Dismissed

Jassa Singh v. Charan Singh etc.

Punjab & Haryana HC24 Feb 2012RSA/4838/2010

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for specific performance of an agreement to sell land, the High Court dismissed the appeal. The appellant challenged the lower courts' finding that he was liable to execute a sale deed for a larger portion of land than he claimed. The court held there was no perversity in the concurrent findings of evidence and found no question of law.

What did the court decide?

The second appeal was dismissed as it raised no question of law. The decree of the Court below was upheld.

Jassa Singh Vs Charan Singh etc. — Specific Performance | Punjab & Haryana HC (2012)

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RSA No.4838 of 2010 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.4838 of 2010 (O&M)

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Date of Decision: February 24, 2012

Jassa Singh

.......Appellant

Versus

Charan Singh and others

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.......Respondents

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CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA

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Present: Mr.Harinder Kumar Aurora, Advocate for the appellant.

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TEJINDER SINGH DHINDSA, J.

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CM No.14418-C of 2010

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This is an application under Section 5 of the Limitation Act seeking condonation of delay of 86 days in filing the present second appeal. The application is duly supported by an affidavit.

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In view of the averments made in para 2 of the application, I find that sufficient cause has been shown to condone the delay of 86 days in filing the appeal. Delay condoned.

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CM disposed of.

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RSA No.4838 of 2010

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4 . The defendant-appellant is in second appeal before this Court.

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Briefly noticed, the plaintiff filed a suit for specific performance of an agreement to sell, dated 28.9.1994, in respect of land measuring 20 kanals, situated at village Cheema, Tehsil Patti, District

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RSA No.4838 of 2010 (O&M)

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Amritsar or in the alternative, for recovery of Rs.1,40,000/- towards refund of earnest money (Rs.70,000/-) and damages and compensation (Rs.70,000/-). It was pleaded that defendant No.1 had entered into an agreement to sell the suit land with the plaintiff on 28.9.1994 and had received an earnest money of Rs.70,000/-. The agreement was in respect of 20 kanals of land situated at village Cheema @ Rs.36,000/- per killa. The sale-deed was to be executed on or before 15.9.1995. The defendant had failed to perform his part of the contract and accordingly, the plaintiff had issued a legal notice on 12.10.1995 calling upon the defendant to execute the sale-deed, but the same was declined. Defendants No.2 and 3 had been impleaded as they were alleged to be the co-owners in the suit land. Against such factual back-drop, the suit had been instituted.

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Defendant No.1 contested the suit and stated that he had agreed to sell only the land measuring 6 kanals situated at village Chulsewar, for a consideration of Rs.70,000/- and had received Rs.37,500/- towards earnest money. The sale-deed was to be executed only on receipt of the balance payment of Rs.32,500/- but the plaintiff had not paid such amount. The defendant stated that he was not owner of the land measuring 20 kanals situated at village Cheema. However, the sale-deed had been executed on 28.11.1994 with respect to land measuring 6 kanals situated at village Chulsewar, upon receipt of balance sale-consideration of Rs.32,500/-. The agreement dated 28.9.1994 had never been read over to the defendant, and the plaintiff had managed to get the land measuring 20 kanals mentioned in the agreement in collusion with the deed writer.

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Upon the pleadings, the parties went to trial on the following

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RSA No.4838 of 2010 (O&M)

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issues framed by the trial Court:

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“1. Whether defendant No.1 entered into written agreement to sell of land measuring 20 kanals at the rate of Rs.36,000/- per killa and executed an agreement to sell dated 28.9.1994?OPP

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Whether the plaintiff is entitled to specific performance of agreement to sell dated 28.9.94?OPP

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Whether the plaintiff is ready and willing to perform his part of contract?OPP

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Whether the plaintiff is entitled to alternative relief of recovery of Rs.1,40,000/- as prayed for?OPP

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Whether the agreement in question is a result of fraud and misrepresentation?OPD

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Whether the agreement dated 28.9.94 is not enforceable in law?OPD

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Relief.

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The trial Court partly decreed the suit of the plaintiff for execution and registration of sale-deed regarding land measuring 8 kanals ½ marla @ Rs.36,000/- per killa and held that since the plaintiff had already paid an amount of Rs.70,000/- and the price of 8 kanals ½ marla comes to Rs.36,225/-, he was held entitled to the refund of the remaining amount without any interest. The plaintiff, accordingly, was held entitled to execute the sale-deed pertaining to land measuring 8 kanals ½ marla within two months from the date of passing of the decree.

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Two separate civil appeals were preferred against the impugned judgment and decree dated 13.6.2006 passed by the trial Court, one by the plaintiff-appellant Charan Singh and the other by defendant No.1 Jassa Singh. The plaintiff impugned the findings of the trial Court to the extent that the relief of refund of Rs.33,775/- should have been ordered, along with

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RSA No.4838 of 2010 (O&M)

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interest @ 12% per annum w.e.f. 28.9.1994 till the date of payment and it was also prayed that he was entitled for damages and compensation of Rs.33,775/- which was equal to part of the earnest money which was held to be refundable. Jassa Singh, defendant No.1 in a separate civil appeal prayed for dismissal of the suit filed by Charan Singh plaintiff in toto. Vide impugned judgment dated 26.2.2010, the judgment and decree dated 13.6.2006 passed by the trial Court has been upheld and both the appeals preferred by plaintiff Charan Singh and defendant Jassa Singh have been dismissed. Accordingly, it is Jassa Singh, defendant-appellant, who is in second appeal before this Court.

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I have heard Mr.HK Aurora, learned counsel for the appellant at length.

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Learned counsel would contend that the Courts below have erred in having failed to take into account that the present appellant having already sold 6 kanals of land situated at village Chulsewar, as such, the suit could have been decreed only with respect to 2 kanals and ½ marla. Learned counsel would assert that the findings of the Courts below are perverse.

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The agreement to sell which forms the basis of filing of the suit for specific performance is Exhibit P1. Both the Courts below have returned concurrent findings to the effect that the same had been duly proved in accordance with law. In this regard, the testimony of PW2 Mahal Singh, the attesting witness to the agreement to sell, as also PW1 Jaswant Rai Arora, scribe of the agreement has been relied upon by the Courts. It has been held by the Courts below that Jassa Singh, the present appellant

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RSA No.4838 of 2010 (O&M)

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has failed to prove that the agreement dated 28.9.1994, Exhibit P1, was only with respect to land measuring 6 kanals falling in village Chulsewar. Even the plea taken by the present appellant that he was not the owner in respect of 20 kanals of land at village Cheema has been discarded in terms of reasoning that Bachan Singh, father of Jassa Singh had 2/3^rd share in land measuring 78 kanals 10 marlas at village Cheema as per copies of jama bandis, Exhibit P11 and P12. The Courts below have taken into account all the legal heirs of Bachan Singh i.e. widow, three sons and four daughters and accordingly, have held that Jassa Singh had 1/8^th share and thus, he was bound to execute the sale-deed in respect of 8 kanals ½ marla out of the land situated at village Cheema in pursuance to the agreement to sell dated 28.9.1994 which stood duly proved.

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The concurrent findings recorded by the Courts below are based upon due appreciation of evidence. I find no perversity in the same. 14. The present appeal is dismissed as it does not raise any question of law, much less a substantial question of law.

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Appeal dismissed.

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FEBRUARY 24, 2012 SRM

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( TEJINDER SINGH DHINDSA ) JUDGE

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Note: Whether to be referred to Reporter? Yes/No

Jassa Singh v. Charan Singh etc.

Case brief

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Jassa Singh v. Charan Singh etc.

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