R. S. A. No. 781 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 781 of 2006 Date of Decision : May 13, 2010 Krishna Kumari .... Appellant Vs. Krishan Kumar .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sudhanshu Makkar, Advocate for the appellant. Mr. Surender Dhull, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : This is second appeal by Krishna Kumari plaintiff having remained unsuccessful in both the courts below. Appellant filed suit against respondent Krishan Kumar for specific performance of the agreement to sell dated 07.08.1996 relating to 1/4th share in disputed shop alleging that the defendant-respondent agreed to sell his 1/4th share in the disputed shop to the plaintiff for Rs.45,000/- vide agreement dated 07.08.1996 and received the entire sale consideration. However, the defendant committed breach of the agreement and did not R. S. A. No. 781 of 2006 2 execute the sale deed in spite of notice. The plaintiff, besides relief of specific performance of the agreement to sell, also claimed permanent injunction restraining the defendant from alienating the 1/4th share in the disputed shop to anybody except the plaintiff. The defendant inter alia pleaded that Ram Chander, M/s Dharam Pal Harish Kumar and Co., defendant Krishan Kumar and plaintiff's husband Jagir Chand had purchased 1/4th share each in the disputed shop from Bhiwani Improvement Trust in the year 1976 in open auction. Ram Chander and M/s Dharam Pal Harish Kumar and Co. sold their 1/4th share each to Dayavanti, who became owner of half share, whereas plaintiff's husband Jagir Chand continued to be owner of 1/4th share. The present defendant, who was owner of remaining 1/4th share, filed suit for partition of the disputed shop against Dayavanti and Jagir Chand, who in their written statement, alleged that Mul Chand and Shyam Lal had 1/12th share each in the disputed shop and defendant herein had only 1/12th share in the shop. Dayavanti is sister of defendant Krishan Kumar, whereas Jagir Chand aforesaid is husband of plaintiff Krishna Kumari. During pendency of the said aforesaid suit instituted by Krishan Kumar defendant herein, the impugned agreement dated 07.08.1996 was entered into. The said agreement was obtained by misrepresentation while the defendant had to undergo operation of both his eyes. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Bhiwani, R. S. A. No. 781 of 2006 3 vide judgment and decree dated 30.10.2002, while denying the relief of specific performance of the agreement, decreed the plaintiff's suit for recovery of Rs.45,000/- (being the amount paid by plaintiff to the defendant), along with interest thereon @ 12% per annum from the date of said payment till recovery. First appeal preferred by plaintiff stands dismissed by learned Additional District Judge, Bhiwani, vide judgment and decree dated 10.09.2005. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that the defendant-respondent, representing himself to be owner of 1/4th share in the disputed shop, entered into the impugned agreement to sell with the plaintiff and therefore, the plaintiff is entitled to relief of specific performance of the said agreement. The contention, on first impression, appears to be very attractive, but in the facts and circumstances of the instant case, the contention cannot be accepted. Present defendant had filed suit in the year 1992 against plaintiff's husband and others relating to partition of the disputed shop. In that suit, plaintiff's husband, in his written statement, alleged that present defendant Krishan Kumar had only 1/12th share in the disputed shop. In spite thereof, during pendency of the said R. S. A. No. 781 of 2006 4 suit, and more than four years after the institution of the said suit, the plaintiff entered into the impugned agreement to sell with the defendant regarding 1/4th share in the disputed shop. Consequently, the agreement to sell cannot be said to be bona fide one when the plaintiff very well knew that defendant had only 1/12th share in the shop, and not 1/4th share therein. It was the stand of plaintiff's own husband in the said other suit that present defendant Krishan Kumar has only 1/12th share and not 1/4th share in the disputed shop. In this view of the matter, both the courts below have rightly held that plaintiff is entitled to recovery of money and not to relief of specific performance of the agreement to sell. It may be added that vide judgment of even date passed by this Court in R. S. A. No. 3188 of 2006 titled Krishan Kumar vs. Dayawanti and others, arising out of the aforesaid other suit filed by Krishan Kumar defendant herein, it has been held that Krishan Kumar defendant herein had only 1/12th share in the disputed shop. For this reason, the plaintiff cannot be granted relief of specific performance of agreement to sell. On the other hand, the impugned agreement is patently dishonest, as the plaintiff entered into the said agreement for purchase of 1/4th share of defendant in the disputed shop, although the plaintiff very well knew that the defendant herein had only 1/12th share in the disputed shop, as pleaded by plaintiff's own husband in the other suit. For the reasons recorded herein above, I find no merit in the R. S. A. No. 781 of 2006 5 instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed. May 13, 2010 ( L. N. MITTAL ) monika JUDGE