R. S. A. No. 95 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 95 of 2009 Date of Decision : February 08, 2010 Gurmel Kaur .... Appellant Vs. Harjinderpal Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Raj Kumar Kakkar, Advocate for the appellant. Mr. C. M. Munjal, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Gurmel Kaur defendant has instituted the instant second appeal having remained unsuccessful in both the courts below. Harjinderpal Singh filed suit against defendant-appellant for possession of suit land by specific performance of agreement to sell dated 13.01.2003 or in the alternative, for recovery of Rs.3,50,000/-. The plaintiff's case is that the defendant, vide agreement dated 13.01.2003, agreed to sell 20 kanals land, out of 68 kanals 13 marlas land, to the plaintiff at the rate of Rs.1,40,000/- per acre and the plaintiff paid Rs.3,00,000/- as earnest money. The defendant failed to execute the sale deed as per agreement. The plaintiff, therefore, claimed relief of specific performance of the agreement. In the alternative, the plaintiff claimed R. S. A. No. 95 of 2009 2 recovery of Rs.3,00,000/- paid by him as earnest money and Rs.50,000/- as damages. The plaintiff also claimed interest. The defendant inter alia pleaded that she never entered into agreement in question with the plaintiff. Market rate of suit land is Rs.2,75,000/- per acre, and therefore, the defendant would not have agreed to sell the suit land at Rs.1,40,000/- per acre. The defendant had been purchasing cloth on credit from the plaintiff's shop and the plaintiff used to get her signatures on bahis and other papers and possibly the plaintiff got the signatures of defendant on the agreement at the time of purchasing of cloth by the defendant from the plaintiff. Learned Additional Civil Judge (Senior Division), Ferozepur, vide judgment and decree dated 29.08.2007, decreed the suit of the plaintiff for recovery of Rs.3,00,000/- (the amount of earnest money) along with interest thereon @ 12% per annum w.e.f. 13.01.2003 i.e. the date of agreement till filing of the suit and @ 6% per annum from the date of filing of suit till recovery. The trial court found that the defendant executed the impugned agreement Ex.P-2 in favour of the plaintiff after receiving Rs.3,00,000/- as earnest money and the agreement is not proved to be false and fabricated. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Ferozepur, vide judgment and decree dated 18.08.2008. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that it is improbable that against total sale consideration of Rs.3,50,000/-, the plaintiff paid Rs.3,00,000/- as earnest money. The contention cannot be accepted because there is no uniform pattern being followed in this matter. Sometimes, earnest money may be 5% of the total sale consideration, but sometimes, even entire sale consideration is paid at the time of the R. S. A. No. 95 of 2009 3 agreement. Payment of earnest money depends on the terms and conditions settled by both the parties. It is recited in the impugned agreement that earnest money of Rs.3,00,000/- has been paid. The same cannot be disbelieved on the hypothetical argument that the plaintiff would not have paid earnest money of Rs.3,00,000/- against total sale consideration of Rs.3,50,000/-. Learned counsel for the appellant next contended that the defendant was not in exclusive possession of any part of the joint land and it is not recited in the impugned agreement as to possession of land of which killa numbers, out of the total joint land, would be delivered to the plaintiff. This contention is wholly irrelevant for two reasons. Firstly, the suit has been decreed for recovery of earnest money with interest and not for specific performance of the agreement. Secondly, even if the suit was to be decreed for specific performance of the agreement, joint possession of the joint land could be delivered to the plaintiff, who could seek separate possession of 20 kanals of the joint land, by seeking partition. Learned counsel for the appellant next contended that the suit land was under mortgage and therefore, the plaintiff would not have agreed to purchase the same. Learned counsel for the respondent-plaintiff, however, contended that the defendant and her sons i.e. co-sharers in the joint land, had taken loan from Punjab Housing Federation and State Bank of India for the mortgage of entire joint land and not only of the share of defendant herself. In addition thereto, possibility that mortgage might have been redeemed, cannot be ruled out. Moreover, the plaintiff would have to take the suit land subject to mortgage, if the suit had been decreed for specific performance. However, now the suit has been decreed for recovery of earnest money only and so, the aforesaid contention also pales into insignificance. Learned counsel for the appellant next contended that village of the plaintiff is about 50 kilometers from the village, where the suit land is R. S. A. No. 95 of 2009 4 situated and therefore, the plaintiff would not have agreed to purchase the suit land in a distant village. This contention is also devoid of merit. Learned counsel for the appellant conceded that the appellant is running a shop in the village neighbouring the village, where the suit land is situated. Consequently, if the plaintiff is running a shop in neighbouring village, he could also purchase the suit land in a village, which is neighbouring his shop. There is concurrent finding of fact by both the courts below that the defendant had entered into the impugned agreement to sell with the plaintiff and had received Rs.3,00,000/- as earnest money from the plaintiff. The said finding is based on appreciation of evidence and is now shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of merit and is accordingly dismissed. February 08 , 2010 ( L. N. MITTAL ) monika JUDGE