RSA No. 3534 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Swaran Singh Rattan Singh & CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA Argued by:- Mr. Abhinav Jain, Advocate DEEPAK GUPTA, J. second appeal against the reversal, inasmuch as suit for specific performance Rattan Singh and other Ld. Addl. Civil Judge (Sr. Divn.) Faridkot on 21.05.2008, but the appeal RT N: 142/2008/2009] herein, was partly accepted by the first Appellate Court of Ld. District Judge, Faridkot vide his judgment dated 03.01.2011, whereby though the relief of refund of earnest money was granted to the plaintiff relief of specific performance was declined. 2. the assistance of learned counsel for both parties. For convenience, the parties are referred to by their status before the trial court. 3. agreement to sell dated Singh (respon out of a total of 57 kanal 2 marla) in favour of the plaintiff. As per the plaintiff, the agreed consideration was was paid as earn RSA No. 3534 of 2011 Page N: 1 of 4 Pages IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Swaran Singh Versus Rattan Singh & Ors. CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA Mr. Abhinav Jain, Advocate for the appellant. Mr. Sanjeev Kumar Arora, For the respondents. DEEPAK GUPTA, J. Plaintiff of the case is before this court in the present regular second appeal against the reversal, inasmuch as suit for specific performance [CS RT N: 286/2004/2002] filed by him against defendants Rattan Singh and other (now respondents), was decreed b Ld. Addl. Civil Judge (Sr. Divn.) Faridkot on 21.05.2008, but the appeal RT N: 142/2008/2009] filed by defendant Rattan Singh , was partly accepted by the first Appellate Court of Ld. District Judge, vide his judgment dated 03.01.2011, whereby though the relief of refund of earnest money was granted to the plaintiff relief of specific performance was declined. The trial court record available on DMS has been perused with ssistance of learned counsel for both parties. For convenience, the parties are referred to by their status before the trial court. Brief Facts: The suit was filed for specific performance of an agreement to sell dated 28.06.2001(Ex.P5) executed by def Singh (respondent herein), owner of 16 kanal out of a total of 57 kanal 2 marla) in favour of the plaintiff. As per the plaintiff, the agreed consideration was ₹2,00,000/ was paid as earnest money. The balance ₹1,09,000/ Pages IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3534 of 2011 (O&M) Reserved on: 17.07.2025 Pronounced on: 21.07.2025 …Appellant …Respondents CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA Plaintiff of the case is before this court in the present regular second appeal against the reversal, inasmuch as suit for specific filed by him against defendants was decreed by the trial court of Ld. Addl. Civil Judge (Sr. Divn.) Faridkot on 21.05.2008, but the appeal [CA filed by defendant Rattan Singh i.e. respondent , was partly accepted by the first Appellate Court of Ld. District Judge, vide his judgment dated 03.01.2011, whereby though the relief of refund of earnest money was granted to the plaintiff - appellant, but the The trial court record available on DMS has been perused with ssistance of learned counsel for both parties. For convenience, the parties are referred to by their status before the trial court. The suit was filed for specific performance of an (Ex.P5) executed by defendant Rattan dent herein), owner of 16 kanal of land (being 320/1342 share out of a total of 57 kanal 2 marla) in favour of the plaintiff. As per the ₹2,00,000/-, out of which ₹91,000/- ₹1,09,000/- was to be paid at the RSA No. 3534 of 2011 (O&M) 17.07.2025 .07.2025 Appellant Respondents Plaintiff of the case is before this court in the present regular second appeal against the reversal, inasmuch as suit for specific filed by him against defendants y the trial court of [CA i.e. respondent , was partly accepted by the first Appellate Court of Ld. District Judge, vide his judgment dated 03.01.2011, whereby though the relief of appellant, but the The trial court record available on DMS has been perused with ssistance of learned counsel for both parties. For convenience, the The suit was filed for specific performance of an endant Rattan of land (being 320/1342 share out of a total of 57 kanal 2 marla) in favour of the plaintiff. As per the - was to be paid at the JITEN SHARMA 2025.07.21 17:09 I attest to the accuracy and integrity of this document RSA No. 3534 of 2011 time of execution and registration of the sale deed, for which target date was fixed as before the Sub appear. A legal notice dated Asserting his continuous readiness and willingness, the plaintiff sought specific performance or, in the alternative, recovery of 4. Development Bank question was mortgaged with it. 5.1 alleging that it was merely a security document for a loan of taken from the plaintiff, manipulated by adding interest at per annum. He claimed fraud and misrepresentation. 5.2 competent to sell the land until the loan was discharged. 6. decreed the suit for specific performance. However, the Appellate Court reversed this finding, granting only the refund of earnest money. Submissions: 7. the agreement and plaintiff’s readiness and willingness were duly proved and even accepted by the Appellate Co relief of specific performance was erroneous. 8. execution of the agreement but supported the Appellate Court’s decision, citing the land’s mortgaged status and specific performance. Analysis by this court: 9. rightly denied the discretionary relief of specific performance by the First RSA No. 3534 of 2011 Page N: 2 of 4 Pages time of execution and registration of the sale deed, for which target date as 28.06.2002. The plaintiff claimed that he remained present before the Sub-Registrar on the scheduled date, but appear. A legal notice dated 08.07.2002 was also served, but to no avail. Asserting his continuous readiness and willingness, the plaintiff sought specific performance or, in the alternative, recovery of Defendant No.2 – Faridkot Primary Cooperative Agriculture Development Bank – was impleaded as a proforma party, as the land in question was mortgaged with it. Defendant No.1 denied the execution of the agreement, alleging that it was merely a security document for a loan of taken from the plaintiff, manipulated by adding interest at per annum. He claimed fraud and misrepresentation. Defendant No.2 (Bank) asserted that defendant No.1 was not competent to sell the land until the loan was discharged. After framing issues and recording evidence, the trial court decreed the suit for specific performance. However, the Appellate Court reversed this finding, granting only the refund of earnest money. Submissions: Learned counsel for the appellant argued that the execution of the agreement and plaintiff’s readiness and willingness were duly proved and even accepted by the Appellate Court. Thus, declining the equitable relief of specific performance was erroneous. In response, counsel for the respondent did not dispute the execution of the agreement but supported the Appellate Court’s decision, citing the land’s mortgaged status and joint ownership as barriers to specific performance. Analysis by this court: The only point for determination is whether the plaintiff was rightly denied the discretionary relief of specific performance by the First Pages time of execution and registration of the sale deed, for which target date . The plaintiff claimed that he remained present Registrar on the scheduled date, but the defendant failed to was also served, but to no avail. Asserting his continuous readiness and willingness, the plaintiff sought specific performance or, in the alternative, recovery of ₹2,00,000/-. Faridkot Primary Cooperative Agriculture was impleaded as a proforma party, as the land in Defendant No.1 denied the execution of the agreement, alleging that it was merely a security document for a loan of ₹60,000/- taken from the plaintiff, manipulated by adding interest at the rate of 24% per annum. He claimed fraud and misrepresentation. Defendant No.2 (Bank) asserted that defendant No.1 was not competent to sell the land until the loan was discharged. After framing issues and recording evidence, the trial court decreed the suit for specific performance. However, the Appellate Court reversed this finding, granting only the refund of earnest money. Learned counsel for the appellant argued that the execution of the agreement and plaintiff’s readiness and willingness were duly proved urt. Thus, declining the equitable relief of specific performance was erroneous. In response, counsel for the respondent did not dispute the execution of the agreement but supported the Appellate Court’s decision, joint ownership as barriers to The only point for determination is whether the plaintiff was rightly denied the discretionary relief of specific performance by the First time of execution and registration of the sale deed, for which target date . The plaintiff claimed that he remained present the defendant failed to was also served, but to no avail. Asserting his continuous readiness and willingness, the plaintiff sought Faridkot Primary Cooperative Agriculture was impleaded as a proforma party, as the land in Defendant No.1 denied the execution of the agreement, - 24% Defendant No.2 (Bank) asserted that defendant No.1 was not After framing issues and recording evidence, the trial court decreed the suit for specific performance. However, the Appellate Court Learned counsel for the appellant argued that the execution of the agreement and plaintiff’s readiness and willingness were duly proved urt. Thus, declining the equitable In response, counsel for the respondent did not dispute the execution of the agreement but supported the Appellate Court’s decision, joint ownership as barriers to The only point for determination is whether the plaintiff was rightly denied the discretionary relief of specific performance by the First JITEN SHARMA 2025.07.21 17:09 I attest to the accuracy and integrity of this document RSA No. 3534 of 2011 Appellate Court, despite proven exe readiness and willingness. 10. Both courts found in favour of the plaintiff on this aspect. His continuous readiness and willingness were also established and r unchallenged. 11. Section 17 of the under mortgage not just by the defendant but also by his co Singh, and wa 12. “17. ically enforceable. (1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor (a) who, knowing himself not to have any title to the property, has contracted to sell or let the property; (b) who, though he entered into the contract believing that he had a good title to the property, cannot a for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt. (2) The provisions of sub contracts for the sale 13. lacks title or cannot convey a title of execution. 14. contracted to sell only his defined share (320/1342). A co transfer his undivided share, though not a specific demarcated portion. Thus, no defect in title existed. 15. performance. At best, the plaintiff steps into the shoes of the mortgagor and assumes corresponding liabilities. The co irrelevant to the enforceability of defendant No.1’s obligations under the agreement. RSA No. 3534 of 2011 Page N: 3 of 4 Pages Appellate Court, despite proven execution of the agreement and his readiness and willingness. Execution of the agreement dated Both courts found in favour of the plaintiff on this aspect. His continuous readiness and willingness were also established and r unchallenged. The First Appellate Court declined specific performance citing of the Specific Relief Act, 1963, noting that the suit property was under mortgage not just by the defendant but also by his co Singh, and was joint & undivided. Section 17 of the Specific Relief Act, 1963 reads as under: Contract to sell or let property by one who has no title, not speci ically enforceable. (1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor-- (a) who, knowing himself not to have any title to the property, has contracted to sell or let the property; (b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt. (2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.” Section 17 bars enforcement only where the vendor knowingly lacks title or cannot convey a title, free from reasonable doubt at the time of execution. In the present case, defendant No.1 was a co contracted to sell only his defined share (320/1342). A co transfer his undivided share, though not a specific demarcated portion. Thus, no defect in title existed. The mere existence of a mortgage is not a legal bar to specific ormance. At best, the plaintiff steps into the shoes of the mortgagor and assumes corresponding liabilities. The co irrelevant to the enforceability of defendant No.1’s obligations under the Pages cution of the agreement and his Execution of the agreement dated 28.06.2001 is not in dispute. Both courts found in favour of the plaintiff on this aspect. His continuous readiness and willingness were also established and remained The First Appellate Court declined specific performance citing , noting that the suit property was under mortgage not just by the defendant but also by his co-sharer Gurdev Specific Relief Act, 1963 reads as under: Contract to sell or let property by one who has no title, not specif- (1) A contract to sell or let any immovable property cannot be specifically -- (a) who, knowing himself not to have any title to the property, has (b) who, though he entered into the contract believing that he had a good t the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title section (1) shall also apply, as far as may be, to or hire of movable property.” bars enforcement only where the vendor knowingly free from reasonable doubt at the time In the present case, defendant No.1 was a co-sharer and had contracted to sell only his defined share (320/1342). A co-sharer can always transfer his undivided share, though not a specific demarcated portion. The mere existence of a mortgage is not a legal bar to specific ormance. At best, the plaintiff steps into the shoes of the mortgagor and assumes corresponding liabilities. The co-mortgagor’s involvement is irrelevant to the enforceability of defendant No.1’s obligations under the cution of the agreement and his is not in dispute. Both courts found in favour of the plaintiff on this aspect. His continuous ed The First Appellate Court declined specific performance citing , noting that the suit property was sharer Gurdev f- (1) A contract to sell or let any immovable property cannot be specifically (a) who, knowing himself not to have any title to the property, has (b) who, though he entered into the contract believing that he had a good t the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title section (1) shall also apply, as far as may be, to bars enforcement only where the vendor knowingly free from reasonable doubt at the time sharer and had sharer can always transfer his undivided share, though not a specific demarcated portion. The mere existence of a mortgage is not a legal bar to specific ormance. At best, the plaintiff steps into the shoes of the mortgagor mortgagor’s involvement is irrelevant to the enforceability of defendant No.1’s obligations under the JITEN SHARMA 2025.07.21 17:09 I attest to the accuracy and integrity of this document RSA No. 3534 of 2011 16. misplaced and unsustainable in law. Once title of a co dispute and the agreement is valid, specific performance cannot be denied merely due to mortgage or joint status of land. Conclusion: 17. judgment & decree dated 03.01.2011 passed by the first Appellate Court cannot be sustained. The same are hereby set aside. Trial Court had rightly decreed the suit of the plaintiff of agreement to sell dated 28.06.2001. As such, judgment & 21.05.2008 as passed by the trial Court are hereby restored. 18. their own costs. 21.07.2025 Jiten RSA No. 3534 of 2011 Page N: 4 of 4 Pages The reasons assigned by the First Appellate Court are thus misplaced and unsustainable in law. Once title of a co dispute and the agreement is valid, specific performance cannot be denied merely due to mortgage or joint status of land. Consequent to the aforesaid discussion, it is held that judgment & decree dated 03.01.2011 passed by the first Appellate Court cannot be sustained. The same are hereby set aside. Trial Court had rightly decreed the suit of the plaintiff-appellant for specific perf of agreement to sell dated 28.06.2001. As such, judgment & 21.05.2008 as passed by the trial Court are hereby restored. Appeal is accordingly accepted, leaving the parties to bear their own costs. Whether speaking/reasoned : Whether reportable : Pages y the First Appellate Court are thus misplaced and unsustainable in law. Once title of a co-sharer is not in dispute and the agreement is valid, specific performance cannot be denied merely due to mortgage or joint status of land. nt to the aforesaid discussion, it is held that judgment & decree dated 03.01.2011 passed by the first Appellate Court cannot be sustained. The same are hereby set aside. Trial Court had rightly appellant for specific performance in terms of agreement to sell dated 28.06.2001. As such, judgment & decree dated 21.05.2008 as passed by the trial Court are hereby restored. Appeal is accordingly accepted, leaving the parties to bear (DEEPAK GUPTA) JUDGE Yes/No Yes/No y the First Appellate Court are thus sharer is not in dispute and the agreement is valid, specific performance cannot be denied nt to the aforesaid discussion, it is held that judgment & decree dated 03.01.2011 passed by the first Appellate Court cannot be sustained. The same are hereby set aside. Trial Court had rightly ormance in terms decree dated Appeal is accordingly accepted, leaving the parties to bear JITEN SHARMA 2025.07.21 17:09 I attest to the accuracy and integrity of this document