R.S.A. No. 2967 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2967 of 2008 Date of decision: 06.1.2009 Ramesh Kumar and others ....Appellants Versus Shree Gaushala Trust and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. L.N. Verma, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decrees dated 2.2.2002 and 18.2.2008 passed by the learned Courts below vide which the suit filed by the plaintiffs/appellants seeking decree of mandatory injunction has been ordered to be dismissed. The plaintiffs/appellants brought a suit against the defendants/respondents directing them to get the sale deed executed in respect of agricultural land measuring 52 kanals 11 ½ marlas situated within revenue estate of Bhiwani, Johanpal-I, Tehsil and District Bhiwani. The plaintiff/appellants claimed that after passing a resolution seeking permission to alienate the land of respondent-trust, it agreed to sell land measuring 90 kanals 5 marlas in favour of plaintiff No. 1 on 27.5.1990 @ Rs.90,000/- per acre and received an amount of Rs.3,00,000/- in two instalments as earnest money. The date of sale was fixed as 30.9.1991, which was agreed to be executed in parts in favour of any person to whom plaintiff No. 1 desired. It is further the case set up that in pursuance of the above- mentioned agreement to sell, defendant executed two sale deeds in R.S.A. No. 2967 of 2008 -2- respect of land measuring 24 kanals 11 marlas in favour of one Mohan Lal on 30.8.1990 on receiving sale consideration and another sale deed for 37 kanals 13 ½ marlas in favour of Baldev Laxman, Baljit and Har Karan on 20.12.1990. The case set up was that in order to malafidely forfeit an amount of Rs.3,00,000/- paid as earnest money, the defendant resiled from the agreement to sell though the plaintiffs were ready and willing to perform their part of contract. The suit was contested. The defendant/respondents denied execution of any sale agreement with the plaintiff/appellants. The learned trial Court on the pleadings of the parties was pleased to frame the following issues: - “(1) Whether the defendant has agreed to sell the suit land to plaintiff No. 1 at the rate of Rs.90,000/- per acre? OPP (2) Whether the defendant has received a sum of Rs.3,00,000/- (Rs. Three lacs) in advance in two instalments as earnest money and that the amount was to be adjusted at the time of the execution of the last sale deed? OPP (3) Whether the defendant agreed to execute the sale-deed in parts to any person at the instance of plaintiff No. 1 as alleged in para No. 4 of the plaint? OPP (4) Whether the defendant has executed two sale deeds dated 30.3.1980 and 20.12.1990 at the instance of plaintiff No. 1 and in pursuance of the agreement to sell as alleged under issue R.S.A. No. 2967 of 2008 -3- No. 1? OPP (5) Whether the remaining land measuring 52 kanals 11 ½ marlas could not be transferred in favour of the plaintiffs on account of non-delivery of vacant possession of the land as alleged in para No. 7 of the plaint? OPP (6) Whether the defendant has given assurance to get the land transferred after deducting the encroached area of 8 kanals from the suit land? OPP (7) Whether the plaintiffs have no cause of action to file the present suit? OPD (8) Whether the plaintiffs have no locus standi to file the present suit? OPD (9) Whether the civil court has no jurisdiction to entertain, try and decide the suit? OPD (10) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD (11) Relief.” Issue Nos. 1, 2, 3, 5 and 6, on appreciation of evidence, have been decided against the plaintiff/appellants and it has been held that the plaintiffs failed to prove that there was any oral agreement to sell between the parties. The learned Court also observed that the suit as framed was not competent as the plaintiffs should have brought suit for specific performance of agreement to sell and not a suit for mandatory injunction. The learned counsel appearing on behalf of the appellants challenges the concurrent findings of the learned Courts below on the plea that by way of Ex. P-9 and P-10, the plaintiffs have proved that there was R.S.A. No. 2967 of 2008 -4- an agreement to sell. It is further the contention of the learned counsel for the appellants that they have proved their willingness to perform their part of the contract, therecore, the Courts below were not justified in non-suiting the plaintiff/appellants merely by observing that the suit for mandatory injuction was not competent. It is also the contention of the learned counsel for the appellants that it is the substance and not the form which was material for adjudication and once all ingredients of specifc performance were pleaded and Court fee paid in pursuance to order of the Court when application for amendment of the suit was declined. The learned Courts below, therefore, were not justified in non- suiting the appellants on ground of form of the suit. The learned counsel for the appellants also contends that the learned Courts below were not right in dismissing the application under Order 6 Rule 17 CPC as having become time barred. Be that as it may, there is no force in the contentions raised by the learned counsel for the appellants. Even if for the sake of arguments, it is taken that the suit was to be treated as one for specific performace, still the plaintiff/appellants cannot succeed in view of the concurrent finding of fact recorded by learned Courts below holding therein that the plaintiffs/appellants have failed to prove that there was any oral agreement. The concurrent finding of fact cannot be challenged in regular second appeal unless it is shown that the findings so recorded are outcome of mis- reading of evidence or are perverse. No such case is made out in present case. The order passed on application under Order 6 Rule 17 CPC declining amendment by trial Court was not challenged before learned lower appellate Court thus it is not open to plaintiff/appellants to raise this R.S.A. No. 2967 of 2008 -5- plea in regular second appeal. The application under Order 6 Rule 17 CPC moved before the learned lower appellate Court was rightly dismissed being not competent as the order passed by trial Court on application for amendment was not challenged. No question of law muchless substantial question of law arises for consideration by this court. Dismissed. (Vinod K. Sharma) Judge January 6, 2009 R.S.