REGULAR SECOND APPEAL No.1209 OF 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

RSA No.1209 of 2011

DATE OF DECISION: 15

th MARCH, 2011

Tara Chand

.... Appellant

Versus

Parkash

.... Respondent

CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.

PRESENT: Mr. Anil Kshetarpal, Advocate for the appellant.

* * * *

L.N. MITTAL, J. (ORAL)

This is second appeal by Tara Chand defendant.

Respondent-plaintiff Parkash filed suit against defendant-

appellant for possession of 5 Kanals 4 Marlas land being 1/4^th share of 20

Kanals 16 Marlas land, by way of specific performance of agreement to sell

dated 26.04.1994. The plaintiff also claimed ancillary relief of permanent

injunction.

Plaintiff's case is that the defendant agreed to sell the suit land

to the plaintiff for Rs.95,415/- and received the entire sale consideration and

executed the impugned agreement dated 26.04.1994. The defendant had

preempted the suit land and other land vide judgment and decree dated

15.04.1994 in preemption suit No.209 of 1992. It was stipulated in the

impugned agreement that sale deed would be executed in favour of the

plaintiff after sanctioning of mutation in favour of defendant pursuant to

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preemption decree. Appeal against the preemption decree was dismissed

vide judgment and decree dated 11.09.2002. Thereafter, in execution

proceedings, possession of the suit land was delivered to the defendant and

mutation was sanctioned in his favour on 20.05.2003. Thereupon the

plaintiff asked the defendant to execute the sale deed in terms of the

agreement. The plaintiff always remained ready and willing to perform his

part of the contract but the defendant did not perform his part of the

contract, necessitating the filing of the instant suit.

The defendant in his written statement while broadly denying

the plaint allegations, inter alia pleaded that the plaintiff who was posted as

Sentry Constable in Treasury Office, Jagadhri, suggested that he would

prosecute the preemption suit on behalf of defendant. For this purpose, the

plaintiff obtained signatures of defendant on certain papers. Intention of the

defendant was to execute only power of attorney in favour of the plaintiff

for prosecuting the preemption suit. The defendant never agreed to sell the

suit land to the plaintiff nor received any sale consideration from the

plaintiff. The impugned agreement is result of fraud and misrepresentation.

However, proceedings of the preemption case were admitted. By

amendment of written statement, the defendant also pleaded that the

plaintiff was government employee at the time of execution of impugned

agreement, but had not obtained permission from his department for

entering in to the said agreement. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Yamuna

Nagar at Jagadhri vide judgment and decree dated 07.05.2010 decreed the

plaintiff's suit for recovery of Rs.95,415/- with interest, instead of granting

relief of specific performance of the agreement. However, first appeal

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preferred by the plaintiff has been allowed by learned Additional District

Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated

19.01.2011 and thereby plaintiff's suit has been decreed for specific

performance of the impugned agreement. Feeling aggrieved, defendant has

preferred instant second appeal.

I have heard learned counsel for the appellant and perused the

case file.

Plaintiff-respondent led sufficient cogent evidence to prove

execution of the agreement by the defendant. Even the defendant by his

pleading in the written statement impliedly admitted his signatures on the

impugned agreement. The plaintiff himself appeared in the witness box and

examined an attesting witness of the agreement. Both of them stated

according to plain