2025:HHC:28083 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 242 of 2015 Reserved on: 11.08.2025 Decided on: 19.08.2025. ------------------------------------------------------------------------------------- Jalal Deen ......Appellant. Versus Isrial and others .....Respondents. ------------------------------------------------------------------------------------- Coram The Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting?1 No For the appellant: Mr. Sudhir Thakur, Senior Advocate, with Mr. Karun Negi, Advocate. For the respondents: Mr. Nimish Gupta, Advocate, for respondent No.1. ------------------------------------------------------------------------------------ Satyen Vaidya, Judge The instant Regular Second Appeal under Section 100 of the Code of Civil Procedure (for short, “Code”) has been filed against judgment and decree dated 27.02.2015, passed by learned District Judge, Chamba, H.P. in Civil Appeal No. 10/2013 (48/2013) whereby the judgment and decree dated 06.05.2013 passed by learned Civil Judge (Jr. Division), Chamba in Civil Suit No. 90/2007 has been partially set-aside and modified. 1 Whether reporters of print and electronic media may be allowed to see the order? 2 2025:HHC:28083 2. The appellant herein was one of the defendants (D-2) before original Court in Civil Suit No. 90/2007. The suit was filed by plaintiff Isrial (Respondent No.1 herein) for specific performance of agreement dated 10.04.2006 whereby defendant No.1 Hassan Deen (D-1) in the original suit had agreed to sell the land measuring 1 bigha 06 Biswas comprised in Khata/Khatauni No. 110/137, Khasra No. 841/770 and 775, situated at Mohal Chambi Pargana Gudial, Tehsil and District Chamba (hereinafter referred to as the “suit land”) to Plaintiff, Isrial. 3. The parties hereinafter shall be referred to by the same status as they held before the learned trial Court. 4. Plaintiff Isrial had filed a suit with the allegation that Hassan Deen (D-1) had agreed to sell the suit land to the plaintiff for sale consideration of Rs.50,000/- vide an agreement to sell dated 10.04.2006. The plaintiff had paid a sum of Rs.25,000/- to Hassan Deen (D-1) as advance towards the sale consideration at the time of execution of the agreement. 5. The case of plaintiff Isrial was that Hassan Deen (D-1) had been declared owner in possession of total 3 bighas 3 2025:HHC:28083 12 Biswas of land by virtue of a decree passed by learned Senior Sub Judge, Chamba on 02.07.2002 in Civil Suit No. 198/97. By the aforesaid decree, Jalal Deen (D-2) was held to be having no right, title or interest in the suit land and it was declared that mutation of “Sehat Malkiyat” dated 27.09.1993 attested in favour of Jalal Deen (D-2) qua half share in the entire land measuring 3 bighas 12 Biswas was null and void. The decree passed by learned Senior Sub Judge, Chamba stood affirmed in first appeal No.52/2002 by learned District Judge, Chamba on 21.09.2002 and had further been affirmed by this Court vide judgment dated 02.09.2003 in RSA No. 43/2003. 6. The plaintiff Isrial had further averred that after passing of judgment dated 02.09.2003 in RSA No. 43/2003, Hassan Deen (D-1) had transferred half share measuring 1 bigha 06 Biswas from the land, subject matter of Civil Suit No.198/97 in favour of Jalal Deen (D-2). A mutation of such transfer was attested on 25.02.2004 as mutation No. 446. 7. As per plaintiff Isrial, thereafter Hassan Deen (D-1) executed agreement to sell dated 10.04.2006 in his favour with respect to the remaining half share i.e. the suit land left 4 2025:HHC:28083 with Hassan Deen (D-1) after transfer of half share in favour of Jalal Deen (D-2) vide mutation No. 446 dated 25.02.2004. 8. The plaintiff Isrial had further alleged that though the decree passed in Civil Suit No. 198/97 had attained finality, but the revenue records had not been corrected in terms thereof. Thus, it was mentioned in agreement dated 10.04.2006 that Hassan Deen (D-1) would get the sale deed executed in favour of plaintiff Isrial within three months from the date of correction of revenue entries. 9. Plaintiff had further alleged that Hassan Deen (D-1) had filed execution petition before learned Civil Judge (Sr. Division), Chamba for execution of decree passed in Civil Suit No.198/97, but later in connivance and in collusion with Jalal Deen (D-2), Hassan Deen (D-1) entered into a purported compromise with Jalal Deen (D-2) and on its basis withdrew execution petition on 07.01.2007. 10. Plaintiff Isrial thereafter issued legal notice to Hassan Deen (D-1) requiring him to execute the sale deed and having failed to receive any response, the suit for specific performance was filed. 5 2025:HHC:28083 11. In addition to prayer for decree of specific performance of agreement dated 10.04.2006, plaintiff Isrial had also prayed for decree of permanent prohibitory injunction to restrain the defendants from interfering in peaceful possession over the suit land claiming himself to be in possession of the suit land in terms of agreement dated 10.04.2006. 12. H.P. State Cooperative Agricultural Rural Development Bank was impleaded as defendant No.3 on the premise that Jalal Deen (D-2), by taking benefit of wrong revenue entries, had mortgaged the suit land in favour of the said bank and, thus, had created impediment in correction of revenue entries. 13. The defendants despite service did not appear before learned trial Court. Defendants No. 2 & 3 were proceeded against ex parte on 24.09.2007 and defendant No.1 was proceeded against ex parte vide order dated 22.02.2008 by learned trial Court. 14. Thereafter, the plaintiff was called upon to lead evidence to prove his allegations. The plaintiff led and concluded his entire evidence on 14.05.2008. The suit 6 2025:HHC:28083 remained pending thereafter for about 5 years. The exparte arguments were heard by learned trial Court on 08.04.2013 and the decree was passed on 06.05.2013. Till the final disposal of the suit, none of the defendants came forward to contest the suit. 15. Learned trial Court declined the relief of specific performance to the plaintiff and decreed the suit of plaintiff Isrial partially by granting a decree of permanent prohibitory injunction only. Learned trial Court held that the correction of revenue entries was a condition precedent for registration of sale deed. It was also held that Hassan Deen (D-1), by entering into a compromise with Jalal Deen (D-2) in execution petition, had committed breach of contract, rendering the contract itself void. Learned trial Court further found itself powerless to direct Hassan Deen (D-1) to get the revenue entries corrected on the premise that such act had been rendered impossible. However, learned trial Court found the plaintiff to be in possession of suit land and on such premise, he was held entitled for a decree of permanent prohibitory injunction. 7 2025:HHC:28083 16. The judgment and decree passed by learned trial Court was assailed in first appeal under Section 96 of the Code by plaintiff Isrial before learned District Judge, Chamba. Though, Hassan Deen (D-1) and the bank again did not choose to contest the appeal, Jalal Deen (D-2) appeared and contested the appeal. 17. Learned District Judge, Chamba in absence of any appeal or cross-objections by defendants, concurred with the finding of fact as to possession of plaintiff over the suit land and thus confirmed the decree of permanent prohibitory injunction. 18. Learned District Judge, further held that in the given facts and circumstances of the case, the performance of agreement dated 10.04.2006 could not be held to have been rendered impossible. Learned District Judge found that Hassan Deen (D-1) had apparently withdrawn the execution petition to defeat the rights of the plaintiff. As per learned first Appellate Court, said Hassan Deen (D-1) had already delivered the possession of suit land to plaintiff in part performance of the agreement, for such reasons also, the agreement could not be said to have been frustrated. It was 8 2025:HHC:28083 further held that the Court possessed jurisdiction to grant the relief of specific performance of agreement as the correction of revenue entries had not been rendered impossible. Learned District Judge also held that the action of defendants Hassan Deen (D-1) and Jalal Deen (D-2) in compromising the execution petition was not binding on the plaintiff. 19. This appeal was admitted for hearing vide order dated 24.10.2016 on following substantial question of law: “Whether on account of mis-appreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by the Court below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?” 20. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 21. The instant appeal has only been filed by Jalal Deen (D-2), whereas, Hassan Deen (D-1), with whom the plaintiff Isrial had privity of contract, had neither contested the suit nor the appeal and has not even come forward to challenge the judgment and decree passed in first appeal. 9 2025:HHC:28083 22. Both the Courts have concurrently found the agreement of sale dated 10.04.2006 to be a legal and valid document capable of being enforcement. I do not find any material to interfere with such finding of fact which is duly borne from the record. In such circumstances, the locus standi of Jalal Deen (D-2) to challenge the validity of concurrent findings of fact in second appeal becomes highly questionable. 23. The only course for appellant Jalal Deen to succeed in this appeal was to prove his better title over the suit land, which in my considered view, does not exist. 24. Admittedly, the plaintiff Isrial had been declared as exclusive owner in possession of entire 3 bighas 16 Biswas of land by virtue of decree dated 02.07.2002 passed by learned Senior Sub Judge, Chamba in Civil Suit No. 198/97. A copy of judgment has been proved on record as Ext. PO. It also cannot be disputed that decree Ext. PO was affirmed even in RSA No.43/2003 by this Court vide judgment dated 02.09.2003, a copy of which has also been proved on record as Ext.PS. It being so, the title of the plaintiff Isrial over the entire land measuring 3 bighas 16 10 2025:HHC:28083 Biswas was established beyond any shadow of doubt. After obtaining the aforesaid decree, Hassan Deen (D-1) had transferred half share in the aforesaid land in favour of Jalal Deen (D-2) and mutation No. 446 dated 25.02.2004 was attested in that behalf as is evident from the entries in jamabandi proved on record as Ext.PM. Thus, after said transfer, the share of Hassan Deen (D-1) in entire land remained to the extent of one half i.e. 1 bigha 06 Biswas, which is the subject matter of this litigation. 25. Admittedly, Jalal Deen (D-2) is basing his claim to the title of suit property on the basis of compromise effected between Hassan Deen (D-1) and Jalal Deen (D-2) in execution proceedings. Jalal Deen (D-2) cannot be said to have acquired any right, title or interest on the suit property simply on the basis of aforesaid compromise. The title of suit property did not pass from Hassan Deen (D-1) to Jalal Deen (D-2) on the basis of compromise being not a lawful mode of transfer of immoveable property. Even otherwise, the compromise on the face of it, was a method adopted by Hassan Deen (D-1) and Jalal Deen (D-2) to prejudice the rights of plaintiff Isrial arising from agreement to sell dated 11 2025:HHC:28083 10.04.2006. The terms of aforesaid compromise was not binding on plaintiff Isrial. 26. Learned Counsel for appellant Jalal Deen has placed reliance upon judgement passed by Hon’ble Supreme Court in N.K. Rajgarhia Vs Mahavir Plantation (2006) 1 SCC 502 to assert that compromise order could be lawfully passed even in execution proceedings. There cannot be any dispute as to proposition of law, as envisaged, however, its applicability to the facts of instant case, in my considered view, has not been made out. In the case on hand, the question is, would the compromise or order passed thereon by executing court, defeat the right of plaintiff (third party). The answer cannot be but in negative. In N.K. Rajgarhia supra there was no involvement of right of any third party and the entire dispute was between the two contracting parties alone. 27. Learned first Appellate Court has been right in setting-aside the findings of learned trial Court which had formed basis for rejection of the prayer of plaintiff Isrial for specific performance of agreement. Stipulation, in the agreement that Hassan Deen (D-1) would execute sale deed 12 2025:HHC:28083 in favour of plaintiff Isrial within three months from the date of correction of revenue entries could not be said to be a condition precedent. The said clause at the most could have relevance for the purpose of limitation in filing the suit. Hassan Deen (D-1) had been declared owner in possession of suit land by the civil Court. There was no legal impediment in updating the revenue entries/records on the basis of such decree. Since, the step taken by Hassan Deen (D-1) was obstructed by his voluntary act itself, the same could not be considered as an impediment in grant of decree of specific performance. Rather, such conduct of Hasan Deen reflected his intent to backtrack from his commitment under the agreement and thus provided Plaintiff Isrial with the cause of action to file the suit. Even otherwise, the decree for specific performance could have been passed without updating the entries in the records of revenue. 28. The conduct of Hassan Deen (D-1), in not contesting the suit of plaintiff Isrial, is sufficient to infer that he had nothing with him, to contest the claim of the plaintiff. 29. The decree passed by learned trial Court, denying the relief of specific performance to the plaintiff, otherwise 13 2025:HHC:28083 also was not sustainable as it was based on assumed defences as available to defendant, under the Specific Relief Act, without there being any contest from the defendants. 30. In light of above discussion, the substantial question of law is answered in negative. The judgment and decree passed by learned first appellate court needs no interference. 31. In result, there is no merit in the appeal and the same is dismissed with no order as to costs. The appeal stands disposed of, so also the pending application(s) if any. 19th August, 2025 ( Satyen Vaidya) (GR) Judge