RSA No.2600 of 2010 (O&M) 1 ` In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 19.7.2010. Ram Dhari --Appellant vs. Dharampal -- Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Dinesh Arora,Advocate, for the appellant Rakesh Kumar Jain, J, Defendant is in second appeal directed against the judgment and decree of both the Courts below whereby suit filed by the plaintiff for possession by way of specific performance of an agreement to sell has been decreed. Case set up by the plaintiff is that the defendant was the owner in possession of land measuring 16 kanals 6 marlas i.e. ½ share of land measuring 32 kanals 13 marlas comprised in Khewat No.35/31, Khatoni No.42, situated within the revenue estate of village Sarsad, Tehsil Gohana, District Sonepat. He entered into an agreement to sell the suit land to the plaintiff for a consideration of Rs.4,48,000/- @ 2,20,000/- per acre. At the time of agreement, the defendant received Rs.4,40,000/- as earnest money on 24.5.2005 after exectuing the agreement to sell and receipt duly RSA No.2600 of 2010 (O&M) 2 ` attested by the witnesses. He also gave an undertaking that the plaintiff would be at liberty to get the sale deed executed and registered in his favour on or before 30.5.2006 on payment of balance sale consideration of Rs.8000/- before the Sub Registrar. The actual physical possession of the suit land was delivered to the plaintiff on the same date i.e.24.5.2005. It was also agreed that expenses of stamp and registration shall be borne by the plaintiff and in case the defendant failed to get the sale deed executed as agreed, the plaintiff shall be at liberty to deposit the remaining sale consideration of Rs.8000/- in the competent Court of law to get the sale deed executed. It was holiday on 30.5.2006. On 31.5.2006, the plaintiff went to the house of the defendant with the remaining sale consideration of Rs.8000/-, expenses for stamps and registration charges and the defendant agreed to be present in the office of Sub Registrar, Gohana for the purpose of getting the sale deed executed and registered. The plaintiff has always been ready and willing to perform his part of the agreement. He remained present in the office of Sub Registrar, Gohana from morning till evening but the defendant did not turn up. In the evening, the plaintiff appeared before the Sub Registrar, Gohana and produced agreement and receipt and also shown cash of Rs.8000/- and got his presence marked by way of an affidavit duly attested by the Sub Registrar, Gohana. On 1.6.2006, the plaintiff served a legal notice on the defendant to get the sale deed registered but it fell on his deaf ear as a result of which the present suit was filed. Defendant's case is that he is in possession of the suit land. He had taken some land on lease from another agriculturist and was required to make the payment of Rs.4,40,000/-. In this regard, he RSA No.2600 of 2010 (O&M) 3 ` approached the plaintiff on 24.5.2005 in the morning and urged him for taking the guarantee of that amount to ensure that the defendant would return the said amount on or before 30.5.2006. The plaintiff demanded that in lieu of interest, the defendant would have to hand over the possession of his land. The defendant agreed to the terms and conditions orally settled between the parties and the agreement to sell was executed by him in favour of the plaintiff and it was agreed that in case, the defendant failed to make the payment on or before 30.5.2006, he shall be bound to execute the sale deed in favour of the plaintiff against sale consideration as prevalent in the market on 30.5.2006. The defendant alleged that on 29.5.2006, he was ready with the payment of lease money taken from the plaintiff and requested him to restore possession of the suit land in the presence of Dharambir and Sube Singh witnesses,but the plaintiff flatly refused . It was admitted that the amount of Rs.4,40,000/- was paid by the plaintiff to the defendant, but it was denied that there was any agreement to sell the suit land, which was rather only a guarantee. It was also alleged that the prevalent market price of the suit land was Rs.8,00,000/- per acre. On the pleadings of the parties, issues were framed by the trial Court and after appreciating the entire evidence brought on record, the trial Court gave concurrent finding of fact that there is an agreement of sale between the parties in terms of which the defendant had taken the entire money from the plaintiff but for Rs. 8000/- and handed over possession of the suit land to the plaintiff. The plaintiff has always been ready and willing to perform his part of the agreement but the defendant did not come present. The learned Court below also held that the story put forward RSA No.2600 of 2010 (O&M) 4 ` by the defendant that earnest money taken by him from the plaintiff was a guarantee, was not believed. Thus, the finding of fact has been returned by both the Courts below in favour of the plaintiff and against the defendant. Learned counsel for the appellant has failed to raise any substantial question of law to interfere with the findings of fact recorded by both the Courts below. Thus, finding no merit in this appeal, the same is hereby dismissed in limine, though without any order as to costs. 19.7.2010 (Rakesh Kumar Jain) RR Judge