R.S.A. No. 619 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 619 of 2008 Date of decision: 08.01.2010 Kultar Singh ....Appellant versus Col. Gobind Narain Rampal and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Santosh Sharma, Advocate, and Mr. Akshay Bhan, Advocate, for the appellant. Mr. O.P. Hoshiarpuri, Advocate, for the respondents. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 3.1.2008 passed by the learned Courts below, vide which the suit filed by the plaintiff/appellant for specific performance of agreement to sell dated 5.8.1993 (Ex. PW6/1), stands dismissed. The case set up by the plaintiff was, that the defendants had agreed to sell land measuring 7000 sq. yards @ Rs.100/- (Rupees one hundred only) per sq. yard i.e. for a sum of Rs.7,00,000/- (Rupees seven lac only). The plaintiff paid a sum of Rs.50,000/- (Rupees fifty thousand only) as earnest money, and the date of execution of the sale deed was fixed as 5.2.1994. The case of the plaintiff further was that the respondents approached the plaintiff for additional amount. Accordingly a sum of Rs.2,25,000/- (Rupees two lac twenty five thousand only) was R.S.A. No. 619 of 2008 -2- paid against receipt PW6/2. On receipt of Rs.2,25,000/- (Rupees two lac twenty five thousand only), the defendant-seller executed a power of attorney in favour of Sewa Singh father of the plaintiff/appellant, who acting on behalf of the defendant executed two sale deeds qua land measuring 2420 sq. yards. The case of the plaintiff further was, that as 5.2.1994 being Saturday was holiday, he went to the office of the Sub Registrar for getting the sale deed executed and got himself marked present. The plaintiff had also sworn an affidavit Ex. PW7/2, to show that he had come present, to get the conveyance deed executed, and that he had the sufficient funds to execute the sale deed. The suit was contested on the ground that plaintiff was not ready and willing to perform his part of contract, and further by executing two sale deeds in favour of his wife and mother, the plaintiff had lost his right to execute the agreement as the terms of agreement stood modified, and the plaintiff got satisfied with the sale of property measuring 2420 sq. yards, thus, the agreement was no longer enforceable, as no fresh contract was executed as per changed terms. Learned trial Court, on the pleadings of the parties, framed following issues: - “1. Whether the plaintiff is entitled to the possession by way of specific performance of the agreement to sell dated 5.8.1993? OPP 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP. 3. Whether the plaintiff was ready and willing to perform his part of the agreement and as such, he is entitled to the relief of injunction? OPP. 4. Whether the property agreed to be sold is an R.S.A. No. 619 of 2008 -3- ancestral joint Hindu family property in the hands of the defendants, if so, its effect? OPD. 4-A. Whether the suit of the plaintiff for specific performance regarding khasra No. 50/10 min is barred by limitation? OPD. 5. Relief.” On appreciation of evidence, the learned Courts below have recorded a concurrent finding of fact that the plaintiff/appellant had failed to prove his readiness and willingness to perform his part of contract. It was, therefore, held that he was not entitled to decree for specific performance. It was also held by the learned Courts below, that by executing two sale deeds in favour of his wife and mother, through attorney of the defendant, the plaintiff/appellant had lost right to enforce the agreement as the term of contract stood modified, and in absence of new contract, the agreement could not be enforced. The learned counsel for the appellant contends, that the appeal raises the following substantial questions of law: - “1. Whether the parties can sell their un-partitioned land subject to partition? 2. Whether the presence of the appellant/plaintiff in the office of the Sub Registrar shows his readiness and willingness to get sale deed executed in his favour? 3. Whether the judgments and decrees dated 21.1.2005 and 3.1.2008 passed by the learned trial Court and lower appellate Court respectively have been passed on the basis of assumptions and presumptions and without appreciating the evidence produced by the present appellant/plaintiff in a right and positive manner?” R.S.A. No. 619 of 2008 -4- In support of the substantial questions of law, the learned counsel for the appellant contends, that the learned Courts below wrongly came to the conclusion that the agreement was no longer enforceable, as it was always open to the seller to sell unpartitioned portion of the land subject to partition, and the appellant, therefore, was entitled to enforce the specific performance qua the land which was left with the defendant. There can be no dispute with the question of law, that a party can sell unpartitioned land subject to partition, however, this question of law does not arise for consideration in the present case. The question before the learned Courts below, was not as to whether the unpartitioned land could be sold or not, but as to whether a contract which stood modified could still be performed and whether plaintiff/appellant was able to prove his willingness to perform his part of the contract. The question of law as raised, therefore, does not arise for consideration. The contention of the learned counsel for the appellant on substantial question No.2 was that the findings recorded by the learned Courts below cannot be sustained, as the fact, that the plaintiff/appellant had proved his presence before the Sub Registrar on the date fixed for execution of the conveyance deed, is in itself sufficient to show his readiness and willingness to perform his part of contract. In support of this contention, the learned counsel for the appellant placed reliance on the judgments of this Court in Iqbal Singh and another Vs. Gurdev Kumar and another, 2004(2) Civil Court Cases 415, Raj Pal Singh Vs. Baldev Singh and others, 2005(3) Civil Court Cases 213 and the judgment of the Hon'ble Supreme Court in Sukhbir Singh and others R.S.A. No. 619 of 2008 -5- Vs. Brij Pal Singh and others, 1996(2) Apex Court Journal 3, wherein this Court as well as the Hon'ble Supreme Court have been pleased to lay down, that the presence in the office of the Sub Registrar to get the sale deed executed in itself is sufficient proof that the party had sufficient fund to execute the conveyance deed, and further to establish the capacity to pay consideration, as it is necessary for the party to carry consideration amount with him. There can be no dispute with the proposition referred to above, but at the same time, if a positive evidence is brought to the contrary, the presumption is rebuttable, as is the present case. The plaintiff/appellant himself chose to place on record the affidavit/application Ex.PW7/2, wherein he stated the he had deposited the money in the name of his wife and mother, towards sale consideration and that had some of money to meet the typing and registration charges etc. Further, in support of his capacity to pay, plaintiff placed on record Ex.P2 certificate issued by the bank showing that he had the requisite amount in the bank at relevant time. The reading of the application and affidavit proved together would clearly show that the plaintiff/appellant did not carry the money with him, as he neither carried the draft or cash, and furthermore as per his own showing the amount which was with him was deposited in the accounts of his wife and mother. Therefore, the plaintiff did not have funds with him to execute the sale deed, as admittedly the mother and his wife were not present before the Sub Registrar. As regards the payment from his own account was concerned, R.S.A. No. 619 of 2008 -6- the plaintiff/appellant chose to place on record the certificate Ex.P2, which was regarding a current account of his running business. The current account for business had to be used only for the purpose of business, and it is not permissible to use it for any other purpose i.e. for personal use for purchase of property. The findings recorded by the learned appellate Court in this regard read as under: - “11. The brief description of the witnesses examined by the respondent is that DW1 being relative of the respondent has supported his case. He has stated that the land in suit is ancestral. The land is in possession of the branch of Pritam Kumar, Kishan Kumar is settled at Faridabad for the last 20 years. DW2 is ex- sarpanch of village Sultanwind. He has also made the similar statement as of DW1. DW3 is the respondent himself. He has made the statement in brief. He has produced the certified copy of khatuni Ex.D1, copies of jamabandi Ex.D2 to D4, copy of Naksha Haqdarwar Ex.D5, copy of Jamabandis Ex.D6 to D12, Certified copy of the sale deeds Ex.D13 to D15. The respondent has tendered into evidence certified copies of jamabandi Ex.D13 to D15, their translation Ex.D13/A to Ex.D15/A and certified copy of Mutation Ex.D16 and its translation Ex.D16/A, in rebuttal to the additional evidence. The counsel for the defendant has also tendered into evidence. Copy of the mutation no. 579/Ex.D17, Missal Haqiat Ex.D18 and copy of predegree table Ex.D19 and Ex.D20, in additional evidence. 12. Taking issue no.3 first, being the main issue, PW1 has stated that he has brought the record of the accounts of M/s Batra Plastic, Amritsar. It is proprietorship concern. Kultar Singh is the proprietor. R.S.A. No. 619 of 2008 -7- The copy of the specimen signature on account opening form is Ex.P1. M/s Batra Plastic was enjoining credit facility with limit of Rs.1,75,000/-. The total business capital requirement was Rs.3,20,000/-. The credit balance of the said concerned on 7.2.1994 was Rs.3,28,250/-. This was beside credit facility of Rs.1,75,000/- and he could withdraw up to Rs.5,02,257/-. The certificate is Ex.P2. In the cross examination, he has stated that the credit limit was got sanctioned by the parties to augment its business capital. The drawing power under cash credit limit is determined on the strength of hypothecated goods in such like amount. The customer furnished the list of articles of hypothecated stock. PW2 has stated that application mark-x of Kultar Singh was received in the office of Sub Registrar, Amritsar. The order of Sub- Registrar is Ex.PW2/1. PW5 has stated that plaintiff was ready for the execution of the sale deed of the remaining land. He asked the defendant at his house for the execution of the sale deed. He also gave him telephone call. The plaintiff ready with the money. PW6 has stated that plaintiff remained ready and willing to perform his part of the contract. He was possessed of sufficient amount. He alongwith Kultar Singh, Sewa Singh and his two partners approached the defendant four/five times before 5.2.1994 for the purpose of competition of the sale deed, but he kept on waiting for his son and represented that he will execute the sale deed after the arrival of son. On 5.2.1994, he flatly refused to get the sale deed executed. The sale consideration and expenses of sale were tendered to the vendor. In the cross-examination, he has stated that they met the son of Krishan Kumar who is in army. They had been meeting him from 2nd to 5th of February, R.S.A. No. 619 of 2008 -8- 1994, everyday, by visiting his house at Sultanwind, Amritsar. Balance price was offered fifteen days prior thereto. This offer was made on telephone and not physically. The vendee was ready with the payment of 5500 sq. yards, but he cannot tell the amount and source thereof. PW7 has stated that he remained ready and willing to get the sale deed executed for the remaining land. He had been approaching the defendant many times for the execution of the sale deed on payment of remaining sale consideration and other expenses. Prior to 5.2.1994, the defendant had been dilly dallying the matter and finally refused sale deed. On 5.2.1994 it was Saturday and public holiday on Executive side. On the following working days i.e. 7.2.1994, he moved an application mark-x before the Sub-Registrar for getting himself marked present. The application Ex.PW7/1, was returned to him after endorsement, his affidavit is Ex.PW7/2. He is still ready and willing to execute sale deed in his favour. He is ready to pay the balance price etc by way of credit facility. He was having cash of Rs.1,90,000/- in the month of February, 1994. He had also withdrawn Rs.50,000/- from the account of his father from Bank of Baroda on 10.1.1994. He has brought passbook and account books with him. He cannot tell his stock in February, but he can tell about the same as in the month of March, which stood at Rs.2,99,000/-. In February, it was around Rs.2,25,000/-. The amount was also tendered to the defendant by way of blank cheque and cash. On the other hand the defendant Krishan Kumar as DW3 has stated that he is living at Faridabad for the last about 10/11 years. The plaintiff never approached him at Faridabad for payment of balance price and execution of the sale deed. The R.S.A. No. 619 of 2008 -9- plaintiff was not ready and willing to get the sale deed executed. He was not possessed of sufficient funds.” No fault can be found with the concurrent finding of fact recorded by the learned Courts below, holding that the plaintiff/appellant failed to prove his willingness to perform his part of contract. On the third substantial question of law, the learned counsel for the appellant contended, that the judgment and decree passed by the learned Courts below is based on presumptions, which are contrary to the positive evidence brought on record. This contention again is totally misconceived. The learned Courts below have appreciated the evidence oral as well as documentary, to record a finding that there was modification of agreement by execution of two sale deeds, which rendered the agreement unenforceable. The evidence on record has been rightly appreciated to record a positive finding, that the plaintiff/appellant failed to show his willingness to perform his part of the contract. The concurrent findings of fact are not open to challenge in the regular second appeal. The substantial questions of law raised are answered against the appellant. Finding no merit, the appeal is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge January 08, 2010 R.S.