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2013 DIGILAW 1055 (HP)

NARIANA v. BISHAN DASS

2013-12-24

SANJAY KAROL

body2013
JUDGMENT : SANJAY KAROL, J. 1. This regular second appeal stands filed under Section 100 of Code of Civil Procedure. Concurrent findings of fact stand challenged by the Defendant. 2. Plaintiffs (respondents herein) filed a suit for possession by way of specific performance of agreement, against the defendant (appellant herein), with respect to land comprised in Khasra No.1300, measuring 0-05-64 sq.meters (hereinafter referred to as the suit land), which was carved out from old Khasra No.771, measuring 1 Kannal 9 Marlas, bearing Khewat No.254 min, Khatauni No.428 min, situated at Kuthar Khurd, Tehsil & District Una, H.P. 3. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiffs are entitled for the possession by way of specific performance of the contract, as alleged? OPP. 2. Whether the agreement dated 27.11.1990, is false and misrepresentation of facts, as alleged? OPD. 3. Whether the suit is not maintainable in the present form, as alleged? OPD. 4. Whether the plaintiffs have not come to the Court with clean hands, as alleged? OPD. 5. Whether the suit is not properly valued, as alleged? OPD. 6. Whether the suit is hit by period of limitation, as alleged? OPD. 7. Relief. 4. Appreciating the material placed on record, learned trial Court decreed the suit for specific performance of agreement dated 27.11.1990, in favour of plaintiffs in terms of judgment and decree dated 25.06.2010, passed in Civil Suit No. RBT 360 of 2004, titled as Bishan Dass & others v. Naraina. Findings of fact, judgment and decree stand affirmed by the lower appellate Court vide judgment and decree dated 28.07.2012, passed in Civil Appeal No. 54 of 2010, titled as Nariana v. Bishan Dass & others, Hence, the present appeal. 5. The appeal stands admitted on the following substantial question of law:- "Whether the findings of the Courts below are result of complete misreading, misinterpretation of the evidence and material placed on record as also against the settled position of law?" 6. Learned counsel for the appellant has invited my attention to the decision rendered by the Apex Court in Pratap Lakhsman Muchandi & Others v. Shamlal Uddavadas Wadhwa & Others, AIR 2008 SC 1378 , in support of his submission that appellant is ready and willing to return the total sale consideration, hence judgments and decrees passed by the Courts below, be set aside. 7. 7. Plaintiffs, who are respondents herein, filed a suit for specific performance in relation to the suit land. Agreement was executed on 27.11.1990. The total agreed sale consideration was Rs. 15000/-, which the Courts below concurrently have held stands received by the appellant/ defendant at the time of execution of agreement. While admitting receipt thereof, defendant set up a defence that the amount was taken as loan. 8. Agreement to sell (Ex.PW.2/A) stands proved through Subhash Chand (PW.2) son of document writer, who identified his father's signature. Register wherein entry was made was also produced on record by the plaintiffs. Stamp Vendor (PW.3) has also proved execution of the sale agreement. Apart from testimony of the plaintiffs, Sarwan (PW.4) witness to the agreement has stepped into the witness box and testified in support of the plaintiffs. Thus, it stands established on record that agreement (Ex.PW.2/A) was executed between the parties with respect to sale of suit land. Receipt of amount of Rs. 15000/- is not in dispute. Plaintiffs, prior to filing the suit, got served a legal notice (Ex.PW.5/A) calling upon the defendant to execute the sale deed. Aforesaid findings of trial Court stand affirmed by the lower Appellate Court. 9. Learned counsel for the appellant has also invited attention to the decision rendered by the Coordinate Bench of this Court in Randhir Sharma v. Uma Devi & Others, 2010 (2) Him.L.R. 869 . The decision is squarely inapplicable to the given facts. There the plaintiff had lost before the Courts below, unlike the present case, wherein plaintiffs' suit stands correctly decreed by the Courts below. Since plaintiff had lost before the Courts below, it is under these circumstances, Court directed that it would be equitable to decree the plaintiff's suit and directed refund of part of sale consideration paid by the plaintiff to the defendant. In the present case entire sale consideration stands paid. Despite requests and legal notice calling them to execute the sale deed, defendants avoided the same. Equity lies in favour of the plaintiff and not the defendants. 10. Consequently, I do not find any reason or ground sufficient enough to interfere with the concurrent findings of fact recorded by the Courts below. 11. The Apex Court in Prakash Lakshman Muchandi & Others (supra) was dealing with the case where against the sale consideration of Rs. 1,70,000/-, only Rs. 10,000/- was paid to the seller. 10. Consequently, I do not find any reason or ground sufficient enough to interfere with the concurrent findings of fact recorded by the Courts below. 11. The Apex Court in Prakash Lakshman Muchandi & Others (supra) was dealing with the case where against the sale consideration of Rs. 1,70,000/-, only Rs. 10,000/- was paid to the seller. It is under these circumstances the Court directed enhancement of sale price, which principle would be inapplicable in the given facts. 12. I see no infirmity, illegality or impropriety with the concurrent findings returned by the Courts below. It cannot be said that findings returned by the Courts below are a result of incorrect and incomplete appreciation of facts and material placed on record by the parties as also settled position of law. Substantial question of law is answered accordingly. 13. The present appeal is accordingly dismissed. Pending applications, if any, also stand disposed of accordingly.