RSA No.4102 of 2010(O&M) -1- In the High Court of Punjab and Haryana at Chandigarh RSA No.4102 of 2010(O&M) Date of Decision: November 29, 2010 Kaushalya Devi and others ---Appellants versus Kamal Kumar Jain ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Harmanjeet Singh, Advocate, for the appellants *** GURDEV SINGH, J. Suit for possession of the house in dispute situated in Uncha Khera Mohalla, Rupnagar, by way of specific performance of the agreement dated 26.6.2003, was filed by Kamal Kumar Jain -respondent-plaintiff against Mahavir Prasad, defendant (since deceased, whose legal representatives; namely Kaushalya Devi and others-appellants, were brought on the record). The suit was decreed by Additional Civil Judge (Senior Division) Rupnagar, vide judgment and decree dated 12.3.2009 and that judgment and decree was affirmed by the First Appellate Court, vide judgment and decree dated 26.7.2010 in the first appeal preferred by the RSA No.4102 of 2010(O&M) -2- present appellants. Now, they have preferred the second appeal against those judgments and decrees. The case of the plaintiff is that the defendant was the owner in possession of the house in dispute, who approached him to sell the same and the bargain was struck for ` 2,50,000/- on 26.6.2003. The defendant executed the agreement to sell in his favour after receiving ` 2,00,000/- as earnest money and agreed to execute the sale deed on or before 31.12.2004, on the payment of the balance sale consideration. The defendant failed to execute the sale deed in his favour though he always remain ready and willing to do so. On 31.12.2004, he remained present in the office of the Sub Registrar, Rupnagar, from 9-00 a.m. to 5-00 p.m., along with the balance sale consideration and necessary expenses, but the defendant did not turn up. The suit was contested by the defendant. In his written statement he denied the contentions of the plaintiff and inter alia pleaded that in fact he raised a loan of ` 1,00,000/- from the plaintiff on interest at the rate of 2% per month on 22.4.2003 and as security for repayment of that loan, gave him blank stamp papers. He repaid that loan on 21.9.2003, along with interest, in the presence of Om Veer Singh and requested the plaintiff to return the blank stamp papers but he failed to do so. The agreement dated 26.6.2003 has been forged on those blank stamp papers and no such agreement was ever executed by him nor he received any such sum of ` 2,00,000/- from the plaintiff. He even denied his signatures on that agreement and pleaded that the agreement has been fabricated by the plaintiff in connivance with the witnesses in order to grab his property. ` In replication to the written statement, the plaintiff denied the RSA No.4102 of 2010(O&M) -3- contentions raised therein and reiterated his averments made in the plaint. On the pleadings of the parties, following issues were framed by the learned trial court:- 1. Whether the defendant entered into an agreement to sell dated 26.6.2003? OPP 2. Whether the defendant received a sum of Rs. Two lacs as earnest money?OPP 3.Whether the plaintiff is still ready to perform his part of contract?OPP 3.A. Whether the suit is not maintainable in the present form?OPD 3.B. Whether the agreement to sell is false and fabricated as alleged?OPD 3.C Whether the plaintiff has no cause of action against the defendant?OPD 4. Relief To succeed in the suit, plaintiff examined himself and both the marginal witnesses of the agreement; namely Tarun Kumar and Prem Singh. On the other hand, the defendant examined himself and Om Veer Singh. After going through that evidence and hearing learned counsel for both the sides, learned trial court decided all the issues in favour of the plaintiff and resultantly decreed his suit. I have heard learned counsel for the appellants. It has been submitted by learned counsel for the appellants that the findings recorded by the lower courts cannot be sustained as the same are the result of the misreading of the evidence which give rise to the RSA No.4102 of 2010(O&M) -4- substantial question of law. Both the alleged attesting witnesses of the agreement stated during their cross examination that the agreement was never executed and signed by the defendant in their presence, which makes the stand of the defendant probable that blank stamp papers were given by him to the plaintiff at the time of advancement of loan of ` 1,00,000/-. He also tried to submit that undue hardship is likely to be caused to the appellants on the ground that the house in dispute is the only residential house with them. The statements of the parties and the witnesses were read out in the Court by the counsel for the appellants. There is no denial of the fact that the attesting witnesses of the agreement deposed during their cross examination that the agreement was not signed by the defendant in their presence. It is to be noted that during their examination-in-chief, they supported the case of the plaintiff that the agreement was duly scribed which was read over to the defendant and he had put his signatures after admitting the same to be correct. Even if, the statements of these witnesses are ignored, there was statement of the plaintiff on the record for proving the due execution of the agreement in his favour by the defendant. During the cross examination of the plaintiff, the defendant never put to him that no such agreement was executed by him and that the blank stamp papers were obtained from him at the time of advancement of the loan. In the absence of any cross examination to that effect, the statement made by the plaintiff, regarding the due execution of this agreement by the defendant in his favour, is deemed to have been admitted. Therefore, it cannot be said that the findings recorded by the lower courts are based on the misreading of the evidence. One of the circumstance which heavily weighed with the lower RSA No.4102 of 2010(O&M) -5- Courts, is that the title deed of the house in dispute, which was in the name of the defendant, was produced in the Court by the plaintiff. No explanation has been offered by the defendant as to how the plaintiff came into possession of that title deed. The same was possible only if the defendant had agreed to sell the house in dispute in his favour. No such case of hardship, going to be caused to the appellants, was taken up before the lower courts and the same cannot be allowed to be taken at this stage, in the absence of any evidence to support that fact. No substantial question of law arises in this appeal and the same is dismissed accordingly. (GURDEV SINGH) JUDGE November 29, 2010 PARAMJIT