Regular Second Appeal No.4403 of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 4403 of 2004 Date of Decision: July 23, 2009 Ram Kishan ...........Appellant Versus Kali Dass ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Diwan Sharma, Advocate for the appellant None for the respondent. ** Sabina, J. Plaintiff-Ram Kishan filed a suit for specific performance seeking the plot beneath the house of plaintiff as shown in the site plan. The said suit of the plaintiff was partly decreed by the Civil Judge (Junior Division) Safidon vide judgment and decree dated 12.9.2001. Aggrieved by the same, plaintiff filed an appeal and the same was dismissed by the Additional District Judge, Jind vide judgment and decree dated 27.8.2009. Hence, the present appeal. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:- “ 2. Briefly stated, the facts of the present plaintiff's case as Regular Second Appeal No.4403 of 2004 2 alleged are that the plot, beneath the house of the plaintiff, situated in Rama Colony, Ward No.2, Safidon, as shown in the site plan marked ABCD was owned and possessed by the defendant. In the year 1987, the plaintiff orally purchased the plot beneath the house of the plaintiff for a sum of Rs.20,000/- and the entire sale consideration of Rs.20,000/- of the plot was paid by the plaintiff to the defendant. It was agreed that the sale deed of the plot will be executed and registered in favour of the plaintiff as and when desired. The defendant delivered the possession of the plot in question where the plaintiff constructed his house. The plaintiff is in actual physical possession of the same. The plaintiff also obtained electric connection in the said house. The plaintiff is also making the payment of the house-tax of the said house. In the month of June, 1997 the defendant threatened the plaintiff to dispossess him from the plot and to alienate the plot in question without having any right to do so. The plaintiff asked the defendant several times to desist from his act but he refused to do so. Moreover, another agreement was arrived at between the parties and the plaintiff came to the office of the Sub Registrar, on 14.8.1997 as sale deed was to be executed on or before 15.8.1997 but the defendant did not turn up. Hence, the present suit for specific performance was filed by the plaintiff against the defendant. 3. This suit was contested by the defendant on the ground that a site plan has been wrongly filed. The defendant has sold plot marked as A1, B1 CD to the plaintiff and the plaintiff constructed Regular Second Appeal No.4403 of 2004 3 his house over the same portion. The defendant has sold the same portion and the plaintiff remained owner of the portion marked A1 B1 CD and the defendant has no concern with the same. The defendant has,however, not disputed the construction of the house over the plot which was purchased by the plaintiff. In fact, the plaintiff wants to occupy the plot ABBA of the defendant without any right to do so. Hence, the defendant has prayed for the dismissal of the present suit.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the defendant has entered into agreement with plaintiff to sell the suit land as alleged in the plaint?OPP 2. Whether the plaintiff has got no cause of action to file the present suit?OPD 3. Whether the suit of the plaintiff is vague, false and filed with mala fide intention? OPD 4. Whether the suit of the plaintiff is not maintainable in the present form?OPD 5. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal is devoid of any merit. Plaintiff had filed a suit for specific performance. The trial Court decreed the suit of the plaintiff for specific performance in respect of the plot beneath the constructed house of the plaintiff. The defendant was directed to execute the sale deed of the said portion. However, it was held that the defendant could not be bound to execute the sale deed with regard Regular Second Appeal No.4403 of 2004 4 to the remaining vacant portion of the land. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by the Additional District Judge. The defendant had not challenged the judgment and decree of the trial Court. In these circumstances, the controversy involved in this appeal is short and to the effect that as to whether the suit for specific performance with regard to the vacant plot was also liable to be decreed. Both the Courts below, after appreciating the evidence on record, have held that only some portions of the plot have been purchased by the plaintiff and he had raised construction over the same. The site plan proved on record by the plaintiff also showed that he was in possession of the constructed portion. The site plan revealed that the plaintiff was in possession of the northern portion of the plot whereas southern portion of the plot was still vacated. As per agreement Exhibit P2, some portion of the plot was purchased by the plaintiff and for the remaining portion of the plot, plaintiff was held at liberty to make the payment of the total amount up to 1.8.1997. But he had failed to do so and in these circumstances, defendant could not be forced to execute the sale deed of the remaining portion of the plot in question. The remaining portion of the land was held to be in possession of the defendant. The said findings of fact are not liable to be interfered in this appeal. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 23, 2009 arya Regular Second Appeal No.4403 of 2004 5