RSA No.2327 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2327 of 2009 (O&M) Date of decision 20.9.2011. Mehar Singh ...... Appellant. versus Manjinder Kaur ...... Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Arvind Kashyap, Advocate for the appellant. K.C.PURI . J. Challenge in this appeal is the judgment and decree dated 28.3.2008 passed by Shri P.S.Virk, learned Additional District Judge, Fatehgarh Sahib vide which the appeal preferred by the defendant/appellant against the judgment and decree dated 25.1.2005 passed by Shri Dilbagh Singh Johal, Civil Judge (Senior Division), Fatehgarh Sahib was dismissed. 2. The case of the plaintiff in brief is that Manjinder Kaur filed suit for specific performance of the agreement to sell dated 13.11.2000 with the allegation that defendant is the owner of land measuring 2 bigas 11 biswas and 13 biswasis i.e. 1/3rd share of 7 bighas 14 biswas and 19 biswasis, fully described in the heading of the plaint. The defendant on 13.11.2000 executed an agreement to sell the said land for a consideration RSA No.2327 of 2009 2 of Rs.2,40,000/- and received Rs.1,91,000/- as earnest money. Defendant agreed to execute the sale deed upto 12.8.2001 on payment of the balance sale consideration. Plaintiff remained ready and willing to perform her part of the contract but the defendant committed default. On 12.8.2001, it was Sunday and the plaintiff remained present in the office of the Sub Registrar along with balance sale consideration etc. on 13.8.2001 for execution and registration of the sale deed. But the defendant did not turn up. Though at the time of execution of the agreement, possession of the suit land was delivered to the plaintiff by the defendant but in order to avoid any technicality, the plaintiff also claimed possession. 3. The defendant ought to alienate the suit property. Hence the suit. 4. Upon notice, the defendant appeared and filed written statement and contested the suit. While denying that he neither agreed to sell the suit land nor executed any agreement to sell. The receipt of Rs.1,91,000/- as earnest money was also denied. It is pleaded that the agreement has been prepared by the plaintiff in connivance with the witnesses. The fact that plaintiff remained ready and willing was denied. It was also denied that plaintiff visited the office of Sub Registrar on 13.8.2001. Denying other averments, defendant prayed for dismissal of the suit. 5. Plaintiff filed replication denying the contents of the written statement and reiterating the stand taken by her in the plaint. 6. From the pleadings of the parties, following issues were framed :- RSA No.2327 of 2009 3 1. Whether defendant agreed to sell the suit land to the plaintiff vide agreement to sell dated 13.11.2000 for total consideration of Rs.2,40,000/- and received Rs.1,91,000/- as earnest money ?OPP 2. Whether plaintiff has been ready and willing to perform his part of contract ?OPP 3. Whether plaintiff is entitled to specific performance for agreement to sell dated 13.11.2000 ?OPP 4. Whether plaintiff in alternative is entitled to recovery of Rs.1,91,000/- along with interest ? If so at what rate ? OPP 5. Whether plaintiff is entitled for injunction as prayed for ? OPP 6. Whether plaintiff has no cause of action and locus standi to file the present suit ?OPD. 7. Whether suit has been properly valued for the purpose of court fee ?OPP 8. Relief. 7. The parties have led their respective evidence on the aforesaid issues. The learned trial Court after appraisal of the evidence returned finding on issue Nos 1 to 5 in favour of the plaintiff and consequently, decreed the suit of the plaintiff for specific performance of the agreement dated 13.11.2000 on payment of balance consideration of Rs.49,000/- vide judgment and decree dated 25.1.2005. 8. Feeling dissatisfied with the aforesaid judgment and decree dated 25.1.2005, the defendant preferred the first appeal before the First Appellate Court. 9. The first appeal preferred by the defendant was heard by Shri P.S.Virk, learned Additional District Judge, Fatehgarh Sahib and after re- appraisal of the evidence dismissed the appeal vide judgment and decree RSA No.2327 of 2009 4 dated 28.3.2008. 10. Still feeling dissatisfied with the judgment and decree dated 25.1.2005 and judgment and decree dated 28.3.2008, as detailed above, the present regular second appeal has been preferred. 11. The appellant in paragraph No.11 of the grounds of appeal has mentioned that following substantial questions of law have arisen in the present appeal for adjudication :- i) Whether the findings recorded by the Courts below are by considering irrelevant facts and by non-consideration of relevant facts ? ii) Whether the core issue in regard to the agreement of sale Ex.P-1 being signed by the appellant has not been adjudicated upon ? Iii) Whether in the absence of examination of attesting witnesses of the agreement to sale Ex.P-1, it can be treated as proved only on the statement of the scribe ? iv) Whether the plaintiff/respondent has failed to discharge the onus of proving issue No.1, the burden of which was on her. The respondent has failed to produce any expert to prove the signatures of the appellant ? v) Whether in the face of tremendous rise in the prices of land, the respondent is not entitled to specific performance ? 12. Learned counsel for the appellant has submitted that both the Courts below have not properly appreciated the facts of the case. The claim of the plaintiff is based upon the agreement Ex.P.1. To prove the execution of the said agreement besides plaintiff only scribe has been examined. No marginal witness of the agreement in question has been examined. So, both the Courts below have misread and misinterpreted the evidence on the file regarding execution of the agreement and passing of sale consideration. RSA No.2327 of 2009 5 13. The sole issue involved in the present lis is whether the agreement Ex.P-1 is proved in accordance with law and that defendant has received the sale consideration. There is concurrent finding of fact recorded by both the Courts below that plaintiff has been able to prove the execution of the agreement Ex.P-1 and passing of sale consideration. That being a finding of fact cannot be interferred in the regular second appeal. There is no other reason brought on record that why the relief of specific performance should not be granted to the plaintiff. Both the attesting witnesses had died and on that account they could not be examined. PW-1 Manpreet Singh Shahi and plaintiff Manjinder Kaur have proved the factum of execution of agreement and passing of the sale consideration. The self- serving statement of the defendant is not sufficient to disprove the agreement to sell dated 13.11.2000. Major part of the sale consideration under the agreement Ex.P-1 has already been paid. The plaintiff has also been able to prove that she remained ready and willing to perform her part of the contract. She appeared before the Sub Registrar on 13.8.2001, the next day for execution of sale deed in compliance to the agreement dated 13.11.2000 as 12.8.2001 was admittedly the Sunday. 14. So, I have no hesitation in holding that no substantial question of law has been arisen in the present appeal. The substantial questions raised above that both the courts below misread and misinterpreted the evidence on the file are not made out in the present case. 15. So, in view of the above discussion, the appeal is without any merit and the same stands dismissed. RSA No.2327 of 2009 6 16. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 20, 2011 sv