R. S. A. No. 4754 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4754 of 2010 Date of Decision : February 17, 2011 Bimla Devi .... Appellant Vs. Jarnail Singh and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Naresh Jain, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant no.2 Bimla Devi having lost in both the courts below has filed the instant second appeal. Respondent no.1-plaintiff Jarnail Singh filed suit against Harbans Singh – defendant no.1/respondent no.2 and Bimla Devi – appellant/defendant no.2 alleging that defendant no.1, being owner in possession of the suit land measuring 02 kanals 02 marlas (42/158th share of 07 kanals 18 marlas land), agreed to sell the same to the plaintiff @ Rs.3,00,000/- per acre i.e. for total consideration of Rs.78,750/- and R. S. A. No. 4754 of 2010 2 received Rs.30,000/- as earnest money and sale deed was to be executed up to 25.11.2005. Defendant no.1 executed agreement to sell dated 27.06.2005 to this effect. However, prior to the stipulated date of sale deed, defendant no.1 executed sale deed dated 08.11.2005 of the suit land in favour of defendant no.2. The said sale deed is paper transaction. Defendant no.2 had knowledge of the impugned agreement dated 27.06.2005 in favour of the plaintiff. The plaintiff has always been ready and willing to perform his part of the contract but defendant no.1 committed breach thereof. Accordingly, the plaintiff sought decree for possession of the suit land by specific performance of the agreement and also challenged sale deed dated 08.11.2005 executed by defendant no.1 in favour of defendant no.2. Only defendant no.1 Harbans Singh contested the suit. While admitting the impugned agreement, defendant no.1 pleaded that earnest money was returned by him to the plaintiff and the agreement was cancelled. It was pleaded that plaintiff's wife Darshan Kaur and defendant no.1 jointly sold 07 kanals 18 marlas land (including the suit land) to defendant no.2 vide sale deed dated 08.11.2005 in the presence of plaintiff. At the same time, the plaintiff received back the earnest money of Rs.30,000/- from defendant no.1. Various other pleas were also raised. No written statement was filed on behalf of defendant no.2. Plaintiff in his replication pleaded that he is having strained R. S. A. No. 4754 of 2010 3 relations with his wife. It was also alleged that defendant no.1 is close relative of plaintiff's wife. Both of them colluded and executed sale deed dated 08.11.2005 in favour of defendant no. 2. The plaintiff denied that the said sale deed was executed in his presence or that he received back the earnest money of Rs.30,000/- at that time. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Balachaur, vide judgment and decree dated 07.12.2006, decreed the plaintiff's suit. First appeal preferred by defendant no.2 Bimla Devi stands dismissed by learned District Judge, Shaheed Bhagat Singh Nagar, vide judgment and decree dated 27.05.2010. Feeling aggrieved, defendant no.2 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Impugned agreement dated 27.06.2005 executed by defendant no.1 in favour of plaintiff stands admitted. Consequently, onus was on the defendants to prove that earnest money was returned by defendant no.1 to the plaintiff and the said agreement was cancelled. However, there is no cogent evidence to prove the said version of defendant no.1. On the contrary, if the plaintiff had been present at the time of execution of sale deed dated 08.11.2005 by defendant no.1 along with plaintiff's wife, R. S. A. No. 4754 of 2010 4 plaintiff's signatures would have been obtained on the said sale deed and factum of return of earnest money to the plaintiff and cancellation of impugned agreement in his favour would also have been recited in the sale deed. However, it was not so done. There is also no other document to depict refund of earnest money to plaintiff or cancellation of the impugned agreement in his favour. When there was written agreement executed by defendant no.1 in favour of the plaintiff, it is completely beyond comprehension that defendant no.1 returned the earnest money without any writing to this effect. Even the original agreement was not taken back by defendant no.1 from the plaintiff nor the said agreement was cancelled by making any writing or endorsement thereon. In addition to the aforesaid, defendant no.2-appellant did not even file any written statement to deny the plaint averments or to contest the suit. Defendant no.2 also did not step into the witness-box. Consequently, adverse presumption arises against defendant no.2-appellant. There is concurrent finding recorded by both the courts below in favour of the plaintiff. The said finding is based on proper appreciation of evidence and is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not depicted to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in second R. S. A. No. 4754 of 2010 5 appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely meritless and is accordingly dismissed in limine. February 17, 2011 ( L. N. MITTAL ) monika JUDGE