sale deed cancellation
Querist :
Anonymous
(Querist) 06 November 2009
This query is : Resolved
I filed a suit for specific performance against agreement to sell dated 27.06.87. Ex-party decree was past with direction to deposit remaining sale consideration of Rs. 95000/- with in 30 days. Suit for execution of sale deed was filed on 04-01-91, after notice and publication commissioner was pointed to registered sale deed which was registered on 06-09-91. Ex party decree was set aside on 12-11-94 and application for setting aside the ex-parte decree was given on 15/05/92. In which no prayer for cancellation of sale deed. Due to which sale deed till date is not cancelled by the civil court.Possesion is of land is still with me.
On the other hand after setting aside the ex party decree the case was re-trialed and i lost upto SPL in the apex court.
Now question arises that my sale deed is registered document and having legal value which has not been cancelled by any civil court so far. According to apex court judgment sale deed is a registered document and required to be cancelled by the civil court through declaration within the periods of three years as per limitation act 1963 article 59 and 113.
But on the other side opposite party claims that after the setting aside the exparty decree, the sale deed automatically become invalid or void. Please clarify,” that can a registered document become invalid automatically”?
On 15-05-1992 when the application for setting aside was submitted – the relief for -taking possession---cancellation of sale deed ---and setting aside ex-party decree were available, but he sought only setting aside ex-party as court fees was involved in other reliefs. Can the remaining relief are barred under ORDER 2 RULE 2 CPC and limitation and can not claim at this point of time.
Raj Kumar Makkad
(Expert) 06 November 2009
It is very typical case. Can you provide the details of the judgment passed in the civil court and lastly affirmed in the SLP?
Has any of the parties to the dispute not mentioned anything about the registration of sale deed and has any of the courts passed any comments over this issue?
If something has been discussed about registration of sale-deed through court in favour of the buyer then the discussion is very important in your case. Plz let me know that portion fo discussion without which no definite answer to your quarry can be given. I am waiting for your reply and reserve my reply till then.
niranjan
(Expert) 06 November 2009
This is surely interesting The sale deed was executed by the court commissioner on 6.9.91 and the applicatioon for setting
aside exparte decree was filed on 15.5.92.
Was this fact brought to the notice of the court?
Querist :
Anonymous
(Querist) 07 November 2009
Thanks to all Experts for attending my query regarding sale deed
Finding of the Court of Shri N.S. Saini, P.C.S., Senior Sub Judge, Kapurthala.
2. This un-challenged evidence is sufficient to establish the claim of the plaintiff as a result of which his suit stands decreed ex-parte with costs for specific performance of the agreement to sell dated 27-6-88 on payment of balance sale consideration of Rs. 95,000/- which be deposited in the court within thirty days failing which the suit shall stands dismissed. Decree sheet be prepared. File be consigned
Sd/- Senior Sub Judge,
Announced 27-11-90 Kapurthala.
------------0000--------
(ii) Finding of the court of Shri Gurnam Singh,PCS, Civil Judge(Sr Division), Kapurthala. Decided on 24.12.1996
Relief:
In view of my findings on the above issues, the suit of the plaintiff is decreed for the recovery of Rs. 20,000/- with proportionate costs. It is further stated that the plaintiff is entitled to interest at the rate of 12% per annum from the date of filing of the suit till date of decision and he is entitled to future interest at the rate of 6% per annum from the date of decree till realization of the decretal amount. Decree sheet be prepared. File be conigned.
Pronounced: 24.12.1996 Sd/- Civil Judge (Sr. Division) Kapurthala.
--------
(iii) Finding of the Court of Sardar JORA SINGH,
Additional District Judge, KAPURTHALA
While discussing issue No.1 trial court held that agreement to sell Ex p-1 was tampered with. Once the agreement to sell was tampered with, then the court was not justified to decree suit for the recovery of Rs. 20,000/- with proportionate costs with interest.
Decree for recovery of earnest money with interest should have been passed if the trial court would have opined that agreement to sell was not tampered with. In fact due to some unavoidable circumstances, a agreement to sell cannot be enforced or the willing purchaser was ready and willing to purchase the property, but the owner was not ready to execute sale deed. When the agreement to sell was tampered with and no allegation of the willing purchaser that the owner was not ready and willing to execute sale deed, then alternative relief is not to be given qua recovery of earnest money with interest, Finding of issue No.1 is affirmed, but finding on issues No.2 and 3 is reversed.
The learned counsel for the parties did not as sail the finding of the lower court on issues No.5 and 6.
No other contention was put forward. In view of all discussed above judgment and decree of the trial court suffers from infirmity and illegality and the same is set aside. Appeal No.27 of 5-2-97 filed by Joginder Pal is accepted with costs. Decree sheet be prepared. Record of trial court be returned. Appeal files be consigned to record room.
Pronounced in open court on 9-12-2002
Sd/-
Addl. District Judge,
Kapurthala.
------oooo------
(iv) In the High of Punjab and Haryana at Chandigarh R.S.A. No. 1595 and 1596 of 2003. Date of Decision: 21.7.2006.
Coram: Hon’able Mr. Justice S. N. Aggarwal
FINDING OF HIGH COURT
Copy of agreement of sale proved by the respondent as Exhibit D-3 clearly shows that the date stipulated for the execution of sale deed was 15.2.1989. The respondent has also proved on the file letter written by the appellant to the respondent as Exhibit D-4. In this letter daed 28.11.1988, the appellant had specifically written to the respondent that he would arrange money and would succeed in getting the sale deed registered in January, 1989. Exhibit D-4, therefore, clearly reveals that the date of execution of sale deed was near to January, 1989 when the appellant promised to get the sale deed executed in January, 1989. This therefore, shows, that the date stipulated for the execution of sale deed was 15.2.1989 and not 15.12.1989. A perusal of document Exhibit D-1
and photo copy of agreement Exhibit D-3 clearly reveal that figure one has been interpolated later on before the figure of month. Moreover, the reasoning given by the document expert of the respondent is more believable. Both the Court below have also recorded finding of fact that the agreement of sale dated 27.6.1989 has been tampered with so as to change the date from 15.2.1989 to 15.12.1989 on or which before the sale was to be executed. No material has been brought to my notice to disturb the said finding of fact recorded by both the Courts below. It is therefore, held that 15.2.1989 was the date by which the sale deed was
- 4 -
to be executed. It is not the case of the appellant if he was ready and willing to perform his part of the contract by 15.2.1989 or if he had gone to the office of Sub Registrar for getting the sale deed executed on 15.2.1989.
Moreover, since the appellant had tampered with the document so as to effectuate a material change, therefore, he has not come to the court with clean hands and is not entitled to any of the reliefs claimed for. Therefore, the judgment of the learned Lower Appellate Court does not suffer from any illegality or infirmity and there is no ground to interfere with the said judgment. Accordingly, both the appeals are dismissed with costs which are quantified as Rs. 5000/- each. July 21, 2006 Sd/- S.N. Aggarwal, Judge SUPREME COURT OF INDIA
Special Leave Petition (C) Nos. 18504 and 18568 of 2006
Heard learned counsel for the parties :--
We do not find any ground to interfere with the impugned order. The special leave petitions are, accordingly, dismissed.
Sd/- Sd/-
(T.I. Rajput) (Radha R. Bhatia) A.R._cum-P.S. Court Master
(Signed order is placed on the file)
Dated 10-03-2008
It is evident from above that no Civil Court has discussed about the registration of sale deed in spite of the facts that my advocate repeatedly argued regarding the registration of sale, reasons best known to the Hon’ble Courts. Though the case was re-trialed on the same file.
-----oooo--------
However, simultaneously the Revenue Courts discussed about the registration of sale deed and held different views. Copies of their orders are also appended below for your kind information and necessary action please.
(i) It is further submitted that the appellant had also filed suit in the year 1997 against respondent for ejectment and claim of rent before Id. SDM- Cum- AC 1st Grade, Bholath, but the same was dismissed vide order dated 31.03.1999, holding that :-
(a) the appellant is not recorded owner of the . suit land.
(b) the appellant had given possession of . land to respondent as owner from . 27.6.1988 as part performance of . agreement.
(c) the suit of the appellant was not fit for . trial in this Court.
(ii) The appeal of the appellant against above orders was also dismissed by the then Dist. Collector, Kapurthala, vide order dated 06.02.2001 with the following observations:
a) the Hon’ble Court had already registered the Sale Deed of the suit land in favors of respondent, as such no action can be taken against them.
(iii) The second appeal of the appellant before Commissioner, Jalandhar was also dismissed vide order dated 30.1.2001 on similar grounds.
(iv) Again on 18.01.2006, the appellant moved an application before the Assistant Collector 2nd Grade, Bholath, through A.D.C., Kapurthala, for the change of mutation of the said land in the revenue record, but the same was also turned down on the ground that the Sale deed had already been executed
on 6.9.1991 by the Civil Court in favors of respondent, as such
no action can be taken on his application. Copy of the notice no.1441 dated 24.01.2006 issued to me in this regard is enclosed herewith ready reference.
niranjan
(Expert) 07 November 2009
Accoording to me the decree granting specific performance was set aside and when the suit was retried and suit was dismissed, the parties automatically relegated to the original position and the deft can file an application under secl44 for restoration, in that case the money will come back to you and you will have to handover the possession.
Querist :
Anonymous
(Querist) 08 November 2009
Defendant has not filed any application under section-44 for restoration so for, though 15 years have been gone after the setting aside the ex-parte decree i.e. 9.12.1994.now following 2 questions arises ,kindly clarify.
(i)will the limitations act 1963 will not apply ,if now defendant moves applications for restoration u/s 44.
(ii)will the ORDER 2 RULE 2 CPC will not apply in this case as he has claim relief only setting aside ex-party decree only in his application dated 15-5-92 whereas three reliefs were available to defendant under the cause of action that is taking possession , cancellation of sale deed ,and setting aside ex party decree .
Querist :
Anonymous
(Querist) 13 November 2009
Kind attention to respected Expert Shri Raj Kumar ji,------- Sir, Inspite of my clarification date 7th and 8th Nov'09 on the subject noted above, the reply to my querry remained un-attended till date and I am eagerly waiting your valueable suggestions. Please expidte. I knew my case is not so simple as it looks, it needs through knowledge of Laws, Acts and Sections. Please helh me
