RSA No.2278 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2278 of 2010 Date of Decision: 25.11.2010. Kulwinder Singh .....Appellant Versus Sandeep Gupta ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. C. L. Sharma, Advocate for the appellant. L. N. MITTAL, J (ORAL) Plaintiff having failed in both the courts below in second appeal. Plaintiff-appellant filed suit for specific performance of agreement to sale dated 27.10.93 alleging that the defendant- respondent agreed to sale the suit land measuring 2 marlas to the plaintiff for Rs.7,000/- and received the entire sale consideration and executed aforesaid agreement. Sale deed was to be executed by the defendant on demand of plaintiff. However, the defendant failed to execute the sale deed in terms of the agreement. The defendant resisted the suit and inter alia pleaded that as per compromise in some other litigation, mutual exchange of 6 marlas of land of defendant (out of 1 kanal 16 marlas purchased by him from Usha Rani Kohli vide sale deed dated 10.03.93) was to be effected with plaintiff's land. Plaintiff got mutation of exchange sanctioned regarding 7 marlas land. But it turned out that land allegedly given in exchange to the defendant is not in existence at all. The defendant filed counter-claim for possession of his 7 marlas land RSA No.2278 of 2010 -2- given to plaintiff in alleged exchange. It was also pleaded that the plaintiff had filed a complaint against the defendant under the Pollution Act and as consideration for withdrawal of the said complaint, the plaintiff got the impugned agreement without any monetary consideration. The alleged agreement is result of undue influence and coercion. Various other pleas were also raised. Learned Civil Judge (Jr. Division) Hoshiarpur, vide judgment and decree dated 18.04.2006 dismissed the plaintiff's suit. First appeal preferred by the the plaintiff stands dismissed by learned Additional District Judge, Hoshiarpur vide judgment and decree dated 14.10.2009. Feeling aggrieved, the plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that the defendant has admitted the execution of the impugned agreement and the defendant has failed to prove that the agreement was result of unde influence and coercion and therefore, the suit should have been decreed. I have carefully considered the aforesaid contention but find no merit therein. The plaintiff's attorney Ajit Singh PW-4 admitted that plaintiff had filed complaint against the defendant under the Pollution Act and the said complaint was withdrawn by the plaintiff in pursuance of compromise, and the impugned agreement was scribed in pursuance of the said compromise, as mentioned in paragraph 14 of judgment of the lower appellate Court. It is thus apparent from the testimony of the plaintiff's attorney himself that the RSA No.2278 of 2010 -3- impugned agreement was got executed only as compromise for withdrawal of compliant lodged by plaintiff against the defendant under the Pollution Act. Consequently the Courts below have rightly held that the said agreement is result of coercion and undue influence exercised by the plaintiff under the garb of complaint filed under the Pollution Act. Concurrent finding of the Courts below to this effect does not suffer from any illegality and perversity so as to call for interference in second appeal. The said finding is justified by the evidence led by the parties and is supported by cogent reasons recorded by the Courts below. The suit land has also not been properly described in the impugned agreement. The plaintiff now claims relief regarding Khasra No.21/2, whereas in the agreement, Khasra number mentioned is 21/1. The boundaries of the suit plot have also not been properly described in the agreement. Possession of the suit land is also not found to have been delivered to the plaintiff- appellant, although it is recited in the agreement that possession has been delivered to the appellant. All these circumstances further make the impugned agreement unenforceable. Courts below have also found that the suit plot which is a commercial plot abutting road could not have been agreed to be sold for petty amount of Rs.7,000/- only. This circumstance also depicts that the impugned agreement was not voluntary act of the defendant. The suit is also barred by limitation. Impugned agreement is dated 27.10.1993, whereas the suit was filed on 28.1.1998 i.e. more than 5 years after the execution of the agreement. The plaintiff could RSA No.2278 of 2010 -4- get the sale deed executed on demand immediately after the execution of the agreement and therefore, limitation period commenced immediately on execution of the agreement. Consequently the suit filed by the appellant is also barred by limitation. In view of Section 3 of the Limitation Act, even if defence of bar of limitation is not used by the defendant in the written statement, the suit is liable to dismissal if found to be time barred. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE November 25, 2010 'Raj'