RSA No.791 of 2010 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.791 of 2010 (O&M) Date of Decision : 08.03.2010 **** Jai Narain . . . .Appellant Versus Ram Kishan . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Gaurav Mohunta, Advocate for the appellant. **** RAKESH KUMAR JAIN, J. The plaintiff is in second appeal in a suit for declaration and permanent injunction, which has been dismissed by both the Courts below. The case set up by the plaintiff is that he had borrowed an amount of Rs.65,000/- from the defendant on 11.3.2004 for the purpose of marriage of his grand-daughter Savita. When he went to the house of the defendant for the purpose of returning the amount, defendant refused to receive it on the ground that the amount was given to the plaintiff in terms of agreement to sell dated 11.3.2004. It is alleged by the plaintiff that no such agreement to sell dated 11.3.2004 has been executed in favour of the defendant. Thus a decree for declaration was sought that the agreement dated 11.3.2004 be declared to be illegal, null and void and the defendant be directed to receive an amount of Rs.65,000/-, which was borrowed RSA No.791 of 2010 (O&M) - 2 - by the plaintiff for the purpose of marriage of his grand-daughter. In the written statement, it was alleged by the defendant that the plaintiff had agreed to sell suit land to him for a sum of Rs.1,30,000/- on 11.3.2004 and the sale deed was agreed to be executed on 24.5.2004. It was denied that plaintiff had ever came to the house of defendant to return the amount of earnest money. It was also alleged that defendant has already filed a suit for possession by way of specific performance of contract against the plaintiff and this suit has been filed in order to avoid the consequences of agreement. On the pleadings of the parties, relevant issues were framed. After the evidence was received on behalf of both the parties, both the Courts below have returned a concurrent finding of fact about the execution of agreement to sell. The relevant observations of the First Appellate Court are as under: - “After going through the evidence of DW2 Pawan Kumar and PW4 Balbir Singh, it is crystal clear that plaintiff executed the agreement to sell. Copy of which is Ex.D1. In his cross-examination, plaintiff has stated that amount of Rs.65,000/- was given about 3 months prior to the execution of writing. But this evidence of PW1 is contrary to his own pleading and in the plaint it has been clearly mentioned that amount of Rs.65,000/- was taken on 11.3.2004. After going through the evidence of PW1, Jai Narain, it is also clear that regarding the earlier money transaction between the plaintiff and defendant, the entry was made in a Bahi/copy in the village itself and they never visited the Tehsil regarding that loan transaction. It is also clear that the plaintiff Jai Narain has obtained Jamabandi etc. from the Patwari and that document was shown to the deed writer and this fact itself shows that the agreement to sell was executed by the plaintiff in RSA No.791 of 2010 (O&M) - 3 - favour of document and due to that reason they visited the Tehsil. It is clear from the evidence of DW3 that earlier he had advanced money to the plaintiff and a pronote was executed and after the return of amount, the said pronote and receipt was handed over to the plaintiff by the defendant. Merely because plaintiff performed the marriage of his grand daughter. It cannot be said that he has not executed the agreement to sell in favour of defendant and the agreement to sell in question is in fact a loan transaction. The authority titled as Gurbax Singh Vs. Labhu Ram, 1996(1) Civil Court Cases 9 relied upon by the learned counsel for the plaintiff is not at all applicable to the facts of the present. The terms and conditions mentioned in the document Ex.D1 clearly shows that the document in question is agreement to sell and all the terms and conditions have been mentioned. There is no clear cut evidence that when the plaintiff went to the house of the defendant to return the money before filing the present suit. The present suit was filed on 22.5.2004 and as per the agreement to sell Ex.D1, the loan amount was to be returned upto 24.5.2004. Therefore, it is clear that the plaintiff has filed the present suit before the date mentioned in the agreement. It is clear from the conduct of the plaintiff that he simply wants to avoid the consequences of the agreement to sell dated 11.3.2004. There is no evidence of fraud and in these circumstances, it is crystal clear that the document dated 11.3.2004 is regarding agreement to sell and the said agreement is not regarding loan transaction.” Moreover, the defendant’s suit for specific performance was decreed by both the Courts below against which the plaintiff herein (Jai Narain) filed RSA No.637 of 2010, which has already been RSA No.791 of 2010 (O&M) - 4 - dismissed by this Court vide its order dated 11.2.2010, which results into upholding the agreement to sell, which has been challenged by the plaintiff in this suit. In view of the above, I do not find any merit in the present appeal nor any substantial question of law is involved which needs adjudication. Hence, the present appeal is dismissed though without any order as to costs. (RAKESH KUMAR JAIN) 08.03.2010 JUDGE Vivek