The requirement to prove the execution of an agreement to sell is essential for specific performance.

H.S. MADAAN, J.

In nutshell the facts of the case are that plaintiff Bakshish Singh had filed a suit against defendants Kanwaljit Singh and Dayal Singh seeking possession as owner by means of specific performance of agreement to sell dated 29.11.2003 regarding the land measuring 31K-12.5-M out of land measuring 63K-5M being 1/2 share comprised in HB No.627, khewat No.162, khatauni No.339, killa No.61R, 4(7-19), 5(6-18), 7(8-0), 14(8-0), 15(8-0), 16(7-17), 17 (8-0), 24 (3-4), 62R 11(5-7) besides craving for grant of permanent injunction restraining the defendants from alienating the suit land in any manner to any third person except the plaintiff and from creating charge over the suit property and changing its nature by forcibly super structuring over it; in alternative, the plaintiff sought recovery of Rs.33 lacs i.e. Rs.5 lacs as refund of the earnest money and Rs.28 lacs as damages for breach of contract with interest @ 12% p.a., from the date of cause of action till actual realization.

2. As per version of the plaintiff, defendant No.1 Kanwaljit Singh had entered into an agreement to sell land measuring 31K-12.5M with him on 29.11.2003 for Rs.33 lacs receiving Rs.5 lacs as earnest money; the date for execution of sale deed was fixed as on or before 30.04.2004; the plaintiff has always been ready and willing to perform his part of the agreement; on 03.04.2003, a notice was sent to defendant No.1 as per registered AD post to appear in the office of Sub Registrar on 05.04.2004 to execute the sale deed and to inform the plaintiff whether he intended to receive the amount in cash or through bank draft; the notice was received by defendant No.1 but he sent a vague reply thereto asking for supply of copy of the agreement from counsel for the plaintiff; on 30.04.2004, the plaintiff remained present in the office of Sub Registrar, Gurdaspur with the balance sale consideration amount and expenses for registration of the sale deed but defendant No.1 did not come there; the plaintiff got his presence marked by furnishing an affidavit getting it attested from Sub Registrar, Gurdaspur; the plaintiff had submitted original demand drafts in favour of defendant No.1 for an amount of Rs.9,50,000/- bearing No.018578, Rs.9,50,000/- bearing No.018979 and Rs.9 lacs bearing No.018580 dated 28.04.2004 but defendant No.1 wrongly executed the sale deed in favour of defendant No.2 Dayal Singh in order to defeat lawful claim of the plaintiff; according to the plaintiff, the sale deed is illegal, null and void not binding upon his rights; it is anti-dated and result of fraud and misrepresentation. Earlier the suit was filed against defendant No.1.

3. On notice, defendant No.1 appeared and filed written statements. In the written statement filed by such defendant, he denied having entered into any agreement to sell qua the agricultural land belonging to him with the plaintiff or receiving any amount as earnest money from him. According to the answering defendant, the agreement to sell set up by the plaintiff is a forged and fabricated document and notice dated 03.04.2004 sent on behalf of the plaintiff was received by him but he had given reply to the same through his counsel, requesting the plaintiff through his counsel to supply copy of agreement to sell but it was not so done. Defendant No.1 has sold the land to defendant No.2, vide sale deed dated 09.02.2004 on the basis of agreement to sell dated 30.06.2003 executed by defendant No.1 in favour of Dayal Singh. Dayal Singh has been put in possession of the suit land. The plaintiff is not entitled to any recovery and his suit be dismissed.

4. Subsequently on disclosure of sale deed in favour of defendant No.2 Dayal Singh, the plaintiff got the plaint amended and impleaded Dayal Singh as defendant No.2 On getting notice, defendant No.2 had appeared and filed written statement contesting the assertions in the plaint, contending that after execution of the sale deed by defendant No.1 in favour of defendant N