Regular Second Appeal No. 628 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 628 of 2008 Date of Order: 05.08.2009 Major Singh ....Appellant Versus Kirpal Singh ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Anurag Arora,Advocate for the appellant. Mr. I.P.S.Kohli, Advocate for the respondent. RAJIVE BHALLA, J (Oral). The appellant challenges the judgments and decrees dated 03.01.2006 and 01.02.2008, passed by the Civil Judge (Junior Division), Dhuri and the Additional District Judge, Sangrur, decreeing the suit filed by the respondent and dismissing his appeal, respectively. The plaintiff/respondent filed a suit for specific performance of an agreement dated 14.06.2001 alleging that Major Singh had agreed to sell 3 killas of land @ Rs.2,65,000/- per killa after receipt of Rs. 50,000/-as earnest money. The sale deed was to be executed on or before 15.05.2002. Despite repeated requests and demands, as the defendant/appellant did not turn up to execute the sale deed, the respondent filed the present suit. In response to the pleadings in the plaint, the appellant denied the execution of the agreement, the receipt of earnest money or that the sale deed was to be executed on 15.05.2002. In addition, the appellant pleaded that the agreement was vague, indefinite and uncertain for want of Regular Second Appeal No. 628 of 2008 -2- reference to khasra numbers, boundaries or identity of the land. On the basis of the pleadings, the trial court framed the following issues:- “1. Whether the defendant entered into an agreement with the plaintiff for the sale of land measuring 3 killas (24 kanals) vide agreement to sell dated 14.06.2001?OPP 2. Whether the plaintiff was/is still ready and willing to perform his part of contract?OPP 3. Whether the plaintiff is entitled to a decree of specific performance of the agreement to sell dated 14.6.2001?OPP 4. Whether the plaintiff is entitled to decree of permanent injunction?OPP 5. If issue No.1 is proved, whether the alleged agreement to sell is vague, uncertain, indefinite and unenforceable?OPD 6. Whether the present suit is misconceived?OPD 7. Whether the suit land is joint Hindu Family ancestral, coparcenary property of the defendant and his sons, if so, its effect?OPD 8. Relief.” Before the trial court, and while deposing as DW1, the appellant admitted, the execution of the agreement to sell, admitted that the suit land adjoins the property of Saroup Singh, Chhota Singh, Darshan Singh and Balwant Singh, but submitted that he would only execute the sale deed in favour of the respondent, if Harbans Kaur the owner of the adjoining land executes a sale deed in his favour. Upon a due consideration of the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit by Regular Second Appeal No. 628 of 2008 -3- holding that the agreement to sell stands proved and the respondent has proved that he was ready and willing to perform his part of the contract. As regard the argument that the agreement is vague as it does not clearly identify the property, it was held that the boundaries of the disputed property are mentioned in the agreement to sell and in the plaint and the appellant's admission that the property is situated in a separate tuck adjoining the land of Saroup Singh, Chhota Singh, Darshan Singh and Balwant Singh leaves no ambiguity as to the identity of the suit land. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 01.02.2008, the Additional District Judge, Sangrur, affirmed the findings returned by the trial court and dismissed the appeal. Counsel for the appellant submits by reference to the agreement to sell Ex.P1, that in the absence of any reference to khasra numbers or boundaries, the courts below committed an error while holding that the property stood identified. It is submitted that as the agreement, does not describe the property by reference to khasra number or boundaries it cannot be enforced. It is argued that reference by the courts below to the recitals in the agreement and the appellant's deposition that the suit property adjoins the land of other land owners, is insufficient to identify the land. It is prayed that in view of this fundamental infirmity in the impugned judgments, the following substantial questions of law arise for adjudication:- “ i) Whether the suit land having not been connected with the property of agreement by describing the same with the help of boundaries or khasra numbers, the impugned decree is executable? ii) Whether the Ld. Trial and Appellate Courts have not exercised the discretion in granting the decree for specific performance of the agreement based on the Regular Second Appeal No. 628 of 2008 -4- practicality? iii) Whether the appellant could be obliged to the specific performance of agreement out of the land held by him jointly with other co-sharers in respect of specific part of joint land? iv) Whether the alleged agreement to sell is vague, uncertain, indefinite and unenforceable?” Counsel for the respondent, however submits that the courts below have returned concurrent findings of fact that the property stands identified from the recitals in the agreement, the deposition of the appellant, and the fact that the appellant does not own any other land apart from these 3 killas in the tuck known as Ghuman Wala does not suffer from any error of law as would require interference. It is prayed that the findings of fact recorded by the courts below be affirmed. I have heard counsel for the parties, perused the impugned judgments, considered the argument that as the agreement to sell does not refer to khasra number or boundaries, the agreement cannot be specially performed, but express my inability to accede to the argument raised by counsel for the appellant. It would be appropriate to mention here that the agreement to sell Ex.P1 refers to land measuring 3 killas situated in Ghuman Wala tuck adjoining the land of Kirpal Singh son of Amar Singh, Saroup Singh son of Sardara Singh, Chhota Singh son of Lal Singh, Darshan Singh son of Jit Singh and Balwant Singh Lambardar, situated on the pahi (path). While deposing as DW1, the appellant admitted the correctness of the aforementioned recitals. It was also admitted that apart from these three killas in tuck Ghuman Wala, he has no other land in this tuck, as his other land is situated on the other side of the village, at a distance of about ½ kilometer. In order to place the aforementioned conclusions, in their correct perspective, it would be appropriate to Regular Second Appeal No. 628 of 2008 -5- reproduce a relevant extract from the trial court's judgment:- “15. So far as the contention of the ld. Counsel for the defendant that the disputed property mentioned in the agreement is vague and uncertain, is concerned, it is observed that the said contention is devoid of any merit. Not only in the agreement to sell, dimensions of the disputed property were mentioned, but in the plaint as well as in the testimony of the plaintiff, dimensions of the disputed property were also averred and proved. Moreover, admission made by DW-1 Major Singh goes to clinch the matter in favour of the plaintiff that the disputed property is comprised in separate chunk and is adjoining to the land of Saroup Singh, Chhota Singh, Darshan Singh and Balwant Singh. He further clarified that his remaining land is situated on the other side of the village, which is at the distance of ½ K.M. from the suit land. Thus, the contention of the ld. Counsel that the disputed property is not mentioned definitely and specifically in the agreement to sell, is not accepted. It stands proved from the evidence of the parties that the disputed property is the only property owned by the defendant in the Ghuman Wala Tuck, whereas the remaining property is owned by him on the other side of the village at a distance of about ½ K.M. Moreover, DW-1 Major Singh admitted that the disputed property was adjoining to the disputed property owned by Saroup Singh and others.” The above extract, leaves no manner of doubt as to the identity of the property and consequently the correctness of the findings recorded Regular Second Appeal No. 628 of 2008 -6- by the courts below. The questions of law framed by counsel for the appellant that an agreement cannot be enforced in the absence of a firm identification of the property, though correct, does not apply to the present case as the property has been duly identified. The law does not prescribe a particular method for description of property as it may be described by khasra numbers, boundaries, exact location or any other fact that may help to identify the property. As regards the other questions of law, suffice is to say that it has not been argued or established as to in what manner the discretion exercised by the courts below, is perverse or illegal. The last question of law, that specific performance cannot be granted, where the land is held jointly disregards the findings recorded by the courts below that the appellant has failed to establish this plea. Even otherwise, a co- sharer has every right to alienate his share within the bounds of his share holding. In view of what has been stated hereinabove, as the findings of fact recorded by the courts below do not suffer from any error of law, and as no question of law much less a substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. August 05, 2009 (RAJIVE BHALLA) nt JUDGE