C.M.No.826-C of 2010 and ::1:: C.M.No.827-C of 2010 and RSA No.290 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M.No.826-C of 2010 and C.M.No.827-C of 2010 and RSA No.290 of 2010 Date of decision: 30.03.2010 Thana singh .. Appellant Versus Banta Singh and others .. Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI a). Whether Reporters of Local Papers may be allowed to see the judgment ? b). To be referred to the Reporters or not ? c). Whether the judgment should be reported in the Digest ? Present:- Mr.Jitender Pal Singh, Advocate for the appellant . . . AJAY TEWARI, J. (ORAL) C.M.No.826-C of 2010 For the reasons recorded in the Civil Miscellaneous Application, same stands allowed and the delay of 24 days in re-filing the appeal is condoned. C.M.No.827-C of 2010 In view of the contents mentioned in the Civil Miscellaneous Application, same stand allowed. RSA No.290 of 2010 This appeal has been filed against the judgment of the learned Lower Appellate Court (modifying the decree of the Trial Court) wherein relief of refund of earnest money has been ordered in place of relief of specific performance. Learned Lower Appellate Court was primarily influenced by the fact that out of the total sale consideration of C.M.No.826-C of 2010 and ::2:: C.M.No.827-C of 2010 and RSA No.290 of 2010 Rs.4,43,000/-, earnest money of Rs.3,70,000/- was paid and still the date for execution of sale deed was fixed more than one year forward and further possession was also not taken despite having paid such a large percentage of the total sale consideration. Learned Lower Appellate Court also noticed that prior to the agreement to sell there was a mortgage for Rs.95,000/- which was duly recorded in the Revenue Record but the agreement to sell did not refer to that prior mortgage. Learned Lower Appellate Court was also influenced by the fact that the respondent was not the owner of the land in dispute and was only a co-sharer and therefore, could not execute an agreement to sell specific Khasra Numbers. On the basis of this, learned Lower Appellate Court held that the transaction seems to be a money transaction and consequently decreed the suit for recovery of the earnest money with interest. Following questions have been proposed:- (i) Whether the learned first appellate court has wrongly and illegally modified the judgment/ decree passed by the learned trial court by way of granting alternative relief against the actual relief though the agreement to sell stands duly proved ? (ii) Whether the learned first appellate court has wrongly and illegally accepted the claim of the defendant No.3 in whose favour the defendant No.1 had created encumbrance upon the property just as it is a government institution though the same was done to defeat the rights of the plaintiff ? (iii) Whether the plaintiff is entitled to get the agreement to sell dated 21.11.2000 executed as has been rightly held by the learned trial court ? C.M.No.826-C of 2010 and ::3:: C.M.No.827-C of 2010 and RSA No.290 of 2010 It would be seen that question Nos.(i) to (iii) are general questions. As regards question No.(ii) no doubt the learned Lower Appellate Court has held that even though the action of the respondent in mortgaging the land just one day prior to the date fixed for execution of the sale deed is not appreciable and has further held that the interest of the Bank being a public body has to be protected yet even if this finding is removed the circumstances pointed out by the learned Lower Appellate Court have not been adequately explained by the appellant. Even if one of the reasons mentioned by the learned Lower Appellate Court is not entirely sound, yet it would not detract from the conclusions drawn from the other facts on record. In these circumstances, I find no reason to interfere with the judgment of the learned Lower Appellate Court. Consequently, this appeal is dismissed.. No costs. Since the main appeal has been decided, the Civil Miscellaneous Application, if any, stands disposed of accordingly. March 30, 2010 (AJAY TEWARI) Sukhpreet JUDGE