IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1169 of 2008 (O&M) Date of decision: 18.5.2010 Amar Kaur and others ......Appellant(s) Versus Gurdial Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. M.S. Rai, Advocate and Mr. Sanjeev Gupta, Advocate for the appellants. Mr. H.N.S Gill, Advocate for the respondent. Rakesh Kumar Garg, J. This is defendant's second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the plaintiff-respondent against the judgment and decree of the trial Court was accepted and his suit for possession by way of specific performance of the agreement in question, was decreed. It may be apt to mention here that during the pendency of this appeal, defendant-appellant Sarwan Singh died and in his place, his LRs namely appellants No.1 to 7 have been brought on record as such. As per the averments made in the plaint, the defendant- appellant entered into an agreement on 10.5.1996 with the plaintiff- respondent for selling the suit land and received a sum of Rs.1,80,000/- as earnest money. The last date for executing the sale deed i.e. 20.5.1996 was extended till 3.6.1996 with the mutual consent of both the parties. The suit land was under mortgage with Smt. Daropti wife of Deep Chand for Rs.70,000/-. This amount was agreed to be kept by the plaintiff- respondent, to be paid to Smt. Daropti while the remaining amount was to be paid to the defendant-appellant at the time of execution of the sale deed. The possession of the land which was not under mortgage, was RSA No.1169 of 2008 (O&M) -2- delivered to the plaintiff-respondent and he was in possession thereof. It is the case of plaintiff-respondent that on 3.6.1996, the plaintiff-respondent came to the Tehsil premises with the balance amount and expenses, however, the appellant did not turn up. It is the further case of the plaintiff- respondent that it came to his notice that the suit land stood attached for an amount of Rs.9200/- as loan obtained by the appellant from the Ladaili Co-operative Agriculture Service Society, was to be paid before executing the sale deed. Thus, the plaintiff-respondent was also entitled to retain the same for payment to the Society. Since the appellant failed to perform his part of the agreement, the present suit was filed. In the written statement, the appellant denied the execution of agreement in question and receipt of Rs.1,80,000/- as earnest money. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to possession of specific performance of the agreement dated 10.5.96 as described in the head note of the plaint ?. OPP. 2. Whether the plaintiff is entitled to permanent injunction restraining the defendant from alienating the suit land ?. OPD. 3. Whether the plaintiff is ready and willing to perform his part of contract ?. OPD. 4. Whether the suit is not maintainable ?. OPD. 5. Relief. After hearing learned counsel for the parties and perusing the record, the trial Court recorded findings on issue No.1 against the plaintiff- respondent and as a consequence thereof, issues No.2 and 3 were also decided against him and the suit was ordered to be dismissed. RSA No.1169 of 2008 (O&M) -3- However, on an appeal, the Lower Appellate Court reversed the findings of the trial Court and accepted the appeal decreeing the suit of the plaintiff-respondent for possession by way of specific performance of the agreement in question. Not satisfied with the judgment and decree of the Lower Appellate Court, the defendant has approached this Court by way of present appeal. In support of his case, learned counsel for the appellants has vehemently argued that the Lower Appellate Court has not appreciated the evidence on record and has accepted the appeal without applying its judicial mind. According to the learned counsel for the appellants, once the appellant denied his thumb impressions on the agreement to sell in question, the same could not have been held to be proved in absence of evidence of the expert. According to him, in the present case, since the plaintiff-respondent has failed to prove the thumb impressions of the appellant on the agreement to sell in question by getting the same compared from an Expert. Learned counsel for the appellant further argued that in the present case, the Lower Appellate Court has also failed to appreciate the provisions of Section 20 of the Specific Relief Act, thus, the judgment and decree of the Lower Appellate Court cannot be sustained and the same is liable to be set aside. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial question of law arises in this appeal: “(i) Whether the agreement to sell in question is a forged document or not?” On the other hand, learned counsel appearing on behalf of the respondent has supported the impugned judgment and decree and has submitted that the Lower Appellate Court on appreciation of evidence has come to the conclusion that the agreement to sell in question was executed RSA No.1169 of 2008 (O&M) -4- by the appellant and, thus, in these circumstances, no fault can be found with the impugned judgment and decree and thus, there is no merit in this appeal. I have heard learned counsel for the appellant and perused the impugned judgment and decree. From the perusal of the pleadings as well as oral and documentary evidence led on record, it becomes apparent that the only dispute in this case is with regard to the execution of the agreement to sell dated 10.5.1996 which was thumb-marked by the appellant. The defendant-appellant has denied the execution of the agreement to sell in question and has also denied that he ever thumb marked the aforesaid document. On the other hand, the Lower Appellate Court on the basis of evidence produced by the plaintiff-respondent, has recorded a finding of fact that the appellant executed the agreement to sell in question. The appellant himself was the best witness who could deny his thumb impression on the document in question. However, the appellant has not dared to step into the witness box to deny the same. Not only this, in spite of taking a defence of total denial, the appellant has failed to lead any evidence so as to prove that the questioned thumb impression on the agreement did not belong to him, by examining an Expert. In this view of the matter, in absence of any evidence brought on record by the appellant to prove his case that he did not thumb mark the agreement to sell in question, no fault can be found with the findings of the Lower Appellate Court recorded in favour of the plaintiff-respondent on the basis of evidence led by him in support of his case. The learned counsel for the appellant further argued that the case in hand was not such where the Court should have granted the relief of specific performance of the contract by execution of the sale-deed, however, suffice it to say that neither any such defence was pleaded nor RSA No.1169 of 2008 (O&M) -5- any such argument was raised by the appellant before the Lower Appellate Court. Even in the grounds of appeal before this Court, no such ground has been raised. In this view of the matter, I find no merit in this appeal. No substantial question of law arises in this appeal. No other point was urged. Dismissed. May 18, 2010 (RAKESH KUMAR GARG) ps JUDGE