Judgment:
Mahesh Grover, J.
1. This is defendant's second appeal directed against the judgments of the learned Trial Court dated 13.2.2008 and that of the learned First Appellate Court dated 18.2.2009.
2. In a suit for specific performance preferred by the plaintiff - respondent both the Courts came to the conclusion that the agreement to sell in favour of the respondent stood established as also was passing of the consideration and the willingness and readiness of the plaintiff-respondent to perform his part of the agreement whereas the appellant failed to abide by the agreement. Suit was therefore decreed and the appellant was directed to execute the sale deed in favour of the respondent.
3. It was the pleaded case of the plaintiff-respondent that there was in existence an agreement dated 19.1.2001 in which the appellant had agreed to sell some share in the suit property. It was pleaded that Smt. Om Pati wife of the plaintiff and other family members are owners of the agricultural land comprised in khewat No. 145 to 147 and they are in possession thereof and that the appellant is owner of part of the agricultural land comprised in khewat No. 209 to 211. The land adjoins the land of the plaintiff-respondent and he agreed to purchase some portion of land comprised in rectangle No. 85 and 86 from which the appellant agreed to sell 10 kanals and 10 marlas land out of the land of Rect. No. 85 & 86, representing 210/5566 share of khewat No. 204 khata No. 209 to 211 of 278 kanals and 6 marlas for a total sale consideration of Rs. 3,93,750/- out of whichRs.60,000/- was paid as part consideration at the time of execution of the sale. The balance sale consideration of Rs. 3,33,750/- was agreed to be paid at the time of registration and execution of the sale deed. It was to be executed on or before 30.5.2001. The agreement to sell also gave an option to the plaintiff respondent either to claim Rs. 1,20,000/- i.e. double the amount of earnest money in case of failure of the appellant to execute the sale deed. Since the appellant failed to execute his part of the agreement, a legal notice was served upon him requiring him to execute the sale deed. Prior thereto the plaintiff-respondent was present in the office of Sub-Registrar and got his attendance marked. In the meantime, the appellant sold the suit property and therefore the prayer was also made by the plaintiff to declare that sale as null and void.
4. The defendant No. 1 contested the suit and denied the agreement to sell and also denied the passing of the earnest money in his favour. The sale deed was however not denied. It was pleaded that the agreement to sell was prepared by the plaintiff-respondent by playing fraud. The other defendants who were the purchasers of the property from the vendor-the present appellant also denied the agreement to sell in favour of the plaintiff-respondent and pleaded fraud in the execution of the agreement. They pleaded sale in their favour and pleaded that they were bona fide purchasers of the suit property.
Both the parties went to trial on the following issues:
1. Whether the plaintiff is entitled for specific performance of agreement to sell dated 19.1.2001 regarding sale of alleged suit property? OPP
2. Whether the plaintiff is entitled to injunction as prayed for? OPP
3. Whether the suit of the plaintiff is not maintainable in the present form? OPP
4. Whether the plaintiff has got no cause of action and no locus standi to file the present suit? OPP
5. Whether the plaintiff has not come in the Court with clean hands? OPP
6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD
7. Whether the agreement to sell dated 19.1.2001 is illegal, null and void and not binding on the defendants? OPD
8. Relief.
5. Both the Courts concluded that the agreement to sell has been proved and the passing of the earnest money and similarly the willingness and readiness of the plaintiff to perform his part of the agreement was also established. Plea of fraud as raised by the defendants was negated and the suit of the plaintiff was accordingly decreed and the appellant was directed to execute the sale deed which has resulted in filing of the present regular second appeal.
6. Learned Counsel for the appellant while assailing the findings of the Courts below has contended that during the course of proceedings the challenge to the sale deed was given up by the learned Counsel for the plaintiff and if the challenge was given up then the agreement to sell was incapable of being enforced or executed. Therefore, the findings of the Courts below directing the specific performance of the agreement to sell are totally contrary to the record and deserves to be set aside. It was pleaded that once the land had been sold the discretion under Section 20 of the Specific Relief Act ought to have been exercised by both the Courts below and the Clause of the agreement which stipulated the return of the double the amount of earnest money ought to have been given effect to.
7. I have learned Counsel for the appellant and have perused the impugned judgments.
8. The plaintiff-respondent had pleaded that there was an agreement to sell in his favour duly executed by the appellant on 19.1.2001. To establish the factum of the agreement to sell Ex.P-1, he examined the attesting witnesses Roshan Lal PW1 and Jai Narayan as PW2, Stamp vendor Mahabir Parshad as PW3 and the scribe as PW4. All these witnesses testified to the execution of the agreement to sell by describing their role. The attesting witnesses also deposed that Rs. 60,000/- was paid to the appellant at the time of the execution of the agreement to sell. In this view of the matter, it cannot be said that the agreement to sell was never executed by the appellant.
9. The appellant in turn had denied the execution of the agreement to sell and had pleaded fraud and forgery. No such evidence was produced from where it could be inferred that the agreement was a result of fraud. Even the particulars of fraud were not pleaded. Therefore, there is little hesitation to hold that the agreement to sell has been validly executed by the appellant in favour of the plaintiff-respondent and the passing of the consideration has also been established by the testimony of the attesting witnesses. The appellant also produced cogent evidence to show that he was present before the office of Sub Registrar on 30.5.2001, the registration Clerk Surinder Singh was examined as PW.6 who testified that an application PW6/A had been moved before him and that plaintiff-respondent had remained present in the office of the Sub Registrar on the same date with the requisite amount for the purposes of executing the sale deed.
10. From the above evidence it is clear that the plaintiff-respondent has proved all the three ingredients which are essential to be proved in a suit for specific performance.
11. It was the case of the learned Counsel for the appellant that once the challenge to the sale deed has been given up by the learned Counsel for the plaintiff-respondent and the entire pleadings also to that effect have been given up then the agreement to sell has been rendered inexecutable. I am afraid the contention of the learned Counsel for the appellant is totally mis-placed for the reason that concededly the agreement to sell did not specifically give out the details of the land and it only pertains to 10 kanals 13 marlas in Khasra No. 85 and 86 whereas the sale deed is regarding specific Khasra Nos. and the land which has been adequately described therein. From the revenue record which was produced it was clear that the appellant was in possession of more land even after the sale in favour of the subsequent vendees. Therefore, the learned First Appellate Court was right when it observed that since the appellant was in possession of more land and the agreement to sell did not reflect any specific details of the land to be sold, consequently the plaintiff-respondent was entitled to 10 kanals and 13 marlas of the land which was left with the appellant and it could not be said that the agreement to sell was rendered inexecutable as a consequence the denial of discretionary relief under Section 20 of the Specific Relief Act in favour of the appellant was rightly not exercised by the Courts below. Another factor which is to be seen is that the appellant had not come to the Court with an honest plea. He had denied the execution of agreement to sell and had rather pleaded that it was result of fraud and forgery. It was not his case that the agreement to sell had been validly executed and for some reasons the same could not be executed but since the plea of fraud and forgery was set up to deny the agreement to sell which plea has not been satisfactorily established I am of the considered opinion that the discretion vide which the Courts have refused to exercise in favour of the appellant has rightly been declined qua him.
12. There is no infirmity in the impugned judgments and no substantial question of law arises in the present appeal for the consideration of this Court and the same being devoid of any merit is hereby dismissed.