R.S.A. No. 1830 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1830 of 2010 (O&M) Date of Decision : 13.5.2010 Bakshish Singh & another .......... Appellants Versus Wassan Singh & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Ms. Ravinder Kaur Manaise, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 5683-C of 2010 C.M. is allowed. The applicant / appellants are exempted from filing the certified copy of judgment and decree dated 12.8.2005 passed by the learned Civil Judge ( Jr. Divn.). Gurdaspur. C.M. No. 5684-C of 2010 This application under Section 149 of the Code of Civil Procedure has been moved for making good the deficiency in court fee. For the reasons stated in the application, the C.M. is allowed. The delay in making good the deficiency in court fee is ordered to be condoned. C.M. No. 5685-C of 2010 This application under Section 151 of the Code of Civil R.S.A. No. 1830 of 2010 -2- Procedure has been moved for condoning the delay of 127 days in refiling the appeal. For the reasons stated in the application, the C.M. is allowed, the delay of 127 days in refiling the appeal is condoned. R.S.A. No. 1830 of 2010 & C.M. No. 5686-C of 2010 This regular second appeal by the plaintiff / appellants is directed against the judgment and decree dated 28.7.2009, passed by the learned Addl. District Judge, Gurdaspur, dismissing the suit for possession by way of specific performance of agreement to sell dated 31.5.1968. The plaintiffs filed a suit against the defendant / respondent pleading therein that an agreement to sell dated 31.5.1968 was executed by defendant in favour of the plaintiff / appellants for sale of land measuring 13 Kanals-19 Marlas, for consideration of Rs. 10,000/- (Rupees ten thousand only). It was pleaded case of the plaintiffs, that a sum of Rs. 5,500/- (Rupees five thousand and five hundred only) was paid as earnest money at the time of execution of the agreement to sell and possession of the land was also handed over to the plaintiff / appellants. The sale deed was agreed to be executed on 15 Jeth 2026 Bikram. The case of the plaintiffs was, that on the date fixed, there was no mutation sanctioned in favour of the defendant / respondent. Thereafter, another agreement dated 27.2.1972 was executed wherein the defendant / respondent agreed to get the sale deed executed on sanctioning of mutation , which was sanctioned on 11.3.2002. The plaintiff, therefore, filed the case R.S.A. No. 1830 of 2010 -3- immediately on sanctioning of mutation, and prayed for decree of possession by way of specific performance by pleading therein, that the plaintiffs were always willing and still willing to perform their part of contract. In the alternative a decree for recovery of Rs. 10,000/- (Rupees ten thousand only) was prayed, to be passed in favour of the plaintiff / appellants. The defendant / respondent contested the suit. He admitted the execution of the agreement dated 31.5.1968, and further pleaded that he was always willing to perform his part of contract, but it was the plaintiff / appellants who failed to get the sale deed executed. However, the subsequent agreement dated 27.2.1972 was denied. Plea was also raised, that the suit was hopelessly time barred, therefore, the plaintiffs were not entitled to the relief of specific performance. The learned Courts below have recorded a concurrent finding that the defendant / respondent had executed an agreement to sell dated 31.5.1968, as it was admitted by the defendant himself, that he had executed the agreement. The learned Courts below further held, that it was for the plaintiff / appellants to get the sale deed executed within the period of limitation, as mutation confers no right and is only the record of rights maintained in the revenue record. The plea set up by the plaintiff / appellants, that there was subsequent agreement under which the sale deed was to be executed after the sanctioning of the mutation, was disbelieved as the plaintiff / appellants R.S.A. No. 1830 of 2010 -4- neither produced the said agreement on record, nor led any evidence to prove the subsequent agreement. The learned Courts below by holding, that the suit was hopelessly barred by time, as the specific performance of agreement was sought after 34 years, dismissed the suit. The concurrent findings recorded by the learned Courts below, are challenged by the plaintiff / appellant by raising the following substantial questions of law :- 1. Whether the judgment and decree passed by the learned Courts below, is perverse as the learned Courts below have ignored the admission of the defendant / respondent, showing his willingness to execute the sale deed ? 2. Whether the judgments and decree passed by the learned Courts below is outcome of misreading of evidence, therefore, perverse? In support of the substantial questions of law, referred to above, the learned counsel for the appellants, relied upon the statement of the defendant / respondent made in the Court, wherein he had admitted the execution of the agreement as well as the willingness to perform his part of contract. The contention of the learned counsel for the appellants by reading the cross-examination of the defendant / respondent was, that the learned Courts below have ignored the admission of the defendant / respondent, therefore, the judgment and decree passed by the learned Courts below being perverse, deserves to be set aside by answering the substantial questions of law in favour of the appellants. R.S.A. No. 1830 of 2010 -5- It is further the contention of the learned counsel for the appellants, that the learned Courts below have ignored the material evidence, and the judgment and decree passed by the learned Courts below, therefore, is outcome of misreading of evidence, as the reading of the evidence led by the respective parties if correctly interpreted, would lead to only one conclusion, that the defendant executed the agreement to sell and the plaintiff / appellants were willing to perform his part of the contract. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. The learned trial Court rightly appreciated the evidence and also considered the admission made by the defendant / respondent qua the agreement dated 31.5.1968. The learned Courts below have recorded a finding, that the agreement dated 27.2.1972 was disputed by the defendant / respondent, but the plaintiff led no evidence, nor produced the agreement on record. The learned Courts below rightly held the suit to be hopelessly barred by limitation, as the limitation for enforcement of agreement for specific performance starts from the execution of the agreement or the date fixed for execution of the conveyance deed. The admission made by the defendant, therefore, was duly taken note by the learned Courts below, while deciding the case. It is also not the case of misreading of evidence, the learned Courts below rightly held, that there was no material on record to show as to why the plaintiff / appellants waited for more than 34 years to get the sale deed executed, as the plea raised was, that in pursuance to the subsequent agreement the R.S.A. No. 1830 of 2010 -6- execution of the sale deed was to be executed after sanctioning of the mutation, which was disbelieved by the learned Courts below, for want of any evidence and also for the reason, that the subsequent agreement was not produced on record. The substantial questions of law are answered against the appellants. Finding no merit in the regular second appeal, this appeal is dismissed, but with no order as to costs. 13.5.2010 ( VINOD K. SHARMA ) 'sp' JUDGE