Sardul Singh vs Surjit Singh

Sabina, J.—Plaintiff had filed a suit for specific performance of agreement to sell dated 27.5.2002.

The case of the Plaintiff in brief was that the Defendant had executed the agreement to sell in question on 27.5.2002 for a consideration of Rs. . 5,82,000/-. Defendant had received Rs. . 50,000/- towards the earnest money. Defendant had also agreed that he would get the correction in the Jamabandi and thereafter, the Plaintiff would be entitled to get the sale deed registered of lesser land out of his share in the land bearing Khewat No. 138, Khatoni No. 187 to 194 situated in the village Golewala. Possession of the property, agreed to be sold, was to be handed over to the Plaintiff at the time of execution of the sale deed. Plaintiff had always remained ready and willing to perform his part of the contract but the Defendant had failed to perform his part of the contract.

Defendant, in his written statement, denied the contentions in the plaint. It was averred that Defendant had not executed the agreement to sell in question in favour of the Plaintiff.

On the pleadings of the parties, following issues were framed by the trial Court:

Whether the Plaintiff is entitled to possession by way of specific performance of the agreement dated 27.5.2002? OPP 1-A. Whether the Plaintiff is entitled for alternative relief of recovery of Rs. 5,82,000/- as prayed for? OPP

Whether the suit is not maintainable? OPD

Relief.

Vide judgment and decree dated 16.7.2010, Additional Civil Judge (Senior Division) partly decreed the suit of the Plaintiff and held that Plaintiff was entitled to recover the earnest money of Rs. . 50,000/- along with interest. Relief of specific performance was declined. Aggrieved by the said judgment and decree, Plaintiff preferred an appeal and the same was dismissed by Additional District Judge vide judgment and decree dated 28.9.2010. Hence, the present appeal by the Plaintiff.

Learned Counsel for the Appellant has submitted that the courts below had erred in declining the relief of specific |performance to the Plaintiff.

After hearing the learned Counsel for the Appellant, I am of the opinion that the instant appeal deserves dismissal.

Both the courts below have held that the agreement to sell in question was duly executed between the parties. The question that requires consideration in this appeal is only to the extent as to whether the Plaintiff was entitled to the relief of specific performance of agreement to sell or the relief of refund of the earnest money.

Admittedly, the agreement to sell in question dated 27.5.2002 is qua sale of 16 Kanals 18 Marlas of land. As per Ex. PX, executed on the same date i.e. 27.5.2002, the Defendant had executed a sale deed in favour of the Plaintiff. Learned Additional District Judge has held that after the execution of the sale deed, the Defendant no longer remained owner of 16 Kanals 18 Marlas of land at the time of execution of the agreement to sell (Ex. PA). Only one Kanal of land remained with the Defendant. Since, the Defendant was held to be not owner of 16 Kanals 18 Marlas of land at the time of execution of agreement to sell (Ex. PA), the courts below rightly held that the suit of the Plaintiff for specific performance could not be decreed. Learned Counsel for the Appellant has failed to successfully challenge the said finding of fact, recorded by the courts below.

No substantial question of law arises in this appeal.

Dismissed.