R. S. A. No. 383 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 383 of 2011 (O&M) Date of Decision : April 18, 2011 Jangir Singh .... Appellant Vs. Dev Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kuldip Sanwal, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 1063-C of 2011 : Allowed as prayed for. Main Appeal : Defendant Jangir Singh having lost in both the courts below has filed the instant second appeal. Respondent-plaintiff Dev Singh filed suit against defendant- appellant for possession of the suit land measuring 08 kanals by specific performance of the agreement to sell dated 16.05.2003 and in the alternative, for recovery of Rs.1,80,000/-. Ancillary relief of permanent R. S. A. No. 383 of 2011 (O&M) 2 injunction was also sought. Plaintiff's case is that the defendant agreed to sell the suit land to the plaintiff for consideration of Rs.2,40,000/- and received Rs.90,000/- as earnest money and executed the impugned agreement dated 16.05.2003. Sale deed was to be executed and registered on 31.05.2004. Accordingly, the plaintiff attended the office of Sub Registrar on 31.05.2004 with requisite amount to get the sale deed executed and registered in terms of agreement, but the defendant did not turn up and committed breach of the agreement. The plaintiff thereafter served notice dated 24.06.2004 on the defendant requiring him to execute the sale deed, but still the defendant did not do the needful. Thereupon, the plaintiff filed the instant suit. The defendant broadly denied the plaint allegations. The defendant alleged that he is not exclusive owner in possession of the suit land, but he is only joint owner in possession thereof along with his brother Gurmej Singh. The defendant denied having executed the impugned agreement or having received earnest money. It was alleged that impugned agreement is forged and fabricated one. The defendant agreed to purchase a Thrasher and old Tractor from the plaintiff on credit and thereupon, the plaintiff obtained a writing from the defendant regarding the said purchase in the shape of agreement and asked the defendant to sign on blank stamp paper. The defendant accordingly affixed his signatures on blank stamp paper in good faith and without reading its contents. The plaintiff then R. S. A. No. 383 of 2011 (O&M) 3 fabricated the impugned agreement. Various other pleas were also raised. Learned Civil Judge (Junior Division), Samana, vide judgment and decree dated 27.11.2006, instead of decreeing the suit for specific performance of the agreement, decreed the suit for recovery of Rs.90,000/- along with interest @ 12% per month from the date of execution of agreement till recovery. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Patiala, vide judgment and decree dated 15.03.2010. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff himself stepped into the witness-box and examined both attesting witnesses of the agreement and also its scribe. All of them have supported the plaintiff's case. On the other hand, defendant himself stepped into the witness-box and stated according to his version. Plaintiff has led sufficient cogent and reliable evidence to prove execution of agreement by defendant and payment of earnest money of Rs.90,000/- by the plaintiff to the defendant. Plaintiff's version in this regard is supported by both attesting witnesses of the agreement as well as by its scribe. On the other hand, there is only self-serving bald and oral statement of the defendant, which is not sufficient to rebut the cogent evidence led by the plaintiff. R. S. A. No. 383 of 2011 (O&M) 4 There is another significant aspect of the matter. The defendant has taken self-contradictory stand in the written statement. The defendant alleged that he affixed his signatures on blank stamp papers. The defendant also alleged that the plaintiff obtained writing from the defendant regarding purchase of Thrasher and old Tractor in the shape of agreement and its contents were not read over to him. The defendant has failed to explain whether his signatures were obtained on blank stamp paper or on writing, of which contents were not read over to the defendant. The defendant's aforesaid self-contradictory stand demolishes his entire version. On the other hand, the defendant has impliedly admitted the impugned agreement as well as his signatures on the agreement. The defendant has himself pleaded that he executed writing for purchase of Thrasher and old Tractor in the shape of agreement. The defendant thus admitted the execution of the agreement. The defendant also stated during cross-examination that he has not purchased Thrasher or old Tractor from the plaintiff. This statement of the defendant further demolishes the defendant's case. If the defendant had not purchased Thrasher or old Tractor from the plaintiff, there was no occasion for the defendant to execute any writing in the shape of agreement or to affix his signatures on blank stamp paper. The defendant also pleaded that stamp paper for the agreement was purchased by the plaintiff himself. However, the stamp paper purports R. S. A. No. 383 of 2011 (O&M) 5 to have been purchased by the defendant. The defendant did not examine the stamp vendor to depict that the stamp paper was purchased by the plaintiff and not by the defendant. Defendant had also allegedly made application Ex.D-1 to Senior Superintendent of Police for taking action against the plaintiff and others for alleged fraud. However, said application does not bear signatures of the defendant. The said application has also not been got proved by examining any official from the office of Senior Superintendent of Police to depict that any such application was at all given by the defendant to the police. There is no endorsement of receiving the said application on its carbon copy Ex.D-1. On the contrary, the defendant admitted his signatures on the impugned agreement. Moreover, in application Ex.D-1, the defendant admitted that he had appended his signatures on the impugned agreement in good faith. The defendant did not allege in application Ex.D-1 moved to the police that his signatures had been obtained on blank stamp paper. Thus, examined from any angle, it is manifest that plaintiff has duly proved execution of the impugned agreement by the defendant and payment of earnest money of Rs.90,000/- by the plaintiff to the defendant. Concurrent finding recorded to this effect by the courts below does not suffer from any infirmity, much less illegality or perversity. The said finding does not warrant interference in second appeal. The said finding is R. S. A. No. 383 of 2011 (O&M) 6 based on proper appreciation of evidence and is supported by cogent reasons. Learned counsel for the appellant contended that plaintiff was not ready and willing to perform his part of the agreement, and therefore, the suit could not be decreed even for alternative relief of refund of earnest money. The contention cannot be accepted. The trial court did observe that the plaintiff had failed to prove his readiness and willingness to perform his part of the contract because he did not prove his presence in the office of Sub Registrar on 31.05.2004 and for this reason, the trial court declined the relief of specific performance of the impugned agreement. However, even the said finding of the trial court has to be taken with a pinch of salt. Plaintiff has stated that he attended the office of Sub Registrar on 31.05.2004. It is the admitted case of the defendant that he was never ready and willing to execute the sale deed in terms of impugned agreement nor he went to the office of Sub Registrar on 31.05.2004. In addition to it, the plaintiff even sent notice dated 24.06.2004 requiring the defendant to execute the sale deed in terms of the agreement. The plaintiff filed the instant suit on 05.08.2004. These circumstances are sufficient to depict that plaintiff was always ready and willing to perform his part of the agreement and in fact, relief of specific performance of the agreement to sell should have been granted to the plaintiff. However, the plaintiff did not challenge the finding of the trial court to the contrary. In these circumstances, relief of R. S. A. No. 383 of 2011 (O&M) 7 refund of earnest money granted by the trial court to the plaintiff, as affirmed by the lower appellate court, cannot be reversed and set aside. For the reasons aforesaid, I do not find any merit in the instant second appeal. 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. April 18, 2011 ( L. N. MITTAL ) monika JUDGE