RSA No.2116 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2116 of 2010 (O&M) Date of Decision: 22 .11.2011 Gurjit Singh & Ors. ...Appellants Vs. Sarban & Ors. ....Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Arvind Singh, Advocate, for the appellants. Mr.Naresh Kaushik, Advocate, for respondents No. 1 and 2. Mr.J.S.Saneta, Advocate, for respondent No.3. --- A.N.Jindal, J. A suit for specific performance filed by plaintiff Inder Singh (now deceased) for 3/4th share of land measuring 78 kanals 15 marlas was decreed by the trial court on 27.01.2007. Appeal preferred by the plaintiff for decreeing the suit as a whole for specific performance of the entire land measuring 78 kanals 15 marlas was also dismissed on 30.5.2009. Similarly, the appeal RSA No.2116 of 2010 2 preferred by the defendants for dismissing the suit as a whole was also dismissed. Aggrieved against the said judgments, both parties had again come up in this Court. RSA No. 3167 of 2009 preferred by defendants No. 1 and 2 has already been dismissed by this court vide judgment dated 31.08.2009. Now the appellant/plaintiff's appeal is before me for disposal. The case of the plaintiff is that he along with defendant No.3 Prem Singh entered into an agreement for purchase of 78 kanals 15 marlas of land as fully detailed in the heading of the plaint with the defendants No.1 and 2. Terms and conditions of the agreement in nutshell were:- (i) that the plaintiff would purchase 3/4th share and defendant No.3 would purchase 1/4th share of the suit land; (ii) price of the land would be Rs.50,000/- per acre (iii) earnest money of Rs.2.50,000/- was paid and the remaining earnest money was to be paid on or before 15.6.1998; (iv) if the plaintiff fails to execute the sale deed then the earnest money would be forfeited and in case the defendants fail to execute the sale deeds then the plaintiff would have right to get the sale deed executed by making payment of the remaining sale consideration, through the court of law; (v) it was agreed that the possession would be delivered to the plaintiff. However, it was not delivered because of the stay order passed by the court in a suit pending between the defendants and a third party. It was also agreed that the plaintiff could get the sale deed in the terms of the agreement, executed in his own name or in RSA No.2116 of 2010 3 the name of any one he desired. The suit was contested by the defendants. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the parties entered into agreement to sell the suit land?OPP 2. Whether a sum of Rs.2,50,000/- was given to the defendants No.1 and 2 by the plaintiff and defendant No.3 on loan? OPD 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has not come to the court with clean hands? OPD 5 Whether the suit is false and frivolous? OPD 6. Relief. Both the parties led evidence. On scrutiny, the trial court decreed the suit to the extent of 3/4th share in the land measuring 78 kanals 15 marlas. However, since Prem Singh had not filed suit and did not own the contract, therefore, suit qua the sale of his share in the land was dismissed. Both the parties preferred appeals before the District Judge, Ambala City. Plaintiff in his appeal submitted that though the defendant No.3 had not associated with him in filing the suit and he did not own the contract still he was entitled to get specific performance of whole of the land by making payment of sale RSA No.2116 of 2010 4 consideration, qua the share of Prem Singh, therefore, suit should have been decreed in his favour for the entire land of 78 kanals 15 marlas, whereas defendants Nos. 1 & 2 in their appeal had sought to dismiss the suit in its entirety. Lower appellate court dismissed both the appeals. Still dissatisfied, both the parties preferred two regular second appeals. Regular second appeal preferred by defendants No. 1 and 2 has already been dismissed vide judgment dated 31.08.2009 by this court. Arguments heard. Record perused. There is no denying a fact that defendants Nos.1 and 2 were the owners of the suit land. It is duly established on record by way of consistent documentary as well as oral evidence that the defendants No. 1 and 2 entered into an agreement of sale with the plaintiff and defendant No.3 for sale of land at the rate of Rs.50,000/- per acre. Plaintiff was to purchase 3/4th share of the land, whereas defendant No.3 was to purchase 1/4th share and earnest money of 2.50,000/- was given to defendants No.1 and 2. Stipulated date for execution of the sale deed was 15.6.1998. However, it was extended till 1.7.1999. Plea raised by the counsel for defendants that it was only a money transaction but not a sale transaction, did not find favour with the first appellate court as also with this court as neither any sufficient evidence has been led nor it is proved that defendants No. 1 and 2 had any money transaction earlier with the plaintiff or that the RSA No.2116 of 2010 5 plaintiff was a money lender. The agreement Ex.P.1 in its unambiguous terms speaks that it was an agreement for sale of property. So it would be difficult to believe that it was not an agreement for sale of property. Secondly, in the absence of any such cogent oral evidence Section 92 of the Specific Relief Act does not come into play. Thus, I find no merit in the contention raised by learned counsel for defendants that it was a money transaction and not transaction for sale, the plaintiff has proved the agreement by way of sufficient evidence and he has been always ready and willing to perform his part of the contract, therefore, there is no reason why specific performance of 3/4th share could be ordered. So far as the plea that he was entitled to explore performance of the contract as a whole (i.e. qua whole of the land), the point raised by the plaintiff does not find favour with this court. As per the agreement, the plaintiff had agreed to purchase only 3/4th share, whereas defendant No.3 had agreed to purchase 1/4th share. There is no term in the agreement that in case defendant No.3 refused to perform his part of the contract then the defendant would be bound to sell whole of the land to the plaintiff at the agreed rate. There is also no such term in the agreement that it was only the plaintiff who had paid the earnest money and defendant No.3 had not paid anything out of it. As such, the contract, for the failure of which defendant No.3 was responsible cannot be fulfilled by the plaintiff, so as to make the defendants liable to perform that part of the contract also. RSA No.2116 of 2010 6 No substantial question of law arises in this appeal for consideration of this court. Dismissed. (A.N.Jindal) 22.11.2011 Judge rp