R.S.A.No. 2417 of 2005 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2417 of 2005 (O&M) Date of decision: 10.9. 2009 Ram Gopal and others ......Appellants Versus Kundan and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Arun Jain, Sr.Advocate with Mr.Vishal Goyal, Advocate, for the appellants. Mr.V.K.Jain, Sr.Advocate with Mr.Parashant Vashisht, Advocate, for the respondents. **** SABINA, J. Plaintiffs – respondents filed a suit for possession by way of specific performance. The said suit was partly decreed to the effect that defendants No.1 to 9 should refund the earnest money along with simple interest @ 12% per annum together with damages of Rs.5,000/- by the Civil Judge (Jr.Divn.), Faridabad vide judgment and decree dated 12.2.2002. The appeal filed by the plaintiffs was accepted with costs by the Additional District Judge (I), Faridabad R.S.A.No. 2417 of 2005 (O&M) 2 vide judgment and decree dated 2.6.2005 and the decree of the trial Court stood modified to the extent that instead of refund of the earnest money by defendants No.1 to 9, they shall execute sale-deed qua the suit land by way of specific performance in favour of the plaintiffs. The order of payment of Rs.5,000/- by the defendants to the plaintiffs as damages, was also set aside. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 1 to 3 of its judgment, are as under:- “1. The plaintiffs had filed a suit for possession by way of specific performance on 21.7.1993 seeking a decree for possession by way of specific performance of the agreement dated 4.1.1985 whereby the defendants No.1 to 9 had statedly agreed to sell to the plaintiff, for an amount of Rs.1,05,000/- land measuring 20 kanals comprised in Khewat No.51, Khatoni No.66, Khasra No.43/15/2 (1-17), 16(7-9), 17/1 (1-8), 24 (1-17) and 25 (7-9) as per jamabandi for the year 1990-91, situated within the revenue estate of village Mujeri in Tehsil Ballabgarh of District Faridabad whereon the defendants 1 to 9 had been in possession since long qua which they were likely to be declared occupancy tenants in the suit brought for this purpose. At the time of execution of the agreement of sale, an amount Rs.30,000/- was statedly R.S.A.No. 2417 of 2005 (O&M) 3 received by the plaintiffs as earnest money. The terms and conditions allegedly stipulated in the agreement dated 4.1.1985 are as hereunder:- (a) That the defendants 1 to 9 would file a suit for grant of occupancy rights in respect of the land detailed in para 1 above and will execute sale deed in respect of the Suit land in favour of plaintiffs 1 to 5; within 3 months after intimation was given by defendants 1 to 9 to plaintiffs 1 to 5 of the declaration of occupancy rights in their favour. (b) That the total consideration was agreed at Rs.1,05 lac out of which Rs.30,000/- were paid by plaintiffs 1 to 5 to defendants 1 to 9 as part payment for being utilized in litigation to be filed by defendants 1 to 9 against the owners of the land for grant of occupancy rights. (c ) That in case defendants 1 to 9 failed to be declared occupancy tenants in the suit land, defendants 1 to 9 would return Rs.10,000/- out of the part payment of Rs.30,000/- received by them with interest @ 2% per annum. (d) That on failure to execute the sale deed by defendants 1 to 9 after having been declared as occupancy tenants, the plaintiffs 1 to 5 shall have right to get the agreement specifically enforced through R.S.A.No. 2417 of 2005 (O&M) 4 court. (e) That the plaintiffs 1 to 5 shall be at liberty either to get the sale deed executed and registered in their favour or in favour of their nominee/nominees. (f) That the expenses regarding stamp and registration charges shall be borne by plaintiffs 1 to 5 or their nominee/nominees. (g) That in case of dispute, the parties agreed to get the same resolved through nominated arbitrator Sh.Ram Karan son of Girwar r/o village Mujeri and his decision would be binding on them. 2. It is claimed that the defendants No.1 to 9 failed to inform the plaintiffs about declaration of occupancy rights of the above described suit land in their favour which fact came to the knowledge of the plaintiffs in February, 1992 and the defendants were accordingly called upon to execute the sale deed in compliance with the agreement dated 4.1.1985 but the defendants have failed to do so despite notice and hence this suit inter alia because as the Arbitrator who was approached in the matter by the plaintiffs expired after giving notice to the defendants. 3. All the defendants filed a joint written statement wherein while admitting themselves to have R.S.A.No. 2417 of 2005 (O&M) 5 been in occupation of the suit land as old tenants without payment of any land revenue had admitted having entered into the agreement of sale dated 4.1.1985, agreeing to transfer the said land for an amount of Rs.1,05,000/- in the event of themselves being declared occupancy tenants thereon. They slao admitted having received Rs.30,000/- as earnest money in pursuance of the said agreement. They however, asserted that the alleged agreement is illegal, null and void in as much as the answering defendants had no sale-able right on the date of admitted execution of agreement dated 4.1.1985 and added that not only the suit is barred by limitation but the plaintiffs are estopped by their act and conduct also from filing the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendants No. 1 to 9 agreed to sell the suit land to the plaintiffs No. 1to 5 vide agreement dated 4.1.1985 for a consideration of Rs.1,05,000/-? OPP 2. Whether the plaintiffs were willing to perform their part of contract? OPP 3. Whether the suit of the plaintiffs is within limitation? OPP R.S.A.No. 2417 of 2005 (O&M) 6 4. Whether the plaintiffs are estopped from filing the suit on account of their act conduct? OPP 5. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiffs had filed a suit for specific performance of agreement to sell dated 4.1.1985. The suit of the plaintiffs was decreed for recovery of the earnest money. Against the judgment and decree of the trial Court, plaintiffs preferred an appeal. The defendants, however, did not challenge the judgment and decree of the trial Court. The suit of the plaintiffs was decreed for specific performance in appeal and hence, the defendants have filed the present appeal. Thus, the short question that requires consideration in this appeal is as to whether the suit of the plaintiffs for specific performance of the agreement to sell was liable to be decreed or whether the plaintiffs were only entitled to get refund of the earnest money. Admittedly, decree declaring the defendants to be occupancy tenants on the suit land was passed on 8.8.1990. The case of the plaintiffs is that no notice of the said decree was given to them by the defendants. The case of the defendants is that a notice Ex.D-2 dated 6.1.1992 was served upon the plaintiffs but they failed to appear R.S.A.No. 2417 of 2005 (O&M) 7 before the Registrar for execution of the sale deed on 21.1.1992. The case of the defendants-appellants further is that they remained present in the office of Sub Registrar for execution of the sale deed but the plaintiffs had failed to appear and perform their part of the agreement. Reliance was placed on postal receipt Ex.D-1 dated 22.3.1993. Learned senior counsel for the appellants, during the course of arguments, has submitted that the said postal acknowledgment receipt was with regard to reply sent to the notice and not the notice Ex.D-2. However, the said reply regarding which the postal receipt Ex.D-1 had been proved on record is not available on record. Hence, learned Additional District Judge rightly held that no reliance could be placed on the notice Ex.D-2 as the acknowledgment with regard to the notice Ex.D-2 was dated 22.3.1993. The notice Ex.D-2, thus, could not be said to have been validly served on the plaintiffs and hence, they could not appear before the Tehsildar on 21.1.1992. Although PW-3 admitted in his cross-examination that they had come to know in the year 1991 that the defendants had become owner of the property in dispute and they had received a notice sent by U.P.Sharma, Advocate but from this it cannot be inferred that the notice Ex.D-2 had, in fact, been received by the plaintiffs before the date fixed for execution of the sale deed vide notice Ex.D2. The case of the plaintiffs is that they had served a notice R.S.A.No. 2417 of 2005 (O&M) 8 on the defendants Ex.D2 to execute the sale deed. However, the fact that whether the said notice had been served on the defendants is not duly established on record. The decree in favour of the defendants was passed on 8.8.1990 and the plaintiffs have filed the present suit within three years of the said decree. Hence, the learned Additional District Judge rightly held that the suit of the plaintiffs for specific performance was liable to be decreed. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 10, 2009 anita