RSA No. 2770 of 2008 1
In the High Court for the States of Punjab and Haryana at Chandigarh
...
RSA No. 2770 of 2008
Date of decision: September 1,2008
Raja Ram ..Appellant.
Versus
Angoori Devi and others ..Respondents
Coram: Hon'ble Mr.Justice Rakesh Kumar Garg
Present: Mr. P.R.Yadav, Advocate
for the appellant.
...
Rakesh Kumar Garg,J.
The present appeal has been filed by the plaintiff against the judgment
and decrees of the courts below whereby his suit for specific performance of
agreement for sale dated 12.4.1994 has been decreed against Munshi Singh
defendant only.
In brief the case of the appellant is that the contesting
respondent/defendant No.1 and 2 agreed to sell their land measuring 10 kanals
7 marlas situated in the revenue estate of village Kanti Tehsil Narnaul District
Mahindergarh on 12.4.1994 for a sale consideration of Rs. 87,000/- on payment
of Rs.40000/- as earnest money and executed an agreement for sale in this
regard. The defendants were to execute the sale deed on 31.5.1994 on receipt
of remaining sale consideration of Rs.47, 000/-. However, the sale could not be
executed on that date by the defendants and thereafter defendant No.1
extended the period for execution of the sale deed on 6.6.1994 till 30.6.1995 on
receipt of further earnest money of Rs.32, 000/-. It is the case of the plaintiff that
he also promised to get the sale deed executed by defendant No.2 as well. The
plaintiff asked the contesting defendant to execute the sale deed and perform
their part of agreement several times and the contesting defendants promised to
execute the sale deed on 3.7.1995 (30.6.1995, 1.7.1995 and 2.7.1995 being
holidays). The plaintiff and performa defendants reached in the office of the Sub
RSA No. 2770 of 2008 2
Registrar, Ateli on 3.7.1995 with remaining sale consideration and expenses for
registration of sale deed. However, the defendants did not turn up. The plaintiffs
sent a notice to the contesting defendants asking them to come present on
17.7.1995 in the office of Sub Registrar Ateli to receive the remaining sale
consideration and execute the sale deed as per the terms and conditions of the
original agreement for sale dated 12.4.1994. The plaintiff on 16.7.1995 and
17.7.1995 remained present in the office of Sub Registrar Ateli with remaining
sale consideration and expenses for registration of sale deed but the contesting
defendants did not turn up. He got his presence marked in the office of Sub
Registrar Ateli. It is the case of the plaintiff and performa defendants that they
were always ready and willing to perform their part of agreement and they are
still ready and willing to perform their part of the agreement. But the contesting
defendant are not willing to perform their part of the agreement and they
intentionally and deliberately did not come present in the office of Sub Registrar
Ateli to execute the sale deed on the dates fixed. Hence, the suit for specific
performance of the agreement for sale dated 12.4.1994 by the contesting
defendants No.1 and 2 and in alternative for recovery of the double of the
earnest money paid by the plaintiff and performa defendants to contesting
defendants No.1 and 2.
The suit was contested by the defendant Nos.1 and 2 by filing
separate written statements admitting the execution of the agreement for sale
dated 12.4.1994 after receipt of Rs.40000/- as earnest money but asserted that
the plaintiff and performa defendants were not in possession of the remaining
sale consideration and expenses of registration of the sale deed as per terms
and conditions of the agreement of sale dated 12.4.1994. It was also asserted
that the contesting defendant No.1 on 6.6.1994 on receipt of Rs.32000/- as
additional earnest money did not extend the period for registration of the sale
deed up to 30.6.1995 and defendant No.2 did not authorize him to extend the
sale deed on behalf of defendant No.2.
The trial Court decreed the suit for specific performance of the
RSA No. 2770 of 2008 3
agreement of sale dated 12.4.1994 to the effect that defendant No.1 will execute
the sale deed in favour of plaintiff in regard to his share as agreed upon
according to terms of the agreement to sale dated 12.4.1994 in favour of the
plaintiff and proforma defendants to the extent of his share but for payment of
balance amount of Rs.15000/- only to defendant No.1 as plaintiff has already
paid the amount of consideration of Rs.72000/- out of the agreed amount of Rs.
87000/-.
Aggrieved against the said judgment and decree of the trial Court,
the appellant filed further appeal which was decided vide judgment and decree
dated 31.3.2008, vide which, judgment of the lower Court was modified and
resultantly a decree for specific performance of the agreement for sale dated
12.4.1994 to the extent of the share of the land of defendant No.1 in the entire
suit land measuring 10 kanals 7 marlas is passed in favour of the plaintiff on
payment of proportionate sale consideration.
Still aggrieved, the plaintiffs has filed the present appeal praying
therein to set aside the judgment and decrees of the courts below to the extent
of dismissing his suit qua defendant No.2 with a further prayer to fully decree the
case of the appellant.
Shri P.R. Yadav, learned counsel for the appellant has argued that
the courts below have wrongly dismissed the suit of appellant qua Lakshmi Devi
defendant No.2. According to him, it is an admitted case of the parties that
defendants Nos.1 and 2, namely, Munshi Singh and Lakshmi Devi brother and
sister entered into an agreement dated 12.4.1994 to sell their 10 kanals 7 marlas
agricultural land for Rs.87,000/- and out of which an earnest money of
Rs.40,000/- was jointly received by Munshi Singh and Smt. Lakshmi Devi. It has
also been admitted by defendant No.1 that the possession of the suit property
was handed over to the appellant on the same day. Thereafter, as per the
agreement the sale deed was to be executed up to 31.5.1994. The defendants
could not get the sale deed executed on 31.5,.1994 and therefore, on 6.6.1994,
the appellant paid a further amount of Rs.32,000/- to defendant No.1 Munshi
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Singh who had received the same on behalf of his sister also and also signed
the agreement regarding extension of time till 30.6.1995. The courts below have
wrongly presumed that defendant No.1 has no authority to extend the time limit
regarding land of defendant No.2 Smt. Lakshmi Devi. From the conduct of the
defendant, it is crystal clear that time was not essence of the contract and the
defendants had received most of the earnest money and only Rs.15, 000/- was
left. Thus the appellant was always ready and willing to perform his part of
contract.
Learned counsel has further argued that the initial amount was
received jointly by defendants Nos.1 and 2 and Lakshmi Devi has not brought
any evidence to prove that she made any effort to get the sale deed executed.
Not only this, defendant No.2 Smt. Lakshmi Devi only filed the written statement
and she did not appear in the witness box to refute the charges against her and
therefore, the courts below ought to have drawn an adverse inference against
her and ought to have decreed the suit of the plaintiff-appellant against her also.
On the basis of this argument, learned counsel for the appellant has raised the
substantial question of law, which is as under:-
” Whether once the defendant No.2 had jointly entered into an
agreement with the appellant and the time limit of the same was
extended by defendant No.1, the time limit for defendant No.2
would also stand extended being real sister of defendant No.1 and
especially when no steps were taken by either of the defendants to
get the possession back?
I have heard learned counsel for the appellant. However, I find no force in
the contentions raised by him. Undisputedly, defendant No.2 Lakshmi Devi has
not extended the period of execution of sale deed after 31.5.1994. The case of
the appellant is that defendant No.1 has signed the extension of the period for
execution of sale deed on 6.6.1994 up to 30.6.1995 on receipt of further earnest
money of Rs.32000/- on his behalf as well as on behalf of defendant No.2 also to
get the sale deed executed on 30.6.1995 . However, the appellant has miserably
RSA No. 2770 of 2008 5
failed to prove his assertion to his extent. There is not an iota of evidence from
which it can be made out that defendant No.1 was authorized to extend the
period for execution of sale deed on behalf of defendant No.2 as well. Thus,
there was no question of extension of time limit on behalf of defendant No.2 to
execute the sale deed simply because she had jointly entered into an agreement
with defendant No.1 and the time limit of the same was extended by defendant
No.1 only. The findings recorded by the courts below in this case are pure
findings of fact which have been recorded after due appreciation of evidence on
record of the case.
I find no infirmity or illegality in the judgment and decrees of the courts
below. No substantial question of law arises in this appeal.
Dismissed.
September 1 , 2008 (RAKESH KUMAR GARG)
nk JUDGE