when the sale agreement was not proved – he has no locus standi to file this case – the appellant had no title to the suit land. All that he had claimed to possess in relation to the suit land was an agreement dated 24.04.1980 to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as mentioned above, failed to prove the agreement. In this view of the matter, the appellant had no prima facie case in his favour to file a suit nor he had even any locus to file the suit in relation to the suit land once the agreement was held not proved. The suit was, however, filed by the appellant almost after 12 years from the date of agreement and that too it was for declaration and mandatory injunction but not for specific performance of agreement. It was, in our opinion, a misconceived suit and was, therefore, rightly dismissed. Third, the suit was otherwise hopelessly barred by limitation because, as mentioned above, the date of agreement is 24.04.1980 whereas the suit was filed on 10.10.1992. ; Even the Will was rightly held not proved by the Courts below and we are inclined to uphold the finding on this issue too. Indeed when the deceased has two sons and one daughter (respondent Nos.1-3), why should he execute a Will in appellant’s favour, who was not related to him.

 

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4383 OF 2009
Suresh Kumar through GPA ….Appellant(s)
VERSUS
Anil Kakaria & Ors. .…Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the plaintiff against the
judgment and order dated 02.05.2006 passed by the
High Court of Punjab and Haryana at Chandigarh in
R.S.A. No. 1522 of 2006 whereby the High Court
dismissed the second appeal filed by the appellant herein
and affirmed the judgment and decree dated 21.10.2005
passed by the Additional District Judge, Panchkula in
C.A. No.20 of 2005.
2) The appellant is the plaintiff whereas the
respondents are the defendants in the civil suit out of
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which this appeal arises.
3) The dispute in this appeal relates to plot No.28,
measuring 1/4th acre in Industrial Area Phase-I Urban
Estate, Panchkula(hereinafter referred to as “the suit
land”).
4) Haryana Urban Development Authority (hereinafter
referred to as “HUDA”) had allotted the suit land to one
Shri Ved Prakash Kakaria in the year 1973. Thereafter
Shri Ved Prakash Kakaria, on 24.04.1980, entered into
an agreement with the appellant to sell the suit land to
him on certain terms and conditions.
5) On 05.02.1985, Shri Ved Prakash Kakaria expired,
leaving behind two sons and one daughter (respondent
Nos.1 to 3) as his legal heirs. Respondent Nos.1 to 3
however, sold the suit land to respondent No.4.
6) On 10.10.1992, the appellant filed a suit against the
respondents for a declaration that the transfer made by
respondent Nos.1 to 3 in favour of respondent No.4 is
null and void and not binding on the appellant, that the
respondents be restrained from interfering in appellant’s
possession over the suit land as he claimed to be in
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possession of the suit land, and lastly, for issuance of
mandatory injunction against respondent Nos.1 to 3
directing them to transfer the suit land in favour of
appellant.
7) The suit was essentially based on an agreement
dated 24.04.1980 and the Will alleged to have been
executed by late Shri Ved Prakash Kakaria in his favour
for claiming the aforementioned reliefs against the
respondents.
8) The respondents filed their respective written
statements and denied the plaintiff’s claim. The
respondents denied the agreement dated 24.04.1980 and
also denied the execution of alleged Will said to have
been executed by Ved Prakash Kakaria in favour of the
plaintiff. The respondents defended the sale of the suit
land made by respondent Nos.1 to 3 in favour of
respondent No.4 for valuable consideration and
contended that respondent No.4 was put in its actual
possession and has also set up their factory over the suit
land and running the same.
9) The Trial Court framed the issues and the parties
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adduced their evidence. The Trial Court, by its judgment
and decree dated 22.01.2005, dismissed the suit. It was
held that the appellant (plaintiff) failed to prove the
agreement dated 24.04.1980, that the Will was also not
proved, that respondent Nos.1 to 3 being the owner of the
suit land rightly sold the suit land to respondent No. 4
for consideration, and lastly, that respondent No.4 was in
possession of the suit land and has set up their factory
over the suit land.
10) Felt aggrieved, the appellant filed first appeal before
the Additional District Judge, Panchkula. By
judgment/decree dated 21.10.2005, the First Appellate
Court dismissed the appeal and upheld the
judgment/decree of the Trial Court. Felt aggrieved, the
appellant pursued the matter in second appeal before the
High Court. The High Court, by impugned judgment,
dismissed the second appeal holding that the concurrent
findings of two Courts below are binding on the High
Court and that the appeal does not involve any
substantial question of law under Section 100 of Code of
Civil Procedure. It is against this judgment of the High
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Court, the appellant (plaintiff) felt aggrieved and filed this
appeal by special leave before this Court.
11) Heard Mr. Jaideep Gupta, learned senior counsel
for the appellant and Mr. Sanjay Kumar Visen, learned
counsel for the respondents.
12) Having heard the learned counsel for the parties
and on perusal of the record of the case including written
submissions, we find no merit in the appeal.
13) In our considered view, the three Courts below have
rightly rendered the aforementioned findings in favour of
the respondents and we find no difficulty in concurring
with the findings which, in our view, do not call for any
interference by this Court.
14) In our considered opinion, the findings recorded by
the three Courts on facts, which are based on
appreciation of evidence undertaken by the three Courts,
are essentially in the nature of concurrent findings of fact
and, therefore, such findings are binding on this Court.
Indeed, such findings were equally binding on the High
Court while hearing the second appeal and it was rightly
held by the High Court also.
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15) It is more so when these findings were neither found
to be perverse to the extent that no judicial person could
ever record such findings nor these findings were found
to be against the evidence, nor against the pleadings and
lastly, nor against any provision of law.
16) Even apart from what is held above, we are of the
considered opinion that the appellant’s suit is wholly
misconceived and was, therefore, rightly dismissed by the
three Courts below. We concur with the reasoning of the
Courts below and also add the following three reasons in
addition to what is held by the Courts below.
17) In the first place, the appellant had no title to the
suit land. All that he had claimed to possess in relation
to the suit land was an agreement dated 24.04.1980 to
purchase the suit land from its owner (Shri Ved Prakash
Kakaria). The appellant, as mentioned above, failed to
prove the agreement. In this view of the matter, the
appellant had no prima facie case in his favour to file a
suit nor he had even any locus to file the suit in relation
to the suit land once the agreement was held not proved.
18) Second, the proper remedy of the appellant in this
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case was to file a civil suit against respondent Nos.1 to 3
to claim specific performance of the agreement in
question in relation to the suit land and such suit should
have been filed immediately after execution of agreement
in the year 1980 or/and within three years from the date
of execution. It was, however, not done. The suit was,
however, filed by the appellant almost after 12 years from
the date of agreement and that too it was for declaration
and mandatory injunction but not for specific
performance of agreement. It was, in our opinion, a
misconceived suit and was, therefore, rightly dismissed.
19) Third, the suit was otherwise hopelessly barred by
limitation because, as mentioned above, the date of
agreement is 24.04.1980 whereas the suit was filed on
10.10.1992. There is nothing to show that the agreement
was to be kept alive for such a long time. It is apart from
the fact that the alleged agreement itself was not held
proved and, therefore, no suit for claiming any relief in
relation to the suit land could be filed by the appellant.
Even the Will was rightly held not proved by the Courts
below and we are inclined to uphold the finding on this
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issue too. Indeed when the deceased has two sons and
one daughter (respondent Nos.1-3), why should he
execute a Will in appellant’s favour, who was not related
to him.
20) We are, therefore, of the view that keeping in view
the concurrent findings of three Courts below, which
were rendered against the appellant (plaintiff) coupled
with our three reasonings mentioned supra, the appeal
has no merit.
21) In view of foregoing discussion, we find no merit in
this appeal. The appeal thus fails and is accordingly
dismissed.

……………………………………..J.
[R.K. AGRAWAL]

 

……………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 06, 2017
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