R.S.A. No. 4085 of 2006 [Page numbers] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4085 of 2006 Date of decision: October 20, 2008 Surjit Singh ..Appellant v. Arjan Singh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. R.P. Singh Ahluwalia, Advocate for the appellant. .. Rajesh Bindal J. The plaintiff is in second appeal before this Court against the concurrent finding of fact recorded by both the Courts below, whereby the relief of specific performance of agreement to sell was not granted and only the refund of earnest money along with interest was ordered. The appellant-plaintiff filed a suit seeking specific performance of agreement to sell dated 3.1.1995. It was alleged that the respondent-defendant agreed to sell the suit land for a sum of Rs. 36,000/-. Earnest money of Rs. 10,000/- was paid. As the respondent-defendant failed to execute the sale deed, the suit came to be filed. The learned trial Court found that the respondent-defendant was not the owner of the suit property, rather, in the ownership column, it was recorded as “Civil Panchayat Deh” and he was shown to be in possession in the capacity of “gair marusi lagan nadrad”. In fact, the government property was sought to be sold by the respondent-defendant. As it was found that the respondent-defendant was not the owner of the suit land, decree of specific performance was not granted and it was directed that appellant-plaintiff shall be entitled to recover the amount of Rs. 10,000/- paid as earnest money along with interest thereon. In the first appeal before the learned court below, it was further noticed that there were discrepancies in the two copies of agreement to sell placed on record by both the parties. It was found on a perusal of the agreement to sell produced by the appellant-plaintiff that there was over writing of digit “9” and “36/14” with a different type-writer. However, on a consideration of the material on record, the Court found that the respondent-defendant, an old man, had entered into an agreement to sell only 5 marls of land. However, with over writing, the R.S.A. No. 4085 of 2006 [Page numbers] same was changed to 9 marlas. The respondent-defendant was not even owner of 9 marlas of land. To that extent, the appellant-plaintiff fabricated the document and even on this additional ground, he was non-suited by the lower appellate Court as the plaintiff had not come to the Court with clean hands. Even before this Court, learned counsel for the appellant-plaintiff reiterated the submissions made before the court below and also submitted that even if the respondent-defendant was not the owner of the suit land, he could transfer only possessory rights to the appellant-plaintiff. However, considering the material on record, I find the contention to be totally misconceived. It has come on record that the land was not owned by the respondent-defendant. There is a finding of fact regarding over writing on the agreement produced by the appellant-plaintiff in the Court where figure “5” was changed to “9”. Once it is found that the appellant-plaintiff had not approached the Court with clean hands, he is not entitled to the discretionary relief of specific performance and he has rightly been non-suited on that ground. The learned Court below, on appreciation of the material on record, has rightly granted him the relief of refund of earnest money. The findings recorded are plain and simple findings of fact. No substantial question of law arises. Accordingly, the appeal is dismissed. (Rajesh Bindal) Judge 20.10.2008 mk