IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 272 of 1998. Judgment reserved on: 13.3.2009 Date of decision: 20.3.2009. Chande Ram ……….Appellant Vs. Chandu Ram and others ……Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. S.S. Mittal, Sr. Advocate with Mr. Surinder P. Sharma, Advocate. For the Respondents : Mr. G.S. Sisodhia, vice Mr. R.K. Sharma, Advocate, for respondent No.1 None for other respondents. Kuldip Singh, Judge. The appellant was defendant No.1 in the Civil Suit No.37/91 which was filed by respondent No.1 on 27.3.1991, in which respondents No.2 to 6 were impleaded as defendants No.2 to 6. The suit was for specific performance of contract on the basis of agreement dated 31.5.1985 and was decreed on 22.2.1997 by learned Senior Sub Judge, Lahaul & Spiti at Kullu, exercising powers of Sub Judge Ist Class, Kullu. Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 2. The facts, in brief, are that Sangat Ram vide writing dated 31.5.1985 agreed to sell to respondent No.1 his ½ share in land comprised in khasra No.578, situated in Phati Bradha, Kothi Harkandi, Tehsil and Distt Kullu for Rs.15,000/-, earnest money Rs.10,000/- was paid to Sangat Ram by respondent No.1. The balance amount of Rs.5,000/- was agreed to be paid to Sangat Ram at the time of registration of the sale deed. The respondent No.1 was ready and willing to perform his part of contract, but despite that Sangat Ram did not execute and register the sale deed in favour of respondent No.1. A notice was served on Sangat Ram but despite that he failed to perform his part of contract. Sangat Ram had died and therefore, the suit was filed against his legal representatives appellant No.1 and respondents No.2 to 6 for specific performance of contract. 3. The suit was contested by appellant No.1 by filing written statement, the respondents No.2 to 6 have also filed a separate written statement. The appellant No.1 took several preliminary objections and has submitted that he only inherited the property of Sangat Ram, therefore, the others have been wrongly impleaded as defendants in the suit. On merits, he has submitted that Sangat Ram was his uncle (father’s brother). Sangat Ram had inherited his property from his ancestors, Sangat Ram was an agriculturist and therefore, he could not alienate the suit land being ancestral property. The respondents No.2 to 6 have pleaded that they have not inherited the property of Sangat Ram and therefore they have been unnecessarily impleaded as party in the suit. In the replication, the respondent No.1 reiterated his stand 3 which was taken in the plaint. The trial Court had framed the following issues:- 1. Whether deceased Sangat Ram executed an agreement to sell the suit land in favour of the plaintiff, as alleged? OPP 2. Whether the plaintiff is entitled to the relief of specific performance of contract as claimed? OPP 3. Whether the defendant No.1alone has inherited the estate of deceased Sangat Ram as alleged? OPD 4. Whether the defendants No.2 to 6 have been mis- joined as alleged? OPD 5. Whether the defendants are entitled to special costs? OPD 6. Whether the suit land was ancestral in the hands of Sangat Ram, as alleged? OPD 7. Whether Sangat Ram and defendant No.1 are governed by agricultural custom? If so what the custom is? OPD 8. Whether the agreement to sell is not enforceable as alleged? OPD 9. Whether the suit is within limitation? OPP 10. Relief. The issues No.1,2, 3 and 9 were answered in affirmative. Issue No.4 was not pressed. Issues No.5 and 6 were answered in negative. Issue No.7 though answered in affirmative but to no effect, issue No.8 became redundant and ultimately the suit was decreed by trial Court on 22.2.1997 as per operative part of the judgment. The respondent No.1 filed an appeal against the decision dated 22.2.1997 which was dismissed by learned Addl. District Judge, Kullu on 6.8.1997, hence the present appeal which has been admitted on the following substantial questions of law:- 4 1. Whether agreement P-5 is in continuation /renewal of agreement P-6 ? If so, whether the two agreements should be read together for a correct interpretation of agreement? 2. Whether on a proper interpretation of agreement P-5. alongwith P-6 it can be said that P-5 is an agreement of sale and not agreement of mortgage? 4. I have heard Mr. S.S. Mittal, learned Senior Advocate for the appellant and Mr. G.S. Sisodhia, learned counsel for respondent No.1 and have also gone through the record. It has been submitted on behalf of the appellant that Ex.P-5 is not an agreement for sale but, is an agreement of mortgage and this agreement was to come to an end on payment of Rs.10,000/- by Sangat Ram in three years from the date of agreement. It has also been submitted that Ex.P-5 is to be read with Ex.P-6. On these grounds, it has been submitted that the suit for specific performance of contract was not maintainable and the decree passed by two Courts below on the basis of agreement dated 31.5.1985 is erroneous. The learned counsel for the respondents has supported the impugned judgment and has submitted that the agreement dated 31.5.1985 is an agreement for sale and two Courts below after due appreciation of material on record have rightly decreed the suit of respondent No.1. Substantial questions of law No.1 and 2. 5. The substantial questions of law No.1 and 2 are interconnected, therefore, both of them are being taken up together for disposal. Ex.P-6 is the writing (imanatnama) dated 22.7.1984, indicating Sangat Ram had taken Rs.2500/- from Chhandu Ram in 5 lieu of his ½ share in land situated in Phati Bradha, Kothi Harkandi. In this writing, it has also been stated that till Rs.2500/- were not paid back by Sangat Ram Chhandu Ram would continue to derive income of the land. The writing Ex.P-6 is not a registered document and therefore, it can not be treated as mortgage deed. The legal value of Ex.P-6 is that of a writing only between Sangat Ram and Chhandu Ram indicating transaction of Rs.2500/- . Ex.P-5 is the agreement between Sangat Ram and Chhandu Ram for sale of suit land for a consideration of Rs.15,000/- out of which Rs.10,000/- was paid on 31.5.1985 on the date of agreement Ex.P-5 and the balance amount was to be paid at the time of sale deed. There is a specific averment in the agreement Ex.P-5 that in case Sangat Ram would not execute the sale deed then Chhandu Ram would have right to get the sale deed executed through the Court. There is also a clause in the agreement that in case Chhandu Ram would not pay the balance amount of Rs.5000/- which was corrected to Rs.10,000/- at the end of agreement, till 31.5.1985 then earnest money paid by him would stand forfeited. Ex.P-5 is a complete agreement between Sangat Ram and Chhandu Ram for sale of disputed land. In Ex. P-5 there is no mention or indication of writing dated 22.7.1984 Ex.P-6, nor the amount mentioned in Ex.P-6 has been adjusted. The agreement Ex.P-5 is independent and suit has been filed on the basis of this agreement. DW-1 Chande Ram in his statement has no where stated that agreement Ex.P-5 in any way is connected with writing Ex.P-6. He has rather stated that his uncle had agreed to sell the land. The two Courts below have rightly interpreted the agreement 6 Ex.P-5 and no fault can be found with the view taken by two Courts below in decreeing the suit of respondent No.1 for specific performance of contract on the basis of agreement dated 31.5.1985 Ex.P-5 . The substantial questions of law 1 and 2 are accordingly decided against the appellant. 6. No other point was urged. 7. The result of the above discussion, the appeal fails and is accordingly dismissed, no costs. ( Kuldip Singh), Judge March 20, 2009 (sks)