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2018 Supreme(P&H) 979
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AMIT RAWAL, J.
Gurjant Singh and Others – Appellants
Vs.
Chand Singh – Respondent
RSA No.3007 of 2012 (O&M)
Decided On : 02-02-2018
For the Appellants :Mr. B.B. S.Sobti, Advocate
For the Respondent:Mr. M.L. Sarin, Senior Advocate with Mr. Ritesh Aggarwal, Advocate
IMPORTANT POINT
Agreement to Sell – There is no requirement in the law that agreement to sell is to be executed by deed writer.
Agreement to Sell – Non-mentioning of the agreement to sell in the sale deeds, cannot be said to be fatal for granting the discretionary relief.
Headnote:(A) Specific Relief Act, 1963, S.20 – Agreement to Sell – Specific Performance – Non-mentioning of the agreement to sell in the sale deeds, cannot be said to be fatal for granting the discretionary relief as it has been proved on record that in the part performance of the agreement to sell, appellant-defendants already executed the sale deeds. (Para 31)
(B) Specific Relief Act, 1963, S.20 – Agreement to Sell – Specific Performance – Once the agreement to sell had been duly proved, the discretionary relief is a natural corollary. (Para 30)
(C) Specific Relief Act, 1963, S.20 – Agreement to Sell – Specific Performance – There is no requirement in the law that agreement to sell is to be executed by deed writer – Once the agreement to sell has been proved, the report of handwriting expert has rightly been discarded and adverse inference cannot be drawn against the plaintiff for not examining the handwriting expert. (Para 31)
(D) Specific Relief Act, 1963, S.20 – Agreement to Sell – Specific Performance – Readiness and Willingness – On the part of the plaintiff has to be seen from the date of the execution of the agreement to sell, during its existence till filing of the suit. (Para 31)
As far as readiness and willingness is concerned, the respondent-plaintiff proved the same from the date of the agreement to sell, i.e., 03.04.2002 till the target date, i.e., 31.05.2004 by proving the affidavit, Ex.P14 by submitting an application Ex.P15 before the Registrar and remained present in the office of Registrar but the appellant-defendants did not appear. The application and the affidavit are of dated 31.05.2004 and the suit was filed within 7 months from the expiry of the target date.
AMIT RAWAL, J.
1. The appellant-defendants are in Regular Second Appeal against the concurrent findings of facts and law, whereby, the suit preferred by the respondent-plaintiff, seeking specific performance of agreement to sell dated 03.04.2002 (Ex.P5), was decreed.
2. Before I could advert to the arguments of learned counsel for the parties, it would be in the fitness of things to give preface of the matter for adjudication of the dispute.
3. The suit was filed by respondent-plaintiff seeking specific performance of the agreement to sell, ibid, on the premise that the appellant-defendants and respondent-plaintiff had executed the agreement to sell in question, in respect of land measuring 18 kanals 9 marlas at the rate of Rs.2,20,000/- per acre against the total sale consideration of Rs. 4,50,000 in the presence of the witnesses. It was pleaded that defendant No.1 was absolute owner in possession of the land comprised in khewat/khatoni no.129/298 and 111/256; defendant No.2 was owner in possession of the land comprised in khewat/khatoni no.113/258 and defendant No.3 was owner in possession of land comprised in khewat no.6 to the extent of ½ share out of 118 kanals 0 marla.
4. The aforementioned agreement to sell was executed by defendant No.1 on his own behalf and being the husband of defendant No.2 and attorney of defendant No.3, in respect of the land measuring 86 kanals 12 marlas, 31 kanals 5 marlas and 2 kanals 18 marlas of defendants No.1, 2 and 3, respectively. Out of the aforementioned land, the land measuring 24 kanals 18 marlas was in the ownership of Sarpinder Singh son of Narinder Singh, defendant No.1 and the possession thereof was delivered under the agreement to sell. The stipulated date for execution and registration of the sale deed was fixed on or before 31.05.2004. Defendant No.1 performed his part of the agreement to sell dated 03.04.2002 by executing three sale deeds dated 17.06.2002 (Ex.P6), 27.05.2002 (Ex.P7) and 06.01.2003 (Ex.P8) but with regard to the suit property, i.e., khewat no.129 and 111 owned by him and his wife, defendants No.1 and 2 did not perform their part of contract despite the receipt of the balance sale consideration, thus, defendant No.3 also failed to perform his part of contract in respect of land measuring 18 kanals 9 marlas, i.e., ½ share of the land comprised in khewat/khatoni no.6/20, khasra no.31//6(7-10), 7(7-11), 5/1(6-15), 14(8-0), khewat/khatoni no.6/21, khasra nos.31//4(7-2) of village Nagri, that total land of khewat no.6 is 118 kanals in which defendant no.3 was recorded owner to the extent of ½ share. On the stipulated date, the respondent-plaintiff appeared before the office of Sub Registrar, Samana alongwith balance sale consideration but the defendants did not turn up to perform their part of contract and thereafter, the legal notice dated 29.11.2004 was served upon the defendants, resultantly, the suit seeking the relief, aforementioned, was instituted on 06.01.2005.
5. The defendants in pursuance to the receipt of notice, appeared and contested the suit by taking various preliminary objections qua maintainability, valuation, jurisdiction and also averred that agreement to sell was a result of fraud, in fact, the suit was filed in collusion with Piara Singh son of Sadhu Singh, Gurmail Singh son of Narata Singh, Hardev Singh son of Mall Singh so called witnesses and Raj Kumar, property dealer. It was also stated that the absolute ownership of defendants No.1, 2 and 3 to the extent of ½ share in the land comprised in khewat no.6 was not mentioned in the agreement to sell, ibid as the defendants had no relation or link with Sarpinder Singh so they could not agree on his behalf to sell his ownership of land measuring 24 kanals 18 marlas. In fact, he was not the owner of aforementioned piece of land as alleged. Defendant No.3 never agreed to sell the land measuring 18 kanals 9 marlas to the plaintiff at the rate of Rs.2,20,000/- per acre because the market value of
