R. S. A. No. 1431 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1431 of 2011 (O&M) Date of Decision : May 02, 2011 Smt. Bhagwati Devi .... Appellant Vs. Samunder Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amit Kumar Jain, Advocate for Mr. S. N. Pillania, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 4001-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 08 days in filing the appeal is condoned. Main Appeal : Defendant Bhagwati Devi, who was successful in the trial court, but has been unsuccessful in the lower appellate court, has filed the instant second appeal. Respondent-plaintiff Samunder Singh filed suit against the R. S. A. No. 1431 of 2011 (O&M) 2 defendant-appellant for specific performance of the agreement to sell dated 15.07.2005 alleging that defendant, being owner of the suit property, agreed to sell the same to the plaintiff for Rs.1,10,000/- and received Rs.1,00,000/- as earnest money and executed the aforesaid agreement. Sale deed was to be executed up to 15.01.2006. The plaintiff always remained ready and willing to perform his part of the contract, but the defendant committed breach thereof, necessitating the filing of the suit. The defendant broadly denied the plaint allegations. It was pleaded that defendant never agreed to sell the suit property to the plaintiff nor executed the impugned agreement nor received any earnest money from the plaintiff. The defendant pleaded that she had borrowed Rs.1,00,000/- from one Nasib on interest @ 2% per month and at that time, Nasib took original sale deed of the suit property from the defendant as security and also obtained her signatures/thumb impressions on some blank papers. The defendant returned Rs.50,000/- in cash to Nasib and some gold ornaments and defendant is still ready to pay the balance amount, if any, to said Nasib in easy instalments. However, the plaintiff, in collusion with Nasib, is harassing the defendant by filing the instant suit. The impugned agreement is in custody of the plaintiff in connivance with Nasib, who had obtained signatures/thumb impression of the defendant on blank papers. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Jind, vide R. S. A. No. 1431 of 2011 (O&M) 3 judgment and decree dated 08.06.2010, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Jind, vide judgment and decree dated 08.12.2010 and thereby, suit filed by the plaintiff stands decreed. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. In order to substantiate his case, the plaintiff himself stepped into the witness box and also examined scribe of the agreement and one attesting witness of the agreement. All of them have broadly stated according to plaintiff's version. On the other hand, defendant herself stepped into the witness box and examined her son and one more witness. All of them broadly stated according to defendant's version. The plaintiff has successfully proved execution of the impugned agreement by the defendant and payment of earnest money of Rs.1,00,000/- to the defendant. Plaintiff's testimony stands corroborated by the statements of scribe and one attesting witness of the impugned agreement. They had no enmity with the defendant. On the other hand, defendant has admitted her signatures/thumb impressions on the impugned agreement by her pleadings in the written statement. Defendant's oral evidence is not sufficient to rebut the documentary evidence led by the plaintiff along with oral evidence. Statements of scribe and one attesting R. S. A. No. 1431 of 2011 (O&M) 4 witness of the impugned agreement prove that the agreement was duly executed by the defendant, who also received earnest money of Rs.1,00,000/- from the plaintiff. Entry in the register of scribe was also signed/thumb marked by the defendant. Consequently, impugned agreement and also separate receipt regarding payment of earnest money, which has also been proved, cannot be said to be forged and fabricated documents. The plaintiff always remained ready and willing to perform his part of the contract, and therefore, suit has been rightly decreed by the lower appellate court. It does not appeal to reason that the defendant, while borrowing Rs.1,00,000/- allegedly from Nasib, put her thumb impressions/ signatures on blank papers and also gave original sale deed to Nasib as security for the said loan. It is further improbable that she paid Rs.50,000/- in cash and also gave some gold ornaments to Nasib without any receipt or other writing. Learned counsel for the appellant vehemently contended that according to plaintiff's version, and also as recited in the impugned agreement, possession of the suit property was also delivered to the plaintiff at the time of impugned agreement, and therefore, the agreement required compulsory registration in view of Section 17 (1A) of the Registration Act, 1908 (in short – the Act), but it is unregistered, and therefore, the document cannot be looked into. Reliance in support of this contention has been placed on judgment of this Court in the case of Gurbachan Singh vs. R. S. A. No. 1431 of 2011 (O&M) 5 Raghubir Singh reported as 2010 (3) Civil Court Cases 731 (P&H). I have carefully considered the aforesaid contention, but the same cannot be accepted. Section 17 (1A) of the Act is reproduced hereunder :- “17.(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.” A bare perusal of this provision would depict that if such an agreement, by which possession of immovable property is also delivered, is unregistered, it cannot be used for the purpose of section 53A of the Transfer of Property Act, 1882 (in short – the T. P. Act). The aforesaid provision specifically states that such unregistered agreement cannot be used for the purpose of section 53A of the T. P. Act. However, Section 17 R. S. A. No. 1431 of 2011 (O&M) 6 (1A) of the Act does not say that such agreement cannot be used for any other purpose. In the instant case, the plaintiff is not using the agreement for the purpose of section 53A of the T. P. Act. Benefit of section 53A of the T. P. Act is availed of by the defendant. In the case of Gurbachan Singh (supra) also, the vendor had filed injunction suit against the prospective vendee, and therefore, it was held that the prospective vendee cannot use the unregistered agreement to retain possession of the suit property by resorting to provision of Section 53A of the T. P. Act. There can be no dispute with this legal proposition, which is also evident from bare language of Section 17 (1A) of the Act. In the instant case, the plaintiff is not using the agreement for the purpose of section 53A of the T. P. Act. Consequently, the aforesaid contention is devoid of substance. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Finding recorded by the lower appellate court in favour of plaintiff and against the defendant does not call for interference in exercise of second appellate jurisdiction as the said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. The appeal is accordingly dismissed in limine. May 02, 2011 ( L. N. MITTAL ) monika JUDGE