R. S. A. No. 180 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 180 of 2010 (O&M) Date of Decision : January 21, 2010 Gurcharan Singh .... Appellant Vs. Amrik Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. G. S. Nagra, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 616-C of 2010 and Main Appeal : Defendant Gurcharan Singh, having remained unsuccessful in both the courts below, has filed the instant second appeal. Plaintiff Amrik Singh filed suit against the defendant-appellant for possession of suit property i.e. a house in one kanal land, by specific performance of agreement to sell dated 21.11.1995. The plaintiff has pleaded that the defendant, as owner of the suit property, agreed to sell the same to the plaintiff for Rs.6,00,000/- and executed agreement to sell and received Rs.3,00,000/- as earnest money i.e. Rs.2,50,000/- by cheque and Rs.50,000/- in cash. Sale deed was to be executed up to 20.05.1996. However, the defendant was not ready to execute the sale deed till 20.05.1996 and the defendant accordingly extended the date of execution of R. S. A. No. 180 of 2010 (O&M) 2 sale deed on 20.05.1996 till 19.08.1996. Again, the defendant did not execute the sale deed up to 19.08.1996 and extended the date of execution of sale deed on 19.08.1996 till 19.11.1996 after receiving further amount of Rs.50,000/- as earnest money. Telegram was sent on 18.11.1996 to the defendant reminding him that sale deed was to be executed on 19.11.1996. However, the defendant did not turn up, although plaintiff's son and attorney Matwinder Singh remained present in Tehsil complex on 19.11.1996 with demand draft of Rs.2,50,000/- (balance sale price) in favour of the defendant along with expenses of sale deed. The defendant, while denying the plaint allegations, inter alia pleaded that the defendant had taken friendly loan of Rs.2,50,000/- from the plaintiff through cheque in November 1995 and as security, the defendant gave original sale deed of the suit property to the plaintiff, who also got the impugned agreement signed by the defendant assuring to return the same on repayment of the loan. The defendant repaid the loan, but the plaintiff turned dishonest and did not return the documents. The defendant ultimately filed suit against the plaintiff for permanent injunction to protect his possession and also for mandatory injunction for return of the sale deed and the agreement. Learned Additional Civil Judge (Senior Division), Phagwara, vide judgment and decree dated 17.05.2002, decreed the suit of the plaintiff. First appeal preferred by the defendant against the said judgment and decree has been dismissed by learned Additional District Judge, Kapurthala, vide judgment and decree dated 22.09.2009. Feeling aggrieved, the instant second appeal has been preferred by the appellant. I have heard learned counsel for the appellant and perused the case file. Before proceeding further, it may be noticed that along with appeal, the appellant has filed application bearing C. M. No. 616-C of 2010 for additional evidence to produce judgments and decrees of the trial court R. S. A. No. 180 of 2010 (O&M) 3 and First Appellate Court passed in another suit, which had been instituted by the appellant herein against the respondent and his son Matwinder Singh. Vide judgment and decree dated 29.03.2001, passed by the trial court in the said suit, injunction was granted in favour of Gurcharan Singh – appellant herein restraining respondent Amrik Singh and his son from interfering in the possession of the appellant herein over the suit property because the respondent and his son did not object to the same. Relief of mandatory injunction directing respondent Amrik Singh to return the sale deed of the suit property to the appellant herein was also granted, but prayer for return of agreement was declined. First appeal preferred against the said judgment and decree of the trial court by respondent Amrik Singh and his son has been dismissed by learned Additional District Judge, Kapurthala, vide judgment and decree dated 22.10.2003. Learned counsel for the appellant vehemently contended that the appellant had in fact taken friendly loan from the plaintiff-respondent and has since repaid the same. The contention cannot be accepted. There is concurrent finding of fact by both the courts below that the defendant had executed the aforesaid agreement and had received earnest money of Rs.3,00,000/- as specified therein and further amount of Rs.50,000/- while extending the date of sale deed on 19.08.1996. The said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal so as to warrant interference in second appeal. In the aforesaid context, it has to be noticed with significance that the defendant has admitted in the written statement itself that he had signed the impugned agreement to sell. From the written statement, it is also manifest that defendant signed the agreement as the agreement to sell and not as any other document. The defendant has also admitted having executed endorsements for extension of time of the sale deed on 20.05.1996 and 19.08.1996. Thus, the plaintiff's evidence is corroborated by admissions of the defendant himself. R. S. A. No. 180 of 2010 (O&M) 4 There is another significant circumstance against the appellant. In the written statement, the defendant-appellant pleaded that he had received friendly loan of Rs.2,50,000/- from the plaintiff-respondent and repaid the same and sale deed was given to the plaintiff as security for the said loan and agreement was also signed by the defendant for the same purpose. In the witness-box, however, the defendant stated that he had taken friendly loan of Rs.3,00,000/- from the plaintiff, whereas in the written statement, the loan was alleged to be of Rs.2,50,000/-. The plaintiff's case is that he had paid Rs.3,00,000/- to the defendant at the time of agreement i.e. Rs.2,50,000/- through cheque and Rs.50,000/- in cash. It appears that the defendant has pleaded in the written statement that he took the loan of Rs.2,50,000/- only because the said amount had been paid through cheque and the defendant could not wriggle out of the same. However, the truth came out in the witness-box when the defendant himself stated that he had taken Rs.3,00,000/- from the plaintiff. So, the defendant's own statement is contradictory to his version in the written statement. On the other hand, the defendant's testimony supports the plaintiff's case. Application for additional evidence moved by the appellant also has no merit inasmuch as the judgments of trial court and Appellate Court passed in the suit, which was instituted by the appellant herein, do not help the appellant in any manner because in those judgments, the version of the appellant was not accepted. So, reception of said judgments by additional evidence in the instant case would serve no purpose. For the reasons recorded herein above, I find no merit in the instant second appeal and application for additional evidence. Accordingly, the appeal as well as application for additional evidence are dismissed in limine. January 21, 2010 ( L. N. MITTAL ) monika JUDGE