Regular Second Appeal No. 1195 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1195 of 2010 Date of decision : December 07, 2010 Amar Kaur and others ....Appellants versus Lashu Ram and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sarju Puri, Advocate, for the appellants L.N. Mittal, J. (Oral) CM No. 3589.C of 2010 Although reasons stated in the application for condonation of delay of 129 days in refiling the appeal are not good and sufficient, yet adopting liberal approach the application is allowed and delay of 129 days in refiling the appeal is condoned. CM No. 3590.C of 2010 Allowed as prayed for. RSA No. 1195 of 2010 This is second appeal by defendants no. 1 and 3 after the defendants i.e. appellants and proforma respondents no. 2 and 3 remained unsuccessful in both the courts below. Regular Second Appeal No. 1195 of 2010 -2- Suit was filed by respondent no. 1 – plaintiff Lashu Ram against appellants and proforma respondents no. 2 and 3. Defendant- appellant no. 1 Amar Kaur is widowed mother of the other three defendants. Plaintiff's case is that defendant no. 1 for herself as well as being attorney of her three sons defendants no. 2 to 4 agreed to sell suit land measuring 15 kanals 9½ marlas to the plaintiff for ` 6 lacs and received ` one lac as earnest money and executed agreement to sell dated 18.4.2000. Sale deed was to be executed upto 20.4.2001. However, defendants wanted to sell suit land at higher rate in violation of the agreement and the plaintiff had to file suit for permanent injunction. After date for execution of the sale deed expired, the plaintiff withdrew the suit for permanent injunction and filed the instant suit for possession of the suit land by specific performance of the agreement to sell. Plaintiff always remained ready and willing to perform his part of the contract but the defendants refused to execute the sale deed in terms of the agreement, necessitating filing the suit. Defendants denied plaint allegations and pleaded fraud and misrepresentation. It was alleged that plaintiff and some other persons approached defendant no. 1 for donating her 11½ marlas plot (not subject matter of the suit) to temple of Baba Balak Nath and for the same stone depicting the name of Piara Lal husband of defendant no. 1 and father of defendants no. 2 to 4 would be installed in the temple. Defendant no. 1 agreed to the same. Consequently for execution of sale deed of the said plot in favour of the temple, defendant no. 1 was brought to the office of Sub Registrar on 6.4.2000 and sale deed of the plot was got executed. However, it turned out later that the sale deed was not in favour of temple Regular Second Appeal No. 1195 of 2010 -3- but in favour of plaintiff's sons Ram Parkash and Sadhu Ram. On the same day, plaintiff obtained signatures and thumb impressions of defendant no. 1 on the impugned agreement to sell which is forged and fabricated document. No consideration was paid to defendant no. 1 nor she agreed to sell the suit land. Defendant no. 1 rather gave ` 10,000/- to the plaintiff for construction of temple. Sale consideration in the impugned agreement is also much below the market price. Various other pleas were also raised. Learned Civil Judge (Junior Division), Jalandhar vide judgment and decree dated 25.7.2006 decreed the plaintiff's suit. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated 5.3.2009. Feeling aggrieved, defendants no. 1 and 3 only have filed the instant second appeal impleading defendants no. 2 and 4 as proforma respondents no. 2 and 3. I have heard learned counsel for the appellants and perused the case file. Defendant-appellant no. 1 alleged that she is illiterate Non Resident Indian lady. However, she not only thumb marked the agreement but also signed it in English language and therefore, it is manifest that she is not illiterate lady. The plaintiff himself appeared in the witness box and also examined both marginal witnesses of the agreement and also scribe of the agreement. All of them have stated according to plaintiff's version that defendant no. 1 voluntarily executed agreement after understanding and admitting the contents thereof and after receiving ` one lac as earnest money. Their averments stand almost unrebutted because defendant no. 1 who was the material witness to depose in favour of the version of the Regular Second Appeal No. 1195 of 2010 -4- defendants and to rebut the plaintiff's evidence has not stepped into witness box. On the other hand, Gurmail Singh attorney of defendants appeared as DW1. However, Gurmail Singh could not have any personal knowledge about the transaction in question. Consequently, statement of Gurmail Singh DW1 has no probative value to prove the version of the defendants. On the contrary, evidence of plaintiff is very cogent and reliable. In addition to the testimony of the plaintiff himself, scribe of the agreement and both marginal witnesses of the impugned agreement have deposed in favour of the plaintiff. Thus, plaintiff's case is fully proved. Both the courts below have appreciated the evidence and come to concurrent finding. The said finding is fully justified and is supported by cogent reasons and therefore, does not call for interference in second appeal being not perverse or illegal in any manner. The said finding also does not raise any question of law much less substantial question of law. In addition to the aforesaid, it has to be noticed with significance that according to the defendants' version plot measuring 11½ marlas was to be donated by defendant no. 1 to the temple and at the same time it is also averred that sale deed of the said plot was to be executed in favour of the temple. This is self contradictory version of the defendants which cannot be reconciled. If the plot was to be donated then gift deed and not sale deed has to be executed in favour of the temple but admittedly defendant no. 1 executed sale deed of the plot. Although according to defendants' version the sale deed was by fraud obtained in favour of plaintiff's sons instead of being in favour of the temple. However, the fact remains that defendant no. 1 knowingly executed sale deed and not gift deed Regular Second Appeal No. 1195 of 2010 -5- of the plot and it falsifies version of the defendant that defendant no. 1 was donating plot to the temple. There is also another significant fact of the matter. Counsel for the appellants admits that said sale deed dated 6.4.2000 regarding the plot in favour of plaintiff's sons has not been challenged by the defendants. It would also depict that there was no alleged fraud in execution of the said sale deed or in execution of the impugned agreement. If the said sale deed had been result of fraud, defendant would have challenged the same. Learned counsel for the appellants is also not aware as to when stamp paper for the impugned agreement was purchased. Sale deed of the plot is dated 6.4.2000 whereas impugned agreement is dated 18.4.2000. Defendants' version is that her thumb impressions and signatures were also obtained on impugned agreement at the time of execution of the sale deed. However, defendants could depict that stamp papers for the impugned agreement had been purchased on or before 6.4.2000 which has not been so depicted. Moreover, defendant no. 1 also thumb marked/signed entry in the register of scribe relating to the agreement dated 18.4.2000. It further strengthens the case of the plaintiff. From the aforesaid discussion, it is manifest that finding of the courts below in favour of the plaintiff regarding valid execution of the impugned agreement and receipt of ` 1 lac as earnest money from the plaintiff has to be upheld. Learned counsel for the appellants contended that no issue was framed that plaintiff always remained ready and willing to perform his part of the contract and therefore, case should be remanded to the trial court for Regular Second Appeal No. 1195 of 2010 -6- framing and adjudication of the said issue. Reliance in support of this contention has been placed on judgment of Karnataka High Court in Channayya & Anr. Versus Annapurna, 2006(2) Civil Court Cases 621 and judgment of Hon'ble Supreme Court in Revappa Gurusiddappa versus Thakubai Madhavarao Patil, 1997(1) RCR (Civil) 567. The contention is completely devoid of merit. Issue no. 1 as framed in the suit is reproduced hereinunder:- “1. Whether the plaintiff is entitled for possession of property mentioned in the head note of the plaint by way of specific performance of agreement to sell dated 18.4.02? OPP” This issue is of very wide aptitude and fully covers the scope of the issue regarding readiness and willingness of the plaintiff to perform his part of the contract. It may be added that even before expiry of date stipulated in the agreement for execution of the sale deed, plaintiff had to file suit for permanent injunction when the defendants were trying to alienate the suit land to somebody else. This circumstance would depict readiness and willingness of the plaintiff to perform his part of the contract. In addition to it date for execution of the sale deed as stipulated in the impugned agreement was 20.4.2001 and the instant suit for specific performance of the agreement was instituted on 24.4.2001 i.e. just after four days. It would also depict that the plaintiff always ready and willing to perform his part of the contract. Consequently, aforesaid contention raised by learned counsel for the appellants has no merit and is, therefore, repelled. Learned counsel for the appellants relying on judgment of Hon'ble Supreme Court in A.C.Arulappan versus Smt. Ahalya Naik, 2001 (4) RCR (Civil) 109 contended that relief of specific performance of Regular Second Appeal No. 1195 of 2010 -7- agreement to sell is discretionary relief and it is not necessary to grant said relief merely because it is lawful to grant the same. It was contended that specific performance of the agreement would cause undue hardship to the defendants and therefore, alternative relief of recovery of money which has also been claimed by the plaintiff may be granted. The contention is completely untenable. It is well settled __________ that when agreement to sell is proved, relief of specific performance of the agreement has to be granted. The said relief can be declined only if there is some reason for doing the same. In the instant case, however, except that the dishonesty of the defendants, there is nothing on record to deny the relief of specific performance of the agreement to the plaintiff. There is no lapse on his part in any way. Moreover, the defendants have not even pleaded that specific performance of the agreement would cause any hardship much less undue hardship to the defendants nor there is any material on record to substantiate the same. Learned counsel for the appellants relied on judgment of Hon'ble Supreme Court in Kanshi Ram versus Om Prakash Jawal & Ors., 1996 (1) Apex Court Journal 402 (SC). In that case sale agreement was for consideration of ` 16,000/- out of which ` 2500/- was paid as earnest money. Hon'ble Apex Court directed the vendor defendant to pay ` 10 lacs to the plaintiff instead of granting the relief of specific performance of the agreement. Thus, in that case 400 times of the earnest money was granted as compensation. In the instant case, obviously learned counsel for the appellants concedes that defendants are not ready to pay compensation to the plaintiff in the same ratio or proportion. Consequently, this judgment also does not help the appellants in any manner. Regular Second Appeal No. 1195 of 2010 -8- For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) December 07, 2010 Judge 'dalbir'