R.S.A.No.2836 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.2836 of 2009 (O&M) Date of decision: 3.8. 2009 Kitabo ......Appellant Versus Charat Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Suman Jain Advocate, for the appellant. **** SABINA, J. Plaintiff Charat Singh filed a suit for possession by way of specific performance, which was partly decreed by the Additional Civil Judge (Sr.Divn.) Sirsa vide judgment and decree dated 2.11.2005. In appeal, the said judgment and decree were upheld by the Additional District Judge (Fast Track Court), Sirsa vide judgment and decree dated 22.4.2009. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- R.S.A.No.2836 of 2009 (O&M) 2 “2. The case of the respondent is that he filed the present suit for specific performance regarding the agreement to sell dated 30.5.1997 alleged to have been executed by Neki Ram (since deceased) husband of the appellant in favour of the respondent regarding the land comprised in Khewat No.69, Khatauni No.210 kitta 16, total land measuring 126 kanals 14 marlas of 1/9 share measuring 14 kanals 1 marlas situated in the revenue estate of village kheri and detail of the same has been given in the head note of the plaint. It is averred that vide agreement to sell dated 30.5.1997 Neki Ram husband of the appellant agreed to sell the suit land in favour of the respondent for a sale consideration of Rs.50,000/- per acre and had received an amount of Rs.57,500/- as earnest money on the same day on 30.5.1997. The sale deed was to be executed and registered on 28.11.1997. The date was further extended for execution and registration of the sale deed till 29.5.1998 and this was done with the consent of said Neki Ram. The sale deed and extension of time was scribed by S.Bal Kishan Gupta, Advocate in the presence of the witnesses. On 29.5.1998 the respondent had gone to the office of Sub Registrar, Nathusari Chopta, along with balance sale consideration and registration charges and waited for the arrival of Neki R.S.A.No.2836 of 2009 (O&M) 3 Ram throughout the day but said Neki Ram did not turn up and thereafter, he got his presence marked by moving an affidavit. It is further averred by the respondent that he came to know on 6.6.1995 that said Neki Ram suffered a civil court decree in favour of his wife and present appellant and he also impugned the said judgment and decree in the present case and ultimately he has to file the present suit. 3. Notice of the suit was given to the appellant. She filed the written statement and also took the preliminary objections i.e. maintainability, cause of action, locus-standi, concealment of true and material facts. It is also averred by her that her husband never agreed to sell the suit land in favour of the respondent and he never received earnest money and never executed an agreement to sell dated 30.5.1997 and same is fake document. Said Neki Ram had no legal right to transfer the suit property in favour of the respondent. When said Neki Ram did not execute the agreement to sell dated 3o.5.1997, therefore, the question of going him in the office of the Sub Registrar, Nathusari Chopta, to get the sale deed executed and registered does not arise. Lastly, a prayer has been made that the suit of the respondent is without any merit and the same be dismissed with costs.” R.S.A.No.2836 of 2009 (O&M) 4 On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether Neki Ram deceased, husband of the defendant entered into agreement for sale of the disputed land with the plaintiff vide agreement dated 30.5.1997 and received Rs.57,500/- as earnest money? OPP 2. Whether the impugned judgment and decree dated 6.6.1995 passed in civil suit No.902 of 1995 is liable to be set aside? OPP 3. Whether the impugned mutation No.713 dated 16.3.1998 is illegal and liable to set aside? OPP 4. Whether the plaintiff has always been ready and willing to perform his part of the contract? OPP 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the plaintiff has no cause of action to file the present suit? OPD 7. Whether the suit of the plaintiff is not maintainable in the present form? OPD 8. Whether Neki Ram deceased and husband of the defendant was not competent to enter into agreement with the plaintiff? OPD 9. Relief. ” After hearing learned counsel for the appellant, I am of R.S.A.No.2836 of 2009 (O&M) 5 the opinion that the present appeal deserves to be dismissed. Plaintiff Charat Singh had filed a suit for specific performance of agreement to sell dated 30.5.1997. In order to prove due execution of the agreement to sell, plaintiff examined Bal Krishan Gupta PW-1, scribe of the agreement to sell. PW-2 Vasu Ram appeared in the witness box and deposed in support of the plaintiff. He had stated that the plaintiff, who was suffering from a chronic disease, was unable to move. PW-3 Bhoop Singh, one of the attesting witnesses of the agreement, proved the due execution of the agreement to sell. PW-4 Devi Lal proved the endorsement on the affidavit Ex.P-2 to substantiate the plea of the plaintiff that he was always ready and willing to perform his part of the contract. Similarly, PW-5 Vijay Singh also deposed to the effect that the plaintiff was always ready and willing to perform his part of the contract. The defendant, on the other hand, denied the case of the plaintiff. The case of the defendant is that her husband had suffered a decree dated 6.6.1995 in her favour and hence, had no right to enter into any agreement to sell the suit property to the plaintiff. The parties entered into an agreement to sell Ex.P-1 on 30.5.1997 and agreed that the sale deed would be executed on or before 28.11.1997. Vide Ex.P-2, the date for execution of the sale deed was extended to 29.5.1998. However, on the said date, Neki Ram failed to appear before the Sub Registrar for execution of the sale deed. Neki Ram had also received Rs.57,500/- as earnest R.S.A.No.2836 of 2009 (O&M) 6 money at the time of execution of the sale deed, although he had already suffered a decree in favour of his wife much prior to the execution of the agreement to sell. The decree dated 6.6.1995 in favour of the defendant was not mentioned in the revenue record. In these circumstances, the Courts below rightly observed that Neki Ram had played a fraud upon the plaintiff by executing the agreement to sell in favour of the plaintiff after receiving the earnest money. Hence, the Courts below had rightly held that the suit of the plaintiff for recovery of the earnest money along with interest was liable to be decreed. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 03, 2009 anita