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PUNJAB & HARYANA HIGH COURT
Rakesh Kumar Jain, J.
Gurbachan Singh
Versus
Raghubir Singh
R.S.A. No. 243 of 2009,
Decided On : DECEMBER 10, 2009
Specific Performance - Agreement to Sell - Transfer of Property Act, 1882, Section 53A, Indian Registration Act, 1908, Section 17(1A), Section 49 - The court upheld the judgment and decree of the trial court, granting specific performance of the unregistered agreement to sell in favor of the purchaser, who was found to be in actual physical possession of the land. The court held that the unregistered agreement did not confer any right or title upon the plaintiff, and the plaintiff was not entitled to retain possession under the agreement. The court also directed the appellant to return the earnest money and the amount deposited by the respondent with the bank, along with interest and damages, and ordered the respondent to hand over vacant possession of the land to the appellant.
Fact of the Case:
The plaintiff entered into an agreement to sell land with the defendant, but the defendant failed to execute the sale deed. The plaintiff filed a suit for specific performance of the agreement and for permanent injunction against the defendant's interference with his ownership and possession of the land.
Finding of the Court:
The court found in favor of the plaintiff, granting specific performance of the unregistered agreement to sell and directing the defendant to register the sale deed in favor of the plaintiff. The court also dismissed the defendant's appeal for permanent injunction.
Issues: The issues included the entitlement to specific performance of the agreement, entitlement to injunction, maintainability of the suit, proper valuation of the plaint, cause of action, and locus standi to file the suit.
Ratio Decidendi: The court held that the unregistered agreement did not confer any right or title upon the plaintiff, and the plaintiff was not entitled to retain possession under the agreement. The court also emphasized the importance of registration of agreements to transfer immovable property under the Indian Registration Act, 1908.
Final Decision: The court upheld the judgment and decree of the trial court, granting specific performance of the unregistered agreement to sell in favor of the purchaser, and directed the appellant to return the earnest money and the amount deposited by the respondent with the bank, along with interest and damages. The respondent was also ordered to hand over vacant possession of the land to the appellant.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
1. This judgment shall dispose of two appeals, namely, RSA No. 243 of 2009 titled as "Sh. Gurbachan Singh v. Sh. Raghubir Singh" arising out of the Civil Suit No.47-C of 2004 filed by the plaintiff/respondent seeking decree for specific performance of contract and RSA No. No. 244 of 2009 titled as "Sh. Gurbachan Singh v. Sh. Raghubir Singh", arising out of the Civil Suit No. 1122-C of 2004 filed by the plaintiff/ appellant seeking decree for permanent injunction.
2. The facts of Civil Suit No. 47-C of 2004 are that on 25.4.2003, defendant/appellant (Gurbachan Singh), who is the seller entered into an agreement to sell dated 25.4.2003 of land measuring 34 Kanals 8 Marias situated in village Bhavdeen, Tahsil and District Sirsa with Raghubir Singh (Purchaser) at the rate of Rs. 1,35,000/- per acre for a total sale consideration of Rs.5,80,500/- and received a sum of Rs.3,00,000/- as earnest money. The date for registration of the sale deed was fixed as 26.4.2004. The actual physical possession of the suit land was handed over, at the spot, to the plaintiff/respondent at the time of agreement. It is provided in the agreement to sell that in case the seller fails in executing the sale deed then the purchaser would get it executed through the process of Court and in case the purchaser fail in execution of the sale deed then earnest money shall be forfeited. It was also agreed that for some portion of the land in question mortgaged with Punjab National Bank, Bhavdeen Distt. Sirsa for a sum of Rs.2,15,000/-, the seller shall pay the outstanding dues prior to the execution and registration of the sale deed. It is alleged by the plaintiff that on 26.4.2004, he reached the office of Sub-Registrar, Sirsa along with balance sale consideration and expenses for stamp etc. for registration of the sale deed but despite waiting, the defendant did not turn up, which forced him to mark his presence by filing an affidavit, attested by the Executive Magistrate/Sub-Registrar, Sirsa. On 27.4.2004, a legal notice was sent to the defendant to perform his part of the agreement but the notice was received back with a report of refusal. At last, the plaintiff had to file the present suit.
3. On notice, defendant in his written statement, had negated the allegations of the plaintiff and pleaded that the agreement is an act of fraud as the defendant was in need of Rs. 2 lacs for the marriage of his daughter for which he had requested the plaintiff, who had agreed to give money to him on interest at the rate of 1.5% per month and asked him to execute some document towards security. It is alleged that he had thumb marked some documents . which have been converted into an agreement to sell. The rate of interest was agreed in the presence of Baaz Singh, Ex- Sarpanch son of Harvel Singh and Gurdial Singh son of Chand Singh, residents of Village Bhavdeen, Tahsil and District Sirsa. It is also averred that defendant is ready to make the payment of Rs. 2 lacs along with agreed interest.
4. In Civil Suit No. 1122-C of 2004. the plaintiff had prayed for relief of permanent injunction for restraining the defendant from interfering in his ownership and physical possession over the land measuring 60 Kanals 8 Marias, being 1208/2432 share of the total land measuring 121 Kanals 2 Marias and also for restraining the respondent herein from Ousting him from the land in question.
5. Both the suits were clubbed together by the learned Court below and issues were framed on 1.10.2005, which are as follows:
"1. Whether the plaintiff is entitled to the decree for specific performance of contract for sale agreement dated 25.4.2003 of the land measuring 34 kanals 8 marlas. as alleged? OPP.
2. Whether plaintiff is entitled to injunction, if any? OPP.
3. Whether suit of the plaintiff is not maintainable in its present form? OPD.
4. Whether plaint has not been properly valued for the purposes of court-fee and jurisdiction? OPD
5. Whether the plaintiff has got no cause of action
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