IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA 536 of 2008 Date of decision: 28.2.2008 Dharampal …Appellant Versus Shahabudin and ors …Respondents Present: Mr Arun Jain, Sr Advocate with Mr Vishal Goel, Advocate for the appellant. S.S.SARON, J. This appeal has been filed by the plaintiff – Dharampal against the judgment and decree dated 18.12.2007 passed by the learned District Judge, Faridabad whereby the appeal filed by the defendants-respondents (appellants before the Lower Appellate Court) has been partly accepted and the suit has been decreed by ordering refund of the earnest money paid by the plaintiff along with interest @ 9 p.a. from the date of the agreement till refund. The plaintiff-appellant filed a suit for specific performance of the agreement dated 21.10.1995 against the defendants. The defendants had agreed to sell the said land for a consideration of Rs 11.90 lakhs per acre. A sum of Rs 2.84 lakhs was paid as earnest money. It was agreed that the sale deed would be executed and the land transferred in favour of the plaintiff by 21.7.1997. The plaintiff had requested the defendants several times to execute the necessary sale deed and receive the balance amount. However, they failed to perform their part of the agreement. As such, the plaintiff issued a legal notice dated 11.8.1997 asking the defendants to execute the sale deed by coming to the office of the Sub Registrar. The legal notice was reply to by the 1 RSA 536 of 2008 defendants-1 to 9, 16 and 17 through their counsel. It was stated that Kallu who was one of the co-sharers had died, after the agreement had been entered into. Kallu was the predecessor-in-interest of defendants – 9 to 17. It was also stated that defendants – 10, 11 and 12 were minors and, therefore, they were unable to sell their share without prior permission of the competent Court. The defendants-1 to 12, 15 and 17 filed written statement and contested the suit. The suit was, however, dismissed qua defendants-13, 14 and 16 in terms of Order 9 Rule 2 CPC. The contesting defendants stated that they were always ready and willing to perform their part of the agreement; however, the plaintiff was not ready to perform his part of the agreement. It was also pleaded by the defendants that they are Meo by caste and are governed by the agriculture custom of Gurgaon (now Faridabad district) as prevalent in Haryana State in the matter of succession and alienation. According to the custom, the females i.e. widows and daughters do not succeed in the presence of male heirs. A plea regarding limitation was also taken. The execution of the agreement was admitted. The learned trial Court decreed the suit of the plaintiff and passed a decree for specific performance of contract qua the share of defendants-1 to 12, 15 and 17 on the payment of the remaining proportionate sale consideration. The said defendants were directed to execute and get registered the sale deed qua their share in the suit land. In appeal, the learned District Judge held that the plaintiff had been unable to show that he was ready and willing to perform his part of the contract. Besides, it was also not shown that he had the requisite means so as to entitle him to a decree for specific performance of the agreement. In view of the above, the findings recorded by the learned trial Court were reversed. However, the plaintiff was held entitled to refund of the earnest money along with interest @ 9% p.a. from the date of the agreement till the date of the refund. The appeal was partly accepted. 2 RSA 536 of 2008 After hearing learned counsel for the plaintiff-appellant and perusing the record, it maybe noticed that the agreement entered into between the parties is admitted. In terms of the said agreement, it had been agreed to by the plaintiff to purchase the suit land @ Rs 11.90 lakhs per acre. The receipt of earnest money of Rs 2.84 lakhs has also been admitted. The leaned District Judge observed that in terms of the agreement, the sale deeds could be got registered in the shape of plots from time to time within the time frame and proportionate sale consideration could be paid. Besides, during this period, the land could be cultivated by the either party. The plaintiff who was the second party could start constructing the roads, erecting offices and further sell plots and receive advances. It was also agreed that in case the sale deed was not registered within 21 months then the earnest money would be forfeited. After execution of the agreement on 21.10.1995, there was in action between the parties till 21.7.1997. No work even had started. It is after the expiry of the dead line that the plaintiff for the first time sent a notice (Ex P3) in August 1997. The learned District Judge, on appreciation of evidence, held that there was no evidence to show that the plaintiff remained in the office of the Sub Registrar along with money during the office hours. The readiness and willingness was also held to be not proved. It was also observed that it had come in the evidence of PW2 that the plaintiff is a government employee; however, there was nothing to show whether he had taken prior permission for purchasing the property. The plaintiff was required to show that he had the necessary amount of Rs 28 lakhs, besides the amount for registration and stamps. He admitted that he had no money of his own. However, the stand taken by him was that he was to arrange money from his maternal uncle – Mehar Singh who in fact it was noticed had died. The evidence and material on record, it was held, do not show that he had the necessary means to 3 RSA 536 of 2008 execute the sale deed. The conclusions and findings reached at by the learned Lower Appellate Court are findings of facts. The questions of law formulated by the appellant in terms of Section 100(3) CPC in para 6 of the grounds of appeal are in fact not the questions of law but are in the nature of matters in issue between the parties. Therefore, in the circumstances, no question of law is involved in the case and neither has any substantial question of law been raised in the appeal. Consequently, there is no merit in the appeal and the same is accordingly dismissed. 28.2.2008. ( S.S.SARON ) ASR JUDGE 4 RSA 536 of 2008 5