IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.881 of 2008 Date of decision: 17.9.2008 Partapa and others ......Appellants Versus Rohit and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Rakesh Gupta, Advocate for the appellants. Mr. Rajinder Goyal, Advocate for respondents No.1 to 3. None for respondents No.8 to 11. Rakesh Kumar Garg, J . This judgment shall dispose of RSA Nos.881 and 882 of 2008. Since both the appeals have arisen out of one common judgment of the trial Court between the same parties, the same are being disposed of with one common judgment. Plaintiff-Bimla Devi (predecessor-in-interest of respondents No.1 to 3) filed a suit seeking a decree for possession by way of specific performance of the agreement dated 30.1.1993 relating to the land measuring 72 kanals 16 marlas as detailed in the suit. As per the averments, Sh. Sheola Ram son of Matu (predecessor-in- interest of the defendant-appellants) was the owner of the land mentioned above. Out of the said land measuring 40 kanals comprised in Rectangle No.42, Killa Nos.11,12,19,20,21 was mortgaged by him with possession with the plaintiff vide registered mortgage deed No.846/1 dated 6.6.1989 for a consideration of Rs.60,000/-. The said Sheola agreed to sell the land in question to the plaintiff through her husband and attorney for a total sale consideration of Rs.3,60,000/- vide agreement dated 30.1.1993, as per the terms and conditions mentioned therein. It is further averred that Sheola Ram died after the agreement and his rights in the land in question were inherited by the defendant- appellants and the plaintiff is still ready and willing to perform her part of contract and she has been requesting the defendants after the death of Sheola Ram to get the sale deed registered and completed, but they are adamant and have been postponing the matter on one pretext or the other. Thus, the plaintiff is entitled to get the sale deed completed and registered by way of specific performance of the agreement. The defendants finally refused to abide by the request of the plaintiff at village Kutubpur on 28.6.1996. Hence, this suit. It was also prayed that in case the Court holds that the plaintiff is not entitled to relief of the specific performance of the contract dated 30.1.1993, then in the alternative, the plaintiff is entitled to recover Rs.4,00,000/- with costs i.e. 2,00,000/- paid to Shri Sheola Ram, predecessor-in-interest of the defendants as earnest money and Rs.2,00,000/- as consolidated damages. The suit was contested by the defendants-appellants by filing written statement stating that the suit of the plaintiff was false, bogus, result of fraud and misrepresentation practiced upon deceased Sheola Ram and Partapa, one of the appellants. It was further stated in the written statement that the husband of the plaintiff-respondent was commission agent of Sheola Ram, who was a blind man and used to sell his crops through the firm of the plaintiff-husband. The deceased Sheola Ram including defendants and Partapa neither wanted to sell the suit land as alleged nor there was any legal necessity for him to do so. Sheola Ram never received any amount towards earnest money nor appellant-Partapa ever witnessed any such transaction and thumb impression of deceased Sheola Ram, if any, and the signatures of appellant-Partapa might have been procured on blank papers as the husband of the plaintiff was in a position to dominate them. It was further stated that in fact, deceased Sheola Ram in the beginning of the year 1993 intended to execute a power of attorney in favour of defendant No.2 as he was blind, and also became feeble and helpless to manage the whole agricultural land including the suit land. The husband of the plaintiff who accompanied to the Deed Writer had every good faith in the plaintiff's husband being the Adhti and instead of scribing power of attorney, the husband of the plaintiff might have procured thumb impression of Sheola Ram and the signatures of defendant No.2 on the alleged agreement to sell in his favour as no power of attorney was handed over to them. It was further stated that the plaintiff never asked for execution of sale deed and kept quiet for a period of three years from the alleged date of registration and had filed the suit just two days before the expiry of period of limitation. The following issues were framed by the trial Court :- “1. Whether the defendant one Sheola predecessor- in-interest had executed agreement to sell dated 30.1.1993 in favour of plaintiff Bimla Devi?OPP 1A. Whether the land in dispute in hands of Sheola was ancestral?OPD” 2. Whether the plaintiff has been and is still ready to perform her part of contract? OPP 3. Whether the present suit is a result of fraud and misrepresentation, if so to what effect? OPD 4. Whether the suit is barred by the provisions of the Benami Transaction Act, 1988? OPD 5. Whether the suit of the plaintiff is not is not maintainable in its present form ? OPD 6. Relief.” The trial Court found that the execution of the agreement to sell Ex.P-1 and receipt Ex.P-2 are proved on the file by the plaintiff. It was also found by the trial Court that the ancestral nature of the property is proved, however, that will not have any effect on the relief allowed to the plaintiff. The plea of fraud pleaded as such by the defendants was held not proved especially in the circumstances that appellant-Partapa himself was the signatory to the documents which proved the payment of Rs.2,00,000/- on the same day to his father Sheola Ram. However, the trial Court found that the equity and other circumstances do not justify the grant of relief of specific performance to the plaintiff and thus, the suit of the plaintiff was decreed with costs to the extent that the plaintiff is entitled to get the payment of Rs.4,00,000/- (Rs.2,00,000/- as earnest money and Rs.2,00,000 as damages) as claimed in terms of agreement to sell Ex.P-1 along with interest at the rate of 9% per annum from the date of filing of the suit till realization of the decretal amount. Defendants as well as plaintiff both filed appeals against the judgment and decree of the trial Court. The Lower Appellate Court vide its judgment and decree dated 11.1.2008 dismissed the appeal filed by the defendants while the appeal filed by the plaintiff-respondent was accepted. Thus, the suit of the plaintiff-respondent for possession by way of specific performance of the agreement to sell dated 30.1.1993 on payment of balance sale consideration and stamp and registration charges was decreed. Both these appeals i.e. RSA Nos.881 and 882 of 2008 have been filed by the defendants challenging the impugned judgment and decree of the Lower Appellate Court whereby their appeal against the judgment and decree of the trial Court decreeing the suit of the plaintiff for alternative relief of recovery of Rs.4,00,000/- has been dismissed and against the judgment and decree of the Lower Appellate Court vide Civil Appeal No.95 of 2006 filed by the plaintiff-respondent for decree of specific performance of the agreement to sell has been accepted. Learned counsel for the appellants has vehemently argued that the plaintiff-respondent was not entitled to the decree as the alleged agreement to sell was executed by the Karta of the family for the ancestral land without any legal necessity. It was also argued by him that it has been proved on record that the husband of the plaintiff was in a dominant position over Sheola Ram and the alleged agreement to sell was the result of fraud as no amount was received towards earnest money by him and in these circumstances, the judgments and decrees of the Courts below are liable to be set aside. Learned counsel has also argued that in any case,the equitable relief of specific performance could not be granted to the respondents, keeping in view the suspicious circumstances surrounding the alleged agreement to sell including the fact that the plaintiff had chosen to file the suit on the fag end of the limitation period. Learned counsel for the appellant in support of his argument has relied upon judgment of the Hon'ble Supreme Court in the case of A.C. Arulappan v. Smt. Ahalya Naik AIR 2001 SC 2783 to argue that where the plaintiff is trying to take unfair advantage over the defendant, he is not entitled to decree of specific performance of the contract. He has relied upon case in K.S. Vidyanadam and others v. Vairavan AIR 1997 SC 1751 to argue that if there is a delay in filing the suit it would be inequitable to give relief of specific performance to the purchaser. On the other hand, learned counsel for the respondents has vehemently argued that a finding of fact has been recorded by both the Courts below that execution of the agreement to sell and the receipt of consideration of Rs.2,00,000/- as earnest money by Sheola Ram has been proved and therefore, the decree for specific performance of the agreement to sell has been rightly granted in favour of the respondents and no substantial question of law arises from the facts of the case. The counsel for the respondents has cited a judgement of the Hon'ble Supreme Court in the case of Moti Lal Jain v. Ramdasi Devi and others 2000(3) Civil Court Cases 610 (SC) to state that the delay cannot be invoked to defeat the right of the plaintiff for grant of specific performance of the agreement. I have heard learned counsel for the parties and perused the record. The Courts below have given a concurrent finding of fact that Sheola Ram, predecessor-in-interest of the appellants executed agreement to sell Ex.P-1 receipt Ex.P-2 and mortgage deed Ex.P-3 for a valuable consideration after receipt of earnest amount and the plea of the fraud as contended by the appellants has not been substantiated by any evidence on the file. The findings recorded by the Lower Appellate Court are reproduced hereunder: “Therefore, in view of the testimony of PW2 Ishwar Chand, PW3 Surjeet Bahadur and PW4 Yashpal Chand, it has to be held that the learned trial Court has rightly come to the conclusion that Sheola Ram predecessor- in-interest of the defendants/appellant/respondents had mortgaged the land measuring 40 kanals vide mortgage deed Ex.P3 in favour of Smt. Bimal Devi-plaintiff and thereafter said Sheola executed an agreement to sell Ex.P1 in favour of Smt. Bimal Devi vide which he had agreed to sell land measuring 72 kanals 16 marlas as detailed in para No.1 of the plaint in favour of Smt. Bimla Devi on the terms and conditions mentioned in the agreement to sell Ex.P1 and received a sum of Rs.2 lac as earnest money vide receipt Ex.P2. It is pertinent to mention here that in view of the mortgage deed Ex.P3, which was executed by Sheola Ram in favour of Smt. Bimla Devi-plaintiff regarding the land measuring 40 kanals, the possession was already with Smt. Bimla Devi plaintiff and entries to this effect regarding possession of the plaintiff Smt. Bimal Devi as mortgagee have been entered in the Jamabandi Ex.P10 and Ex.P11 in view of mutation Ex.P12, though later on the entries regarding possession have been got changed vide Rapat Roznamcha Ex.D5 on 30.1.2001 but prior thereto the defendants/appellants/respondents have been shown as mortgagor whereas Smt. Bimal Devi- plaintiff/respondent has been shown as mortgagee in possession over land measuring 40 kanals. It is again pertinent to mention here that the factum of possession of the plaintiff/respondent/cross-objector over the land measuring 40 kanals in view of mortgage deed Ex.P3 has also been recited in the agreement to sell Ex.P1. Therefore, there is no infirmity and illegality in the finding recorded by the learned trial Court that Sheola Ram executed an agreement to sell Ex.P1 and receipt Ex.P2 vide which said Sheola Ram had agreed to sell the suit land for sale consideration of Rs.3,60,000/- in favour of plaintiff/respondent/cross-objector and a sum of Rs.60,000/- which was the mortgage money was to be adjusted at the time of execution and registration of sale deed. The learned trial Court has not rightly accepted the plea of misrepresentation or undue influence allegedly exercised by Surjeet Bahadur PW3, husband of the plaintiff/respondent/cross-objector because evidently Partap Singh-defendant/appellant/respondent was present at the time of execution of agreement to sell Ex.P1 and receipt Ex.P2. Similarly, learned trial Court has rightly come to the conclusion that even if the suit land was ancestral in the hands of said Sheola Ram but even then the same has got no bearing upon the merits of this case because Sheola Ram being Karta of the suit land has got every right to alienate the suit property in his hands as agreement to sell Ex.P1, receipt, Ex.P2 and mortgage deed Ex.P3 were executed for a valuable consideration after receipt of amount mentioned in the said documents. Besides this plea of fraud as contended by the defendants/appellants/respondents has also not been substantiated by any evidence on the file and simple because said Sheola Ram was blind man and as such on account of blindness of Sheola Ram, it cannot be assumed that agreement to sell Ex.P1 and receipt Ex.P2 were result of fraud and misrepresentation because evidently, at the time of execution of agreement to sell Ex.P1 and receipt Ex.P2, Partap Singh defendant/appellant/respondent son of Sheola Ram was present. Therefore, when the learned trial Court has held the agreement Ex.P1 and receipt Ex.P2 validly and legally executed in favour of plaintiff/respondent/cross- objector then there was no occasion for the Court not to pass the decree of specific performance of agreement to sell Ex.P1 as there is nothing on the file in order to infer that on account of decreeing the suit for specific performance of agreement to sell Ex.P1, a great hardship would be caused to the defendants/appellants/respondents. Granting of alternative relief of recovery instead of granting of relief of specific enforcement of agreement to sell would tantamount to making mockery of specific performance of the agreement to sell as held by our own Hon'ble High Court in Gulzar Kaur's case (supra). Simply because if an alternative remedy has been provided in the agreement to sell, that does not disentitle the plaintiff/respondent/cross-objector to the main relief of specific performance of agreement to sell and moreover, if the suit has been filed at the fag end of limitation period, the same cannot be a ground to infer that the plaintiff/respondent/cross-objector was not ready and willing to get the agreement to sell Ex.P1 specifically enforced as held by the Hon'ble Apex Court of India in Motilal Jain's case (supra). Even the Hon'ble Apex Court has also laid down the same ratio in Indian Financial Association of Seventh Day Adventist's case (supra). Therefore, in view of the recent law laid down by Hon'ble Apex Court, the learned trial Court has committed grave error is not granting the relief of specific performance of the agreement to sell while decreeing the suit for recovery of earnest money along with the amount of the consolidated damages and interest. The learned trial Court ought to have granted the relief of specific performance of the agreement to sell Ex.P1 by enforcing the agreement to sell Ex.P1 and as such the findings recorded by the learned trial Court regarding granting of relief of recovery of earnest money along with consolidated damages along with interest is hereby set aside and suit of the plaintiff/respondent/cross-objector for possession by way of specific performance of the agreement to sell dated 30.1.1993 Ex.P1 on payment of balance sale consideration and stamp and registration charges is hereby decreed with costs. The defendants/appellants/respondents are hereby directed to get the sale deed executed and registered in terms of agreement to sell dated 30.1.1993 Ex.P1 in favour of the plaintiff/respondent/cross-objector on receipt of balance sale consideration and stamp and registration charges within a period of three months. However, if the defendants/respondents failed to get the sale deed executed and registered in terms of agreement to sell dated 30.1.1993 Ex.P1, within a period of three months, then the plaintiff/respondent/cross-objector shall be at liberty to get the sale deed executed and registered in terms of agreement to sell dated 30.1.1993 Ex.P1 through the process of the Court on depositing balance sale consideration and stamp and registration charges as per law. Consequently, the appeal filed by the defendants/appellants/respondents fails and same is hereby dismissed with costs and the appeal filed by the plaintiff/respondent/cross-objector is hereby accepted with costs. Decree-sheet be prepared accordingly.” In view of the findings recorded by the Lower Appellate Court, the arguments raised by the counsel for the appellants are not sustainable. It is well settled that the discretion of granting a decree for specific performance of a contract of immovable property has to be exercised on sound principles. When the Court gets discretionary jurisdiction it would be guided by justice, equity and good conscience to both the parties. Considered from this perspective, in view of the fact that the appellant Partapa himself was present at the time of execution of agreement to sell Ex.P-1 and receipt Ex.P-2 it cannot be said that the husband of the plaintiff was in a dominant position to exercise any influence over the Sheola Ram predecessor-in-interest of the appellant. Learned counsel for the appellants was unable to substantiate the argument of fraud and legal necessity in execution of the sale deed qua ancestral land in favour of the appellants. For the reasons recorded above, I find no merit in the appeal. No substantial question of law arises. Dismissed. September 17, 2008 (RAKESH KUMAR GARG) ps JUDGE IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.882 of 2008 Date of decision: 17.9.2008 Partapa and another ......Appellants Versus Rohit Khurania and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Rakesh Gupta, Advocate for the appellants. Mr. Rajinder Goyal, Advocate for respondents No.1 to 3. None for respondents No.8 to 11. Rakesh Kumar Garg, J . For orders, see RSA No.881 of 2008. September 17, 2008 (RAKESH KUMAR GARG) ps JUDGE