RSA No.637 of 2010 (O&M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.637 of 2010 (O&M) DATE OF DECISION: 11.02.2010 **** Jai Narain . . . . Appellant VS. Ram Kishan . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Gaurav Mohunta, Advocate for the appellant. **** RAKESH KUMAR JAIN J. The defendant is in second appeal against the judgment and decree of both the Courts below whereby suit of the plaintiff for possession by way of specific performance of an agreement to sell has been decreed. Tersely, the pleaded case of the parties to the suit is that vide agreement dated 11.3.2004, defendant agreed to sell agricultural land comprising in Khewat No.153, Khasra No.172 Rect. No.8, Killa No.20/1(6-0), 21(8-0) and 22(7-8), total measuring 21 kanals 8 marlas, to the extent of 1/4th share, which comes to 5 kanal 7 marla, situated within the Revenue Estate of village Jhamri, Tehsil and District Jhajjar for a total sale consideration of Rs. 1,30,000/- and received a sum of Rs.65,000/- towards earnest money. Sale deed was to be executed and registered by the defendant in favour of the plaintiff on or before 24.5.2004 but the defendant did not turn up despite the fact RSA No.637 of 2010 (O&M) - 2 – that plaintiff remained present in the office of Sub-Registrar Matanhail on 24.5.2004 for performing his part of contract with balance sale consideration and necessary expressions to be incurred on the execution of the sale deed. The plaintiff moved an application with an affidavit to the Sub Registrar Matanhail on 24.5.2004 in order to mark his presence that he was ready and willing to perform his part of contract. In reply, the case set up by the defendant is that he had borrowed Rs.65, 000/- form the plaintiff on 11.3.2004 to solemnize the marriage of his grand-daughter and agreed to return the amount upto 24.5.2004. When defendant went to the plaintiff to repay the amount of Rs.65,000/-, he refused to accept the amount and disclosed that defendant had entered into an agreement to sell his agricultural land to him. In nutshell, agreement was denied on the ground of fraud. The averments made in the plaint were rebutted by the plaintiff by way of replication and on the pleadings of the parties, issues were struck on on 20.4.2005, which reads thus: - “1. Whether the plaintiff is entitled to seek the possession of the suit land by way of specific performance agreement to sell dated 11.3.2004? OPP 2. Whether plaintiff has no locus-standi to file the present suit? OPD 3. Whether the plaintiff is estopped form filing the present suit by his own act and conduct? OPD 4. Whether the suit filed by the plaintiff is not maintainable? OPD 5. Relief.” In order to prove his case, plaintiff examined Pawan Singh as PW1, Ram Kishan as PW2, Balbir Singh, Lambardar as PW3 and led RSA No.637 of 2010 (O&M) - 3 – documentary evidence by producing agreement dated 11.3.2004 (Ex.P1), application (Ex.P2), affidavit (Ex.P3), affidavit (Ex.P4), Jamabandi for the year 1998-99 (Ex.P6) and closed his evidence in affirmation on 14.9.2007. On the other hand, defendant did not lead any evidence despite availing five effective opportunities and the Court had to close his evidence by order dated 17.7.2009. Since, there was no evidence on behalf of defendant, therefore, the plaintiff had no occasion to lead his evidence in rebuttal as such his rebuttal evidence was closed on 22.7.2009. Learned trial Court, vide its judgment dated 24.7.2009, decreed the suit of the plaintiff with costs. In the first appeal, the defendant had taken a plea that he had never entered into an agreement to sell and had rather borrowed money from the plaintiff. In this regard, learned First Appellate Court recorded a firm finding of fact that agreement to sell was entered into by the defendant consciously and has rather held that defendant has not come to the Court with clean hands. The findings recorded by learned First Appellate Court are as under: - “So far as oral evidence is concerned PW1 Pawan Singh has stated that he has drafted the agreement to sell dated 11.3.2004 (Ex.P1) on the instructions of Jai Narain and said agreement was read over and explained to Jai Narain and the parties put their thumb impression / signatures after admitting the contents to be correct. He also stated that both the parties gave their consent regarding the payment of RSA No.637 of 2010 (O&M) - 4 – money. He further submitted that he has brought his register and the agreement has been entered at Sr.160 dated 11/3/2004. During cross-examination, he again stated that the agreement to sell regarding the land was executed before him. He again stated that the agreement was read over and explained to the witnesses and the parties. PW2 Ram Kishan has fully supported his case in his examination-in-chief regarding the execution of agreement to sell and payment of amount of Rs.65,000/- as the earnest money. During cross-examination, he stated that he paid amount of Rs.65,000/- to Jai Narain. He also admitted his thumb impression on the document Ex.P1. He also admitted that the document Ex.P1 was executed after taking the amount. He also admitted that he has also advanced the amount to Ramesh PW3, Balbir Singh, Nambardar, who is attesting witness of the agreement to sell Ex.P1 and also proved the execution of the agreement to sell dated 11/3/2004. During cross-examination, he stated that he did not know whether the said amount was utilized by Jai Narain for the marriage of his grand daughter. He denied the suggestion that the defendant took the amount as loan. No evidence was led by the defendant to rebut the evidence of the plaintiff and from the evidence led by plaintiff it is crystal clear that defendant entered into an agreement to sell dated 11/3/2004 regarding his agriculture land in favour of plaintiff. Merely because defendant performed marriage of his grand daughter, it cannot be said that the alleged transaction was simply a loan transaction. There is no evidence on the file that the transaction in question was simply a loan transaction. So far as the payment of amount of Rs.65,000/- is concerned, it is admitted that the defendant has received the said amount. No evidence was led by the defendant to prove that the amount was received as a loan. In RSA No.637 of 2010 (O&M) - 5 – these circumstances, it is crystal clear that defendant entered into an agreement to sell in favour of plaintiff vide agreement to sell dated 11/3/2004. in these circumstances, the authorities relied upon by the learned counsel for the appellant that transaction in question is loan transaction are not applicable to the facts of the present case. In the present case, plaintiff has come in the Court with clean hands and defendant failed to prove that the alleged transaction was a loan transaction. It is clear that the transaction in question between the plaintiff and defendant was regarding agreement to sell dated 11.3.2004. As the plaintiff has come in the Court with clean hands and the earnest money was paid at the time of agreement to sell and in these circumstances, there is no ground to deny the relief of specific performance of the agreement to sell in favour of plaintiff merely on the ground of hardship to the defendant.” Unsuccessful but un-fazed defendant is in second appeal against concurrent finding of fact in which no question of law much less substantial has been framed except for claiming that the agreement to sell was not executed with the intention to sell the land. In this regard, he has relied upon a decision of this Court in the case of “Gurbax Singh Versus Labhu Ram” 1995(3) PLR 546, in which a suit for specific performance of an agreement dated 13.6.1989 was filed claiming that the defendant had agreed to sell property @ Rs.60,000/- per killa and received a sum of Rs.60,000/-. The sale deed was agreed to be executed on or before 31.12.1989. In defence, the defendant had claimed that he had never entered into an agreement with the plaintiff to sell his land. The trial Court, on the basis of evidence available, concluded that agreement is a result of forgery and fabrication and has come into being through fraud as the RSA No.637 of 2010 (O&M) - 6 – plaintiff had failed to prove due execution of the agreement and as such the suit was dismissed. In the First Appeal, it was found that agreement has been duly executed but the Court had ultimately concluded that it was not intended to be an agreement for the sale of property and was a document for securing a loan. In view of this finding, relief of specific performance was declined and the amount advanced as earnest money was ordered to be released with interest @ 12% from the date of agreement till the date of suit with proportionate costs of the suit with interest @ 6% per annum on the said amount. The defendant filed second appeal alleging that the finding recorded by the First Appellate Court is not based on evidence as the trial Court has already held that there was no agreement duly executed between the parties. This court, found that the document has been scribed by deed-writer and attested by two witnesses, who have appeared in the witness box and deposed about the correctness of the document, therefore, the agreement to sell stands duly proved. But it was held that since the document does not show the intention of the defendant to sell the property, therefore, it declined to grant relief of specific performance and upheld the finding of fact recorded by the learned First Appellate Court with regard to return of earnest money along with interest. In the present case, however, agreement to sell (Ex P-1) has been proved by Pawan Singh PW1 scribe and attesting witness. Readiness and willingness on the part of the plaintiff has been proved and both the Courts below have categorically held that the document (Ex.P-1) has been duly executed, which was intended to be an agreement to sell. The facts of this case are thus altogether different from the facts of the case of Gurbax Singh (Supra) because in this case, both the Courts have decreed the suit of the plaintiff whereas in RSA No.637 of 2010 (O&M) - 7 – the case of Gurbax Singh (Supra) the trial Court had dismissed the suit of the plaintiff holding that the agreement was forged and fabricated and while reading the said document itself the First Appellate Court, in the said case, came to the conclusion that intention was not to sell the land but to borrow the money. In the present case, nothing of that sort has been brought to the notice of this Court from which it could have been gathered that the intention was not to sell the land but to borrow money rather the case set up by the defendant is that no such agreement has ever been entered into by the defendant and the same is an act of fraud upon him which could not be proved at all as no evidence was led by the defendant despite availing five effective opportunities and the Court had to close his evidence by an order of the Court. In view of the above said discussion, I do not find any question of law much less substantial involved in this appeal and as such the same is hereby dismissed though without any order as to costs. (RAKESH KUMAR JAIN) February 11, 2010 JUDGE vivek