RSA No.3589 of 1997 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3589 of 1997 Date of Decision: October 28, 2009 Har Krishan Lal Thakar and another ...........Appellants Versus Hardayal and Others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Arun Palli, Senior Advocate with Mr.Sunil Garg, Advocate for the appellants. Mr.G.S.Bhatia, Advocate and Mr. Lalit Garg, Advocate for the respondent No.1 ** Sabina, J. Plaintiff-Hardayal filed a suit for possession. The suit of the plaintiff was decreed by the Sub Judge, Ist Class Rajpura vide judgment and decree dated 6.11.1993 Aggrieved by the same, the defendants filed an appeal which was dismissed by the District Judge, Patiala vide judgment and decree dated 17.9.1997. Hence, the present appeal by the defendants. The facts of the case, as noticed by the District Judge in paras 2and 3 of its judgment, read as under:- “ 2. Brief facts giving rise to the present appeal are that respondent No.1 filed a suit for possession by way of specific performance of the agreement dated 20.4.87 against the appellants RSA No.3589 of 1997 2 and other respondents, alleging therein that the house No. 2071 situated at Rajpura Township, was owned by Sushila Devi, real mother of appellant Nos. 1 and 2 and respondent Nos. 2 and 3 and step mother of respondent No.4. She entered into an agreement for sale of house No.2071 in favour of respondent No.1 vide agreement dated 20.4.87 for a sale consideration of Rs.1,80,000/-. She also received a sum of Rs.10,000/- as earnest money from the respondent No.1 at the time of execution of the agreement to sell. Sushila Devi, widow of Mohan Lal further agreed to execute the sale deed and to get the same registered on 31.8.1987 in favour of Hardayal respondent No.1. Hardayal respondent No.1 always remained willing and ready to perform his part of the agreement and he also remained willing to get the sale deed of house No. 2071 situated at Rajpura Township executed and registered in his favour. Hrdayal respondent No.1 remained present on 31.8.87 in the office of the Sub-Registrar, Rajpura and he also brought the balance sale consideration for the execution and the registration of the sale deed alongwith other expenses of the sale deed. He remained present before the Sub Registrar, Rajpura from 9.00 A.m. to 5.00 PM. However, appellant Nos. 1 and 2 came at 4.00 PM before the office of Sub Registrar, Rajpura on that day and they met respondent No.1. Appellant Nos. 1 and 2 disclosed that their mother Sushila Devi had expired. Hardayal respondent No.1 asked the appellants to arrange the presence of other legal heirs of Sushila Devi for getting the sale deed executed and registered in favour of respondent No.1 Hardayal but the appellants did not RSA No.3589 of 1997 3 disclose the addresses of the other legal heirs of the deceased. Sushila Devi had supplied Photostat copy of the Will dated 13.7.71 executed by Mohan Lal in favour of Sushila Devi as such Hardayal respondent No.1 was aware that there are other legal heirs of Sushila Devi apart from the appellants. A valid and legal sale deed in favour of Hardayal respondent No.1 could be executed by all the legal heirs of Sushila Devi. The appellants appeared in the court of Tehsildar/Sub Registrar, Rajpura and moved an application. Respondent No.1 had also appeared before the Sub Registrar, Rajpura and expressed that all the successors of Sushila Devi should come and execute the sale deed. He was ready with balance sale consideration. The appellants did not agree. After that Hardayal respondent No.1 issued notice to the appellants on 1.9.87, 11.9.87, 19.10.87 and on 23.12.87 and made many representations to the appellants and other respondents to execute the sale deed in his favour but the appellants and legal heirs of Sushila Devi were not willing and ready to execute the sale deed in his favour. So he filed a suit for possession of the house by way of specific performance of the agreement dated 20.4.87. 3.The suit was contested by the respondents, inter-alia on the grounds by admitting the fact that Sushila Devi had entered into an agreement to sell house No.2071 situated at Rajpura Township on 20.487 in favour of respondent No.1 Hardayal for a sum of Rs.1,80,000/- and received a sum of Rs.10,000/- as advance money from Hardayal respondent No.1 on 20.4.87. It was further RSA No.3589 of 1997 4 admitted that the sale deed was to be executed on 31.8.87. Balance amount of Rs.1,70,000/- was also to be paid by Hardayal respondent No.1 on that date and he was not ready and willing to perform his part of the agreement. In fact on 31.8.1987, he was not ready with the balance sale consideration of Rs.1,70,000/- and other expenses so the sale deed could not be executed on that date. Sushila Devi died on 21.7.87. Hardayal respondent No.1 was supplied a copy of the Will dated 27.12.81 executed by Sushila Devi in favour of the appellants. Only the appellants were the legal heirs of Sushila Devi and they were ready and willing to execute the sale deed in favour of Hardayal respondent No.1 as per terms of the agreement dated 20.4.87. They remained present before the office of the Sub-Registrar, Rajpura on 31.8.87 from morning till evening and requested the Sub Registrar for making their presence for execution of the sale deed, but the balance sale consideration and other expenses were not with Hardayal respondent No. 1 and he failed to get prior permission from the income tax department and the permission of the Registrar, which was legally required to be obtained by Hardayal respondent No.1 before getting the sale deed executed so Hardayal respondent No. 1 breached the terms of the agreement and as such sale deed was not executed. On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether the plaintiff remained ready and willing to perform his part of the contract ?OPP RSA No.3589 of 1997 5 2.Whether the defendant Nos. 1 and 2 are the only legal heirs of Sushila Devi deceased ?OPD 3.Whether the plaintiff is entitled to specific performance of the contract?OPP 4.Whether the defendants have made any improvement in the suit property as alleged, if so its effect?OPD 5.Whether the plaintiff has not come to the court with clean hands and is not entitled to the relief claimed ?OPD 6. Relief.” Learned counsel for the appellants has submitted that the execution of the agreement to sell in question was not in dispute. The dispute was only with regard to the fact as to whether the plaintiff was ready and willing to perform his part of the contract. Parties were neighbours and the plaintiff know that Sushila Devi, mother of the defendants had died and the fact that she had executed a Will in favour of the appellants was also in the knowledge of the plaintiff. Despite this fact, plaintiff did not perform his part of the contract on the date fixed for execution of the sale deed. Hence, the suit of the plaintiff was liable to be dismissed. Learned counsel for the respondents, on the other hand, has submitted that the respondents were always ready and willing to perform their part of the contract. Respondents had insisted on the date fixed for execution of the sale deed that all the legal heirs of Sushila Devi should be present so that, at a later stage, no further litigation arises between the respondents and other legal heirs of Sushila Devi. Rather the appellants had failed to perform their part of the contract. After hearing the learned counsel for the parties, I am of the RSA No.3589 of 1997 6 opinion that the instant appeal deserves to be dismissed. In the present case, the execution of the agreement to sell in question dated 20.4.1987 (Exhibit P2) between the plaintiff and Sushila Devi (mother of the parties) is not in dispute. Vide the said agreement to sell, Sushila Devi had agreed to sell House No. 2071 to the plaintiff. She had received Rs.10,000/- towards earnest money. The date for execution of the sale deed was fixed as 31.8.1987. However, before the execution of the sale deed, Sushila Devi expired on 21.7.1987. On 31.8.1987, plaintiff as well as the appellants were present in the Office of the Sub Registrar. Plaintiff has proved on record his affidavit Exhibit P1. As per the same, he had remained present in the Office of Sub Registrar on 31.8.1987 along with balance consideration. Exhibit D1 is the application moved by the appellants to mark their presence showing their willingness to execute the sale deed. However, a perusal of Exhibit D1/A reveals that the appellants were present and despite having been asked to execute the sale deed, they dilly dallied the matter regarding execution of the sale deed. In order to prove the said endorsement made by the Sub Registrar Rajpura, the defendants examined the Tehsildar Kuldeep Singh. Kuldeep Singh, in his examination in chief, has deposed that both the parties had appeared before him and at that time both the parties were dilly dallying the matter. In these circumstances, the plea taken by the plaintiff that he had insisted that all the legal heirs of Sushila Devi should be present at the time of the execution of the sale deed gains insignificance. It leads to the inference that he was ready and willing to perform his part of the contract. Although the appellants had a registered Will in their favour yet on the date fixed for execution of the sale deed, they did not have any probate or succession RSA No.3589 of 1997 7 certificate in their favour on the basis of Will executed by Sushila Devi. Moreover, in the application, plaintiff was to pay the entire balance sale consideration and in order to safeguard his right, it was natural for the plaintiff to have insisted that all the legal heirs of Sushila Devi should be present at the time of the execution of the sale deed. On appearance the other legal heirs except appellants could have admitted the genuiness of the Will. Both the courts below,after appreciating the evidence led by the parties on record, have given a concurrent finding of the fact that the plaintiff was ready and willing to perform his part of the contract. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge October 28, 2009 arya