RSA No.3429 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.3429 of 2011(O&M) Date of Decision: November 30, 2011 Hakam Singh .....Appellant v. Kehar Singh .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Satbir Gill, Advocate for the appellant. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.9560-C of 2011 In view of the facts mentioned in the application, delay of 51 days in filing the appeal is condoned. Application stands disposed of accordingly. C.M.No.9561-C of 2011 In view of the facts mentioned in the application delay of 9 days in re-filing the appeal is condoned. Application stands disposed of accordingly. RSA No.3429 of 2011 The present regular second appeal has been filed against judgment and decree dated 18.1.2011, passed by learned Additional District Judge, Sirsa, vide which appeal filed by present appellant-plaintiff against judgment and decree dated 24.2.2009 passed by learned Additional Civil Judge (Senior Division), Sirsa, vide which relief sought by present appellant-plaintiff for specific performance of agreement to sell dated 11.1.1999 was declined and, however, alternative relief of `37,800/- RSA No.3429 of 2011(O&M) -2- alongwith interest @ 9% per annum was allowed, was partly accepted to the extent that rate of interest was increased from 9% to 18% per annum from the date of payment till realisation. I have heard learned counsel for the appellant and have gone through the whole record carefully including both the judgments passed by learned Courts below. Briefly stated, appellant-plaintiff filed a suit for specific performance of agreement to sell dated 11.1.1999 regarding land measuring 16 kanals, fully detailed in heading of the plaint and as per jamabandis for the years 1992-93 and 1997-98 executed by respondent-defendant in his favour for sale consideration of `80,000/- per acre out of which `37,800/- was paid as the earnest money and the remaining amount of `1,22,200/- was to be paid at the time of execution of sale deed, which was fixed as 10.1.2000. However, in the alternative decree for recovery of `37,800/- alongwith interest @ 24% per annum was also claimed. On notice being issued, respondent-defendant had taken the plea that he had purchased bricks from the brick kiln of one Ram Lal of village Biruwala Gudha and at that time, as he was not having sufficient amount to pay the price of bricks, the present appellant-plaintiff-Hakam Singh, who was known to him, stood guarantor for repayment of the price of the goods and he procured his thumb impressions on some blank papers, which were misused by him with some ulterior motive and hence, he filed the present suit. He has also taken the plea that he has already repaid the amount of bricks to brick kiln owner Ram Lal. He denied having executed any agreement as alleged in favour of present appellant-plaintiff. He has also denied having received any earnest money. RSA No.3429 of 2011(O&M) -3- On appreciation of evidence adduced by both the parties, learned trial Court came to the conclusion that parties did not intend to execute the agreement to sell the land in dispute and, however, the document was executed only in lieu of security for repayment of the loan amount and hence appellant-plaintiff has also prayed for alternative relief of recovery of `37,800/- alongwith interest. Appeal filed by present appellant- plaintiff was partly allowed by learned first appellate Court to the extent that rate of interest was increased from 9% to 18% per annum. It has been vehemently contended by learned counsel for the appellant-plaintiff that execution of agreement Ex.P1 is duly proved by appellant-plaintiff. However, plea cannot be accepted. Even alleged witness of agreement PW3-Jagrup Singh admitted in his cross-examination about transaction between the parties with regard to bricks purchased by respondent. He has also admitted that no money was paid in his presence. There is another aspect of the case. The date fixed for registration of sale deed was fixed after one year of the execution of agreement and the present suit was filed after expiry of three years thereafter, i.e., the suit was filed after four years of the execution of the agreement. This fact also goes to show that real intention of the parties was not to execute the agreement to sell and that rather intention was only to get executed the document to secure repayment of loan of `37,800/-, which was paid by present appellant- plaintiff. It has further been contended by learned counsel for the appellant-plaintiff that respondent-defendant has admitted that agreement has been executed by him. However, this argument is also without any basis. RSA No.3429 of 2011(O&M) -4- Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned judgments and decrees. Finding recorded by learned Courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 30.11.2011 (Ram Chand Gupta) meenu Judge