SURMUKH SINGH Vs. SWARAN SINGH

JUDGEMENT

(1.) Unsuccessful plaintiff is in regular second appeal against the concurrent findings of facts recorded by both the learned courts below, whereby suit for possession by way of specific performance of agreement to sell dated 13.6.2001 was dismissed by the learned trial court, vide its impugned judgment and decree dated 20.2.2009, granting alternative relief to the plaintiff for return of earnest money along with interest and also the impugned judgment and decree dated 22.8.2012 passed by the learned first appellate court, whereby first appeal of the plaintiff was dismissed and his suit was dismissed in toto, as he did not make any prayer in the plaint for alternative relief for return of earnest money.

(2.) Brief facts of the case, as noticed by the learned first appellate Court in para 2 of its impugned judgment, are that defendant entered into an agreement to sell his 6 bighas of land to the plaintiff for a sum of Rs. 3 lacs along with share in water/tubewell and 10 horse power motor connection along with passage and khal etc., receiving an amount of Rs. 1,50,000/- as earnest money. The date fixed for execution of the sale deed was on or before 15.6.2003. The plaintiff was still ready and willing to perform his part of the contract. On 14/15.6.2003, there were holidays, so plaintiff remained present in the office of Sub Registrar, Kharar on 13.6.2003 and 16.6.2003, but the defendant did not turn up and then plaintiff got marked his presence by way of affidavit. The plaintiff also sent registered notice dated 25.6.2003, to which reminder dated 6.8.2003 was issued, but in spite of this, he did not come present to perform his part of the contract to execute the sale deed. Now, the defendant was threatening to alienate the suit property to some body else, to which he had got no right.

(3.) Having been put to notice, defendant appeared and filed his contesting written statement. Plaintiff filed his replication. On completion of pleadings of the parties, learned trial Court framed the following issues:-