R. S. A. No. 1742 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1742 of 2011 (O&M) Date of Decision : May 18, 2011 Darshan Singh and another .... Appellants Vs. Sandeep Vaid and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ashok Singla, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 4856-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 08 days in re-filing the appeal is condoned. Main Appeal : Defendants no.1 and 2, having lost in both the courts below, are in second appeal. Respondent no.1-plaintiff Sandeep Vaid filed suit against appellants as defendants no.1 and 2 and against respondents no.2 and 3 as R. S. A. No. 1742 of 2011 (O&M) 2 defendants no.3 and 4. The plaintiff alleged that Bhag Singh – father and predecessor of defendants no.1 and 2 along with defendants no.3 and 4 agreed to sell the suit property measuring 540 sq. yds. comprising plots nos.51 to 53 to the plaintiff @ Rs.300/- per sq. yd. and executed agreement dated 01.08.1994 and received Rs.62,000/- as earnest money. The plaintiff also paid Rs.5,000/- each by three cheques dated 15.08.1994, 15.02.1995 and 20.02.1995 in favour of defendant no.4 and paid Rs.20,000/- on 20.07.1995 to defendant no.4. Plaintiff paid further amount by cheque to defendant no.3, but he did not encash the same. Plaintiff also tried to contact defendants no.3 and 4 to pay the balance sale price, but in vain. They could not be contacted. Plaintiff deposited Rs.10,000/- in bank account of defendant no.3. Thereafter, defendants no.3 and 4 changed their account numbers. Plaintiff made all attempts to pay the balance sale consideration to defendants no.3 and 4. He also sent notices to all the defendants, but they did not execute the requisite sale deed. Accordingly, plaintiff filed suit for possession of the suit property by specific performance of the agreement. Defendants no.1 and 2 broadly denied the plaint averments. They denied that their father Bhag Singh executed the impugned agreement or received any amount from the plaintiff. It was pleaded that Bhag Singh had executed an agreement dated 06.04.1994 in favour of defendants no.3 and 4 for sale of five acres of land, but the said agreement was cancelled on R. S. A. No. 1742 of 2011 (O&M) 3 07.11.1994. Bhag Singh did not receive any amount from the plaintiff. Impugned agreement was pleaded to be result of fraud and misrepresentation. Defendants no.3 and 4 broadly admitted the plaint averments. However, they also pleaded that agreement dated 06.04.1994 executed in their favour by Bhag Singh was cancelled by Bhag Singh. It was also pleaded that amounts received by them from the plaintiff were paid to Bhag Singh. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ludhiana, vide judgment and decree dated 28.04.2004, decreed the plaintiff's suit. First appeal preferred by defendants no.1 and 2 stands dismissed by learned Additional District Judge, Ludhiana, vide judgment and decree dated 16.11.2010. Feeling aggrieved, defendants no.1 and 2 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiff led sufficient cogent evidence to prove execution of the impugned agreement by defendants no.3 and 4 along with Bhag Singh – predecessor of defendants no.1 and 2. J. S. Pandher, Advocate (PW-1) is attesting witness of the impugned agreement and he proved the said agreement. The plaintiff himself also appeared as PW-2 and broadly stated according to his version. Their statements almost stand unrebutted. On the R. S. A. No. 1742 of 2011 (O&M) 4 contrary, defendants no.3 and 4 admitted the impugned agreement. Impugned agreement was executed pursuant to earlier agreement dated 06.04.1994 executed by Bhag Singh in favour of defendants no.3 and 4 regarding five acres of land including the suit land. Subsequent cancellation of the said agreement on 07.11.1994 i.e. after impugned agreement dated 01.08.1994 will have no bearing on the rights of the plaintiff. Earnest money of Rs.62,000/- was paid to all the three vendors i.e. Bhag Singh and defendants no.3 and 4 at the time of execution of the agreement, as recited in the agreement itself. Further amount was paid to defendants no.3 and 4 as per terms and conditions of the agreement, as also admitted by defendants no.3 and 4. Plea of fraud and forgery set up by defendants no.1 and 2 has not been established. Witnesses examined by them were not present when the impugned agreement was executed or when earlier agreement dated 06.04.1994 was executed. Consequently, they could not depose that the said agreements had not been executed by Bhag Singh. On the contrary, there is positive evidence of the plaintiff that the impugned agreement was executed by Bhag Singh along with defendants no.3 and 4, whereas execution of agreement dated 06.04.1994 by Bhag Singh in favour of defendants no.3 and 4 stands admitted by all the defendants in their written statements. Learned counsel for the appellants very vehemently contended R. S. A. No. 1742 of 2011 (O&M) 5 that thumb impressions of Bhag Singh on the impugned agreement had been obtained by defendants no.3 and 4 while it was blank stamp paper after purchasing the stamp paper on 09.06.1994 itself. The contention has been noticed simply to be rejected because it is completely beyond pleadings and also remains unsubstantiated. There is neither any pleading nor any evidence in support of this contention, which is completely hypothetical and based on conjectures. Learned counsel for the appellants further contended that Bhag Singh did not receive any sale consideration. The contention is devoid of force because earnest money of Rs.62,000/- at the time of agreement was paid to Bhag Singh along with defendants no.3 and 4, whereas balance sale consideration as per agreement was payable to defendants no.3 and 4 and this term and condition was agreed to by Bhag Singh himself. Consequently, defendants no. 1 and 2/appellants, who are successors-in- interest of Bhag Singh, cannot plead that no sale consideration was received by Bhag Singh. Sale consideration was payable as per agreement, which was executed by Bhag Singh along with defendants no.3 and 4. Learned counsel for the appellants also contended that defendants no.3 and 4 carved out colony in five acres land, agreed to be purchased by them from Bhag Singh vide agreement dated 06.04.1994 and carving out of colony without license is an offence, and therefore, the impugned agreement is void in view of Section 23 of the Contract Act. The R. S. A. No. 1742 of 2011 (O&M) 6 contention is again meritless because the same is beyond pleadings and evidence. There is neither any such pleading nor evidence to substantiate the aforesaid contention. Defendants no.1 and 2 had to plead and prove that the alleged colony had been carved out without any license. In the absence of any pleading and evidence to this effect, the aforesaid contention cannot be accepted. Learned counsel for the appellants also contended that the suit is barred by limitation as the suit to enforce agreement dated 01.08.1994 was filed on 02.05.1998 i.e. after expiry of limitation period of three years. The contention is devoid of any substance. As per impugned agreement, balance sale consideration was to be paid by the plaintiff in twenty monthly instalments i.e. up to April 1996 and only thereafter, the plaintiff could get the sale deed executed in terms of the agreement. Consequently, before April 1996, the plaintiff did not have cause of action to seek specific performance of the impugned agreement. Limitation period commenced in April 1996, and therefore, the suit filed on 02.05.1998 is well within limitation. For the reasons aforesaid, I find no merit in the instant second appeal, which is completely meritless and frivolous. Concurrent finding recorded by both the courts below in favour of respondent no.1-plaintiff is fully justified by the evidence on record. The said finding is not shown to be illegal or perverse in any manner nor it is based on misreading or R. S. A. No. 1742 of 2011 (O&M) 7 misappreciation of evidence. Consequently, the said finding does not call for interference in exercise of second appellate jurisdiction. This appeal does not raise any question of law, much less substantial question of law, for determination. The appeal is found to be meritless and is accordingly dismissed in limine. May 18, 2011 ( L. N. MITTAL ) monika JUDGE