IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 286/2010 Decided on: 23.8. 2010 ________________________________________________ Kishori Lal. …Appellant. Versus Sandeep Chauhan. … Respondent. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Shanti Swaroop, Advocate. For the Respondent :Mr. Ajay Kumar, Advocate. ________________________________________________________ Rajiv Sharma, Judge (oral). This Regular Second Appeal has been directed against the judgment and decree dated 1.4.2010 passed by the learned District Judge, Hamirpur in Civil Appeal No.1 of 2008. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for specific performance of agreement dated 6.6.2003 (Ex.PW-2/A), which was entered into between the plaintiff and 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 defendant for the sale of land comprised in Khata No. 338, Khatauni No. 361, Khasra No. 1192/776 measuring 1 karanal 2 marlas to the extent of half share situated in Tikka Jahu Kalan, Mauza Mewa, Tehsil Bhoranj, District Hamirpur, as per copy of jamabandi for the year 2000-2001, Ex.P-1. Case set up by the plaintiff was that the appellant-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) was co-owner in possession of the suit land and he entered into agreement with the defendant on 6.6.2003 for the sale of land falling in his share, i.e. 11 Marlas alongwith house in the sum of Rs. 2,25,000/-. The plaintiff was put in possession of the land and house. The defendant had agreed to execute the sale deed in favour of the plaintiff on or before 25.7.2003. However, he failed to perform his part of agreement. The plaintiff stated that he was ready and willing to perform his part of contract. He had requested the defendant to execute the sale deed but to no avail. The defendant has filed the written statement. On merits, it was alleged that he and his brother entered into an agreement with the plaintiff for the sale of land and house on 6.6.2003 for consideration of Rs.8,90,000/- and not for Rs. 2,25,000/-. The agreement in question was not admitted to be correct and was stated to have been superseded by the agreement mark ‘A’ of the same date, i.e. 6.6.2003, according to which, a sum of Rs. 3 4,45,000/- was to be paid to the defendant. It was further averred that in fact two agreements were executed on 6.6.2003 and both the agreements, in original, remained with the plaintiff. The defendant has denied that he was not ready and willing to perform his part of contract. Replication was filed by the plaintiff to the written statement filed by the defendant. The issues were framed by the trial court on 19.1.2005. The trial court decreed the suit on 25.8.2007 for specific performance of the agreement Ex.PW-2/A on the deposit of the sale consideration within a period of one month from the date of passing of the judgment. The defendant was directed to execute the sale deed within a period of one month failing which the plaintiff was entitled to get the sale deed executed with the intervention of the court. 3. The defendant feeling aggrieved by the judgment and decree dated 25.8.2007 preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge dismissed the appeal on 1.4.2010. Hence, the present appeal. 4. Mr. Shanti Swaroop has strenuously argued that the judgments and decrees passed by both the courts below are contrary to the principles of law and facts. According to him, both the courts below have misread the oral as well as documentary evidence. 4 5. Mr. Ajay Kumar has supported the judgments and decrees of both the courts below. 6. I have heard the learned counsel for the parties and have perused the record carefully. 7. Plaintiff has appeared as PW-1. He has testified that he entered into agreement with the defendant on 6.6.2003 for the sale of land falling in his share to the extent of 11 marlas for a sum of Rs. 2,25,000/-. He had agreed to execute the sale deed on 25.7.2003. He did not turn up on that day and failed to execute the sale deed. He further deposed that his brother Sh. Gian Chand (DW-2) has also executed an agreement with him and he was put in possession of the land by him. In his cross- examination, he has denied that he entered into agreement with the defendant and his brother Gian Chand for sale consideration of Rs. 8,90,000/-. He has also denied that out of such sale consideration, he has paid a sum of Rs. 1,00,000/-. He volunteered that a sum of Rs. 1,00,000/- was paid to the brother of defendant against another agreement. He has denied that separate agreements were prepared about sale consideration of Rs. 8,90,000/-. He further clarified that separate agreements were prepared with the defendant and his brother Gian Chand. Agreement with Gian Chand was executed on 26.4.2003. He has denied that on 6.6.2003, two agreements were executed. 5 8. PW-2 P.C. Verma has deposed that agreement Ex.PW-2/A was scribed by him at the instance of defendant. Vinod Kumar and Gian Chand were present at that time. The contents of the agreement were read over to defendant and thereafter he put his signatures on the same after admitting the same to be correct. The agreement was executed in the sum of Rs. 2,25,000/-. In his cross-examination, he has deposed that he had not scribed any other agreement. The agreement between the plaintiff and Gian Chand was also scribed by him. 9. PW-3 Vinod Kumar is also witness to the agreement Ex.PW-2/A. He has deposed that it was scribed between the parties on 6.6.2003. The defendant had admitted the contents of the same to be correct and put his signatures on the same. 10. Defendant Kishori Lal has appeared as DW-1. According to him, agreement Ex.PW-2/A was executed on 6.6.2003 in the sum of Rs. 8,90,000/-, which was scribed by Advocate P.C. Verma. He had received a sum of Rs. 1,00,000/-. The sale deed was to be executed on 25.7.2003, however, on that date, plaintiff did not come. In his cross-examination, he has deposed that the agreement Ex.PW-2/A was prepared at his instance. However, he has denied that the deal was not struck in the sum of Rs. 8,90,000/-. 6 11. DW-2 Gian Chand is the brother of the defendant. He has supported the version of DW-1. According to him, the agreement was executed in the sum of Rs. 8,90,000/- and two agreements were executed on 6.6.2003 in order to escape from stamp duty. It was scribed by Advocate P.C. Verma. The sale deed was to be executed on 25.7.2003. According to him, due to non payment of money, the sale deed could not be executed. He has admitted in his cross-examination that the plaintiff has filed a case against him. The agreement between him and the plaintiff was executed in the month of April, 2003. It is a separate agreement than that of Ex.PW-2/A. It was also prepared for a sum of Rs. 2,25,000/-. He has denied that agreement mark ‘A’ was not written for a sum of Rs. 8,90,000/-. 12. DW-3 Manohar Lal is also brother of defendant. He has supported the version of defendant that the agreement was written in the sum of Rs. 8,90,000/-. He has stated that mark ‘A’ was prepared in his presence. He has denied that mark ‘A’ has been fabricated by all the brothers of the defendants. 13. DW-4 is Vinod Kumar. He has testified that he has signed agreement Ex.PW-2/A as a witness. The parties had also signed the same in his presence. He has written only one agreement on 6.6.2003. He has denied that mark ‘A’ was written by him. 7 14. What emerges from the above facts is that Ex.PW- 2/A was executed on 6.6.2003 whereby the defendant had agreed to sell his share in the suit land in favour of the plaintiff for a consideration of Rs. 2,25,000/-. However, the plea of the defendant throughout was that such agreement was superseded by agreement mark ‘A’ (photocopy) on the same day, i.e. 6.6.2003 in which the sale consideration was mentioned as Rs. 8,90,000/-. DW-4 Vinod Kumar has not supported its execution. He has categorically deposed that he has not written mark ‘A’. It has not been proved on record in accordance with law. It is merely a photocopy. 15. Learned counsel for the parties informed the District Judge during the course of hearing that a separate decree has been passed by the learned trial court with respect to purchase of share of Gian Chand again for a sale consideration of Rs. 2,25,000/-. The defendant has failed to prove that the original agreement Ex.PW-2/A was ever superseded. The plaintiff was always ready and willing to perform his part of contract. The defendant was not ready and willing to complying with the terms and conditions of agreement Ex.PW-2/A. Both the courts below have rightly appreciated the oral as well as documentary evidence placed on record by both the parties. 8 16. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. . There shall, however, be no order as to costs. (Rajiv Sharma), J. 23.8.2010. *awasthi*