R.S.A. No.2765 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2765 of 2011(O&M) Date of Decision:21.07.2011 Basso Ram ......Appellant Versus Jagdish Chand .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Rajinder Goyal, Advocate, for the appellant. **** M EHINDER S INGH S ULLAR , J.(oral) Concisely, the facts, which require to be noticed for the limited purpose of deciding the sole controversy, involved in the instant appeal and emanating from the record are, that Basso Ram son of Babu Ram-appellant- plaintiff(hereinafter to be referred as “the plaintiff”) filed the suit against Jagdish Chand son of Sardara-respondent-defendant(for brevity “the defendant”) for a decree of possession by way of specific performance and also in the alternative relief for recovery of `65,000/- with interest. 2. The case set up by the plaintiff, in brief, insofar as relevant was, that the defendant agreed to sell his disputed land to him(plaintiff) by virtue of agreement dated 15.06.1998 @ `80,000/- per acre. He had received `65,000/-, as earnest money in this respect. The date of execution of the sale-deed was fixed for 15.07.1999. According to the plaintiff, he remained present with the balance amount and other expenses in the office of Sub Registrar, Pehowa, but the defendant did not turn up to perform his part of the contract. 3. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiff claimed that he always remained and is ready to perform R.S.A. No.2765 of 2011(O&M) 2 his part of the contract, but the defendant has failed to honour his performance. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of possession by way of specific performance of the agreement to sell against the defendant, in the manner depicted hereinabove. 4. The defendant contested the suit and filed the written statement, inter alia, pleading certain preliminary objections of, maintainability of the suit, cause of action, concealment of facts and locus standi of the plaintiff. According to the defendant that, the plaintiff and his family members are running a commission agency under the name and style of M/s Babu Ram Basso Ram at Anaj Mandi, Cheeka, and he(defendant) used to sell his foodgrains on his shop. He used to take advance money from the commission agency and the amount used to be adjusted in the sale price of the crops. According to the defendant that in the year 1998, he took money in advance for raising his crops and to secure the repayment of amount, the plaintiff obtained his thumb impression on his Bahis, blank stamp papers and registers, as usual. The defendant, thereafter, cleared his account with the plaintiff, after selling his paddy crops, but when he demanded the blank stamp papers, then he(plaintiff) told that the same had been lost. It was explained by the defendant that neither he executed any agreement to sell, nor received any earnest money of `65,000/-, as alleged. The agreement, if any, is forged, fabricated and result of fraud. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the essential issues, depicted in its judgment, for proper adjudication and the case was slated for evidence of the plaintiff. 6. The parties to the lis, in order to substantiate their respective pleaded R.S.A. No.2765 of 2011(O&M) 3 stands, brought on record oral as well as the documentary evidence in this context. 7. The trial Court, after taking into consideration the entire oral as well as the documentary evidence brought on record by the parties, dismissed the suit of the plaintiff by way of impugned judgment and decree dated 06.12.2008. 8. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was dismissed as well by the first Appellate Court, by virtue of impugned judgment and decree dated 10.01.2011. 9. The appellant-plaintiff still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 10. Having heard the learned counsel for the appellant-plaintiff, having gone through the record with his valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant appeal in this respect. 11. Ex facie, the argument of the learned counsel that since, it is proved on record that the defendant has executed agreement to sell dated 15.06.1998 in favour of the plaintiff, so the Courts below ought to have decreed his suit for specific performance, is not only devoid of merit but misconceived as well. 12. As is evident from the record that, the trial Court, after scanning the evidence in the right perspective, inter alia, recorded a finding of fact that the plaintiff has failed to prove that the agreement to sell(Ex.P1) is a genuine and valid document, which was executed on 15.06.1998 and the target date for execution of the sale-deed was fixed after one year i.e., 15.07.1999. The plaintiff, who claimed to be willing and ready to perform his part of the contract, did not make any effort to get the sale-deed executed or registered. So much so, no notice was sent to the defendant by him during the period of three years. He approached the Court on the last date of period of limitation, for a suit of specific performance, after three years. Thus, the trial Court has rightly dismissed the suit of the plaintiff in this R.S.A. No.2765 of 2011(O&M) 4 relevant connection. Not only that, the decision of the trial Court was affirmed by the first Appellate Court as well. 13. The next contention of the learned counsel that at least the plaintiff is entitled to refund of earnest money, again lacks merit. The first Appellate Court has recorded the valid grounds in this regard in the impugned judgment and decree dated 10.01.2011, the operative part of which is, as follows:- “The learned counsel for the appellant also argued that at least the earnest money paid by him be ordered to be refunded in favour of the appellant but this is settled proposition of law that where a person approaches the court with twisted facts he will not be entitled to the refund of earnest money also, more so when in the present case the appellant never remained ready and willing to perform his part of the contract. The genesis has been kept concealed from the court and a different version has been shown to the court and the appellant is certainly guilty of concealment of material facts from the court. As a sequel to my above said discussion and without discussing the ocular evidence which has been discussed by the learned trial Court, the findings recorded by the learned trial Court are modified in view of the observations made above, but the suit filed by the appellant must fail and has rightly been dismissed by the learned trial Court. This appeal being devoid of merits is ordered to be dismissed with costs.” 14. Meaning thereby, having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have rightly dismissed the suit of the plaintiff and recorded the valid grounds in the impugned judgments and decrees. Such judgments, containing the valid reasons, cannot possibly be interfered with by this Court, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well-articulated decision arrived at by the Courts below, in this relevant context. 15. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff, to assail the findings of the Courts below. All the remaining contentions, relatable to the appreciation of evidence, now sought to R.S.A. No.2765 of 2011(O&M) 5 be urged on his behalf, have already been duly considered and dealt with by the Courts below, in this relevant behalf. 16. Moreover, the entire matrix revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since, no question of law, much less substantial, is involved in this regular second appeal, in view of the law laid down by the Hon'ble Apex Court in case Kashmir Singh Versus Harnam Singh and another, 2008(2) R.C.R.(Civil) 688: 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments and decrees of the Courts below, as contemplated under Section 100 CPC, in the obtaining circumstances of the case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 18. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. July 21, 2011 (MEHINDER SINGH SULLAR) seema JUDGE