IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1078 of 2002 Date of Decision : July 28, 2008 Narinder Singh ......Appellant Versus Chanan Singh (deceased) through his L.Rs and another ......Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Gaurav Chopra, Advocate for the appellant. Mr. J.S. Thind, Advocate for respondent No. 2. T.P.S. MANN, J. The plaintiff-appellant filed a suit for possession by way of specific performance of agreement to sell dated 21.10.1989 or in the alternative for recovery of Rs. 15,000/- with interest and for permanent injunction so as to restrain the defendants-respondents from alienating the suit property. Vide judgment dated 8.12.1994, learned trial Court decreed the suit with costs for alternative relief of recovery of Rs. 15,000/- with interest at the rate of 12% per annum from 21.10.1989 till the date of the actual payment by defendant No.1. However, the suit was dismissed against defendant No.2. The plaintiff challenged the aforementioned decision by filing an appeal, which was dismissed by the learned first appellate Court vide judg- ment dated 6.9.2001. He is now before this Court by way of second appeal under Section 100 of the Code of Civil Procedure. Regular Second Appeal No. 1078 of 2002 The case of the plaintiff, as set up by him in the plaint, was that on 21.10.1989, Chanan Singh-defendant agreed to sell his land measuring 10 Kanals 15 Marlas in his favour. Out of the total sale consideration of Rs. 15,000/-, an amount of Rs. 10,000/- was paid as earnest money to Chanan Singh-defendant. The possession of the land was handed over to the plaintiff. The sale transaction was to be com- pleted by 28.9.1992. It was also agreed between the parties that in case the plaintiff failed to perform his part of the agreement, his ear- nest money would be forfeited and in case Chanan Singh-defendant failed to execute the sale deed, the plaintiff would be entitled to re- cover twice the amount paid as earnest money. Further, case of the plaintiff was that he was always ready and willing to perform his part of the agreement. On 25.8.1992, he approached Chanan Singh-defen- dant with balance amount and registration charges, besides a request to him to perform his part of the agreement but Chanan Singh-defen- dant failed to do the same. The plaintiff learnt that Chanan Singh-de- fendant had agreed to sell the suit land to Mohinder Kaur-defendant and that too without consideration. Both the defendants, in collusion with the revenue authorities, got entries in the khasra-girdawaris in the name of Mohinder Kaur-defendant on the basis of a fictitious sale deed in her favour by Chanan Singh-defendant. On these lines, suit for specific performance of agreement to sell or in the alternative for re- covery of Rs. 15,000/- along with interest was filed. In his written statement Chanan Singh-defendant admitted the execution of agreement to sell and receipt of Rs. 10,000/- by him as earnest money but pleaded that it was the plaintiff, who failed to -2- Regular Second Appeal No. 1078 of 2002 perform his part of the agreement on the stipulated date, i.e. 28.9.1992. The plaintiff did not turn up to perform his part of the agreement. It was under these circumstances that he sold the suit land in favour of Mohinder Kaur-defendant for consideration and also delivered the possession. Mohinder Kaur-defendant filed her separate written state- ment, wherein she took preliminary objections that the plaintiff had no cause of action; the plaintiff was estopped by his own act and con- duct from filing the suit; and that the suit had been filed by the plain- tiff in collusion with Chanan Singh-defendant. She claimed herself to be a bonafide purchaser of the suit land through registered sale deed for Rs. 54,000/-. From the pleadings of the parties, learned trial Court framed the following issues :- 1. Whether the defendant No. 1 agreed to sell the suit land to the plaintiff vide agreement of sale dated 21.10.1989 for a sale consid- eration of Rs. 15,000/- and received Rs. 10,000/- as advance sale consideration ? If so, its effect ? OPP 2. Whether the plaintiff was or has been ready and willing to perform his part of the con- tract ? OPD 3. Whether the plaintiff is entitled to specific performance of the agreement of sale dated 21.10.1989 ? OPP. -3- Regular Second Appeal No. 1078 of 2002 4. Whether the plaintiff is entitled to recover Rs. 15,000/- as damages along with interest at the rate of 12% in the alternative ? If so, its effect ? OPP 5. Whether the plaintiff has no cause of ac- tion? OPD 6. Whether the plaintiff is estopped by his own act and conduct from filling the present suit? OPD. 7. Whether the plaintiff has filed the present suit in collusion with defendant No.1 ? If so, its effect ? OPD. 8. Whether defendant No. 2 is a bonafide pur- chaser for consideration and without notice ? If so, its effect? OPD 9. Relief. After hearing learned counsel for the parties and going through the oral as well as documentary evidence available on the file, learned trial Court held that it was the plaintiff, who was not ready and willing to perform his part of the agreement, otherwise there was no reason for Chanan Singh-defendant to sell the suit land with Mohin- der Kaur-defendant. Therefore, the plaintiff was not entitled to the relief of specific performance of agreement to sell and he was held en- titled only to the alternative relief for recovery of Rs. 15,000/- along with interest. The findings arrived at by the learned trial Court were upheld in appeal by the learned first appellate Court. -4- Regular Second Appeal No. 1078 of 2002 Though, the plaintiff claimed that Chanan Singh-defendant entered into an agreement to sell his land measuring 10 Kanals 15 Mar- las to him for a total sale consideration of Rs. 15,000/- and the posses- sion of the land was also handed over to him yet he filed the suit for possession by way of specific performance of the agreement to sell. In other words, at the time of the filing of the suit he admitted that he was not in possession of the suit property. This plea of his is directly in conflict with his stand that at the time of his agreeing to purchase the suit land from Chanan Singh-defendant on 21.10.1989, the possession of the suit property was handed over to him. The reason as to why the plaintiff claimed in the plaint that the possession of the land had been delivered to him by Chanan Singh-defendant at the time of execution of agreement to sell dated 21.10.1989 was apparently for the sole purpose of showing that Mohin- der Kaur-defendant was well aware of the aforementioned agreement to sell when she agreed to purchase the suit land from Chanan Singh- defendant-defendant on 29.9.1989 for a consideration of Rs. 54,000/-. The plaintiff did not plead anywhere as to how the possession of the land which he claimed to have taken was returned to Chanan Singh-de- fendant or taken thereafter by Mohinder Kaur-defendant. Though Chanan Singh-defendant admitted that he had entered into an agreement to sell the suit land in favour of the plaintiff on 21.10.1989 and delivered the possession of the suit property as well, yet this stand appears to have been taken by him for -5- Regular Second Appeal No. 1078 of 2002 the reason that he was a close relative of the plaintiff. Chanan Singh- defendant did not admit the factum of relationship, although it was so asserted by Mohinder Kaur-defendant. The latter even took a specific plea in her written statement that the plaintiff had filed the suit in collusion with Chanan Singh-defendant. In view of the above, it stand proved that Mohinder Kaur- defendant was a bonafide purchaser for consideration and without no- tice of any other agreement to sell. Therefore, the plaintiff/appellant was only entitled to claim the alternative relief of recovery of Rs. 15,000/- along with interest which relief has been granted to him by the learned Courts below. The concurrent findings of facts arrived at by the learned lower Courts are duly supported by the oral and documentary evidence available on the file. These findings cannot be disturbed and, that too, in second appeal which is otherwise competent if some substan- tial question of law is involved. No question of law, much less sub- stantial question of law, is involved in the appeal. The same is, ac- cordingly, dismissed. ( T.P.S. MANN ) July 28, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO -6-