IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 514 of 2001. Date of decision: 24.10.2011. Krishna Devi and another ….. Appellants. Versus Giru and Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. K.D. Sood, Advocate with Mr. Balwant Singh, Advocate. For the Respondents : Mr.B.P. Sharma, Senior Advocate with Mr. Arun Kumar, Advocate, for respondents No.1, 2(a), 6, 7, 8 and 11(a) to 11(c). Kuldip Singh, J( Oral) . The plaintiffs have filed second appeal against judgment, decree dated 24.7.2001 passed by learned District Judge, Kullu in Civil Appeal No. 96 of 2000, reversing judgment, decree dated 16.6.2000 passed by learned Senior Sub Judge, Lahaul & Spiti, exercising the powers of Sub Judge Ist Class, Kullu in Civil Suit No.230/1996. Some of the parties have died and their legal representatives have been brought on record. In this judgment the parties are referred to as plaintiffs and defendants. 2. The brief facts of the case are that plaintiffs had filed a suit for possession by way of specific performance on the basis of agreement dated 5.7.1996 Ex.PW-2/A regarding land, more Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 specifically described in the plaint. It has been stated that Parma Nand defendant No.1 had agreed to sell land in favour of plaintiffs vide agreement dated 5.7.1996 for a total sale consideration of `40,000/-. Out of the said amount, a sum of `10,000/- was paid as earnest money and the remaining amount was to be paid at the time of executing the sale deed. It was to be executed on or before 10.7.1997. 3. The suit was contested and different sets of written statements were filed by respondents. The defendant No.1 Parma Nand has not denied the execution of agreement dated 5.7.1996. Some of the defendants took the objections that land had already been sold to them and therefore, Parma Nand had no subsisting right, title and interest in the suit land at the time of agreement dated 5.7.1996. It has been alleged that on 5.7.1996, the defendant No.1 Parma Nand could not have sold the land in favour of plaintiffs which was agreed to be purchased by plaintiffs. 4. The plaintiffs filed replication and reiterated their stand. On the pleadings of the parties, the following issues were framed:- (i) Whether the defendant No.1 entered into an agreement to sell the suit land with plaintiffs for consideration of ` 40,000/- on 5.7.1996, if so its effect? OPP. (ii) Whether the plaintiffs are entitled to the relief of possession of suit land by way of specific performance of contract, as prayed? OPP (iii) Whether the defendants No.4 to 6 were inducted as tenants over the suit land by late Shri Gehru Ram, grand-father of defendants No.2 and 3 in the year 1950, if so, its effect? OPD 4 to 6. 3 (iv) Whether the suit land stood already redeemed in favour of defendant No.1 as alleged? OPD 2 & 3 (v) Whether the suit land has been purchased by defendants No.7 to 11 and others vide sale deed executed on 27.1.1956 and registered on 1.2.1956 for valuable consideration, as alleged? OPD7to11. (vi) Whether the plaintiffs have no locus-standi to file the present suit? OPD (vii) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPDs (viii) Relief. The learned trial Court answered the issues Nos.1,2 and 4 in affirmative and rest of the issues in negative and decreed the suit on 16.6.2000. In appeal learned District Judge on 24.7.2001 has held that defendant No.1 Parma Nand had no right, title or interest to sell the suit land in favour of the appellants. The agreement is void in as much as defendant No.1 had left no right, title or interest after the sale deed Ex.DA dated 27.1.1956 in favour of defendants No.7 to 11 and others. It has been held that in these circumstances a decree for specific performance of agreement Ex.PW-2/A by defendant No.1 in favour of plaintiffs is not enforceable. 5. In the second appeal the plaintiffs filed CMP No.188 of 2002 for amendment of plaint and relief of refund of earnest money `40,000/- alongwith interest at the rate of 12% p.a. in case the plaintiffs are not held entitled to the specific performance of the contract. CMP No.188 of 2003 was allowed by this Court on 3.4.2002 and additional issue No.7-A was framed as follows:- 7-A If issue No.2 is decided in the negative, whether the plaintiffs in the alternative are entitled to the refund of `40,000/- with interest, as claimed? OPP 4 The parties agreed not to produce fresh evidence on additional issue and they will confine to the evidence already led in the case and led in the suit. 6. The appeal has been admitted on following substantial questions of law:- 1. Whether the findings of the court below are vitiated being based on misconstruction of the pleadings of the parties and making a wholly new case of sale in favour of defendants No.2 to 7 instead of tenancy pleaded in the written statement by them and the court below? 2. Whether the judgment of the District Judge reversing the judgment and decree of the Senior Sub Judge for specific performance of the agreement of sale Ex.PW- 2/A, execution whereof and payment of consideration of `15,000/- out of `40,000/-having been proved is vitiated and based on misconstruction of Ex.PW-2/A and Ex.DA ? 3. Whether the finding that defendant No.1 has ceased to be the owner of the property and therefore not competent to sell the same to the plaintiff vide agreement Ex.PW- 2/A is vitiated and sustainable in law? 4. Whether the sale deed Ex.DA was illegal and conferred no title on the defendants No.4 to 11? 7. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the plaintiffs has submitted that the learned District Judge has erred in returning the findings that after sale deed Ex.DA the defendant No.1 had left no right, title or interest in the property. On behalf of the respondents, it has been submitted that Parma Nand had left no share in the property to be sold to plaintiffs as held by learned District Judge. The agreement Ex.PW-2/A is wrong, illegal, in as much as on the basis of 5 this agreement Parma Nand cannot transfer any title in favour of plaintiffs, Parma Nand himself has no share and left over title which can be transferred to plaintiffs on the basis of agreement. 8. The substantial questions of law No.1 to 4 and additional issue No.7-A are taken up collectively for determination. Ex.PW-2/A is the agreement dated 5.7.1996. The learned District Judge after appreciation of material on record has recorded a finding that the defendants No.4 to 11 have become owners in possession of the suit land vide Ex.DA. The defendant No.1 was left with no right, title or interest in the suit property after such sale. The defendant No.1 could not have entered into agreement to sell the suit property in favour of the plaintiffs vide agreement dated 5.7.1996 Ex.PW-2/A. The agreement Ex.PW-2/A executed by defendant No.1 is without any title. This specific finding of learned District Judge has not been shown to be wrong or without evidence. 9. PW-1 Deen Diyal husband and special attorney of Krishna Devi has stated that the agreement mark-X was executed. He has also stated that the matter was settled during the pendency of the suit vide Ex.PH. PW-2 Bhuvneshwar Dutt has proved agreement Ex.PW-2/A which earlier was mark X. Ex.PH is the compromise deed dated 20.5.1997 executed between plaintiffs and defendants No.1 to 3. In para-4 of the Ex.PH, it has been stated that defendant No.1 Parma Nand has received the entire sale consideration. Parma Nand has not appeared to rebut the evidence led by plaintiffs. Thus, it has been proved that the entire sale consideration amount of `40,000/- of the land which was agreed to be sold vide agreement Ex.PW-2/A has been received by defendant No.1, but since he has 6 no title in the suit property, therefore, the land cannot be transferred, sold by defendant No.1 in favour of plaintiffs. In these circumstances, the plaintiffs are entitled to refund of amount which was paid by plaintiffs to defendant No.1 by way of earnest money. The defendant No.1 cannot retain the amount of `40,000/- with him. 10. The plaintiffs have failed to establish that the findings returned by learned District Judge on sale deed Ex.DA and the fact that defendant No.1 had left no right, title or interest in the suit property are based upon misconstruction of pleadings and documents. It has been established on record that defendant No.1 was not competent to sell the suit land in favour of the plaintiffs on 5.7.1996 when he executed the agreement in favour of plaintiffs. Thus, additional issue No.7-A is decided in favour of plaintiffs/appellants and substantial questions of law No.1 to 4 are decided against them. 11. No other point was urged. 12. The result of above discussion, appeal is partly allowed. The impugned judgment, decree are set aside, a decree of `40,000/- is passed in favour of appellants/plaintiffs and against defendant No.1/respondent No.3 Parma Nand alongwith interest at the rate of 6% per annum from the date of institution of the suit i.e. 23.11.1996 till the realization of the suit amount with costs throughout. October 24, 2011 (Kuldip Singh), ( sks) Judge.