RSA No. 4040 of 2003(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4040 of 2003(O&M) Decided on : 16-01-2009 Biru Ram and others ....Appellants VERSUS Barkha Ram and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Ms.Monika Jalota, Advocate for the appellants Mr. Swaran Sandhir, Advocate for the respondents. MAHESH GROVER, J C.M. No. 10179-C of 2003 For the reasons mentioned in the application, delay of 50 days in re-filing the appeal is condoned. RSA No. 4040 of 2003 This is defendant's second appeal against the judgment of the learned Trial Court dated 8.5.2002 and the First Appellate Court dated 1.2.2003. Biru Ram, appellant no.1 herein was owner in possession of the agricultural land measuring 4 Bighas regarding which he has executed an agreement to sell dated 26.5.1995 in favour of the present respondents for a total consideration of Rs. 1,20,000/-. An earnest money of Rs. 50,000/- was paid to him and the date for execution of the sale deed was fixed as 15.6.1997. The plaintiffs-respondents alleged that as a measure of part RSA No. 4040 of 2003(O&M) 2 performance of the agreement possession of the land in question was also given even though revenue entries have not been changed to that effect. Registered notice was sent to them on 27.5.1997 but the appellants did not execute the sale deed. On 29.5.97 while obtaining copy of the Jamabandi for the suit land, the plaintiff-respondent learnt that appellant without any consideration, notice to them had fraudulently transferred the suit land in favour of the appellants no. 2 to 5 who are the sons and grandsons of appellant no.1. The appellants who contested the suit contended that there was no agreement to sell and denied the receipt of the earnest money. Fraud was pleaded and it was denied that the respondents were put in possession of the suit property. It was pleaded that on the pretext of getting pension papers signed, thumb impression of appellant no.1 was taken which has been abused to execute the agreement. It was further pleaded that on 30.7.94 appellant no.1 had executed an agreement with the respondents regarding Khasra No. 187 but the agreement was cancelled and the earnest money was forfeited. Trial Court framed the following issues:- 1. Whether the defendant no.1 entered into an agreement to sell with the plaintiffs on 26.5.1995, for total sale consideration of Rs.1,20,000/- and received Rs.50,000/- as earnest money from the plaintiffs? OPP. 2. Whether the plaintiffs are ready and willing to perform part of their contract and are still ready and willing to perform part of their contract? OPP. 3. Whether the plaintiffs are entitled to decree for specific performance as prayed for ? OPP. RSA No. 4040 of 2003(O&M) 3 4. Whether the plaintiffs are entitled to alternative decree for recovery of Rs.1,20,000/-.OPP. 5. Relief. Upon appraisal of the evidence before it, the Trial Court came to the conclusion that the suit of the plaintiffs deserved to be decreed but granted an alternate relief by directing the return of an amount of Rs.50,000/- alongwith interest at the rate of 18% per annum w.e.f. 26.5.1995 till the date of payment. The aforesaid suit having been decreed in the aforesaid terms became the subject matter of the First Appellate Court as it was challenged by both the appellants and the respondents. The First Appellate Court dismissed the appeal of the appellants while accepted the same qua the respondents and directed the execution of the sale deed vide the impugned judgment dated 1.2.2003. It was directed that the sale deed be executed in favour of the plaintiffs-respondents within three months from the date of judgement, failing which the respondents were granted liberty to get it executed through the process of the Court. The appellants are in Regular Second appeal. Learned counsel for the appellants contended that the agreement to sell is a result of fraud. It was further pleaded that the decree could not be executed as the consent decree qua the same land has already been passed in favour of appellants no. 2 to 5 and further that the land was ancestral which has come on record. It was also contended that the suit had been filed prior to the date which was fixed for execution of the sale deed i.e. 15.6.1997. The suit in the instant case was preferred on 3.6.1997. On the strength of this it was contended that the entire proceedings were vitiated as no cause of action RSA No. 4040 of 2003(O&M) 4 had accrued to the respondents on 3.6.1997. On the other hand, learned counsel for the respondents contended that on an earlier occasion in 1994, an agreement to sell land was executed and the land was found to be subject matter of litigation as it had been attached subsequent to a decree. An amount of Rs.50,000/- was paid. Subsequently, this agreement was rescinded and an another agreement regarding the suit land land was executed on 26.5.1995 and an amount of Rs. 50,000/- was adjusted as earnest money against the same. It was then contended that the plaintiffs-respondents discovered that the suit property had been fraudulently transferred in the name of appellants no. 2 to 5 and when this fact was discovered they immediately filed this suit and that there was no use of waiting till 15.6.1997 once the agreement to sell was defeated by the acts of the appellants. I have heard learned counsel for the parties. Concededly, both the Courts below had recorded a concurrent finding of facts that there was an agreement to sell which was validly proved. The plea of fraud which was set up by the appellants was negated by both the Courts below. Once a plea of fraud is taken up, the onus lies heavily on the person who alleges such a fraud. It is apparent that the appellant could not discharge this onus satisfactorily. The concurrent findings of fact have been recorded to this effect by both the Courts below. That apart both the appellants and the respondents have agreed that an earlier agreement had been executed in the year 1994 between them which could not be enforced and resulted into a sale deed for the reason that the land which was the subject matter of the agreement to sell was subjected to an attachment by a Court decree. Subsequently, also after the execution RSA No. 4040 of 2003(O&M) 5 of this agreement to sell on 26.5.1995, the appellant no.1 tried to defeat the rights of the respondents by suffering a collusive decree in favour of his sons and grandsons. Implicit in the conduct of the appellant no.1 and manifest from his actions is the dishonest intention to defeat the agreement to sell in favour of the respondents. After having considered the matter, I am of the considered opinion that since the ingredients which are required to establish a plea in a suit for specific performance have been established beyond any doubt and the same being the question of facts, no interference is warranted in the impugned judgments as no substantial question of law has been shown to have arisen in the present appeal and the same being devoid of any merit is hereby dismissed. January 16 , 2009 (Mahesh Grover) rekha Judge