RSA No. 3586 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 3586 of 2010 (O&M) Date of Decision: 02.5.2011. Didar Singh and another .......Appellants Vs. Gurdial Kaur and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. A.S.Manaise, Advocate for the appellants. Mr. Sumeet Mahajan, Senior Advocate with Mr. S.L.Bhalla, advocate for the respondents. ..... SABINA, J. Plaintiff had filed a suit for specific performance of agreement to sell dated 16.6.1986 and for declaration. The case of the plaintiff in brief was that defendant No.1 Dalbara Singh had agreed to sell the land measuring 32 Kanals 18 Marlas being 1/3rd share of the land measuring 98 Kanals 14 Marlas to him vide agreement to sell dated 16.6.1986. ` 60,000/- were paid towards earnest money by the plaintiff to defendant No.1. The sale deed was to be executed after payment of balance sale consideration of ` 42,812.50. Plaintiff had always remained ready and willing to perform his part of the contract. Plaintiff also sought relief of declaration challenging the sale deed RSA No. 3586 of 2010 (O&M) -2- dated 13.1.1987 executed by defendant No.1 in favour of defendants No. 4 and 5. Defendant No.1, in his written statement, denied the execution of the agreement to sell in question. It was averred that Som Nath attesting witness to the agreement to sell in question was dealing in the business of commission agency at Khanna. Defendant was selling his crop through the agency of Som Nath. Som Nath had failed to tender accounts to the defendant and in order to grab the property of the answering defendant the agreement to sell in question had been fraudulently prepared by the plaintiff and Som Nath. The suit property was joint Hindu Family and coparcenary property of the answering defendant and had not been partitioned, so far. The receipt of earnest money by the answering defendant was denied. Defendant No.2 had not filed any written statement. Defendant No.3 was proceeded ex parte as he had failed to appear despite service. Defendants No. 4 and 5, in their written statement averred that they were bonafide purchasers for consideration. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant no.1 executed an agreement to sell dated 16.6.1986 in favour of the plaintiff and received Rs. 60,000/- as earnest money? OPP 2. Whether the plaintiff has been ready and willing to perform his part of the contract? OPP 3. Whether the suit is not maintainable? OPD RSA No. 3586 of 2010 (O&M) -3- 4. Whether the alleged agreement to sell dated 16.6.86 is the result of fraud and misrepresentation? OPD 5. Whether the defendants No. 4 and 5 are the bonafide purchasers with consideration, without notice? OPD 6. Relief.” Sub Judge Ist Class vide judgment and decree dated 14.11.1991, decreed the suit of the plaintiff for specific performance. Defendant No.1 was directed to execute the sale deed in favour of the plaintiff, failing which the plaintiff could get the same executed by filing execution petition. Aggrieved by the said judgment and decree, defendant No.1 preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 23.2.2010. Hence, the present appeal by the legal representatives of defendant No.1. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. Plaintiff had filed the suit for specific performance basing his claim on agreement to sell (Ex. P-1) dated 16.6.1986. In order to prove the due execution of the agreement to sell in question, plaintiff himself appeared in the witness box as PW-1 and examined Tarsem Lal, Deed Writer as PW3, Baldev Sahai as PW-4 and Som Nath as PW-5, attesting witnesses of the agreement to sell. The said witnesses deposed qua the due execution of the agreement to sell in question. The agreement to sell in question is duly signed by defendant No.1 Dalbara Singh. Defendant No.1, on the other hand, failed to establish that the RSA No. 3586 of 2010 (O&M) -4- agreement to sell in question was a result of forgery, fraud or misrepresentation. Admittedly, two agreements were executed on the same day, one qua Dalabara Singh and the other qua Gulzara Singh, brother of the appellant. The agreement to sell qua Gulzara Singh was later on cancelled. Plaintiff, in order to establish that he was always ready and willing to perform his part of the contract proved on record application (Ex. P-4) moved before the Tehsildar to mark his presence. PW-2 Amrit Lal, Registration Clerk deposed that the application was moved by the plaintiff on 31.12.1986 and the order was passed by the Sub Registrar on the said application at 4.55 P.M. No substantial question of law arises in this appeal for consideration of this court. Dismissed. (SABINA) JUDGE May 02, 2011 Gurpreet