JUDGMENT Mr. G.S. Sandhawalia J.: (Oral) - CM No.7253-C of 2011 Application for exemption from filing certified copy of judgment and decree is allowed in view of the averments made in the application which are duly supported by an affidavit. RSA No.2662 of 2011 1. The present appeal has been filed by the plaintiff who is aggrieved against the judgments and decrees of the Courts below whereby the only relief that has been granted to him is the decree for recovery of Rs.40,000/- from the defendant in a suit for a specific performance which was to be paid within 4 months vide judgment and decree dated 16.11.2009. On failure of the appellant to pay decreetal amount within the prescribed period, interest @ 6% per annum from the date of filing the suit, i.e., 02.06.2005 till its actual realisation was granted by the Civil Judge (Sr.Division), now, Shaheed Bhagat Singh Nagar. In appeal, the District Judge modified the judgment and decree to the extent that the plaintiff was held entitled to the interest @ 6% per annum from the date of execution of the agreement to sell dated 30.11.2004 till its actual payment with no orders as to costs. 2. The case in brief is that the suit for possession by way of specific performance was filed on the strength of an agreement dated 30.11.2004 for the house constructed on around 4 marlas of land for Rs.1,00,000/- and in the alternative, suit for recovery of Rs.80,000/- has been sought along with relief of permanent injunction. The last date for execution and registration of the sale deed was 30.05.2005 and in pursuance of the agreement, the defendant had received Rs.40,000/- from the plaintiff vide separate receipt of the same date. The plaintiff pleaded that he remained present in the office of the Sub-Registrar, Nawanshahr on 30.05.2005 along with the balance sale consideration and registration expenses but the defendant did not turn up to perform his part of the agreement, and accordingly, he got marked his presence. 3. Defendant, in written statement, took various objections including concealment of facts, locus standi and also the plea that she was not owner of the house but she is residing in the suit property. It was alleged that she took a loan of Rs.20,000/- from the plaintiff and mentioned double the amount in the agreement. 3. Defendant, in written statement, took various objections including concealment of facts, locus standi and also the plea that she was not owner of the house but she is residing in the suit property. It was alleged that she took a loan of Rs.20,000/- from the plaintiff and mentioned double the amount in the agreement. The agreement was executed as a security of the loan in favour of the plaintiff but the same was converted into agreement to sell. The receipt of earnest money was denied and prayed that the suit be dismissed. 4. Plaintiff examined as many as 4 witnesses including himself whereas defendant examined herself as DW1. 5. The trial Court framed the following issues: 1. Whether defendant entered into an agreement to sell dated 30.11.2004 in favour of plaintiff? OPP 2. Whether the plaintiff is entitled to specific performance of agreement to sell dated 30.11.2004? OPP 3. Whether in the alternative, plaintiff is entitled for the recovery of Rs.80,000/- as prayed for? OPP 4. Whether the plaintiff has not come to the Court with clean hands? OPD 5. Whether plaintiff is barred by his act and conduct to file the present suit? OPD 6. Relief. 6. After taking into consideration the evidence on the record, the trial Court came to the conclusion that the agreement in question had been executed and stood duly proved but it was held that since the ownership over the property was not of the defendant and the plaintiff, in his crossexamination himself had stated that the defendant, Santosh Kumari and her sons inherited the suit property from her husband and the plaintiff had no title over the suit property. Accordingly, it was held that since the property belonged to the father-in-law of the defendant, no mandate could be issued to get the sale deed executed. Finding on the record is that the father-in-law of the defendant had four sons and in view of the plaintiff’s own admission that the defendant were not complete owners of the suit property and at most, had a share and this fact had not been clarified either by the plaintiff or by the defendant and thus no relief for specific performance could be granted. Accordingly, the relief of recovery was granted to the plaintiff after holding that there was fault on his own part by not verifying the title of the suit property, and therefore, he was not liable for any damages. As noticed above, the trial Court had granted the decree of recovery only and interest was to be paid @ 6 % per annum in case the decreetal amount was not paid within 4 months from 16.11.2009. 7. Plaintiff, being dissatisfied with the judgment and decree of the trial Court, filed an appeal before the lower appellate Court in which he had also filed an application under Order 41 Rule 27 Code of Civil Procedure for additional evidence to show that the father-in-law of the defendant had executed a will dated 30.05.1986 in favour of Dharam Pal, husband of the defendant, and therefore, on the death of the husband, she succeeded to his share being his widow and legal heir. The said application was dismissed by the lower appellate Court on the ground that the evidence was within the knowledge of the appellant and the right of property given in the will could not be got executed in a suit for specific performance. It was also observed that no such effort had been made before the trial Court to bring all these facts on record. Accordingly, the reasoning given by the trial Court was approved since in the absence of the title, the decree for specific performance could not have been granted. It was noticed that since there was nothing on record to show that on the date of the agreement, the respondent was owner of the suit property, and therefore, the modification regarding the right of interest was done and 6% per annum interest was awarded from the date of execution of the agreement, i.e., 30.11.2004 till its actual payment. Resultantly, the present regular second appeal has been filed. 8. Counsel for the appellant has contended that there was readiness and willingness to perform his part of the agreement and the judgments and decrees of the Courts below are not sustainable. There is no substance in the submissions of the counsel for the appellant since admittedly, the Courts below have found that there was no title in the hands of the defendant. There is no substance in the submissions of the counsel for the appellant since admittedly, the Courts below have found that there was no title in the hands of the defendant. Any subsequent event whereby the house came into her hands would not give any right to the plaintiff to seek the performance of the agreement since the Court has to see what are the rights of the parties when they entered into the agreement. The Courts below have rightly noted that plaintiff could not clarify whether the title was with the defendant. Even in the evidence also, no effort has been made to place on record any document to show that the title was with the defendant or that the defendant was owner to some extent. All these facts stated above have come out from the oral evidence of the parties. Even otherwise, the case of the defendant was that the amount was taken for the purpose of loan which was misused by the plaintiff. The property in dispute is a residential house and even otherwise, great hardship would be caused to the defendant in case the agreement is executed, she being a widowed lady. 9. No fault can be found in the well reasoned judgments of the Courts below. No question of law much less any substantial question of law arises for consideration of this Court. Accordingly, the present appeal is dismissed in limine and the judgment and decree of the lower appellate Court is up-held. ---------0.B.S.0------------