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PETITIONER: NAHAR SINGH

       Vs.

RESPONDENT: HARNAK SINGH & ORS.

DATE OF JUDGMENT:       29/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      PATTANAIK, J.      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,

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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

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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.