R.S.A.No. 3092 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3092 of 2009 (O&M) Date of decision: 10.11.2009 Pritam Singh and another ......Appellants Versus Sukhdev Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Raman Mohinder, Advocate, for the appellants. Mr.H.R.Nohria, Advocate, for the respondents. **** SABINA, J. Plaintiff Sukhdev Singh filed a suit for the relief of specific performance of agreement to sell dated 11.5.2005 and for the relief of permanent injunction. The suit of the plaintiff was decreed by the Civil Judge (Jr.Divn.), Dhuri vide judgment and decree dated 4.2.2008. In appeal, the said judgment and decree were upheld by the Additional District Judge (Adhoc), Fast Track Court, Sangrur, vide judgment and decree dated 8.5.2009. Hence, R.S.A.No. 3092 of 2009 (O&M) 2 the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 5 of its judgment, are as under:- “2. The brief facts of the case of the plaintiffs are that the defendants No.1 to 3 were owners in possession of land measuring 69 Bighas 5 Biswas situated in the revenue estate of village Meemsa, out of which the defendant No.1 Pritam Singh is owner of land measruing 24 Bighas 10 Biswas contained in Khata No.220/402, Mukhtiar Kaur is owner in possession of land measuring 38 Bighas 5 Biswas contained in Khata No.222/405. The defendant entered into an agreement with the plaintiff for the sale of land measuring 69 Bighas and 5 Biswas along with electric Motor connection of 7.5 B.H.P. Kotha, Bora, Pankha, Pipe, Khal, Pahi etc. @ Rs.1,25,000/- per bighas vide agreement to sell dated 11.5.2005 and they received Rs.12,00,000/- as earnest money from the plaintiff at the time of execution of agreement to sell in the presence of witness. It was also agreed that two sale deeds would be executed i.e. with regard to half of the land upto 30.12.2005 and regarding remaining property upto 15.6.2006. It was also agreed that in case the plaintiff fails to get the sale deed registered by the stipulated date the plaintiff would have the right to recover the double R.S.A.No. 3092 of 2009 (O&M) 3 amount i.e. 12,00,000/- as earnest money and Rs.12,00,000/- as damages or the plaintiff will have the right to get the sale deed registered by depositing the remaining sale consideration through process of law. Pritam Singh defendant signed the same, whereas, Mohinder Singh and Mukhtiar Kaur thumb marked the agreement to sell after admitting the same to be true and correct in the presence of witnesses. That as per terms and conditions of the agreement to sell the plaintiff was always ready and willing to perform his part of the contract and is still ready and willing. The remaining sale consideration payable to the defendants and registration expenses were/are readily available with the plaintiff. As per terms and conditions of the agreement to sell, Mohinder Singh defendant No.3 has executed registered sale deed regarding his property i.e. land measuring 38 bighas 10 Biswas out of 69 Bighas 5 Biswas comprised in khata No.222/405, Khasra No.683/8-15, 684/8-15, 685/8-15, 686/6-0, 687/6-5 and as such the part of the agreement stands performed. The defendants Pritam Singh and Mukhtiar Kaur did not execute the sale deed reagarding the remaining property of their share with malafide intention so far. R.S.A.No. 3092 of 2009 (O&M) 4 As per terms and condition of the agreement to sell the plaintiff remained present in the office of Sub Registrar, Dhuri on 15.6.2006 alongwith the remaining sale consideration and registration expenses, but the defendants did not turn up on that date and the plaintiff got his presence marked by submitting an affidavit before Sub Registrar, Dhuri, through Piara Singh son of Balbir Singh as the plaintiff had to go to Ludhiana. Now, defendants No.1 and 2 are openly threatening to alienate, mortgage, transfer the property in dispute to any other person except the plaintiff by violating the terms and conditions of the agreement to sell and to cause wrongful loss to the plaintiff, to which, they have no legal right. In case the defendants No.1 and 2 succeed in their evil design, the plaintiff will suffer an irreparable loss which wold not be compensated later on. The defendants No.1 and 2 have been requested a number of times to execute the sale deed in his favour by receiving the remaining sale consideration from him after adjusting Rs.12,00,000/- as earnest money already paid to the defendants and to hand over the vacant possession of the property in dispute to the plaintiff and not to alienate mortgage/transfer the suit property to any other person except the plaintiff by R.S.A.No. 3092 of 2009 (O&M) 5 violating the terms and conditions of the agreement to sell but to no effect. 3. Notice of the suit was served on the defendants, who appeared except defendant No.3 and filed joint written statement. However, plaintiff has withdrawn the suit against defendant No.3. 4. The defendants No.1 and 2 filed written statement by taking legal objections that the alleged agreement to sell dated 11.5.2005 is forged, fabricated and without consideration. 5. However, on merits, it is alleged that the alleged agreement to sell dated 11.5.2005 is forged, fabricated and without consideration. The defendants never entered into an agreement for the sale of their property with the plaintiff. Rather the defendants were consenting party of the agreement to sell executed by defendant No.3. The defendants never received any amount from the plaintiff. The alleged agreement is the result of fraud. Since the defendants never entered into an alleged agreement the question of readiness and willingness does not arise. It is alleged that the defendant No.3 has executed the sale deed regarding his property as per agreement as full and final performance of the agreement.” R.S.A.No. 3092 of 2009 (O&M) 6 On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the defendants entered into an agreement to sell their land vide agreement dated 11.5.2005 in favour of the plaintiff? OPP 2. Whether the earnest money of Rs.12 lacs passed hands between the parties? OPP 3. Whether the plaintiff was ready and willing to perform his part of agreement? OPP 4. Whether the plaintiff is entitled to the specific performance of agreement dated 11.5.2005? OPP 5. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP 6. Whether the agreement in question is forged and fabricated document? OPD 7. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for specific performance of agreement to sell dated 11.5.2005. In order to prove his case, plaintiff examined PW-1 Maninder Pal Garg, Deed Writer, Sher Singh, PW-3, attesting witness to the agreement to sell and himself appeared in the witness box as PW-4. Plaintiff also examined PW-2 Piara Singh to corroborate his plea that the plaintiff was always ready R.S.A.No. 3092 of 2009 (O&M) 7 and willing to perform his part of the contract. All the said witnesses have deposed with regard to the due execution of the agreement to sell. A perusal of Ex.P-3, affidavit sworn by PW-2 Piara Singh, reveals that Sukhdev Singh plaintiff remained present with him in the office of Executive Magistrate on 15.6.2006, the date fixed for execution of the sale deed, to perform his part of the contract but the defendants had failed to appear. He has further stated in the affidavit that Sukhdev Singh had to leave suddenly for Ludhiana as his son-in-law had met with an accident. In these circumstances, the Courts below had rightly held that the plaintiff had been successful in proving the due execution of the agreement to sell as well as the fact that the plaintiff was ready and willing to perform his part of the contract. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 10, 2009 anita