RSA No.4646 of 2010(O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4646 of 2010(O & M) Date of Decision: 14.03.2011. Raghu Nath ……Appellant Versus Balvinder Singh and others. …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. N. L. Sammi, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.13775-C of 2010 Allowed as prayed for. CM No.13776-C of 2010 Although sufficient ground for condonation of delay of 176 days in filing the appeal is not made out, yet adopting liberal approach, the application is allowed and aforesaid delay is condoned. Main Appeal RSA No.4646 of 2010(O & M) - 2 - Defendant No.2-Raghu Nath has filed the instant second appeal, having failed in both the Courts below. Respondent Nos.1 to 5/plaintiffs, who are sons, daughter and widow of Puran Chand, filed suit against appellant and proforma respondent Nos.6 to 11 alleging that defendant Nos.1 and 2 agreed to sell the suit land measuring 15 kanals 19 marlas to Puran Chand (predecessor of the plaintiffs) at the rate of Rs.1,00,000/- per acre and received Rs.91000/- as earnest money and executed agreement dated 28.01.1999. Sale deed was to be executed upto 27.07.1999. Puran Chand always remained ready and willing to perform his part of the contract, but the defendants committed breach thereof. They tried to alienate the suit land whereupon suit for permanent injunction was instituted, but the same was got dismissed as infructuous, after date stipulated for execution of the sale deed expired. On 27.07.1999, the date stipulated for execution of the sale deed, Puran Chand went to the office of Sub-Registrar to get the sale deed executed in terms of the agreement, but defendant Nos.1 and 2 did not turn up. On the contrary, defendant No.1 has sold 8 kanals land out of the suit land to defendant Nos.3 to 7 vide registered sale deed dated 29.10.1999 which is null and void. Puran Chand died on 28.09.1999. Consequently, the suit was filed by his legal heirs for possession of the suit land by specific performance of the impugned agreement and also for seeking declaration that aforesaid sale deed dated 29.10.1999 is null and void. RSA No.4646 of 2010(O & M) - 3 - Defendant Nos.1 and 2 inter alia pleaded that they purchased the suit land in the year 1998 from Manmohan Kaur and at that time they had taken assistance of Rs.55000/- from one Ram Kumar which was to be repaid in the month of July. Ram Kumar introduced defendant Nos.1 and 2 to Puran Chand, who advanced Rs.70000/- to defendant Nos.1 and 2 on interest at the rate of 3% per month for 6 months. The impugned agreement was executed as collateral security for repayment of the said loan. However, there was no intention to sell the suit land. On 11.06.1999, defendant Nos.1 and 2 approached Puran chand along with Ram Kumar, Kiran Pal etc. and tendered him Rs.91000/-, after entering into agreement to sell land measuring 7 kanals 9 marlas with defendant Nos.3 to 7, but Puran Chand refused to receive the amount. Some other pleas were also raised. Defendant Nos.3 to 7 also contested the suit and claimed themselves to be bonafide purchasers of the suit land for consideration without notice of the impugned agreement. They also denied the execution of the impugned agreement while defending the impugned sale deed. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Yamuna Nagar at Jagadhri vide judgment and decree dated 22.02.2008 decreed the plaintiffs’ suit. Against judgment and decree of the trial Court, defendant No.2 filed first appeal and defendant Nos.3 to 7 also filed separate first appeal. Both the said first appeals have been RSA No.4646 of 2010(O & M) - 4 - dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated 26.11.2009. Feeling aggrieved, defendant No. 2 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Agreement in question stands admitted by defendant Nos.1 and 2. Plaintiffs have also examined scribe of the impugned agreement and also one attesting witness of the agreement to prove the same. The agreement has thus also been proved by the plaintiffs by leading cogent evidence. Plea of defendant Nos.1 and 2 that the impugned agreement was executed as collateral security for repayment of the loan with interest has not been proved. Defendant Nos.1 and 2 alleged that the loan of Rs.70000/- was for six months at the rate of 3% per month interest and after six months, defendant Nos.1 and 2 offered Rs.91000/- to Puran Chand. However, interest for six months at the rate of 3% per month on principal amount of Rs.70000/- would come to Rs.12,600/- only, making the total due amount to be Rs.82600/- and it is not explained as to why defendant Nos.1 and 2 allegedly offered Rs.91000/- to Puran Chand. Moreover, if Puran Chand had refused to accept the said amount on 11.06.1999 as pleaded by defendant Nos.1 and 2, it is not explained as to why defendant Nos.1 and 2 did not serve any notice on Puran Chand after 11.06.1999 to accept the said amount. It may be added that Raghu Nath-defendant No.2-appellant while appearing in the RSA No.4646 of 2010(O & M) - 5 - witness box even denied the execution of the impugned agreement, although in the written statement, execution of the impugned agreement was admitted. Defendant No.2 also stated in the witness box that his signatures were taken on blank papers. This is also contradictory to the stand taken in the written statement by defendant Nos.1 and 2. Raghu nath also stated that thumb impressions of his father Sawan Ram-defendant No.1 were also obtained on blank papers. Thus evidence led by defendants in the form of testimony of defendant No.2 is contradictory to the plea taken in the written statement. Defendant Nos.1 and 2 also alleged that they had taken loan of Rs.70000/-, but according to impugned agreement, they received Rs.91000/- as earnest money from the plaintiffs’ predecessor Puran Chand. As noticed hereinbefore, execution of the impugned agreement was admitted in the written statement itself by defendant Nos.1 and 2 and has also been proved by plaintiffs by leading cogent evidence. The plaintiffs’ predecessor always remained ready and willing to perform his part of the contract. He had to file injunction suit when defendant Nos.1 and 2 threatened to alienate the suit land prior to the date stipulated in the agreement for execution of the sale deed. Even on 27.07.1999, the date stipulated for execution of the sale deed, Puran Chand went to the office of Sub-Registrar to get the sale deed executed, but the defendants did not turn up. RSA No.4646 of 2010(O & M) - 6 - As regards plea of defendant Nos.3 to 7 that they are bonafide purchasers of the suit land for consideration without notice of the impugned agreement, the same is also completely untenable. Plaintiffs’ predecessor had instituted injunction suit to restrain defendant Nos.1 and 2 from alienating the suit land. Instant suit was also filed on 21.10.1999 whereas sale deed in favour of defendant Nos.3 to 7 regarding part of the suit land is dated 29.10.1999. Thus the said sale deed was executed during pendency of the instant suit and is, therefore, hit by doctrine of lis pendens. The question of defendant Nos.3 to 7 being bonafide purchasers of the suit land for consideration does not arise when Puran Chand had earlier instituted injunction suit and when even instant suit was instituted by the plaintiffs before sale deed was executed in favour of defendant Nos.3 to 7. Both the Courts below have arrived at concurrent finding in favour of the plaintiffs. The said finding is fully justified by the evidence on record. Detailed reasons have been recorded by the Courts below to arrive at the said finding which is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Defendants have miserably failed to prove their case whereas plaintiffs have led cogent and credible evidence to substantiate their claim. Consequently concurrent finding recorded by both the Courts below does not warrant RSA No.4646 of 2010(O & M) - 7 - interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is completely devoid of any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 14.03.2011 A.kaundal