RSA No.3362 of 2004(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3362 of 2004(O&M) Date of decision: 22.9.2008 Balraj Singh …… Appellant versus Shyam Singh and others …….Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR GARG * * * * Present: Mr. Deepak Sharma, Advocate for the appellant. Mr. B.R. Mahajan, Advocate for the respondents. * * * * Rakesh Kumar Garg, J . CM No.8149-C of 2004 For the reasons recorded in the application, delay of 57 days in refiling the appeal is condoned. CM stands disposed of. RSA No.3362 of 2004(O&M) 1. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby the suit for possession of 1/8th share of the plaintiffs by way of specific performance of the agreement of sale dated 6.1.1995 out of land as detailed in the suit, on payment of balance sale consideration with all rights, title and interest in the land in dispute has been decreed. 2. The facts of the present case as projected by the plaintiffs in brief are, that the defendant along with his brothers namely Raghraj Singh, Shivraj Singh and Ranbir Singh were the owners of the land in dispute to the extent of ½ share whereas remaining ½ share was owned by Jabar Singh son of Talab Singh. The land in dispute was already in possession of father of the plaintiffs namely Jaswant Singh as mortgagee and after his death, the plaintiffs came into possession of the same as mortgagee. The defendant along with his brothers and Jabar Singh executed agreement of RSA No.3362 of 2004(O&M) 2 sale in favour of plaintiff No.1 on 6.1.1995 in order to sell the land in dispute @ Rs.77,500/- per acre and they also received earnest money of Rs.50,000/- from the plaintiff at that time. It was agreed that the balance sale consideration would be paid at the time of execution of sale deed i.e. on or before 30.6.1996. Thereafter, on 25.5.1995, the brothers of defendant along with Jabar Singh executed sale deed of their share in favour of the plaintiffs and received the balance sale consideration before the Sub Registrar & got the mutation sanctioned. However, the defendant refused to execute the sale deed of his share of the land in dispute. Plaintiff No.1 along with the balance sale consideration appeared before the Sub Registrar on 3.7.1995 as 30.6.1995 to 2.7.1995 were holidays but the defendant did not turn up to execute the sale deed, therefore, the plaintiff got his presence marked on the backside of application before the Sub Registrar. It is further the case of the plaintiffs that they had always been ready and willing to perform their part of agreement and are still ready to pay the balance sale consideration to the extent of share of defendant, but the defendant in spite of repeated requests is not prepared to execute the sale deed to the extent of his share and accept the balance sale consideration, hence the suit. 3. Upon notice, defendant contested the suit by filing written statement raising preliminary objections regarding maintainability of the suit, locus-standi of the plaintiffs to file the present suit, suit being barred by limitation, being not properly verified according to law and inter alia pleaded that he never executed any agreement in favour of the plaintiffs nor received any earnest money. The alleged agreement dated 6.1.1995 is a forged, fabricated and manipulated document, procured by the plaintiffs in order to grab the property of the defendant and to harass him. In the end, defendant made a prayer for dismissal of the suit with heavy costs. 4. In order to adjudicate upon the controversy between the RSA No.3362 of 2004(O&M) 3 parties, following issues were framed:- “1. Whether the defendant has executed the agreement of sale of his share in the suit land fully detailed in the head note of the plaint in favour of the plaintiffs on 6.1.1995, as alleged? OPP. 2. If issue No.1 is proved, whether the plaintiffs were always ready and willing to perform their part of contract? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the suit is time barred? OPD. 5. Relief." 5. In order to prove his case, the plaintiffs examined witnesses and tendered documents in evidence. On the other hand, the defence of the defendants was struck off vide order dated 28.7.2003. 6. The trial Court under issue Nos.1 and 2 concluded that the defendant has executed the agreement of sale of his share in the suit land in favour of the plaintiffs on 6.1.1995 and that the plaintiffs were always ready and willing to perform their part of the contract. Issues No.3 and 4 were decided against the defendant as the onus to prove these issues was upon the him. The defendant did not make any effort to lead evidence and his defence was struck-off. These issues were not pressed before the trial Court. The trial Court decreed the suit of the plaintiffs for specific performance of the agreement of sale dated 6.1.1995. 7. Aggrieved against the said judgment and decree, the defendant filed an appeal which was dismissed by the Additional District Judge, Panchkula vide impugned judgment and decree dated 17.1.2004. Before the Lower Appellate Court. 8. Still not satisfied, the defendant has filed the present appeal in RSA No.3362 of 2004(O&M) 4 this Court. 9. Counsel for the appellant has vehemently argued that the suit of the plaintiff-respondents was barred by limitation as the plaintiff- respondents have specifically taken a stand that the appellant had refused to execute the alleged sale deed in their favour on 25.5.1995 and thus, on refusal of the appellant, the cause of action arose to them and the suit could have been filed within three years i.e. upto 24.5.1998 whereas the present suit has been field on 16.7.1998 which is clearly time barred. Counsel for the appellant has also argued that from the facts and circumstances of the case, it is clearly established that the respondents were not ready and willing to perform their part of contract which can be seen from the fact that the suit for specific performance was filed after three years and they kept quiet for such a long period. Therefore, in these circumstances the Courts below have erred at law while granting decree for specific performance of the agreement by way of execution of sale deed and thus, the suit of the plaintiff-respondents is liable to be dismissed. 10. On the other hand, Sh. B.R. Mahajan, learned counsel for the respondents has vehemently supported the findings of the Courts below and has refuted the contentions raised by the learned counsel for the appellant. It has been argued on behalf of the plaintiff-respondents that the last date for executing the sale deed as per the stipulation in the agreement Ex.P3 was 30.6.1995 and therefore, the suit was within limitation as the suit was filed on 16.7.1998 on the opening day after summer vacations (i.e. 15.6.1998 to 15.7.1998), as the limitation for filing the suit had expired during summer vacations. The learned counsel for the respondents also argued that since the vendor has denied the agreement to sell, the plaintiffs were not required to prove their readiness and willingness. Learned counsel has relied upon a judgement of this Court RSA No.3362 of 2004(O&M) 5 titled Surjit Singh v. Ombir Singh 1998 (2) SLJ 1758 in this regard. 11. I have heard learned counsel for the parties and perused the record. 12. I find no merit in the contentions raised by the learned counsel for the appellant. Undisputedly, the last date for execution of the sale deed was 30.6.1995. The period of three years of limitation was to expire on 30.6.1998. The Civil Courts were closed from 15.6.1998 to 15.7.1998 for summer vacations. The present suit was filed on 16.7.1998 i.e. the opening day after summer vacations. Therefore, it cannot be said that the suit was filed beyond limitation. The argument of the learned counsel for the appellant that the limitation would start from on 25.5.2005 i.e. when the appellant refused to execute the sale deed is misconceived. Even if the appellant had refused to execute the sale deed before the last date fixed for execution of the same, he might have changed his mind and executed the sale deed upto the stipulated date i.e. 30.6.1995. Moreover, issue No.4 relating to limitation was not pressed by the appellant before the trial Court. Thus, the arguments is without any force. The other argument of the learned counsel for the appellant is also without any force as this Court in Surjit Singh's case (supra) has authoritatively laid down that in a case where execution of the agreement is denied it is not necessary for the plaintiff to prove his readiness and willingness for performing his part of the contract. 13. No other point has been urged. 14. For the reasons recorded, I find no merit in the present appeal. No substantial question of law arises. 15. Dismissed. September 22, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.3362 of 2004(O&M) 6