RSA No. 1896 of 2002 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: March 04 , 2011 RSA No. 1896 of 2002 Smt.Gurnam Kaur and others .....Appellants Versus Maha Singh .......Respondent RSA No. 1897 of 2002 Smt.Gurnam Kaur and others .....Appellants Versus Maha Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Akshay Bhan, Advocate and Mr.Santosh Sharma,Advocate for the appellants (in both the appeals) Mr.Sudhir Aggarwwal,Advocate for respondents (in both the appeals) **** RSA No. 1896 of 2002 2 SABINA, J. Vide this judgment, the above mentioned two appeals would be disposed as they have arisen out of the same suit. The plaintiff had filed the suit for possession. The case of the plaintiff,in brief, was that Gurcharan Singh had executed an agreement to sell dated 3.4.1991 qua 21 kanals 8 marlas of land bearing khasra number 41//4,7, 8/1 min. ` 1,00,000/- were paid by the plaintiff to the defendant-Gurcharan Singh towards earnest money. The sale deed was to be executed on or before 5.5.1992 after receiving the balance sale consideration. The plaintiff remained present in the Office of Sub-Registrar on the stipulated date but the defendant failed to appear. Hence, the suit was filed by the plaintiff. Defendants, in their written statement, denied the execution of the agreement to sell in question. It was further averred that the suit land was shamlat deh and the plaintiff was not owner of the same. On the pleadings of the parties, following issues were framed by the trial Court:- "1.Whether the defendant had entered into an agreement to sell the suit land on 3.4.91 to the plaintiff?OPP 2.Whether the defendant had received sum of Rs. 1 lakh as earnest money?OPP 3.Whether the plaintiff is always ready and willing to perform his part of the contract and is still ready and willing to perform his part of contract?OPP 4.Whether the suit is not maintainable in the present RSA No. 1896 of 2002 3 form?OPD 5.Whether the plaintiff has no cause of action?OPD 6.Whether the defendant is entitled to special costs?OPD 7.Relief. The trial Court vide judgment and decree dated 12.11.1997 partly decreed the suit of the plaintiff for recovery of ` 1,00,000/- with interest at the rate of 12% per annum from the date of execution of the agreement to sell till its realization. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the legal representatives of defendant-Gurcharan Singh also filed an appeal. Vide judgment and decree dated 14.2.2002, the Additional District Judge, Jind allowed the appeal filed by the plaintiff and passed a decree for joint possession by way of specific performance of agreement to sell in favour of the plaintiff. The appeal filed by the legal representatives of defendant was dismissed. Hence, the present appeals by the legal representatives of defendant. Learned counsel for the appellant has submitted that the suit land was shamlat deh and hence, Gurcharan Singh could not execute the agreement to sell in question in favour of plaintiff. Moreover, the agreement to sell in question was not enforceable as the property was not correctly defined therein. Learned counsel for the appellant has placed reliance on Bhagwan Singh vs. Nawab Mohammad Iftikhar Ali Khan and others 1982 PLJ 386 wherein it has been held that the agreement to sell which did not contain exact area of land nor boundaries was, thus, vague and indefinite and no specific performance would be enforceable qua the said agreement to sell. RSA No. 1896 of 2002 4 Learned counsel for the respondent, on the other hand, has submitted that Khasra numbers had been correctly mentioned in the agreement to sell. It is only due to inadvertence, Kita number has been wrongly mentioned in the agreement to sell. Gurcharan Singh was in the possession of the suit property which was described as Shamlat deh Hasab Hissa Jadi Mundarja Shajra Nasab. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. In the present case, a perusal of the jamabandi for the year 1984-85 reveals that Khewat number 32 khata No. 94 is described as Shamlat deh Hasab Hissa Jadi Mundarja Shajra Nasab. Gurcharan Singh had 1/4th share out of the total land. Vide the agreement to sell Exhibit P1, Gurcharan Singh agreed to sell 21 Kanals 8 Marlas of land bearing Khasra number 41//4(8-0), 7(8-0),8/1 (5-8). It appears that due to inadvertence khewat number has been written as 39 in the agreement to sell ,whereas khewat number of the land in dispute is 32. However, khasra numbers have been correctly mentioned in the agreement to sell in question. In these circumstances, it cannot be said that the agreement to sell in question is not enforceable or that it does nor bear proper detail of the property sought to be sold. The land in question is Shamlat deh Hasab Hissa Jadi Mundarja shajra Nasab and, thus, was not being used for common purposes. The vendor was in joint possession of the suit land which formed part of a lot of khasra numbers. In these circumstances, Gurcharan Singh was competent to sell his share out of the suit land and the first appellate Court has rightly passed a decree of joint RSA No. 1896 of 2002 5 possession in favour of the plaintiff as on the basis of an agreement to sell in question, plaintiff became joint owner out of share of Gurcharan Singh to the extent of 21 kanal 8 marals. The judgment relied upon by the learned counsel for the appellant fails to advance the case of the appellant as it is based on different facts. No substantial question of law arises in these appeals. Both the appeals are dismissed. (Sabina ) Judge March 04,2011 arya