R.S.A. No. 34 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 34 of 2009 Date of Decision: 8.01.2009 Mulakh Raj and others .....Appellants. versus Bhagwan Singh ....Respondent CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Mr. Atul Lakhanpal, Senior Advocate with Mr. R.S. Chahal, Advocate for the appellants. **** AJAY KUMAR MITTAL, J. This regular second appeal filed by defendant No.2 and the legal representatives of defendant No.1-Tilak Raj, is directed against the judgment and decree dated 27.8.2008 passed by the Additional District Judge, Fatehabad, affirming that of the Additional Civil Judge (Senior Division), Fatehabad, dated 26.10.2006, whereby the suit of the plaintiff for possession by way of specific performance of an agreement to sell dated 26.5.2003, was decreed. Briefly stated, the facts of the case are that the plaintiff Bhagwan Singh filed a suit for possession by way of specific performance of the agreement to sell dated 26.5.2003 in respect of the land measuring 8 kanals, i.e. 2/3rd share of khasra Nos. 351//13 (8-0), 8/2 (4-0) situated in village Bhirran, Tehsil and District Fatehabad (hereinafter referred to as “the suit land”). It was pleaded that the defendants executed an agreement dated 26.5.2003 to sell the suit land R.S.A. No. 34 of 2009 -2- in favour of the plaintiff for a sale consideration of Rs.1,30,000/- and also received a sum of Rs.62,000/- as earnest money. The sale deed was agreed to be executed on or before 22.5.2004 after receipt of the balance amount of the sale consideration. According to the plaintiff, 22.5.2004 and 23.5.2004 were holidays and he went to the office of the Sub-Registrar, Fatehabad on 24.5.2004 along with balance amount of sale consideration and expenses for getting the sale deed executed but the defendants did not turn up. After waiting for the defendants till court hours, the plaintiff got his presence marked by way of an affidavit in the office of the Sub-Registrar, Fatehabad. It was also pleaded that the plaintiff was ready and willing to perform his part of the agreement but the defendants failed to perform their part of the contract and even the legal notice served for the purpose also failed to evoke any positive response. The stand of the plaintiff was controverted by the defendants by filing a joint written statement and raising various preliminary objections. It was pleaded that they never executed any agreement to sell the suit land in favour of the plaintiff for a sale consideration of Rs.1,30,000/- nor received an amount of Rs.62,000/- as earnest money from him, as alleged by him. It was further pleaded that on 27.5.2002, they had borrowed a sum of Rs.50,000/- from one Amar Singh (plaintiff's mother's sister's son), who had been lending money to the defendants and to secure the loan, he had been getting executed the agreement to sell the suit land as a sham transaction. After payment of the interest, he had been getting renewed the agreement with an intention of securing the loan amount. It was also R.S.A. No. 34 of 2009 -3- pleaded that on 26.5.2003, said Amar Singh took the defendants to the scribe. The scribe and Amar Singh represented the defendants that the scribe papers were only the mode of securing loan which they had already received from Amar Singh. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. From the pleadings of the parties, the trial court framed the following issues:- “1. Whether the defendants entered into an agreement to sell land measuring 8 kanals 0 marla with the plaintiff on 26.5.2003 comprised in rectangle No. 351, killa No. 13 (8-0), kill No. 8/2 (4-0)? OPP 2. Whether the plaintiff has been and is still ready and willing to perform his part of contract? OPP 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff has no cause of action against the defendants? OPD 5. Relief.” The trial Court on appreciation of the oral as well as the documentary evidence led by the parties decided issue No.1 in favour of the plaintiff holding that the defendants had agreed to sell the suit land to the plaintiff vide agreement to sell dated 26.5.2003 and received a sum of Rs.62,000/- as earnest money. Issue No.2 was also decided in favour of the plaintiff holding that he was ready and willing to perform his part of the agreement. Issues No.3 and 4 were decided against the defendants being not pressed. Accordingly, the trial court vide judgment and decree dated 26.10.2006 decreed the suit of the plaintiff. The plaintiff was directed to deposit the balance sale consideration in the court within two months and thereafter to give information regarding R.S.A. No. 34 of 2009 -4- the deposits to the defendants through registered post who, in turn, would execute the sale deed in his favour within a month from the date of receipt of intimation regarding the deposit of balance sale consideration. The matter was taken up in appeal by the defendants and the lower appellate court vide judgment and decree dated 7.11.2008 affirmed the findings recorded by the trial court and dismissed the appeal. I have heard learned counsel for the appellants and have perused the impugned judgments with his assistance. Learned counsel for the appellants made efforts to persuade this Court to come to a different conclusion than that of the Courts below but could not show any material on the basis of which it could be held that the concurrent findings of fact recorded by the Courts below suffer from any mis-reading or mis-appreciation of evidence which may warrant interference by this Court in the regular second appeal. The Courts below on the basis of the evidence available on record had recorded the concurrent findings of fact that the defendants entered into the agreement (Ex.P1) to sell the suit land in favour of the plaintiff on 26.5.2003 and accepted Rs.62,000/- as earnest money and also that the plaintiff had been ready and willing to perform his part of the contract. No question of law much less the substantial question of law arises in this appeal for consideration of this Court. Finding no merit in this appeal, the same is hereby dismissed with no order as to costs. January 8, 2009 (AJAY KUMAR MITTAL) gbs JUDGE