R.S.A.No. 4831 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4831 of 2010 (O&M) Date of decision: 24.1.2011 Chanan Singh ......Appellant Versus Jangir Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. HNS Gill, Advocate, for the appellant. **** SABINA, J. Plaintiff-respondent No.1 filed a suit for specific performance of agreement to sell dated 29.7.1999. The case of the plaintiff, in brief, was that defendant No.1 was owner of the property in dispute and had agreed to sell the same to the plaintiff vide agreement to sell dated 29.7.1999. At the time of execution of the agreement to sell, ` 1,60,000/- had been paid as earnest money by the plaintiff to defendant No.1. The sale deed was R.S.A.No. 4831 of 2010 (O&M) 2 to be executed on or before 1.8.2000. The said date was later extended to 9.11.2000. On the stipulated date fixed for execution of the sale deed, plaintiff remained present in the office of Sub Registrar but defendant No.1 failed to appear and perform his part of the contract. Defendant No.1 in his written statement denied the execution of agreement to sell in question. It was averred that defendant No.1 had exchanged the land in question with Jarnail Singh vide writing dated 23.4.1990 and hence, he was not owner of the land in question and there was no question of execution of agreement to sell in favour of the plaintiff by him. It was further alleged that the agreement to sell in question was a result of fraud. Son-in-law of the plaintiff was running commission agent shop in the name and style of Joshan Trading Company, Patran. The signatures of defendant No.1 were taken on some blank papers. Defendant No.2, in his written statement, denied the contentions in the plaint. It was averred that defendant No.2 was in possession of the suit land after defendant No.1 had exchanged the same with him. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether defendant No.1 had entered into an agreement for the sale of the land in suit land as more fully described in the head note of the plaint? OPP. R.S.A.No. 4831 of 2010 (O&M) 3 2.Whether suit is false and frivolous? OPD 3. Whether the plaintiff has no cause of action to file this suit ? OPD 4.Whether the plaintiff has concealed the true facts from the Court? OPD 5. Whether the plaintiff has been ready and willing to perform his part of the contract? OPP 6. Whether the plaintiff is entitled to the injunction, as prayed for ? OPP 7. Whether the plaintiff is entitled to the specific performance of the agreement of sale in his favour or whether the plaintiff is entitled to the recovery of ` 3,20,00/- as prayed for ? OPP 8. Relief. The trial Court partly decreed the suit of the plaintiff for recovery of the earnest money along with interest @ 12.5% per annum from the date of agreement to sell till realisation vide judgment and decree dated 10.11.2006. Aggrieved by the same, defendant No.1 preferred an appeal and plaintiff filed cross- objections. Vide judgment and decree dated 27.1.2010, Additional District Judge, Patiala dismissed the appeal as well as cross- objections. Hence, the present appeal by the defendant No.1. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves R.S.A.No. 4831 of 2010 (O&M) 4 dismissal. In order to prove the due execution of the agreement to sell, plaintiff examined PW-5 Gurmail Singh Khinda, document writer, who deposed that he had scribed the agreement to sell in question at the instance of defendant No.1 and had made requisite entry in his register. PW-6 Dr. Inderjit Singh, handwriting and finger print expert, examined the questioned signatures of defendant No.1 on agreement to sell with his standard signatures and gave his report that the questioned signatures tallied with the standard signatures. PW-2 Surinder Singh, attesting witness to the agreement to sell, was also examined by the plaintiff to prove the due execution of the agreement to sell Ex.P-1. Thus, the plaintiff had been successful in proving the due execution of the agreement to sell. Defendants, however, failed to lead their evidence despite opportunity and their evidence was closed by order vide order dated 30.10.2006. Since defendant No. 1 was no longer the owner of the land in question as he had exchanged the same with defendant No. 2, Courts below rightly held that the relief of specific performance of agreement to sell could not be granted to the plaintiff. Defendant No.1 had received the earnest money at the time of execution of agreement to sell in question, although he was no longer owner of the property in dispute. In these circumstances, the Courts below rightly held that R.S.A.No. 4831 of 2010 (O&M) 5 the plaintiff was entitled to recover the said amount along with interest. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 24, 2011 anita