IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

218 RSA-5686-2014(O&M)

Date of decision: 18.03.2025 Waliati Ram through his LRs ...Appellant(s)

Vs.

Dev Raj ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mrs. Rahish Pahwa Dudeja, Advocate for the appellant.

Mr. D.S. Gurna, Advocate for the respondent.

***

NIDHI GUPTA, J.

Present second appeal has been filed by the defendant against the judgment of learned First Appellate Court whereby the suit filed by the respondent/plaintiff for possession by way of specific performance of Agreement to Sell dated 23.05.2008, and permanent injunction, has been decreed; thereby reversing the judgment and decree of the learned trial Court dismissing the suit of the plaintiff.

2. Brief facts of the case are that the plaintiff had filed a suit for possession by way of specific performance of Agreement to Sell dated 23.05.2008 allegedly executed by the defendant in favour of the plaintiff in respect of house measuring 70 square yards/suit property, for a sale consideration of Rs.4 lakh. It was the pleaded case of the plaintiff that the defendant had received Rs.2 lakh as earnest money and delivered possession of one room to the plaintiff out of the suit property. However, after a few days, the defendant had requested that the room is required for his family and he will deliver the possession of the whole property at the time of execution of Sale Deed. As per the Agreement to Sell, the remaining payment was to be made by the plaintiff on or before 22.11.2008 which date was fixed for execution of Sale Deed. As 22.11.2008 and 23.11.2008 were holidays, the plaintiff had requested defendant to come present on 25.11.2008. On 25.11.2008, the defendant did not turn up; and plaintiff got executed affidavit as proof of his presence in the Tehsil on 25.11.2008. Thereafter, the plaintiff served notice dated 02.12.2008. Yet, the defendant did not perform his part of the contract. Hence, the suit.

3. Upon notice, the defendant appeared and filed written statement by submitting that on 23.05.2008, the defendant had taken a loan of Rs.50,000/- from the plaintiff on interest; and at that time, the plaintiff had got signature of the defendant on some blank paper stating that the same will be kept by the plaintiff as security. It was further stated in the written statement that the plaintiff had converted the said signed stamp paper into Agreement to Sell. The defendant further denied all the averments of the plaint and prayed for dismissal of the suit. The plaintiff filed replication controverting the averments made in the written statement and reiterating those made in the plaint.

4. From the pleadings of the parties, following issues were framed:-

“1. Whether the plaintiff is entitled for specific performance of agreement to sell dated 23.05.2008 as prayed for?OPP

2. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP

3. Whether the suit of the plaintiff is not maintainable? OPD

4. Whether the plaintiff has no cause of action to file the present suit?OPD

5. Whether the plaintiff has no come to the court with clean hands?OPD

6. Whether the agreement dated 23.5.2008 is a forged and fabricated documents? OPD

7. Relief.”

5. Upon appraisal of pleadings and oral and documentary evidence adduced by the parties, the learned trial Court decided issue No.1 against the plaintiff and in favour of the defendant; issue No.2 against the plaintiff and in favour of the defendant; issue No.3 in favour of the defendant and against the plaintiff; issue No.4 in favour of the defendant and against the plaintiff; issue No.5 in favour of the plaintiff and against the defendant being not pressed; and issue No.6 in favour of the defendant and against the plaintiff; and accordingly, vide judgment and decree dated

03.12.2012, dismissed the suit of the plaintiff.

6. The learned lower Appellate Court allowed the appeal of the plaintiff vide judgment and decree dated 23.04.2014. Hence, present second appeal.

7. Learne