R.S.A. No. 1564 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1564 of 2010 (O&M) Date of Decision : 7.5.2010 Smt. Ram Murti & others .......... Appellants Versus Joga & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. D.S. Bhinder, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 23.11.2009, passed by the learned Courts below, vide which suit filed by the plaintiff / appellants for specific performance of agreement to sell dated 16.6.1983, stands dismissed. The plaintiff / appellants filed a suit on the pleadings, that the defendant / respondents by way of agreement to sell dated 16.6.1983 had agreed to sell 1/11th share of the land at village Randhawa, Tehsil & District Patiala for a consideration of Rs. 25,000/- (Rupees twenty five thousand only). The plaintiff / appellants also challenged the sale deed executed by the defendant No.1, in favour of the defendants No. 2 to 4 being illegal, void, ab initio, not enforceable, therefore, not binding on the rights of the plaintiff / appellants. Interestingly, while filing the suit, the plaintiff / appellants R.S.A. No. 1564 of 2010 -2- moved an application to sue as an indigent person. The application moved by the plaintiff / appellants was, however, dismissed by the learned trial Court. The plaintiff / appellants did not examine any attesting witness to prove the agreement to sell, though, the agreement to sell was disputed by the defendant / respondents. An issue was also framed :- “As to whether defendant No.1 executed an agreement to sell in favour of the plaintiff on 16.6.1983?” The learned trial Court recorded a finding on appreciation of evidence, that the plaintiffs failed to prove the agreement to sell, and further held, in view of the stand taken by the plaintiff / appellants, that they were indigent person, it could not be said, that they were willing to perform their part of contract. The suit was dismissed. In appeal, finding recorded by the learned trial Court stands affirmed. The plaintiff / appellants moved an application under Order 41 Rule 27 of the Code of Civil Procedure, to lead additional evidence before the learned lower appellate Court so as to prove the agreement to sell. The application for additional evidence was dismissed, as the evidence sought to be led, was held to be within the knowledge of the plaintiff / appellants, at the time of leading evidence and also for the reason, that it was an attempt to fill in lacuna. The learned counsel appearing on behalf of the appellants contends, that this appeal raises the following substantial questions of law for consideration :- R.S.A. No. 1564 of 2010 -3- 1. Whether the judgments and decrees passed by the learned Courts below are outcome of misreading of evidence, therefore, perverse? 2. Whether the learned Courts below were justified in recording a finding that the plaintiff / appellants had failed to prove their willingness to perform their part of contract as stipulated under Section 16 of the Specific Relief Act? In support of the substantial questions of law, referred to above, the learned counsel for the appellants vehemently contended, that the plaintiff / appellants, examined PW-1, the scribe of the agreement to sell, to prove the agreement, as also the entry made in the register. Therefore, the learned Courts below have misread the evidence, to come to the conclusion, that the plaintiff / appellants failed to prove, the execution of the agreement to sell. It was also the contention of the learned counsel for the appellants, that the finding that plaintiff / appellants were not willing to perform their part of contract, is not sustainable. In view of the proved fact that property stood sold. In view of subsequent sale, there was no occasion to prove the willingness. As the question to be decided was as to whether property could be sold to defendants No. 2 to 4, and whether the subsequent sale was good or bad. The question of proving the willingness to perform their part of contract by plaintiff / appellants was of no consequence. On consideration, though, I find some substance in the second substantial question of law, but it loses its importance as the plaintiff / R.S.A. No. 1564 of 2010 -4- appellants failed to prove the execution of the agreement to sell. The agreement to sell was required to be proved by examining the attesting witnesses, as the scribe could only depose about the writing of the agreement at the instance of the plaintiff / appellants and defendant / respondents, but was not in a position to identify, whether the agreement to sell was in fact executed by a right person, which could only be proved by examining at least one of the attesting witnesses. Once the plaintiff / appellants failed to prove the due execution of the agreement to sell, the first substantial question of law, is to be answered against the plaintiff / appellants. In view of the finding on the first substantial question of law, no finding is required to be given on the second substantial question of law raised. Consequently, finding no merit, this appeal is dismissed, but with no order as to costs. 7.5.2010 ( VINOD K. SHARMA ) 'sp' JUDGE