R.S.A.No. 549 of 1998 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 549 of 1998 (O&M) Date of decision: 19.11.2009 Tara Singh ......Appellant Versus Ramji Lal and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.P.S.Bhangu, Advocate, for the appellant. Mr.Ashok Sharma Nabhewala, Advocate and Mr.Rajinder Chhokar, Advocate, for the respondents. **** SABINA, J. Plaintiff Ramji Lal filed a suit for specific performance, which was partly decreed by the Sub Judge, Ist Class, Narnaul vide judgment and decree dated 15.5.1993. Aggrieved by the same plaintiff Ramji Lal filed an appeal bearing No.117 of 1993, whereas, defendant No.1 Tara Singh filed an appeal bearing No.116 of 1993 . Vide judgment and decree dated 28.11.1997, the appeal filed by the R.S.A.No. 549 of 1998 (O&M) 2 plaintiff was allowed, whereas, appeal filed by defendant No.1 was dismissed by the Additional District Judge, Narnaul. The suit of the plaintiff was decreed in toto. Hence, the present appeal by defendant No.1. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 7 of its judgment, are as under:- “2. Plaintiff-appellant Ramji Lal, Advocate, who is appellant in one appeal and respondent in other appear (hereinafter referred to as the plaintiff) had filed a suit for specific performance of the agreement to sell on the ground that the defendants-respondents Tara Singh, who was defendant in the suit but appellant in one appeal and respondent in the other appeal (hereinafter referred to as the defendant) had agreed to sell a piece of land measuring 1800 square yards as shown by letters ABCDEF in the site plan attached with the plaint for a consideration of Rs.30,000/-. The agreement of sale was entered into in June, 1986, orally and defendant Tara Singh had obtained a sum of Rs.10,000/- as earnest money but later the agreement to sell was reduced into writing on 20.4.1989 when the plaintiff had further paid a sum of Rs.19,000/- by way of earnest money. The sale deed was agreed to be executed in favour of the plaintiff upto 31.3.1990 by obtaining balance consideration of R.S.A.No. 549 of 1998 (O&M) 3 Rs.1,000/- and the defendant had delivered possession of the disputed plot to the plaintiff at the time of agreement of sale. The plaintiff had further claimed that there was some litigation regarding the suit land and that was why a compromise had been reached in that suit and the plaintiff had advanced a further sum of Rs.10,000/- on that date to defendant on 20.4.1989 and written agreement of sale was executed. 3. The plaintiff had further claimed that the plaintiff had always been ready and willing to perform his part of contract and had appeared before the Sub Registrar along with balance sale consideration of Rs.1,000/- on 31.3.1990 but the defendant had not turned up and so the plaintiff was entitled to a decree of specific performance. 4. The plaintiff had further claimed that instead of executing the sale deed in favour of the plaintiff, defendant No.1 in collusion with defendant No.2 had executed a bogus sale deed dated 7.10.1989 in his favour regarding the land measuring 448 square yards shown by letters ABCD and defendant No.2 had already known that defendant No.1 had agreed to sell this land to the plaintiff. The plaintiff, therefore, claimed that the said sale deed regarding 448 square yards R.S.A.No. 549 of 1998 (O&M) 4 executed by defendant No.1 in favour of defendant No.2 was not binding on the rights of the plaintiff who was entitled to specific performance for sale of the entire land measuring 1800 square yards as per written agreement dated 20.4.1989. 5. The plaintiff had further claimed that when he had come to know regarding the execution of the sale deed dated 7.10.1989 had had filed a suit against the defendants challenging the validity of the sale deed and for permanent injunction restraining the defendants from interfering in his possession. 6. Both the defendants had contested the suit. Defendant No.1 had denied having ever agreed to sell the suit land to the plaintiff or having executed any agreement of sale and regarding receipt of any earnest amount. Defendant No.1 had, therefore, claimed that since he had never agreed to sell the suit land to the plaintiff there was no question of his appearing before the Sub Registrar. Defendant No.1 had further claimed that since he had already executed sale deed in respect of 448 square yards in favour of defendant No.2 for a consideration of Rs.30,000/- the plaintiff was not entitled to get a decree of specific performance. The defendant had also claimed that the suit of the R.S.A.No. 549 of 1998 (O&M) 5 plaintiff was not maintainable because it was barred under Order 2 Rule 2. The defendant had however, admitted that in a suit of Arjun Singh he had paid Rs.42,000/- and got his right abandoned. The defendant had further claimed that he was a driver while the plaintiff was an advocate and if the plaintiff had obtained his signatures on some papers by mis- representation he was not bound by the same. The defendant had further claimed that after purchasing 448 square yards from him, defendant No.2 had raised construction of the boundary wall and this indicated that he had not executed any agreement of sale in favour of the plaintiff. The defendant had also denied that the plaintiff was in possession of any part of the suit land and claimed that the defendant had engaged the plaintiff as his advocate in a number of cases and so the plaintiff might have obtained his signatures on some papers and then made them into agreement of sale. Defendant No.1 had also claimed that since the prices of land had increased many fold, suit of the plaintiff was dishonest and the plaintiff was not entitled to specific performance of the agreement of sale. 7. Defendant No.2 had also contested the suit on the grounds that defendant No.1 had not agreed to sell R.S.A.No. 549 of 1998 (O&M) 6 the suit land to the plaintiff and that he was a bona fide purchaser for consideration without notice and so his rights in the land purchased by sale deed 860 dated 10.7.1989 could not be interfered with. He had also claimed that he was in possession of the land purchased by him and had raised boundary wall and he was never aware of the agreement of sale regarding the suit land entered into by defendant No.1 in favour of the plaintiff.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the agreement dated 20.4.1989 was executed by the defendant No.1 in favour of the plaintiff as alleged? OPP 2. Whether the plaintiff has always been ready and willing to perform his part of contract as alleged? OPP 3. Whether the defendant No.2 is bona fide purchaser for consideration without notice as alleged, if so to what effect? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the suit is not maintainable in the present form? OPD R.S.A.No. 549 of 1998 (O&M) 7 6. Whether the agreement in question is in definite and vague and based on fraud and mis- representation? OPD 7. Relief. Learned counsel for the appellant has submitted that the plaintiff was counsel of defendant No.1 in many cases. In a suit filed by defendant No.1 against Ramji Lal son of Dhani Ram, one of the attesting witnesses of the agreement to sell, the plaintiff had represented defendant Tara Singh as his counsel and Anup Singh, Advocate, the other attesting witness of the agreement to sell, had represented Ramji Lal son of Dhani Ram. The said civil suit bearing No.150 of 3.3.1986 was decided on 3.3.1986 in view of the admission made by the defendant in the said suit. Thus, the attesting witnesses to the agreement to sell were known to the plaintiff. The agreement to sell had been got executed from the plaintiff by inducing undue influence on the appellant being his counsel. The terms of the agreement to sell were vague and the same could not be specifically enforced. Learned counsel for the respondents, on the other hand, has submitted that the agreement to sell in question had been duly proved. Hence, the Courts below had rightly decreed the suit of the plaintiff for specific performance. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be partly allowed. R.S.A.No. 549 of 1998 (O&M) 8 The substantial question of law that arises in this case is "Whether the Courts below have erred in passing a decree granting discretionary relief of specific performance in favour of the plaintiff and whether the agreement to sell being vague was unenforceable?" The plaintiff had filed a suit for specific performance of agreement to sell dated 27.4.1989. The plaintiff had been successful in proving the due execution of the agreement to sell by examining the deed writer PW-1 Roshan Lal and PW-8 Ramji Lal, one of the attesting witnesses of the agreement to sell. The agreement to sell in question is duly signed by the appellant- defendant No.1 Tara Singh. Moreover, a perusal of the agreement to sell Ex.P-1 reveals that the appellant has written in his own hand that he has received Rs.19,000/-. Thus, the Courts below rightly held that the plaintiff had been successful in proving the due execution of the agreement to sell in question. The next question that requires consideration is as to whether the Courts below should have granted the relief of specific performance of the agreement to sell in the facts and circumstances of the present case. Admittedly, the plaintiff had been representing the appellant-defendant No.1 as his counsel in many cases. Ex.P-5 is the copy of the written statement in a suit filed by Ramwar, wherein the plaintiff had signed the written statement filed by appellant Tara Singh and Dev Raj as their counsel. Since the plaintiff had been R.S.A.No. 549 of 1998 (O&M) 9 representing the appellant-defendant No.1 as his counsel, it was not expected from the plaintiff to have purchased the property of his client. Although there is nothing on record to suggest that the plaintiff had induced the defendant to execute the agreement to sell in his favour yet to maintain the dignity of the fiduciary relationship between an Advocate and a client, plaintiff should not have agreed to purchase the property of his client. The translated version of the agreement to sell, as placed on record by the counsel for the appellant, reads as under:- "Whereas the first party is owner in possession of a plot bounded as under:- East: land of Kailash Chand etc. And then rasta. West: Rasta and (Not legible) North: rasta South: road going from Nijampur to Mandi and then School. Situated in Mohalla Guru Nanakpura Pir Agga. Narnaul without any encumberances and has right and authority to alienate the same in any manner. I am in need of money for expenses of court cases, domestic necessities and for construction of house. Therefore, the first party has orally agreed to sell a portion of plot measuring 1800 sq.yards on Southern East side in June 1986 with party No.2 for total consideration of Rs.30,000/- R.S.A.No. 549 of 1998 (O&M) 10 and has received Rs.10,000/- from party No.2 at that time as earnest money and agreed to receive remaining amount of sale consideration of Rs.20,000/- at the time of registeration of the sale deed. However, during this period one Arjan Singh son of Mohar Singh resident of Narnaul filed one false case against the first party and obtained interim injunction. Therefore, no writing regarding agreement to sell could be executed. Today a compromise has been effected in that case with Arjan Singh and as per compromise suit of Arjan Singh has been dismissed as compromised. Therefore, the first party in sound disposing mind and without any pressure or coercion and influence agrees in writing, as per earlier oral agreement, to execute and get registered sale deed of 1800 sq.yards of above land measuring 1800 square yards on Southern East side of consideration of Rs.30,000/- in favour of Second party or whose name he wants upto 31.3.1990. Rs.10,000/- has already been received from the Second Party in June 1986 and a sum of Rs.19,000/- has further been received today as earnest money today. As such Rs.29,000/- has been received from the total amount of sale consideration. Remaining amount of Rs.1000/- shall be received before the Sub Registrar, Narnaul at the time of registration of the sale R.S.A.No. 549 of 1998 (O&M) 11 deed. Because the suit has been decided today and it will take time for the first party to get copies and get made its entry in the official record, therefore, period for registeration has been fixed till 31.3.1990. Physical possession of the plot agreed to be sold has been given to the Second Party at the spot. Symbolic possession will be given at the time of registration of the sale deed. If the first party fails to get registeration done within time, second party shall have the right to get it registered through the cvourt and first party will be liable for costs of the suit and the sale deed. In case second party fails to get sale deed registered within time fixed, amount of Rs.8000/- out of earnest money shall stand forfeited. Second party may use plot agreed to be sold in any manner, may raise construction of any kind and the first party shall not have any objection. Area of 1800 square yards has been agreed to be sold and boundaries of area to be sold will be with consent of the parties. This agreement has been executed by the parties to keep evidence and use the same in case of need. The writing has been executed and typed and read over and explained to the parties and submitted as correct by them". A perusal of the said agreement to sell reveals that out of R.S.A.No. 549 of 1998 (O&M) 12 a bigger plot, area of 1800 square yards was agreed to be sold by the appellant to the plaintiff. The boundaries of the bigger plot are mentioned in the agreement to sell but the exact measurements of the plot agreed to be sold or its exact position have not been mentioned in the agreement to sell. In these circumstances, the alleged agreement to sell was vague and was not capable of being specifically enforced. In the facts and circumstances of the present case, the Courts below had erred in allowing the relief of specific performance of agreement to sell in question. Rather it was a fit case where the amount of earnest money received by the appellant should have been ordered to be recovered from the appellant. Hence, the substantial question of law that arises in this appeal stands answered accordingly. Consequently, this appeal is partly allowed. The impugned judgments and decrees of the Courts below are set aside and the suit of the plaintiff is decreed for recovery of Rs.29,000/-. (SABINA) JUDGE November 19, 2009 anita