The appellate court dismissed the second appeal where the appellant sought to challenge a decree granting refund of earnest money. The lower courts found the sellers could not prove title due to measurement discrepancies and alleged fraud.
Second appeal dismissed; decree for refund of earnest money affirmed.
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RSA No.1779 of 2006
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1779 of 2006 Date of Decision: 6.7.2009
Munish Kumar
....Appellant
Versus
Karan Singh and others
.......Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA.
Present: Shri Arun Jain, Senior Advocate, with Shri Amit Jain, Advocate, for the appellant.
Shri Vivek Khatri, Advocate, for the respondents.
HEMANT GUPTA, J. (Oral).
Defendant No.1 is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the legal heirs of the plaintiff were granted decree for refund of earnest money paid to the defendants in pursuance of the agreement to sell dated 21.11.1990.
Vide the aforesaid agreement, the defendant agreed to sell 1000 square yards of land @ Rs.550/- per square yards. Rs.1 lac was paid earnest money on 21.11.1990, whereas another sum of 1 lac was paid on 21.12.1990 and another sum of Rs.40,000/- on 24.2.1991. As per the plaintiff, he was ready and willing to perform his part of the contract, but the defendants could not prove their title as the owners and possession of the suit land. Therefore, the plaintiff sought refund of the earnest money.
RSA No.1779 of 2006 (2)
The case of the plaintiff is that the defendants have misrepresented, which led to the plaintiff agreeing to purchase the land measuring 1000 square yards. It was the stand of the plaintiff that the defendants could not prove the documents of their title as also the property could not be demarcated, which led to the plaintiff filing the suit for recovery of the earnest money.
The learned trial Court returned a finding that as per the report of the Local Commissioner, Exhibit P.3, the measurement of the spot discloses that the land measuring 655 square yards was available at the disputed place and that the same also does not tally with the dimensions in the decree, the basis of the title of the defendants on the basis of adverse possession. Thus, the trial Court found that the plaintiff is entitled to refund of the earnest money.
A perusal of the judgments of the Courts below would show that the defendants claimed title over the suit property on the basis of Civil Court decree allegedly obtained by the defendants on the basis of adverse possession. It has been found that the dimension of the property so vested with the defendants, does not tally with the description of the land agreed to be sold. It has been further found that the land is much less than what was agreed to be sold to the plaintiff. The plaintiff has alleged fraud and misrepresentation at the time of execution of the agreement to sell. Such fact has come to the knowledge of the plaintiff after the plaintiff paid another sum of Rs.40,000/- on 24.2.1991, though the sale deed was to be executed on or before 21.2.91. It shows that the plaintiff was ready and willing to perform his part of the contract, but the imperfect title of the defendants led the plaintiff to file the present suit for refund of the earnest
(3)
RSA No.1779 of 2006
money.
Both the Courts have recorded a concurrent finding of fact that the plaintiff is entitled to refund of the amount of earnest money. Such finding is based upon the proper appreciation of evidence. It could not be pointed out that any evidence has been misread or not taken into consideration.
Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal.
Hence, the present appeal is dismissed.
(HEMANT GUPTA) JUDGE
6.7.2009 ds
2 issues framed by the court
Whether the second appeal against the decree for refund of earnest money due to defective title and fraud raises a substantial question of law.
Whether the lower courts' findings on measurement discrepancy and lack of title were based on proper appreciation of evidence.
Munish Kumar
Karan Singh and others
Hemant Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
