RSA No. 1898 of 2004 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1898 of 2004 Date of Decision: 6.8.2009 Balbir Singh ......Appellant Versus Smt. Shakuntala and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Arun Jain, Senior Advocate, with Shri Amit Jain, Advocate, for the appellant. Shri Kul Bhushan Sharma, Advocate, for the respondent. HEMANT GUPTA, J. (Oral). The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby in a suit for specific performance, the plaintiff was granted alternative relief of recovery of the amount of earnest money along with interest thereon. It is the case of the plaintiff that defendant No.1 on 21.7.1994 executed an agreement to sell of the land measuring 8 kanals for a total sale consideration of Rs. 1 lac. A sum of Rs.90,000/- was allegedly paid as earnest money at the time of entering into an agreement to sell and the balance sale consideration of Rs.10,000/- was to be paid on 15.7.1995 i.e., the date agreed for registration and execution of the sale deed. Since the defendant has not executed the sale deed on the date agreed, the plaintiff RSA No. 1898 of 2004 (2) filed the present suit for specific performance on 28.8.1995. The stand of defendant No.1 in the written statement was that in fact, defendant No.1 was not owner of the suit land as she has suffered a consent decree in favour of defendants No. 2 to 4 on 26.9.1987. It was denied that the defendant has ever agreed to sell the land on 21.7.1994 and that the plaintiff has entered into an agreement to sell without any consideration. In the said suit defendant Nos. 2 to 4 have filed a counter claim claiming a decree to the effect that they are the owners in possession on the basis of the revenue record. Both the Courts have recorded a concurrent finding of fact that the agreement dated 21.7.1994 was executed, but defendant No. 1 was not owner of the land in dispute on the date of execution of the agreement and therefore, the plaintiff is entitled to refund of the earnest money. Though the learned trial Court has granted interest @ 15% p.a. from the date of agreement till the realisation of the amount, but the learned first Appellate Court modified the said part of the decree and granted interest @ 12% p.a. The counter claim filed by defendant Nos. 2 to 4 was dismissed by the learned trial Court and no appeal was filed against the dismissal of the counter claim. Learned counsel for the appellant has argued that once the counter claim of defendants No. 2 to 4 was dismissed as regards ownership over the suit land, the plaintiff is entitled to decree of specific performance of the agreement to sell. However, I do not find any merit in the said argument. The learned trial Court dismissed the counter claim, but neither any issue was framed nor there is any discussion in the judgment of the learned trial Court. RSA No. 1898 of 2004 (3) The learned trial Court has recorded a finding that defendant No.1 was not owner of the land in dispute as she has already transferred the land in favour of defendants No. 2 to 4, meaning thereby that trial Court has recognised the ownership of defendant Nos. 2 to 4. The effect of dismissal of the counter claim is that the decree directing revenue record to be mutated in favour of the said defendant stands declined. Such part of the decree is inconsequential in so far as it relates to the right of the plaintiff to seek specific performance of the agreement to sell dated 21.7.1994. Both the Courts have examined the entire evidence to return a finding that defendant No.1 was not the owner of the suit land and, therefore, not competent to enter into an agreement to sell of any part of the land in favour of the plaintiff. Such a finding is a finding of fact based upon proper appreciation of evidence. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 6.8.2009 ds