Sadhu vs Ram
2021 Latest Caselaw 4382 HP

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                   ON THE 7th DAY OF SEPTEMBER, 2021




                                                             .
                                 BEFORE





                HON'BLE MR. JUSTICE AJAY MOHAN GOEL

                REGULAR SECOND APPEAL No. 51 OF 2021





    Between:-

    SH. KESHAV RAM, SON OF SH.





    SADHU, RESIDENT OF NEAR PATWAR
    CIRCLE, MOHAL MATT, MAUZA
    PADHIARKHAR, TEHSIL PALAMPUR,
    DISTRICT KANGRA, H.P.
                                                    ..........APPELLANT


    (BY SH. AJAY THAKUR, ADVOCATE)

    AND


    SH. KULDEEP KUMAR SON OF LATE
    SH. KHEM CHAND RESIDENT OF
    NEAR OLD BUS STAND, PALAMPUR,
    TEHSIL    PALAMPUR,   DISTRICT




    KANGRA, H.P.
                                                    ........RESPONDENT





    (BY MR. VVIRENDER SINGH RATHORE,
    ADVOCATE)





    ___________________________________________________________

                Whether approved for reporting: No

                This appeal coming on for admission this day, Hon'ble

    Mr. Ajay Mohan Goel, delivered the following:-

                                JUDGMENT

By way of this regular second appeal, the appellant

herein challenges the judgment and decree passed by the Court of

learned Senior Civil Judge, Palampur, District Kangra, H.P. in Civil

Suit No. 36/14, titled as Shri Kuldeep Kumar vs. Shri Keshav

.

Ram, dated 06.09.2018, vide which, suit for possession and in the

alternative suit for recovery filed by the respondent herein, was

decreed partly by the learned Trial Court by holding that the

plaintiff was entitled to specific performance of agreement dated

20.09.2010 (Ext. PW2/A), as also against the judgment and

decree passed by the Court of learned Additional District Judge-III,

Kangra at Dharamshala, District Kangra, H.P. in Civil Appeal No.

362 of 2018, titled as Keshav Ram vs. Shri Kuldeep Kumar, dated

01.10.2020, vide which, the appeal preferred by the present

appellant against the judgment and decree passed by learned Trial

Court has been dismissed.

2. Brief facts necessary for the adjudication of the present

appeal are that the respondent/plaintiff (hereinafter to be referred

as the 'plaintiff' for convenience), filed a suit for possession by way

of specific performance of agreement dated 20.09.2010 and in the

alternative for recovery of `7.00 Lac inter alia on the ground that

an agreement was entered into between the plaintiff and the

defendant on 20.09.2010, in terms whereof, the defendant had

agreed to sell land comprised in Khara No. 14 min. Khatauni No.

19, Khasra No. 70, measuring 0-37-79 Hects. Being 768/3779

share measuring 0-07-68 Hects. out of total land, situated at

Mohal Lachu, Mauza Padhiar, Tehsil Palampur, District Kangra,

.

H.P. (hereinafter to be referred as the 'suit land' for convenience)

for a total consideration of `15.00 Lac. In lieu thereof, an amount

of `3.5 Lac was paid by the plaintiff to the defendant on the date of

execution of the agreement itself, whereas balance consideration

amount was to be paid at the time of execution of the sale deed.

Defendant had agreed to execute the sale deed in favour of the

plaintiff within a period of five months from the date of agreement,

and in the event of non-execution of the same, plaintiff was to be

paid double the earnest money. Despite repeated requests of the

plaintiff, the defendant failed to execute the sale deed in favour of

the plaintiff, though the plaintiff never backed out from the

agreement. A legal notice was also served upon the defendant on

02.02.2012 by way of registered post, vide which, the plaintiff

expressed his readiness and willingness to execute the sale deed.

Defendant responded to the same vide reply dated 03.03.2012 and

took the stand that no earnest money was ever received by him. It

is in this background that the suit stood filed for specific

performance of agreement dated 20.09.2010 and in the alternative

for recovery of an amount of `7.00 lac.

3. The defendant contested the suit inter alia on the

ground that he had never entered into any agreement with the

.

plaintiff as alleged and it was a property dealer, who contacted the

defendant for the sale of the suit land, but was told that there was

some dispute regarding partition qua the land and the property

dealer should approach him only after the dispute was resolved.

According to the defendant, entire story was concocted by the

plaintiff and plaintiff had never approached the defendant for the

purpose of purchase of the suit land and defendant was not legally

bound to execute the sale deed as the same was never executed by

him.

4. From the pleadings of the parties, following issues were

framed by the learned Trial Court:

"1. Whether the plaintiff is entitled for decree of specific performance of agreement dated 20.09.2010? OPP

2. Whether the plaintiff was/is always ready and willing to perform his part of agreement dated 20.09.2010, as

alleged? OPP

3. Whether the plaintiff in alternative is entitled for recovery of Rs. 7,00,000/- as prayed for? OPD

4. Whether the suit is not maintainable? OPD

5. Whether the plaintiff has no cause of action to file the present suit? OPD

6. Whether plaintiff is stopped from his act and conduct to file the present suit? OPD

7. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD

8. Whether the suit is not properly valued for the purpose

.

of court fee and j urisdiction? OPD

9. Whether the plaintiff was no locus standi to file the present suit? OPD

10. Whether the suit is not within limitation? OPD

11. Relief."

5. The Issues so framed were answered as under on the

basis of the evidence which was led by the respective parties in

support of their respective contentions:-

               Issue No. 1 :       Yes.

               Issue No. 2 :       Yes.
               Issue No. 3 :       No.
               Issue No. 4 :       No.


               Issue No. 5 :       No.
               Issue No. 6 :       No.
               Issue No. 7 :       No.




               Issue No. 8:        No.
               Issue No.9:         No.





               Issue No. 10:       No.
               Relief:             Suit partly decreed as per operative part of





                                   judgment."

6. Learned Trial Court held that the plaintiff had proved

execution of the agreement dated 20.09.2010, Ext. PW2/A from

the statements of marginal witness PW1 (Vishal Kumar) and scribe

of the same (PW2). It further held that the defendant had failed to

plead and prove better particulars of fraud against the plaintiff as

alleged and defendant indeed admitted that he had visited

Palampur on 20.09.2010, i.e. the date of execution of the

.

agreement to sell. It also took note of the fact that defendant had

admitted his signatures on the agreement in question, as also the

factum of receipt of legal notice Ext. PW2/B. It also took note of

the fact that there was nothing on record to prove that after

execution of the agreement to sell and after receipt of legal notice,

the defendant took any legal action against the plaintiff, either civil

or criminal, to the effect that he had defrauded the defendant by

executing a false agreement. Learned Trial Court also held that the

statement of the defendant and his witness Jeevan Chand did not

inspire confidence and whereas defendant in his examination-in-

chief stated that he did not want to sell the suit land, however, in

his cross examination, he feigned ignorance of the fact that the

plaintiff was ready to make payment of the balance amount and

self stated that he did not intend to sell the suit land. On these

bases, learned Trial Court inferred that this clearly demonstrated

that the defendant had agreed to sell the land to the plaintiff and

executed an agreement to sell Ext. PW2/A, but later on, he resiled

from the same. On these bases, learned trial Court decreed the

suit partly by holding the plaintiff to be entitled for specific

performance of agreement dated 20.09.2010 (Ext. PW2/A).

7. Learned Appellate Court upheld the findings returned

by the learned Trial Court by holding that there was neither any

.

infirmity nor any illegality in the judgment passed by learned Trial

Court. It held that execution of the agreement to sell Ext. PW2/A

stood proved on record and the agreement was executed on

20.09.2010 and the period of execution was five months, which

was to expire 20.02.2011. Plaintiff consistently requested the

defendant to execute sale deed and also issued legal notice dated

02.02.2012 (Ext. PW2/B), which was admittedly received by the

defendant and suit thereafter came to be filed on 04.12.2013 when

defendant refused to execute the sale deed in favour of the

plaintiff. It held that the suit was within limitation especially as

plaintiff was ready and willing to perform his part of the agreement

to sell and was consistently and continuously requesting the

defendant to execute the sale deed. It further held that the plaintiff

was entitled for grant of specific performance of the agreement to

sell Ext. PW2/A.

8. Feeling aggrieved, the defendant has filed this appeal.

9. I have heard learned Counsel for the parties and also

gone through the judgments and decrees passed by the learned

Courts below.

10. In this case, there are concurrent findings of fact

returned by both the learned Courts below against the defendant

.

and in favour of the plaintiff that execution of agreement to sell

dated 20.09.2010 Ext. PW2/A stood duly proved by the plaintiff

through his own statement as well as through the statement of

marginal witness and scribe of the agreement. In addition, there

are concurrent findings of fact against the defendant that he failed

to prove that the plaintiff played a fraud upon him as far as

execution of the agreement to sell is concerned. The moot issue

involved in the lis was as to whether there indeed was an

agreement to sell entered between the parties, and if yes, then,

whether plaintiff was entitled for decree of specific performance of

the same or not. As already mentioned hereinabove, this issue has

been answered in favour of the plaintiff by both the learned Courts

below. Whether or not the agreement to sell was entered between

the parties is obviously a question of fact. This question having

been decided by both the learned Courts below in favour of the

plaintiff, calls for no interference in this regular second appeal.

Similarly, whether or not any fraud was played by the plaintiff

upon the defendant in the course of execution of the agreement to

sell, is also a question of fact, which also has been decided against

the defendant by both the learned Courts below. Therefore, in

these circumstances, as this Court does not finds any substantial

question of law involved in this appeal, and further as the findings

.

returned by learned Trial Court having been approved by the

learned Appellate Court, are duly borne out from the record of the

case, this appeal being devoid of any merit, is dismissed. Pending

miscellaneous application(s), if any, also stands disposed of

according. There is no order as to costs.

(Ajay Mohan Goel) Judge September 07, 2021 (narender