RSA No.819 of 2010 (O&M) -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.819 of 2010 (O&M) Date of decision: August 26, 2011. Kishan Ram ... Appellant(s) v. Madho Ram ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Sanjay Gupta, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. Present regular second appeal has been filed by the defendant to the suit. The appellant is aggrieved against the judgment dated 8.9.2007 rendered by the Court of Additional Civil Judge (Senior Division), Nawanshahar whereby suit of the plaintiff for specific performance of the agreement to sell dated 8.11.1997 was decreed with a direction that the appellant-defendant on receipt of balance sale consideration shall execute the sale deed within a period of two months from the date of passing of the decree, failing which the plaintiff shall be entitled to get the sale deed executed through the court on deposit of balance sale consideration in the court within one month from the date the period of two months granted by the court expired. The appeal was filed by the present appellant-defendant against the judgment of the trial which was also dismissed by the court of Additional District Judge, Nawanshahar on 26.7.2008. Hence, the present RSA No.819 of 2010 (O&M) -: 2 :- regular second appeal. Briefly stated, responden- plaintiff filed a suit for specific performance of the agreement to sell dated 8.11.1997 in respect of plot measuring 4 marlas described in the head note of the plaint. It was stated that defendant had projected himself to be owner of the suit property measuring 4 marlas, detail and description of which was given in the head note of the plaint; on 8.11.1997, appellant defendant having agreed to sell, had executed an agreement to sell for a consideration of Rs.1.50 lacs; he had received Rs.1.10 lacs as earnest money; the parties had mutually agreed that sale deed was to be executed on 30.4.1998; the agreement stated that on the failure of the defendant to execute the sale deed, the plaintiff shall be entitled to get the sale deed executed through the court. Plaintiff pleaded that he was always ready and willing to perform his part of the contract but it was the defendant who has failed to do so, hence the suit was filed. It was specifically pleaded by the respondent-plaintiff that he got his presence marked in the office of Sub Registrar on 29.4.1998 and 4.5.1998. Upon issuance of the notice, defendant caused appearance and filed written statement and raised many preliminary objections, regarding maintainability of the suit, locus standi of the plaintiff and regarding cause of action. Execution of the agreement to sell in favour of the plaintiff was denied. Even receipt of earnest money was also denied. Plaintiff filed replication in which he reiterated the contents of the plaint and denied those of the written statement. The trial court formulated following issues:- 1. Whether the defendant executed an agreement dated 8.11.97 in favour of plaintiff? OPP 2. Whether the defendant is owner of the site in dispute? OPD RSA No.819 of 2010 (O&M) -: 3 :- 3. Whether the plaintiff is ready and willing to perform his part of contract dt. 8.11.97? OPP 4. Whether the plaintiff is entitled to the specific performance on agreement dt. 8.11.97? OPP 5. Whether the plaintiff is entitled to recovery of Rs.2,20,000/- in alternative as prayed for? OPD 6. Whether the plaintiff has no locus-standi to file the present suit? OPD 7. Whether the suit is not maintainable in the present form? OPD 8. Relief. Plaintiff himself appeared as PW1 and examined Mohinder Singh, marginal witness and Hari Kishan deed writer, whereas defendant examined Sham Lal DW1 and himself appeared as DW2. The trial court decided issues No.1, 3, 4 and 5 together. The trial court took into consideration admission made by Sham Lal, son of the appellant, who appeared as DW1, qua execution of the agreement Ex.P1. The court held as under:- “6. ... In fact, the very opening line of chief examination of defendant Kishan Ram reveals that he had executed the agreement dated 8.11.97 in favour of plaintiff in respect of residential house situated at village Chahal Kalan. The son of defendant namely Sham Lal who appeared as DW1 also admits the execution of agreement Ex.P1 by his father in favour of plaintiff. It is thus clear that defendant executed an agreement to sell dated 8.11.97 in favour of plaintiff in his sound RSA No.819 of 2010 (O&M) -: 4 :- disposing mind. ...” The court further held that the appellant-defendant has not taken any plea that the said agreement was a result of fraud and misrepresentation. The court further held that defendant has failed to substantiate his plea that the property belonged to his father. The court further held that the plaintiff has proved that he was always ready and willing to perform his part of the agreement. To return this finding, the court relied upon affidavits Ex.P4 and P5. Issue No.2 was also decided in favour of the plaintiff to the extent that the defendant was owner of the property as he had failed to prove that the suit property vested in his father. The court further held that issues No.6 and 7 were not pressed, hence, the decree for specific performance was granted. The lower appellate court has held that the Counsel for the defendant during the course of arguments could not wriggle out of admissions made by defendant, and his son Sham Lal DW1 had raised a plea that agreement dated 8.11.1997 Ex.P1 was never sought to be acted upon and has been only executed on a simple assurance for repayment of some amount. The court rejected this argument being beyond the pleadings and upheld the findings given by the trial court. Shri Sanjay Gupta, Counsel appearing for the appellant- defendant, has stated that a specific plea was raised before the lower appellate court that the father of the defendant was owner of the suit property and he being alive, defendant could not execute the agreement to sell Ex.P1. Counsel states that this argument has not been dealt with by the lower appellate court as a specific plea was raised in the grounds of appeal RSA No.819 of 2010 (O&M) -: 5 :- that defendant was not owner of the property and the same vested in his father. This contention of the Counsel cannot be accepted as the lower appellate court having dealt with each and every argument raised, has stated in categoric terms, including para 14, that no other argument has been raised or submitted before that Court. This Court has to assume regarding the ownership of the property, no argument was raised before the lower appellate court even though this argument was a part of the grounds of appeal. However, the Counsel for the appellant has also failed to dislodge the finding given by the trial court that no evidence was brought on the record that father of the defendant-appellant was owner of the suit property. Even otherwise, self- serving statement made by the defendant as DW2 and his son Sham Lal as DW1, has no value as no revenue record or document was placed before the court to infer that the suit property was in the name of the father of the defendant. Hence, no ground is made out to set aside the well reasoned concurrent findings of fact given by both the courts below. Thus, this Court is constrained to dismiss the present appeal, being devoid of merit, and especially for the reason that during the course of arguments, Counsel could not formulate any question of law, much less a substantial one, which could engage attention of this court. The present appeal is accordingly dismissed. [Kanwaljit Singh Ahluwalia] August 26 , 2011. Judge kadyan