IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2208 of 1999 Date of decision : 19-03-2008 Abdul Sattar and others .....Appellants Pitamber Singh .....Respondent CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present : Mr. Sudhir Aggarwal, Advocate for the petitioners. Mr. Bhag Singh, Advocate for the respondent. RAKESH KUMAR JAIN, J. The present appeal has been filed by the defendant-appellants against the judgment and decree of both the Courts below. The Plaintiffs filed a suit seeking decree for possession by way of specific performance of agreement of sale dated 01-05-1987, purported to have been executed by the defendant and his deceased brother Hanifa in his favour on payment of Rs.27,000/- in respect of land measuring 1 Kanals 5 Marlas, comprising of khewat/khatauni no.499 min/690 min, khasra no.305/2 and a Khadda measuring 2 Marlas and house bearing 16 Akhas (Khanns) situated in Village Samlehri, Tehsil and District Ambala. The defendant contested the suit. In the written statement, preliminary objection No.1 was taken to the effect that there has been no agreement dated 01-05-1987 between the Plaintiff and the defendant and if there is any such agreement, then it is false, frivolous and fabricated. In nut shell, the agreement was denied. R.S.A. No.2208 of 1999 -2- The Plaintiffs filed replication. It was reiterated that the agreement dated 01-05-1987 was duly executed between the Plaintiffs, the defendant and his brother Hanifa. From the pleadings of the parties, the trial Court framed the following issues on 29-08-1988 : (i) Whether the defendant and his deceased brother Hanifa had entered into agreement dated 01-05-1987 with the Plaintiffs to sell the land as alleged ? OPP (ii)Whether the Plaintiffs has been ready and willing to perform the part of his agreement and is still ready and willing to do so?OPP (iii)Whether the suit is not maintainable in the present form as alleged in preliminary objection No.2 of W.S.?OPP (iv)Whether the suit is false and frivolous, as alleged, if so, its effect?OPD (v)Whether the suit is bad for mis-joinder of L.Rs of deceased Hanifa, if so, its effect?OPD (vi)Whether the suit is bad for mis-joinder of necessary parties, if so, its effect?OPD (vii)Relief Parties to the suit led both oral as well as documentary evidence in which, besides producing three witnesses, the Plaintiffs placed on record the documentary evidence Exhibit P-1 to P-11. Defendant produced one witness and produced documentary evidence Exhibit D-1 to D-3. The first issue was to the effect as to whether there was an agreement between the parties dated 01-05-1987. The Plaintiff was burdened to discharge the onus for which he produced Exhibit P-1 on record and produced Nand Kishore as PW-2 and Jati Singh as PW-3 who were the attesting witnesses of Exhibit P-1. Both the Courts below have R.S.A. No.2208 of 1999 -3- held that the agreement to sell was executed by the defendant in favour of the Plaintiff and on the basis of findings recorded on issues No.1 to 3, 5 and 6 suit for possession by way of specific performance was decreed in favour of the Plaintiff on payment of Rs.15,000/- as balance consideration and the defendant was granted four months' time to get the sale deed executed in favour of the Plaintiff. It is pertinent to mention here that during the pendency of this appeal, an application C.M. no.1978-C of 2008 has been filed by the Plaintiffs-respondent under Order 41 Rule 27 read with Section 151 C.P.C. for leading additional evidence by way of placing on record application dated 09-06-1993 as R-1 filed before S.D.O. (C), Ambala by the defendants against the Plaintiffs and the reply thereto as R-2 dated Nil. The aforesaid application is allowed as the same is not objected to by learned counsel for the defendant and the documents R-1 and R-2 are taken on record for the purpose of consideration as evidence in the present appeal. Shri Sudhir Aggarwal, counsel for the appellants has submitted to this Court following substantial questions of law, which according to him, are arising in the present appeal :- 1. Whether the learned Courts below have not misread, misinterpreted the agreement to sell dated 1.5.1987? 2. Whether the relief of specific performance can be granted without showing his willingness and readyness? 3. Whether the adjustment of mortgage money can be believed specifically when the land was not under mortgage? R.S.A. No.2208 of 1999 -4- In order to substantiate first question that has been raised by learned counsel for the appellants, it has been argued by him that the agreement (Exhibit P-1) has been misread by both the Courts below because land measuring 01 Kanal 5 Marlas was not agreed to be sold rather Khadda measuring 2 Marlas and house bearing 16 Akhas (Khanns) was agreed to be sold because word `WA' was not used between “Ukt Bhoomi” and `Khadda'. Therefore, “Ukt Bhoomi” (aforesaid land) refers to Khadda (Pit) and not to land measuring 1 Kanal 5 Marlas. Therefore, it has been argued that at the most, the Plaintiff is entitled for the sale of pit measuring 2 Marlas 16 Akhas. Continuing his arguments, he has attacked notice (Exhibit P-2) and has asserted that this notice is dated 18-09-1987, whereas the sale deed was to be executed on 28-10-1987. It was asserted that this notice was issued by the Plaintiffs only in order to create an evidence to include land measuring 1 Kanal 5 Marlas, otherwise, there was no occasion for the Plaintiffs to have issued a notice about 40 days prior to the date fixed for execution of the sale deed. He has also explained that though the land measuring 1 Kanal 5 Marlas which was not agreed to be sold but the same was mentioned in the agreement only because of the reason that this land was free from encumbrance and other land of the defendant was under encumbrance. Learned counsel for the appellants has further argued that the document Exhibit P-1 is also not genuine because out of Rs.12,000/- which was paid as earnest money, Rs.5,000/- was retained by the Plaintiff for redemption of mortgage and Rs.7,000/- was paid to the defendant. While referring to Exhibit P-2, he has further submitted that the Plaintiffs in preliminary objection No.1 as well as in reply to para No.2 on merits has contended that Rs.5,000/- was paid by the Plaintiffs to the defendant as a part of earnest money, whereas the land in R.S.A. No.2208 of 1999 -5- question were not under mortgage. Learned counsel has further argued that the decree for specific performance cannot be granted to the Plaintiff as he was not ready and willing because at the time when his presence was got marked before the Sub Registrar, he was not carrying the balance amount for the purpose of sale deed. Rebutting his arguments, learned counsel for the respndent Mr. Bhag Singh has argued that there is no defect in the agreement which has already been proved to have been executed by the defendant in favour of the plaintiff by both the Courts below and is a concurrent finding of fact. He also highlighted that the defendant is now shifting his stand because in the written statement, he had denied the execution of the agreement, whereas, before this Court, it is being argued by the defendant that the agreement pertains to only Khadda and Akhas and not to the land measuring 1 Kanal 5 Marlas. Meaning thereby, the defendant has admitted the execution of the agreement but has become dishonest, in so far as, for not including the other piece of land which has been agreed to be sold. He has further argued that the agreement is categoric and all the three parts of the land has been specifically mentioned. He has submitted that Ukt Bhoomi Khadda and 16 Akhas are specifically mentioned, in which, Ukt Bhoomi pertains to 1 Kanal 5 Marlas, Khadda pertains to 2 Marlas and 16 Akhas is also there. It has been argued that if the defendant had not agreed to sell property measuring 1 Kanal 5 Marlas, there was no occasion for him to have mention the said land in the agreement to sell. It has been further argued that so far the notice Exhibit P-2 is concerned, that was given because of the reason that during the subsistence of the agreement, one of the executant of the agreement, namely Hanifa who happened to be R.S.A. No.2208 of 1999 -6- a real brother of the other executant Umra died in the month of May 1987, whereas, the agreement was executed on 01-05-1987. Therefore, through this notice, the plaintiffs had informed the defendant that since after the death of Hanifa, he has become the owner of the entire property as his only legal heir, therefore, the agreement to sell subsists and he should appear before the Registrar on the date fixed for the purpose of execution of the Sale Deed. Regarding the earnest money of Rs.5,000/-, it was argued that reference has been made of the mortgaged amount in the agreement and the document Exhibit P-4 which is Jamabandi for the year 1983-84 shows that the land measuring 3 Kanals 11 Marlas was in fact under mortgage which has been got redeemed vide order dated 02-09-1994. Therefore, it has been argued by learned counsel for the respondent that no error could be found in the agreement Exhibit P-1 which has been duly appreciated by the Courts below. Regarding readiness and willingness, it was contended by the respondent that he has categorically stated in para 7 of the plaint that the plaintiff was always ready and willing to perform his part of the contract and in para 9 of the plaint it has been mentioned that he had gone to the Office of Tehsildar on 28-10-1987 for the purpose of getting the sale deed executed but the defendants did not turn up. He has referred to para 3 of the application (Exhibit P-7) in which, it was categorically mentioned that he was present in the premises of the Office of Tehsildar with balance sale consideration which proves that he was not only willing but also ready to perform his part of contract. The respondent has also referred to his statement in which he has stated that he was ready and willing at that time and ready and willing today for the purpose of execution of the sale deed. I have heard both the counsel for the parties and have perused R.S.A. No.2208 of 1999 -7- the record. The basic issue in this case is as to whether the agreement dated 01-05-1987 was duly executed between the parties or not. Both the Courts below have given a concurrent finding of fact that Agreement (Exhibit P-1) has been duly executed between the parties and the allegation of the defendant in the written statement that the same was not executed or if it is there, then it is fraudulent, could not be proved. It is also held by both the Courts below that the plaintiff/respondent has always been ready and willing to perform his part of contract and had even gone to the Office of Sub Registrar on the date fixed i.e, 28-10-1987 and according to para 3 of the application (Exhibit P-7), he was also ready with the money for balance sale consideration. The question that has been raised by the counsel for the appellant in the present appeal that the document Exhibit P-1 has been misread and misinterpretation by the Courts below, could not be answered in his favour because of his own act and conduct. In the preliminary objections of the written statement, he has completely denied the agreement, whereas, while arguing before this Court, he has denied some part of the agreement to the effect that except for the land measuring 2M Khadda and 16 Akhe, no other land was agreed to be sold. Serious contest has been raised by learned counsel for the appellant that the land measuring 1K 5M was never agreed to be sold as it was not mentioned categorically in the agreement. Meaning thereby, the defendant has admitted the execution of the agreement against which no argument has been raised before this Court. Once, the agreement has been proved and it is also proved that the plaintiff was ready and willing to perform his part of the contract, nothing survives in the appeal and all the objections which have been taken here-in-above by the counsel for the appellant, has been duly answered by counsel for the R.S.A. No.2208 of 1999 -8- respondent. In my view, counsel for the respondent has rightly pointed out that in the agreement “Ukt Bhoomi” refers to 01K-05Marla and there was no answer with the counsel for the appellant as to why, the same was included in the agreement to sell. Further, the counsel for the appellant could not prove that any fraud has been played in so far as the execution of the agreement. It is a settled law, if the agreement has been duly proved to have been executed between the parties and the plaintiff is ready and willing to perform his part of contract, the discretionary relief of grant of specific performance should be in favour of the plaintiff and against the defendant. In view of the above, the present appeal in which, no question much substantial is involved, is devoid of any merit and is thus dismissed with costs. (RAKESH KUMAR JAIN) Judge 19-03-2008 gurpreet R.S.A. No.2208 of 1999 Date of decision : -03-2008 Abdul Sattar and others .....Appellants Pitamber Singh .....Respondent CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present : Mr. Sudhir Aggarwal, Advocate for the petitioners. Mr. Bhag Singh, Advocate for the respondent.