91 r RegularSecond AppealNo340 of 2007 4 INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RegularSecond AppealNo940 of 2007 Dateof Decision 131tOctober 2009 Fajru 1 Appellant Versus 0 C I Om Parkash and another C5 I eRespondents CORAMl HONBLE MRJUSTICE RAJIVE BHALLA Present Mr Chetan Mittal Senior Advocate with Mr VishalGargAdvocate I for the appellant 08 Mr Adarsh Jain Advocate for respondent no e7 RAJIVE BHALLA J Om The challengesjudgmentsand decrees dated 0962006 and 0062007 passedby the Additional Civil Judge DivnFerozepur Zhirka and the Additional District Judge Gurgaon decreeingthe suit filed by respondentno 1 and dismissinghis appeal The no 1 filed a suit for specific of an agreementto sell dated 231 998 by pleading thatdefendant nol lthe appellant ad mortgagedthe suit Iand with possessionfor R1 250001 on 04 06 1997 On 236 1998 he executed an to sell the mortgagedIand for a sale Batra Amit Sh. Charanjit Batra 2012.07.28 15: 26 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 92 4 RegularSecond AppealNo3940 of 2007 m consideration of Rs2800001 The mortgageamount was agreed to be adjustedtowards the sale consideration In addition the appellantreceivea Rs 150001 It was agreedthat the sale deed would be executed arld registeredon 2206 1999 after paymentof the remainingamount of Rs00001 The no l visited the office of the Ferozepur Zhirka on 22061 999 with the balance sale considerationetc but the appellantdid not turn 0 C Up The plaintifftherefore recorded his presence before the sub I registrarand served a notice The appellantinstead of executinga C5 I sale deed executed a mortgagedeed dated 26 10 1998 in favour of respondentno2 Z In response the filed a written statement Ct the mortgageof the suit property but denied that I possession was delivered to the plaintiH The execution of the 08 agreementto seil was denied as was receiptof any other amountby 2 allegingthat the plaintiffmay have obtained the appellantsthumb impressionon blank papers when he executed the mortgagedeed Respondentno2 filed a written statement denyingthe facts pleaded In the plaintand in turn asserted that the mortgagedeed dated 26101998 executed In his favour s IegaIand valid On the bas is of the pleadingsthe trial court framed the following issues 1 Whether the defendant no 1 agreed tnto an agreementto sell of the suit Iand as detailed in paranol of the piaintwith the plaintifffor a sale considerationof Rs2800001 and defendsnt no 1 adjustedwith the plaintiffa sum of Rs1 250001 Batra Amit Sh. Charanjit Batra 2012.07.28 15: 26 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 93 C3 49 RegularSecond AppealNo3940 of 2007 a towards mortgageamount as the suit Iand was alreadymortgagedwith the plaintifffor the above said amount and defendant no 1 received a sum of Rs 11 50001 as earnest money from the plaintiff70PP 2 Whether the plaintiffis readyand willingto perform r his part of agreement70PP 0 3 VVhetherthe suiteisnot maintainablein the present C form70PD C5 4 Whether the plaintiffhas no Iocus standi ancl cause of action to file the presentsuit7OPD 5 VVhether the piaintiffis estoppedfrom fiiingthe C presentsuit byhis own act and conduct20PD I 6 Whether the answeringdefendant IS bonafide 08 for a aluable consideration70PD m 7 Relief Z 11 After consideringthe pleadingsthe evidence adduced and the addressed the trial court decreed the suit for specific performanceThe trial court held that the execution of agreementto sell dated 23 1998 stands provedand as the plaintiffhas proved that he is readyand willingto performhis part of the contract he IS entitled to the relief of specifi performance As regards the e mortgageexecuted in favour of respondent no 2 the trial cou held that it would not affect the rightsof respondent no 1 Aggrievedby the aforementioned judgenlerltaild decree the appellantfiled an appeal Vide judgementand decree dated 07 062007 the Additional District Judge Gurgaon dismissed the Batra Amit Sh. Charanjit Batra 2012.07.28 15: 26 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 94 1 1 ID RegularSecond AppealNo940 of 2007 m4 appealand affirmed the findingsrecorded bythe trial court Counsel for the appellantsubmits that the impugned judgementsare null and void The courts below have ignored material evidence misread the evidence on record and therefore committed such errors as would necessitate the settingasidc of the and decrees passedby the courts below It is argued that the appellantsstand that his thumb Impressions may have been 0 obtained on blank papers and that he did not receive Rs 11 50001 C I have been wrongly rejected by the COurts below The C5 I no 1 has failed to prove the payment of Rsl 150001e by reference to any receipt The recital in the Z agreementthat the balance amount of R400001 was to be paida C year after the execution of the agreement casts a doubt on the I authenticity of the agteement It appears that respondentnol took a5 of the appellanfsilliteracyand fabricated the agreement 4r 7 to sell It is further submittedthat the case pleadedby respondent no 1 stands falsified by the recitals 1n the agreementand the mortgagedeecl Respondentno 1 claims to be in possessionon the basIS of the mortgagedeed but the ag reement to sell does not contain any recital of his possession It is submitted that as the appellant has been duped by respondentno a nd the courts below have committed serious errors of Iaw the followingsubstantial questionsof Iaw arise for consideration al Whether the respondentwas not entitled to the discreonary relief of specific performanceon account of delay and other coupled facts ana circumstances7 Batra Amit Sh. Charanjit Batra 2012.07.28 15: 26 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 95 2 9 l 0 RegularSecond AppealNo940 of 2007 5 bl VVhetherthe allegedagreernentto sell on the fact of it shows that it was a transaction of a money Ienderin a villagewhere the borrower is simple Illiteratevillager2 c1 lNhether the courts below have totallyignoredthe document itself the perusalof which clearlyshows that it is a result of fraud and forgery2 0 0 dl Whether the relief to the was Iiable to be declined on account of contradictory C5 I pleawith regardto possessionin the piaintitself7 el VVhether the ceurts below have also ignoredthat Z the stand of the plaintiffwith regard to rllS possessionis totallyfalse and on accou nt of the I c6 ielief claimed admittedly he was not in possession2 7 f1 Whether the entire suit of the plaintiffis falsified frornthe factum of possessionwith the appellant7 gl VVhether the suit otherwIse could not have been decreed for possessiononce the propertyis joint and no specifickhasra nos have been sold to the hl Whether the findingsof the courts beiow are totaily illegal wrong perverse and also againstthe well established prirciplesof Iaw7 Counsel for respondentno 1 subnts that the impugned judgmentsand decrees are Iegaland valid The questionsof iaw framed by counsel for the appellantare at best facts in issue and Batra Amit Sh. Charanjit Batra 2012.07.28 15: 26 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 96 4 RegularSecond AppealNo3940 of 2007 6m therefore do not requireconsideration It is funher arguedthat findingsof fact recorded by the coui1s below with respectto the agreementto seil the moitgageand possessiondo not require interference have heard counsel for the partiesperusedthe impugned Judgments and decrees considered the so called questionsof Iaw frarned by counsel for the appellantand express my inabilityto hold that any questionof Iaw much Iess the substantial questionsof Iaw framed bycounsel for the appellantarise for consideration The no 1 filed a suit for specific performanceof an agreementto sell dated 23 1998 by pleading that the appellant executed a registeredmortgage deed with possessiondated 04 1997 after receiptof Rsl 250001 On 23 061 998 the appellantexecuted an agreementto sell the suit Iand for a consideration of Rs2800001 wIth a stipulation that the amount received towards the moitgage vlld be adjustedtowards the sale consideration in addition the appellantreceived Rs l 150001 and agreed to execute and registerthesale deed on 2206 1999 after receiptof Rs400001 However the appellantdtd not execute the sale deed but instead executed a mortgagedeed in favour of respondentno2 on 26 10 1998 As is apparentfrom the findingsrecorded by the courts below the agreement to sell executed by the appellantand the receiptof the consleration stand provedby the depositionof Surinder Kumar PW1 the deed writer Subhash Chana PW2 lhe attesting witness and by the depositionof respondentno 1 The scrtbe producedhis registerwhich contains an entrywith respectto Batra Amit Sh. Charanjit Batra 2012.07.28 15: 26 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 97 1 4Pe RegularSecond Appeal No3940 of 2007 21 the execution of the agreementto sell at Sr N0225 The attesting witnesshas provedthe execution of the agreementand the receiptof Rsl150001 as earnest money It would be necessary to mention here that as the appellanthas admitted the executton of the mortgage deed dated 041997 the courts below have also held that possessionwas delivered to no 1 pursuantto the r mortgage dated 046 1997 and therefore his stand that he did not 0 deliver possession was incorrect The courts below have also C I recorded concurrent findingsof fact that respondentno 1 was ready C5 I and willingto execute his part of the contract The findingsof fact Cr have been recorded after a considered appraisaiof the evidence on r record and in the absence of any circumstance that would suggest CC Cr otherwisetheydo not requireany interference The so called substantial questionsof Iaw are neither 08 Co substantial nor questionsof Iaw and a mere facts in issue that have C m aireadybeen and answered by the courts below The Z questionthat respondentno 1 is a money Iender and the mortgage tl and the agreementwere executed to secure a Ioan is neither pleadednor proved The onlyplearaised in the written statement IS that the agreementmay have been forgedby tallg the appellants thumb at the time of the execution of the mortgageIs referredto hereInabove the appellant has failed to prove this claim and counsel for the appelianthas faiieco refer to any material that would raise an inference of forgeryThe questionthat as the to seli does not contain a recitalthat the respondent IS Ill possessioncannot be acceptedas the mortgagedeed contains a recital that possessionhas been edelivered to respondentno l The Batra Amit Sh. Charanjit Batra 2012.07.28 15: 26 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 98 9 RegularSecond AppealNo3940 cf 2007 fact that a share Ill the propert9has been agreedto be sold IS irrelevant A cosharer in joIntpossessionmay seli his share and if he delivers possession of a portionof land In his jointpossession his vendee becomes a cosharer in oint possessionwithall the rights and Iiabilities of his vendor The argumentthat as Rs 400001 remained to be paid after the execution of the agreementto sel 1 m 1 there was no reason to postponethe execution of the sale deed iS 0 irrelevant as the agreementto seil and the readiness and willingness C I to perform the contract stands proved 0 I In view of what has been stated hereinabove as the findingsof fact recorded bythe courts below do not suffer from any Z 7 error of Iaw and no substantialquestionof Iawanses for adjudication r the appealis dismissed with no order as to costs 08 Octoberl314 2009 RAJIVE BHALLAI nt JUDGE am 0m lb 4 19 14 Batra Amit Sh. Charanjit Batra 2012.07.28 15: 26 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document