Regular Second Appeal No. 279 of 1998(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 279 of 1998(O&M) Date of decision: 21st December, 2009 Inder Singh through his LR's .......Appellants Versus Smt. Sardar Kaur ........Respondent Before: HON'BLE MRS. JUSTICE SABINA Present: Mr. C.B.Goel, Advocate with Mr. Sanjiv Gupta, Advocate for the Appellants. Mr. Ashish Aggarwal, Advocate for the respondents. Sabina, J. Plaintiff-respondent filed a suit for declaration which was decreed by the Civil Judge (Junior Division), Gurgaon vide judgment and decree dated 16.09.1996. In appeal, the said judgment and decree were upheld by the District Judge, Gurgaon vide judgment and decree dated 12.11.1997. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 5 of its judgment, are as under:- Regular Second Appeal No. 279 of 1998(O&M) -2- “2. Brief facts of the appellant's case are: that appellant-defendant owned agricultural land measuring 8 kanals in village Choma, Tehsil and District Gurgaon, described in para no. 1 of the plaint. He entered into an agreement to sell dated 2.03.1988 with Sardar Kaur for a consideration of Rs.1,50,000/-. Out of this amount, Rs.1500/- were paid as part payment towards the sale consideration. It was further stipulated between the parties that the balance sale consideration shall be paid at the time of the registration of sale deed which was to be executed and got registered by the defendant in favour of the plaintiff on or before 30.08.1988. Before the date fixed for execution of the sale deed the defendant was to arrange for I.T.C.C. For which the information was required to be given by him to the plaintiff and in the event of failure of the defendant to get the I.T.C.C. By the due sale deed shall be deemed to be extended. Lateron before the date fixed for the execution of the sale deed in the agreement, the defendant tried to alienate the suit property to third person which compelled the plaintiff to file a suit for permanent injunction on 14.6.1988 titled “Sardar Regular Second Appeal No. 279 of 1998(O&M) -3- Kaur versus Inder” in which ad-interim injunction was issued against the defendant by the court of Shri N.D.Achint, Sub Judge, Gurgaon, restraining the defendant from alienating the suit land to anyone else. The defendant appeared in that case and denied having executed the agreement to sell of the suit land. 3. The plaintiff served a legal notice on 15.06.1988 calling upon the defendant to be present in the office of Sub Registrar on 30.6.1988 alongwith I.T.C.C. so that remaining consideration amount of sale be paid to him by the plaintiff and the amount to be spent on the purchase of stamp etc. be paid to him. The plaintiff thereafter, appeared before the Sub Registrar, Gurgaon, on 30.06.1988 and remained in his office from 7AM to 1:30 PM alongwith the amount of sale consideration and amount to be spent on the purchase of stamps and registration charges but the defendant did not appear in the said office. Thereupon, the plaintiff filed an application before the Sub Registrar Gurgaon stating therein that she was ready and willing to perform her part of the contract and had come present with the remaining amount of sale Regular Second Appeal No. 279 of 1998(O&M) -4- consideration and the amount for purchase of stamps and her presence was noticed on the application before the Sub Registrar which was returned to her. On 30.6.1988, the plaintiff again approached the defendant and tendered the remaining amount of sale consideration to him and further requested him to execute the sale deed and get the same registered in her favour but he avoided her and finally refused to execute the sale deed. In the manner the plaintiff has been ready and willing to perform her part of the contract whereas, the defendant failed to honour the terms of the contract. Forced by these circumstances, plaintiff filed the present suit seeking decree for specific performance of the contract directing the defendant to execute and get the sale deed registered of the suit property on payment of balance consideration amount and also a decree fro possession of the suit property in favour of the plaintiff and against the defendant. In the alternative, decree for recovery of Rs.1,50,000/- as part payment of the sale consideration and damages was also sought by the plaintiff against the defendant. 4. While repudiating the averments of Regular Second Appeal No. 279 of 1998(O&M) -5- the plaintiff, the defendant in the written statement, pleaded that the alleged agreement is bogus, fabricated and fictitious document which was obtained by the plaintiff by playing fraud on him in collusion with her husband and petition writer. Rather, it was averred that in the month of October, 1987 the plaintiff and her husband who is a dismissed employee, asked the defendant to apply for Income Tax Clearance Certificate as per terms of the agreement dated 18.09.1987, entered into between the plaintiff, defendant and his brothers Balbir and Karambir etc. and on that pretext, he was brought in the Tehsim premises where his thumb impressions and that of his both brothers were obtained on various blank papers and in this manner, the plaintiff managed to obtain the alleged agreement dated 2.3.1988 from him taking benefit of the illiteracy of the defendant and the close relationship. Thus, he did not receive any consideration amount of Rs.15,000/- on 2.3.1988. It was further explained that in another suit titled as Sardar Kaur Versus Inder Singh pending in the court of Shri Shiva Sharma, Additional Senior Sub Judge, Gurgaon, the Regular Second Appeal No. 279 of 1998(O&M) -6- plaintiff had alleged payment of amount of Rs. 40,000/-, Rs. 20,000/-, Rs. 10,000/- and Rs. 15,000/- to the defendant but had not purposely mentioned any date of alleged payments and agreement, though, factually, he had received the payment of Rs. 20,000/- under the agreement dated 18.9.1987 from the plaintiff, which amount stood forfeited in terms of the said agreement.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendants executed an agreement dated 2.3.88 in favour of plaintiff for sale of the suit land as alleged? OPP 2. Whether and if what amount the defendant received the part payment from the plaintiff? OPP 3. Whether the plaintiff has always been ready and willing to perform her part of the contract? OPP 4. If issue no. 1 to 3 are proved in the affirmative whether the plaintiff is entitled to specific performance of the contract. Is so on what term: 5. Whether the plaintiff has no cause of action against the defendant to file the present suit as Regular Second Appeal No. 279 of 1998(O&M) -7- alleged? OPD 6. Whether plaintiff has no locus standi to file this suit? OPD 7. Whether the plaintiff is estopped from filing the present suit by her act & conduct? OPD 8. Whether the agreement dated 2.3.88 is the result of fraud as alleged? OPD 9. Relief.” After hearing the learned counsel for the parties, I am of the opinion that the instant appeal is devoid of any merit and deserves dismissal. Parties in the present suit are related to each other. Plaintiff Sardar Kaur had filed the suit against her uncle Inder Singh, for specific performance of agreement to sell dated 22.03.1988. The date of registration of sale deed was fixed as on or before 30.06.1988. Rs.15,000/- were paid as earnest money at the time of execution of the sale deed for a total consideration of Rs.1,50,000/-. The balance sale consideration was to be paid at the time of registration of sale deed. In order to prove her case, plaintiff examined Jagdish (PW 1) Deed Writer, Satya Bhan (PW 4) Attesting Witness and also examined Naresh Kumar (PW 6) Handwriting and Finger Print Expert. The said witnesses have proved due execution of the agreement to sell. Plaintiff in order to establish that she was ready and willing to perform her part of the contract, proved on record her application Regular Second Appeal No. 279 of 1998(O&M) -8- Ex: P-3 that she had remained present in the office of Sub Registrar, Gurgaon on 30.06.1988, but the defendant had failed to appear to perform his part of the contract. The defendant on the other hand, has although proved on record various other litigations pending between the parties but the courts below have rightly held that the same have no bearing on the facts of this case. In the present case, the execution of the agreement to sell in question has been duly proved. Both the courts below after appreciating the evidence on record have given a finding of fact that the execution of the agreement to sell in question was duly proved by the plaintiff and that the plaintiff was willing and ready to perform her part of the contract. The said finding of law cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. [SABINA] Judge 21st December, 2009 Shivani Kaushik