Tarlochan Singh vs Mukhtiar Dass and Others

Rakesh Kumar Garg, J.—This is plaintiff''s second appeal challenging the judgments and decrees of the Courts below whereby in a suit for specific performance of the agreement to sell in question, a decree has been passed in favour of the appellant for recovery of earnest amount along with interest and the specific performance of the agreement in question has been denied. Suffice is to say that in the written statement filed on behalf of the defendant-respondents, a specific defence was taken that on the date of execution of the alleged agreement to sell dated 28.5.2002, the defendant-respondent No. 1 Mukhtiar Dass had no saleable right in the property in question, as earlier vide agreement to sell dated 20.2.2002, he had agreed to sell the property in question in favour of one Davinder Singh and the matter had gone to the Arbitrator and an award dated 5.6.2002 with regard to said property was passed in favour of said Davinder Singh.

According to the appellant, in this appeal, the following substantial questions of law arise for consideration:

(a) Whether the relief of the specific performance can be denied to the plaintiff/appellants especially when the agreement in question has been proved on record?

(b) Whether the relief of specific performance can be denied on the basis of arbitration award which is not at all proved on the record?

(c) Whether both the Ld. courts below have misread and misconstrued the evidence?

(d) Whether the impugned judgments and decrees thereby refusing the relief of specific performance and decreeing the suit for alternative recovery passed by both the Ld. Courts below are based upon surmises and conjectures?

Both the Courts below on appreciation of evidence found that the agreement to sell in question dated 28.5.2002 and receipt of the earnest money stood proved in favour of the appellant. However, keeping in view the fact that an arbitration award had been passed in favour of one Davinder Singh on the basis of an earlier agreement to sell dated 20.2.2002 executed by respondent No. 1 in his favour, the Courts below came to the conclusion that the agreement to sell dated 28.5.2002 executed in favour of the appellant cannot be specifically enforced against the respondents as respondent No. 1 had been left with no saleable interest in the property in dispute on the date of execution of the said agreement. The Courts below further found that even Davinder Singh in whose favour an earlier agreement to sell was executed by defendant-respondent No. 1 and in whose favour the award Ex. D1 had come into existence was not arrayed as a defendant-respondent and in view of the aforesaid facts, instead of granting specific performance of the agreement to sell in question in favour of the appellant, the Courts below decreed the suit for refund of earnest amount along with interest.

It is well settled that grant of specific performance of an agreement to sell, under the provisions of Section 20 of the Specific Relief Act is a discretionary relief and the Courts below in their discretion may not grant the said relief even if it is lawful to do so. However, the said jurisdiction is to be exercised by the Courts below on the basis of sound judicial principles and not in an arbitrary manner. In the facts and circumstances of the case, it cannot be said that the discretion by the Courts below was in any way exercised in an arbitrary manner and therefore, this Court is of the view that no substantial question of law, as raised, in the grounds of appeal arises in this appeal. Dismissed.