RSA No.3123 of 2011 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.3123 of 2011 (O&M) Date of Decision: 1 - 8 - 2011 Didar Singh ....Appellant v. Surinder Kaur ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Samir Rathore, Advocate for Mr.Sumeet Goel, Advocate for the appellant. *** KANWALJIT SINGH AHLUWALIA, J. In CM No.8593-C of 2011 C.M. is allowed. Exemption is granted as prayed for. RSA No.3123 of 2011 (O&M) The present Regular Second Appeal has been filed by the plaintiff to the suit. The learned trial Court had dismissed the suit for possession by way of specific performance of the agreement to sell dated 7.9.2000. The lower Appellate Court reversed the findings of the trial Court regarding execution of the agreement to sell dated 7.9.2000 but, however, had granted the alternative relief in favour of the plaintiff-appellant- purchaser by holding that he is entitled to recovery of Rs.One lac, paid as earnest money along with interest at the rate of 6% per annum from RSA No.3123 of 2011 (O&M) [2] 1.7.2001 till recovery of the amount. Briefly stated, it was pleaded in the suit that defendant- respondent-Mukhtiar Singh had executed an agreement dated 7.9.2000 in favour of the plaintiff-appellant for sale of 80/380th share measuring 4 Kanals out of the land, detail and description of which has been given in the plaint. It was pleaded that earnest money of Rs.One lac was paid and defendant-respondent had agreed to execute the sale deed of the suit land on or before 30.6.2001. All the expenses of the sale deed were to be borne out by the plaintiff-appellant and in failure of the plaintiff-appellant to get the sale deed executed, the earnest money was to be forfeited and in case the defendant-respondent failed to keep his promise, the plaintiff-appellant was well within his rights to get the sale deed executed through Court. It was further pleaded in the suit that defendant-respondent had delivered possession of the suit land at the time of execution of the agreement. Plaintiff-appellant remained ready and willing to purchase the suit property on payment of remaining sale consideration. According to the plaintiff- appellant 30.6.2001 and 1.7.2011 were holidays, therefore, he remained present before the Sub Registrar, Chamkaur Sahib on 2.7.2001 along with remaining sale consideration and the expenses which were to be incurred for registration of the sale deed. Upon notice, the defendant-respondent appeared. He raised some preliminary objections and also denied execution of the agreement dated 7.9.2000 being false and fabricated. The trial Court after completion of pleadings had formulated the following issues:- 1- Whether the defendant entered into an agreement with the plaintiff to sell on 7.9.2000 regarding suit land and received RSA No.3123 of 2011 (O&M) [3] Rs.1 lac as earnest money as alleged? OPP 2- Whether the suit is not maintainable in the present form? OPD 3- Whether the plaintiff has no locus standi to file the present suit? OPD 4- Whether alleged agreement dated 7.9.2000 is forged and fabricated document, is so to what effect? OPD 5- Whether the plaintiff has been and still ready and willing to purchase the suit property? OPP 6- Whether the plaintiff is entitled for specific performance of the agreement to sell? OPP 7- If the above issue is not proved whether in the alternative, plaintiff is entitled for any amount, if so to what effect as alleged? OPP 8- Relief. The trial Court held execution of the agreement to sell dated 7.9.2000 to be suspicious and came to the conclusion that there is no need for determination whether the plaintiff was ready and willing to perform his part of the contract. Thus, issue No.1 was decided against the plaintiff and in favour of the defendant. Issues No.2 and 3 were decided in favour of the defendant and against the plaintiff. The Court held that since agreement to sell dated 7.9.2000 is disputed, the prayer for alternative relief has become redundant. However, issues No.6 and 7 were decided against the plaintiff and in favour of the defendant. After the above said findings, the trial Court had dismissed the suit. Aggrieved against the dismissal of suit, the plaintiff filed an appeal. The lower Appellate Court took into consideration the evidence which was led by the plaintiff by way of additional evidence and held that the plaintiff has proved execution of agreement to sell dated 7.9.2000. The lower Appellate Court further relying upon khasra girdawari of crops of RSA No.3123 of 2011 (O&M) [4] Sauni 2001, Ex.D2 and copy of jamabandi Ex.D1 held that possession was not delivered by the defendant to the plaintiff, even though, it is recorded otherwise in the agreement to sell Ex.P1. The Court further held that plaintiff has proved that he remained ready and willing to perform his part of the contract and it is for this reason that he got himself marked present before the Executive Magistrate, Chamkaur Sahib on 2.7.2001. Having returned all the findings in favour of the plaintiff-appellant, the Court only granted the alternative relief of recovery of Rs.One lac along with interest to the plaintiff-appellant. For granting the above-said relief, the lower Appellate Court observed as under:- “16. In agreement Ex.P-1, it is mentioned that the matter regarding price of the standing poplar trees in the suit land will be settled at the time of execution of the sale deed in pursuance of Ex.P-1. Thus, virtually something more except that of payment of balance sale consideration stipulated through Ex.P-1 was remained to be done. No evidence produced to show as to what is the price of the poplar trees or as to what more amount remains to be paid by appellant to respondent on account of the price of the standing poplar trees at the time of execution of the sale deed in pursuance of Ex.P- 1. So, the terms in this respect has remained unsettled. In the absence of production of any evidence qua the price of these standing trees, it has to be held that virtually by enforcing agreement Ex.P-1, appellant will get unfair advantage over defendant by not paying the price of the standing poplar trees. As and when a party will get unfair advantage over the other, then relief of specific performance cannot be allowed in view of Section 20(2)(a)(b) of Specific Relief Act, 1963. Hardship definitely will accrue in computing the amount of the standing poplar trees in the absence of any evidence adduced by appellant and as such, keeping in view that fact as well as the bar that respondent not in a position to hand over the exclusive RSA No.3123 of 2011 (O&M) [5] possession of the sold khasra numbers without concurrence of other co-sharers, it is obvious that unforeseen hardship will be caused to respondent in performance of his part envisaged through agreement Ex.P-1. Besides, it will be unfair and unjust to grant relief of specific performance of sale of 4 kanals 0 marla of land comprised in the khasra numbers in question because the price of the standing poplar trees not got assessed and even possession actually cannot be handed over by respondent. ...” During the course of arguments, Mr.Samir Rathore, Advocate appearing for Mr.Sumeet Goel, counsel for the appellant has admitted that in the plaint, nothing was stated about valuation of the poplar trees. Further the amount was not determined between the parties. Furthermore, the counsel has failed to dislodge the revenue record wherefrom possession of the defendant-respondent was inferred. The lower Appellate Court has given precedence to the entries in the khasra girdawari and jamabandi, than the agreement to sell. No fault can be found to this approach while taking into consideration the totality of circumstances that price of poplar trees was not determined and valued and furthermore, possession of the suit property was not with the plaintiff-appellant. The lower Appellate Court has granted the alternative relief regarding recovery of the earnest money. Since grant of relief of specific performance of the agreement would have caused unnecessary hardship to the defendant-respondent, therefore, the lower appellate Court has rightly held that the plaintiff-appellant is only entitled to the recovery of earnest money. Counsel has failed to advance any meaningful argument as to why the relief granted to the plaintiff-appellant is not justifiable. Furthermore, counsel has also failed to spell out any reason as to how specific performance of the agreement ought to be granted by this RSA No.3123 of 2011 (O&M) [6] Court. To cause interference in the Regular Second Appeal, counsel has not been able to canvas any question of law, much less the substantial one. Hence, there is no merit in the present appeal and the same is hereby dismissed. ( KANWALJIT SINGH AHLUWALIA ) August 1, 2011. JUDGE RC