IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3580 of 2011 (O&M) Date of decision : 05.09.2011 Sukhpal Kaur and another … Appellants Versus Yadwinder Singh …Respondent CORAM : HON’BLE MR.JUSTICE K.C.PURI Present: Mr.G.S.Toor, Advocate for the appellants. K.C.Puri, J. This is an appeal directed by the plaintiffs-appellants against the judgment and decree dated 6.4.2011 passed by Shri Hemant Gopal, Addl. District Judge, Sri Muktsar Sahib vide which the appeal preferred by the plaintiffs against the judgment and decree dated 6.10.2010 passed by Smt.Jagdeep Kaur Virk, PCS, Additional Civil Judge (Sr.Divn.), Gidderbaha, was dismissed. Niab Singh-plaintiff filed a suit for specific performance with the averments that defendant-Yadwinder Singh is a minor, who resides with his maternal grandfather namely Harbans Singh. The said Harbans Singh looked after the minor defendant being his natural heir because parents of the defendant have already expired. Harbans Singh has no adverse interest against the minor defendant. Harbans Singh has been appointed as guardian of minor defendant Yadwinder Singh son of Harjit Singh. The said Harjit Singh father of Yadwinder Singh had executed an agreement of sale deed dated 26.11.1996 pertaining to 18 kanals land, fully described in the heading note of the plaint for consideration of Rs.2, 35,000/- per acre in favour of the plaintiffs and received a sum of Rs.2,20,000/-. The sale deed was to be registered upto RSA No.3580 of 2011 (O&M) 15.5.1997. On 12.5.1997, Harjit Singh father of the defendant extended the period of registration of sale deed upto 31.12.1998. Harjit Singh father of the defendant mentioned the land as 19 kanals 2 marlas and period of sale deed was extended at his instance. Plaintiffs obtained the copy of jamabandi and plaintiffs came to know that Harjit Singh is the owner to the extent of half share in 19 kanals 2 marlas of land and remaining half share is owned by Bikker Singh son of Mit Singh. On dated 31.12.1998, Harjit Singh did not get the sale deed registered as per terms and conditions of agreement dated 22.11.1998 and writing of extension dated 12.5.1997. The plaintiffs moved an application to Sub Registrar, Gidderbaha, for making his presence. Sub Registrar Gidderbaha made his endorsement dated 31.12.1998 on the application and signed the same. Thereafter, Harjit Singh adopted son of Nazar Singh expired. After the death of Harjit Singh, the mutation of inheritance No.8250 has been sanctioned in favour of Yadwinder Singh defendant and Sukhdev Kaur mother of Harjit Singh. As per agreement in question, Sukhdev Kaur mother of Harjit Singh got the sale deed registered to the extent of her share i.e. 4 kanals 15 marlas of land in favour of plaintiff and got adjusted earnest money of Rs.1,10,000/- from the total earnest money of Rs.2,20,000/-. Despite repeated requests by the plaintiff, the defendant did not get the sale deed registered qua his share as per agreement dated 22.11.1996 and 12.5.1997. The plaintiff has always ready and willing to perform his part of contract but defendant is putting of the matter on one pretext or the other. On notice, defendant contested the suit by filing written statement wherein legal objections were taken that suit is not legally maintainable, plaintiff has no locus standi, suit is filed byond limitation, suit is abated due to the death of Naib Singh, agreement dated 22.11.1996 and 12.5.1997 are false, forged and fabricated documents. Defendant is minor and property of minor cannot be alienated without permission from the court. Plaintiff has been 2 RSA No.3580 of 2011 (O&M) estopped from filing of the suit as plaintiff rescinded from the original contract and has purchased ½ share of sukhdev Kaur and has left the share of defendant with his own will. Suit is bad for non joinder of necessary parties. Plaintiff was not ever ready and willing to perform his part of contract. Fruther it is statd that Harjit Singh never entered into agreement dated 22.11.1996 regarding 18 kanals of land. Harjit Singh had not received any earnest money. Agreement dated 22.11.1996 is false, forged and fabricated. The signatures on the agreement are forged. Bikker Singh grandfather of the defendant has sold his 8 kanals of land to the plaintiff. The fact that Harjit Singh adopted son of Nazar Singh during his life time did not get the sale deed registered as per terms and conditions of agreement dated 22.11.1996 and 12.5.1997 in favour of the plaintiff is denied by the defendant. The previous litigation has also been denied. In replication, plaintiff denied as wrong the legal objections and the contents of the written statement and reiterated the averments of plaint. From the pleadings of the parties, the following issues were framed:- 1. Whether Harjit Singh agreed to sell the suit to the plaintiff and executed an agreement to sell on 22.11.1996 and 12.5.1997? OPP 2. Whether the plaintiff has been ready and willing to perform his part of contract? OPP 3. Whether the plaintiff is entitled to specific performance of the agreement to sell in question? OPP. 4. Whether in the alternative the plaintiff is entitled to recover of Rs.2,20,000/- from the defendant? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD. 3 RSA No.3580 of 2011 (O&M) 7. Whether the suit is within limitation? OPP 8. Whether the suit has abated due to death of Naib Singh? OPD 9. Whether the agreements dated 22.11.1996 and 12.5.1997 are false, forged and fabricated? OPD 10. Whether the defendant is minor and his property cannot be alienated without permission of the court? OPD 11. Whether the plaintiff is esopped from the filing the present suit? OPD 12. Whether the suit is bad for non-joinder of necessary parties? OPD 13. Whether the suit is not properly valued for the purpose of the court fee? OPD 14. Relief. The plaintiff examined Surinder Luthra, Document Writer as PW1, Piara Singh attesting witness of agreement dated 22.11.1996 as PW2, Achhar Singh another attesting witness of agreement dated 22.11.1996 as PW3, Gurdeep Singh attesting witness of writing of extension dated 12.5.1997 as PW4, Mohiner Pal Singh son of plaintiff Naib Singh as PW5 and produced certain documents on the file. In rebuttal, Harbans Singh Guardian of defendant examined himself as DW1 and closed the evidence. Learned trial court after appraisal of the evidence, decreed the suit of the plaintiff, partly. Decree for recovery of Rs.1,10,000/- along with interest at the rate of 6% per annum from the date of decree till actual realization, was passed. Feeling dissatisfied with the judgment and decree dated 6.10.2010, legal hairs of Niab Singh filed the first appeal. The said appeal was dismissed by Shri Hemant Gopal, Addl. District Judge, Sri Muktsar Sahib vide judgment dated 6.4.2011. 4 RSA No.3580 of 2011 (O&M) Feeling dissatisfied with the above judgment and decree dated 6.4.2011 passed by Shri Hemant Gopal, Addl.District Judge, Sri Muktsar Sabib and judgment and decree dated 6.10.2010 passed by Smt.Jagdeep Kaur Virk, PCS, Additional Civil Judge (Sr.Divn.), Gidderbaha, legal heirs of plaintiff have preferred the present regular second appeal. The appellants in paragraph No.9 of the grounds of appeal have raised the following substantial questions of law:- 1. Whether the appellants/vendees were always ready and willing to perform their part of the contract? 2. Whether the delivery of the possession shows the clear intent of the parties at the time of the agreement to sell? 3. Whether appellants shall suffer irreparable loss and injury in case relief of specific performance is not granted in their favour, keeping in view that they are in possession of the suit property from a long time? 4. Whether the execution of the extension agreement cast doubt on the conduct of the vendor? 5. Whether the equitable relief of specific performance deserves to be granted in favour of the appellants? 6. Whether the finding of both the courts in declining the relief of specific performance to the appellants is perverse, unjust and therefore deserves to be set aside? Learned counsel for the appellants has submitted that although the defendant is minor, but decree for specific performance can be passed. Both the courts below have ignored the fact that the plaintiff has been ready and willing to perform the contract. The appellants shall suffer irreparable loss and injury in case relief of specific performance is not granted in their favour. Execution and extension of agreement stands fully proved. The equitable relief for specific performance deserves to be granted in favour of the appellants. Both the courts below have committed an error in disallowing the 5 RSA No.3580 of 2011 (O&M) relief of specific performance and as such, the judgment of both the courts below are perverse and unjust. I have carefully considered the said submissions but do not find any force in those submissions. According to the case of the plaintiffs, Harjit Singh executed an agreement to sell and received a sum of Rs.2,20,000/-. The plaintiffs have further pleaded that Sukhdev Kaur after the death of Harjit Singh had executed a sale deed (Exhibit PX) and amount of Rs.1,10,000/- has been adjusted in the sale consideration out of the amount of agreement. However, first appellate court observed that sale deed in favour of the plaintiffs by Sukhdev Kaur is for a consideration of Rs.80,000/- and as such, the amount of Rs.1,10,000/- cannot be adjusted. Both the courts below after appreciating and reappraising the evidence on the file, reached the conclusion that plaintiff is not entitled to decree of specific performance and he is entitled to alternative relief of recovery of amount of Rs.1,10,000/- along with interest at the rate of 6% per annum. Agreement itself is not enforceable as the same relates to the land of 18 kanals and Harjit Singh was not the owner of that much of land. From the record, it is revealed that total land is 19 kanals 2 marlas and out of which Harjit Singh was owner to the extent of ½ share and remaining ½ share was owned by other co-sharer. The sale deed in respect of 4 kanals 15 marlas of land which was inherited by Sukhdev Kaur has been said to be executed in favour of the plaintiff. So, both the courts below have rightly exercised its discretion under Section 20 of the Specific Performance Act against the plaintiff and in favour of minor defendant. The courts below have accepted the agreement and only on that account, a decree for recovery of alternative relief of Rs.1,10,000/- along with interest at the rate of 6% has been passed against the defendant. 6 RSA No.3580 of 2011 (O&M) So, in view of the above discussion, I found that no substantial question of law has arisen in the present appeal. In view of Section 100 CPC, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C. Puri) Judge 05.09.2011 sd 7