RSA No.2816 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2816 of 2010(O & M) Date of Decision:02.08.2010 Hukam Chand .... appellant Versus Gurdev Kaur & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.S.S.Salar,Advocate for the appellant **** RAKESH KUMAR GARG J.(ORAL): CM No.8498-C of 2010 For the reasons mentioned, delay of 51 days in refiling the appeal is condoned. CM disposed of. CM No.8499-C of 2010 Civil Misc.application is allowed subject to just exceptions. Delay, if any, in making up the deficiency in court fee, is condoned. CM disposed of. RSA No.2816 of 2010 This is defendant's second appeal challenging the judgement and decrees of the courts below, whereby suit of the plaintiff- respondents for possession by way of specific performance of the RSA No.2816 of 2010(O & M) 2 agreement to sell dated 14.05.2001 was decreed by the courts below. The suit which was based on an agreement dated 14.05.2001 executed by the appellant was contested by denying the execution of the aforesaid agreement in question and receipt of the earnest money of Rs.1,24,500/- (out of a total sale consideration of Rs.1,30,000/-) and a plea of fraud and misrepresentation was taken stating that the appellant was asked to sign the stamp paper as a witness for advancing some loan amount to one Shera. Both the courts below on appreciation of evidence recorded a finding of fact that execution of the agreement to sell in question stood proved and the appellant had failed to prove his plea of fraud and misrepresentation and decreed the suit. The present appeal has been filed by the defendant- appellant challenging the aforesaid judgement and decrees of the courts below stating that the following substantial questions of law arise in this appeal: 1. Whether the judgements and decrees passed by the Lower Appellate Court and trial Court are perverse as the plaintiffs did not appear to rebut the allegation that no earnest money ever passed and the agreement was not intended to sell any property? 2. Whether the judgement and decree of Lower Appellate Court is perverse and is liable to be set aside for the reason that the arguments raised by the appellant have not been met by the Lower Appellate Court? 3. Whether the judgement and decrees of courts below are perverse and a result of non-application of mind when the sale was regarding agriculture land but the khasra number was not given? RSA No.2816 of 2010(O & M) 3 4. Whether in the facts and circumstances proved on record, can it be inferred that the agreement was in fact an agreement to sell more particularly neither the khasra number was given nor jamabandi was obtained at the time of agreement, almost entire consideration was passed except a nominal one, but the time for sale was fixed after almost one year? 5. Whether if at all the agreement is proved, was it a security for any money advanced? I have heard learned counsel for the appellant. In the suit for specific performance for agreement in question, the appellant has not denied the execution of the agreement in question. In his cross-examination also, he has clearly admitted his signatures on every page of the agreement in question. Not only this, he has even verified that the cuttings were signed by him. The plea regarding the fact that it was a security for loan document, has not been proved at all. The only contention raised by the learned counsel for the appellant before this Court is that the Lower Appellate Court while dismissing the appeal has not discussed all the arguments raised by the appellant. So much so, appellant has argued before the Lower Appellate Court that consideration of the agreement to sell, has not been proved and therefore, the appeal is liable to be accepted and the judgment and decree of the Lower Appellate Court is liable to be set aside being the result of perversity and non-application of mind. Admittedly, there is a recital in agreement in question that the appellant has received Rs.1,24,500/- as earnest money out of total sale consideration of Rs.1,30,000/-. It is well settled that contents of a written agreement, which has been executed between the parties, and has been duly proved in accordance with law, cannot be rebutted by way of oral RSA No.2816 of 2010(O & M) 4 evidence as provided under Section 92 of the Indian Evidence Act, 1872. Even otherwise, the Hon'ble Supreme Court in the case of Gurdev Kaur & ors. vs. Kaki & Ors. 2006(2) RCR Civil 561, while interpreting the scope of Section 100 of the Code of Civil Procedure, held that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the trial Court and the First Appellate Court, even if, the same are grossly erroneous, as the legislative intention was very clear, that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” In view of the aforesaid findings, there is no merit in this appeal. No other point was urged. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 02.08.2010 neenu