RSA No. 175 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 175 of 2009 Date of decision: 17.4.2009 Jug Lal … Appellant. Versus Vinod Kumar … Respondent Present: Mr. Amit Jain, Advocate, for the appellant. … ARVIND KUMAR, J: The present appellant, Jug Lal, was the defendant in the suit for possession preferred against him by plaintiff, Vinod Kumar. Plaintiff brought the present suit stating therein that vide agreement to sell dated 8.10.2004, defendant Jug Lal being owner and in possession of 396/1299 share measuring 19 kanals 16 marlas comprised in Khewat No. 1197, Khatauni No. 1996, Kita No. 15 situated in the revenue estate of village Hijrawan Kalan, Tehsil and District Fatehabad, agreed to sell the suit land for a sale consideration of Rs.7,89,000/- per acre and received a sum of Rs. 4,00,000/- as earnest money in the presence of attesting witnesses on the said date. The sale-deed was agreed to be executed on 15.1.2005. According to the plaintiff, he was always ready and willing to perform his part of the contract and therefore, he visited the office of Sub Registrar, Fatehabad, on 17.1.2005 as 15.1.2005 and 16.1.2005 were declared holidays, but the defendant did not turn up for execution of the sale-deed, due to which the plaintiff filed an affidavit and got it attested from the Sub Registrar, Fatehabad, to mark his presence. Then the plaintiff served upon the defendant a legal notice dated 18.2.2005 to which the defendant filed reply; however, refused to admit the claim of the plaintiff. Hence, the suit. Upon notice, defendant filed written statement RSA No. 175 of 2009 2 denied having received an amount of Rs.4,00,000/- as earnest money, as stated by the plaintiff; rather he stated that the value of the suit land was around Rs.35,00,000/- per acre. Trial Court upon appreciation of evidence adduced on record, although observed that a sum of Rs.4,00,000/- was received by the defendant as earnest money; but taking the total sale consideration of Rs.7,89,000/- as meager one, declined to grant decree for specific performance in favour of the plaintiff and instead passed a money decree to the tune of Rs.4,00,000/- along with interest at the rate of 18 per cent per annum from 15.1.2005 till the amount is fully released to the plaintiff. Feeling dissatisfied therefrom, plaintiff preferred an appeal. Defendant did not challenge the finding of the trial Court by way of any cross-objections. The first appellate Court while allowing his appeal, set aside the judgment and decree of the trial Court and consequently, decreed the suit of the plaintiff for specific performance thereby directing the defendant to execute the sale-deed in respect of the suit property in favour of the plaintiff within two months, after receipt of remaining sale consideration, failing which the plaintiff was held entitled to get the decree executed through the Civil Court. Against the judgment and decree of the first appellate Court, the defendant has come up in this present second appeal. The first appellate Court while setting aside the finding of the trial Court in granting money decree, has given an elaborate reasoning and passed a decree for specific performance of the contract in favour of the plaintiff. In para 18 of its judgment, the first appellate Court has observed :- “18. The main point to be determined by this Court is as to whether the plaintiff is entitled to the decree of the specific performance or that money decree granted by the learned lower Court is sufficient. The learned lower Court has justified the passing of the money decree with the observation that a sum of Rs.4,00,000/- was received by the defendant from the hands of the plaintiff and the land was agreed to be sold at meager price of Rs.7,89,000/- per acre whereas the market value of the suit land is around Rs.35,00,000/- per acre. The Court RSA No. 175 of 2009 3 further observed that if the decree for specific performance would be granted in favour of the plaintiff that will tantamount to an unfair and unjust in favour of the plaintiff over the defendant. There is no evidence led by the defendant that the market price of the suit land at the time of execution of the agreement to sell was Rs.35,00,000/- and there is no basis of this observation that the price was Rs.35,00,000/- per acre. Rather as has already been observed in the foregoing paras that DW-1 Jug Lal in his cross-examination has stated that he struck bargain with Dharam Chand, plaintiff, in civil suit No. 304-C regarding 4 kanals for a consideration of Rs.2,00,000/-. This land is part of the khewat of the suit land as such the value of the suit land was Rs.4,00,000/- per acre, when he struck bargain with Dharam Chand, plaintiff, in civil suit NO. 304-C. The plaintiff has purchased the suit land for a sale consideration of Rs.7,89,000/- per acre and this value cannot be treated as a less amount than the market rate as already observed also.” Besides the above, the execution of agreement to sell, Exhibit P-1, has been held to be duly proved by leading of cogent evidence by the plaintiff. As regards the allegation of the defendant that the execution of agreement to sell, Exhibit P-1, was not in a sound state of mind, the first appellate Court has noticed the following circumstances to hold that the defendant was in a sound state of mind while executing the sale-deed, Exhibit P-1; (i) that the defendant applied for a copy of jamabandi, Exhibit P-5, for the year 2001-02 showing his ownership, which was so received by him from the Patwari on 7.10.2004. Thereafter, in afore-stated civil suit No. 304-C titled as Dharam Chand v. Jug Lal, he gave statement on 29.9.2004 wherein he has taken permission that he will be entitled to alienate the remaining land make encumbrances over the suit land, RSA No. 175 of 2009 4 which shows that this statement was recorded just 9 days before execution of agreement to sell dated 8.10.2004, Exhibit P-1, followed by compromise in that suit on 11.12.204, which apparently shows that all this was done by him a sound disposing mind. (ii) That out of Rs.4,00,000/- so received as earnest money, he deposited a sum of Rs.3,00,000/- on the same day, i.e. 8.10.2004, in an FDR, meaning thereby he was having a bank account as a prudent mind with a sound state of mind; (iii) In the present suit, defendant Jug Lal filed written statement accompanied by an affidavit duly signed/verified by him and also engaged a counsel to conduct his case. This fact also shows that he was in a sound state of mind. For upsetting the finding of the trial Court granting money decree in favour of the plaintiff on the ground that the grant of decree for specific performance of the contract would cause great hardship to the defendant, the first appellate Court has noticed a judgment of this Court in Ram Piari and others vs. Mehar Singh and others, 2007(4) RCR 611, wherein it has been held that in case of specific performance of the contract the plea of vendor that she was a widow lady and was likely to suffer great hardship in case agreement was specifically performed and that she was ready to compensate the vendor, was turned down and it was held that there was no plea and evidence of hardship in pleadings. In this second appeal, learned counsel appearing on behalf of defendant-appellant has not been able to show as to how the finding of fact so recorded by the first appellate Court Courts suffers from any infirmity or is contrary to the record. No question of law, muchless substantial, arises in the present appeal. Consequently, the appeal being without any merit is hereby dismissed. April 17, 2009 ( ARVIND KUMAR ) JS JUDGE RSA No. 175 of 2009 5