RSA No.4302 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4302 of 2009(O&M) Date of decision: 20.1.2010 Manmohan Singh ......Appellant(s) Versus Hakam Singh etc. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr.Manish Kumar Singla, Advocate for the appellant. Rakesh Kumar Garg, J.(Oral) CM No.13039-C of 2009 Application is allowed subject to all just exceptions. RSA No.4302 of 2009(O&M) The appellant who is defendant No.1 in the civil suit has filed this appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent No.1 for possession by way of specific performance of the agreement to sell in question has been decreed to the extent of getting the specific performance of agreement to sell Ex.P-1 executed to the extent of 2 kanals 2 marlas land with proportionate costs. As per averments, plaintiff-respondent No.1 filed a suit for possession by way of specific performance of the agreement to sell dated 27.5.2004 regarding the property detailed in the head note executed by appellant in his favour for a total sale consideration of Rs.1,28,124/-. Plaintiff also sought a declaration that the sale deed dated 26.5.2004 executed by the appellant in favour of defendant No.2 regarding 2 kanals land out of the suit land was illegal null and void and without consideration. RSA No.4302 of 2009(O&M) 2 Alternative relief for recovery of an amount and injunction restraining the defendant-appellant from further alienating the suit property was also sought by the plaintiff-respondent. It is the case of the plaintiff-respondent that defendant No.1 on execution of the agreement to sell dated 27.5.2004 for selling his land measuring 4 kanals 2 marlas for a total sum of Rs.1,28,124/- received a sum of Rs.82,000/- as earnest money from him in the presence of marginal witnesses and after admitting the contents of the agreement to sell, thumb marked the same in the presence of marginal witnesses. The date for execution of the sale deed was fixed for 26.5.2005 but the appellant failed to execute the sale deed in favour of the plaintiff-respondent as stipulated. Hence, the present suit. Upon notice, the appellant as well as respondent No.2 appeared and filed their separate written statements. In his written statement, the appellant raised various preliminary objections. On merits, he admitted his ownership, however, he denied the execution of the agreement to sell dated 27.5.2004 in favour of the plaintiff-respondent. Receipt of earnest money was also denied. It was stated that the agreement in question was false, forged and self created document. Dismissal of the suit was prayed for. Respondent No.2 in his written statement, in addition to the various preliminary objections, submitted that the appellant was not the owner of land measuring 4 kanals 2 marlas as he had purchased the same through sale deed dated 26.5.2004 from the appellant for a consideration of Rs.87,500/- and possession of Khasra No.14//4/2 measuring 2 kanals adjoining his land was delivered to him and since then, he is in actual physical cultivating possession of the same. It was further stated that at the time of execution of the alleged agreement to sell dated 27.5.2004, the RSA No.4302 of 2009(O&M) 3 appellant was not the owner of the land measuring 2 kanals as aforesaid out of the suit land. Dismissal of the suit was prayed by him also. On appraisal of the evidence, the trial Court found that the appellant had admitted the execution of agreement to sell in his cross- examination and in fact had played a fraud upon the plaintiff-respondent and executed an agreement to sell in regard to land measuring 4 kanals 2 marlas whereas he executed the sale deed with respondent No.2 for 2 kanals of land out of the suit land which was the subject matter of Ex.P-1 agreement to sell with the plaintiff-respondent and therefore, the aforesaid sale deed dated 26.5.2004 in favour of respondent No.2 was illegal. Since the main relief was granted to the plaintiff-respondent, issue No.3 with regard to alternative relief was not considered. Issue No.4 was also decided in favour of the plaintiff-respondent. However, onus to prove issues No.5 to 9 was on the defendants. These issues were not pressed by them and in view of the findings on the issues, suit of the plaintiff-respondent was decreed with costs and the plaintiff was held entitled to specific performance of agreement to sell dated 27.5.2004 and the sale deed dated 26.5.2004 executed by the appellant in favour of respondent No.2 was declared a Sham transaction and defendants were restrained from alienating the suit land as detailed in the head note of the plaint. Against the aforesaid judgment and decree of the trial Court, both the respondents filed separate appeals which were decided by the Lower Appellate Court vide a common decision given in impugned judgment and decree dated 23.7.2009. In Civil appeal No.16 of 25.3.2009 titled as Surjit V. Hakam Singh and another which was filed by respondent No.2, the Lower Appellate Court held that Ex.D1 i.e sale deed for land measuring 2 kanals RSA No.4302 of 2009(O&M) 4 in favour of respondent No.2 executed by the appellant on 26.5.2004 cannot be held to be a Sham transaction; rather Surjit Singh became the owner of the aforesaid property to the extent of 2 kanals through the aforesaid sale deed Ex.D1. In Civil Appeal No.20 of 10.4.2009 titled as Manmohan Singh v. Hakam Singh and another filed by the present appellant against the judgment and decree of the trial Court, though it was argued that agreement to sell Ex.P1 was false and fabricated document, however, the aforesaid argument was not accepted and it was held that the appellant executed the agreement to sell (Ex.P1) with the plaintiff-respondent and after discussing the effect of the sale deed executed in favour of respondent No.2 for 2 kanals of land on 26.5.2004 (Ex.D1), the findings of the trial Court were modified and the suit of the plaintiff-respondent Hakam Singh for specific performance of agreement to sell Ex.P1 to the extent of 2 kanals 2 marlas of land with proportionate costs was decreed. Still not satisfied,the appellant (defendant No.1) has filed the instant appeal challenging the judgment and decree of the Lower Appellate Court. On the basis of the aforesaid facts, learned counsel for the appellant has submitted that the following substantial questions of law arises in this appeal: “(i) Whether, in view of Section 12 of the Specific Relief Act, specific performance of part of a contract can be decreed without specifically pleading and claiming the same? (ii) Whether a suit for specific performance can be enlarged into a suit for declaration and possession? (iii) Whether suit for specific performance is RSA No.4302 of 2009(O&M) 5 maintainable and can be decreed especially when the vendor is not owner of the whole of the property mentioned in the agreement to sell?” Learned counsel for the appellant has vehemently argued that in the present case, the plaintiff-respondent has failed to plead and prove the ingredients of Section 12 of the Specific Relief Act, 1963 and therefore, he is not entitle to a decree for specific performance of the agreement to sell in question for a part of the contract. Learned counsel for the appellant has further raised an argument that vide impugned judgment and decree of the Lower Appellate Court, the appellant had been directed to execute the sale deed in favour of the plaintiff-respondent for land measuring 2 kanals 2 marlas whereas the appellant has been left with only 1.15 marlas of land as per the pleadings of the plaintiff-respondent. Learned counsel further argued that while asking for specific performance of the agreement to sell in question, the plaintiff-respondent has also sought declaration, thus enlarging the scope of the suit for specific performance which cannot be permitted in law. I have heard learned counsel for the appellant. The question with regard to the relief of declaration being included in the suit for specific performance was not raised before the Courts below. Even the plea was not taken by the appellant that he cannot execute a decree for 2.2 kanals of land as he has been left with land only to the extent of 1.15 marlas and therefore, the agreement to sell in question has become inequitable. No such argument was raised before the Lower Appellate Court. I have gone through the pleadings of the parties with the help of the learned counsel for the appellant. However, I find that in para Nos.12, 13 and 14 of the plaint, the plaintiff-respondent has specifically mentioned about the previous sales, while further submitting RSA No.4302 of 2009(O&M) 6 that the defendant had concealed the aforesaid facts from him and had executed the agreement to sell in question. Language of Section 12 of the Specific Relief Act also makes it amply clear that the Court can ask for the specific performance of part of a contract. Even otherwise, it is well settled that the grant of decree for part performance of the contract is a discretionary relief. The aforesaid discretion is to be exercised by the Courts below keeping in view the facts and circumstances of the case and the same cannot be interfered with, which has been rightly exercised in this case keeping in view the parameters of Section 20 of the Act. Thus, I find no merit in this appeal. No question of law, much less substantial question of law, as argued by the learned counsel for the appellant, arises in this appeal. Dismissed. January 20, 2010 (RAKESH KUMAR GARG) ps JUDGE