Punjab-Haryana High Court
Mukhtiar Singh vs Diwan Chand on 9 December, 2022
RSA No. 2595 of 2000 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 2595 of 2000 (O&M)
Date of decision : December 9th, 2022
...
Mukhtiar Singh
................Appellant
vs.
Diwan Chand
.................Respondent
Coram: Hon'ble Mr. Justice H. S. Madaan
Present: Mr. A.K. Khunger, Advocate for the appellant.
...
H. S. Madaan, J.
1. In nutshell, the facts of the case are that, plaintiff -
Mukhtiar Singh s/o S. Bhag Singh, resident of Kotkapura, Tehsil
and District Faridkot, had filed a suit against defendant Diwan
Chand s/o Mohan Lal r/o Chopra Bagh, Kotkapura, Tehsil and
District Faridkot, seeking possession of residential house
constructed on area measuring 100 sq. yards, situated near
Railway Line Kotkapura, by specific performance of agreement to
sell dated 4.12.1995 and in the alternative praying for recovery of
Rs.45,000/- i.e. refund of earnest money of Rs.24,500/- alongwith
interest/damages.
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2. As per case of the plaintiff, the defendant had agreed to
sell house in suit to him on 4.12.1995 for Rs.45,000/- receiving
Rs.24,500/- as earnest money. The date for execution and
registration of the sale deed was fixed as 4.12.1996 on payment of
remaining consideration amount, though it was mentioned in the
agreement that possession of the house had been delivered to the
plaintiff, but as a matter of fact, it was not so and the possession
had remained with the defendant. According to the plaintiff,
4.12.1996, the date fixed for execution of the sale deed was a
holiday, as such on 5.12.1996 the plaintiff, after informing the
defendant went to the office of Sub Registrar, Faridkot, for
performance of his part of contract. At that time he was having
balance sale consideration amount and money to bear registration
expenses etc. with him. However, defendant did not turn up to
execute the sale deed and get it registered. The plaintiff had
presented an application before Sub-Registrar, Faridkot, to get his
presence marked.
3. On 09.12.1996, with the intervention of respectables, the
defendant again received Rs.1,300/- as remaining part of sale
consideration and date of the sale deed was extended to 4.2.1997.
On 4.2.1997, the plaintiff again went to the office of Sub Registrar,
Faridkot and remained present there, having balance consideration
amount with him, as well as, money to bear the expenses for
execution and registration of the sale deed. However, at that time
also, the defendant backed out with the result, the sale transaction
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could not be completed. Plaintiff had got his presence marked by
moving an application before the Sub Registrar, Faridkot.
According to the plaintiff, he has always been ready and willing to
perform his part of contract, but the defendant dragged his feet in
the matter giving rise to a cause of action to the plaintiff to bring
the suit in question.
4. On notice, the defendant appeared and filed written
statement contesting the suit, raising various legal objections,
contending that the suit was not maintainable; that no agreement to
sell had been entered into between the parties and the agreement
set up by the plaintiff is a forged and fabricated document.
Refuting the remaining assertions, he prayed for dismissal of the
suit.
5. Replication was filed by the plaintiff, controverting the
allegations in the written statement filed by the respondent,
whereas the averments in the plaint were reiterated.
6. From the pleadings of the parties, following issues were
framed :-
1. Whether defendant agreed to sell house measuring 100 sq
yards with the plaintiff vide agreement to sell dated
4.12.1995 and received Rs.24,500/- as earnest money ?
OPP
2. Whether the plaintiff is entitled for possession of the house
in dispute by way of specific performance of the agreement
to sell dated 4.12.1995 or in the alternative for recovery of
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Rs.45,000/- ? OPP
3. Whether the plaintiff always remained ready and willing to
perform his part of the agreement? OPP
4. Whether the agreement set up by the plaintiff is forged and
fabricated and suit of the plaintiff is not maintainable in the
present form? OPD
5. Relief.
7. The parties were given adequate opportunities to lead
evidence in support of their respective claims.
8. During the course of evidence, of the plaintiff he
examined PW-1 Parminder Kumar, Deed Writer, who had scribed the
agreement to sell Exhibit P1, making an entry in that regard in his
register as Exhibit P-2. This witness also proved receipt Exhibit P-3
and entry in the Register Exhibit P-4. Plaintiff further examined PW-
2, Subash Chander, a marginal witness of agreement to sell Exhibit P-
1; PW-3 Gopal Singh , another marginal witness to agreement to sell
Exhibit P-1, who proved due execution of such agreement between
plaintiff and the defendant, whereas PW-4 Mr. Kuljit Singh Barar,
Advocate, a marginal witness of receipt Exhibit P-3, testified in that
regard. Plaintiff got his own statement recorded as PW-5 and
repeated on oath his case as given in the plaint. With that the
evidence of the plaintiff got concluded.
9. In rebuttal, defendant - Diwan Chand, appearing as
DW-1 repeated on oath his case, as given in the written statement.
Thereafter he closed his evidence.
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10. After hearing the arguments, the trial Court decided
issue No. 1 in favour of the plaintiff and against the defendant. Issue
No. 2 was decided, observing that plaintiff was not entitled to decree
for specific performance, however he was entitled to alternative relief
of recovery of Rs.45,000/- from the defendant. Issue No. 3 was
decided in favour of the plaintiff and against the defendant. Issue No.
4 was decided against the defendant and in favour of the plaintiff. As
a result of the findings on issues, the trial Court of Additional Civil
Judge (Senior Division), Faridkot, vide judgment dated 18.1.1999,
dismissed the suit of the plaintiff for possession by way of specific
performance of agreement to sell dated 4.12.1985, whereas the
alternative remedy of recovery of Rs.45,000/- was granted to him.
11. Feeling aggrieved by the judgment passed by the trial
Court, the plaintiff had preferred an appeal before the District Judge,
Faridkot, which after contest, was dismissed.
12. Still feeling dissatisfied, the plaintiff has knocked at the
door of this Court, craving for grant of main relief of possession by
way of specific performance of agreement to sell .
13. Notice of the appeal was given to the respondent,
however, his service could not be processed. Later on a report was
received that he has since expired. However, counsel for the appellant
stated that respondent was very much alive when the appeal was filed
and he is not aware of the legal representatives of such respondent
and no instructions have been given by the appellant in that regard,
whom he has not been able to contact since long. Therefore, he is
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unable to file an application for impleading legal representatives of
the respondent.
14. I have heard learned counsel for the appellant, besides
going through the record.
15. In this case, both the Courts, by considering facts and
circumstances of the case, in light of the evidence brought on record
by the parties, came to the conclusion that an agreement to sell had
been entered into between the parties on 4.12.1995 and the plaintiff
has been ready and willing to perform his part of contract but
transaction could not be completed on account of the default
committed by the defendant. However, the plaintiff was not found
entitled to discretionary relief of specific performance of agreement
to sell, in that way, the alternative relief of refund of earnest money
alongwith interest /damages was granted to him.
16. Both the courts below, keeping in view the facts and
circumstances of the case, were of the view that alternative relief of
recovery should be granted to the plaintiff. I do not see any reason to
disagree with the courts below on that point.
17. Therefore, the appeal in question is bound to fail. The
judgments passed by the courts below are upheld, whereas the appeal
is dismissed with costs.
( H.S. Madaan )
th
December 9 , 2022 Judge
chugh
Whether speaking / reasoned Yes / No
Whether reportable Yes / No
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