RSA No.2876 of 2008(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2876 of 2008(O&M) Date of Decision: September 13, 2011 Karnail Singh and another .....Appellants v. Surinder Singh .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Kulbhushan Soi, Advocate for the appellants. ..... RAM CHAND GUPTA, J.(Oral) The present regular second appeal has been filed against judgment and decree dated 19.4.2008 passed by learned Additional District Judge, Ferozepur, accepting appeal filed by respondent-plaintiff against judgment and decree dated 5.3.2007 passed by learned Additional Civil Judge, (Senior Division), Abohar, vide which suit filed by respondent- plaintiff was decreed for alternative relief for recovery of ` 1,50,000/- and, however, learned first appellate Court decreed the suit filed by respondent- plaintiff for joint possession by way of specific performance of agreement to sell dated 11.12.2003 regarding land measuring 11 kanals 11 marlas, and by declaring that the sale deed dated 27.5.2004 executed by present appellant no.1-defendant in favour of appellant no.2-defendant qua his share of land to the extent of 11 kanals 11 marlas was also null and void. I have heard learned counsel for the appellants and have gone through the whole record carefully including both the judgments passed by learned Courts below. Briefly stated, respondent-plaintiff filed this suit for a decree RSA No.2876 of 2008(O&M) -2- for possession by way of specific performance of agreement to sell dated 11.12.2003 executed by appellant no.1-defendant to sell his land measuring 11 kanals 11 marlas, fully detailed in the heading of the plaint for sale consideration of `1,25,000/- per acre, out of which appellant no.1-defendant received `1,35,000/- as earnest money and date of execution of sale deed was also fixed as 30.3.2004, which was further extended to 15.5.2004 and again extended to 15.7.2004, after receiving `15,000/- more by appellant no.1-defendant from respondent-plaintiff on 15.5.2004 with a further prayer for declaration to the effect that the sale deed dated 27.5.2004 vide Vasika No.1066 executed by appellant no.1-defendant in favour of appellant no.2-defendant qua his share of land including the land in dispute is illegal, null and void, with consequential relief of permanent injunction restraining appellants-defendants from alienating the land in dispute to anybody else. On notice being issued, appellant no.1-defendant filed written statement denying the very execution of the agreement to sell in favour of respondent-plaintiff. However, after considering evidence led by both the parties, learned trial Court decreed the suit filed by respondent-plaintiff for alternative relief for recovery of `1,50,000/- along with interest. Aggrieved against the said judgment and decree, respondent- plaintiff filed appeal before learned Additional District Judge, Ferozepur, who decreed the suit filed by him for specific performance by accepting the appeal, as aforementioned. It has been contended by learned counsel for the appellants- defendants that admittedly the date fixed for execution of sale deed was RSA No.2876 of 2008(O&M) -3- 15.7.2004 and, however, the present suit was filed before the said date, i.e., on 7.6.2004. Hence, it is contended that the suit was not maintainable on the date of filing of the suit. However, this plea cannot be accepted. It has been rightly observed by learned first appellate Court that as per own case of appellants- defendants, sale deed regarding property in dispute was executed by appellant no.1-defendant in favour of appellant no.2-defendant, i.e., his minor son, much prior to the date fixed for execution of the sale deed in question and hence, due to this conduct of present appellant no.1-defendant, cause of action arose in favour of respondent-plaintiff to file suit for specific performance as appellant no.1-defendant was not ready and willing to perform his part of the contract. He had already breached the terms and conditions of the contract by executing the sale deed in favour of his son even before 15.7.2004. Further contends that appellant no.1-defendant was not in possession of specific khasra numbers, mentioned in the agreement to sell and hence, it is contended that decree for suit for specific performance of specific khasra numbers could not be passed by learned first appellate Court. However, perusal of decree passed by learned first appellate Court shows that the same was passed for joint possession by way of specific performance of agreement to sell dated 11.12.2003 as per the terms and conditions of the agreement to sell. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned first appellate Court in passing the impugned judgment and decree. Finding recorded by learned lower RSA No.2876 of 2008(O&M) -4- appellate court is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 13.9.2011 (Ram Chand Gupta) meenu Judge