RSA No. 3752 of 2006 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 3752 of 2006 Date of decision: May 6, 2009 Amarjit Kaur and others ..Appellants. Versus Tarlochan Singh and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Amit Jain, Advocate for the appellant. Mr.Arvind Singh, Advocate for the respondents. ... Rakesh Kumar Garg,J. This is defendant’s second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondents for specific performance of the agreement dated 9.9.1994 was decreed with costs with further declaration that decree dated 17.2.1995 in Civil Suit No.471 dated 18.10.1994 was illegal and further respondent Nos.2 to 5 were restrained from alienating the suit land. As per the averments made in the plaint, defendant No.1 (now respondent No.5) entered into an agreement to sell the suit land to the plaintiff vide agreement dated 9.9.1994 and received Rs. 1 lac as earnest money. The sale deed was to be executed and registered on or before 15.6.1995. The defendant No.1 failed to turn up in the office of Sub Registrar, Ambala Cantt on the stipulated date. It was further stated that plaintiff was ready and willing to perform his part of the agreement and is still ready and willing to perform his part of the agreement, but defendant No.1 had not executed the sale deed on one pretext or the other. Plaintiff then contacted the Halqa Patwari for obtaining the revenue record for filing suit and came to know that defendant had suffered a collusive decree dated 17.2.1995 in Civil Suit No. 471 dated 18.10.1994 titled as Amarjit Singh Versus Gurmukh Singh qua the suit land, besides other land. It RSA No. 3752 of 2006 2 was further stated that the aforesaid judgment and decree dated 17.2.1995 was illegal, null and void and not binding upon the rights of the plaintiffs. The defendants were bound by the terms and conditions of the agreement to sell dated 9.9.1994. Since the defendants refused to execute the sale deed, the necessity arose to file the present suit. Upon notice, defendants appeared but thereafter, defendant No.1 absented and was proceeded against ex parte vide order dated 23.4.1996. Defendant Nos.2 to 5 filed their written statement and submitted that defendant No.1 was not competent to enter into any agreement to sell as he was not competent to alienate the suit property without legal necessity. Defendant No.1 had no legal necessity. He was a man of easy virtues and indulged in all sorts of vices. The agreement in question appears to be forged and fabricated by the plaintiff to grab the property of the defendants. It was further stated that the plaintiffs may have obtained the signatures of the defendant No.1 under the influence of liquor or some intoxicants. Other allegations of the plaint were denied. It was further submitted that a family settlement qua the suit land was arrived at between the defendant No.1 and defendant Nos.2 to 5 in August, 1994 and on the basis of the family settlement, decree dated 17.2.1995 was passed in favour of defendant Nos.2 to 5 who were owner in possession of the suit property. Dismissal of the suit was sought. The trial Court decided issue No.1 in favour of plaintiff-respondent by holding that defendant No.1 had agreed to sell the suit property in favour of plaintiff vide agreement dated 9.9.1994 at the rate of Rs. 1,00,000/- per acre and that sum of Rs. 1,00,000/- was also paid as earnest money. It was also held that plaintiff was always ready and willing and still ready and willing to perform his part of agreement to sell and that it is defendant No.1 who had failed to execute the sale deed. It was also held that judgment and decree dated 17.2.1995 Ex.P4 and Ex.P5 in Civil Suit No. 471/94 passed by the Court of Ms. Neena Chaudhary, Addl. Senior Civil Judge, Ambala in suit titled as “Amarjit Kaur Vs. Gurmukh Singh”, suffered by defendant No.1 in favour of defendant Nos.2 to 5 is RSA No. 3752 of 2006 3 illegal, null and void and not binding upon the right of plaintiff and that plaintiff is entitled to get the agreement enforced on payment of balance sale consideration, Issue No.2 and 3 were discussed together and it was held that plaintiff is having locus standi to file the present suit and that the suit is also maintainable in the present form. In view of finding on various issues, suit of the plaintiff was decreed with costs as aforementioned. Not satisfied with the judgment and decree of the trial Court, defendants filed an appeal which was dismissed by the lower Appellate Court vide judgment and decree dated 22.8.2006. Still not satisfied, the plaintiffs have filed the instant appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that the courts below have erred in law by ignoring that in the facts and circumstances of the instant case, the relief of specific performance could not be granted to the plaintiff-respondent in view of Section 20 of the Specific Relief Act. It was further argued by the counsel for the appellant that Gurmukh Singh defendant No.1 was not competent to alienate the suit property and therefore, the following substantial questions of law arises in this appeal:- i) Whether in the facts and circumstances of the instant case Gurmukh Singh was competent to alienate the property in question ? ii) Whether in the facts and circumstances of the instant case and in view of the fact that Gurmukh Singh had suffered a decree in favour of the appellant the relief of specific performance could be granted to the contesting respondents ? On the other hand learned counsel for the respondents has supported the findings of the courts below and has argued that no substantial question of law arises in this appeal as a concurrent finding of fact has been recorded by the courts below holding that the agreement in question and receipt of earnest money by defendant No.1 stood duly proved and therefore, the RSA No. 3752 of 2006 4 plaintiff-respondents were entitled to the decree for specific performance of the contract. I have heard learned counsel for the parties and perused the record of the appeal. No doubt the relief of grant of decree for possession by way of specific performance of the agreement is discretionary. However, the said discretion is to be exercised in a fair and judicious manner. The appellants have failed to prove the hardship allegedly caused to them on the basis of which the plaintiff-respondent could be denied the relief of specific performance of the agreement in question. Rather it has been noticed by the lower Appellate Court that there was no evidence on record that Gurmukh Singh was not of a good character. It is also not disputed by the appellants that they are still having the land which was transferred in their favour vide decree dated 17.2.2005 by defendant No.1 along with the land in question. It has also been recorded by the lower Appellate Court that defendant No. 1 had not appeared in the witness box to depose regarding the assertion of the defendant No.2 to 5 that no document was executed by him in favour of Gurmukh Singh and that no sale consideration was received by him. The lower Appellate Court on appreciation of evidence also held that there was no evidence on record to prove that land in dispute in the hands of Gurmukh Singh was ancestral and he was not competent to alienate the same. No other point was argued. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. May 6, 2009 (RAKESH KUMAR GARG) nk JUDGE