The central legal point established in the judgment is that the agreement to sell does not require registration, and it is not necessary for the party to enter into an agreement to sell on regular stamp paper or scribed through a deed writer.

JUDGMENT

Amit Rawal J. - Notice of motion.

Mr. Keshav Pratap Singh, Advocate accepts notice on behalf of the respondent in RSA No.3779 of 2016, whereas, Mr. Nitish Garg, Advocate accepts notice on behalf of the respondent in RSA No.473 of 2017.

2. Both regular second appeals have arisen out of the common judgment rendered by both the Courts below, whereby, in a suit filed by Raj Kumar Sharma seeking specific performance of the agreement to sell dated 5.12.1989 in respect of 1 Ath share in house no.286 Sector 32-A, Chandigarh including three other properties, has been partly decreed.

3. Mr. Vikas Bahl, learned senior counsel assisted by Mr. Nitish Garg, Advocate appearing on behalf of the appellant in RSA No.3779 of 2016 and for the respondent in RSA No.473 of 2017 submitted that the possession of all the properties was handed over to the plaintiff as entire sale consideration was also paid. All the properties were in joint ownership of the appellant-Raj Kumar Sharma and Ishwar Dass. On demise of Ishwar Dass, his half share devolved upon Rakhsa Devi and Shashi Bala. Raksha Devi died during the pendency of the suit and Ramesh Kumar Sharma and Shashi Bala are as legal heirs. Since the time was not essence of the agreement to sell, suit was preceded by a legal notice dated 15.03.2002 and filed on 13.06.2002. The defendants did not deny thumb-impression on the agreement to sell.

4. The plaintiff in support of the evidence examined Hari Ram Thakur as PW1 and Rajinder Kumar as PW9. The trial Court did not grant the discretionary relief and confined it to the alternative relief. The Lower Appellate Court being the last Court of fact and law has gone into arena of surmises and conjectures by putting the blame on the plaintiff of having not taken the assistance of the expert particularly when the thumb impressions were not denied. The other reason assigned was that agreement to sell required registration as vendee was put into possession and also it was not scribed by the regular deed writer or on the stamp paper, much less any separate receipt. The reasons assigned by the Lower Appellate Court are not sustainable, as simple receipt can be treated as an agreement to sell. The defendants have not led any evidence to belie the thumb impressions of Raksha Devi. In such circumstances, examination of the handwriting expert was immaterial. Both the witnesses, aforementioned have been coherent and consistent as nothing contrary surfaced. The appeal filed by the vendor was also assigned to the same Court, though decision is same but there was no reference of other appeal, thus, there is gross illegality and perversity.

5. Mr. Keshav Pratap Singh, learned counsel appearing on behalf of the vendor/appellant in RSA No.473 of 2017 and for the respondent in RSA No.3779 of 2016 do not deny the factum of decision of other appeal, since the judgment is common. However, it was stated that separate receipt is always issued particularly when possession is handed over. The agreement to sell was denied but not thumb-impressions, thus, it was incumbent and obligatory upon the vendee to prove whether there was an intention of the party to enter into agreement to sell and different shares in the properties mentioned in the plaint, particularly when Raksha Devi passed away died before filing of written statement. Even notice was sent at the address i.e. house no.205 Darshani Bath, Manimajra being resident of house No.204. There was an attempt to get the ex parte judgment. There is time gap of almost 13 years itself is ground for declining the discretionary relief, thus, there is illegality and perversity qua relief of refunding of the earnest money.

6. I have heard the learned counsel for the parties, appraised the judgments and decrees of both the Courts below and of the view that it is a fit case where matter at the level of the Lower Appellate Court requires to be re-visited, for, it is settled law that even if the vendee had put into possession, the agreemen