Regular Second Appeal No. 4777 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4777 of 2010(O&M) Date of decision : December 13, 2010 Ujagar Singh and another ....Appellants versus Surinderpal Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sumeet Mahajan, Senior Advocate with Mr. Vaibhav Sehgal, Advocate and Mr. Sham Lal Bhalla, Advocate, for the appellants L.N. Mittal, J. (Oral) CM No. 14171.C of 2010 The application is allowed and Annexures are taken on record subject to all just exceptions. CM No. 14172.C of 2010 Allowed as prayed for. RSA No. 4777 of 2010 Defendants 2 and 3 having failed in both the courts below are in second appeal. Respondents no. 1 and 2-plaintiffs filed suit for specific performance of the agreement to sell against Bharat Singh defendant no. 1 Regular Second Appeal No. 4777 of 2010(O&M) -2- (since deceased and represented by respondents no. 3 to 10) and the appellants as defendants no. 2 and 3 alleging that defendant no. 1 vide agreement dated 21.2.1989 agreed to sell suit land measuring 42 kanals 15 marlas to the plaintiffs @ Rs 1,10,000/- per acre and received Rs 50,000/- as earnest money by way of two cheques of Rs 49,000/- and Rs 1,000/- and executed aforesaid agreement. Sale deed was to be executed on or before 15.6.1991. However, on 15.6.1991 defendant no. 1 received further amount of Rs 1 lac from the plaintiffs and by way of endorsement on the back of the agreement extended the date for execution of sale deed till 15.2.1993 and also delivered possession of the suit land to the plaintiffs. The plaintiffs always remained ready and willing to perform their part of the contract. The plaintiffs also went to the office of Sub Registrar on 15.2.1993 with requisite money to get the sale deed executed and registered in terms of the agreement but defendant no. 1 in breach of the agreement sold the suit land to defendants no. 2 and 3 vide sale deed dated 4.11993. The said sale deed is not binding on the plaintiffs being result of collusion among the defendants. Defendant no. 1 in his written statement denied the plaint allegations. He denied the impugned agreement dated 21.2.1989 as well as endorsement dated 15.6.1991. It was pleaded that the same are result of fraud. It was also alleged that now defendants no. 2 and 3 are owners in possession of the suit land. Defendants no. 2 and 3-appellants contested the suit and claimed to be bonafide purchasers of the suit land for consideration without notice of the alleged agreement. Execution of the agreement and Regular Second Appeal No. 4777 of 2010(O&M) -3- endorsement by defendant no. 1 were also controverted. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Samrala vide judgment and decree dated 23.8.2001 decreed the plaintiffs' suit. First appeal preferred by defendants no. 2 and 3 has been dismissed by learned Additional District Judge, Ludhiana vide judgment and decree dated 15.11.2010. Feeling aggrieved, defendants no. 2 and 3 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Gurmail Singh is one of the two attesting witnesses of the impugned agreement Ex. P1 and he also scribed endorsement dated 15.6.1991 Ex. P2. He has supported the plaintiffs' case. Surat Singh father and attorney of the plaintiffs entered into impugned agreement on behalf of the plaintiffs and signed the agreement. He has also appeared in the witness box and supported the plaintiffs' case. Other evidence has also been led by the plaintiffs. Defendant no. 2 appeared in the witness box. Defendants also examined some other witnesses. Learned counsel for the appellants contended that payment of Rs 50,000/- by two cheques as mentioned in the agreement is not proved. The contention cannot be accepted. Evidence has come from bank record that amount of Rs 50,000/- was drawn from the account of plaintiffs' father and attorney Surat Singh through cheques and fixed deposit receipt of Rs 49,000/- was prepared in favour of Bharat Singh defendant no. 1. Consequently, it cannot be said that earnest money of Rs 50,000/- as recited Regular Second Appeal No. 4777 of 2010(O&M) -4- in the agreement was not paid. Learned counsel for the appellants also contended that if amount of Rs 50,000/- as earnest money was paid through cheques, there is no evidence of payment of further amount of Rs 1 lac through endorsement Ex. P2. The contention is untenable. It is mentioned in endorsement Ex. P2 itself that amount of Rs 1 lac has been paid. Gurmail Singh PW has also stated about the said payment in addition to the testimony of plaintiff no. 1 and his father. Moreover, the plaintiffs have also examined Commission Agent from whom plaintiff no. 1 had withdrawn Rs 50,000/- immediately preceding the aforesaid endorsement. Learned counsel for the appellants also contended that agreement Ex. P1 has been typed but endorsement Ex. P2 is hand written. Obviously, this distinction has no bearing on the case because agreement Ex. P1 is dated 21.2.1989 whereas endorsement Ex. P2 is dated 15.6.1991 i.e. more than two years after the execution of the agreement. Consequently, if the agreement was got typed and the endorsement was hand written, it would not make any difference. Learned counsel for the appellants also referred to cross- examination of Gurmail Singh who could not tell certain facts as to who had typed the aforesaid agreement and whether the courts were closed on that day and such like other questions. However, learned counsel for the appellants concedes that Gurmail Singh was examined nine years after the agreement. Obviously, he could not remember such minute details after the lapse of nine years. Learned counsel for the appellants contended that appellants Regular Second Appeal No. 4777 of 2010(O&M) -5- are bonafide purchasers of the suit land for consideration without knowledge of the impugned agreement. The contention cannot be accepted because vide endorsement Ex. P2, possession of the suit land was delivered to the plaintiffs. Consequently, the appellants while purchasing suit land much thereafter could not be unaware of the impugned agreement. Even otherwise, the appellants are residing in a neighbouring village and sale deed in their favour is about four years after the date of agreement. During this long period, defendants no. 2 and 3/appellants could not have been unaware of the agreement particularly because while purchasing the suit land they were supposed to make inquiries. Endorsement Ex. P2 would also reflect that plaintiffs had already come into possession of the suit land before the appellants purchased the suit land. Consequently, it cannot be said that appellants are bonafide purchasers of the suit land. Learned counsel for the appellants also contended discretion regarding grant of relief of specific performance of the agreement has not been properly exercised by the courts below within parameters of section 20 of the Specific Relief Act, 1963. The contention cannot be accepted. The case of the plaintiffs does not fall within any exception mentioned in sub section (2) of section 20 of the Specific Relief Act, 1963. The plaintiffs have not derived any unfair advantage over defendant no. 1 under the agreement nor specific performance of the agreement is inequitable in the facts and circumstances of the case. There is not even a plea by defendant no. 1 that specific performance of the contract would involve some unforeseen hardship to him. Consequently, it cannot be said that discretion by the courts below in granting relief of specific performance of the Regular Second Appeal No. 4777 of 2010(O&M) -6- agreement to the plaintiffs has not been properly or judiciously exercised by the courts below. On the contrary, ordinarily when agreement to sell is proved, plaintiff is entitled to relief of specific performance of the agreement unless some exceptional circumstance is proved to deny the said relief to the plaintiff. In the instant case, there is no circumstance to deny the said relief to the plaintiffs. There is concurrent finding of courts below after appreciation of evidence. The said finding is supported by cogent reasons. The said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. Even if on further appreciation of evidence a different view may be possible, even then judgments of the courts below do not warrant interference on this ground because the view taken by the courts below is reasonable and fully justified by the evidence on record. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is found to be without any merit and is dismissed in limine. ( L.N. Mittal ) December 13, 2010 Judge 'dalbir'