Regular Second Appeal No.2218 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2218 of 2007 Date of decision: 14.07.2009 Kishan Singh son of Gurdit Singh son of Baghel Singh, resident of village Bahadurke Tehsil Jagraon, District Ludhiana. ..... Appellant. Versus Arun Kumar son of Walaiti Ram son of Atma Ram, r/o Shastri Nagar, Jagraon, District Ludhiana. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Mr. M.S. Rai, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 27.09.2003, rendered by the Court of Civil Judge (Junior Division), Jagraon, vide which it decreed the suit of the plaintiff for recovery of Rs.2,05,500/- Regular Second Appeal No.2218 of 2007 2 alongwith costs and interest at the rate of 9% per annum from the date of institution, till the date of decree and 6 % simple interest from the date of decree till realization, and the judgment and decree dated 13.12.2006, rendered by the Court of District Judge, Ludhiana, vide which the appeal against the judgment and decree of the trial Court, was dismissed, has been filed by the appellant- defendant. 2. Shorn off unnecessary details, the relevant facts of the case, are that the defendant, being the owner of the suit land measuring 47 kanals 0 marla, as fully detailed, in the head note of the plaint, executed the agreement to sell dated 17.07.1996, for a sale consideration of Rs.34,000/- per killa, in favour of the plaintiff and received a sum of Rs.1,50,000/- as earnest money on that date. The defendant agreed to execute the sale deed on 30.07.1997, alongwith all the amenities i.e. Electric motor, Rasta and Khal. It was further stated that at the time of execution of the agreement to sell, the land measuring 40 kanals 0 marla was under mortgage with the Scheduled Bank, as the defendant had secured a loan, on the basis Regular Second Appeal No.2218 of 2007 3 thereof. As per the stipulation in the agreement, the defendant undertook to get the mortgage redeemed. The plaintiff continued contacting the defendant for the execution of the sale deed, and he was also asked to bring 'No Due Certificate' from the concerned bank to avoid any further complications but to no avail. It was further stated that the plaintiff had always been ready and willing to perform his part of the contract, but the defendant breached the same. Ultimately a suit for specific performance and in the alternative for recovery, was filed. 3. The defendant put in appearance, and contested the suit, by way of filing written statement, wherein, it was stated that no agreement to sell was executed by him, in favour of the plaintiff. The terms and conditions of the agreement were also denied. It was further stated that the alleged agreement to sell, was the result of fraud. It was further stated that the land, in dispute, in respect whereof, the alleged agreement was executed, being fertile, by no stretch of imagination, could be agreed to be sold at the rate of Rs.34,000/- per acre. The remaining averments, Regular Second Appeal No.2218 of 2007 4 contained in the plaint, were also denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court:- “1- Whether defendant entered into an agreement to sell dated 17.07.1996 and received Rs.1,50,000/- as earnest money from the plaintiff ?OPP 2- Whether plaintiff is ready and willing to perform his part of contract ?OPP 3- Whether plaintiff is in possession of the suit land by way of specific performance of the agreement dated 17.07.1996 ?OPP 4- Whether plaintiff is entitled for recovery of Rs.2,05,500/- by way of alternative relief ?OPP 5- Whether plaintiff is estopped by his act and conduct to file the present suit ?OPD 6- Whether the suit is not maintainable in the present form ?OPD 7- Whether plaintiff has got no locus standi to file the present suit ?OPD 8- Whether suit is within time ?OPD Regular Second Appeal No.2218 of 2007 5 9- Whether suit has not been properly verified in accordance with the provisions of CPC ?OPD 10- Relief.” 5. The parties led evidence, in support of their case. The trial Court after hearing the Counsel for the parties, and on going through the evidence and record of the case, held that a legal and valid agreement to sell, was executed in favour of the plaintiff, in respect of the land in dispute. However, the trial Court came to the conclusion that the plaintiff was not entitled to the decree for possession by way of specific performance and was only entitled to the alternative relief of recovery. Accordingly the suit was partly decreed. 6. Feeling aggrieved, an appeal was preferred by the defendant/appellant for setting aside the judgment and decree and the cross- objections were filed by Arun Kumar, plaintiff/cross-objector, on the ground, that the interest, which was awarded, being on the lower side, should be awarded at the rate of 12% per annum throughout. The appeal was dismissed in Regular Second Appeal No.2218 of 2007 6 default and the cross-objections were dismissed ex- parte. 7. Feeling aggrieved, the instant Regular Second Appeal, has been filed, by the appellant. 8. I have heard the Counsel for the appellant, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellant, submitted that the Courts below were wrong in coming to the conclusion that the agreement to sell was executed by Kishan Singh, defendant-appellant, in favour of Arun Kumar, plaintiff-respondent. He further submitted that the said agreement was the result of fraud. He further submitted that the alternative relief was illegally granted, in favour of the plaintiff-respondent. He further submitted that the judgments and decrees of the Courts below were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the appellant, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. Pritam Singh, Scribe, Narinder Kumar, (PW-1) an attesting Regular Second Appeal No.2218 of 2007 7 witness, Sukhdev Garg, (PW-2), another attesting witness, and Arun Kumar, plaintiff, proved the execution of agreement to sell, (Ex.P1) and receipt of earnest money, by the defendant. The defendant, no doubt, took up the plea that the agreement to sell was the result of fraud, but when the defendant appeared as DW-2, he during cross- examination, admitted that the same was correct and bore his thumb impression. The defendant was unable to prove that the agreement to sell,(Ex.P-1) was the result of fraud. The concurrent findings of fact, recorded by the Courts below, that a legal and valid agreement to sell was executed, in favour of the plaintiff, by the defendant (now appellant), in respect of the land, in dispute; that he received the earnest money in the sum of Rs.1,50,000/-; that the agreement to sell was not the result of fraud; that the plaintiff always remained ready and willing to perform his part of the contract; and that the plaintiff was entitled to the alternative relief with interest, at the rate of 9% per annum, from the date of institution of the suit till the date of decree and @ 6 % per annum from the date of decree till realization, Regular Second Appeal No.2218 of 2007 8 being based on the correct appreciation of evidence and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference. The judgments and decree of the Courts below, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. No question of law, much less substantial, arises, in this appeal, for the determination of this Court. 12. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same stands dismissed with costs. ( Sham Sunder ) July 14, 2009 Judge dinesh