R.S.A. No. 1576 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1576 of 2009 (O&M) Date of Decision : 23.4.2009 Budh Ram ....Appellant Versus Smt. Kashmiri and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Deepak Gupta, Advocate for the appellant. ... MAHESH GROVER, J. C.M.No.4746-C of 2009 For the reasons mentioned in the application, the same is allowed and the delay of 3 days in filing the appeal is condoned. R.S.A. No. 1576 of 2009 This is plaintiff's second appeal directed against the judgments of the learned trial Court dated 4.9.2007 and that of the first Appellate Court dated 17.12.2008. The plaintiff/appellant along with respondents No.6 to 10 filed a suit for specific performance seeking enforcement of the agreement to sell dated 3.10.1994 supposedly executed by Mohinder, who was arrayed as respondent No.1 in the appeal, for a total sale R.S.A. No. 1576 of 2009 (O&M) -2- consideration of Rs.1 lakh. It was the pleaded case of the appellant that the agreement was reduced into writing and signed by both the vendor and himself, and the entire sale consideration was paid by the appellant to said Mohinder. It was further his case that physical possession was handed over by respondent No.1 to the appellant on the spot and thereafter he has been in continuing possession thereof. But because of issuance of some executive instructions the sale deed could not be registered and it was agreed that once these restrictions are over, the sale deed would be got executed. It was also agreed between the parties that if the area under sale was acquired by the Government, the entire amount of sale consideration would be returned and if the vendor resiled from the agreement, the same would be enforced through the Court of law. An affidavit attested by the Executive Magistrate dated 3.10.1994 regarding handing over of the possession of the suit land was also given by the respondent No.1 to the appellant. However, the sale deed did not fructify resulting in filing of the suit. Mohinder, respondent No.1 did not appear despite service and he was proceeded against ex-parte. However, respondents No.2 to 5 appeared and pleaded collusion between the vendor and the appellant/plaintiffs. The agreement dated 3.10.1994 was denied and it was pleaded that they were bona fide purchasers of the suit property. The handing over of the possession was also denied and it was pleaded that there was no such executive instructions which debarred the appellant and respondent No.1 from registration of the sale deed R.S.A. No. 1576 of 2009 (O&M) -3- and even otherwise the instructions were not specifically brought to the notice of the said respondents. The parties went to trial on the following issues :- 1. Whether the defendant No.1 entered into an agreement to sell dated 3.10.1994 with the plaintiffs and received entire sale consideration?OPP 2. Whether the defendant No.1 delivered possession of the suit land to the plaintiffs at the time of execution of the agreement?OPP 3. Whether the plaintiffs have always been ready and willing and are still ready and willing to perform their part of the agreement?OPP 4. If issues No.1 to 3 are proved, whether the plaintiffs are entitled to possession (symbolic by way of specific performance of the said agreement?OPP 5. Whether the suit is not maintainable in the present form?OPD 6. Whether the suit is not within limitation?OPD 7. Whether the defendants No.2 to 5 are bona fide purchasers for a valuable consideration without notice?OPD 8. Whether the plaintiffs have no cause of action and locus standi to file the suit?OPD 9. Relief. Both the Courts below came to the conclusion that the R.S.A. No. 1576 of 2009 (O&M) -4- agreement to sell had not been proved as neither the scribe nor the attesting witnesses were produced before the Court. The Courts further went on to hold that passing of the sale consideration was also not proved and finding that the agreement to sell was not established by cogent evidence on record, dismissed the suit of the appellant/plaintiff which has resulted in filing of the present appeal in which learned counsel for the appellant has contended that the findings recorded by the Courts below are perverse and deserve to be set aside. It was pleaded that there is sufficient material on record to show that the agreement to sell dated 3.10.1994 was executed by Mohinder in his favour which was sought to be defeated by subsequent sale deed dated 9.9.1997 in favour of respondents No.2 to 5. It was further pleaded that the courts below have ignored the entire material while deciding the matter and consequently the impugned judgments deserve to be set aside. I have heard the learned counsel for the appellant and have perused the impugned judgments. In a suit for specific performance three essential ingredients necessarily have to be pleaded and proved. First, that there was a valid agreement to sell executed between the vendor and the prospective vendee; second, that there was passing of some valid consideration at the time of agreement to sell; and third, that the person seeking to enforce the agreement was willing and ready to get the agreement executed. If the evidence on record is to be perused to see if the aforesaid ingredients are satisfied, the Court comes to the R.S.A. No. 1576 of 2009 (O&M) -5- conclusion that the appellant has failed to bring sufficient material on record. The agreement to sell dated 3.10.1994, Ex.P1 is on record which was supposedly executed by Mohinder. It was also bearing thumb impressions of the Sarpanch and two other persons as attesting witnesses. Neither the scribe of the agreement nor the attesting witnesses were examined by the appellant. A bald plea was taken that two of the attesting witnesses, namely Rishi Pal and Ram Dhan were colluding with the present respondents No.2 to 5, who had purchased the property in the year 1997. Even if this was to be taken as true, there was nothing to prevent the appellant to produce the scribe before the Court. More importantly, the appellant had specifically pleaded that the entire sale consideration of Rs.1 lakh was paid at the time of execution of the agreement and possession was handed over to him. A receipt regarding this payment of consideration was also executed. However, strangely the appellant has withheld this receipt from the Court for the reasons best known to him. In this view of the matter, when the first two basic essential ingredients pertaining to the execution of the agreement to sell have not been satisfied, the third regarding readiness and willingness of the appellant to perform his part of the agreement pales into insignificance. No other point was urged and no other material was shown from which it can be inferred that the findings recorded by the Courts below are erroneous so as to warrant any interference in the regular second appeal. R.S.A. No. 1576 of 2009 (O&M) -6- Appeal dismissed. 23.4.2009 (MAHESH GROVER) JUDGE dss