R.S.A. No. 4821 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A. No. 4821 of 2010 (O&M) Date of decision:- 17.12.2011 Munshi Ram & Ors. ... Appellants Versus Subhash Chander etc. ... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. S.S.Godara, Advocate, for the appellants. Gurdev Singh, J (oral) The appellants/defendants have preferred the second appeal after the suit of respondent No.1/plaintiff – Subhash Chader was dismissed by Additional Civil Judge (Sr. Division) Fatehabad, vide judgment and decree dated 13.8.2009 for possession of the land in dispute by way of specific performance of the agreement dated 5.12.2006 and the first appeal preferred by the plaintiff against that judgment and decree was allowed by the Additional District Judge Fatehabad, vide judgment and decree dated 14.10.2010, setting aside the judgment and decree of the trial Court and decreeing the suit of the plaintiff for possession of the land in dispute by way of specific performance of the agreement. The plaintiff averred in his plaint that defendants No. 1 to 10 agreed to sell the land in dispute in his favour for a sum of ` 4,46,000/- vide agreement dated 5.12.2006 and received ` 2,46,000/- as earnest money. The sale deed was to be executed on 5.6.2007 and on that date he came present in the office of the Sub Registrar. Defendants No. 1 to 10 came present, but did not execute the sale deed in his favour as they had not R.S.A. No. 4821 of 2010 (O&M) -2- cleared the loan amount standing against the land in dispute. He always remained ready and willing to perform his part of the contract but despite repeated requests defendants failed to perform their part of the contract. The suit was contested by the defendants. Defendants No. 1 to 10 filed joint written statement in which they admitted the execution of the agreement in favour of the plaintiff. They denied the other contentions made therein and pleaded that on 5.6.2007, defendant No.1 came present in the office of the Sub Registrar for executing the sale deed in favour of the plaintiff, but he was not ready with the sale consideration and wanted to get time for execution of the sale deed extended to which defendant No.1 did not agree. They also pleaded that at the time of the agreement it was told to the plaintiff that some of the land in dispute had been allotted to them under the Tenancy Act and some of the land had been given to them by Gopi Ram and that against khasra No. 271//5/2/1 (0-10) Gopi Ram had taken loan of ` 3,64,000/- from defendant No.11 and that the sale deed would be executed after the clearance of that loan and in case the same is not cleared then the sale deed shall be executed in respect of the remaining land. However, in collusion with the deed writer plaintiff got a recital entered in the agreement regarding execution of the sale deed after clearance of the loan amount. The plaintiff has no cause of action, nor locus standi to file the suit and the same is not maintainable. Defendant No.11 filed a separate written statement. It has been pleaded therein that Gopi Ram mortgaged his 71 kanal and 7 marlas of land in favour of the bank vide mortgage deed 16.3.2004 regarding which a report was made in the revenue record on 23.3.2004. The defendants were R.S.A. No. 4821 of 2010 (O&M) -3- not authorised to sell any part of the land, which was so mortgaged. On the pleadings of the parties issues were framed and they were given an opportunity to produce their evidence. After going through the evidence so produced by them and hearing learned counsel on their behalf the learned trial Court, after recording the findings on all the issues, dismissed the suit of the plaintiff. However, those findings were upset by the first Appellate Court. I have heard learned counsel for the defendants No. 1 to 10/appellants. It has been submitted by learned counsel for the defendants that on the date fixed for execution of the sale deed defendant No.1 had gone to the office of the Sub Registrar in his personal capacity as well as the attorney of the other defendants in order to execute the sale deed, but the plaintiff was not having any money with him to be paid as balance sale consideration and for meeting the other expenses and wanted to get the date for execution of the sale deed extended. Cogent evidence was produced before the trial Court to that effect. In view of that evidence, it was to be concluded that it was the plaintiff who was not ready and willing to perform his part of the contract and the finding recorded to the contrary by the first Appellate Court cannot be sustained. Thus substantial question of law is involved in the present appeal. He also tried to submit that the finding of the first Appellate Court is based upon the misreading of the evidence as it was categorically stated by defendant No.1, while making his statement before the trial Court, that the plaintiff got it mentioned wrongly, in collusion with the deed writer, that whole of the loan amount was to be got R.S.A. No. 4821 of 2010 (O&M) -4- cleared before the execution of the sale deed. In fact the land which was agreed to be sold was never the subject matter of the mortgage deed and was free from all encumbrances. Therefore, it cannot be said that it were the defendants who were not ready and willing to perform their part of the contract. After giving a thoughtful consideration to the submissions so made by learned counsel for the defendants this Court has come to the conclusion that no such substantial question of law arises in the present appeal. The findings recorded by the first Appellate Court show that there is no such misreading of the evidence. The defendants never served a notice upon the plaintiff that a wrong recital has been got entered by him in the agreement to sell in collusion with the deed writer. They came up with that plea for the first time, after the suit was filed. They never came up with any application or suit under Section 28 of the Specific Relief Act for rescinding that agreement on that account. It was specifically deposed by the plaintiff in the affidavit, got attested by him regarding his presence in the office of the Sub Registrar on the date fixed for execution of the sale deed, that the bank loan had not been cleared and the defendants have not executed the sale deed in his favour though he was present in that office with the balance sale consideration and other expenses. The findings of the first Appellate Court are based upon the appreciation of evidence and cannot be said to be perverse. The appeal is dismissed accordingly. December 17, 2010 (Gurdev Singh) tripti Judge