IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3788 of 2009(O&M) Date of Order: 23.10.2009 Karam Singh ....Appellant Versus Sohan Singh .....Respondent CORAM: HON'BLE MRS.JUSTICE SABINA Present: Ms.Balvinder Kaur, Advocate, for the appellant. * * * SABINA,J.(Oral) Plaintiff filed a suit for possession by way of Specific performance, fully described on the head note of the plaint, which was partly dismissed and partly decreed by the Addl.Civil Judge (Sr.Divn.)Kapurthala vide judgment and decree dated 06.11.2008. The appeal filed by defendant was dismissed by District Judge, Kapurthala vide judgment and decree dated 09.06.2009. Hence, the present second appeal by the defendant. Brief facts of the case, as noticed by the lower Appellate Court in paras 1 and 2 of its judgment read as under:- “Sohan Singh plaintiff instituted a suit for possession by way of specific performance of the agreement to sell dated 20.07.1998 alleged to have been executed by defendant- Karan Singh, in respect of land measuring 20 kanals, fully described and detailed in the head note of the plaint, RSA No.3788 of 2009(O&M) ..2.. situated in Village Mahmadwal, Tehsil and District Kapurthala, on the grounds that the defendant offered to sell the same to the plaintiff for a total consideration amount of Rs.4,40,000/- at the rate of Rs.1,80,000/- per acre and received Rs.60,000/- as earnest money, by virtue of which arrangement, the agreement to sell was reduced into writing and the parties undertook to execute the sale deed on payment of balance consideration amount on or before 20.11.1998. As per the terms of this agreement, the plaintiff was to pay an instalment of Rs.70,000/- on 10.11.1998 and the balance, if any, was to be paid at the time of execution of the sale deed. The plaintiff claimed that he had undertaken his part of the agreement and had been ready and willing to get the sale deed executed but the defendant did not abide by his undertaking and when on 10.11.1998, the plaintiff tendered Rs.70,000/- as instalment for undertaking mutation by the defendant, but the defendant failed to undergo the same in spite of the fact that the date of the sale deed was actually extended to 20.01.1999 when a sum of Rs.25,000/- was paid by the plaintiff to the defendant and thus, on refusal of the defendant to execute the sale deed, the present suit was filed. 2. The defendant, in his written statement, denied the averments taking the plea that the defendant was not the absolute owner, as, there was a rider for the defendant, who cannot sell for 20 years from 28.07.1982, the land in question, and denied having ever entered into agreement to RSA No.3788 of 2009(O&M) ..3.. sell with the plaintiff, claiming that the defendant had borrowed Rs.25,000/- from the plaintiff, for which, the plaintiff under the garb of execution of a pronote by fraud and misrepresentation obtained an agreement to sell, of which the defendant was not in knowledge of, and thus, terming each and every averment of the plaint to be wrong and incorrect, sought dismissal of the suit.” On the pleadings of the parties, the following issues were framed by the trial Court: 1) Whether the defendant agreed to sell the suit land with the plaintiff for a total sum of Rs.4,40,000/- vide agreement to sell dated 20.07.1998 in favour of the plaintiff and received Rs.60,000/- as earnest money and further received Rs.25,000/- from the plaintiff vide endorsement dated 20.11.1998? OPP 2) Whether the plaintiff always remained ready and willing to perform his part of the agreement? OPP. 3) Whether the plaintiff is entitled for possession of the suit land by way of specific performance of agreement dated 20.07.98 or in the alternative for recovery of Rs.1,70,000/- with interest? OPP. 4) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP 5) Whether the alleged agreement is a result of fraud and misrepresentation and fake document? OPD 6) Whether the defendant already received Rs.25,000/- from the plaintiff and executed pronote and receipt only and not the alleged agreement? OPD. RSA No.3788 of 2009(O&M) ..4.. 7) Relief. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal is devoid of any merit. Plaintiff had filed a suit for specific performance of agreement to sell dated 20.07.1998. In order to prove his case, plaintiff examined Balkar Singh, an attesting witness of the agreement to sell and Deed Writer Narinder Pal Singh. Both the said witnesses proved the due execution of the agreement to sell. Defendant in order to rebut the evidence led by the plaintiff, examined DW-1 Inderjit Singh who was also an attesting witness of the agreement to sell. However, the said witness identified his own signatures on the agreement to sell Ex.P-3 and further stated that he had been requested by the plaintiff to attest the agreement to sell as a witness. The said witness also admitted that he had signed the entry in the register of the Deed Writer. DW-2 Satnam Singh who is an attesting witness to the endorsement Ex.PW2/B also admitted his signatures on the endorsement Ex.PW2/B made on the back of the agreement to sell. He also admitted that he had not appended his signatures on a blank paper and had signed the relevant register of the Deed Writer. Simple denial of the defendant to the effect that he had not executed the agreement to sell is not enough in the facts of the present case. Defendant-appellant could have examined a handwriting expert to establish that the agreement to sell in question was in fact not signed by him. Learned counsel for the appellant has further submitted that the plaintiff had not come to the court with clean hands. The plaintiff had taken a copy of Jamabandi for the year 1998-99 from the RSA No.3788 of 2009(O&M) ..5.. Patwari but has failed to place the same on record. As per the same, the suit property was a nazzol land and could not be sold for 20 years from the date of his purchase. In support of her argument, learned counsel has placed reliance on G.M.Haryana Roadways Vs.Jai Bhagwan & Anr. 2008(2) Civil Court Cases 762 wherein it was held that suppressing of material fact is to be viewed seriously while exercising discretionary jurisdiction. Although the plaintiff had been successful proving due execution of the agreement to sell, the Courts below held that the agreement to sell in question could not be specifically enforced as the suit land could not be sold for 20 years from the date of its purchase. Defendant had purchased the suit land on 28.07.1992. In these circumstances, the Courts below held that the plaintiff was only entitled to receive back the earnest money paid by him to the defendant. The view taken by the Courts below does not call for any interference as both the parties to the agreement to sell knew that the suit property could not be sold. Plaintiff tried to purchase the suit property which in fact could not be purchased by him as a nazzul land could not be sold for 20 years from the date of its purchase. Similarly, defendant who also knew that he could not sell the land, also took earnest money from the plaintiff at the time of execution of the agreement to sell and promised to execute the sale deed in favour of the plaintiff. Thus, both the parties were trying to sell and purchase the land which could not be sold. In these circumstances, substantial justice has been done by the courts below by allowing the refund of the earnest money of RSA No.3788 of 2009(O&M) ..6.. Rs.85,000/-in all paid by the plaintiff to the defendant. The judgment relied upon by the learned counsel for the appellant fails to advance the case of the appellant as it is based on different facts. No substantial question of law arises in this case. Accordingly, the same is dismissed. October 23, 2009. (SABINA) Seema-II Judge