RSA No.4865 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 4865 of 2009 (O&M) Date of Decision: December 21 , 2009 Sukhwant Rai ...........Appellant Versus Manoj Kumar ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.H.S.Baath, Advocate for the appellant. ** Sabina, J. Plaintiff-Manoj Kumar filed a suit for possession by way of specific performance. The suit of the plaintiff was decreed by the Civil Judge (Junior Division)Amritsar vide judgment and decree dated 6.10.2005. Aggrieved by the same, defendant-Sukhwant Rai filed an appeal and the same was dismissed by the learned District Judge, Amritsar vide judgment and decree dated 23.8.2006. Hence, the present appeal by the defendant. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 to 4 of its judgment reads as under:- “ 2. The facts, in brief, are that the plaintiff filed suit for possession of the house in dispute measuring four marlas situated in khasra no.509 in Gali Dhora Chauky, backside Maharaja Public RSA No.4865 of 2009 (O&M) 2 School, Tarn Taran, fully detailed in the heading of the plaint by way of specific performance of the agreement to sell dated 5.2.2001. In the alternative, he filed suit for the recovery of Rs.1,60,000/-; Rs.80,000/- as refund of earnest money/advance money and Rs.80,000/- as stipulated damages. He pleaded in the plaint that the defendant is the owner of the house in dispute in which electric connection and hand pump are also installed. The defendant agreed to sell this house in his favour vide ageement dated 5.2.2001 for Rs.1,00,000/- and received Rs.80,000/- as earnest/advance money and agreed to execute the sale deed in his favour on 31.8.2002 on the receipt of balance sale consideration. It was agreed between them that in case the defendant did not execute the sale deed on the appointed date he shall pay Rs.80,000/- as damages in addition to the refund of earnest/advance money and shall also remain liable for the execution of sale deed 31.8.2002, the date appointed for the execution of the sale deed, was holiday and 1.9.2002 was Sunday, so he went to the office of the Sub Registrar, Tehsil Complex, Tarn Taran on 2.9.2002 with balance sale consideration and other expenses and waited for the defendant whole of the day for getting the sale deed executed and registered in his favour but he did not turn up. Then he got his presence marked by getting an affidavit attested from Executive Magistrate, Tarn Taran. He served notice through registered post and under postal Certificate upon the defendant through his Advocate Pankaj Joshi. He requested the defendant to execute the sale deed in his favour as RSA No.4865 of 2009 (O&M) 3 per terms of the agreement but he did not do so and finally refused to admit his claim. He had been ready and willing and is still ready and willing to perform his part of the contract. Hence, this suit. 3. The suit was contested by the defendant. In his written statement he admitted that he is owner of the house in dispute. He denied the other contentions made in the plaint and inter-alia pleaded that the agreement is forged, false and fabricated document without consideration which does not bear his signatures and thumb impression. The same has been created by the plaintiff on account of the reason that his son Sandeep Kumar was serving in the shop of the plaintiff for the past of the year years upto 2001 and the plaintiff did paid salary for the last three years. A dispute between them due to non payment of that salary and in order to take revenge the plaintiff prepared the forged and fabricated document in order to harass him so that he may not claim salary of his son. When no such agreement was executed by him there was no question of executing the sale deed in favour of the plaintiff. Notice served by the plaintiff through his Advocate was false. He has no locus standi to file the suit for specific performance on the basis of false forged fictitious fabricated and fraudulent document. No cause of action has arisen to the plaintiff to file the suit. He prayed for dismissal thereof with special costs under Section 35A CPC 4. In replication to the written statement, the plaintiff admitted that the son of the defendant was serving at his shop who was not RSA No.4865 of 2009 (O&M) 4 paid salary for the last three years for his service regarding which a dispute had taken place between him and the defendant. He denied the other contentions made in the written statement and reiterated his averments made in the plaint. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the defendant entered into agreement with the plaintiff on 5.2.2001 and received consideration of Rs.80,000/- as earnest money?OPP 2. Whether plaintiff was always ready and willing and still willing for specific performance of his part of contract?OPP 3. Whether plaintiff has failed to fulfill his part of contract?OPP 4.Whether plaintiff is entitled to possession of suit property, by way of specific performance of contract?OPP 5.Whether suit is maintainable?OPD 6.Whether the alleged agreement dated 5.2.2001 is false and fabricated document?OPD 7. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves to be dismissed. Plaintiff-Manoj Kumar had filed a suit for possession by way of specific performance of the agreement to sell dated 5.2.2001. In order to prove the due execution of the agreement to sell, plaintiff examined Iqbal Singh, deed writer, PW3, Manjit Singh, attesting witness of the agreement to sell PW2. Plaintiff himself appeared in the witness box as PW5. The said witnesses deposed with regard to the due execution of the agreement to RSA No.4865 of 2009 (O&M) 5 sell by the defendant in favour of the plaintiff. The defendant, on the other hand, has failed to establish that the agreement to sell in question was a fabricated document. The defendant had failed to establish that the agreement to sell in question was not signed and thumb marked by him. The photograph of the defendant is also affixed on the agreement to sell Exhibit P2. Defendant had written in his own hand on the agreement to sell that he had received Rs.80,000/- in cash. In these circumstances, the Courts below rightly held that the execution of the agreement to sell was duly proved by the plaintiff. Plaintiff further succeeded in proving that he was ready and willing to perform his part of the contract. In this regard, plaintiff proved on record his affidavit Exhibit P4 ,as per which, he had got his presence marked on 2.9.2002 in the Office of the Sub Registrar to perform his part of the contract. There is no force in the argument raised by the learned counsel for the appellant that the house in dispute was the only house owned by the defendant and decree for specific performance is not liable to be passed in this case. Learned District Judge in the judgment has given a finding of fact that the defendant had failed to establish that this was the only house owned by the defendant. Learned counsel for the appellant has failed to counter the said finding of fact. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge December 21, 2009 arya