Punjab-Haryana High Court
Rohtash Since Deceased Thru Lrs And Ors vs Sat Parkash And Ors on 28 March, 2025
Neutral Citation No:=2025:PHHC:042820
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
113 RSA-15011-2018(O&M)
Date of decision: 28.03.2025
Rohtash Kumar since deceased through LRs & Others
...Appellant(s)
Vs.
Sat Parkash & Others
...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Chanderhas Yadav,, Advocate
for the appellants.
***
NIDHI GUPTA, J.
The plaintiffs are in second appeal against the
concurrent judgments and decrees of the learned Courts below whereby
the suit filed by the plaintiffs for declaration
declaration, specific performance of
agreement dated 14.06.2005,
14.06.2005, and mandatory injunction has been
dismissed by both the Courts below.
2. Brief facts of the case ass per
perthe appellant/plaintiff are
that the parties had entered into an Agreement to Sell dated 14.06.2005 in
respect of the suit land as described in the plaint. The sale consideration
amount mutually decided between the parties was Rs.13,86,
Rs.13,86,000/- out of
which the plaintiff had paid Rs.3 lakh
lakh as earnest money which was received
by the defendants No.1 and 2. Target date for execution of the Sale Deed
was 14.10.2005. On 14.10.2005, plaintiffs were present in the office of Sub
Sub--
Registrar with the balance sale consideration.However, the defendan
defendants had
got their presence marked before the Sub-Registrar
Sub Registrar on 14.10.2005 only at 5
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pm.. Plaintiffs were always ready and willing to perform their part of the
agreement. Legal notice dated 21.01.2008 was also sent to the defendants
through their counsel. But no satisfactory reply was received. Thereafter,
the defendants have sold the suit land to defendants No.3 and 4 vide Sale
Deed No.437 dated 21.12.2005 in respect
espect of which mutation No.896
No.8968A
A
dated 22.01.2006 and mutation No.9366 dated 19.01.2006 was sanction
sanctioned
ed
in favour of the defendants No.3 and 4 respectively. Subsequently,
defendants No.3 and 4 also further sold the suit land vide Sale Deed No.578
dated 24.03.2006 to defendant No.5 in respect of which mutation numbers
9672 and 9163 both dated 30.06.2006 wa
wass sanctioned in favour of the
defendant No.5. Accordingly, a declaration was sought that the said Sale
Deeds are illegal, null and void.
3. It is submitted by learned counsel for the appellants that
it is not disputed that the plaintiffs had duly appeared before the Sub--
Registrar on 14.10.2005 to get the Sale Deed registered. However, it was
the defendant who had appeared only at 5 pm due to which Sale Deed
could not be registered.
registered. It is submitted that the only ground on which the
Courts below have non-suited
suited the plaintiffs is that plaintiff was unable to
show that he had balance sale consideration on the date fixed. Learned
counsel contends that it was not incumbent upon the plaintiff to
demonstrate the availability of funds. In support of his cont
contention,
ention, learned
counsel relies upon judgment of Madras High Court in "Lakshmi Ammal &
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Others Vs. Gejaraj (died) Kuppuswamy & Others" Law Finder Doc ID #
1980705; judgment of Hon'ble Supreme Court in "Basavaraj Vs.
Padmavathi" Law Finder Doc ID # 2101204
2101204; judgment
udgment of this Court in
"Harish Kumar & Others Vs. Mohinder Singh & Others" Law Finder doc ID
# 1141903; and "Bhag Ram Vs. Pala Singh & Others" Law Finder Doc ID #
38344. Ld. Counsel refers in particular to judgment of Bhag Ram (supra) to
submit that it has been held therein that as per Section 16 of the Specific
Relief Act "...it is not essential for the plaintiff to tender to the defendant or
to deposit in Court any money except when so directed by the Court...". It is
accordingly contended
cont that the plaintiff could be called upon to
demonstrate availability of funds only upon a direction of the court. It is
submitted that therefore, the sole ground of the learned Courts below for
non-suiting
suiting the plaintiff to the effect that the plaintif
plaintifff had failed to prove
possession of balance sale consideration, is not made out.
4. No other argument is made on behalf of the appellants.
5. I have heard learned
arned counsel for the appellants and
perused the case file in great detail.
6. I find no merit in the sole submission made on behalf of
the appellants. The above contention of the plaintiff is based on a
misreading
reading of the above said judgments. Moreover, the Hon'ble Supreme
Court in a subsequent and most recent judgment in "R. Shama Naik Vs. G.
Srinivasiah" Law Finder Doc ID # 2670489 decided on 28.11.2024, has
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categorically held that readiness and willingness is to be proven from; a)
availability of funds; b) presence marked in the Tehsil. Relevant extract of
the said judgment by Hon'ble
'ble Supreme Court is as follows:
"11. There is a fine distinction between readiness and
willingness to perform the contract. Both the ingredients are
necessary for the relief of specific performance.
12. While readiness means the capacity of the plaintiff to
perform the contract which would include his financial position,
willingness relates to the conduct of the plaintiff."
7. The relevant findings
indings as recorded in Para
Paras 20 and 21 of
the judgment and decree dated 12.12.2017 passed by the learned trial
Court are as follows: -
"20. Thus, the moot question which has to be decided in the
present suit is readiness and willingness of the parties. It is an
admitted fact that defendants no. 1 and 2 further sold the suit
property to defendants no. 3 and 4, who had further sold the
same to defendant no. 5. The plaintiff no 2 Vikas stepped into
the witness box as PW2 and was cross
cross-examined
examined at length who
stated at one point of time that he is in possession of the suit
property but thereafter he took somersault and stated that he
is not in possession of the suit property. The plaintiffs have only
examined this witness to prove their readiness and willingness
but he has contradicted himself with re
regard
gard to the possession
of the suit land. Also, there is nothing on the file to show that
the plaintiffs had balance sale consideration on the date fixed
for getting the sale deed executed and it is only the verbal
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assertions. The document Ex. P10 is the ap
application
plication given by
the plaintiffs in which they had admitted that the possession of
the said property was not given to them. The document Ex. P10
itself shows that the sale deed could not be executed as some
dispute arose between the parties Merely getting an
attendance marked in the office of Sub
Sub-Registrar
Registrar does not
prove the readiness and willingness as the same has to be
supported by other evidence also and the oral evidence of the
plaintiffs goes against them and does not support their case.
21. Also, the defendants no. 1 and 2 have pleaded that they
were in need of money and hence had sold the said land to the
plaintiffs but the sale deed was not executed and hence they
sold the land further to defendants no. 3 and 4, who further
sold the same to defendant
dant no. 5. The plaintiffs and defendants
no. 1 and 2 are local and interested in the suit property being
buyers and sellers but still the plaintiff never filed any suit nor
approached any forum when the suit property was sold by
defendants no. 1 and 2 to defendants no. 3 and 4 and
thereafter, they further sold the same to defendant no. 5. This
very conduct of the plaintiffs goes against them as they cannot
be mere spectators of the sale of the land to someone else.
8. In view of the above undisputed an
andd uncontroverted
findings the present appeal is dismissed.
facts and findings,
9. Pending application(s) if any also stand(s) disposed of.
28.03.2025 (Nidhi Gupta)
Sunena Judge
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Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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