RSA No.765 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.765 of 2009 Date of decision: July 7, 2011. Sukhdev Singh ... Appellant(s) v. Harminder Kaur ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Rajesh Narang, Advocate, for the appellant(s). Shri Jasbir Rattan, Advocate, for the respondents. Kanwaljit Singh Ahluwalia , J. (Oral): CM No.2212-C of 2009 For the reasons stated in the application, the same is allowed and the delay of 116 days in re-filing the appeal is condoned. Main case This is defendant's regular second appeal. Plaintiff Harminder Kaur filed a suit for possession through specific performance of the agreement to sell dated 19.12.1997 executed by the appellant herein for sale of plot of land measuring 45x100', i.e., 17 marlas, detailed description of which was given in the head note of the plaint on receipt of balance sale consideration and to execute and get registered the sale deed of total consideration amount in favour of plaintiffs or in the alternative a decree for recovery of Rs.4.00 lacs, i.e., Rs.3.00 lacs paid as earnest money and RSA No.765 of 2009 -: 2 :- Rs.1.00 lacs on account of damages and for permanent injunction restraining the defendant from alienating the suit land to any person other than the plaintiffs. Briefly, the facts of the case are that on 19.12.1997 appellant Sukhdev Singh had executed an agreement to sell dated 19.12.1997 Ex.P1, for the sale of plot in dispute to the plaintiffs as per the agreement, Rs.3.00 lacs were received from the respondent-plaintiffs by the appellant-defendant as an earnest money and the remaining amount was to be paid at the time of execution and registration of the sale deed on or before 30.6.1999. Plaintiff-respondent pleaded that they went before the office of Sub Registrar, Nabha on the stipulated date along with balance sale consideration of Rs.1.00 lacs and waited there for whole of the day but the defendant-appellant did not come to perform his part of the agreement. They also got an affidavit attested from the office of Sub Registrar, Nabha regarding their presence. Thereafter, a notice was issued calling upon the defendant to execute the sale deed. It was further pleaded that the plaintiff- respondents were and still are ready and willing to perform his part of the agreement. Upon notice of the suit, defendant appeared and filed a written statement. He denied execution of agreement to sell, Ex.P1, receipt of earnest money of Rs.3.00 lacs, execution and registration of any sale deed, authenticity of the alleged affidavits, service of notice upon him. In the written statement, it was also stated that Rajender Singh, husband of the respondent, and his brother Baldev Singh were having good relations with the appellant-defendant. The appellant-defendant owed some money to Baldev Singh in the year 1993-94, therefore, his signatures were obtained RSA No.765 of 2009 -: 3 :- by the plaintiff-respondent on various papers. It was further stated that a sum of Rs.1.50 lacs was agreed to be paid as a final settlement and he was taken by Baldev Singh, brother of the plaintiff to the Court for executing the agreement. It is stated that a false agreement was got executed due to misrepresentation. It was also stated in the written statement that the land was valuable and at that time, market price was Rs.3000/4000/- per square yard. After the pleadings were concluded, following issues were drawn:- 1. Whether the defendant entered into an agreement to sell dated 19.12.97 in favour of the plaintiff? OPP 2. Whether the plaintiff is entitled for the decree to permanent injunction, as prayed for? OPP 3. Whether the plaintiff is ready and is willing to perform his part of the contract? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiffs have no cause of action or locus standi to file the present suit? OPD 6. Whether the suit of the plaintiff is false, frivolous? OPD 7. Whether the agreement is false and got executed by misrepresentation? OPD 8. Relief. In this case, two additional issues were also framed which read as under:- 7A. Whether the plaintiff is entitled to decree for possession RSA No.765 of 2009 -: 4 :- through specific performance? OPP 7B. If issue No.1 is not proved then plaintiff is entitled to decree for alternative relief as prayed for? OPP Plaintiff-respondent examined four witnesses whereas the appellant- defendant examined 11 witnesses. After appreciating the evidence, the trial court returned a finding regarding execution of agreement to sell Ex.P1. However, the trial court held that since jamabandi has not been produced and no description of the plot has been given in the agreement to sell, therefore possession of the plot described cannot be given to the plaintiff. The trial court, therefore, granted alternative relief and held that the plaintiff is entitled to recover Rs.3.00 lacs as earnest money and another sum of Rs.1.00 lacs as damages, along with interest @ 12%. Aggrieved against the decision of the trial court, both the plaintiff and the defendant filed separate appeals. The lower appellate court also concurred with the trial court regarding execution of agreement to sell Ex.P1, however, the lower appellate court modified the relief and held that the plaintiff is entitled to specific performance of the agreement and the finding of the trial court that since jamabandi was not produced regarding the share of the defendant in the suit land and the description has not been given, therefore, specific performance of the agreement cannot be granted, cannot be sustained in the eyes of law. Shri Rajesh Narang, Counsel appearing for the appellant- defendant, has proposed following as a substantial question of law for consideration of this Court:- “Whether the lower appellate court was justified in modifying the alternative relief granted by the trial court by directing RSA No.765 of 2009 -: 5 :- specific performance of the agreement when specific description of the plot was not given in the agreement to sell, Ex.P1?” In the last line of the agreement of sale, description of the property has been given. It is not the case of the plaintiff that from the land owned by him, plots cannot be carved out. Due to specific performance of the agreement, share in the land can be transferred in favour of the plaintiff. It cannot be held that there is no specific performance of the agreement. In the facts and circumstances of the case, substantial questions of law in no way arise for consideration of this Court. Once there is a concurrent finding regarding execution of the agreement, finding returned by the appellate court suffers from no infirmity. Counsel for the appellant has relied upon Bhagwan Singh & Ors. v. Nawab Mohd. Iftikhar Ali Khan and Ors., 1982 CLJ (C&Cr) 629 to say that where the agreement is vague, not definite and precise, there can be no performance of the contract. This Court has already made reference to the agreement and it cannot be said that the agreement is vague and not definite. A further reliance has been placed upon Smt. Phuljhari Devi v. Mithai Lal & Ors AIR 1971 Allahabad 494 and Jharna Majumdar v. Suprobhat Bhowmick 2002(4) ICC 959 to fortify the above said submission. However, this Court is of the emphatic opinion that the judgments relied upon by Counsel for the appellant are not applicable as agreement specifically gives description of the land from which the plot is to be carved out and given to the plaintiff-respondent. Another argument raised by Counsel for the appellant -defendant is that Baldev Singh, husband of Harminder Kaur, has stepped RSA No.765 of 2009 -: 6 :- into the witness box as attorney of his wife, therefore, his evidence cannot be taken into consideration. This Court cannot become oblivious of the fact that on 19.12.1997, three agreements to sell were executed by the appellant- defendant in favour Baldev Singh, his brother Rajender Singh and wife Harminder Kaur. The language of the agreements to sell identical except last portion where the description of the property is given. All these agreements are attested by Gurdial Singh and Om Parkash as attesting witnesses. Husband, being power of attorney, is privy to all the facts in the knowledge of the wife and is competent to vouchsafe regarding the same. Counsel for the respondent, to rebut this argument, has referred to Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar (dead) by LRs and others, AIR 1981 SC 2235 wherein it is held that failure of the party to appear in the Court, question of drawing adverse inference would arise only when there is no other evidence on the point in issue, and Smt. Swarn Kanta and another v. Amar Chand Tamra and others(2011)2 PLR 308 wherein it was held that the party cannot be non-suited merely on the ground of non-appearance if other evidence on the record is sufficient to sustain the claim of the said party. No other point has been urged. Therefore, no interference is warranted. The present appeal is dismissed. [Kanwaljit Singh Ahluwalia] July 7, 2011. Judge kadyan