R.S.A.No. 2957 of 1997 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2957 of 1997 (O&M) Date of decision: 10.12.2009 Hardeep Paul Singh ......Appellant Versus Jagan Nath .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Gaurav Chopra, Advocate, for the appellant. Mr.H.S.Gill, Sr. Advocate with Mr.Mandeep K.Saajan, Advocate, for the respondent. **** SABINA, J. Plaintiff Hardeep Paul Singh filed a suit for possession by way of specific performance of agreement to sell dated 28.1.1989. Vide judgment and decree dated 28.7.1995 passed by the Additional Senior Sub Judge, Ferozerpur, the suit of the plaintiff for possession by way of specific performance of agreement to sell was dismissed. However, the same was decreed for the recovery of Rs.10,000/- R.S.A.No. 2957 of 1997 (O&M) 2 along with interest @ 12% per annum w.e.f. 28.1.1989 upto the date of its actual recovery. Aggrieved by the same, plaintiff went in appeal, which was dismissed by the Additional District Judge, Ferozepur, vide judgment and decree dated 16.5.1997. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The case of the plaintiff as made out by him in the plaint in short is that on 28.1.1989 at Ferozepur, the defendant being the owner of a building situated in opposite of the Central Cooperative Bank outside Mohri Gate Ferozepur City as fully detailed above agreed to sell the same to him for a total consideration of Rs.90,000/-. The plaintiff paid Rs.10,000/- in cash to the defendant as earnest money and the defendant promised to execute the sale deed in favour of the plaintiff on 1.9.1989. The time of execution of the sale deed in terms of the agreement was extended to 13.10.1989 and thereafter to 13.11.1989 and then to 20.12.1989, 24.1.1990, 24.4.1990 and ultimately to 20.8.1992 by different writings made on the back of the original agreement and each of the writing was duly signed by the defendant in token of its correctness. Tarlok Singh father of the plaintiff was a tenant in three rooms on the ground floor which were R.S.A.No. 2957 of 1997 (O&M) 3 given to him for parking the Rickshaws as Tarlik Singh owned many rickshaws which he used to give on hire to different persons. The defendant is alleged to be one of the trustees of the alleged Pt.Jagan Nath Janj Ghar Trust, Ferozepur City and he had filed ejectment application against Tarlok Singh which was dismissed by the Court of Sh.J.S.Pamma, the then Rent Controller vide order dated 16.3.1987. The defendant filed an appeal against the said order which was ultimately compromised between the parties on 2.3.1989 and thereafter, the defendant executed agreement to sell in question in favour of the plaintiff and then the defendant withdrew the appeal which was filed by him against Tarlok Singh in the court of Sh.A.C.Aggarwal, the then Appellate Authority, Ferozepur on 2.3.1989. The tenancy portion was in possession of Tarlok Singh at the time of the execution of the agreement in question. The plaintiff in the plaint averred that since the day of the execution of the agreement in question he has always been ready and willing to perform his part of the contract and he asked the defendant to execute the sale deed in terms of the agreement to sell in his favour but to no avail. The plaintiff has added that on 20.8.1992 he attended the office of the Sub Registrar, along with balance sale consideration for payment of the R.S.A.No. 2957 of 1997 (O&M) 4 same to the defendant and to incur expenses on the stamp paper and registration charges etc. but the defendant did not turn up and the plaintiff got his presence marked by submitting an application before the Sub Registrar, Ferozepur which was returned to the plaintiff after making endorsement thereon. The plaintiff then again called upon the defendant through registered notice served through his counsel Mr.N.K.Kakkar, Advocate to execute the sale deed in terms of the agreement to sell but to no avail. The plaintiff in the plaint has further averred that three rooms on the ground floor are in possession of Tarlok Singh father of the plaintiff as a tenant under the defendant while the portion is in possession of the defendant. The plaintiff has claimed the possession of the entire property as owner. The plaintiff has prayed that in case he is not found to be entitled to the specific performance of the agreement to sell then in that event a decree for recovery of Rs.90,000/- i.e. Rs.10,000/- as refund of the breach of agreement may be passed in his favour. 3. In his written statement the defendant has pleaded that the property in dispute is owned by Pt.Jagan Nath Janj Ghar Trust, Ferozepur City and is not the personal property of the defendant. Therefore, the R.S.A.No. 2957 of 1997 (O&M) 5 alleged agreement executed by the defendant is illegal, null and void and as such is not enforceable. It has also been pleaded that Pt.Jagan Nath Janj Ghar Trust is necessary party to the suit. The defendant denied the execution of the agreement to sell and the extension of time on different dates for the execution of the sale deed. The defendant pleaded that he was not competent to execute the agreement with the plaintiff because this property is owned by the Trust and thus the agreement to sell in question is illegal and void and is not enforceable. The defendant admitted that Tarlok Singh continues to be tenant of the demised premises of the building. The defendant denied that the possession of the remaining building is with the plaintiff. The defendant pleaded that he had offered the plaintiff Rs.10,000/- several times but he refused to accept the same. The defendant has denied that the plaintiff had always ready and willing to get the sale deed registered.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether on 28.1.1989 the defendant received earnest money in the sum of Rs.10,000/- from the plaintiff and agreed to sell the suit property in favour of the plaintiff and executed the agreement to sell dated R.S.A.No. 2957 of 1997 (O&M) 6 28.1.89? OPP 2. Whether the stipulated date for execution of sale was extended by the defendant from time to time? OPP 3. Whether the agreement to sell dated 28.1.89 is unenforceable for the reasons or the suit property being owned by a Trust? OPD 4. Whether the plaintiff is and has always been ready and willing to perform his part of contract? OPP 5. Whether the plaintiff is entitled to the possession of suit property by specific performance of agreement to sell dated 28.1.89? OPP 6. Whether the plaintiff is entitled to recover the sum of Rs.90,000/- from the defendant towards earnest money and damages ? OPP 7. Relief. Learned counsel for the appellant has argued that the suit of the plaintiff was liable to be decreed for specific performance. The defendant had mentioned himself to be owner of the property in dispute at the time of execution of the agreement to sell. The judgment passed in the ejectment proceedings was not relevant for the decision of this case. The question of title could not be decided by the Rent Controller. Learned counsel, in support of his arguments, placed reliance on the decision of this Court in Dev Raj and another vs. Sodhan Devi and others 1974 RCR 146 and R.S.A.No. 2957 of 1997 (O&M) 7 Balbhadar and others vs. Hindi Shitya Sadan (Registered Body) Mandi Dabwali 1980 (1) RCR 80. Learned counsel for the respondent, on the other hand, has submitted that the property in dispute belonged to the trust and hence, the specific performance of the agreement to sell could not be ordered. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The execution of the agreement to sell in question dated 28.1.1989 is not in dispute. The question that requires consideration is as to whether the specific performance of the agreement to sell could be ordered in the facts of the present case or not. The case of the defendant is that he was not owner of the property in dispute and rather the trust was the owner of the property in dispute. Hence, the defendant had no authority to sell the property in his individual capacity. The case of the plaintiff, on the other hand, is that the defendant himself has claimed in the agreement to sell in question that he was owner of the property in dispute. The grant of relief of specific performance of a contract is a discretionary relief. In case, it is not viable to execute the contract, the relief of specific performance of the contract can be denied. In the present case, the defendant has denied his ownership qua the property in dispute. Although in the agreement to sell Ex.P-1, he has himself stated that he was owner of the property in dispute. Ex.D-1 R.S.A.No. 2957 of 1997 (O&M) 8 is a relevant document in this regard. The trustees of Pt.Jagan Nath Janj Ghar Trust, Ferozepur City had filed an application for eviction of Tarlok Singh, father of the plaintiff, from the property in dispute. The said application was dismissed. In the said proceedings, the trust was described as the owner of the property in question. It was further alleged that Tarlok Singh, father of the plaintiff, had taken the property in dispute from the trust on rent. In the said proceedings, it was held that the property in dispute vested in the trust and Tarlok Singh, father of the plaintiff, was a tenant of the trust. Although the question of title is to be decided by the Civil Court, yet the order Ex.D-1 could not be brushed aside as there was no other evidence to the contrary that the defendant was owner of the property in dispute, apart from his saying so in the agreement to sell. Since the relief of specific performance is discretionary relief, the Courts below have validly exercised their discretion by not allowing the relief of specific performance of the agreement to sell. In the facts and circumstances of the present case, the earnest money paid by the plaintiff has been ordered to be refunded to the plaintiff along with interest from the date of execution of the agreement to sell till realisation. Substantial justice has, thus, been done between the parties. Hence, the Courts below rightly dismissed the suit filed by the plaintiff for possession by way of specific performance of agreement to sell. The judgments relied upon by learned counsel for the R.S.A.No. 2957 of 1997 (O&M) 9 appellant fail to advance the case of the appellant as these are on different facts. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 10, 2009 anita