RSA No. 2504 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2504 of 2011 (O&M) Date of Decision: 01.6.2011. Narinder Pal .......Appellant Vs. Kulwinder Singh and another ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Pandit Vinod Sharma, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 27.2.1999. The case of the plaintiff in brief was that defendant No.1 had agreed to sell the suit land to the plaintiff at the rate of ` 3,00,000/- per acre. At the time of execution of the agreement to sell dated 27.2.1999, ` 1,60,000/- were advanced by the plaintiff to the defendant No.1 towards earnest money. The sale deed was to be executed on or before 27.8.1999. On the said date, the date for execution of the sale deed was extended to 27.2.2000 by the parties and then the date for execution of the sale deed was again extended to 27.8.2000. Since 27.8.2000 was Sunday, plaintiff remained present in the office of the Sub Registrar on 28.8.2000 along with balance sale consideration for RSA No. 2504 of 2011 (O&M) -2- registration of the sale deed but the defendant No.1 failed to appear to perform his part of the contract. Hence, suit for specific performance was filed by the plaintiff. Defendant No. 1, in his written statement, denied the execution of the agreement to sell in question. Defendant No.2, in its written statement, averred that vide mortgage deed dated 28.5.1997, the land in dispute was mortgaged by the defendant No.1 with the answering defendant. There was an outstanding loan of ` 38,675/- upto 31.3.2001 against defendant No.1. Defendant No.1, thus, did not have any locus standi to execute the agreement to sell in question in favour of the plaintiff. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for the grant of decree of possession by way of specific performance of agreement to sell dated 27.2.1999? OPP 2. Whether the plaintiff is entitled for the decree in the alternative for recovery of Rs. 2,10,000/- as prayed for? OPP 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether the plaintiff is estopped to file the present suit by his acts and conducts? OPD 5. Whether the alleged agreement is result of fraud, misrepresentation, without consideration and concealment of material facts?OPD RSA No. 2504 of 2011 (O&M) -3- 6. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 7. Whether the suit is not maintainable? OPD 8. Relief.” Civil Judge (Junior Division) vide judgment and decree dated 23.10.2007 decreed the suit of the plaintiff for recovery of `. 1,60,000/- along with interest @ 12% per annum. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was allowed by the Additional District Judge vide judgment and decree dated 6.8.2010. Consequently, suit of the plaintiff was decreed for possession by way of specific performance of agreement to sell in question. Hence, the present appeal by the defendant No.1. Learned counsel for the appellant has submitted that since the suit land stood mortgaged with defendant No.2 and hence, the specific performance of the agreement to sell in question could not be ordered. The agreement to sell in question was apparently executed for security towards loan transaction. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. So far as the factum of execution of the agreement to sell in question is concerned, the same cannot be gone into by this court in the present appeal as the appellant had not challenged the decree, passed by the trial court whereby the agreement to sell in question was held to have been duly executed between the parties. Only the plaintiff had filed an appeal against the judgment and decree passed by the trial court claiming that his suit be decreed for specific performance of RSA No. 2504 of 2011 (O&M) -4- agreement to sell in question instead of recovery of the earnest money. Thus, the question that requires consideration in this appeal is as to whether the plaintiff was entitled to the relief of specific performance of agreement to sell in question. In this regard, the learned first appellate court has observed in para No. 13 of its judgment that as per jamabandi for the year 1999- 2000, the previous mortgage was got redeemed by defendant No.1 from defendant No.2 after making payment of ` 52,000/-. Defendant No.2 again advanced a loan of ` 2,25,000/- to the defendant No.1 during the pendency of the suit. Defendant No.2 was a party to the suit and hence, had the knowledge that defendant No.1 had executed an agreement to sell qua the suit land in favour of the plaintiff. Learned counsel for the appellant has failed to convince me that the agreement to sell in question was executed as a security towards loan transaction. In these circumstances, the learned first appellate court rightly held that the plaintiff was entitled to relief of specific performance of agreement to sell in question. Moreover, this is not an appeal, filed by the bank but the present appeal has been filed by the defendant No.1. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE June 01, 2011 Gurpreet