RSA No.1602 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1602 of 2009(O&M) Date of decision: 13.1.2010 Lal Singh and others ......Appellant(s) Versus Gian Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ashish Handa, Advocate for the appellants. Mr. Lokesh Sinhal, Advocate for respondent No.1. Mr. Sandeep Sharma, Advance for respondent No.3. Rakesh Kumar Garg, J. CM No.4807-CI of 2009 After hearing learned counsel for the parties, delay of 47 days in filing this appeal is condoned. Civil Misc. Application is disposed of. RSA No.1602 of 2009(O&M) The appellants who claim to be bona fide purchasers of the property in dispute have challenged the judgment and decree of the Lower Appellate Court whereby while modifying the findings of the trial Court, the suit of the plaintiff-respondent has been decreed in toto holding that the plaintiff is entitled to a decree for specific performance with possession of the suit property, with a further direction that on payment of balance consideration amount, LRs of defendant No.1 shall execute the registered sale deed in favour of the plaintiff. Briefly stated, respondent-Gian Singh filed suit for possession of the disputed property by way of specific performance of the agreement RSA No.1602 of 2009(O&M) 2 to sell dated 29.5.1998 alleging therein that defendant No.1 (predecessor- in-interest of the appellants and respondents No.2 to 6) agreed to sell away his agricultural land measuring 32 kanals 2 marlas for a consideration of Rs.1,80,000/- on 29.5.1998 and received a sum of Rs.1,50,000/- from him as an earnest money and part payment of the sale price and executed a separate receipt. The defendant did not turn up to execute the sale deed on 28.5.1999 (i.e the last date for executing the sale deed). The plaintiff remained present in the office of Sub Registrar, Palwal with the balance sale consideration and sufficient amount to pay stamp and registration expenses on that day. The plaintiff has always been ready and willing and is still ready and willing to perform the agreement to sell dated 29.5.1998. However, defendant No.1 has failed to perform his part of the contract and in order to avoid the performance of agreement to sell, has executed a lease deed for a period of 99 years of part of land in dispute fraudulently and intentionally in favour of defendant No.2 (respondent No.7) and thus, the plaintiff was entitled to a decree for specific performance and possession of the suit land. Upon notice, defendants appeared and filed their separate written statements. Defendant No.1 admitted that he entered into a contract for the sale of the land in dispute on 29.5.1998 with the plaintiff. However, it was denied that he agreed to sell the land in dispute for a total sum of Rs.1,80,000/-. To the contrary, it was submitted that the defendant had agreed to sell the suit land for a sale consideration of Rs.1,80,000/- per acre and the total sale consideration comes out Rs.7,22,000/- out of which he received a sum of Rs.1,50,000/- from the plaintiff as earnest money while the balance sale consideration of Rs.5,72,000/- was agreed to be paid at the time of execution and registration of the sale deed on or before 28.5.1999. It was further submitted that the defendant was the RSA No.1602 of 2009(O&M) 3 owner in possession of the suit land and the agreement to sell was void because the terms and conditions of the same were not read over to the defendant and having taken the benefit of illiteracy of the defendant,the plaintiff fabricated the false terms and conditions of the agreement and played a fraud by altering terms and conditions of the agreement to sell dated 29.5.1998 and thus, the agreement was null and void in the eyes of law. It was further denied that defendant was avoiding the execution of the sale deed in favour of the plaintiff. It was submitted that the plaintiff had failed to perform his part of contract and he was not ready and willing as he was to pay a sum of Rs.5,72,000/- and not a sum of Rs.30,000/- as alleged by him. Since he was not prepared to pay the balance sale consideration which was agreed between the parties, the other pleas of the plaintiffs were denied and dismissal of the suit was prayed for. Defendant No.2 (respondent No.7) filed separate written statement denying that defendant No.1 entered into a contract and received the alleged amount from the plaintiff. It was further submitted that agreement in question was a collusive, forged and fictitious document. It was admitted that defendant No.1 executed a lease deed in his favour and the agreement in question was ante dated. It was further submitted that defendant No.2 was the bona fide lessee in possession of the suit land without notice and knowledge of the alleged agreement in question. It was further submitted that defendant No.1 entered into an agreement to sell the suit land on 11.6.1999 with late Bansidhar for a sum of Rs.50,000/- and received a sum of Rs.34,000/- as part payment. Besides that, defendant No.1 executed and got registered a lease deed for 99 years in favour of defendant No.2 and handed over the possession of the suit land to him and since then, he is in possession as a lessee of the land measuring 15 kanals 2 marlas out of the suit land. Other pleas of the RSA No.1602 of 2009(O&M) 4 plaintiff were specifically denied and dismissal of the suit was prayed. From the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the specific performance of agreement to sell dated 29.5.1998 ? OPP 2. Whether the plaintiff is entitled to the possession of the suit property ? OPP 3. Whether the plaintiff has no cause of action to file this suit ? OPD 4. Relief.” On appreciation of the evidence and hearing the arguments of the learned counsel for the parties, the trial Court concluded that agreement dated 29.5.1998 and receipt for a sum of Rs.1,50,000/- were executed by defendant No.1. It was further held that the consideration amount was agreed to be Rs.1,80,000/- as asserted by the plaintiff. However, relief of specific performance with possession of the suit land was declined on the ground that the plaintiff had failed to prove that he was always ready and willing to perform his part of the agreement and accordingly, the suit was partly decreed for recovery of Rs.1,50,000/- with interest against defendant No.1. It was further held by the trial Court that defendant No.2 was in possession of the land measuring 15 kanals 2 marlas out of suit land by virtue of lease deed 16.6.1999 being a bona fide lessee. Feeling aggrieved, the plaintiff filed an appeal before the Lower Appellate Court seeking a decree for possession of the suit land by way of specific performance of the agreement to sell in question. The judgment and decree of the trial Court was also challenged by the appellants as well as respondents No.2 to 6 (successors-in-interest of defendant No.1) by filing an appeal numbered as Civil Appeal No.60 of RSA No.1602 of 2009(O&M) 5 2008. The Lower Appellate Court vide impugned judgment and decree dated 22.8.2008 affirmed the findings of the trial Court with regard to execution of agreement to sell dated 29.5.1998 and the receipt for a sum of Rs.1,50,000/- executed by defendant No.1. It was further held that the plaintiff was ready and willing to perform his part of the contract. However, defendant No.1 had failed to execute the sale deed on or before the stipulated date. The lease deed dated 16.6.1999 was executed with a purpose to defeat the rights of the plaintiff and therefore, the plaintiff was entitled to a decree for specific performance with possession of the suit land. While accepting the appeal filed by the plaintiff-respondent and decreeing his suit in toto, the Lower Appellate Court dismissed the Civil Appeal No.60 of 2008 filed by the defendant-appellants challenging the judgment and decrees of the trial Court. Still not satisfied, the appellants, who are the successors-in- interest of defendant No.1, have filed the present appeal challenging the judgment and decree of the Lower Appellate Court passed in Civil Appeal No.27 of 2008 (i.e the appeal filed by the plaintiff-respondent). No appeal has been filed by the appellants against the judgment and decree passed by the Lower Appellate Court in Civil Appeal No.60 of 2008 whereby their appeal challenging the findings of the trial Court with regard to execution of the agreement to sell and receipt dated 29.5.1998 in favour of the plaintiff-respondent, being held valid, was dismissed. Even, before this Court, the learned counsel for the appellants has very candidly submitted that the appellants are not challenging the findings recorded by the judgment and decree of the trial Court with regard to execution of agreement and receipt dated 29.5.1998 and they are aggrieved only by the judgment and decree of the Lower Appellate Court granting a decree of possession by way of specific performance of the agreement in question. RSA No.1602 of 2009(O&M) 6 Learned counsel for the appellants has vehemently argued that the learned Lower Appellate Court has totally ignored the well settled principles of law applicable to the pleadings of the parties and the evidence led by the parties to prove their readiness and willingness and the different conclusion reached by the Lower Appellate Court from the findings of the trial Court is not substantiated either from the pleadings or by the evidence led by the parties and therefore, the findings recorded by the Lower Appellate Court are liable to be set aside. Elaborating further, learned counsel for the appellants has argued that in the present case, neither in the evidence nor in the pleadings on record, it was proved that the plaintiff was ready and willing to perform his part of the agreement to sell and thus, on the basis of the aforesaid argument, learned counsel for the appellants has argued that the following substantial questions of law arises in this appeal:- “(i) Whether the impugned judgments and decrees of both the learned courts below are erroneous, perverse, against the facts and law? ii) Whether the impugned judgments and decrees passed by both the learned courts below are based on appreciation of the evidence on record ? iii) Whether the learned courts below failed to appreciate that under the Specific Relief Act, it was mandatory upon the plaintiff claiming decree for specific performance was ready and willing to perform his part of the contract ? iv) Whether the learned courts below have erred in law and in facts in decreeing the civil suit filed by the plaintiff in the absence of the pleadings and evidence qua the alleged readiness and willingness on the part of the plaintiff ? v) Whether the impugned judgments and decree are based on misreading of evidence as well as based on conjectures and surmises?” I have heard learned counsel for the appellants and perused the record. RSA No.1602 of 2009(O&M) 7 On the basis of the arguments raised by the learned counsel for the appellants, the only issue which arises before this Court is “whether the plaintiff had failed to prove his readiness and willingness to perform his part of the agreement and therefore, was not entitled to specific performance of the agreement.” It is an admitted fact that agreement dated 29.5.1998 was executed and an amount of Rs.1,50,000/- was paid. It is also admitted that the last date for execution of the sale deed was 28.5.1999. The plaintiff- respondent while appearing as PW-2 has specifically stated that he was ready and willing to perform his part of the contract. The present suit was filed on 2.6.1999 and the last date for execution of the agreement was 28.5.1999. The fact that the suit was filed immediately within 5 days of the last date of execution of the sale deed, by itself shows the readiness and willingness on the part of the plaintiff Gian Singh. Moreover, the plaintiff- respondent had already paid a substantial amount of Rs.1,50,000/- out of total sale consideration of Rs.1,80,000/- and only a sum of Rs.30,000/- remained to be paid on the date of execution of the sale deed. Though defendant No.1 in his written statement had taken the stand that a fraud was played by the plaintiff by altering the terms and conditions of the agreement to sell in question and in fact, he had agreed to sell his land for a total sum of Rs.7,22,000/- but no evidence has been placed on record by the appellants in support of their aforesaid plea. The plea of respondent No.7 that he is a bona fide lessee under the agreement of lease dated 16.6.1999 has rightly been rejected by the Courts below as the same was not bona fide and was entered into after filing of the present suit. Thus, no fault can be found with the findings of fact recorded by the Lower Appellate Court on the question of willingness and readiness of the plaintiff- respondent to perform his part of the contract. RSA No.1602 of 2009(O&M) 8 In view of the aforesaid discussion, no substantial question of law as argued by the learned counsel for the appellants arises in this case. No merit. Dismissed. January 13, 2010 (RAKESH KUMAR GARG) ps JUDGE