IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Regular Second Appeal No. 2632 of 2007 Date of decision: 11.3.2008 Raj Dev Mehta --- Appellant Versus Ramesh Kumar and another --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. Parminder Singh, Advocate for the appellant. --- AJAY KUMAR MITTAL, J. A suit for specific performance filed by Ramesh Kumar and another, plaintiff-respondents herein, was decreed by the trial court vide judgment and decree dated 1.12.2005. The defendant-appellant, Raj Dev Mehta, preferred appeal which met with partial success and was accordingly disposed of by the District Judge, Bathinda vide judgment and decree dated 24.10.2006 holding the plaintiffs entitled to recover Rs. two lacs paid as earnest money along with interest @ 9% per annum from 1.4.2001 till realization. The dispute between the parties can be appreciated by noticing the following facts: The plaintiffs filed a suit for possession by way of specific performance of agreement to sell dated 12.7.1996, on the averments that defendant was the owner of the house, which is the portion of RSA No. 2632 of 2007 building bearing municipal No. 877-E, situated in Bipan Street, Bathinda. The defendant had mortgaged the said house without possession, with Karam Chand and Usha Rani for an amount of Rs. 1,60,000/- vide registered mortgage deed dated 2.2.1995. The defendant agreed to sell the said house to the plaintiffs for a consideration of Rs. 3,60,000/-. An agreement in that regard was executed on 12.7.1996 between them and the defendant received a sum of Rs. two lacs in cash as earnest money from the plaintiffs and handed over the possession of the house. The sale deed was agreed to be executed on or before 3.4.1997. As per the agreement, the mortgage amount was to be adjusted in the sale consideration at the time of execution of the sale deed. On the request of the defendant, the date for execution of the sale deed was extended upto 1.10.1997 and thereafter upto 4.5.1998. Though the defendant still wanted further extension in time for execution of the sale deed, but the plaintiffs did not agree for that and accordingly remained present on 4.5.1998 in the office of the Sub Registrar, Bathinda waiting for the defendant who, in terms of the agreement and the extension granted on that account, was bound to come there and execute the sale deed. The defendant however, did not turn up. It was thus prayed that the plaintiffs were entitled to get the sale deed executed in respect of the suit property. Secondly, it was prayed that in case the plaintiffs were not held entitled to the relief of specific performance, then alternatively they were entitled to recover a sum of Rs. 2,50,000/- i.e. Rs. two lacs being the amount of earnest money and Rs. 50,000/- being the amount of consolidated damages. It was stated that the defendant took possession of the house in question from the plaintiffs in March 2001 illegally and forcibly. Narrating one 2 RSA No. 2632 of 2007 incident, it was stated that at one point of time, even a complaint had to be made to the police in regard to the attempt made by the defendant to take possession of the house forcibly and without any legal right, and in consequence thereof even an FIR was also registered against him. On behalf of the defendant, it was stated in the written statement that the alleged agreement to sell was void as it did not disclose as to which part of property No. 877-E was to be sold. The property was coparcenary and ancestral of Hindu Joint family of the defendant and no family partition ever took place between the members of the family and as such the defendant was not competent to enter into the agreement of sale of the suit property. It was stated that the plaintiffs were not in possession of any portion of the house. Plaintiff No.1 was residing at Bathinda whereas plaintiff No.2 was staying at Ludhiana. It was stated that the defendant was an illiterate person and he signed the agreement to sell in good faith as he was made to understand that it was a deed of family settlement. It was also stated that the plaintiffs had filed the instant suit on the basis of a false agreement which was the result of a fraud. It was stated that no consideration was passed on in respect of the aforesaid agreement of sale. On merits, it was stated that the defendant was owner of the house along with other family members and he being a Hindu constitutes Hindu Joint family with his son and mother. The defendant mortgaged 2/3rd share of the property with Karam Chand and Kiran Bala and 1/3rd share with Jagir Chand and Usha Rani for Rs. 60,000/- and not for Rs. 1,60,000/-. The defendant never visited the office of the Sub Registrar for the registration of the agreement to sell and Jagir Chand mortgagee obtained the signatures on the mortgage deed outside the office of the 3 RSA No. 2632 of 2007 Sub Registrar at many places and he must have got the mortgage deed registered at the back of the defendant. It was specifically denied that any agreement to sell was executed and any earnest money was paid to the defendant. The trial court, on the rival contentions of the parties, framed various issues. On appreciation of the evidence on record, the trial court recorded a finding that the plea of the defendant regarding Jagir Singh being tenant in the property in dispute was false; the plaintiffs had proved the execution of the agreement to sell, Exhibit P-1; a sum of Rs. two lacs was paid in cash towards the sale consideration of the property in dispute and thus the agreement was executed for valuable consideration. The trial court further held that it stood proved from the evidence that Ramesh Kumar plaintiff remained present in the office of the Sub Registrar, Bathinda on 4.5.1998 and when defendant did not turn up for execution of the sale deed, the said plaintiff got his affidavit Exhibit P-3 attested from the Sub Registrar which amply proved his presence there and consequently his intention as well that the plaintiffs remained ready and willing to perform their part of the contract. It was noticed by the trial court that during the course of proceedings in the suit, the plaintiffs were dispossessed forcibly and they got a criminal case registered against the defendant in that behalf. It was further observed that the question of possession or dispossession of the plaintiffs during the course of the suit was not material as, in any case, in consequence of the relief of specific performance, the delivery of possession was to take place. Accordingly, the trial court decreed the suit of the plaintiffs and a 4 RSA No. 2632 of 2007 decree for possession by way of specific performance of the agreement of sale dated 12.7.1996 was passed in favour of the plaintiffs. The first appellate court, in the appeal carried by the defendant, concurred with the finding of the trial court that the plaintiffs remained ready and willing to perform their part of the contract. On the question of granting decree for specific performance, however, the first appellate court on elaborate discussion observed that the property was not divisible and its value had gone many-fold high, and thus, no decree for specific performance could be passed. As a consequence of reversal of findings of the trial court, the decree passed by the trial court granting the relief of specific performance of the agreement to sell, Exhibit P-1, was refused and instead the alternative relief claimed by the plaintiffs for a decree for recovery of Rs. two lacs, which was paid as earnest money, with interest at the rate of 9% per annum from 1.4.2001 till realization, was granted in favour of the plaintiffs. The appeal was partially allowed in the manner indicated above. I have heard learned counsel for the appellants and have perused the record. The findings recorded by the trial court are based on appreciation of the oral as well as documentary evidence on record. The finding regarding the relief of specific performance was, however, reversed by the first appellate court, on re-appreciation of evidence and consideration of the law on the subject. Though the counsel appearing for the appellant seriously assailed the findings of the courts below, but on repeated queries by the Court, he could not pin-point any illegality or 5 RSA No. 2632 of 2007 perversity in the said findings. No interference therewith is called for by this Court in second appeal. No substantial question of law arises in the appeal for the consideration of this Court. In view of the above, there is no merit in the appeal and the same is accordingly dismissed. (AJAY KUMAR MITTAL) March 11, 2008 JUDGE *RKMALIK* 6