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Nahar Singh Vs. Harnak Singh & Ors [1996] INSC 1351 (29 October 1996)

K. Ramaswamy, G.B. Pattanaik Pattanaik, J.

ACT:

HEAD NOTE:

Delay condoned.

Leave granted.

This Appeal by special Leave is directed against the judgment dated May 9, 1995, of the High Court or Punjab and Haryana in Regular Second Appeal No. 220 of 1995. The appellant filed the suit for specific performance of the agreement of sale dated 28.11.1984, alleging therein that the respondent had agreed to sell his land measuring 4 Bighas 15 Biswas @ Rs.7,500/- per bigha and agreed to execute the sale deed by 15th June, 1985, part of money was paid as earnest money and remaining amount of Rs.23,000/- was to be paid before the sub Registrar at the time of registration of the sale deed. It was further alleged that Rs.2.50 paise were paid as writing charges of pronote and pronote was executed for Rs.11,050/- but no amount was paid in cash to the appellant by the respondent as recited in the pronote. The appellant further urged that he was and is still ready and willing to perform his part of the contract but the respondent committed breach and did not execute the sale deed. And therefore, a suit was filed for the relief of specific performance, as already stated. The respondent resisted the said suit by denying the allegations made in the plaint. It was further pleaded that the appellant had borrowed a sum of Rs.11,050/- from the respondent and executed a pronote and therefore, he had filed a suit for recovery of the amount alongwith interest which had been registered as suit no. 463 of 1987. He accordingly prayed for dismissal of suit for specific performance. In the sum filed by Harnak Singh for realisation of the sum of Rs.11,050/- together with the interest thereon. Nahar Singh took the plea that he had never taken any money as alleged and never executed any pronote. Both these suits were tried together and disposed of by a common judgment dated 31.1.1990. The suit filed by Harnak Singh for recovery of money was dismissed (Civil Suit No.463 of 1990), the suit filed for specific performance by Nahar Singh was decreed (Civil Suit No.181 of 1988). Two appeals were preferred by Harnak Singh and the learned Additional District Judge, Sangrur by his judgment dated 13th September, 1994 came to hold that the agreement dated 28.11.1984 (Exhibit D1) is not enforceable and no specific performance of the said agreement can be ordered as the property in respect of which the agreement had been entered into is vague and unidentifiable. He further found that the said agreement Exhibit D1 having been deliberately undervalued to save the stamp duty and registration fee, is void on the ground of public policy.

So far as the suit filed by Harnak Singh for recovery of money is concerned, the Lower Appellate Court affirmed the findings of the Trail Judge and confirmed the dismissal of the suit for recovery of the money on the basis of the alleged pronote. Thus the Lower Appellate Court ultimately dismissed both the suits. Regular Second Appeal having been carried to the High Court the High Court agreed with the conclusion of the Lower Appellate Court with regard to the vagueness of the property in respect of which the agreement had been entered into and therefore, dismissed the Second Appeal, and thus the present Appeal by Special Leave.

The learned counsel for the appellant vehemently argued that the parties having been entered into an agreement whereunder the respondent agreed to execute the sale deed in respect of the property in question and the Courts below not having found the agreement to be invalid, committed error in denying the relief of specific performance and, therefore, this Court should interfere with the judgment and decree of the Lower Appellate Court as confirmed by the High Court in Second Appeal, so far as it relates to the suit for specific performance. The learned counsel for the respondents, on the other hand contender, that the finding of the Lower Appellate Court that the agreement in question was vague and the property for which the agreement had been entered into cannot be identifiable remain unassailable and as such the Lower Appellate Court was wholly justified in dismissing the said suit. According to the learned counsel for the respondents no court would pass a decree which ultimately become unenforceable and, therefore, there is no infirmity with the judgment of the Lower Appellate Court which has been confirmed by the High Court in the Second Appeal. In view of the rival submissions at the Bar the only question that arises for consideration is whether the Lower Appellate Court and the High Court were right in refusing the grant of specific performance on the finding that the property for which the agreement is said to have been entered into is vague and unidentifiable. It is seen that the Trial Judge while decreeing the suit for specific performance never applied his mind to the identifiability of the property in question and on the basis of a finding that the parties had entered into an agreement and the respondents failed to perform its part, granted thee relief sought for in the suit. The Lower Appellate Court, however, examined the materials on record and came to the positive conclusion that the agreement Exhibit D1 neither contains the exact area the land to be sold to Nahar Singh, nor the boundaries thereof.

He further found that no length or breadth of the land has been gives and it does not pin point the place from where it was to be measured and though Nahar Singh had claimed right from Khasra number 435 and 436 but the said Khasra nos. had not been in the agreement Exhibit D1. The Lower Appellate Court also found that thee parties entered into an agreement to save stamp duty and registration fee and the said agreement is thus opposed to the public policy and relief of specific performance cannot be claimed.

In view of the aforesaid findings of the Lower Appellate Court which could not be assailed before us by the learned counsel for the appellant, it is not for this Court to interfere with the decision of the Lower Appellate Court which has been confirmed power under Article 136 of the constitution. It is well settled that unless the property in question for which the relief has been sought for is identifiable, no decree can be granted in respect of the same. The learned counsel in the course of his arguments, however, not been able to dislodge the findings arrived at by the Lower Appellate Court merely urged that the agreement having been found to have been entered into between the parties the Court should issue the direction for enforcement of the same. We are unable to agree with this argument of the learned counsel for the appellant.

In the premises, as aforesaid, we are of the considered opinion that the case does not warrant interference under Article 136 of the Constitution and is accordingly dismissed. But in the circumstances, there will be no order as to costs.

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