Regular Second Appeal No. 3174 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3174 of 2008 Date of Decision: July 02, 2009 Satnam Singh ...........Appellant Versus Satnam Singh ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Vikas Bahl, Advocate for the Appellant. Mr.Sanjay Gupta, Advocate for the respondent ** Sabina, J. Satnam Singh, son of Inder Singh, plaintiff filed a suit for possession by way of specific performance of an agreement to sell dated 09.06.2000. The suit of the plaintiff was decreed by the Additional Civil Judge (Senior Division) Nawanshahar vide judgment and decree dated 14.2.2007. The appeal filed by defendant-Satnam Singh, son of Mehnga Ram was dismissed by the Additional District judge, Nawanshahar vide judgment and decree dated 06.08.2008. Hence, the present appeal. The facts of the case, as noticed by the Additional District Judge in paras 2 and 3 of its judgment, read as under:- “The facts leading to the filing of the suit are that defendant being owner in possession of land measuring 11K-07Mls entered into an agreement to sell the same with the plaintiff and received Rs.55,000/- by way of earnest money. The suit land was agreed to Regular Second Appeal No. 3174 of 2008 2 be sold at the rate of Rs.2,50,00/- per acre on 9.6.2000. The sale deed was agreed to be executed on or before 9.6.2001 on payment of the balance sale consideration. Plaintiff had always been ready and willing to perform his part of the agreement to sell and he also attended the office of the Sub Registrar, on the stipulated date, but the defendant failed to turn up. In this manner, it is the defendant who has committed violation of the terms of the agreement to sell and,thus, plaintiff is entitled to decree for specific performance of the agreement to sell and in the alternative, prayer for decree for recovery has been made. Plaintiff asked the defendant to admit his claim, but he has refused to do so. Hence, this suit was filed. 3. Notice of the suit was issued to the defendant, who appeared and filed written statement, taking preliminary objections with regard to locus standi , maintainability act and conduct, cause of action and that plaintiff has not approached the Court with clean hands. Denying other assertions in the plaint, it has been averred that in fact the answering defendant had taken a loan of Rs.27,000/- and that the writing was prepared only as a security for the return of the said loan and it has been prayed that the suit be dismissed.” On the pleadings of the parties, the following issues were framed:- “1. Whether the plaintiff is entitled for possession by way of specific performance of an agreement to sell dated 9.6.2000?OPP 2. Whether the plaintiff is entitled to permanent injunction as Regular Second Appeal No. 3174 of 2008 3 prayed for?OPP 3. In the alternative, whether plaintiff is entitled to recovery of Rs.55,000/- along with interest as prayed for?OPP 4. Whether the suit is not maintainable?OPD 5. Whether plaintiff has got no locus standi to file the present suit?OPD 6. Whether the plaintiff is barred by his act and conduct to file the present suit?OPD 7. Whether the plaintiff has got no cause of action against the defendant?OPD 8. Whether the plaintiff has suppressed the material facts from the Court?OPD 9. Relief.” After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff filed a suit for possession by way of specific performance on the basis of agreement to sell dated 9.6.2000 with regard to 11 kanals 7 marlas of land. The case of the plaintiff is that at the time of execution of the agreement to sell, Rs.55,000/- were paid as earnest money. The price of the land was fixed at Rs.2,50,000/- per acre. The parties agreed that the sale deed would be executed on or before 9.6.2001. Plaintiff had always been ready and willing to perform his part of the contract but the defendant has failed to execute the sale deed in his favour. In order to prove his case, plaintiff himself appeared in the witness box as PW2 and examined the attesting witnesses of the agreement to sell Rakesh Kumar as PW3 and Deed writer Parshottam Lal as PW2. The plaintiff as well as PW2 and PW3 Regular Second Appeal No. 3174 of 2008 4 duly proved the execution of the agreement to sell. Defendant, on the other hand, took a stand in the written statement that he had taken a loan of Rs.27500/- from the plaintiff and an agreement to sell was prepared only by way of security with regard to the said loan amount. It was also pleaded that the defendant had not executed any agreement to sell in favour of the plaintiff. Defendant, however, admitted his thumb impression on Exhibit P1, agreement as well as receipt Exhibit P2. In his cross-examination, defendant averred that no writing had been prepared with regard to the loan transaction, although in the written statement, he had taken a stand that the alleged agreement to sell was prepared only as a security of the loan amount. In these circumstances, the Courts below rightly held that the plaintiff had been successful in proving the due execution of the agreement to sell (Exhibit P1) as well as receipt (Exhibit P2). Plaintiff also proved his affidavit (Exhibit P3) to support his plea that he was always ready and willing to perform his part of the contract. As per the affidavit (Exhibit P3), plaintiff had remained present in the Office of the Sub Registrar on 11.6.2001 for execution of the sale deed as 09.06.2001 and 10.6.2001 were holidays being Saturday and Sunday. The suit was filed within the period of limitation by the plaintiff. It is a settled proposition of law that in the normal circumstances when the plaintiff is successful in proving the agreement to sell and the fact that he was always ready and willing to perform his part of the contract, the Court should pass a decree for specific performance of agreement to sell. In the present case, there are no circumstances which necessitate the deviation from the said normal rule. Hence, no ground for Regular Second Appeal No. 3174 of 2008 5 interference is made out as no substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 02, 2009 arya