RSA No. 330 of 2005 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 330 of 2005 Date of decision: October 16,2008 Gurmej Singh ..Appellant. Versus Tarsem Chand ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. RakeshGupta, Advocate for the appellant. Mr.Rajesh Bansal, Advocate for the respondent. ... Rakesh Kumar Garg,J. This is defendant-appellant's second appeal challenging the judgment and decrees of the courts below whereby the suit of the plaintiff- respondent for specific performance of the agreement to sell dated 2.1.1996 has been decreed and the defendant has been directed to get the sale deed executed in favour of the plaintiff on the receipt of balance sale consideration within a period of 3 months failing which the plaintiff shall be entitled to get the sale deed executed through court. In brief, the facts of the case are that the defendant entered into an agreement to sell dated 2.1.1996 for land measuring 4 kanals 8 marlas being 1/5th share of the total land measuring 22 kanals 2 marlas for a total consideration of Rs. 1, 12,000/- per acre and received a sum of Rs.56,000/- as earnest money towards the sale consideration. The sale deed was to be executed on or before 14.6.1996. In case of failure on the part of the defendant, to perform his part of contract, the plaintiff was entitled to get the sale deed executed and registered through competent court of law or the plaintiff was entitled to get the double of the earnest amount paid to the defendant and in case of failure of plaintiff to perform his part of contract, the earnest money paid RSA No. 330 of 2005 2 was to stand forfeited. It is further case of the plaintiff that in compliance of the terms and conditions of the agreement of sale to perform this agreement, the plaintiff went to the office of Sub Registrar, Guhla on 14.6.1996 taking along with him the balance sale consideration but the defendant did not turn up throughout the working hours and thus the plaintiff got his presence marked in the office of Sub Registrar, Guhla to show his readiness and willingness to perform his part of the contract. Legal registered notice dated 6.5.1996 was served upon the defendant to appear before the office of Sub Registrar Guhla on 14.6.1996, but the defendant failed to comply with the same. It is alleged that the plaintiff is still ready and willing to perform his part of the agreement, whereas, the defendant is resiling to perform his part of contract. It is alleged that the plaintiff even went to the house of defendant along with the balance sale consideration, stamp and registration charges, but the defendant refused to accede to the request of the plaintiff. Thereafter, the plaintiff issued a legal notice on 2.7.1996 with the request to the defendant to perform his part of the contract , but the defendant had refused to accept that notice and even the notice was sent through UPC and ordinary post, which were received by the defendant and the same were not received back undelivered by the postal authorities. Since the defendant had refused to accede to the request of the plaintiff to get the sale deed executed and registered, so the plaintiff has to file the suit on 23.8.1996. The defendant resisted the claim of the plaintiff and inter alia pleaded in the written statement by taking preliminary objections that the suit of the plaintiff is not maintainable in the present form; that the plaintiff misused his position as he used to give financial assistance to the defendant by selling Karyana goods as he runs a Karyana shop at Cheeka Mandi and to keep the defendant under his thumb, he has manipulated in getting the alleged agreement executed in his favour which was never intended by the defendant nor the defendant agreed to sell his land nor intended to sell. The defendant used to sell his crop on the instructions of the plaintiff on the shop of M/s Dharam Chand Sudhir Kumar, Shop No.16, Anaj Mandi, Cheeka and he sold his crops on the RSA No. 330 of 2005 3 shop of said firm upto Hari 1996. The plaintiff as well as above said Dharam Chand has not given his account of his crop to the plaintiff. The brother of Tarsem Chand, plaintiff is employed with the above said firm as Munim and he used to help in selling his crop on the shop of M/s Dharam Chand Sudhir Kumar. The plaintiff never received any money for sale of his crop from M/s Dharam Chand Sudhir Kumar. The sale proceed was syphoned to the shop of the plaintiff, where the plaintiff and his father Naranjan Dass used to sit. The plaintiff is money lender having no licence and has filed so many cases against so many persons by forging such like agreements. The attesting witness Ganga Dutt is real maternal uncle of the plaintiff and Ramesh Chand is the Municipal Councillor of their Ward. It is alleged that the alleged agreement is forged one and has been brought into existence by misrepresentation and by playing fraud upon the defendant. A criminal complaint has been filed in the courts at Guhla, which is still pending. It is further alleged that the suit land was worth more than the value of Rs.1,50,000/- at the relevant time and there was no question to sell the same for Rs.56,000/-. Moreover, it gave unfair and undue advantage to the plaintiff and hence, the alleged agreement is not enforceable. The defendant prayed for dismissal of the suit. From the pleadings of the parties, the following issues were framed:- 1) Whether the defendant has agreed to sell the suit land to the plaintiff as per agreement to sell dated 2.1.1996 for a total consideration of Rs.1,12,000/- per killa and agreed to execute the sale deed on or before 14.6.1996 ?OPP 2) Whether the defendant failed to perform his part of contract despite the fact that the plaintiff was ready and willing to perform his part of agreement ?OPP 3) If issue No.1 and 2 are proved in affirmative, whether the plaintiff is entitled for decree of specific performance of agreement to sell as prayed for ?OPP RSA No. 330 of 2005 4 4) Whether the suit is not maintainable in the present form ?OPD 5) Relief. The trial Court vide its judgment and decree dated 9.10.2000 decreed the suit of the plaintiff. Feeling aggrieved against the aforesaid judgment and decree of the trial court, the defendant preferred an appeal which was dismissed vide the impugned judgment and decree dated 28.10.2004 passed by the Additional District Judge, Kaithal. Still not satisfied, the defendant has filed this appeal challenging the judgment and decrees of the courts below. Mr. Rakesh Gupta, learned counsel for the appellant has vehemently argued that in view of the provisions of Section 22(2) of the Specific Relief Act, the suit of plaintiff is not maintainable as while filing the suit for specific performance of the agreement he has not sought possession of the suit land. Learned counsel has relied upon a judgment of the Hon’ble Supreme Court cited as Vinay Krishna Versus Keshav Chandra and another-AIR 1993 Supreme Court 957 and Adcon Electronics Pvt. Ltd. Versus Daulat and another AIR 2001 Supreme Court 3712. Learned counsel has further argued that the courts below have over looked the fact that the relief of specific performance is a discretionary relief and cannot be granted to a person who does not come to the court with clean hands. Elaborating further the counsel has argued that the evidence on record proved the fact that the agreement to sell was forged as there was a fiduciary relationship between the appellant and the respondent and he had taken unfair advantage by misusing his authority over the appellant. Moreover the appellant is a farmer having a huge family and keeping in view the facts and provisions of Section 20 of the Specific Relief Act, a decree for specific performance of the agreement could not be granted in favour of respondents. On the other hand, learned counsel for the respondent has argued that the plaintiff has not specifically sought the relief of possession because he RSA No. 330 of 2005 5 purchased the land measuring 4 kanals 8 marlas being 1/5th share of the total land measuring 22kanals 2 marlas. The vendor/appellant was co-sharer in the land measuring 22 kanals 2 marlas and as such he is not in a position to put the plaintiff in the possession of land in dispute. Since sale in favour of the plaintiff is about the share only, in such a situation suit for simplicitor specific performance of the agreement to sell is maintainable. It has also been stated by the counsel for the respondent that there is nothing on record which disentitles the plaintiff- respondent for the grant of decree of specific performance of the agreement to sell and therefore, the appeal is liable to be dismissed. I have heard learned counsel for the parties and perused the record. The first argument raised by the counsel for the appellant that in the absence of relief of possession, a simpliciter suit for specific performance of the agreement to sell is not maintainable is without any merit. Section 22 of the Specific Relief Act, 1963 reads as under:- “22. Power to grant relief for possession, partition, refund of earnest money, etc.- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for- (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceedings, allow RSA No. 330 of 2005 6 him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub- section (1) shall be without prejudice to its powers to award compensation under Section 21.” A perusal of the above said provision show that any person suing for the specific performance of a contract for the transfer of immovable property may seek possession or partition and separate possession of the property in addition to such performance. Sub Section (2) of Section 22 of the Specific Relief Act,1963 imposes a bar only to the extent that no such relief as aforesaid shall be granted by the court unless it has been specifically claimed. Thus Section 22 of the Specific Relief Act, 1963 does not bar that if a person is instituting a suit for specific performance of a contract for the transfer of immovable property, he will not be granted the relief unless he asks for possession of the property. In fact clause (a) of Section 22(1) of the Act provides that in appropriate cases in addition to the specific performance of a contract, the plaintiff may ask for possession of the property. The judgments relied upon by the counsel for the appellant are of no help to him as in the case of Adcon Electronics’s (supra), the Hon’ble Supreme Court was interpreting the term “ suit for land” within the meaning of Clause 12 of the Letters Patent of the High Court of Judicature at Bombay. Under this clause in the exercise of its original civil jurisdiction, the High Court of Bombay is empowered to receive, try and determine suits of every description, if in the case of “suits for land” or other immovable property. such land or property is situated within the local limits of the jurisdiction of the said High Court. The Division Bench opined that the suit for specific performance of an agreement for sale was not a “suit for land”. The question then arose as to what is meant by “suit for land”. The Apex Court came to the conclusion that a “suit for land” is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. During the course of hearing, an argument was raised on RSA No. 330 of 2005 7 behalf of the appellant that in the agreement, there is a specific stipulation that the defendant will hand over possession of the suit property on the execution of the sale deed, therefore, the suit for specific performance of the agreement would be a “suit for land” within the meaning of Clause 12 of the Letters Patent and on these premises while relying upon sub-section (2) of Section 22 of the Specific Relief Act, 1963 which directs that relief of possession in addition to specific performance of the agreement should not be granted by the court unless it has been specifically claimed, the Apex Court held that a suit for specific performance simpliciter in the absence of an explicit prayer for delivery of possession of the suit property cannot be treated as a “suit for land” Rather, it was further held that in its true sense a suit simpliciter for specific performance of contract for sale of land is a suit for enforcement of terms of contract.Thus this judgment does not support the contention of the learned counsel for the appellant. In Vinay Krishna’s case (supra) based on a compromise, suit for declaration was filed that plaintiff was in exclusive possession of the properties in dispute which was opposed by the defendants stating that the plaintiff is out of possession of the properties in suit and it was claimed that the suit is barred by section 42 of the Specific Relief Act, 1963. The Court found that plaintiff was not in possession and he ought to have amended the suit and prayed for relief of possession which he did not i.e. the plaintiff has failed to claim relief of possession and it was held that mere prayer in the plaint that such other relief be granted to the plaintiff without specific plea for possession is not sufficient and in those circumstances, the court held that discretion of the court in granting decree for declaration is barred. The facts of the present case are entirely different. Undisputedly, in the case in hand, agreement to sell was for an area measuring 4 kanals 8 marlas representing 1/5th share of the total land measuring 22 kanals 2 marlas. The vendor/appellant is a co-sharer. The agreement in favour of the plaintiff is about the share only and not about the specific killa numbers. In such a situation, RSA No. 330 of 2005 8 in the suit for specific performance, the plaintiff cannot be put into possession by the court or vendor. The relief of possession can be sought by the plaintiff only by way of a suit for partition which cannot be granted in a suit for specific performance as other co-sharers are not party to the suit. So simpliciter suit for specific performance of agreement for sale is maintainable. Thus as discussed above, provisions of Section 22 of the Specific Relief Act do not in any way bar the maintainability of simpliciter suit for specific performance of an agreement to sell. I also find no force in the second argument of the counsel for the appellant that in the instant case, relief of specific performance cannot be granted in view of the provisions of Section 20(2) of the Specific Relief Act, 1963, which provides that the court may properly exercise discretion not to decree specific purpose where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into was such that the contract gives the plaintiff an unfair advantage over the defendant or where the performance of the contract would perform some hardship on the defendant which he did not foresee or where the defendant entered into contract under circumstances which makes it inequitable to enforce specific performance. No doubt, the grant of specific performance of an agreement to sell is a discretionary relief and the courts are to exercise this jurisdiction guided by judicial principles. However, the grounds raised by the learned counsel for the appellant challenging the grant of specific performance of the agreement in favour of the plaintiff have been discussed by the courts below in detail and a finding of fact has been recorded that no such circumstances exist on the record of the case which disentitles the plaintiff-respondents from the grant of a decree for specific performance of agreement to sell. The courts below on appreciation of evidence has found that plaintiff-respondent is entitled to the discretionary relief of a decree of specific performance of the agreement to sell. Learned counsel for the appellant was unable to point out any infirmity or illegality in this RSA No. 330 of 2005 9 regard. Thus, I find no reason to interfere in the judicial discretion exercised by the courts below which is based upon proper appreciation of the entire evidence on record. For the reasons recorded, I find no merit in the appeal. No question of law much less a substantial question of law arises in this appeal. Dismissed. October 16, 2008 (RAKESH KUMAR GARG) nk JUDGE