RSA No.1803 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1803 of 2010(O & M) Date of Decision:13.09.2010 Sukhwinder Kaur & Ors. .... appellants Versus Kushal Kumar & Ors. .....respondents RSA No.2131 of 2010(O & M) Date of Decision:13.09.2010 Sukhwinder Kaur & Ors. .... appellants Versus Kushal Kumar . .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Gurcharan Singh,Advocate for the appellants **** RAKESH KUMAR GARG J. By this common judgement RSA No.1803 of 2010 and RSA No.2131 of 2010 are being disposed of as both the appeals have arisen out of the same suit. Kushal Kumar-respondent No.1 filed a suit for possession by way of specific performance of agreement to sell dated 01.06.1998 RSA No.1803 of 2010(O & M) 2 executed by Randhir Singh s/o Puran Singh, predecessor-in-interest of the appellants in respect of the suit land with further prayer to restrain the appellants/defendants from alienating the suit land on the averments that Randhir Singh(since deceased) during his lifetime executed the alleged agreement to sell dated 01.06.1998 in favour of the plaintiff-respondent and received a sum of Rs.2,25,000/- as earnest money. The sale deed was to be executed on or before 15.06.1999 on receipt of balance sale consideration. The total sale consideration was Rs.2,69,375/-. Randhir Singh died on 25.06.1998, leaving behind the appellants as his legal heirs. After his death, plaintiff also served a legal notice upon them to execute the sale deed in his favour in terms of the agreement to sell in question. He also approached them and requested them to execute the sale deed. They assured the plaintiff to execute the sale deed on the stipulated date. Plaintiff remained present in the Office of Sub-Registrar on the stipulated date with the balance amount. However, defendants-appellants did not turn up. Plaintiff was always ready and willing to perform his part of the agreement and was still ready and willing to get the sale deed executed. However, the defendants-appellants had defaulted. Hence the suit. Defendants No.1 to 3 appeared in the suit and filed joint written statement raising various preliminary objections, inter alia, alleging that the suit property was joint Hindu family coparcenary property at the hands of Randhir Singh and he was not competent to enter any such agreement and the aforesaid agreement was without any legal necessity and no consideration had passed under the same. It was further submitted that Randhir Singh always remained under the influence of liquor and he was not in his mental faculties at the time of execution of the alleged agreement. He used to sell his crop through firm Ram Nath Kaushal Kumar, Commission Agents, Dhablan,who is a money lender, and the RSA No.1803 of 2010(O & M) 3 alleged agreement dated 01.06.1998 is the result of fraud and misrepresentation. Execution of the agreement to sell in favour of plaintiff was specifically denied. It was further stated that no consideration was received by Randhir Singh. It was further alleged that the agreement in question was result of fraud, misrepresentation and thumb impression of Randhir Singh might have been obtained on the pretext of receipt of money against crops sold by him. The plaintiffs were not entitled to the decree as prayed. Dismissal of the suit was prayed for. The plaintiff filed replication controverting the allegations made in the written statement and reiterated the averments made in the plaint. From the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether Randhir Singh son of Puran Singh had executed an agreement to sell dated 01.06.1998?OPP 2. Whether the plaintiff is entitled to the relief of specific performance of agreement to sell dated 01.06.1998?OPP 3. Whether the plaintiff is entitled to possession of the property in dispute?OPP 4. Whether the plaintiff is entitled to the injunction prayed for?OPP 5. Whether the property in dispute is joint Hindu family coparcenary property and Randhir Singh was not competent to execute agreement to sell?OPD 6. Relief. Both the parties led oral and documentary evidence to prove their respective case. The trial Court vide judgement and decree dated 21.03.2006 decreed the suit of the plaintiff-respondent for recovery of Rs,2,25,000/-i.e.refund of earnest money with proportionate costs. RSA No.1803 of 2010(O & M) 4 However, the relief of specific performance prayed for the plaintiff- respondent was rejected. Aggrieved from the aforesaid judgement and decree of the trial court, both the parties filed two separate appeals before the Lower Appellate Court. While challenging the judgement and decree of the trial Court in Civil Appeal No.165-T of 25.04.2006/2007 plaintiff-respondent sought relief of specific performance of the agreement to sell in question, whereas in CA No.44-T of 16.05.2006/2007, defendants-appellants sought the acceptance of the appeal and setting aside of the judgement and decree of the trial Court, whereby refund of earnest money was ordered. Both these appeals were disposed of by one common judgement dated 12.11.2009, whereby appeal filed by the defendants- appellants against the judgement and decree of the trial Court was dismissed and appeal filed by the plaintiff-respondent claiming specific performance of the agreement in question was allowed. By way of present appeals, the appellants-defendants have challenged both the aforesaid decrees passed on the basis of the judgement dated 12.11.2009. It is also relevant to mention that while passing the impugned judgement and decrees, the Lower Appellate Court recorded a finding of fact that due execution of the agreement to sell dated 01.06.1998 in favour of the plaintiff-respondent was proved. Heard learned counsel for the appellants and perused the record. The appellants took the plea of fraud and misrepresentation in their written statement. However, no details of the same were given by them for the reasons best known to them. Moreover, in the present case, existence of thumb impression of Randhir Singh, on the agreement to sell as well as on the endorsement regarding the purchase of stamp paper is RSA No.1803 of 2010(O & M) 5 not disputed. Thus, no fault can be found in the findings of the courts below that execution of document Ex.P-1 has been duly proved by the plaintiff-respondent and the defendants-appellants have failed to support the plea of fraud and misrepresentation. The plea of appellants that plaintiff-respondent had obtained thumb impression on some plain paper was rightly rejected by the courts below as there is no evidence in this regard. Though the appellants have also taken the plea that the property in dispute was ancestral and Randhir Singh was a man of vices and there was no legal necessity to sell the land in question. However, neither any issue was claimed, in this regard, nor appellants placed on record any evidence to prove the aforesaid plea and in fact no argument was raised by the appellants on the basis of the aforesaid ground. Learned counsel for the appellant also argued that keeping in view the facts and circumstances of the case, the trial Court rightly declined the relief of specific performance to the respondent. However, the Lower Appellate Court wrongly reversed the well reasoned judgement of the trial Court and erred at law while granting the relief of specific performance of the agreement in question. In 2008(3) Civil Court Cases 582(P & H) Abdul Sattar & Ors.vs.Pitamber Singh, it was held that if execution of agreement to sell is duly proved and plaintiff is ready and willing to perform his part of contract, then decree of specific performance should be granted. It is well settled that the jurisdiction of the Court to decree specific relief cannot be curtailed or taken away by merely fixing a sum even as liquidated damages. Reliance can be placed in this regard on a judgment of the Hon'ble Supreme Court in the case of M.L.Devender Singh vs.Syed Khaja AIR 1973 SC 2457. It is also well settled that if there is no infirmity in the findings RSA No.1803 of 2010(O & M) 6 of fact arrived at by the First Appellate Court, the same cannot be interfered by the High Court under Section 100 CPC. Moreover, it is well settled that the relief of grant of specific performance is discretionary. There is not an iota of evidence to establish that the aforesaid discretion has been exercised by the Lower Appellate Court in favour of the plaintiff- respondent, arbitrarily and thus, it cannot be said that any substantial question of law arises in the grant of discretionary relief by the courts below. No substantial question of law arises. Thus, both the appeals are dismissed, in limine. (RAKESH KUMAR GARG) JUDGE 13.09.2010 neenu