IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2430 of 2009 (O&M)
Date of decision : 23.11.2009
Krishna Devi
... Appellant
Versus
Parveen Kumar
...Respondents
CORAM : HON'BLE MRS.JUSTICE SABINA
Present: Mr.Sanjeev Sharma, Advocate for the appellant.
Sabina, J.
CM No.7162 C of 2009
Allowed as prayed for.
RSA No.2430 of 2009
Plaintiff-Parveen Kumar filed suit for possession by way of
specific performance of agreement to sell dated 23.7.2002 qua the suit land
and permanent injunction for restraining the defendant from alienating the
suit land and from changing its nature in any manner. The suit of the plaintiff
was decreed by Additional Civil Judge (Sr.Divn.) Panipat vide judgment and
decree dated 4.10.2008. In appeal, the Addl. District Judge, Panipat,
dismissed the appeal filed by the appellant-defendant vide judgment and
decree dated 13.12.2008. Hence, the present appeal has been filed by the
defendant.
The facts of the case as noticed by learned Additional District
Judge, Panipat in para Nos.1 and 2 of its judgment which reads as under:-
1. Defendant executed an agreement to sell dated 23.7.2002 in
favour of the plaintiff for the sale consideration of Rs.1,01,000/-
qua the suit land detailed in the plaint. Requisite sale deed was
to be got executed and registered upto 23.8.2008. Earnest money
of Rs.75,000/- was paid by plaintiff to the defendant at the time
RSA No.2430 of 2009 2of execution of said agreement to sell. On 23.08.2002 plaintiff
kept on waiting for defendant throughout the day at the office of
Sub-Registrar, Panipat. However, defendant did not turn up to
get the requisite sale deed executed and registered. Plaintiff also
issued a legal notice dated 20.5.2005 to the defendant through
registered AD and UPC asking him to get the requisite sale deed
executed and registered. However, defendant has failed to get
the requisite sale deed executed and registered. Plaintiff claims
to be still ready and willing to perform his part under the
contract. Through present suit plaintiff sought decree of
possession of suit land by way of specific performance of
agreement to sell dated 23.7.2002 qua the suit land. Plaintiff
also sought permanent injunction for restraining defendant from
alienating the suit land and from changing its nature in any
manner.
2. In written statement, defendant raised preliminary objections,
interalia pleading the non-maintainability of suit, absence of
cause of action, absence of locus standi etc. On merits,
defendant denied the allegations made by plaintiff. Defendant
denied that plaintiff kept on waiting at the office of Sub-
Registrar on 23.8.2002. Defendant asserted that she was present
at the office of Sub-Registrar Panipat on 23.8.2002 throughout
the day but plaintiff failed to turn up. Defendant alleged that as
per a compromise reached in the presence of police, the plaintiff
was to give an amount of Rs.39,320/- to the husband of
defendant. According to defendant it was agreed that defendant
will execute the requisite sale deed only after the plaintiff pays
Rs.39,320/- to the husband of defendant. Defendant pleaded that
requisite sale deed was to be got executed up to 13.12.2003 if
plaintiff paid the above said amount to her husband failing
which plaintiff would have no right in suit land. Defendant
alleged that plaintiff failed to turn up in the office of Sub-
Registrar, Panipat on 13.12.2003 also. Defendant denied the
receipt of any legal notice by the plaintiff. Defendant sought the
dismissal of suit of plaintiff.”
RSA No.2430 of 2009 3
From the pleadings of the parties, the following issues were
framed by the learned trial Court:-
“1. Whether the agreement to sell dated 23.7.2002 is valid
and binding on the parties? OPP.
2. Whether the plaintiff has been ready and willing to
perform his part of the contract? OPP
3. Whether suit is not maintainable? OPD.
4. Relief.”
After hearing learned counsel for the appellant, I am of the
opinion that the instant appeal is devoid of any merit and deserves to be
dismissed.
The plaintiff (herein respondent) had filed a suit for possession
by way of specific performance of agreement to sell dated 23.7.2002.
Both the courts below after appreciating the evidence led by the
parties on record, have decreed the suit of the plaintiff. The learned
Additional District Judge has observed in the judgment that defendant had not
denied the execution of the agreement to sell. Rather the case of the defendant
was that he was ready and willing to perform his part of the contract whereas
the plaintiff had failed to appear on the stipulated date for execution of the
sale deed i.e. 23.8.2002 before the Sub Registrar. The defendant also asserted
that a compromise was effected between the parties on 13.11.2003 which was
to substitute the agreement to sell. The plaintiff had denied the execution of
the compromise between the parties. Defendant however, failed to prove on
record the original compromise deed. The learned Additional District Judge
has observed that a photo copy of the compromise, placed on record, reveals
that the same was neither singed nor thumb marked by the defendant. Since
the alleged compromise was not signed or thumb marked by both the parties,
the same was not binding on them. The plaintiff while appearing in the
RSA No.2430 of 2009 4
witness box had deposed that he was ready and willing to perform his part of
the contract and he remained present in the office of Sub Registrar on the
stipulated dated for execution of the sale deed but defendant had failed to
appear before the said office.
Both the courts below after appreciating the evidence led by the
parties, placed on record, have given a finding of fact that the agreement to
sell in question was duly executed between the parties and the plaintiff was
ready and willing to perform his part of the contract. The said finding of fact
cannot be interfered with in appeal by this Court. No substantial question of
law arises for consideration in this appeal.
Dismissed.
SABINA ]
JUDGE
23.11.2009
sd
