R.S.A.No. 3778 of 2007 {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3778 of 2007 Date of Decision: 7.7.2009 Sarwan Singh ---Appellant versus Chanan Singh ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. Sandeep Bansal, Advocate, for the appellant Mr. Amit Jain, Advocate, for the respondent. *** SABINA, J. Plaintiff-Sarwan Kumar filed a suit for specific performance of agreement to sell dated 21.5.1990. Vide judgment and decree dated 18.2.2002, suit of the plaintiff was dismissed by Additional Civil Judge (Senior Division), Garhshankar. In appeal, the District Judge, Hoshiarpur upheld the judgment and decree of the trial court vide judgment and decree dated 13.4.2007. Hence the present appeal. The case of the parties, as noticed by the learned District Judge, Hoshiarpur, in para 2 to 4 of its judgment, is as under:- “The case of the plaintiff is that on 21.5.1990, the defendant R.S.A.No. 3778 of 2007 {2} represented to him that he was owner of 93 kanals 18 marlas of land and he agreed to sell the same in his favour at the rate of Rs. 6500/- per killa. The defendant received Rs. 42,000/- as earnest money out of the sale consideration. It was agreed that the plaintiff will be responsible to pay all the instalments regarding the property. It was also agreed that the sale-deed would be executed up to 21.5.1995. The possession of the property was delivered to him on the day of agreement. On 19.5.1995, the defendant executed a sale-deed of 46 kanals 19 marlas i.e. half share out of 93 kanals 18 marlas of land for a sum of Rs. 1,80,000/-, which included Rs. 21,000/- i.e. half share of Rs. 42,000/- the earnest money already received by the defendant and got the same registered. Thus, the defendant received not only the total sale consideration, but much more amount which was received by him than his entitlement. The plaintiff reserves his right to file a separate suit against the defendant to realise the said amount by him. He remained ready to get the sale-deed of the remaining land executed in his favour, but the defendant failed to execute it, due to the fact that 'No objection Certificate' from the Income Tax Department could not be obtained by him. The plaintiff remained ready and willing to perform his part of the contract and he also served a registered notice, which was duly received by the defendant. The defendant has been putting off the matter. Hence the suit for specific performance of the agreement to sell of the remaining half land, for which the R.S.A.No. 3778 of 2007 {3} defendant has not cared to execute the sale deed. Notice of the suit was given to the defendant. Defendant appeared, filed written statement and contested the case, by taking up the stand that he had agreed to sell the land measuring 93 kanals 18 marlas @ Rs. 6500/- per acre to the plaintiff. The defendant received Rs. 21,000/- only as earnest money from him and not Rs. 42,000/-. as alleged. At the instance of the plaintiff, Rs. 42,000/- were mentioned in the agreement regarding which the plaintiff had assured the defendant that only Rs. 21,000/- the actual earnest money paid by him would be accounted and adjusted at the time of execution of the sale-deed. It was admitted that the remaining instalments of loan were to be paid by the plaintiff. It was denied if the possession of the land was delivered to the plaintiff. The defendant categorically stated that on 18.5.1995, the plaintiff along with Bhajan Lal, Lambardar approached him and told him that he had deposited about Rs. 18,000/- as instalments of loan and asked him to execute the sale-deed regarding half share of the land. He asked him to give the remaining sale consideration and to get the sale-deed executed for whole of the land as agreed. The plaintiff expressed his helplessness in arranging the remaining sale consideration and the plaintiff proposed that he is ready to forego his claim on the rest of the land in case he (defendant) agrees to execute the sale-deed of 46 kanals 19 marlas. Out of R.S.A.No. 3778 of 2007 {4} the total land of 93 kanals 18 marlas in his favour for the amount already paid or deposited by him i.e. Rs. 21,000/- as earnest money and Rs. 18,000/- paid on account of loan. He agreed to his proposal. The deal regarding half of the remaining land was orally cancelled. As settled above, he executed a sale-deed of 46 kanals 19 marlas of land in which Rs. 21,000/- the earnest money paid, was adjusted. He denied if the plaintiff paid Rs. 1,59,000/- to him at the home. At the time of execution of the sale-deed, the scribe told the parties that stamp papers are required to be affixed on the sale-deed at the rate fixed by Chandra Committee. The value of the land at Government rate prevalent at that time was Rs. 1,80,000/- for 46 kanals 19 marlas. The said figure was mentioned only for the purpose of stamp duty and was not the actual sale consideration which was @ Rs. 6500/- per acre. The plaintiff never paid Rs. 1,59,000/- to him. The alleged clause has been fraudulently incorporated by the plaintiff in connivance with the scribe. It was totally incorrect if the plaintiff was ready to get the sale-deed executed regarding 46 kanals 19 marlas of remanning land. Rather, the deal was cancelled, as stated above, because the plaintiff had no money with him. It is totally incorrect if 'No Objection Certificate' was required from the Income Tax Department. There was not such condition.” On the pleadings of the parties, following issues were framed by the trial court:- (1)Whether the defendant received only Rs. 21000/- as earnest R.S.A.No. 3778 of 2007 {5} money from the plaintiff. (2)Whether the plaintiff was ready and willing to get the sale deed executed regarding 46 kanals 19 marlas of remaining land. OPP (3)Whether the agreement regarding 46 kanals 19 marlas of land was orally cancelled. OPD (4)Whether the plaintiff is entitled to the specific performance of the contract. OPP (5)Whether the plaintiff estopped from filing this suit by his act, conduct. OPD (6)Whether the suit is barred by limitation. OPD (7)Relief. After hearing learned counsel for the parties, I am of the opinion that this appeal is devoid of any merit. Admittedly, the agreement to sell (Ex. P-1) regarding 93 kanals 18 marlas of land at the rate of Rs. 6500/- per killa was entered between the parties. Sale deed was to be executed on or before 21.5.1995. On 19.5.1995, defendant executed sale deed ( Ex. P-2) in favour of the plaintiff regarding 46 kanals 19 marlas of land for a sum of Rs. 1,80,000/-. Plaintiff has filed a suit seeking specific performance of the agreement to sell qua the remaining 46 kanals 19 marlas of land. However, when the sale deed Ex. P-1 was executed, no recital was incorporated to the effect that the sale deed qua the remaining land in terms of the agreement to sell in question would be executed at a later stage. Apparently, in case the parties had intention to execute the sale deed qua the remaining 46 kanals 19 marlas of land in terms of agreement to sell Ex. P-1, the stipulation in this regard R.S.A.No. 3778 of 2007 {6} would have been incorporated in the sale deed. In the absence of any such stipulation, it is evident that the parties might have arrived at some kind of settlement and had decided to execute the agreement to sell Ex. P-2 only qua 46 kanals 19 marlas of land although the agreement to sell was9 executed qua 93 kanals 18 marlas of land. The sale deed was executed before the stipulated date on 19.5.1995 instead of 21.5.1995. Plaintiff also remained satisfied with the sale deed Ex. P-2 for a sufficient long period and had filed the suit in October, 1997. The sale deed was executed way back in May, 1995. In these circumstances, the courts below have rightly dismissed the suit of the plaintiff. No substantial question of law arises in this appeal. Accordingly, the same is dismissed. (SABINA) JUDGE Julu 07, 2009 PARAMJIT