IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 288 of 2009. Reserved on: 18.12.2010. Decided on 31.12.2010. Sabir Dass. …Appellant. -Versus- Bagat Chand and Others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. Pritam Singh Chandel, Advocate. For respondents No. 1, 2 and 4. : Ms. Sheetal Khimta, Advocate. None for respondent No. 3. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 20.03.2010, passed by the learned Additional District Judge, Shimla, Camp at Rohru in Civil Appeal No. 51-R/13 of 2005. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) had filed a suit for recovery of `1,17,500/-. According to the plaintiff, the respondent-defendant (hereinafter referred to as “the defendant” for convenience sake) entered into an agreement to sell the land bearing Khasra Nos. 1227, 1228 and 1229, situated in Mouja Kalgaon, Tehsil Chirgaon for a consideration of `1,40,000/-. Plaintiff paid a sum of `50,000/- as earnest 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - money to the defendant on the day of execution of agreement in question. The sale deed qua Khasra No. 1227 was executed by the defendant in favour of the plaintiff on the day of execution of the agreement, i.e., 22.04.2003 and the sale deed qua remaining land was to be executed lateron, on payment of remaining sale consideration. The concise case of the plaintiff is that the sale deed qua remaining two Khasra Nos. could not be executed as the defendant was not ready and willing to perform her part of the agreement to execute the sale deed in favour of the plaintiff. 3. The suit was contested by the defendant. The stand taken by the defendant is that as a matter of fact vide agreement in question, the defendant has agreed to sell all the aforesaid three Khasra Nos. to the plaintiff for a consideration of `1,40,000/-. Khasra No. 1227 was sold for a consideration of `50,000/- and the other remaining Khasra Nos. were to be sold for remaining sale price of `90,000/- and in fact, the amount of `50,000/- as shown in the agreement was the sale consideration of Khasra No. 1227 and not as earnest money, as claimed by the plaintiff. 4. The replication was filed by the plaintiff, wherein the averments made in the plaint have been reiterated. The learned trial Court framed the issues on 26.07.2004. The learned trial Court dismissed the suit on 30.12.2004. Plaintiff preferred an appeal before the learned District Judge, Shimla. The learned District Judge, Shimla dismissed the same on 20.03.2010. 5. Mr. Pritam Singh Chandel, learned counsel for the appellant has strenuously argued that both the Courts below have not taken into consideration the settled principles of law. - 3 - According to him, both the Courts below have mis-read the oral as well as documentary evidence. 6. Ms. Sheetal Khimta, learned counsel for respondents No. 1, 2 and 4 has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. A bare perusal Ex. PW-2/A makes it abundantly clear that the defendant had agreed to sell Khasra Nos. 1227, 1228 and 1229 for a total consideration of `1,40,000/-. The defendant had already received a sum of `50,000/- pertaining to Khasra No. 1227. The remaining Khasra Nos. 1228 and 1229 were to be sold for remaining sale price of `90,000/-. However, the plaintiff has not filed the original agreement dated 22.04.2003. He has only placed on record the photo copy of agreement dated 22.04.2003, which is marked as ‘X’ or Ex.PW- 2/A. Plaintiff has appeared as PW-1. In his cross-examination, he has categorically admitted that he is not ready to get the sale deed executed in his favour since the very beginning, as the land in question is in the shape of ‘Dhank’ and bushes etc.. In these circumstances, the only conclusion which could be drawn, is that he wanted to avoid the execution of the sale in his favour as per agreement dated 22.04.2003. He has not filed the suit for specific performance of contract. He has filed the suit for simple recovery. Plaintiff has also admitted in his cross-examination that the sale deed of Khasra No. 1227 has also been executed on 22.04.2003 and he has paid a sum of `50,000/-to the - 4 - defendant. Plaintiff has also examined PW-2, Bihari, Document Writer. He has scribed the agreement dated 22.04.2003. 9. Defendant has appeared as DW-1. She has deposed that she was ready and willing to perform her part of the contract and had also issued notice to the plaintiff vide Ex. DW- 1/A and Ex. DW-1/B. It is proved from the evidence placed on record that a sum of `50,000/- paid by the plaintiff to the defendant was the payment of sale consideration of Khasra No. 1227. It was not the earnest money, as claimed by the plaintiff. The other Khasra Nos. 1228 and 1229 were to be sold for a sum of `90,000/- as per agreement dated 22.04.2003. The plaintiff has failed to prove that there was any default on the part of the defendant. The defendant as per her own statement was ready and willing to perform her part of the contract and to execute the sale deed in favour of the plaintiff. The findings recorded by both the Courts below are based on correct appreciation of evidence led by the parties. Consequently, there is no substantial question law involved in this Regular Second. 10. Accordingly, there is no merit in this petition and the same is dismissed. (Rajiv Sharma) Judge December 31, 2010. (bhupender) - 5 - - 6 -