R.S.A.No. 4456 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4456 of 2009 (O&M) Date of decision: 10.2.2011 Rakesh Kumar ......Appellant Versus Prem Kumar and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Vikas Mehesempuri, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for specific performance of agreement to sell dated 31.12.2002. The case of the plaintiff, in brief, was that the plaintiff and defendants had purchased the suit property vide sale deed dated 29.3.1985. In a family settlement, defendant No.1 had agreed to sell the land in question to the plaintiff vide agreement to sell dated 31.12.2002. ` 20,000/- were received towards earnest money by defendant No.1 at the time of execution of the agreement to sell. R.S.A.No. 4456 of 2009 (O&M) 2 The plaintiff was already in possession of the suit property as a licencee. Defendant no.1 had failed to execute the sale deed in favour of the plaintiff although the plaintiff had always remained ready and willing to perform his part of the contract. On 30.4.2003, plaintiff had remained present in the office of the Sub Registrar along with balance sale consideration to get the sale deed executed but defendant No.1 had failed to appear. Defendant No.1, in his written statement, admitted the factum of purchase of the property by him and the plaintiff. He also admitted the passing of the judgment and decree in civil suit No.193 of 10.3.1995. However, it was averred that defendant No.1 had not executed the agreement to sell in favour of the plaintiff. The said agreement to sell was a forged and fabricated document. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether on 31.12.2002, defendant No.1 entered into an agreement to sell with the plaintiff and defendant No.1 received 20,000/- as earnest money and defendant No.1 agreed to execute the sale deed on or before 30.4.2003 for an amount of ` 50,000/- ? OPP 2. Whether the plaintiff has always been ready and willing to perform his part of agreement? OPP 3. Whether the plaintiff is entitled for specific performance of agreement? OPP. R.S.A.No. 4456 of 2009 (O&M) 3 4. If issue No.3 is not proved, whether the plaintiff is entitled to claim suit amount, as alternative relief? OPP 5. Whether the plaintiff has no locus standi to file the present suit ? OPD 6. Whether the plaintiff is estopped by his act and conduct from filing the present suit ? OPD 7. Whether the suit is not maintainable in the present form ? OPD 8. Whether the agreement is not admissible in evidence? OPD 9. Whether the defendant is entitled to special costs? OPD 10. Relief.” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 24.3.2008. Aggrieved by the same, plaintiff preferred an appeal and the same was also dismissed vide judgment and decree dated 26.5.2009 passed by Additional District Judge, Barnala. Hence, the present appeal by the plaintiff. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Plaintiff had filed a suit for specific performance of agreement to sell dated 31.12.2002. In order to prove his case, plaintiff examined PW-7 Navdeep Gupta, handwriting expert and PW- 2 Raj Kumar and PW-3 Bhola Singh, attesting witnesses to the R.S.A.No. 4456 of 2009 (O&M) 4 agreement to sell. The case of the defendants, on the other hand, was that the agreement to sell in question was a result of fraud. Plaintiff and the defendants are real brothers. The suit property was purchased by the plaintiffs and defendants vide sale deed dated 29.3.1985. Defendant No.2 had filed a suit for possession against plaintiff and defendant No.1. The suit filed by defendant No.2 was decreed by the trial Court vide judgment and decree dated 27.9.2000 and defendant No.2 was declared owner of the suit property to the extent of 1/3rd share. The said judgment and decree of the trial Court were upheld up to this Court. Admittedly, the plaintiff and defendants are five brothers and three sisters. Father of the plaintiff has died and litigation qua his inheritance is pending. The plaintiff had failed to establish that a compromise had been effected between the parties qua inheritance of the estate of his father. In his cross- examination, plaintiff admitted that regular second appeal filed by him in this Court against the judgment and decree passed in favour of defendant No.2 was dismissed on 1.8.2003 and he had not disclosed the factum of compromise to this Court. The appeal was dismissed by the first Appellate Court vide judgment and decree dated 7.12.2002 in the suit filed by defendant No.2. Hence, it is quite improbable that defendant No.1 would have entered into an agreement to sell with the plaintiff on 31.12.2002. The plaintiff had, thus, failed to establish that any compromise had been effected between him and defendant No.1 qua which there was a mention in R.S.A.No. 4456 of 2009 (O&M) 5 the agreement to sell in question. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff as the agreement to sell in question was surrounded by suspicious circumstances. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE February 10, 2011 anita