IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2542 of 2011 Date of decision: 15th July, 2011 Kavi Raj and another … Appellants Versus Gurbachan Singh … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Munish Gupta, Advocate for the appellants. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present regular second appeal has been instituted by defendants to the suit, having failed before the trial Court and the lower appellate Court. In this appeal decree of the trial Court is assailed whereby respondent-plaintiff has been held entitled to recover Rs.1,00,000/- as earnest money along with interest at the rate of 6 percent per annum. It is not disputed that an agreement to sell Ex.P2 was entered into between the respondent-plaintiff and the appellants-defendants. It is the case of the respondent-plaintiff that at the time of execution of the agreement to sell, Kavi Raj-appellant No.1 (defendant No.1 to the suit) had assured the respondent-plaintiff that complete and full land (2 kanals in measurement) will be conveyed to the respondent-plaintiff having an approach and a rasta. After the execution of agreement to sell it was pleaded that the respondent-plaintiff got a copy of the fard, jamabandi Regular Second Appeal No.2542 of 2011 and aks-shajra and came to know that there is no rasta on the eastern side of the land and even the land does not measure 2 kanals. It was pleaded that the agreement to sell executed by appellant-defendant No.1 suffer from fraud and misrepresentation. The respondent-plaintiff further stated that the various attempts and efforts made by him to obtain the exact position of the land to be sold as per the agreement to sell dated 6th October, 2000 proved futile. It was further stated that a notice to execute the sale deed as per the agreement to sell and complete the measurement along with rasta was issued but the same was not replied back. The respondent-plaintiff remained present in the Tehsil Complex on 10th April, 2001, i.e. the date fixed for execution of the sale deed but the appellant-defendant No.1 did not come present. It was further pleaded that the respondent-plaintiff was ready and willing to get the sale deed executed as per the specifications and measurements given in the agreement to sell dated 6th October, 2000. Upon notice, the appellants-defendants filed a written statement and controverted the material pleadings, however, it was submitted that they were owners of the suit property. It was further stated that they had purchased this land vide a sale deed dated 12th June, 1974 and the passage of 5 feet width was mentioned, in the sale deed by which the appellants-defendants had purchased the property. It was further stated that defendant No.1 also remained present in the Tehsil Complex, Hoshiarpur on 10th April, 2001. The trial Court, after conclusion of the pleadings, had drawn following issues: “1. Whether the plaintiff is entitled for recovery of Rs.1,92,000/- as prayed for? OPP 2. Whether the suit is not maintainable in its present form? OPD 2 Regular Second Appeal No.2542 of 2011 3. Whether the plaintiff has got no locus standi to file this suit? OPD 4. Whether the plaintiff has not come to the Court with clean hands? OPD 5. Relief.” Parties led their evidence. The trial Court held that in the agreement to sell there was a misrepresentation on the part of the appellants-defendants. It will be apposite here to reproduce the finding given by the trial Court, which reads as under: “12. … … … However, this contention is neither tenable in law nor as per the facts as the agreement to sell dated 6.10.2000 contains a recital to the effect that the property is bounded on the Eastern side by a rasta. This is a clear case of misrepresentation on the part of the defendant. Now he can not escape his liability on the pretext that the plaintiff should have been careful and should have inspected the property before purchasing the same. Admittedly, the property is in the shape of an open plot. As such, existence or otherwise of the passage may not be ascertained by mere inspection of the property. No doubt, it is the duty of the purchaser to satisfy himself with regard to the property he intends to purchase, but this principle cannot be extended to an extent that defendant is authorized to sell his land by misrepresentation. Moreover, it is only the patent defects which the purchaser is liable to inspect. As far as patent defects are concerned, the seller is duty bound to disclose the same, more so when the defects are of such nature which would cause an impediment to effective usage of the property.” The above said finding of fact returned by the trial Court was affirmed by the lower appellate Court and it further held that the notice 3 Regular Second Appeal No.2542 of 2011 issued by the respondent-plaintiff was not replied back. The lower appellate Court also held as under: “20. … … … As per the revenue record, since there is no passage to the property of the defendants as provided in the revenue record, so it can not be presumed that the defendants are having passage to their property… … …”. In these circumstances, as it has been rightly appreciated by both the courts below, the respondent-plaintiff was well within his rights to claim refund of the earnest money paid along with interest. The appellants-defendants were not in a position to deliver what they had promised in the agreement to sell Ex.P2. The contention raised by Mr.Munish Gupta, Advocate appearing on behalf of the appellants- defendants, that in the cross-examination Suraj Mohan Record Clerk while appearing as PW-1 had proved the presence of the appellant- defendant No.1 Kavi Raj in the office of Sub-Registrar and therefore, this Court should presume that the appellant-defendant No.1 Kavi Raj was ready and willing to perform his part of the contract, is of no consequence as the contention raised before me in no way can dislodge the findings returned by both the courts below that there was a misrepresentation on the part of the appellants-defendants. Having failed to convince this Court to re-appreciate and do re-appraisal of the evidence, counsel has drawn my attention to the order dated 3rd June, 2011, wherein it was stated that the appellants- defendants are still willing to execute the sale deed of plot measuring 2 kanals with 5 feet wide passage on the east side in favour of the respondent-plaintiff. However today, learned counsel has added another rider and has stated that the appellants-defendants are willing to execute 4 Regular Second Appeal No.2542 of 2011 the sale deed at the existing Collector’s rate. This offer seems to be a ruse to delay the execution proceedings as the total amount which the appellants-defendants have to pay as on today, according to the counsel, is Rs.1,42,000/-. No substantial question of law arises for consideration of this Court. Hence, no interference is warranted in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE July 15, 2011 rps 5