IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1935 of 2010 (O&M) Date of Decision: 19.5.2010 Boota Singh ....... Appellant. Versus Gurjant Singh and others. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri R.S.Mittal, Senior Advocate with Shri Atul Gaur, Advocate for the legal representatives of the appellant. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.6011-C of 2010 The application is accepted and delay of eleven days in refiling of the appeal is condoned. C.M.No.6012-C of 2010 The application is allowed and the persons mentioned in paragraph 2 thereof are permitted to be impleaded as legal representatives of appellant-Boota Singh, who is stated to have expired on 22.12.2009. R.S.A.No.1935 of 2010 & C.M.No.6013-C of 2010 Feeling aggrieved by the judgments and decrees dated R.s.A.No.1935 of 2010 (O&M) -2- .... 5.11.2007 and 6.10.2009 passed respectively by the Civil Judge (Junior Division), Barnala (hereinafter described as `the trial Court) and the Additional District Judge, Barnala (referred to hereinafter as `the first appellate Court'), defendant no.1-Boota Singh (since deceased and now represented by his legal heirs) filed this regular second appeal. It may be mentioned here that defendant no.1, after filing of the appeal, expired and his legal heirs filed C.M.No.6012-C of 2010 which has since been accepted and they have been permitted to be impleaded in his place as appellants. A suit for specific performance of an agreement to sell dated 19.11.2004 executed by defendant no.1 was filed by the plaintiffs- respondent nos. 1 & 2 for its enforcement and the same was decreed in their favour by trial Court and the appeal preferred by him was dismissed by the first appellate Court. The plaintiff had pleaded that the land in dispute was agreed to be sold at the rate of Rs.3,78,000/- per acre and a sum of Rs.8,00,000/- was received by defendant no.1 as earnest money at the time of execution of the agreement. The sale deed was to be executed and registered on or before 15.5.2005. The last day, i.e., 15.5.2005 was a Sundary and, therefore, the plaintiffs averred that they remained present before the Sub Registrar on 15.5.2005 with the remaining sale consideration for execution and registration of the sale deed, but defendant no.1 failed to appear. Defendant no.1 appeared and filed his written statement contesting the suit. It was pleaded that the rate of land in the village was R.s.A.No.1935 of 2010 (O&M) -3- .... Rs.7,00,000/- per acre, whereas the rate mentioned in the agreement dated 19.11.2004 was Rs.3,78,000/- per acre and from which it could be inferred that the agreement was a forged and fabricated document. All other averments made in the plaint were denied and it was pleaded that defendant no.1 was not keeping well and was getting treatment from a hospital and due to his ill health and in connivance with the attesting witnesses and scribe, the plaintiffs had got prepared a forged agreement to sell. Defendant nos. 2 to 5, who are the mortgagees of the land in dispute, filed their written statement and took certain preliminary objections. It was submitted that defendant no.1 had mortgaged the suit land in favour of defendant nos. 2 to 5 for a sum of Rs.8,00,000/-; that they were in possession of the suit land and this fact was within the knowledge of the plaintiffs. The following issues were framed on which the parties went to trial and as observed earlier, both the Courts returned findings against defendant no.1 and in favour of the plaintiffs:- 1. Whether the defendant had entered into an agreement to sell dated 19.11.2004 with the plaintiffs to sell the property in dispute @ 3,78,000/- per acre for an amount of Rs.22,24,000/- by receiving an amount of Rs.8,00,000/- as earnest money?OPP 2. Whether the plaintiffs were ready and willing and are still ready and willing to perform their part of the agreement to sell dated 19.11.2004 as prayed for?OPP R.s.A.No.1935 of 2010 (O&M) -4- .... 3. Whether the plaintiffs are entitled for specific performance of the agreement to sell dated 19.11.2004 as prayed for?OPP 4. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?OPP 5. Whether the plaintiffs have got locus standi to file the present suit?OPP 6. Whether the plaintiffs are estopped by their own act and conduct from filing the present suit?OPD 7. Whether the agreement to sell dated 19.11.2004 is a forged and fabricated document and is without any consideration?OPD 8. Whether the contesting defendant no.1 is entitled to special costs of Rs.5000/- u/s 35-A of CPC?OPD 9. Whether the suit of the plaintiffs is not maintainable in its present form?OPD 10. Relief. Learned counsel for the appellants contended that the agreement to sell was a forged and fabricated document as the rate of land in the village was Rs.7,00,000/- per acre whereas it was mentioned in it as Rs.3,78,000/- per acre and it was not conceivable as to why a person would execute an agreement to sell at a lesser price. It has further been contended that to ensure substantial justice, the Courts below ought to have examined the matter in the light of the provisions of Section 20 of the Specific Relief Act,1963 (for short, `the Act'). He submitted that the written statement of R.s.A.No.1935 of 2010 (O&M) -5- .... defendant no.1 contained a specific plea to this effect, but the Courts below have gone wrong in not taking note thereof and this, according to him, has invalidated the impugned judgments. It was contended that the statements of the witnesses produced by defendant no.1 clearly showed that the price of the land in the village was much more than what was reflected in the agreement to sell and from this, this document should have been held to be invalid. After hearing the learned counsel for the appellants and perusing the impugned judgments, I am of the opinion that the contentions as raised by him cannot be accepted. Merely because a plea has been raised that the value of the land was more than what had been mentioned in the agreement to sell cannot be a ground for negating a validly executed document. In order to establish their case, the plaintiffs proved the agreement to sell and also showed their readiness and willingness to perform their part of agreement. It was defendant no.1, who had pleaded fraud,but no such particulars were put forward by him in his pleadings. The only plea that had been raised is that the value of the suit property being more, the same could not have been sold for lesser price. To this extent also, there is no evidence adduced by defendant no.1. No instance of sale in the vicinity coinciding with the agreement to sell has been brought on record from where it could be inferred that the price of the land was higher than the one mentioned in the agreement to sell in question. In any eventuality, this can hardly be a ground to conclude that the agreement was a result of fraud. Therefore, the plaintiffs, who have established their readiness R.s.A.No.1935 of 2010 (O&M) -6- .... and willingness to perform their part of agreement and have sufficiently demonstrated the existence of a valid agreement, as also the passing of sale consideration in lieu thereof, cannot be denied the relief which they have been granted rightly by the Courts below. No substantial question of law has been shown to have arisen for consideration of this Court. Accordingly, the appeal is held to be without any merit and is dismissed. As a consequence thereof, C.M.No.6013-C of 2010 which has been moved for staying the execution of the decrees appealed against is also dismissed. May 19,2010 ( Mahesh Grover ) “SCM” Judge