RSA No.2679 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.2679 of 2008 (O&M) DATE OF DECISION: 31.08.2010 **** Tilak Raj and others . . . . Appellants VS. Balwant Singh and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Ashish Aggarwal, Advocate for the appellants. Mr.P.C. Chaudhary, Advocate for the respondents. **** RAKESH KUMAR JAIN J. (ORAL) This Appeal is filed at the instance of defendants against judgment and decree of the First Appellate Court by which judgment and decree of the trial Court has been reversed. The plaintiffs filed the suit for specific performance of an agreement to sell dated 29.8.1998. It is alleged by the plaintiffs that Sham Lal was owner in possession of 37 kanals 0 marla of land being 1/3rd of total land measuring 111 kanals 01 marla comprised in Khewat No.228, Khatoni No.302 and 303 situated within the revenue estate of village Kunjpura. Sham Lal agreed to sell the said land to the plaintiffs for a total sale consideration of Rs.7 lacs and received earnest money of Rs.3,50,000/-. The date for execution of sale deed was fixed as 10.5.1999. It is alleged that the plaintiff had appeared before the Sub Registrar, Karnal on 10.5.1999 after intimating the defendants but he RSA No.2679 of 2008 (O&M) -2- kept on waiting in the office of the Registrar and nobody turned up on behalf of defendants to execute the sale deed. The written statement was filed on behalf of the Legal Representatives of Sham Lal because he died during the pendency of the suit. The execution of the agreement was denied. However, it was admitted that Sham Lal was the owner in possession of 37 kanals 0 marla of land. It was also alleged that the agreement is false and fabricated document, therefore, there was no reason for defendant No.1 to appear before the Sub Registrar, Karnal on 10.5.1999. However, in the written statement, it was not pleaded that the agreement to sell was in fact a document executed for the purpose of taking loan and was not really intended for the purpose of selling the property. Written statement was replied by way of replication and from the pleadings of the parties, following issues were framed: - 1. Whether the defendant Sham Lal had entered into an agreement to sell dated 29.8.1998 with the plaintiff and received a sum of Rs.3,50,000/- as earnest money as alleged? OPP 2. If issue No.1 is proved, whether the plaintiffs have always been ready to perform the agreement to sell in question? OPP 3. Whether the plaintiffs are entitled to relief of specific performance with consequential relief of possession and permanent injunction? OPP 4. Whether the plaintiffs have got no locus standi to file and maintain the present suit? OPD 5. Whether the plaintiffs has not come to the Court with clean hands and have suppressed the true and material facts from the Court? OPD RSA No.2679 of 2008 (O&M) -3- 6. Whether the plaintiffs have no cause of action to file and maintain the present suit? OPD 7. Whether the plaintiffs have not affixed the correct court fee on the suit as that the suit has wrongly been assessed for the purpose of court fee and jurisdiction? OPD 8. Whether this court has got no jurisdiction to try and entertain the present suit? OPD 9. Relief.” Both the parties led their oral as well as documentary evidence. Learned trial Court partly decreed the suit holding the plaintiffs to be entitled to reimbursement of Rs.3,50,000/- along with interest @ 12% per annum from the date of agreement till the date of its actual realization. No appeal was preferred by the defendants, however, appeal was preferred by the plaintiffs before the First Appellate Court, which was allowed and the suit in toto has been decreed. Consequently, defendants have been directed to get the sale deed executed in favour of the plaintiffs within a period of one month, failing which the plaintiffs were held entitled to get the sale deed executed with the assistance of the Court on deposit of balance sale consideration of Rs.3,50,000/- and all other expenses of stamp and registration. It was also held that after execution of the sale deed, plaintiffs would be entitled to possession of the land in dispute. Aggrieved against the judgment and decree of the First Appellate Court, defendants have come up in this Regular Second Appeal. The only point raised by learned counsel for the appellants is that agreement to sell was not really intended for the purpose of sale of RSA No.2679 of 2008 (O&M) -4- the agricultural land to the plaintiff by their father rather it was executed to secure loan as deceased Sham Lal used to sell his crop at the shop of plaintiffs and had a long association with them. He has also sought to place on record form ‘J’ etc by way of an application filed under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) in which notice was issued and reply thereto has been filed by the plaintiffs. The application is also being disposed of with the main appeal. Opening his argument, learned counsel for the appellants has submitted that there were three agreements to sell executed between the parties. The first agreement was of 23.6.1998 (Ex.DA) which was entered into by Sham Lal himself to sell land in dispute measuring 37 kanals 0 marla out of total Land measuring 111 kanals 01 marla for a sum of Rs.7 lacs after receiving earnest money of Rs.2,50,000/-. The sale deed was to be executed on 23.5.1999. However, the first agreement was cancelled and second agreement (Ex.PC/1) was executed on 29.8.1998 for the sale of the same land measuring 37 kanals 0 marla at the instance of Sham Lal against a sum of Rs.7 lacs but in this agreement, date of execution of sale deed was fixed as 10.5.1999. He also submits that there was another agreement dated 14.12.1998 by which Sham Lal had sold a shop to one of the plaintiffs. Learned counsel for the appellants/defendants has submitted that agreement Ex.DB was also cancelled by Sham Lal and when this plea was taken in the written statement, the plaintiffs were very conveniently taking evasive stand in the replication of having entered into agreement with the Sham Lal for the sale of land on 23.6.1998 and of the shop dated 14.12.1998. On the contrary, learned counsel for the respondents/plaintiffs has submitted that agreement has been proved on RSA No.2679 of 2008 (O&M) -5- record. No appeal has been filed by the defendants before the First Appellate Court against the authenticity of the agreement. He also submits that there is no pleading of the defendants in the written statement that agreement was a sham transaction inasmuch as the agreement was entered into for the purpose of securing loan. He also submits that there is no issue as to whether the agreement dated 29.8.98 (EX.PC/1) is a sham transaction. Thus, it is submitted that in the absence of any pleading, issues and evidence led, this plea cannot be taken in the Regular Second Appeal for the first time because such a plea is purely a question of fact which cannot be agitated at this stage. I have considered the arguments of both learned counsel for the parties and have found that the first agreement dated 23.6.1998 was cancelled and the second agreement was immediately executed between the parties on 29.8.1998 after the period of two months for the reasons that period in the first agreement was much longer as it was for nine months whereas in second agreement the earnest money was enhanced from 2.50 lacs to Rs.3.50 lacs. It is now well settled that if the agreement is proved which has been challenged by the defendants on the ground of fraud and fabrication, the benefit of the agreement should be given to the plaintiffs by exercising discretion in his favour and for the purpose of proving that the agreement was not meant for selling the land, defendants are required to raise this plea from the beginning. He could not deny the agreement in toto and seek indulgence of the Court to hold that the agreement was not meant for selling land and was meant for securing loan. Once agreement by itself is denied, which though has been proved by the plaintiffs, the defendants have no occasion to say that it was a sham transaction. RSA No.2679 of 2008 (O&M) -6- In view thereof, I do not find any merit in the present appeal as such the same is hereby dismissed with costs. (RAKESH KUMAR JAIN) 31.08.2010 JUDGE Vivek