Regular Second Appeal No. 753 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 753 of 2008 Date of Decision: 25.11.2008 Harbans Singh …Appellant Versus Gurcharan Singh …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Narinder Lucky, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. This is appellant/plaintiff's second appeal. He has filed the suit for specific performance for possession and execution of sale deed in his favour on basis of agreement to sell dated 12.11.1995 vide which 57 kanals 15 marlas of land, as detailed in the head note of the plaint, was to be sold by the respondent/defendant for a consideration of Rs.1,00,000/- per acre. At the time of execution of agreement to sell, Rs.1,80,000/- was paid as earnest money. It was further stated that in case of breach of agreement to sell , double the amount is to be refunded to the plaintiff. As per the terms of the agreement, sale deed was to be executed on or before 13.4.1996. Since 13.4.1996 was Saturday and 14.4.1996 was Sunday, on 15.4.1996, appellant/plaintiff came to Tehsil Compound, Ajnala, in pursuance of the agreement. But Regular Second Appeal No. 753 of 2008 2 respondent/defendant did not turn up. Therefore, an affidavit was executed and plaintiff got his presence marked. On notice of the suit, respondent/defendant appeared and filed written statement. A preliminary objection was taken that the suit is not maintainable in the present form. It was further submitted that appellant/plaintiff was not ready and willing to execute sale deed as he was not having sufficient amount. It was further stated that affidavit which reflect presence before the Authority was ante-dated. On merits, it was stated that since the appellant/plaintiff was not having a requisite amount, therefore, he never come forward for execution of the sale deed and the amount of earnest money has been forfeited. Replication was filed in which averments made in the written statement were denied and that of the suit were reiterated. Appellant/plaintiff examined Sukhwinder Singh as PW.1 and himself was examined as PW.2, through a Commission. Respondent/defendant examined himself as DW.1, Mohinder Singh as DW.2 and Jaswant Singh, Kanungo, as DW.3. Learned trial Court held that the defendant had assailed affidavit Ex.P1 as per which the presence of plaintiff was marked, as to be accompanied by various suspicious circumstances. Learned trial Court further held that none of the officials from the office of Sub Registrar had been examined to show on the file that alleged affidavit Ex.P1 bear the signatures of Executive Magistrate of that time. Alleged affidavit has not been entered in any register in the office of Sub Registrar. It further held that it is not proved that the alleged affidavit Ex.P1 was got typed at Ajnala or Amritsar or somewhere else. It further Regular Second Appeal No. 753 of 2008 3 held that alleged signatures on the stamp of Executive Magistrate raised suspicion. It further held that plaintiff was failed to prove that from which account he had withdrawn the amount. It further held that it could not be believed that Rs.6,00,000/- were brought from the house. However, the Court held that the plaintiff is entitled to recover Rs.1,80,000/- paid as earnest money. It further held that plaintiff is not entitled to any damages. Aggrieved against the same, an appeal was filed. Learned lower Appellate Court concurred with the finding of fact recorded by learned trial Court. It further held that appellant/plaintiff has not proved the purchase of stamp papers, for execution of sale deed, as the same was best evidence to show, readiness and willingness on the part of plaintiff. That in case appellant/plaintiff had purchased the stamp papers for the execution of the sale deed, the same were to be purchased in the name of the vendor and not in the name of vendee. It further held that the plaintiff is not speaking the truth. However, it awarded 6% interest on the amount of Rs.1,80,000/- from the date of filing of the suit i.e. 5.4.1997. Learned counsel appearing for the appellant/plaintiff has stated that instead of ordering refund of Rs.1,80,000/- with 6% interest, the Courts below ought to have passed the decree of specific performance in favour of the appellant/plaintiff. In view of the finding of fact recorded that Rs.6,00,000/- as stated by the plaintiff/appellant were not available with him and he had not purchased the stamp papers on which sale deed was to be executed, nothing survive in the present appeal which should receive attention of this Court. Regular Second Appeal No. 753 of 2008 4 In view of the concurrent finding of fact, re-appreciation and re-appraisal of evidence is not permissible in regular second appeal. No substantial question of law arise, therefore, there is no merit in the present appeal and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 25, 2008 “DK”