R.S.A.No. 3688 of 2009(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3688 of 2009(O&M) Date of decision: 24.5.2011 Didar Singh ......Appellant Versus Nirmal Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Ashish Gupta, Advocate for Mr.Vikram Singh, Advocate, for the appellant **** SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 22.3.1990 The case of the plaintiff, in brief, was that defendant No.1 Bhag Singh was the owner of the suit land and had executed the agreement to sell in question in favour of the plaintiff qua the suit land. ` 20,000/- were paid towards earnest money at the time of execution of the agreement to sell by the plaintiff to defendant No.1 R.S.A.No. 3688 of 2009(O&M) 2 and the rate of suit land was fixed at ` 20,000/- per acre. The parties agreed that the sale deed would be executed on or before 10.5.1990. Defendant No.1, in order to avoid the performance of agreement to sell in question, had suffered a decree on 19.2.1990 in favour of his wife Gurmail Kaur, who, on the basis of the said decree, executed a gift deed in favour of her son on 14.5.1990. Defendants, in their written statement, denied the execution of the agreement to sell in question. It was averred that the judgment and decree dated 19.2.1990 were passed in favour of defendant No.2 after recording of the statement of the parties and the said decree and the gift deed were legal and valid. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for possession as owner by way of specific performance of agreement dated 22.3.1990 with regard to suit land? OPP. 2. Whether defendants executed agreement date 22.3.1990 for consideration ? OPP 3.Whether the suit is not maintainable in the present form ? OPD 4.Whether plaintiff has no locus standi to file the present suit ? OPD 5. Relief.” The trial Court decreed the suit of the plaintiff vide judgment and decree dated 27.2.1999. Aggrieved by the said judgment and decree, defendant No.3 preferred an appeal and the R.S.A.No. 3688 of 2009(O&M) 3 same was partly allowed vide judgment and decree dated 4.3.2009 passed by the Additional District Judge. It was held that since the plaintiff had been successful in proving the due execution of the agreement to sell in question, defendant No.2 was directed to refund the earnest money along with interest to the plaintiff. Hence, the present appeal by the plaintiff. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The plaintiff had filed a suit for specific performance of agreement to sell in question dated 22.3.1990. The Courts below have held that the plaintiff had been successful in proving the due execution of the agreement to sell in question. The question that requires consideration is as to whether the plaintiff was entitled to a decree of specific performance of agreement to sell in question or only the refund of the earnest money. Gurmail Kaur and another had filed a suit against Bhag Singh bearing No.60 of 14.2.1990. The said suit was decreed on 19.2.1990 on the basis of admission of the claim made by Bhag Singh. On the basis of the said decree, Gurmail Kaur became owner of the suit property and she further executed a gift deed in favour of her son on 14.5.1990. Thus, defendant No.1 had already suffered a decree in favour of his wife before execution of the agreement to sell in question. In these circumstances, the plaintiff was not entitled for a decree of specific performance of the agreement to sell in question R.S.A.No. 3688 of 2009(O&M) 4 but, of course, was entitled to get the refund of the earnest money. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE May 24, 2011 anita