Regular Second Appeal No. 3151 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3151 of 2010 Date of decision : August 20, 2010 Mahinder Singh ....Appellant versus Buta Singh and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant Mahinder Singh having remained unsuccessful in both the courts below has filed the instant second appeal. Suit was filed by Gurbhej Singh (since deceased and represented by Buta Singh respondent no. 1 as his legal representative) and Baldev Singh plaintiff-respondent no. 2 against the appellant-defendant Mahinder Singh for symbolic possession of the suit land by way of specific performance of the agreement to sell dated 26.5.2003. The plaintiffs alleged that the defendant vide agreement dated 26.5.2003 agreed to sell suit land measuring 96 kanals 11 marlas (a little over 12 acres) to the plaintiffs at the rate of Rs 1,35,000/- per acre and executed impugned agreement dated 26.5.2003 and received Rs 6 lacs as earnest money at the time of agreement. Regular Second Appeal No. 3151 of 2010 -2- The plaintiffs claimed to be in cultivating possession of the suit land as lessees. Sale deed was to be executed on 14.8.2003. Accordingly, on 14.8.2003, plaintiffs went to the office of Sub Registrar to get the sale deed executed in terms of the agreement with requisite amount but the defendant failed to turn up. The plaintiffs have always been ready and willing to perform their part of the contract. Plaintiffs also sent notice dated 27.12.2005 by registered post to the defendant and also made oral requests but the defendant failed to execute the sale deed and thereby committed breach of the agreement. The defendant admitted the impugned agreement. However, the defendant pleaded that after the impugned agreement, there was oral agreement between the parties according to which patta of 4 acres of land was agreed to be transferred from one Baljinder Singh in favour of defendant and thereafter the defendant was to transfer the ownership of 8 acres of land in favour of plaintiffs. However, plaintiffs failed to do the needful as per said oral agreement. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Tohana vide judgment and decree dated 21.10.2009 decreed the plaintiffs' suit. First appeal preferred by the defendant stands dismissed by learned District Judge, Fatehabad vide judgment and decree dated 22.1.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Defendant in the written statement itself admitted the impugned agreement dated 26.5.2003 and all the terms thereof. In the witness box, Regular Second Appeal No. 3151 of 2010 -3- defendant also admitted that plaintiffs are in possession of the suit land. The defendant also admitted readiness and willingness of the plaintiffs to perform their part of the agreement. The plaintiffs also remained present in the office of Sub Registrar on 14.8.2003, the date stipulated in the agreement for execution of the sale deed and affirmed affidavit Ex. P2 dated 14.8.2003 to depict the same. The plaintiffs also sent notice dated 27.12.2005 by registered post to the defendant requiring to execute the sale deed in terms of the agreement. However, defendant did not do the needful. It is, thus, manifest that the plaintiffs fully proved their case and the suit has been rightly decreed. Learned counsel for the appellant vehemently contended that the courts below have completely ignored the oral agreement pleaded by the defendant. The contention cannot be accepted because the said oral agreement has not been proved by the defendant. In fact, the defendant's version regarding said oral agreement is completely untenable. Admittedly, there was written agreement dated 26.5.2003 between the parties. Consequently, if terms of the said written agreement were to be varied or added to subsequently, logically and in ordinary course, it would have been done by way of written document and not by way of oral agreement. Learned counsel for the appellant contended that in fact 12 acres of land of defendant was on lease with one Baljinder Singh and the plaintiffs had purchased the lease rights of the said land from Baljinder Singh after agreement dated 26.5.2003. The defendant had already filed suit against said Baljinder Singh which was later on withdrawn on 13.6.2003. It was contended that since the plaintiffs had purchased the lease rights from Regular Second Appeal No. 3151 of 2010 -4- Baljinder Singh it was orally agreed between the parties that four acres of land would be released to the defendant and the remaining eight acres would be transferred to the defendant. All these contentions are completely devoid of merit being even beyond pleadings. Except the alleged oral agreement regarding release of four acres of land from Baljinder Singh in favour of defendant and transfer of eight acres of land by defendant to plaintiffs, there is no other pleading by the defendant as now sought to be contended by learned counsel for the appellant. Even otherwise, the defendant has not even pleaded the date, month or year of the alleged oral agreement. The defendant has also not given description of the four acres of land of which lease was to be got released by the plaintiffs in favour of defendant. The defendant has also not pleaded as to who is Baljinder Singh i.e. name of his father and address etc. was also not pleaded. It was also not pleaded that plaintiffs had purchased lease rights from Baljinder Singh. If the land was on lease with Baljinder Singh, the plaintiffs would have no means to get the land released from Baljinder Singh in favour of defendant. Moreover, it is not the case of the defendant that Baljinder Singh was also party to the said alleged oral agreement between the parties. That apart, if defendant had already instituted suit against Baljinder Singh, it was more essential and logical to have reduced the terms of the alleged oral agreement into writing. In addition to it, if the plaintiffs had purchased lease rights from Baljinder Singh before the alleged oral agreement and therefore, they were in position to give four acres of land to the defendant, there is no reason why plaintiffs would agree to do so and why the plaintiffs would agree to get only eight acres land instead of 12 acres suit land agreed to be Regular Second Appeal No. 3151 of 2010 -5- purchased. On the contrary, if the plaintiffs had not purchased the lease rights from Baljinder Singh prior to the alleged oral agreement between the parties, the plaintiffs had no means to get four acres land released from Baljinder Singh in favour of defendant. Thus, examined from any angle alleged oral agreement pleaded by the defendant cannot be accepted. Learned counsel for the appellant contended that the suit was filed by the plaintiffs on 22.5.2006 although date for execution of sale deed as stipulated in the agreement was 14.8.2003 and therefore, the plaintiffs are not entitled to relief of specific performance. Reliance in support of this contention has been placed on judgment of Supreme Court in K.S.Vidyanadam versus Vairavan, 1997(2) RCR (Civil) 312. I have carefully considered the aforesaid contention but find no merit therein. No such plea was even raised by defendant in the written statement. The whole claim of the defendant was based on his version of alleged oral agreement and non performance of the same by the plaintiff but the defendant has utterly and miserably failed to substantiate the said version. Secondly, the defendant himself admitted in the witness box that the plaintiffs have been ready and willing to perform their part of the contract. Consequently, there is no ground for declining relief of specific performance. Both the courts below have arrived at concurrent finding against the defendant after proper appreciation of evidence. The said finding, therefore, does not warrant interference in second appeal. In fact the said finding is fully justified and supported by cogent reasons. No other view of the material on record could possibly be taken. No question of law much less substantial question of law arises for determination in the Regular Second Appeal No. 3151 of 2010 -6- instant second appeal. The appeal is completely frivolous, vexatious and meritless and is accordingly dismissed in limine. ( L.N. Mittal ) August 20, 2010 Judge 'dalbir'