Tarsem Singh vs Amru

R.K. Nehru, J.—The defendantappellant (hereinafter the defendant) has come up in Regular Second Appeal against the judgment and decree of the first Appellate Court affirming on appeal those of the trial Judge.

The plaintiffrespondent (hereinafter the plaintiff) filed a suit of possession of the suit land against the defendantappellant (hereinafter the

defendant) on the ground that he had agreed to sell the suit land to the defendant vide agreement to sell dated July 5, 1976, pursuant to which he had received an amount of Rs. 3400/ as earnest money and the possession of the suit land was delivered to the defendant. The defendant did not get the sale deed executed pursuant to the agreement to sell. The plaintiff had been ready and willing to perform his part of the contract. The defendant has forfeited the earnest money. The agreement to sell stood cancelled and he asked the defendant to restore the possession to him but

the latter failed.

The defendant contested the claim of the plaintiff and inter alia alleged that the plaintiff was allotted the land being Harijan and that he could not

sell the same before the expiry of 10 years. The plaintiff had not obtained the sale certificate from the department and as such he was not

competent to sell.

The pleadings of the parties gave rise to the following issues :

Issues :

1) Whether the defendant has committed breach of the agreement ? OPP.

2) Whether the suit in the present form is not maintainable ? OPD.

3) Whether the plaint is not properly stamped ? OPD

4) Whether the plaintiff is entitled for the restoration of the possession ? OPP.

5) Relief.

Under issue No. 1, the trial Judge held that the plaintiff has always been ready and willing to perform his part of the contract and that breach of the agreement to sell was committed by the defendant. Issue No. 2 was answered against the defendant and it was held that the suit in the present form was maintainable. Issue No. 3 was answered against the defendant and it was held that the plaint was properly stamped. Under issue No. 4 it was held that the plaintiff was entitled to restoration of possession. In view of these findings the suit for possession was decreed.

Aggrieved against the judgment and decree of the trial Judge dated October 31, 1977, the defendant assailed the same in appeal before the first

Appellate Court.

The first Appellate Court on perusal of the evidence came to the conclusion that the defendant had failed to establish that there was any

restriction on the plaintiff that he could not sell the disputed land before expiry of ten years.

The defendant has assailed the judgment of the first Appellate Court in this Regular Second Appeal.

Learned counsel for the defendant could not refer to any evidence on record suggesting that there was any restriction on the right of the plaintiff

that he could not sell the land before expiry of ten years or that he was an allottee from the Government and the allotment to him was subject to certain restrictions. The courts below have given a firm finding of fact that the plaintiff was validly the owner over the suit land and that there was no embargo on his right to sell it. The findings recorded by the trial Judge is that it is the defendant who committed breach of the agreement to sell and failed to get the sale deed executed within the stipulated period. This finding was not assailed before the first Appellate Court and the same has not been challenged in this appeal too.

It is necessary to deal with the authority reported as Jajir Singh v. State of Punjab, 1986 PLJ 668 : 1987 RRR 618 (P&H), referred to by the

learned counsel for the defendant during the course of arguments. In that case, the Chief Settlement Commissioner on a reference made by

Tehsildar (Sales) resumed the land which had been sold to the petitioner in an auction being Harijan on ground that he had transferred the same before expiry of ten years. The order of resumption was upheld by this Court. In the instant case, the defendant had failed to establish that there was any embargo on the right of the plaintiff to sell the land. It was for him to establish that the plaintiff's title was not clear and it suffered from such type of impediments as are referred to in Jagir Singh's case (supra). The ratio of this judgment is not applicable to the facts of the instant case.

For the reasons stated above, there is no merit in the appeal and the same is accordingly dismissed. No order as to costs.