RSA No.177 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.177 of 2009 Date of decision: July 7, 2011. Sukhdev Singh ... Appellant(s) v. Rajender Singh & Anr. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Rajesh Narang, Advocate, for the appellant(s). Shri Jasbir Rattan, Advocate, for the respondents. Kanwaljit Singh Ahluwalia , J. (Oral): CM No.398-C of 2009 For the reasons stated in the application, the same is allowed and the delay of 96 days in re-filing the appeal is condoned. Main case This is defendant's regular second appeal. Plaintiffs Rajender Singh and Sukhwinder Kaur filed a suit for possession through specific performance of the agreement to sell dated 19.12.1997 executed by the appellant herein for sale of plot of land measuring 45x100', i.e., 17 marlas, being 17/132 share out of 6 kanal 12 marlas, detailed description of which was given in the head note of the plaint on receipt of balance sale consideration and to execute and get registered the sale deed of total consideration amount in favour of plaintiffs or in the alternative a decree for RSA No.177 of 2009 -: 2 :- recovery of Rs.4.00 lacs, i.e., Rs.2.00 lacs paid as earnest money and Rs.2.00 lacs on account of damages and for permanent injunction restraining the defendant from alienating the suit land to any person other than the plaintiffs. Briefly, the facts of the case are that on 19.12.1997 appellant Sukhdev Singh had executed an agreement to sell dated 19.12.1997 Ex.P1, for the sale of plot in dispute to the plaintiffs as per the agreement, Rs.2.00 lacs were received from the respondent-plaintiffs by the appellant-defendant as an earnest money and the remaining amount was to be paid at the time of execution and registration of the sale deed on or before 31.12.1998. Plaintiff-respondent pleaded that they went before the office of Sub Registrar, Nabha on the stipulated date i.e. 31.12.1998 along with balance sale consideration of Rs.2.00 lacs in the shape of bank draft/pay order dated 31.12.1998 payable at Punjab and Sind Bank and waited there for whole of the day but the defendant-appellant did not come to perform his part of the agreement. They also got an affidavit attested from the office of Sub Registrar, Nabha regarding their presence. Thereafter, a notice was issued on 9.1.1999 calling upon the defendant to execute the sale deed. It was further pleaded that the plaintiff-respondents were and still are ready and willing to perform his part of the agreement. Upon notice of the suit, defendant appeared and filed a written statement. He denied execution of agreement to sell, Ex.P1, receipt of earnest money of Rs.2.00 lacs, execution and registration of any sale deed, authenticity of the alleged affidavits, service of notice upon him. In the written statement, it was also stated that Rajender Singh respondent and his brother Baldev Singh were having good relations with the appellant- RSA No.177 of 2009 -: 3 :- defendant. The appellant-defendant owed some money to Baldev Singh in the year 1993-94, therefore, his signatures were obtained by the plaintiff- respondent on various papers. It was further stated that a sum of Rs.1.50 lacs was agreed to be paid as a final settlement and he was taken by Baldev Singh, brother of the plaintiff to the Court for executing the agreement. It is stated that a false agreement was got executed due to misrepresentation. It was also stated in the written statement that the land was valuable and at that time, market price was Rs.3000/4000/- per square yard. After the pleadings were concluded, following issues were drawn:- 1. Whether the plaintiff is entitled for the decree for possession as prayed for? OPP 2. Whether the defendant entered into an agrement to sell dated 19.12.97 with the plaintiff? OPP 3. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 4. Whether the plaintiff is ready and is willing to perform his part of the contract? OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the suit of the plaintiff is false, frivolous? OPD 7. Whether the plaintiffs have no cause of action or locus standi to file the present suit? OPD 8. Whether the agreement is fabricated and got executed of concealing facts? OPD 9. Relief. RSA No.177 of 2009 -: 4 :- Plaintiff-respondents led their evidence and examined six witnesses whereas the appellant-defendant examined 13 witnesses. After appreciating the evidence, the trial court returned a finding regarding execution of agreement to sell Ex.P1. The relevant paragraph reads as under:- “12. In view of my foregoing discussion, I have come to the conclusion that plaintiff has successfully proved the execution of agreement to sell dated 19.12.97 as Ex.P1 and receipt of earnest money of Rs.2 lac and defendant has failed to prove his allegations.” However, the trial court held that since jamabandi has not been produced and no description of the plot has been given in the agreement to sell, therefore possession of the plot described cannot be given to the plaintiffs. The trial court, therefore, granted alternative relief and held that the plaintiffs were entitled to recover Rs.2.00 lacs as earnest money and another sum of Rs.2.00 lacs as damages, along with interest @ 12% p.a. On the decretal amount from the date of decree till its realization. Aggrieved against the decision of the trial court, both plaintiffs and the defendant-appellant filed separate appeals. The learned lower appellate court dealt with both the appeals jointly having been arisen out of one and the same judgment and decree dated 15.11.2006. After appreciating oral as well as documentary evidence brought on record, it concurred with the trial court regarding execution of agreement to sell Ex.P1. However, the lower appellate court modified the relief and held that the plaintiffs are entitled to specific performance of the agreement. It set aside the judgment and decree of the learned trial court dated 15.11.2006 to that extent and modified and decreed the suit for specific performance of RSA No.177 of 2009 -: 5 :- agreement Ex.P1 regarding suit land. Plaintiffs were directed to deposit the remaining sale consideration in court and defendant to execute the sale deed, otherwise, they would be entitled to get the same through court. Hence, the present appeal has been filed by defendant-appellant. Shri Rajesh Narang, Counsel appearing for the appellant- defendant, has proposed following as a substantial question of law for consideration of this Court:- “Whether the lower appellate court was justified in modifying the alternative relief granted by the trial court by directing specific performance of the agreement when specific description of the plot was not given in the agreement to sell, Ex.P1?” I have perused agreement to sell ex.P1 in the civil suit no.43. Last line of the agreement, when translated into English, reads as under:- “The above said plot will be given on the side of three roads; on the front side of the plot there is main road of HMM and on the second and third, he himself and on the fourth side, there is a road.” Therefore, in the last line of the agreement to sell, description of the property has been given. It is not the case of the defendant-appellant that from the land owned by him, plots cannot be carved out. Due to specific performance of the agreement, share can be transferred in favour of the plaintiffs. It cannot be held that there is no specific description of the plot in agreement Ex.P1. In the facts and circumstances of the case, no substantial question of law arises for consideration of this Court. Once there is a RSA No.177 of 2009 -: 6 :- concurrent finding of fact regarding execution of the agreement, findings returned by the appellate court suffer from no infirmity. Counsel for the appellant has relied upon Bhagwan Singh & Ors. v. Nawab Mohd. Iftikhar Ali Khan and Ors., 1982 CLJ (C&Cr) 629 to say that where the agreement is vague, not definite and precise, there can be no performance of the contract. This Court has already made reference to the agreement and it cannot be said that the agreement is vague and not definite. A further reliance has been placed upon Smt. Phuljhari Devi v. Mithai Lal & Ors AIR 1971 Allahabad 494 and Jharna Majumdar v. Suprobhat Bhowmick 2002(4) ICC 959 to fortify the above said submission. However, this Court is of the emphatic opinion that the judgments relied upon by Counsel for the appellant are not applicable as agreement specifically gives description of the land from which the plot is to be carved out and given to the plaintiff-respondent. Another argument raised by Counsel for the appellant -defendant is that Baldev Singh, husband of Harminder Kaur, has stepped into the witness box as attorney of his wife, therefore, his evidence cannot be taken into consideration. This Court cannot become oblivious of the fact that on 19.12.1997, three agreements to sell were executed by the appellant- defendant in favour of Baldev Singh, his brother Rajender Singh and wife Harminder Kaur. The language of the agreements to sell is identical except last portion where the description of the property is given. All these agreements are attested by Gurdial Singh and Om Parkash as attesting witnesses. Husband, being power of attorney, is privy to all the facts in the knowledge of the wife and is competent to vouchsafe regarding the same. Thus, none of the arguments raised by learned counsel for the appellant is RSA No.177 of 2009 -: 7 :- tenable. On the other hand, Counsel for the respondent, to rebut this argument, has referred to Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar (dead) by LRs and others, AIR 1981 SC 2235 wherein it is held that failure of the party to appear in the Court, question of drawing adverse inference would arise only when there is no other evidence on the point in issue, and Smt. Swarn Kanta and another v. Amar Chand Tamra and others(2011)2 PLR 308 wherein it was held that the party cannot be non-suited merely on the ground of non-appearance if other evidence on the record is sufficient to sustain the claim of the said party. No other point has been urged. Therefore, no interference is warranted. The present appeal, being devoid of any merit, is hereby dismissed. [Kanwaljit Singh Ahluwalia] July 7, 2011. Judge kadyan