R.S.A. No. 590 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 590 of 2007 Date of decision : 29.1.2009 Satnam Chand and others ....Appellants Versus Bakhtawar Lal ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Sandeep Jasuja, Advocate for the appellants. Mr. A.K.Khunger, Advocate for the respondent. ..... MAHESH GROVER, J. This appeal is directed against the judgment of the first Appellate Court dated 10.8.2006 by which the findings of the learned trial Court were reversed. The plaintiff/respondent filed a suit for specific performance on the basis of an agreement dated 12.6.1997 by which the land described in the suit was agreed to be sold @ Rs.40,000/- per acre. An amount of Rs.2,00,000/- was paid as earnest money and it was agreed that the sale deed would be executed on 11.6.1998. It is the case of the plaintiff/respondent that he was always willing and ready to perform his part of the agreement and that he was present on R.S.A. No. 590 of 2007 -2- 11.6.1998 before the Sub-Registrar with the balance sale consideration but the appellants did not turn up. It was pleaded that he was still willing and ready to perform his part of agreement and prayed for a decree of specific performance of the agreement dated 12.6.1997. The appellant, who was the defendant, objected to the suit and stated that in fact the son of the appellant was having dealings with the plaintiff/respondent who is a commission agent and that some of the documents were misused to execute the agreement to sell. It was denied that he had executed such an agreement and that any amount had changed hands. Both the parties went to trial on the following issues :- 1. Whether the defendant executed an agreement to sell dated 12.6.97 in favour of the plaintiff?OPP 2. Whether the plaintiff was and is ready and willing to perform his part of contract?OPP 3. Whether the plaintiff is entitled to the possession of the suit land by way of specific performance of agreement to sell dated 12.6.97?OPP 4. Whether the plaintiff is entitled to the recovery of Rs.205500/- as prayed for in the alternate?OPP 5. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP 6. Whether the suit is time barred?OPD 7. Whether the agreement is forged and fabricated document?OPD R.S.A. No. 590 of 2007 -3- 8. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD 9. Whether the plaintiff has no cause of action to file the present suit?OPD 10. Whether the plaintiff has no locus standi to file the present suit?OPD 11. Relief. The learned trial Court came to the conclusion that the agreement to sell was sham and based its inference on the basis of an observation that there was difference of spacing of the lines of the agreement which shows that the contents of the agreement had not been squeezed in and the plea of the appellant was correct. The suit was accordingly dismissed. In appeal, the findings of the learned trial Court were reversed. The first Appellate Court came to the conclusion that the finding regarding the agreement as observed by the learned trial Court was incorrect and while setting it aside granted alternate relief of the recovery of Rs.2,00,000/- which was paid as earnest money by the respondent. The amount was directed to be recovered with interest @ 6% per annum. The aforesaid finding of the first Appellate Court has been assailed in the present regular second appeal by the appellant to contend that the finding recorded regarding the agreement is not valid and correct. I have heard the learned counsel for the parties and perused the impugned judgment. The copy of the agreement to sell R.S.A. No. 590 of 2007 -4- has also been produced before this Court which has been perused. Apparently, the finding of the learned trial Court is based on a perusal of the agreement which prima facie seems to be incorrect. There was other cogent material which has been ignored by the learned trial Court. A specific issue was framed whether the agreement was the result of fraud and misrepresentation. Surprisingly, this issue was decided by the learned trial Court in favour of the plaintiff/appellant after having held that the agreement was not a result of fraud. On the one hand it doubts the agreement and on the other it holds that fraud is not proved. An agreement is either valid and true and free expression of the intent of the parties or it is not. The trial Court was clearly in error by basing its finding on a naked perusal of the document. Once the plea of fraud has been raised by the defendant, then it is for him to prove such a plea by leading cogent evidence on record. But there is no such material on record which warrants an interference by this Court and the finding recorded by the learned trial Court is perverse which has been rightly rectified by the first Appellate Court. It was next contended by the learned counsel for the appellant that the suit was filed within limitation but belatedly and this could not have been the basis for denying him the substantial relief of execution of the sale deed. I have considered this aspect of the matter. The first Appellate Court has rightly concluded that suit was filed belatedly and therefore awarded the alternate relief of return of Rs.2,00,000/-. There is thus no infirmity in the findings recorded by the first R.S.A. No. 590 of 2007 -5- Appellate Court. No substantial question of law has been shown to have arisen in the appeal. Accordingly, the same being devoid of any merit is dismissed. 29.1.2009 (MAHESH GROVER) JUDGE dss