IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Regular Second Appeal No.2542 of 2011

Date of decision: 15^th July, 2011

Kavi Raj and another

… Appellants

Versus

Gurbachan Singh

… Respondent

CORAM:

HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Present:

Mr. Munish Gupta, Advocate for the appellants.

KANWALJIT SINGH AHLUWALIA, J. (ORAL)

Present regular second appeal has been instituted by

defendants to the suit, having failed before the trial Court and the lower

appellate Court. In this appeal decree of the trial Court is assailed

whereby respondent-plaintiff has been held entitled to recover

Rs.1,00,000/- as earnest money along with interest at the rate of 6

percent per annum.

It is not disputed that an agreement to sell Ex.P2 was entered

into between the respondent-plaintiff and the appellants-defendants. It is

the case of the respondent-plaintiff that at the time of execution of the

agreement to sell, Kavi Raj-appellant No.1 (defendant No.1 to the suit)

had assured the respondent-plaintiff that complete and full land (2 kanals

in measurement) will be conveyed to the respondent-plaintiff having an

approach and a rasta. After the execution of agreement to sell it was

pleaded that the respondent-plaintiff got a copy of the fard, jamabandi

Regular Second Appeal No.2542 of 2011

and aks-shajra and came to know that there is no rasta on the eastern

side of the land and even the land does not measure 2 kanals. It was

pleaded that the agreement to sell executed by appellant-defendant No.1

suffer from fraud and misrepresentation. The respondent-plaintiff further

stated that the various attempts and efforts made by him to obtain the

exact position of the land to be sold as per the agreement to sell dated 6^th

October, 2000 proved futile. It was further stated that a notice to execute

the sale deed as per the agreement to sell and complete the

measurement along with rasta was issued but the same was not replied

back. The respondent-plaintiff remained present in the Tehsil Complex on

10^th April, 2001, i.e. the date fixed for execution of the sale deed but the

appellant-defendant No.1 did not come present. It was further pleaded

that the respondent-plaintiff was ready and willing to get the sale deed

executed as per the specifications and measurements given in the

agreement to sell dated 6^th October, 2000.

Upon notice, the appellants-defendants filed a written

statement and controverted the material pleadings, however, it was

submitted that they were owners of the suit property. It was further stated

that they had purchased this land vide a sale deed dated 12^th June, 1974

and the passage of 5 feet width was mentioned, in the sale deed by

which the appellants-defendants had purchased the property. It was

further stated that defendant No.1 also remained present in the Tehsil

Complex, Hoshiarpur on 10^th April, 2001. The trial Court, after conclusion

of the pleadings, had drawn following issues:

“1.

Whether the plaintiff is entitled for recovery of

Rs.1,92,000/- as prayed for? OPP

2.

Whether the suit is not maintainable in its present form?

OPD

2

Regular Second Appeal No.2542 of 2011

3.

Whether the plaintiff has got no locus standi to file this

suit? OPD

4.

Whether the plaintiff has not come to the Court with

clean hands? OPD

5.

Relief.”

Parties led their evidence. The trial Court held that in the

agreement to sell there was a misrepresentation on the part of the

appellants-defendants. It will be apposite here to reproduce the finding

given by the trial Court, which reads as under:

“12.

… … … However, this contention is neither

tenable in law nor as per the facts as the agreement to sell

dated 6.10.2000 contains a recital to the effect that the

property is bounded on the Eastern side by a rasta. This is a

clear case of misrepresentation on the part of the defendant.

Now he can not escape his liability on the pretext