RSA No.1038 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1038 of 2011 (O & M) Date of Decision: 03.03.2011 Banwari Lal ……Appellant Versus Smt. Dhanpati and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Chetan Mittal, Sr. Advocate with Mr. Lalit Jain, Advocate for the appellant. L.N. MITTAL, J (ORAL) Banwari Lal-plaintiff has filed the instant second appeal. Suit was filed by plaintiff-appellant against Sundra- defendant (since deceased and represented by respondents as his legal heirs). The plaintiff alleged that the defendant agreed to sell the suit land measuring 24 kanals to the plaintiff for Rs.10000/- and received Rs.3000/- as earnest money and executed agreement dated 22.11.1976. Sale deed was to be executed upto 22.02.1977. The plaintiff thereafter paid Rs.3000/- to the defendant on 23.12.1976. The defendant executed second agreement dated 23.02.1977 and received further amount of Rs.2400/- and agreed to execute the sale deed upto 27.03.1977 on payment of balance sale price of Rs.1600/-. However, the defendant again expressed his inability to execute the sale deed. Consequently, third agreement to sell dated 07.11.1977 was entered into and the balance sale consideration of Rs.1600/- was also paid to the defendant at that time. In that agreement, the defendant admitted the previous two agreements dated 22.11.1976 and 23.02.1977. Sale deed was agreed to be executed upto RSA No.1038 of 2011 (O & M) - 2 - 07.11.1978. However, the defendant committed breach of the agreement, although the plaintiff has always been ready and willing to perform his part of the contract. Accordingly, the plaintiff sought possession of the suit land by specific performance of the aforesaid agreements and in the alternative, recovery of Rs.12400/- paid by the plaintiff to the defendant was sought along with interest and costs of the suit. The defendant admitted that he had executed agreement dated 22.11.1976 for sale of the suit land in favour of the plaintiff. The defendant pleaded that the plaintiff did not have sufficient money and, therefore, he failed to get the sale deed executed and registered upto 22.02.1977 as stipulated in the agreement. Consequently, earnest money paid by the plaintiff was liable to be forfeited. However, on plaintiff’s request, the defendant executed the second agreement dated 23.02.1977 extending the date of sale deed upto 27.03.1977, but still the plaintiff failed to pay the balance sale consideration and, therefore, the agreements stood cancelled and the earnest money stood forfeited on 27.03.1977. There was no breach of contract on the part of the defendant. Agreement dated 07.11.1977 was for mortgage of the suit land with possession in favour of the plaintiff for Rs.4000/-, but the plaintiff did not pay the mortgage amount and, therefore, the mortgage deed could not be executed and registered. Various other pleas were also raised. Learned Sub-Judge, Ist Class, Karnal vide judgment and decree dated 19.08.1981, instead of decreeing the suit for possession of suit land by specific performance of the agreements, decreed the suit for recovery of Rs.12,400/- with interest at the rate RSA No.1038 of 2011 (O & M) - 3 - of 6% per annum from 0711.1978 till recovery. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 26.10.2010. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned senior counsel for the appellant and perused the case file. The agreements pleaded by the plaintiff are sufficient to disentitle him to the relief of specific performance. According to agreement dated 22.11.1976, sale deed was to be executed upto 22.02.1977. According to agreement dated 23.02.1977, sale deed was to be executed upto 27.03.1977. It is not the plaintiff’s case that he went to the office of Sub-Registrar on 27.03.1977 to get the sale deed executed and registered in terms of the aforesaid agreements. On the contrary, the plaintiff pleaded third agreement dated 07.11.1977 in continuation of the previous two agreements. The plaintiff alleged that the third agreement was also for sale of the suit land and in the said third agreement, earlier two agreements were also admitted by the defendant. However, perusal of the third agreement dated 07.11.1977 reveals that it was not an agreement for sale of the suit land. On the contrary, it was an agreement for mortgage of the suit land. In this agreement, there is no reference to the previous two agreements, although the plaintiffs specifically pleaded in the plaint that in the third agreement, the defendant owned and admitted the previous two agreements. The plaintiff also specifically pleaded that the third agreement was also for sale of the suit land and the sale deed was to be executed upto 07.11.1978. However, perusal of the third agreement dated 07.11.1977 reveals RSA No.1038 of 2011 (O & M) - 4 - that it was an agreement for mortgage of the suit land for Rs.4000/- and mortgage deed was to be executed upto 07.11.1978 and this agreement does not mention that any sale deed was to be executed. This agreement completely negatives the claim of the plaintiff for sale of the suit land. The total sale consideration as per first two agreements was Rs.10000/-. However, by making payment of Rs.4000/- by third agreement, the plaintiff paid total amount of Rs.12400/-. Nothing was averred in the plaint as to why the plaintiff paid Rs.12400/- to the defendant against total sale consideration of Rs.10000/-. On the contrary, the plaintiff pleaded that he paid Rs.1600/- to the defendant vide third agreement dated 07.11.1977. However, when the defendant pleaded that the amount of Rs.4000/- was not paid to him as per third agreement, the plaintiff in the replication came out with a new version that he had paid Rs.1600/- towards sale price and Rs.2400/- towards expenses of the sale deed. This plea is inherently and intrinsically unreliable. According to third agreement, no sale deed was to be executed and only mortgage deed was to be executed and that too after one year. Consequently, the question of payment of Rs.2400/- as expenses of the sale deed one year in advance did not arise. Even otherwise, the expenses had to be paid when the sale deed was to be executed. The sale deed for consideration of Rs.10000/- would not have also required expenses of Rs.2400/-. The third agreement completely negatives the claim of the plaintiff. There is no reference to the previous two agreements to sell in the third agreement. On the contrary, the third agreement is regarding mortgage of the suit land. If the earlier two agreements RSA No.1038 of 2011 (O & M) - 5 - had remained alive, then there would have been no question of the third agreement of mortgage instead of agreement to sell. Learned counsel for the appellant contended that the defendant did not admit the third agreement. The contention is untenable. The defendant did not admit the third agreement, but pleaded that the mortgage money of Rs.4000/- was not paid to him and, therefore, the mortgage deed was not executed pursuant to said agreement. However, even taking the plaintiff’s case at face value, in view of third agreement dated 07.11.1977 entered into between the parties, the question of specific performance of earlier agreements of sell did not arise when the third agreement was entered into for mortgage of the suit land and not for sale of the suit land. It is also worth noticing that in the plaint, the plaintiff did not allege that possession of the suit land was delivered to him at the time of execution of third agreement. In the replication, the plaintiff tried to cover up this lapse by pleading that possession of the suit land had been delivered to him at the time of third agreement. However, the plaintiff could not take all the new pleas in the replication. Moreover, the plaintiff claimed the relief of possession of the suit land. It would depict that plaintiff was not in possession of the suit land. Learned counsel for the appellant has relied on judgment of Nagpur High Court in the case of Laxman Waman Halde versus Balmukund Jainarain and another, AIR 1954 Nagpur 142. RSA No.1038 of 2011 (O & M) - 6 - However, this judgment has no bearing on the facts of the instant case at all. The plaintiff in the plaint did not even plead as to why the sale deed could not be executed on 22.02.1977 and 23.07.1977 as per first two agreements. However, it was only in the replication that the plaintiff pleaded that since sale deed in favour of defendant himself had not been executed and registered by then, the sale deed could not be executed by the defendant in favour of the plaintiff. If it was so, it could be recited in the agreements that the sale deed would be executed by the defendant after the sale deed is executed in favour of the defendant himself, but both the first agreements stipulated specific dates for execution of the sale deed. For the reasons aforesaid, I find no merit in the instant second appeal. The question of sale of the suit land to the plaintiff by the defendant did not arise in view of third and last agreement dated 07.11.1977 pleaded and proved by the plaintiff himself. Consequenlty, concurrent finding recorded by both the Courts below decreeing the suit of the plaintiff for recovery of money paid by the defendant does not require interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 03.03.2011 A.kaundal