R.S.A. No. 504 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 504 of 2007 Date of Decision: 23.07.2009 1. Sukhdev Singh; 2. Kewal Singh; 3. Malkit Singh; all r/o village Kadupur, Tehsil and District Kapurthala. ... Appellants Versus Gian Singh son of S. Dhanna Singh son of S. Narain Singh, r/o village Kamalpur, Tehsil Sultanpur Lodhi, District Kapurthala. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Ramesh Sharma, Advocate, for the appellants. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 30.08.2006, rendered by the Court of District Judge, Kapurthala, vide which, it accepted the appeal of the defendant/respondent, and set aside the judgement and decree dated 24.12.2004, rendered by the Court of Additional Civil Judge (Senior Division), Sultanpur Lodhi, vide which, it decreed the suit of the plaintiffs/appellants. 2. Shorn of unnecessary details, the facts, relevant for the decision R.S.A. No. 504 of 2007 2 of this appeal, are that, the defendant/respondent, agreed to sell the suit land, described in the cause title of the plaint, for a consideration of Rs. 3,00,000/- per acre, vide agreement to sell dated 20.09.2000, to the plaintiffs/appellants, and received Rs. 2,50,000/-, as an imprest. It was stated that the sale deed, was to be executed, and got registered, on or before 20.09.2001. It was further stated that, on 30.01.2001, the defendant/respondent, executed the sale deed, in favour of the plaintiffs/appellants, regarding 11 kanals of land, bearing khasras No. 84//22/3-0, 92//9/1/3-4, 9/2/3-16, and 9/3/1-0, at the rate of Rs. 3 lacs, per acre. It was further stated that the defendant/respondent, further executed another sale deed dated 13.08.2001, in favour of the plaintiffs/appellants, regarding 5 kanals of land, out of khasra No. 84//22/8-0, at the rate of Rs. 3 lacs, per acre. It was further stated that, at the time of execution of the aforesaid sale deeds, as per advice of the deed-writer, sale consideration, was mentioned therein, as per the then prevailing minimum rates, fixed by the government, for registration of the sale deed. It was further stated that, indeed, the plaintiffs/appellants, purchased the said land, vide the aforementioned sale deeds, at the rate of Rs. 3 lacs per acre. It was further stated that, at the time of execution of the sale deeds, it was agreed, by the defendant/respondent, that amount of Rs. 2,50,000/-, received by him, as an imprest, vide agreement to sell dated 20.09.2000, would be adjusted, when he (defendant/respondent) will execute a separate sale deed, regarding the remaining one acre of the suit land, and, as such, they (plaintiffs/appellants), did not claim specific performance of the agreement to sell dated 20.09.2000, regarding two acres of land, which were sold to them, vide sale R.S.A. No. 504 of 2007 3 deeds dated 30.01.2001, and 27.08.2001. It was further stated that the defendant/respondent, was under obligation, to execute the sale deed, in respect of one acre of land of remaining khasra numbers, which were not covered, in the aforesaid sale deeds, on receipt of Rs. 50,000/-, as balance sale consideration, in terms of the agreement to sell dated 20.09.2000. It was further stated that, although, the plaintiffs/appellants, always remained ready and willing, to perform their own part of agreement to sell dated 20.09.2000, yet, the defendant/respondent, did not execute the sale deed of the remaining one acre of land, covered by the agreement to sell dated 20.09.2000. It was further stated that, for the aforesaid purpose, the plaintiffs/appellants, remained present, in the Office of Sub Registrar, Sultanpur Lodhi, on 20.09.2001, for whole of the day, but the defendant/respondent, did not turn up, and, thereupon, the plaintiffs/appellants, swore an affidavit, in this regard. Thereafter, they served a notice dated 27.09.2001, upon the defendant/respondent, through registered post, requiring him, to execute the sale deed of one acre of land, in their favour, on 15.10.2001. It was further stated that, on 15.10.2001 also, the plaintiffs/appellants, remained present, in the Office of Sub Registrar, but the defendant/respondent, did not turn up there, and, thereupon, they (plaintiffs/appellants), again swore an affidavit, in this regard, and served notice dated 06.08.2002, upon the defendant/respondent, which was returned to them, with some false report. It was further stated that, the plaintiffs/appellants, also remained present, in the Office of the Sub Registrar, on 26.08.2002, but the defendant/respondent, did not turn up. The defendant/respondent, was many a time asked, to perform his own part of R.S.A. No. 504 of 2007 4 contract, but to no avail. On the final refusal of the defendant/respondent, left with no other alternative, a suit for specific performance, was filed. 3. The defendant/respondent, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the plaintiffs, were estopped, from filing the suit, by their own act and conduct. It was further pleaded that, the suit, was bad for non- joinder of necessary parties. It was further pleaded that, the suit had not been properly valued, for the purposes of Court fee, and jurisdiction. It was stated that, as per jamabandi, for the year 1996-1997, the suit land, bearing khasra Nos. 92//23/2/6-0, and 24/1/2-16, had been mortgaged with Primary Agricultural Development Bank, Sultanpur Lodhi, for Rs. 1,00,000/-. It was further stated that, the suit land also stood mortgaged with the said bank for Rs. 54,000/-. It was admitted that, on 30.01.2001, an agreement to sell, regarding 11 kanals of land, and on 13.08.2001, two sale deeds, regarding 5 kanals of land, were executed, in favour of the plaintiffs/appellants. It was further stated that, indeed, vide agreement to sell dated 20.09.2000, the defendant/respondent, agreed to sell 24 kanals of land, at the rate of Rs. 3,00,000/-, per killa, and Rs. 2,50,000/-, were received by him, from the plaintiffs/appellants, as an imprest, at that time. It was further stated that, after the execution of the agreement to sell, and before 20.09.2001, i.e. the date fixed for the execution of sale deed, the plaintiffs/appellants, approached him (defendant/respondent), showing their inability, to get the sale deed executed, with regard to the land agreed to be sold, for want of money. It was further stated that, when the plaintiffs/appellants, came to know, that a dispute, with regard to the agreement to sell, pertaining to the R.S.A. No. 504 of 2007 5 land, in question, was also going on, with other persons, they requested him (defendant/respondent), to refund the aforesaid imprest, and to cancel the agreement, but he refused to accept the same, as, at that time, he was not in possession of the said amount, which was paid to him, as an imprest, by the plaintiffs/appellants. It was further stated that, upon this, the plaintiffs/appellants, requested the defendant/respondent, to execute the sale deed of a part of the land, in their favour, so that he may not have to return the imprest, as also he would not have to execute the sale deed of the remaining land, which was not covered by the sale deed, so executed, and the agreement, in question, would stand abandoned/cancelled. It was further stated that, even this offer, was not accepted by the defendant/respondent,as he did not want to sell the land, agreed to be sold, in parts, due to need of money, and thereupon, the plaintiffs/appellants, agreed to pay more price, than earlier agreed, to get the sale deeds executed, qua part of the land, covered by the agreement to sell, in question, and to adjust the imprest, so paid, therein. It was further stated that, in separate and fresh bargain, the plaintiffs/appellants, agreed to purchase the land, measuring 11 kanals, covered by the sale deed dated 30.01.2001, from him (defendant/respondent), at the rate of Rs. 3,50,545/-, per killa, and it was agreed that, earnest money, would be adjusted, in the sale consideration, and regarding the remaining land, the agreement so executed, would stand abandoned/cancelled, by the plaintiffs/appellants. It was further stated that, on 30.01.2001, on asking of the plaintiffs/appellants, he (defendant/respondent), executed the sale deed of the land, measuring 11 kanals, and received Rs. 4,82,000/-, at the rate of Rs. 3,50,545/-, per killa. It R.S.A. No. 504 of 2007 6 was further stated that, the imprest money, earlier paid, to the defendant/respondent, by the plaintiffs/appellants, was adjusted, in the sale consideration. It was further stated that, the sale deed dated 13.08.2001, was not, as per the terms and conditions of agreement, in question, and it had nothing to do with the same. It was further stated that the sale deed, was the result of separate bargain, entered into, between the parties. It was further stated that, the sale deed, was for 5 kanals, at the rate of Rs. 3,52,000/- per killa. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- i) Whether defendant agreed to alienate property in dispute in favour of plaintiff vide agreement dated 20.09.2000? OPP ii) If issue No. 1 is proved, whether the plaintiff is entitled for the relief of specific performance of the agreement? OPP iii) Whether the plaintiffs are barred by their acts and conduct? OPD iv) Whether the suit is bad for non-joinder of necessary parties? If so, its effect? OPD v) Whether the suit has not been properly valued for the purpose of Court fee, and jurisdiction? OPD vi) Whether the sale deeds as detailed in para No. 4 of the written statement were not executed in part performance? If so, its effect? OPD vii) Whether the agreement in question was abandoned by the plaintiffs as alleged? OPD viii) Relief. R.S.A. No. 504 of 2007 7 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiffs, for recovery. 6 Feeling aggrieved, an appeal was preferred, by the defendant/respondent, which was accepted, by the Court of District Judge, Kapurthala, vide judgement and decree dated 30.08.2006. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiffs/appellants. 8. I have heard the Counsel for the plaintiffs/appellants, and have gone through the documents, on record, carefully. 9. The Counsel for the plaintiffs/appellants, submitted that, 2/3rd of the land, subject matter of the said agreement, was transferred, by Gian Singh, defendant/respondent, in favour of the two plaintiffs/appellants, before the date fixed, for the execution and registration of the sale deed, on the basis of the said agreement. He further submitted that, an amount of Rs. 2,50,000/-, which was received by Gian Singh, defendant/respondent, at the time of execution of the agreement to sell, was not adjusted, at the time of execution of the sale deeds, referred to above. He further submitted that, the trial Court, was, thus, right in coming to the conclusion that, though, the agreement to sell P1, stood abandoned and cancelled, after the execution of the sale deeds, yet the plaintiffs/appellants, were entitled, to the recovery of amount. He further submitted that the Appellate Court, was wrong, in coming to the conclusion that, once agreement to sell, was abandoned and cancelled, the plaintiffs/appellants, were not entitled, to the recovery of a sum of Rs. 2,50,000/-. He further submitted that the judgement and decree R.S.A. No. 504 of 2007 8 of the First Appellate Court, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the plaintiffs/appellants, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate Court, even if the same are grossly erroneous, as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. P1 is the agreement to sell. This agreement to sell, was, in respect of 24 kanals of land, belonging to the defendant/respondent. PA and PB, are the sale deeds, which were executed, in favour of the plaintiffs/appellants, by the defendant/respondent. These sale deeds, were executed, before the date arrived for the execution and registration of the sale deed, on the basis of the agreement to sell. There is no mention,in the sale deeds, PA and PB, with regard to the agreement to sell P1. There is also, no mention, in the sale deeds, regarding the adjustment of a sum of Rs. 2,50,000/-, against the sale consideration. The trial Court, held that, after the execution of sale deeds, PA and PB, the R.S.A. No. 504 of 2007 9 agreement to sell P1, stood abandoned and cancelled. It could not be imagined, that sale deeds, in respect of 2/3rd portion of the land, the subject matter of the agreement to sell, could be got executed and registered, by the plaintiffs/appellants, without getting the amount of Rs. 2,50,000/-, received in pursuance of the agreement, by the defendant/respondent, adjusted. The agreement to sell, P1, was abandoned and cancelled only, on account of the reason, that the amount of Rs. 2,50,000/-, was adjusted, in the sale consideration, and the sale deeds, PA and PB, were executed, much before the date arrived, for the execution of the sale deed, in respect of the land, in dispute, on the basis of the agreement to sell. No document, was placed, on record, by the plaintiffs/appellants, as to wherefrom, they brought a sum of Rs. 7 lacs, as sale consideration of the sale deeds, PA and PB. In case, a sum of Rs. 2,50,000/-, had not been adjusted, towards the sale consideration of the sale deeds, PA and PB, then the plaintiffs/appellants, would have certainly produced the pass-book of the bank, and the statement of account, from the bank, showing that, they withdrew the amount of 7 lacs, and paid the same, to the vendor. The findings of fact, recorded by the First Appellate Court, regarding the cancellation and abandonment of the agreement to sell P1; the execution of the sale deeds PA and PB, in respect of 2/3rd portion of the land, in question; adjustment of the amount of Rs. 2,50,000/-, of earnest money of the agreement to sell, towards the sale consideration of sale deeds, PA and PB; and that the plaintiffs/appellants, were not entitled to the recovery of any amount, being based, on the correct appreciation of evidence, and law, on the point, suffer from no illegality, or perversity, and warrant no interference. The submission of the Counsel for the R.S.A. No. 504 of 2007 10 plaintiffs/appellants, being without merit, must fail, and same stands rejected. The judgement and decree of the First Appellate Court, are liable to be upheld. 11. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 12. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 23.07.2009 (SHAM SUNDER) Amodh JUDGE