has

been  instituted  after  a  period  of  17  years  after  the  execution  of  the

agreement/agreement to sell  dated 20.4.1987 and after a period of  10 years

from the date of the title deed/sale deed in favour of the original defendant no.

1.     Considering the aforementioned facts and circumstances of the case, the

plaintiff is not entitled such reliefs, except of decree of recovery of amount

paid to the original defendant no. 1.    

7.4 In the aforesaid facts and circumstances of the case, we are in complete

agreement with the view taken by the learned trial Court  as well as that of the

High  Court,  in  not  granting  the  other  reliefs  and  granting  the  decree  of

recovery of the amount paid by the original plaintiff to the original defendant

no. 1 only.     In view of the reasons stated above, we see no reason to interfere

with the judgment and order passed by the High Court and, consequently, the

present appeal deserves to be dismissed and is accordingly dismissed.

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8. However, as agreed, the original defendant nos. 2 and 3 are directed to

pay a sum of Rs.10,00,000/- to the original plaintiff ex-gratia, which they have

agreed to pay to put an end to the litigation and to buy a peace, to be paid to the

original plaintiff within a period of six weeks from today.   On payment of the

aforesaid  amount  of  Rs.10,00,000/-  to  the  original  plaintiff  by  original

defendant nos. 2 and 3, any proceedings pending between the parties, if any,

shall stand terminated.

9. With the above observations and directions,  the present  appeal  stands

dismissed, however, with no costs.   I.A., if any, stands disposed of.

………………………………..J. (UDAY UMESH LALIT)

………………………………..J. (M. R. SHAH)

New Delhi, November 16, 2018