RSA No. 1170 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1170 of 2010 (O&M) Date of Decision: 27.01.2011. Teja Singh .......Appellant Vs. Jinder Singh and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Kunal Dawar, Advocate for the appellant. ..... SABINA, J. The plaintiff-appellant had filed a suit for possession by way of specific performance of agreement to sell dated 10.6.1997 or in the alternative recovery of ` 2,00,000/-. The case of the plaintiff in brief was that the defendant No.1 had executed an agreement to sell dated 10.6.1997 in his favour qua the suit land. At the time of execution of agreement to sell, ` 50,000/- was paid to the defendant No.1 as earnest money. The sale deed was to be executed in favour of the plaintiff on 30.6.1998. The balance sale consideration was to be paid on the date of execution of the sale deed. However, the defendant had failed to perform his part of the contract and had rather executed sale deed dated 01.02.1999, registered on 02.02.1999, in favour of defendants No. 2 to 4. The defendant No.2 executed a sale deed RSA No. 1170 of 2010 -2- in favour of defendants No. 3 to 5 on 20.5.1999 qua his share. Hence, the suit was filed by the plaintiff. Defendant No.1, in his written statement, denied the execution of the agreement to sell in question by him in favour of the plaintiff. It was averred that the plaintiff was partner of the firm M/s Mangat and Company Chanarthal. The said firm was doing the business of Commission Agent. The plaintiff used to sell his crop through the said firm and also used to borrow money from the said firm. The plaintiff had created the agreement to sell by misusing the blank signed stamp papers, obtained from defendant No.1. The defendant No.1 had sold 51 Kanals 4 Marlas of land to the defendants No. 2 to 4 for a consideration of ` 6,50,000/- vide sale deed dated 01.02.1999. The defendants No. 2 to 5, in their written statement, denied the execution of agreement to sell by defendant No.1 in favour of the plaintiff. The other contentions raised in the plaint were also denied by the said defendants in their written statement. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the relief of specific performance of contract as prayed for? OPP 2. Whether the plaintiff is entitled to recover ` 2,00,000/- from the defendants as prayed for in the alternative plea? OPP 3. Whether the sale deed dated 1.2.1999, registered on 2.2.1999 executed by the defendant No.1 in RSA No. 1170 of 2010 -3- favour of defendants No. 2 to 4 is illegal, null and void etc. as prayed for? OPP 4. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the defendant No.1 never executed any contract of sale deed dated 10.6.1997 as prayed for? OPD-1 7. Relief.” Vide judgment and decree dated 30.7.2007, Civil Judge (Sr. Divn.), Fatehgarh Sahib partly decreed the suit of the plaintiff qua recovery of ` 50,000/- along with interest. The appeal filed by the plaintiff against the said judgment and decree was dismissed by the District Judge, Fatehgarh Sahib vide judgment and decree dated 28.7.2009. Hence, the present appeal by the plaintiff. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. The execution of agreement to sell dated 10.6.1997 in favour of plaintiff by defendant No.1 is not in dispute in this appeal. The question, that requires consideration is, as to whether the suit of the plaintiff was liable to be decreed for possession by way of specific performance of agreement to sell. Both the courts below, after appreciating the evidence led by the parties on record, have held that in fact the agreement to sell in question was merely a money transaction and hence the suit for possession filed by the plaintiff by way of specific performance of RSA No. 1170 of 2010 -4- the said agreement to sell could not be decreed. Admittedly, the plaintiff himself is a partner of M/s Mangat and Company and the said firm was dealing in the business of Commission Agent. The defendant No.1 was selling his crop through the said firm. It appears that the real intention of the parties, at the time of execution of the agreement to sell, was not to execute the sale deed but was to secure the loan taken by defendant No.1 from the plaintiff. In these circumstance, both the courts below had rightly decreed the suit of the plaintiff in the alternative qua recovery of the earnest money. No substantial question of law arises in this case. Dismissed. (SABINA) JUDGE January 27, 2011 Gurpreet