RSA No.3572 of 2009(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3572 of 2009(O & M) Date of Decision:05.05.2010 Sheo Chand .... .appellant Versus Ram Nath .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Jaivir Yadav, Advocate for the appellant Mr.J.P.Sharma, Advocate for the respondent **** RAKESH KUMAR GARG J. CM No.10937-38 of 2009 From the record, I find that there is a delay of two days in filing this appeal as well as delay of 70 days in re-filing this appeal. Though the aforesaid applications have been filed by the appellant to condone the aforesaid delay but no notice was given to the respondent on the aforesaid applications. Mr.J.P.Sharma, Advocate who is present in court on behalf of the respondents accepts notice in the aforesaid applications. After hearing learned counsel for the parties, two days' delay in filing this appeal and 70 days' in re-filing this appeal is condoned. CMs disposed of. RSA No.3572 of 2009(O & M) This is defendant's second appeal challenging the RSA No.3572 of 2009(O & M) 2 judgement and decrees of the courts below whereby suit for possession by way of specific performance of the agreement in question filed by the plaintiff-respondent was decreed. Plaintiff-respondent filed the suit for specific performance on the ground that appellant executed agreement to sell the suit land on 14.09.2001 and it was agreed that the appellant shall receive an amount of Rs.20,000/- after executing the sale deed in favour of the plaintiff- respondent on 30.04.2002 and in case of failure on his part he will return back Rs.1,30,000/-. Plaintiff-respondent sent a notice through his counsel asking the appellant to reach the office of Registrar on 30.04.2002 for executing the sale deed as per agreement dated 14.09.2001. However, appellant did not appear in the said office. Hence this suit. Upon notice, appellant appeared and filed written statement stating that the suit land was ancestral property and therefore the suit for specific performance was not maintainable and denied the material averments and prayed for dismissal of the suit. From the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether plaintiff has been and still is ready to perform his part of contract as per terms of agreement?OPP 2. Whether defendant agreed to sell his property to plaintiff vide agreement to sell dated 14.09.2001 and received Rs.1,30,000/- as earnest money?OPP 3. Whether agreement dated 14.09.2001 was got executed by fraud undue pressure and misrepresentation?OPD 4. Whether amount of Rs.1,00,000/- was given by the plaintiff to relative of defendant and agreement was got within a security?OPD RSA No.3572 of 2009(O & M) 3 5. Whether the property is ancestral and coparcenary one and the defendant has no right to sell the same?OPD 6. Whether plaintiff has no locus standi to file the present suit?OPD 7. Whether the suit is time barred?OPD 8. Whether the suit is not maintainable in the present form?OPD 9. Whether the plaintiff is estopped from filing the suit by his own act and conduct?OPD 10.Whether the defendant is entitled to get any special costs?OPD 11.Relief. After hearing learned counsel for both the parties, the trial court held that appellant agreed to execute the agreement to sell dated 14.09.2001 in favour of the plaintiff and received a sum of Rs.1,30,000/- as earnest money. It was further held that appellant failed to prove and show that suit property was his ancestral and coparcenary property and further failed to prove that the amount was given as security. It was further held that appellant failed to show that agreement dated 14.09.2001 was result of fraud and undue pressure or misrepresentation and that plaintiff- respondent had been ready and willing to perform his part of the agreement. Resultantly, the suit was decreed. Aggrieved from the said judgement appellant preferred an appeal before the Lower Appellate Court which was also dismissed. While dismissing the appeal, the Lower Appellate Court observed as under: “The evidence tendered by the plaintiff clearly shows regarding the payment of Rs.1,30,000/- at different stages at the time of execution of the agreements Ex.P-4 to Ex.P-6 and Ex.P-3. This fact is also proved by PW3, PW4 and RSA No.3572 of 2009(O & M) 4 PW7. The defendant/appellant had not denied the execution of the said agreements. In his written statement he has taken the plea that in the year 2000 his relative was in need of Rs.1,00,000/- and he facilitated his relative for obtaining the said amount of Rs.1,00,000/- from the defendant without interest and promise was made by his relative to return back the said amount of loan on or before 30.04.2001. His relative had not returned the said amount on the said date and thus, plaintiff/respondent pressurised the defendant for recovery of the said amount and started insulting him. Due to the undue influence and pressure exerted by the plaintiff/respondent defendant was forced to execute the agreement pertaining to his agriculture land in favour of the plaintiff/respondent in 2001 as security for the said amount. There was no real intention to execute the land in favour of the plaintiff/respondent. There was extension of time for repayment on two occasions vide separate agreements but his relative failed to return back the loan amount. Thus, appellant was forced to execute the agreement in September 2001 in favour of the plaintiff/respondent in order to save his social prestige and under pressure of the plaintiff, as security for the loan advanced by the plaintiff to his relative. His written statement is silent about the name of the said relative. The contents of the written statement amounts to admission regarding the execution of different agreements by defendant in favour of the plaintiff/respondent. The defendant/appellant had not filed any complaint against plaintiff/respondent for forcing him to execute the different agreements in favour of the plaintiff/respondent. He is even RSA No.3572 of 2009(O & M) 5 silent about the name of his relative in affidavit Ex.DW1/A. He even failed to examine his relative in the witness box to highlight the true facts before the trial Court. The defendant/appellant even failed to produce any other independent witness in support of his contention regarding the pressure exerted by the plaintiff/respondent for execution of the said agreements. Defendant/appellant when came in the witness box as DW1, he admitted in his cross- examination that he is B.A. LLB and he used to practice as an Advocate at Narnaul and he also worked as an Oath Commissioner. He further admitted that he was in profession from 1977 to 1982-83. Thus the defendant/appellant is an educated and polished person. On the other hand the plaintiff/respondent is an illiterate person. The agreement Ex.P4 shows that defendant/appellant received Rs.1,24,000/- as an earnest money out of the total sale consideration of Rs.1,50,000/-. Ex. P-5 further shows that defendant/appellant was pre-occupied in domestic work and was thus unable to execute the sale deed in favour of the plaintiff/respondent on the agreed day i.e.31.05.2001 and the said period was accordingly extended up to 16.07.2001. At the time of execution of Ex.P-5 it is mentioned therein regarding the further receipt of amount of Rs.3000/- from the plaintiff/respondent. Ex.P-6 further shows that he is unable to execute the sale deed in favour of the plaintiff/respondent on the agreed day i.e.16.07.2001 and the said period was accordingly extended up to 16.08.2001. At the time of execution of Ex.P6 it is mentioned therein regarding the further receipt of amount of Rs.2500/- from the RSA No.3572 of 2009(O & M) 6 plaintiff/respondent. Thus, till the execution of agreement Ex.P-6 the defendant/appellant had obtained the sum of Rs.1,29,500/-. At the time of execution of agreement dated 14.09.2001 Ex.P-3 it is mentioned regarding receipt of Rs.1,30,000/- out of the total sale consideration of Rs.1,50,000/-.PW7 clarified the payment of Rs.1,30,000/- in replication filed by him as well as when he deposed by way of affidavit Ex.PW7/A. The evidence tendered by the plaintiff is not beyond his pleadings in any manner. Defendant/appellant has not taken any plea that the plaintiff/respondent was never ready and willing to perform his part of the contract. There is no cogent evidence led by the defendant/appellant regarding fraud and misrepresentation. As per the judgement of Bakhtawar Singh vs.Gurdayal Singh 2003(2) Civil and Rent JR 358 it is held that wherein appellant has not denied his signature and thumb impression on the agreement to sell and his only allegation is that the same were obtained by fraud and misrepresentation but the said allegation is not proved by any cogent evidence that either any fraud was played with him or the agreement was obtained by misrepresentation then the finding of the fact cannot be disturbed in appeal. In State of Punjab vs.Gurmel Singh 2003(2) Civil and Rent JR 145, it is held that where the execution of document is admitted to prove, contains a recital regarding the payment of consideration, then the onus lies on the person executing the document to prove that he did not receive the consideration. As per Section 10 of the Specific Relief Act 1963 unless and until the contrary is proved, the court shall RSA No.3572 of 2009(O & M) 7 presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. In the present case the defendant/appellant failed to lead any evidence to rebut the presumption pertaining to immovable property as defined in Section 10 of Specific Relief Act. The plea of the defendant/appellant that the suit property is an ancestral coparcenary property and he has no right to dispose of the same is also not tenable in view of Section 13 of the Specific Relief Act 1963.The judgements relied upon by learned counsel for appellant are not applicable to the facts of the present case. The arguments submitted by learned counsel for appellant are devoid of any merit. I agree with the submissions made by the learned counsel for the respondent.” Feeling aggrieved from the judgement and decrees of the courts below, the appellant has approached this court by filing this appeal submitting that the following substantial questions of law arise in this appeal: 1. Whether the decree for specific performance can be passed on the basis of agreement to sell Ex.P3 without proving the passing of the consideration amount? 2. Whether the impugned judgements are the result of misreading and mis-construing the evidence led by the parties? 3. Whether a decree for specific performance, which is in respect of a property, which is ancestral and coparcener, can be passed? At the motion hearing learned counsel for the appellant had inter alia contended that since the nature of the suit land was ancestral and RSA No.3572 of 2009(O & M) 8 coparcenary, therefore no decree for specific performance could be passed. On the basis of the aforesaid contention notice of motion was issued to the respondent. However, at the time of hearing, learned counsel for the appellant could not substantiate the aforesaid argument raised by him and was unable to challenge the findings of the courts below whereby it was held that appellant had failed to prove that the suit land was his ancestral and coparcenary property. Learned counsel for the appellant further argued that decree for specific performance of the agreement in question cannot be passed as the plaintiff-respondent has failed to prove that any consideration amount for the aforesaid agreement to sell was passed over to the appellant. Since, no cogent and convincing evidence has been led by the plaintiff- respondent to prove the passing of the consideration of the amount to the appellant and thus the courts below have committed an illegality regarding the payment of amount of consideration in respect of agreement to sell in question and thus the findings of the courts below being perverse are liable to be set aside in favour of the appellant. I have heard learned counsel for the parties and perused the impugned judgement and decree. It is relevant to refer to para 22 of the Lower Appellate Court, at this stage, which reads as follows: "PW4 Kundan stated that he knows the parties. Agreement Ex.P4 was executed by Sheo Chand in favour of Ramnath and Rs.1,24,000/- were paid in his presence. The said agreement was prepared by Singh Ram and was read over to both the parties and both the parties have signed the same. Similarly agreement Ex.P5 and agreement Ex.P6 were also prepared and executed in his presence and both the parties have signed the same after going the contents of RSA No.3572 of 2009(O & M) 9 the said agreements. At the time of execution of Ex.P5 Rs.3000/- were taken by Sheo Chand from Ram Nath. At the time of execution of Ex.P6 Rs.2500/- were taken by Sheo Chand from Ram Nath. He further stated that agreement Ex.P3 was written by Shiv Hari Bharadwaj deed writer and at the time of execution of the same Sheo Chand and Ram Nath put their respective signature and thumb impression by going the contents of the same. At the time of Ex.P3 Rs.500/- were given. Sheo Chand received the total payment of Rs.1,30,000/- from Ram Nath out of Rs.1,50,000/- regarding the land measuring 8 kanals. From the aforesaid observations of the Lower Appellate Court, it is clearly established that plaintiff paid a sum of Rs.1,30,000/- at different stages of execution of the agreement. The Lower Appellate Court also observed that the factum of payment of the aforesaid amount by the plaintiff-respondent also stood proved by the testimony of PW3, PW4 and PW7. The appellant had neither denied the execution of the agreement Ex.P3 to Ex.P6 nor there is any other evidence to contradict the aforesaid evidence led by the plaintiff-respondent in the affirmative. Thus, on the basis of the aforesaid evidence on record which has not been rebutted by the appellant, it cannot be held that no consideration amount passed to the appellant and, therefore, the agreement in question was liable to be set aside. Faced with this situation, learned counsel for the appellant further submitted that a decree for specific performance is a discretionary relief and as per Section 20 of the Specific Relief Act, Court was not bound to grant a decree of specific performance, even if agreement to sell was proved and in the facts and circumstances of the case, the plaintiff- respondent was not entitled to a decree of discretionary relief of specific RSA No.3572 of 2009(O & M) 10 performance of the agreement and this was a case where at the most alternative relief could have been granted. The argument raised by the learned counsel for the appellant is without any merit and is liable to be rejected in view of the fact that admittedly judgement and decree of the Lower Appellate Court stands executed in favour of the plaintiff-respondent through the Court. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 05.05.2010 neenu