R.S.A.No.1205 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1205 of 2008 (O&M) Date of Decision : 07.07.2009 Smt. Fajjan and others ...Appellants Versus Smt. Santosh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Kanwaljit Singh, Sr. Advocate, with Mr. Rohan Chaudhary, Advocate, for the appellants. Mr. Ravi Kant Sharma, Advocate, for the respondents. HEMANT GUPTA, J. (ORAL) Defendant Nos.2 and 3 are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby the suit for specific performance of an agreement to sell dated 18.6.1998, was decreed. Defendant No.1 as owner of land measuring 6 Kanals 3 Marlas entered into an agreement to sell with Ranbir Singh-plaintiff for a total sale consideration of Rs.1,50,000/-. Rs.1,39,200/- was paid as earnest money. The balance sale consideration was to be paid on or before 7.7.1998, the date fixed for execution and registration of sale deed. The agreement to sell was executed and registered with the Sub Registrar on 18.6.1998 itself. Defendant No.1 suffered a consent decree in favour of defendant Nos.2 and 3 on 5.12.1998. The present suit for specific R.S.A.No.1205 of 2008 (O&M) 2 performance was filed on 27.2.1999. In the said suit, the plaintiff has examined Chhatar Singh (PW-1), Yakub Numberdar (PW-2) and Yunus (PW-4). The agreement to sell is Ex.PW-1/A and the receipt of payment is Ex.PW-1/B. On the other hand, defendant No.1 herself appeared as DW-1 and produced Chhatar Singh, Deed Writer, to prove earlier agreements to sell. The learned trial Court decreed the suit holding that the agreement to sell stand executed by the defendant and that plaintiff was ready and willing to perform his part of the contract. In appeal, the said findings were affirmed. It was also found that the fact defendant No.1 has suffered decree in favour of her sons on 5.12.1998 before the registration of the sale deed in terms of the agreement. It speaks of mala fide conduct of the appellant. Learned counsel for the appellants before this Court has vehemently argued that payment of amount of Rs.1,39,200/- as earnest money is unbelievable and that in fact the agreement was not for sale of the property, but it was in fact a transaction of loan. Therefore, the decree for specific performance could not have been granted on the basis of such agreement to sell. Learned counsel for the appellants has also relied upon Bal Krishna and Another Vs. Bhagwan Das (Dead) and Others 2008(2) RCR (Civil) 732, wherein in case of inequitable and hardship, it was held that the Court has jurisdiction to grant monetary compensation. I have heard learned counsel for the parties and do not find that any substantial question of law arise for consideration of this Court in R.S.A.No.1205 of 2008 (O&M) 3 second appeal. Defendant No.1 entered into an agreement to sell with Ranbir Singh on 8.12.1995 and again on 18.12.1997 with one Phoolwati. The latter agreement was attested by Ranbir Singh. But the fact remains that no suit on the basis of the aforesaid agreements have been filed by the aforesaid prospective vendees. The previous execution of the agreement to sell would infact support the stand of the plaintiff that defendant was interested in selling land and, therefore, entered into an agreement to sell in 1995, 1997 and lastly in 1998. The agreement to sell dated 18.6.1998 is registered with the Sub Registrar. The registration of an agreement goes a long way to prove that in fact the parties have entered into an agreement to sell with intention of selling the land on the aforesaid date. Subsequent conduct of appellant No.1 in suffering a decree in favour of defendant Nos.2 and 3, shows that she was aware of her obligation under the agreement and, therfore, she wanted to avoid the specific performance of the agreement by suffering such decree. The defendant has not set up the case of hardship or inequity as provided under Section 20 of the Specific Relief Act before the Courts below. Such argument, which is primarily based on facts cannot be permitted to be raised in the second appeal for the first time. Otherwise also there is no reason to return a finding that the agreement has caused any hardship or is inequitable so as to decline the relief for specific performance to the plaintiff. Findings of fact have been recorded by Courts below on the basis of evidence that agreement to sell was executed and that the plaintiff was ready and willing to perform his part R.S.A.No.1205 of 2008 (O&M) 4 of the contract. In view of the above, I do not find any merit in the appeal and the same is accordingly dismissed. 07.07.2009 (HEMANT GUPTA) Vimal JUDGE