R. S. A. No. 1338 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1338 of 2011 Date of Decision : May 11, 2011 Dalbir Singh and others .... Appellants Vs. Rajpal .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. N. K. Malhotra, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : Defendants having lost in both the courts below are in second appeal. Respondent-plaintiff Rajpal filed suit against appellants as defendants no.1 and 3 to 5 and also Jaiveer Singh as defendant no.2. Jaiveer Singh has since died and is represented by defendants no.3 and 4 (appellants no.2 and 3) as his legal representatives. The plaintiff alleged that defendants no.1 and 2 i.e. Dalbir Singh and Jaiveer Singh agreed to sell 1000 sq. yds. land in suit to the plaintiff vide agreement dated 23.03.2006 @ Rs.525/- per sq. yd. and received Rs.2,00,000/- as earnest money and executed the agreement. R. S. A. No. 1338 of 2011 2 Defendant no.2 gave his consent to the agreement by affixing signatures on the agreement and also by making writing in his own hand and under his own signatures on receipt of earnest money. Defendants no.1 and 2 entered into another agreement dated 25.03.2006 for sale of 200 sq. yds. land in suit and received Rs.20,000/- as earnest money and executed necessary agreement-cum-receipt. Sale deeds of both the properties were to be executed on or before 20.07.2006. Plaintiff always remained ready and willing to perform his part of the agreement and accordingly, reached the office of Sub Registrar on 20.07.2006 to get the sale deeds executed in terms of the agreements, but defendants no.1 and 2 did not come present and committed breach of the agreements. Plaintiff then served notice dated 07.08.2006 on defendants no.1 and 2. The notice was received by defendant no.1, whereas notice sent to defendant no.2 was received with endorsement of postal authority that the addressee was not available. The plaintiff learnt that defendants no.1 and 2, in order to defeat the impugned agreements, transferred the suit properties to defendants no.3 to 5 by way of release deeds dated 30.03.2006. It may be mentioned that defendants no.3 and 4 are wife and minor son of defendant no.2, whereas defendant no.5 is minor adopted son of defendant no.1. The plaintiff lodged criminal case regarding the aforesaid fraud committed by defendants no.1 and 2 with the plaintiff. The said release deeds have also been challenged in the suit being illegal and null and void and not binding on the plaintiff. Since defendants committed breach of the agreements, the plaintiff filed suit for specific R. S. A. No. 1338 of 2011 3 performance of the agreements besides challenging the release deeds. Defendants no.1 and 5 broadly denied the plaint allegations and alleged that plaintiff played fraud on defendant no.1 to get the impugned agreements regarding property owned by him (defendant no.1). It was pleaded that the agreements are unregistered and are, therefore, invalid. Ownership of defendant no.1 over the suit properties was admitted. However, it was pleaded that defendant no.1 never entered into the impugned agreements nor signed the same nor received any earnest money. Signatures of defendant no.1 might have been taken by the plaintiff while defendant no.1 was intoxicated. Defendant no.1 admitted that he had transferred his share of the land in favour of his minor son defendant no.5 vide release deed dated 30.03.2006. Defendants no.2 to 4 also broadly took the same stand as that of defendants no.1 and 5. Learned Additional Civil Judge (Senior Division), Rohtak, vide judgment and decree dated 09.04.2009, decreed the plaintiff's suit. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Rohtak, vide judgment and decree dated 22.09.2010. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. In order to prove his case, the plaintiff himself stepped into the witness-box and examined Jaipal (PW-2) – attesting witness of the R. S. A. No. 1338 of 2011 4 agreements and Mohan Kumar (PW-3) – scribe of the agreements. All of them have broadly stated according to plaintiff's version. Defendants did not lead any evidence whatsoever. Evidence led by the plaintiff is cogent and sufficient to prove his case. His evidence also stands unrebutted. Defendants have not led any evidence, and therefore, adverse presumption arises against them. Plaintiff's case is proved by his own testimony and is corroborated by the testimony of attesting witness of the agreements as well as scribe of the agreements. There is no reason to doubt or discard the same. Defendant no.1 impliedly admitted his signatures on the impugned agreements by pleading that his signatures might have been obtained by the plaintiff while he (defendant no.1) was intoxicated. Defendant no.1 did not step into the witness box to make statement in support of the aforesaid version nor there is any other evidence to substantiate the same. Plaintiff's evidence has been rightly found sufficient to decree the suit. Learned counsel for the appellants vehemently contended that agreement dated 23.03.2006 was not signed by Jaiveer Singh – defendant no.2, and therefore, the same is not binding on him or his legal heirs. The contention, apparently attractive, cannot be accepted because it is the specific case of the plaintiff that defendant no.2 gave his consent to the agreement by making writing in his own hand on the receipt of earnest money and by signing the same. Consequently, it cannot be said that the said agreement is not binding on defendant no.2 or his legal heirs. R. S. A. No. 1338 of 2011 5 Learned counsel for the appellants vehemently contended that the suit property was ancestral coparcenary property, and therefore, defendants no.1 and 2 had no right to alienate the same. Reliance in support of this contention has been placed on a judgment of Karnataka High Court in the case of Khanderao Subbarao Nadagir vs. Hulagavva and others reported as 2004 (2) Latest Judicial Reports 254. The contention is completely misconceived and untenable. According to this judgment, legal representatives of the vendor are liable to perform the agreement to the extent of the share of the deceased vendor in joint Hindu family property. In the instant case, however, there is not even a plea by the defendants in the written statements that the suit property was ancestral, coparcenary or joint Hindu family property nor there is any evidence to substantiate this contention. Consequently, the contention is not only meritless, but is completely frivolous and absurd. Learned counsel for the appellants also relied on judgments of this Court in the case of Balkar Singh vs. Mohabat Singh and others reported as 2004 (2) Latest Judicial Reports 197 and Sarup Chand vs. Surjit Kaur and others reported as A. I. R. 2002 P & H 54. These judgments relate to sale of share of minors, which require permission of the Guardian Court. In the instant case, however, the agreements were executed by defendants no.1 and 2, who were not minors. Defendants no.4 and 5, who are minors, are subsequent transferees from defendants no.1 and 2, and therefore, no permission for sale on their behalf is required because the R. S. A. No. 1338 of 2011 6 agreements executed by defendants no.1 and 2 are being enforced. Here, it would not be out of place to notice that transfer of the suit property by defendants no.1 and 2 in favour of defendants no.3 to 5 is most dishonest and mala fide because defendants no.1 and 2 executed impugned agreements dated 23.03.2006 and 25.03.2006 regarding the suit property in favour of plaintiff and received earnest money and thereafter, executed release deeds dated 30.03.2006 of the suit property in favour of defendants no.3 to 5, defendants no.3 and 4 being wife and son respectively of defendant no.2, and defendant no.5 being son of defendant no.1. This act of all the defendants is most dishonest and was committed to defeat the rights of the plaintiff under the impugned agreements. Consequently, defendants-appellants have to be subjected to heavy cost for filing this frivolous second appeal so as to curb such evil practices. The defendants did not lead any evidence whatsoever, but have filed first and second appeals without there being any merit and the appeals being completely frivolous and meritless. Learned counsel for the appellants also relied on a judgment of Andhra Pradesh High Court namely B. R. Koteshwara Rao vs. G. Rameshwari Bai and another reported as AIR 2004 Andhra Pradesh 34. It was laid down in this judgment that even if signatures on a document is admitted and if the document is in language, which is not known to the executant, burden lies on the other party to prove that contents of the document were explained to the executant. It is beyond comprehension as R. S. A. No. 1338 of 2011 7 to how this proposition of law is attracted to the facts of the instant case. The impugned agreements are in Hindi and it is not even the case of defendants that defendants no.1 and 2 did not understand Hindi language. For the reasons aforesaid, I find that the appeal is not only meritless, but is also completely frivolous and is result of dishonesty. Such frivolous litigation has to be curbed by imposing exemplary cost. Concurrent finding recorded by both the courts below is fully justified by the cogent and unrebutted evidence of the plaintiff. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence so as to call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine, with cost of Rs.20,000/- to be deposited by the appellants with the Registry of this Court. If the cost amount is not deposited within one month from today, the case shall be listed for this purpose. May 11, 2011 ( L. N. MITTAL ) monika JUDGE