R.S.A. No.1768 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.1768 of 2011 (O&M) DATE OF DECISION: 21 st APRIL, 2011 Saun Singh .... Appellant Versus Raghbir Singh & another .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Harjot Singh Bedi, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) Saun Singh-defendant No.1 having lost in both the courts below has come up by way of instant second appeal. Respondent No.1-plaintiff Raghbir Singh filed suit against defendant No.1-appellant and his son Nishan Singh defendant No.2 for possession of the suit land measuring 4 Kanals being 1/3rd share of 11 Kanals 19 Marlas land by way of specific performance of the agreement to sell dated 22.05.2003, alleging that defendant No.1 being owner in possession of the suit land agreed to sell the same to the plaintiff at the rate of Rs.5,00,000/- per acre and received Rs.2,00,000/- as earnest money and executed the impugned agreement. Sale deed was to be executed up to 15.04.2004. Accordingly on 15.04.2004 plaintiff remained present in the office of Sub-Registrar to get the sale deed executed in terms of the agreement. But the defendant did not turn up and and committed breach of the agreement. In spite of service of notice by the R.S.A. No.1768 of 2011 (O&M) -2- plaintiff, defendant No.1 failed to execute the sale deed. On the contrary, defendant No.1 executed sale deed of 2 Kanals land in favour of his son Nishan Singh-defendant No.2, although the agreement was within the knowledge of the defendant No.2 also. The said sale has also been challenged in the suit being not binding on the plaintiff. Defendant No.1 broadly denied the plaint allegations. He denied having agreed to sell the suit land to the plaintiff or having executed the impugned agreement or having received earnest money. Defendant No.1 alleged that he executed the sale deed in favour of defendant No.2 on 22.12.2003 and thereafter, plaintiff prepared impugned bogus agreement. Various other pleas were also raised. Defendant No.2 was proceeded ex parte. Learned Additional Civil Judge (Senior Division), Gurdaspur vide judgment and decree dated 06.05.2009 decreed the plaintiff's suit. First appeal preferred by defendant No.1 has been dismissed by learned Additional District Judge, (Fast Track Court), Gurdaspur vide judgment and decree dated 30.11.2010. Feeling aggrieved, defendant No.1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff himself stepped into witness box as PW-1 and proved the impugned agreement and also his readiness and willingness to perform his part of the agreement. Harjinder Singh PW-4 is son of Dalip Singh attesting witness of the agreement and identified the signature of Dalip Singh on the agreement, whereas Dalip Singh himself had admittedly become incapable of deposing as witness. Plaintiff has also examined Manbir Singh Sekhon as PW- R.S.A. No.1768 of 2011 (O&M) -3- 3 who scribed the agreement. He has also supported the plaintiff's case. On the other hand, both the defendants appeared in the witness box and supported their case. Plaintiff's evidence is cogent and reliable and the same is not rebutted by self-serving oral statements of the defendants. On the contrary, plaintiff's case is also proved by admissions made by defendant No.1 in his cross-examination. He stated that he did not know if he had agreed to sell the suit land to the plaintiff. It clearly depicts dishonesty and falsehood of defendant No.1. If he had not entered into an agreement with the plaintiff, he should have been categorical in deposing that he did not enter into any such agreement. However defendant No.1 expressed ignorance about the agreement entered into by himself. This is completely impermissible. It depicts that defendant No.1 had in fact entered in to the impugned agreement. This conclusion is also strengthened by further admission made by defendant No.1. He stated that he had received Rs.2,00,000/- from the plaintiff in the presence of his son and affixed thumb impressions on the agreement. In view of this categorical admission by defendant No.1 regarding receipt of earnest money and affixing of thumb impressions on the impugned agreement, nothing survives for adjudication in the lis. Plaintiff's evidence is also sufficient to prove the execution of the agreement by the defendant and payment of earnest money to him. This fact is further established by own admission of defendant No.1. In view of the aforesaid, no fault can be found with concurrent finding recorded by the courts below regarding execution of the agreement by defendant No.1 and receipt of earnest money by him. The said finding is based R.S.A. No.1768 of 2011 (O&M) -4- on proper appreciation of the evidence on record and is not shown to be perverse or illegal in any manner. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal lacks any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 21st April, 2011 'raj'