RSA No.2814 of 2011 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2814 of 2011 Date of decision: July 14, 2011. Balbir Singh ... Appellant(s) v. Kamaljit Singh ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Narinder Singh Swaitch, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. Balbir Singh, present appellant, owned a plot in village Ramgarh Tehsil and District Ludhiana, detail and description of which has been given in the head note of two plaints, one instituted by Kamaljit Singh and the other by present appellant Balbir Singh. In both these suits so filed, controversy revolved around agreement to sell dated 26.9.2000 executed by Balbir Singh in favour of Kamaljit Singh, for sale of the plot. Kamaljit Singh instituted the suit for possession by way of specific performance of the agreement to sell dated 26.9.2000. This suit was assigned Civil Suit No.55 dated 17.3.2001 whereas Balbir Singh, executant of the above said agreement, instituted a suit for declaration to the effect that the alleged agreement dated 26.9.2000 relating to alleged sale of the house is null and void, capricious, nonest and not binding upon Balbir, being an act of fraud and misrepresentation. Both the suits were disposed of by a common RSA No.2814 of 2011 -: 2 :- judgment dated 4.12.2008 rendered by Civil Judge (Senior Division), Ludhiana. In the suit filed by Kamaljit Singh, it was stated that he was in Army service and was a resident of village Ramgarh. Balbir Singh, who was a co-villager, approached him for sale of plot in question. The price of the demised plot for sale was fixed at Rs.42,500/-. It was pleaded that the entire amount of sale consideration was paid to Balbir Singh and the possession of the property was also handed over to Kamaljit Singh. Thereafter, an agreement to this effect was reduced into writing on 26.9.2000. Inspite of requests made by Kamaljit Singh to Balbir Singh to execute sale deed, the matter has been postponed by Balbir Singh on one pretext or the other. It was averred that the intention of Balbir Singh has become dishonest and thereafter he made an attempt to dispossess Kamaljit Singh from the property for which agreement to sell was arrived and possession was delivered. Furthermore, he had filed a suit challenging the agreement to sell dated 26.9.2000. Upon notice, defendant Balbir Singh caused appearance and assailed the agreement to sell. It was stated that the agreement to sell does not contain khasra number of the plot whereas in fact it fell in khasra No.497. Since two parallel suits were pending, relief of injunction be decided in the first suit, and it was prayed that the suit be rejected as the same is based on agreement to sell which is a forged and fabricated document. Execution of the agreement to sell was denied. It was stated that there was no legal necessity to sell; no consideration has been received by Balbir Singh. Furthermore, sister of Balbir Singh was also co-sharer in the suit property, therefore, he was not competent to convey the sale deed. RSA No.2814 of 2011 -: 3 :- In the suit filed by Kamaljit Singh, following issues were drawn:- 1. Whether plaintiff is entitled to the decree of possession by way of specific performance of agreement dated 26.9.2000? OPP 2. Whether plaintiff is entitled to permanent injunction as prayed for? OPP 3. Whether defendant has executed an agreement to sell dated 26.9.2000 in favour of plaintiff? OPP 4. Whether defendant has received total sale consideration of Rs.42500? OPP 5. Whether plaintiff was always ready and willing to perform his part of contract?OPP 6. Whether the present suit is not maintainable? OPD 7. Whether the present suit is barred under Order 2 Rule 2 CPC? OPD 8. Whether plaintiff has no cause of action to file the present suit? OPD 9. Whether suit is bad for non joinder of necessary parties? OPD 10. Whether the instant suit is liable to be stayed under Section 10 CPC? OPD 11. Relief? In the suit filed by Balbir Singh, it was pleaded that Balbir Singh is absolute owner in actual peaceful physical possession of the demised property. On 15.1.2001, Kamaljit Singh along with 2-3 persons RSA No.2814 of 2011 -: 4 :- had made an attempt to dispossess forcibly Balbir Singh, rightful owner of the property. When Balbir Singh confronted Kamaljit Singh and his companions as to why they were dispossessing him, he proclaimed that he has in his favour an agreement to sell dated 26.9.2000 for sale of the demised property which depict payment of alleged sale consideration of Rs.42,500/-. A prayer was made that the agreement to sell be set aside on the ground that it was never executed as there was no legal necessity to do so. Kamaljit Singh appeared in the suit filed by Balbir Singh and filed a written statement in which he reiterated as to what was stated in his plaint. In the suit filed by Balbir Singh, following issues were drawn:- 1. Whether plaintiff Balbir Singh is entitled to the injunction, as prayed for? OPP 2. Whether plaintiff Balbir Singh is in possession of the property in dispute? OPP 3. Whether defendant is interfering in possession of the property in dispute? OPP 4. Whether plaintiff has concealed material facts from the court? OPD 5. Whether plaintiff has filed a false and frivolous suit? OPD 6. Whether plaintiff has no cause of action to file the instant suit? OPD 7. Whether plaintiff has no locus standi to file the instant suit? OPD 8. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD 9. Relief? RSA No.2814 of 2011 -: 5 :- On the statement made by Counsel for the parties, both the suits were consolidated and the evidence was led in suit titled as “ Kamaljit Singh v. Balbir Singh”. Kamaljit Singh examined Amrik Singh and Gur Iqbal Singh, attesting witnesses to the agreement to sell and Ashok Kumar deed writer, who proved agreement Ex.P1 along with the copy of entry in his register as Ex.P2. Kamaljit Singh himself appeared as PW4. To controvert the evidence led by Kamaljit Singh, Balbir Singh himself appeared as DW1 and also examined Amar Singh DW2 and Jagdev Singh, Patwari, as DW3. Issues No.1 to 5 in the suit filed by Kamaljit Singh were decided together. The trial court held that PW1 Amrik Singh, PW2 Gur Iqbal Singh, two marginal witnesses to the agreement to sell Ex.P1, have fully proved the case of Kamaljit Singh plaintiff. These witnesses have deposed regarding the delivery of possession, receipt of consideration amount and execution of the agreement to sell. The Court also took into consideration the fact that it is admitted by Balbir Singh that he was under intoxication when his signatures were obtained and he was not in his full senses. The plea raised by Balbir Singh that his signatures were obtained on blank papers was discard. The court held that Kamaljit Singh has proved issues No.1 to 5 and they were decided in his favour. The court further held that in the suit filed by Kamaljit Singh, onus to prove issue No.6 was upon the defendant and he failed to do so, therefore, this issue was decided against him. So far as suit filed by Balbir Singh was concerned, the court held that he has failed to prove issues No.1 to 3 and they were decided in favour of Kamaljit Singh. Issue Nos.4 to 8 were decided in favour of Kamaljit Singh, defendant to the suit filed by Balbir Singh. Thus, suit filed by Kamaljit Singh was decreed RSA No.2814 of 2011 -: 6 :- with costs and Balbir Singh, present appellant was directed to get the sale deed executed in favour of Kamaljit Singh within three months from the date of the judgment. Aggrieved against the same, Balbir Singh filed an appeal. The lower appellate court has upheld the findings returned by the trial court. In nutshell, Kamaljit Singh in whose favour agreement to sell was executed, examined two marginal witnesses, namely Amrik Singh and Gur Iqbal Singh PW2 along with Ashok Kumar, deed writer. Balbir Singh, present appellant, has not denied his signatures on the agreement to sell. He has raised a plea that he was under intoxication and his signatures were obtained on blank papers, thus, the agreement to sell is not binding and is liable to be discarded being result of fraud. There is concurrent finding of fact returned by both the courts below regarding execution of the agreement to sell Ex.P1. The witnesses examined by Kamaljit Singh, who had attested the agreement to sell, have been held to be trustworthy. Shri Narinder Singh Swaitch, Counsel appearing for Balbir Singh appellant, has stated that Amrik Singh PW1 and Gur Iqbal Singh PW2, who had attested the agreement to sell, are procured witnesses. They were interested, being supporters of Kamaljit Singh and a grave error has been committed by the courts below by placing implicit reliance upon their evidence. He has reiterated before me that the present appellant was under the influence of liquor, therefore, the agreement was not executed in full senses and this court should rule the agreement to sell out of consideration. This Court in regular second appeal is hesitant to reverse the concurrent findings of fact which are based on appreciation of evidence. No RSA No.2814 of 2011 -: 7 :- point of law, which can be termed substantial, has been raised by Counsel for the appellant. Thus, there is no need to re-evaluate the evidence which has been accepted by both the courts below. Hence, there is no merit in the present appeal which is hereby dismissed in limine. [Kanwaljit Singh Ahluwalia] July 14, 2011. Judge kadyan