R.S.A. No. 880 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 880 of 2009 (O&M) Date of decision: 06.03.2009 Sher Singh and another ....Appellants Versus Attar Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. S.K. Yadav, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) C.M. No. 2553-C of 2009 This is an application for condoning the delay of 69 days in refiling the appeal. For the reasons stated in the application, C.M. stands allowed and the delay of 69 days in refiling the appeal is condoned. R.S.A. No. 880 of 2009 This regular second appeal is directed against the judgment and decree dated 14.6.2008 passed by the learned Courts below vide which the cross-objections filed by defendant/respondents for specific performance of agreement to sell have been decreed, whereas the suit filed by the plaintiff/appellants for injunction has been ordered to be R.S.A. No. 880 of 2009 (O&M) -2- dismissed. The plaintiffs brought a suit for declaration claiming themselves to be owners in possession of the land in dispute, and sought injunction against the defendant/respondents from interfering in peaceful possession on the basis of ownership. On notice having been issued, the defendants contested the suit and also filed counter-claim for specific performance of agreements dated 18.5.1994 and 26.5.1994. The learned Courts have recorded a concurrent finding of fact that the plaintiff/appellants had entered into an agreement to sell and had received earnest money. The learned trial Court also held release deed by the plaintiff/appellants in favour of his son to be a sham transaction and, therefore, not binding on the rights of the defendant/respondents. The learned trial Court without giving any reason as to why the specific performance was not to be ordered, merely decreed the suit for recovery of earnest money along with interest @ 9%. The defendant/respondents filed an appeal against the judgment and decree passed by the learned trial Court, as also plaintiff/appellants. The finding that the agreement was executed by the plaintiff/appellants after receipt of earnest money, was affirmed by learned lower appellate Court. The learned lower appellate Court also affirmed the finding that the defendant/respondents were willing to perform their part of contract, resultantly, the decree passed by the learned trial Court was modified and it was ordered that the defendant/respondents are entitled to specific performance of agreement R.S.A. No. 880 of 2009 (O&M) -3- to sell on payment of balance sale consideration. The learned counsel for the appellants contends that this appeal raises the following substantial questions of law for consideration: - “1. Whether the judgments and decree passed by the learned Courts below are illegal being outcome of misreading of evidence brought on record? 2. Whether the learned lower appellate Court could have decreed the suit for specific performance in absence of proof of consideration?” In support of substantial questions of law, the learned counsel for the appellants contends that the scribe, who appeared as PW-2, categorically stated that no consideration was passed on to the plaintiff/appellants in his presence. The contention of the learned counsel for the appellants is that the learned Courts below have mis-read the evidence of scribe, which clearly proved that the agreement was without any consideration and, therefore, was not enforceable in law. This contention has no force. PW-2, who was produced by plaintiff/appellants categorically admitted that before scribing the agreement to sell, he had enquired from the plaintiffs whether they had received earnest money and it was after the confirmation, that he had scribed the agreement. The defendant/respondents produced attesting witness who proved the due execution of the agreement as well as passing of the consideration. The learned courts below, therefore, rightly held that the R.S.A. No. 880 of 2009 (O&M) -4- agreement to sell was proved, and respondents were willing and still willing to perform their part of contract. It was also rightly held that as per normal rule, suit for specific performance was required to be decreed and that is what has been done. Substantial questions of law, framed are answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) Judge March 06, 2009 R.S.