(O&M) Mohinder Singh Vs Sadhu Singh

T h e defendant is the appellant before this Court challenging the judgment and decree dated 28.03.1989 pass e d by the 1^st Appellate Court v ide which the appe a l preferred by respondent-plai n tiff against the judgment and d e cree dated 19.02.19 8 7 passed by the learned trial C o urt, whereby the suit for possession filed by the re s pondent-plaintiff was dismisse d , has been allowed and the d e cree for possession of the land in dispute by speci f ic performance of the agreeme n t to sell dated 28.0 7 .1981 was granted in favour of t he respondent-plaintiff.

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F o r the sake of convenience, the p a rties shall be referred to in ter m s of their status bef o re the trial Court.

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S u ccinctly, the facts of the case a r e that the land in dispute meas u ring 7 Kanals 9 M a rlas, was admittedly owned a n d possessed by the defendant. On 28.07.1981, th e defendant entered into an ag r eement to sell the said land t o the plaintiff at the rate of Rs.37,500/- per killa, o u t of which Rs.6,000/- was paid as earnest money , and it was agreed that the b a lance consideration would be p aid

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PANKAJ KUMAR 2025.09.10 17:36 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh

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RSA-1330-1989 (O&M) -2-

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before the Sub - Registrar on 15.09.1981 at the t ime of execution and registrati o n of the sale deed. P ossession of the suit land was a lso delivered to the plaintiff as part performance of the contract, and he conti n ued to remain in actual phy s ical possession. On 15.09.1981, plaintiff appeared before the Sub-Registrar, Sha h kot, and recorded h i s presence by moving an appli c ation, whereas the defendant f a iled to turn up and thereby committed breach of t h e contract, leading to institution of the present suit .

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U p on notice of the suit, defenda n t appeared and contested the c l aim by filing a writ t en statement. While admitting t h e execution of the agreement d ated 28.07.1981 and the receipt of Rs.6,000/as earnest money, the defendant specifically de n ied that the plaintiff had alway s been ready and willing to per f orm his part of the c ontract. It was asserted that th e plaintiff failed to appear befor e the Sub-Registrar o n the stipulated date, wherea s the defendant had duly prese n ted himself in the o ffice of the Sub-Registrar on 14.09.1981 as well as on 15.09. 1 981 and had even s worn an affidavit before the O a th Commissioner, Nakodar, in this regard. All ot h er averments of the plaint were specifically denied and dismiss a l of the suit was pr a yed for. 5. O n the basis of pleadings, learne d trial Court had framed as ma n y as seven issues i n cluding relief. On appreciati o n of oral as well as docume n tary evidence prod u ced before it, the learned tri a l Court dismissed the suit o f the respondent wh e reas the appeal preferred by t h e respondent-plaintiff was allowed by the learned 1^st Appellate Court. Hence, th e defendant filed the present re g ular second appeal.

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L e arned counsel for the appellant - defendant, inter alia , contends that a bare perusal of the agreement to sell dated 28.07.1981 reveals that the se c ond

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PANKAJ KUMAR 2025.09.10 17:36 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh

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RSA-1330-1989 (O&M) -3-

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page of the s a id agreement was subsequent l y inserted, as it neither bears the signatures of t h e parties nor of the attesting witnesses, and the learned trial C ourt rightly noticed that the alleged clause regarding sanction of mutation was never proved by any independent evidence. Further, i t is clear from the record, and e ven from the resp o ndent-plaintiff’s own pleadi n gs, that both parties had tr e ated 15.09.1981 as t he date fixed for execution of the sale deed, thereby making t ime the essence of the contract. Furthermore, the trial Court correctly held tha t the respondent-pla i ntiff was not ready and willing to perform his part of the cont r act, whereas the d e fendant had always been read y and willing, yet the 1^st Appellate Court erroneo u sly reversed this finding on g r ounds neither pleaded nor proved. Lastly, undue emphasis was laid by the a p pellate Court on the filing o f an injunction suit i mmediately after the stipulated date, overlooking that the same was only a device a dopted by the plaintiff to gain t ime, as he had failed to arrang e the sale considerat i on, besides the fact that the s u it itself was bad for partial spe c ific performance. T herefore impugned judgment, being based on surmises, conjec t ures and misreading of evidence, thus deserves to b e set aside. 7. T h ere is no representation for the r espondent. A perusal of order sheet dated 15.09.1 9 89 shows that Mr. A.C. Jain , Advocate was appearing for the respondent but thereafter, vide order dated 2 0 .01.2020, registry was directed to issue fresh no t ice to the parties through counsel for 05.03.2020. Lastly , on 05.03.2020, r e spondent was represented by Mr. A.C. Jain, Advocate. On 04.09.2024, n o tices were issued to the pro p osed legal representatives of the respondent in the application seeking imple a dment of legal representative s of deceased-respo n dent but nobody appeared fo r them, despite substituted ser v ice.

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PANKAJ KUMAR 2025.09.10 17:36 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh

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RSA-1330-1989 (O&M) -4-

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Therefore, this Court proceeds to decide the a p peal with the assistance of lea r ned counsel for the appellant and records available. 8. H a ving heard learned counsel fo r the appellant-defendant and u pon perusal of the r ecord, with his able assistance, this Court is of the considered v iew that the judgm e nt of the learned trial Court w a s based on a correct appreciati o n of evidence and h a s been erroneously reversed by the learned 1^st Appellate Court. The execution of t h e agreement to sell dated 28.0 7 .1981 and receipt of Rs.6,000 / - as earnest money is not in dispute. However, th e material controversy arises ar o und the readiness a n d willingness of the responde n t-plaintiff to perform his part o f the contract. The t rial Court, upon examining t h e evidence, rightly found that the alleged second page of the agreement was ins e rted subsequently, as it neither b ore the signatures of the parties nor of the attes t ing witnesses. In fact, even i n the plaint, the res p ondent-plaintiff had himself a v erred that the sale deed was t o be executed on 1 5 .09.1981, thereby demonstrati n g that both parties had treated that date as the esse n ce of the contract. 9. T h e finding of the learned 1^st A p pellate Court that the respon d entplaintiff had b e en ready and willing stands u n supported by cogent material. The respondent-pla i ntiff’s bald assertion of havi n g gone to the office of the S ubRegistrar on 15.09.1981 is not corroborat e d by any cogent evidence. No application or p resence mark was made befor e the Sub-Registrar or his staff, and the plea that th e entire office was on leave on t hat day has rightly been reject e d as an afterthough t . On the contrary, the defenda n t substantiated his presence b e fore the Sub-Regist r ar on 14.09.1981 and 15.09.1981 through affidavit Ex.D1, d uly attested by an Advocate, which remained unchallenged and was corroborate d by independent witness DW3-Ruldu Ram. Further, evidence on record also establishes

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PANKAJ KUMAR 2025.09.10 17:36 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh

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RSA-1330-1989 (O&M) -5-

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that the defen d ant had approached the respo n dent-plaintiff in the first wee k of September, 19 8 1 along with respectables of t h e village to facilitate completion of the transaction, but the respondent-plaintiff ex p ressed his inability to arrange f u nds. Thus, evidence of defendant and his witnesses r emained consistent.

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E q ually untenable is the finding that the plaintiff’s claim did not amount to partial specific performance. The tri a l Court was justified in holding that the plaintiff co u ld only claim what was cover e d under the agreement, and no oral evidence could be admitted to contradict or v a ry its written terms. The mista k e in khasra number s cannot, therefore, be brushed a side lightly in the manner don e by the learned 1^st A ppellate Court. 11. In view of the judgments passed by the Hon’ble Supreme Cou r t in Pankajakshi (Dead) through Legal Representatives and others Vs. Chandrika and others (2016) 6 SCC 157, Randhir Kaur Vs. Prithvi Pal Singh and others (2019) 17 SCC 71 and Gurbachan Singh (dead) through LRs Vs. Gurcharan Singh (dead) through LRs and others, ques t ions of law are not required t o be framed in sec o nd appeal before the Punja b and Haryana High Court w h ose jurisdiction is c ircumscribed by provisions of S ection 41 of the Punjab Courts Act, 1918.

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In view of the aforesaid discussio n , this Court finds that the impu g ned judgment and d ecree dated 28.03.1989 passe d by learned 1^st Appellate Court is unsustainable i n law and is hereby set aside. R esultantly, the judgment and d e cree dated 19.02.1 9 87 passed by learned trial C ourt dismissing the suit of the respondent-pla i ntiff stands restored.

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A c cordingly, regular second appe a l is allowed. Decree sheet sha l l be prepared accor d ingly. There shall be no order as to costs.

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PANKAJ KUMAR 2025.09.10 17:36 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh

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RSA-1330-1989 (O&M) -6-

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M i scellaneous application(s), if a n y, also stand disposed of.

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(A M	ARINDER SINGH GREWA JUDGE L)
September 2, 2 025
Pankaj* Whether speaking/reasoned	: Yes/No
Whether reportable	: Yes/No

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PANKAJ KUMAR 2025.09.10 17:36 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh

(O&M) Mohinder Singh v. Sadhu Singh

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(O&M) Mohinder Singh v. Sadhu Singh

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