R. S. A. No. 952 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 952 of 2008 Date of Decision : April 29, 2010 Amar Nath .... Appellant Vs. Jai Bhagwan and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. J. K. Goel, Advocate for the appellant. Ms. Divya Sharma, Advocate for respondents no.1 to 8. None for respondent no. 9. * * * L. N. MITTAL, J. (Oral) : By this common judgment, I am disposing of three appeals i.e. R. S. A. No. 952 of 2008, R. S. A. No.2446 of 2008 and R. S. A. No.3224 of 2008, all filed by Amar Nath, being interconnected. R. S. A. No. 952 of 2008 and R. S. A. No.3224 of 2008 have arisen out of same Civil Suit No. 79 of 2001, whereas R. S. A. No. 2446 of 2008 has arisen out of a separate suit No.13 of 2001/2005. Amar Nath appellant filed Suit No.13 of 2001/2005 against Jaimal Singh (since deceased and represented by respondents no.1 to 7) and Phul Singh (respondent no. 8) alleging that the agreement to sell dated R. S. A. No. 952 of 2008 2 22.09.1999 is null and void. Appellant alleged in the suit that he is owner in possession of land measuring 01 kanal 02 marlas (suit land) being 22/544 share of 27 kanals 04 marlas land. He had sold a part of his land vide sale deed dated 12.12.1994 to Jaimal Singh and Phul Singh (defendants in the said suit) and Hukam Chand and at that time, since they did not have full sale consideration, sons of Jaimal Singh borrowed Rs.20,000/- from the appellant and executed pronote and receipt, which was also signed by Jaimal Singh. In the year 1999, Jailmal Singh and his son Jai Bhagwan paid Rs.8,000/- to the appellant and obtained his thumb impressions on some papers, which were later on converted into agreement to sell, although the appellant never agreed to sell the suit land and the said agreement is result of fraud. On the other hand, Jaimal Singh and Phul Singh filed Civil Suit No. 79 of 2001 for specific performance of agreement dated 22.09.1999 alleging that Amar Nath appellant herein agreed to sell the suit land measuring 01 kanal 02 marlas to the aforesaid plaintiffs for Rs.31,625/- vide agreement to sell dated 22.09.1999 and received Rs.8,000/- as earnest money. Sale deed was to be executed on or before 21.08.2000. The aforesaid plaintiffs were always ready and willing to perform their part of the contract, but the defendant Amar Nath (appellant herein) committed breach of the agreement. During pendency of Civil Suit No.79 of 2001, Amar Nath sold the suit land to Ram Singh (respondent no.9 herein – impleaded as defendant no.2 to the suit later on) vide sale deed dated 28.08.2001, in spite of temporary injunction order against the appellant restraining him from alienating the suit land. Amar Nath – defendant no.1 in the said suit took the same stand that agreement is forged and fabricated, as pleaded by him in his own suit No.13 of 2001/2005. Defendant no.2 also broadly took the same stand. Learned Civil Judge (Senior Division), Karnal, disposed of R. S. A. No. 952 of 2008 3 both the suits vide separate judgments dated 19.02.2005. Suit filed by Amar Nath bearing No. 13 of 2001/2005 was dismissed, whereas Suit No. 79 of 2001 filed by Jaimal Singh and Phul Singh was decreed for recovery of Rs.8,000/- while declining the prayer for specific performance of the agreement. Against judgment and decree passed in Civil Suit No.79 of 2001, both the plaintiffs and the defendants preferred separate appeals, which were disposed of by learned Additional District Judge (Fast Track Court), Karnal, vide common judgment dated 07.06.2007. Appeal preferred by Amar Nath and Ram Singh defendants in Civil Suit No. 79 of 2001 was dismissed whereas appeal filed by plaintiffs of said suit i.e. Jaimal Singh and Phul Singh was allowed and their suit was decreed for specific performance of the agreement to sell. Amar Nath had also preferred separate appeal against dismissal of his suit. The said appeal was dismissed by learned Additional District Judge, Fast Track Court, Karnal, vide separate judgment and decree dated 07.06.2007. Feeling aggrieved, Amar Nath has filed the above mentioned three second appeals i.e. two appeals in Civil Suit No.79 of 2001 and the third appeal in Civil Suit No. 13 of 2001/2005. I have heard learned counsel for the parties and perused the case file. Execution of impugned agreement by the appellant in favour of Jaimal Singh and Phul Singh has been found to be proved by both the courts below. The said finding is based on appreciation of evidence and is not shown to be perverse or illegal and has not been seriously challenged before me. Learned counsel for the appellant however contended that plaintiffs of Civil Suit No.79 of 2001 were not ready and willing to perform their part of the agreement. In this context, it was pointed out that the plaintiffs did not go to the office of Sub Registrar on 21.08.2000 – the date fixed for the execution of the sale deed nor the plaintiffs had resources to R. S. A. No. 952 of 2008 4 pay the balance sale consideration. It was also argued that the said plaintiffs also did not issue any notice to the appellant for execution of sale deed and rather suit for specific performance was filed after the appellant had already filed suit for declaring the agreement to be null and void. On the other hand, learned counsel for the respondents no.1 to 8 contended that the appellant, in his written statement, denied the execution of the agreement. As regards readiness and willingness of the plaintiffs to perform the agreement, as pleaded by them in their plaint, the defendant in his written statement, simply stated that the question of readiness and willingness did not arise when the agreement itself was not executed. I have carefully considered the rival contentions. Learned lower appellate court, after appreciating the evidence on record, has come to the conclusion that plaintiffs were ready and willing to perform their part of the contract. The said finding of fact cannot be said to be illegal or perverse. Lower appellate court is the final court of fact. In addition thereto, the finding of the lower appellate court on this aspect is perfectly justified. As noticed herein above, appellant even denied the execution of the agreement. The appellant also did not plead in the written statement that the plaintiffs Jaimal Singh and Phul Singh were not ready and willing to perform their part of the contract, although the said plaintiffs have specifically pleaded that they were always ready and willing to perform their part of the contract. Moreover, Phul Singh, while appearing in the witness-box, specifically stated that they had always been ready and willing to perform their part of the contract and they made repeated requests to the defendant to execute the sale deed pursuant to the impugned agreement. He also stated that they were ready with the balance sale consideration and other expenses of the sale deed but the defendant did not execute the sale deed in their favour. Phul Singh stated that they requested the defendant four times for executing the sale deed. In this view of the matter, it cannot R. S. A. No. 952 of 2008 5 be said that the plaintiffs were not ready and willing to perform their part of the contract. Mere omission by the plaintiffs to go to the office of Sub Registrar on 21.08.2000 would not be sufficient to hold that they were not ready and willing to perform their part of the contract. In fact, the plaintiffs were not required to indulge in futile exercise of going to the office of Sub Registrar on 21.08.2000, when the appellant was not ready to execute the sale deed. In addition to the aforesaid, dishonesty of the appellant is writ large. He filed Civil Suit No.13 of 2001/2005 on 19.03.2001 alleging that the impugned agreement is null and void. His version is that his thumb impressions had been obtained by Jaimal Singh and Jai Bhagwan, when they paid Rs.8,000/- to him and those papers bearing thumb impressions were converted into the impugned agreement to sell. However, in spite of repeated and specific inquiry, learned counsel for the appellant is unable to explain as to how the appellant learnt that some agreement had been fabricated by Jaimal Singh etc. on the papers, on which thumb impressions of the appellant had been obtained. The matter does not rest here. The impugned agreement bears signatures of the appellant and does not bear his thumb impressions. However, in the suit filed by the appellant, he alleged that his thumb impressions had been obtained. The appellant in the witness box also denied his signatures even on his written statement. There is no end to the dishonesty of the appellant. Suit for specific performance was filed by Jaimal Singh and Phul Singh on 14.05.2001 and temporary injunction dated 17.05.2001 was granted restraining the appellant Amar Nath from alienating the suit land. In spite thereof, Amar Nath sold the suit land during pendency of the suit on 28.08.2001. Thus, conduct of the appellant has throughout been completely dishonest. It may also be added that Ram Singh – subsequent vendee had filed R. S. A. No. 3243 of 2007 challenging judgments and decrees of the R. S. A. No. 952 of 2008 6 courts below in Civil Suit No.79 of 2001, in which specific performance of the agreement has been ordered by the lower appellate court. The said appeal stands dismissed by this Court vide order dated 28.09.2007. The instant appeal was filed thereafter. It also shows dishonest and mala fide intention of the appellant. Moreover, the appellant has already sold the suit land to Ram Singh and therefore, appellant is not left with any right, title or interest in the suit land, but in spite thereof, the appellant has filed the instant three appeals. On the other hand, in view of dismissal of connected appeal bearing R. S. A. No. 3243 of 2007 filed by Ram Singh also, the appellant in the instant appeal cannot succeed. However, independently of the same, even on merits, the appellant has failed to make out a case in his favour. There is no illegality or infirmity in the judgment of the lower appellate court in suit for specific performance so as to warrant interference in second appeal. There is also no illegality or infirmity in judgments of both the courts below in dismissing the suit filed by Amar Nath appellant. No question of law, much less substantial question of law, arises for determination in all the three instant second appeals. For the reasons recorded herein above, I find no merit in the instant three appeals and therefore, all the three appeals are dismissed. April 29, 2010 ( L. N. MITTAL ) monika JUDGE