RSA No.100 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 100 of 2010 (O&M) Date of decision: March 08,2011 Dalbir Singh .....Appellant Versus Inder Singh and Others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Harkesh Manuja, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for specific performance of an agreement to sell dated 27.4.2005. The case of the plaintiff, in brief, was that the defendant was onwer of the land measuring 16 kanals i.e. 320/2084 share out of the land measuring 104 kanal 4 marla. Defendant entered into an agreement to sell with the plaintiff on 27.4.2005 qua 16 kanals of land for a total consideration of ` 2,20,000/- per acre. Plaintiff paid ` 4,20,000/- to the defendants towards earnest money . The sale deed was to be executed on or before 12.5.2005. On the stipulated date, plaintiff remained present in the Office of the Sub Registrar to perform his part of the contract but defendant No.1 failed to appear. Hence, the suit was filed by the plaintiff. RSA No.100 of 2010 (O&M) 2 Defendant No.1 was proceeded ex-parte. Bhim Singh moved an application under Order 1 Rule 10 of the Code of Civil Procedure and was impleaded as defendant No.2. In his written statement, he averred that defendant No.1 agreed to sell 11 kanals 12 marlas of land to him for a consideration of ` 1,75,000/- per acre. ` 2,00,000/- were paid to defendant No.1 on 4.9.2002 towards earnest money. Since the sale deed was not executed by defendant No.1 in favour of defendant no.2, he filed a suit for specific performance and the same was decreed on 11.4.2007. the agreement to sell in question was crated to defeat the rights of defendant No2-Bhim Singh. On the pleadings of the parties, following issues wre framed by the trial Court;- “1. Whether the plaintiff is entitled for possession by way of specific performance of the agreement dat. 27.4.05 as alleged in the plaint if so to what effect?OPP 2.Whether the suit is not maintainable?OPD 3.Relief” Vide judgment and decree dated 24.1.2009, the Civil Judge (Junior Division) decreed the suit of the plaintiff for recovery of ` 8,40,000/- along with interest. Aggrieved by the said judgment and decree, plaintiff preferred an appeal. The Additional District Judge vide judgment and decree dated 28.4.2009 allowed the appeal and directed defendant No.1 to execute the sale deed in favour of plaintiff qua 14 kanla 9 marlas of land. Hence, the present appeal by defendant No.1. RSA No.100 of 2010 (O&M) 3 Learned counsel for the appellant has submitted that the first appellate court had erred in directing the appellant to execute the sale deed in favour of the plaintiff qua 14 kanals 9 marlas of land. Plaintiff had not prayed for relinquishment of part of the relief by amending the pleadings. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. Plaintiff had filed suit for specific performance of the agreement to sell dated 27.4.2005 qua 16 marlas of land owned by defendant no.1. The execution of the agreement to sell in question was duly proved by the plaintiff by examining Om Parkash PW2 and Mahender Singh PW3 attesting witnesses to the agreement to sell . Plaintiff also examined Rajinder Singh Kharb as PW4 from whom stamp papers had been purchased for execution of the agreement to sell in question. Satbir Singh PW5 Reader to Naib Tehsildar proved the affidavit Exhibit P1 executed by plaintiff to mark his presence before the Sub Registrar on the stipulated date for execution of the sale deed. Defendant No.1, on the other hand, had been proceeded ex-parte. Thus, in the absence of any evidence led by defendant No.1 to the contrary, the Courts below have rightly held that the agreement to sell in question stood proved to have been executed between the plaintiff and defendant No.1. The trial Court held that the specific performance of the agreement to sell in question could not be ordered as Bhim Singh, defendant No.2 has already got executed in his favour the sale deed through process of Court. RSA No.100 of 2010 (O&M) 4 Learned first appellate Court held that defendant No.1 was owner of 16 knals 1 marla of land. Out of the said land, sale deed had been executed through Court in favour of defendant No.2 qua 11 kanals 12 marlas of land. Plaintiff made a statement that he would not raise his claim with regard to the land measuring 11 kanals 12 marlas belonging to defendant No.2 . In these circumstances, the first appellate Court rightly came to the conclusion tht the speficic performance qua 14 kanals 9 marlas of land could be ordered as part performance of the contract. The view taken by the learned first appellate Court is liable to be upheld as substantial justice has been done between the parties. Although defendant No.1 had agreed to sell 16 knals of land to the plaintiff vide agreement to sell in question but the land that remains in the hands of defendant No.1 was only to the extent of 14 kanals 9 marlas. Plaintiff had also made a statement that he would not raise his claim with regard to land measuring 11 kanals 12 marlas belonging to defendant No.2. Thus, defendant No.1 was liable to execute the sale deed qua 14 kanals 9 marlas of land that remained with him in favour of the plaintiff. In view of the factual position, there is no force in the arguments raised by the learned counsel for the appellant. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge March 08,2011 arya