REGULAR SECOND APPEAL No.515 OF 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.515 of 2009 DATE OF DECISION: 1 st MARCH, 2011 Azad Singh & others .... Appellants Versus Tarif Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Rakesh Nehra, Advocate for the appellants. Mr. M. L. Sarin, Senior Advocate with Mr. Nitin Sarin, Advocate for respondent No1. * * * * L.N. MITTAL, J. (ORAL) This is second appeal by three of the six legal representatives of Ran Singh defendant, since deceased. Suit was filed by respondent No.1-plaintiff Tarif Singh against Ran Singh-defendant, alleging that the defendant agreed to sell the suit land measuring 8 Kanals to the plaintiff for Rs.1,50,000/- (Rupees one lac fifty thousand only) and received Rs.95,500/- (Rupees ninety five thousand five hundred only) as earnest money and executed agreement to sell dated 20.05.1998. It was stipulated in the agreement that if the earnest money with interest is not repaid by the defendant to the plaintiff upto 19.05.2000, necessary sale deed of the suit land shall be executed upto 26.05.2000. The defendant did not repay the earnest money to the plaintiff nor executed the sale deed in his favour although the plaintiff always remained ready and willing to REGULAR SECOND APPEAL No.515 OF 2009 -2- perform his part of the contract. Accordingly, plaintiff sought specific performance of the impugned agreement including possession of the suit land. Legal heirs of the defendant (since deceased) broadly denied the plaint allegations. Execution of the agreement by defendant in favour of the plaintiff was denied. It was also pleaded that defendant was only cosharer and, therefore he could not execute agreement regarding suit land of specific killa number. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Jhajjar vide judgment and decree dated 20.12.2006 decreed the plaintiff's suit in the following terms: “It is ordered that the suit of the plaintiff is decreed with costs and a decree for specific performance is passed in favour of the plaintiff and against the defendants directing the defendants to execute the sale deed in favour of the plaintiff in view of the agreement dated 20.05.1998 regarding to the suit land within a period of three months from the date of judgment failing which the amount of Rs.95500/- along with interest shall be recovered by sale of the land of the defendants, which was mortgaged vide mortgage deed Ex.P9. The net sale proceeds shall be adjustable towards the realization of the decretal amount. The deficiency if any be made good by sale of other moveable and immovable property of the defendants as the case may be.” Plaintiff preferred first appeal against the judgment and decree of the trial Court. Learned District Judge, Jhajjar vide judgment and decree dated 21.10.2008 modified the judgment and decree of the trial court and passed following decree in favour of the plaintiff: “A decree for specific performance is passed in favour REGULAR SECOND APPEAL No.515 OF 2009 -3- of the plaintiff and against the defendants directing the defendants to execute the sale deed in favour of plaintiff after accepting the remaining sale consideration from him (plaintiff) in view of the agreement dated 20.05.1998 regarding the suit land within a period of three months from the date of judgment, failing which the plaintiff shall be entitled to get the sale deed executed through court by filing an execution of the decree.” Feeling aggrieved, three of the six legal representatives of the defendant have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that there was another agreement dated 30.11.1999 between plaintiff Tarif Singh and defendant Ran Singh for sale of other 8 Kanals land for Rs.90,000/- (Rupees ninety thousand only) out of which plaintiff paid Rs.62,000/- (Rupees sixty two thousand) as earnest money to the defendant. The said agreement also stipulated that if the defendant failed to repay the earnest money to the plaintiff upto 19.05.2000, the defendant shall execute sale deed of the suit land in favour of plaintiff. Learned counsel for the appellants contended that plaintiff filed separate suit for specific performance of the said agreement dated 30.11.1999, but the said suit was decreed for refund of the earnest money with interest @ 12% per annum holding the said agreement to be proved, but concluded that it was a loan transaction. The said judgment and decree of the trial court were upheld in first appeal as well as by this Court in second appeal bearing RSA No.27 of 2009 titled as Tarif Singh Vs. Smt. Chandrawal & Ors. decided on 08.01.2009. Learned counsel for the REGULAR SECOND APPEAL No.515 OF 2009 -4- appellants accordingly contended that in the instant case also, the suit may be decreed for recovery of earnest money with interest as it was loan transaction. Learned counsel for respondent No.1-plaintiff, however, contended that legal heirs of the defendant did not even raise any plea in the written statement that it was loan transaction and, therefore, no such plea can be raised now nor any evidence in support of this plea can be looked into. Reliance in support of this contention have been placed on judgment of Hon'ble Privy Council in the case of Siddik Mahomed Shah versus Mt. Saran and others, AIR 1930 Privy Council 57(1), wherein it was held that no evidence can be looked into on a plea not raised in defence. Reference has also been made to judgment of Hon'ble Supreme Court in the case of Bhagat Singh and others versus Jaswant Singh, AIR 1966 Supreme Court 1861, wherein it was held that the defendant must specifically allege ancestral nature of the property and his relationship and mere framing of issues and leading of evidence is not sufficient. Reliance has also been placed on judgment of Hon'ble Supreme Court in the case of Siddu Venkappa Devadiga versus Smt. Rangu S. Devadiga and others, AIR 1977 Supreme Court 890, wherein it was held that appellate court cannot make out a new case which was not pleaded by the party. Learned counsel for respondent No.1 also contended that finding of fact recorded by the first appellate court cannot be interfered with in second appeal even if the finding of fact recorded by the first appellate court is erroneous. Reference in support of this contention has been placed on judgment of Hon'ble Supreme Court in the cases of Deity Pattabhiramaswamy versus S. Hanymayya and others, AIR 1982 Supreme Court 57. REGULAR SECOND APPEAL No.515 OF 2009 -5- Learned counsel for respondent No.1 also contended that relief of specific performance is the equitable relief when agreement to sell is proved and it would be wholly inequitable if relief of specific performance of the agreement is denied. In support of this contention, reliance has been placed on judgment of this Court in the case of Surjeet and others versus Ombir Singh, 1998(2) PLJ 663. Learned counsel for respondent No.1 also submitted that there is no pleading or evidence relating to agreement dated 30.11.1999 for which separate suit was filed culminating in RSA No. 27 of 2009 decided on 08.01.2009 by this Court. I have carefully considered the rival contentions. Contention raised by learned counsel for the appellants on the basis of the other agreement dated 30.11.1999, although prima facie attractive, cannot be accepted in the facts and circumstances of the instant case. In the said other suit, as revealed by judgment dated 08.01.2009 of this Court, both the courts below had held the said agreement to be loan transaction and thereby decreed the suit for recovery of earnest money with interest and declined the relief of specific performance of the said agreement. In these circumstances, this Court in second appeal refused to interfere with the concurrent finding of the courts below in the said other case. In the instant case, however, the position is quite reverse. Plaintiff's suit was decreed by the trial court for specific performance of the agreement although in the operative part of the judgment and decree, the trial court created confusion by also directing recovery of the earnest money with interest without even specifying the rate of interest. First appellate court passed clear cut decree for specific performance of the agreement. In the instant case, discretion exercised by the courts below in granting specific performance of agreement is not required to be interfered with in second REGULAR SECOND APPEAL No.515 OF 2009 -6- appeal. Ordinarily relief of specific performance of the agreement to sell immovable property is required to be granted unless there is some special reason to decline the same. In the instant case defendant's legal heirs did not even plead any reason much less special reason to decline the relief of the specific performance of the agreement to the plaintiff. In the aforesaid context, it is significant to note that the defendant's legal heirs did not plead that it was a loan transaction. Consequently, a new case cannot be made out for the appellants by holding it to be loan transaction and thereby declining the relief of specific performance of the agreement to the plaintiff. It would not be out of place to notice here with great significance that legal heirs of the defendant did not prefer any appeal against judgment and decree of the trial court. Consequently, in the instant second appeal, no relief can be granted to the appellants when specific performance of the agreement was even ordered by the trial court. The plea of loan transaction cannot be accepted being beyond pleadings and evidence. The contention of counsel for the appellants based on judgment dated 08.01.2009 of this Court in RSA No.27 of 2009 also can not be accepted being beyond pleadings and evidence and also because facts were different in that case inasmuch as both the courts below in that case had ordered recovery of earnest money instead of granting specific performance of the agreement, whereas in the instant case, the courts below have granted relief of specific performance of the agreement. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Defendant's legal heirs instead of taking the plea of the transaction being a loan transaction took the stand of REGULAR SECOND APPEAL No.515 OF 2009 -7- complete denial of the agreement. They denied the execution of the impugned agreement which has, however, been proved by the plaintiff by leading overwhelming cogent evidence. The defendant's legal heirs thus did not come to the court with clean hands. Accordingly, I find no merit in the instant second appeal, which is, therefore, dismissed. (L. N. MITTAL) JUDGE 1st March, 2011 'raj'