RSA No.1131 of 2010 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1131 of 2010 (O&M) Date of decision:30.09.2010. Sunita Rani and others ...Appellants Versus Ajmer Singh ...Respondent CORAM: HON’B LE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. A.K.Ahluwalia, Advocate, for the appellants. Mr. A.S.Sidhu, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. The defendants are in second appeal against the judgment and decree of the Courts below by which the suit filed by the plaintiff for possession by way of specific performance of agreement to sell dated 08.01.2003, has been decreed. Plaintiff and defendant (Jasmer Singh) were real brothers. The defendant mortgaged the suit property with the plaintiff for a sum of `24,000 vide agreement dated 09.05.2001 and subsequently entered into an agreement to sell dated 08.01.2003 with the plaintiff in respect of the suit property at the rate of `6,00,000 per acre. The total sale consideration was `3,86,250. At the time of execution of agreement to sell, defendant had received a sum of `36,000 by way of cheque and mortgage money of `24,000 was adjusted. Thus, a sum of `1,00,000 was paid as imprest at the time of agreement and the remaining amount was agreed to be paid at the time of execution and registration of sale deed on 31.07.2003. In the RSA No.1131 of 2010 (O&M) -2- ****** meantime, defendant requested the plaintiff for more money against the suit property for which plaintiff had issued a cheque dated 21.07.2003 for a sum of `1,30,000 drawn on Kheti Vikas Bank, Kharar. As per information of the plaintiff, defendant had not encashed the said cheque, however, it was claimed by him that if the said cheque was encashed by the defendant, besides `1,00,000, the total amount of earnest money would be `2,30,000. The plaintiff remained present in the office of Sub Registrar, Kharar on 30.07.2003 and also on 04.08.2003 in order to perform his part of the agreement with sufficient amount for the payment of balance sale consideration and also for the purchase of stamp papers, but the defendant did not turn up. He got his presence marked by getting his affidavit attested from the Executive Magistrate. Ultimately, when the defendant completely failed to execute the sale deed, the suit was filed by the plaintiff. In defence, it was pleaded that the suit property was not mortgaged for a sum of `12,000, as alleged. The amount was received as a loan and the plaintiff obtained signatures of the defendant on one paper which was neither read over nor he knew the contents thereof. It was also denied that the amount of `36,000 was ever received. The transaction of cheque of `40,000 was stated to be fake because the plaintiff had taken the money back. It was alleged that the last date fixed for execution and registration of the sale deed was 31.07.2003 and the plaintiff might have come to the Tehsil premises on 30.07.2003 but the defendant had no knowledge about it. On these premise, he prayed for dismissal of the suit. On the pleadings of the parties, issues were framed by the Trial Court on 30.08.2006. On the basis of the evidence led by both the parties, the Courts below came to a firm conclusion that the agreement to sell is proved and the plaintiff was ready and willing to perform his part of the agreement. At the time when notice of motion was issued in this appeal, learned counsel for the appellants had submitted that they are ready to return the amount as the appellants do not have any other land. On this RSA No.1131 of 2010 (O&M) -3- ****** ground alone, notice of motion was issued, but after appearance, learned counsel for the respondent had refused to take the money with interest and has rather argued the case on merits. After hearing both learned counsel for the parties, I do not find any question of law much-less substantial involved in this appeal as it is a case based upon pure finding of fact recorded by the Courts below regarding due execution of agreement to sell and readiness and willingness of the plaintiff to perform his part of the agreement. Hence, the appeal is not meritorious and as such, the same is hereby dismissed. No costs. September 30, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE