Regular Second Appeal No. 2740 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2740 of 2008 (O&M) Date of Order: 10.07.2009 Ajit Kaur ....Appellant Versus Ram Pal ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. R.S.Bajaj, Advocate for the appellant. Mr. Vijay Lath, Advocate and Mr. Naveen Sharma, Advocate for the respondents. RAJIVE BHALLA, J (Oral). The appellant challenges the judgments and decrees dated 13.06.2005 and 28.5.2008, passed by the Additional Civil Judge (Senior Division), Jalandhar and the Addl. District Judge, Jalandhar, decreeing the suit filed by the respondent and dismissing her appeal. The plaintiff-respondent filed a suit praying for the grant of a declaration that the agreement dated 12.08.1997, executed by the defendant-appellant for sale of 11 marlas of land consisting of one room and verandah out of khasra no.1238/3, is null and void. In addition, it was prayed that a mandatory injunction be issued directing the appellant to return the earnest money of Rs.70,000/- along with interest at the rate of 24% per annum. The case in brief is that the respondent pleaded that after his retirement in March, 1995, he came to Jalandhar and started living with his father. As he was searching for a plot of land, Harvinder Singh son of the appellant who was known to his brother Satpal, suggested that he would pursuade his mother to sell her plot in Beant Nagar. A bargain was struck and an agreement to sell was executed on 12.08.1997 for purchase of 11 Regular Second Appeal No. 2740 of 2008 (O&M) -2- marlas of land belonging to Ajit Kaur for Rs2,45,000/-. Rs. 70,000/- was paid as earnest money. The sale deed was to be executed on 31.10.1997. The respondent was assured that there was a path on the western side of the plot, but when he visited the spot he was shocked to find out that the appellant had encroached upon railway property to the extent of 13' and 2” on the western side and there was no path on the western side. In view of this misrepresentation, the respondent served a registered notice dated 27.09.1997, demanding the sum of Rs.1,40,000/-, including the earnest money. `In response to the averments in the plaint, the appellant denied that there is no public path and asserted that a 10 feet wide passage existed on the western side of her plot. On the basis of the pleadings the trial court framed the following issues:- 1. Whether the plaintiff is entitled to a decree for declaration as prayed for?OPP 2. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for?OPP 3. Whether the suit is not maintainable?OPD 4. Whether the agreement to sell dated 12.08.1997 is cancelled and advance forfeited due to the fault on the part of the plaintiff?OPD 5. Relief. The additional issue was framed on 19.12.1998. 2-A Whether the plaintiff is entitled to a decree for recovery of Rs.70,000/- alongwith interest @ 24% per annum as prayed for?OPP After considering the pleadings, the evidence adduced, and the Regular Second Appeal No. 2740 of 2008 (O&M) -3- arguments addressed, the trial court held that though the respondent has failed to prove any encroachment by the appellant, he has established the absence of any public passage on the western side of the plot and that the land on the western side is owned by the railways. It was, therefore, held that the respondent was within his rights to claim refund of the earnest money. Consequently the suit was decreed for refund of Rs.70,000/- with interest @ 6% per annum from the date of the institution of the suit till its realization. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. The Additional District Judge, Jalandhar, affirmed the findings recorded by the trial court and dismissed the appeal. Counsel for the appellant submits that there is a 10 feet wide passage between the appellant's property and railway land. This passage is used by residents of adjoining properties. The respondent has failed to produce any evidence that the property on the western side of the plot belongs to the railway department and though the appellant established the existence of this passage by clear and cogent evidence, the courts below committed an error in holding to the contrary and decreeing the suit. It is further argued that the courts below have committed an error in ignoring the original sale deed 03.03.1982, Ex.DW2/A, which clearly shows the existence of a 10 feet wide passage on the western side. In view of this evidence the allegations of misrepresentation and fraud in execution of the agreement to sell are incorrect. It is submitted that as the respondent wanted to avoid execution of the sale deed, he concocted this false story as it was for the respondent to examine the property before executing the agreement. It is prayed that in the absence of any evidence of misrepresentation or fraud the impugned judgments and decrees should be set aside. Counsel for the respondent, on the other hand, submits that Regular Second Appeal No. 2740 of 2008 (O&M) -4- findings of fact recorded by the courts below do not suffer from any error and as no substantial question of law arises for consideration, the appeal be dismissed. It is submitted that as the courts below have returned concurrent findings that there is no passage on the western side, the respondent was justified in filing a suit for recovery of earnest money and the courts below right in decreeing the suit. Counsel for the appellant has framed eleven questions of law stated to be substantial questions of law. A perusal of these so called substantial questions of law discloses that they are mere issues of fact, as they relate to the evidentiary value of the material on record. The argument that the respondent has failed to establish any misrepresentation or fraud, cannot be accepted. The respondent agreed to purchase property with a 10 feet wide passage on its Western side. The alleged public passage, as held by the courts below, is railway property and, therefore, misrepresentation is writ large and was sufficient to entitle the respondent to pray for refund of his earnest money. The argument that the courts below have ignored the sale deed Ex. DW2/A while holding that the passage shown in this sale deed, belongs to the railways, cannot be accepted. The property belongs to the railways, extends upto the disputed plot and by no stretch of imagination can be said to be a public passage. PW2 Jagdish Kumar proved the site plan Ex.PW2/A, obtained from the record maintained by the railway department. The site plan shows that the railways are owner to the extent of 56 feet of land on the Eastern side of railway land. As per the site plan, Ex.DW1/A, produced by the appellant the land between the railway line and the property in question is 55 feet. It is, therefore, apparent that no public passage exists between the property in question as the land to the western side of the plot belongs to the railways department. In view of what has been stated hereinabove, as no question of Regular Second Appeal No. 2740 of 2008 (O&M) -5- law much less a substantial questions of law arises for consideration, the appeal is dismissed July 10, 2009 (RAJIVE BHALLA) nt JUDGE