R.S.A. No.3487 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.3487 of 2007 (O&M) Date of Decision : 2.3.2009 Balkar Singh & others ....Appellants Versus Ashok Kumar ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.S.C.Chhabra, Advocate for the appellants. Mr. R.K.Sharma, Advocate for the respondent. ..... MAHESH GROVER, J. This is plaintiffs' second appeal directed against the judgments of the learned trial Court dated 28.11.2006 and the first Appellate Court dated 26.7.2007. The appellants filed a suit for specific performance of an agreement to sell dated 19.7.2002 whereby the land measuring 6 kanals 15 marlas was agreed to be sold to them by one Ashok Kumar for a total sale consideration of Rs.1,63,000/-, which was paid to him. The date for registration of the sale deed was fixed as 15.5.2006. The suit property belonged to one Daal Chand, father of Ashok Kumar R.S.A. No.3487 of 2007 (O&M) -2- and his brother Narinder Pal and after the dath of Daal Chand, both of them succeeded to the estate of Daal Chand in equal shares. After execution of the agreement to sell, mutation was entered on 4.9.2002 and since the sale deed had not been executed, the appellants filed the instant suit. The appellants also pleaded that they are in possession of the suit property. The respondent, who contested the suit, set up a plea of fraud and stated that he had never agreed to sell the specific khasra numbers and neither did he deliver the possession of the suit property. Both the parties went to trial on the following issues :- 1. Whether the defendant has executed an agreement to sell dated 19.7.02 in favour of the plaintiffs?OPP 2. If issue No.1 is proved, whether the plaintiffs, are entitled to the specific performance of agreement to sell dated 19.7.03?OPP 3. If issue No.2 is not proved whether the plaintiffs are entitled to alternative relief of recovery of Rs.1,63,000/- from the defendant alongwith interest, if so at what rate?OPP 4. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed?OPP 5. Whether the plaintiff has got no cause of action to file present suit?OPD 6. Whether the suit is not maintainable?OPD 7. Whether the defendant has not executed agreement to sell dated 19.7.02 with his free consent and in R.S.A. No.3487 of 2007 (O&M) -3- sound disposing mind?OPD 8. Relief. On the basis of evidence before it, the learned trial Court came to the conclusion that the agreement stood proved, but, however, concluded that the contents of the agreement were vague as the suit property was not partitioned and the area and khasra numbers mentioned therein were certainly in excess to the share of Ashok Kumar. In this view of the matter, it resorted to the grant of an alternative relief in the following terms :- “In view of my findings on the aforesaid issues, the suit of the plaintiff succeeds partly and is partly decreed with costs for recovery of Rs.1,63,000/- alongwith interest at the rate of 12% per annum from 19.7.2002 till 4.6.2003 and at the rate of 6% per annum from 5.6.2003 till date of actual payment of this amount. The defendant is permanently restrained from dispossessing the plaintiff illegally and forcibly and from interfering in the possession of the plaintiffs over the suit land except in due course of law. The suit of the plaintiffs qua the relief of specific performance of the agreement of sale dated 19.7.2002 and qua the relief of permanent injunction restraining the defendant from alienating the suit land is ordered to be dismissed. However, the defendant is entitled to recover the possession of the suit land in due course of law. .....” In appeal, the findings of the learned trial Court were R.S.A. No.3487 of 2007 (O&M) -4- affirmed. The respondent, however, did not challenge any portion of the aforesaid judgments as a result the entire findings recorded by the Courts below qua him have become final. Learned counsel for the appellants has assailed the aforesaid findings and has contended that both the Courts below have gone wrong in misinterpreting the agreement to sell. It was contended that specific khasra numbers have been mentioned in the agreement which has been found to be correct and the plea of fraud has been negatived by the Courts below. In this view of the matter, learned counsel for the appellants strenuously contended that he is willing to forego the excess area of the share of Ashok Kumar which has been reflected in the agreement to sell and this was the reason which weighed with the Courts below to grant the alternate relief. He further contended that he would be satisfied if the clarification is made that the appellants would be entitled only to the share of Ashok Kumar which may be ascertained at the time of partition and their status till then shall be continued to be that of co-sharers. Learned counsel for the respondent, on the other hand, contended that the land mentioned in the agreement was excess of the share of Ashok Kumar, therefore the agreement was invalid and was incapable to be executed. After hearing the learned counsel for the parties, I am of the considered opinion that the appeal throws up the following question of law :- “As to whether the discretion exercised by the learned trial R.S.A. No.3487 of 2007 (O&M) -5- Court was warranted in the given set of circumstances or not ?” It is settled principle of law as enunciated by numerous decisions of the Apex Court that the discretion under Section 20 of the Specific Relief Act, whether exercised fairly or not, is a question of law as has been held in Rajeshwari v. Puran Indoria 2005(7) SCC 60. Proceeding to answer the aforesaid question it is to be noticed that the appellants have very candidly confined their prayer to the limited extent that they be held entitled to the share of Ashok Kumar and till the suit land is partitioned, they be considered as co- sharers. The alternate relief was granted for the simple reason that the agreement to sell on the basis of which the appellants had pleaded their case has been held to be valid. The plea of fraud which was set up by the respondent was specifically negatived by the Courts below after holding the agreement to be valid. Even if there is a slight ambiguity in the same, the same could be rectified by the appellants as they are willing to forego the excess land which is reflected in the agreement to sell and shall not lay claim thereto even if the price qua that has been paid. In this view of the matter, the appeal is accepted and it is held that the appellants shall be entitled to the share of Ashok Kumar who had accepted the sale consideration pursuant to the agreement to sell dated 19.7.2002 and the decrees of the Courts below are modified to the extent that the appellants shall be entitled to enforce the said R.S.A. No.3487 of 2007 (O&M) -6- agreement to sell qua the share of Ashok Kumar by getting the same partitioned in accordance with law. He shall also not claim recovery of any amount already paid to the vendor. Appeal disposed of. 2.3.2009 (MAHESH GROVER) JUDGE dss