Regular Second Appeal No. 4389 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4389 of 2010 Date of decision : March 14, 2011 Santokh Singh ....Appellant versus Tarsem Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Ms. Deepali Puri, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant no. 2 having failed in both the courts below is in second appeal. Respondent no. 1 – plaintiff Tarsem Singh filed suit against defendant no. 2 appellant and against respondents no. 2 and 3 as defendants no. 1 and 3 respectively. The plaintiff alleged that defendant no. 1 and his brother Gurmej Singh being owners of suit land measuring 14 kanals 18 marlas agreed to sell the same to the plaintiff at the rate of Rs 1 lac per acre and received Rs 4000/- as earnest money and executed agreement dated 10.6.1991. Sale deed was to be executed upto 15th of Chet, 1999. The Regular Second Appeal No. 4389 of 2010 -2- plaintiff earlier had to file suit for permanent injunction when the said vendors threatened to alienate the suit land to somebody else. In the injunction suit execution of the impugned agreement was denied necessitating the filing of the instant suit for specific performance of the impugned agreement. The plaintiff alleged that he has always been ready and willing to perform his part of the contract whereas defendant no. 1 and Gurmej Singh committed breach of the agreement. Gurmej Singh has since died and defendants are his legal heirs. Only defendant no. 2 contested the suit. He denied the impugned agreement pleading it to be bogus and fabricated document. It was also pleaded that suit land was ancestral property and on the death of Gurmej Singh his share has extinguished. The suit land and other land was joint and therefore, the impugned agreement for specific khasra numbers could not be executed. The impugned agreement is illegal and is null and void. Plaintiff had earlier filed injunction suit against defendant no. 1 and his father Kartar Singh but in that suit temporary injunction was declined and the suit was ultimately dismissed as withdrawn. The present suit is barred by section 11 and Order 2 Rule 2 of the Code of Civil Procedure (in short, CPC). Various other pleas were also raised. Learned Civil Judge (Junior Division), Amritsar vide judgment and decree dated 8.12.2005 decreed the plaintiff's suit. First appeal preferred by defendant no. 2 has been dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 15.5.2010. Feeling Regular Second Appeal No. 4389 of 2010 -3- aggrieved, defendant no. 2 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. At the outset, it has to be noticed that during pendency of the suit, defendant no. 1 executed sale deed dated 23.6.1997 of his share of the suit land in favour of the plaintiff and therefore, the suit has been decreed for the share of Gurmej Singh now belonging to defendants no. 2 and 3. Plaintiff in order to prove impugned agreement examined its scribe Lakhbir Singh PW1 and one attesting witness Sohan Lal PW2 besides himself appearing in witness box as PW4. All of them have supported the plaintiff's version. On the other hand, there is solitary statement of defendant no. 2 Santokh Singh appellant as DW1. Plaintiff's evidence practically stands unrebutted because defendant no. 2 himself was not party to the impugned agreement. Consequently, his testimony carries no probative value regarding due execution of the agreement by defendant no. 1 and Gurmej Singh. On the contrary, plaintiff has led sufficient and cogent evidence to prove due execution of the agreement by himself stepping into witness box and by examining scribe of the agreement and also one attesting witness of the agreement. On the basis of this evidence, both the courts below have rightly come to concurrent finding that due execution of the agreement by defendant no. 1 and Gurmej Singh stands proved. In addition to it, during pendency of the suit defendant no. 1 who is none else but real brother of defendants no. 2 and 3 and of Gurmej Singh Regular Second Appeal No. 4389 of 2010 -4- since deceased executed sale deed of his share in the suit land in favour of the plaintiff in terms of the impugned agreement. This material circumstance further strengthens the plaintiff's case. Defendant no. 1 while executing the said sale deed dated 23.6.1997 admitted the impugned agreement. In view of the aforesaid concurrent finding recorded by the courts below regarding due execution of the agreement does not suffer from any illegality or perversity. On the other hand, the said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below. Consequently, the said finding does not warrant interference in second appeal. Learned counsel for the appellant vehemently contended that Sohan Lal PW2 stated that the agreement was scribed in village Fatehgarh Shukar Chak i.e. village of the parties whereas plaintiff stated that agreement was scribed in Tehsil Office, Amritsar. However, merely on the basis of this solitary contradiction, plaintiff's evidence which is otherwise cogent and reliable cannot be thrown away particularly because the witnesses were examined several years after the execution of the impugned agreement. Consequently on the basis of said solitary and minor contradiction that appeared in the statements of two witnesses, their statements cannot be held to be unreliable. 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 Regular Second Appeal No. 4389 of 2010 -5- determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) March 14, 2011 Judge 'dalbir'