Regular Second Appeal No. 1909 OF 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1909 of 2009. (O&M) Date of Decision: 27.5.2009 *** Faquir Chand .. Appellant VS. Sinder Singh .. Respondent. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Sanjeev Kaushik, Advocate. for the appellant. *** ARVIND KUMAR, J. The plaintiff has come up in this regular second appeal and has laid challenge to the judgments and decrees passed by the Courts below to the extent he has been refused the relief of specific performance of agreement to sell dated 22.1.2003 and has been granted alternative relief of money decree to the tune of Rs.1 lac along with interest @ 8% per annum from the date of execution of the agreement till realization of the decretal amount. Having heard the learned counsel for the appellant, this Court is of the considered opinion that no question of law warranting admission of instant appeal would arise for consideration. It emerges out from the records that both the Courts below on the testimony of scribe, marginal witness, coupled with that of plaintiff himself, have concurrently held the due execution of the agreement to sell in question. However, both the Courts below declined the relief of specific performance to the plaintiff though on different footings. The trial Court took an adverse inference against the plaintiff on account of non-execution of his affidavit showing his presence Regular Second Appeal No. 1909 OF 2009 2 before the office of the Sub Registrar on the stipulated date of execution of sale deed i.e. 15.6.2003 and concluded that the plaintiff has failed to prove his readiness and willingness to get the sale deed executed. Although the said finding was not endorsed by the learned first appellate Court below, but what impressed it, was the non-identification of the property. In the impugned agreement, the land was described as 1/2 killa whereas the land on which the plaintiff staked his claim, as mentioned in the suit, was found 8 kanals more than the land mentioned in the agreement. There was also no khasra number of the land mentioned in the agreement while the plaintiff mentioned the same in the plaint. Thus, finding that the suit property, which is the subject matter of the agreement, was not identifiable, it was held that no relief of specific performance could be granted to the plaintiff and hence, it was declined to him, while allowing the recovery of earnest money paid by him along with interest. It cannot be said that the findings returned by the Courts below are either illegal, perverse or based on no evidence. The appeal is wholly without merit and the same is accordingly dismissed. (ARVIND KUMAR) JUDGE May 27,2009 Jiten