R.S.A. No. 3383 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3383 of 2009 (O&M) Date of decision: 10.1.2011 Raj Singh ......Appellant Versus Raj Kumar .......Respondent ********* CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Padamkant Dwivedi, Advocate, for the appellant. Mr. R.K. Girdhar, Advocate, for the respondent. **** SABINA, J. Plaintiff filed a suit for specific performance of agreement to sell dated 24.12.2001. The suit filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 26.9.2005. Aggrieved by the same, defendant preferred an appeal and the same was dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 14.12.2006. Hence, the present appeal by the defendant. The case of the plaintiff in brief was that defendant had agreed to sell the land in question to him vide agreement to sell R.S.A. No. 3383 of 2009 (O&M) 2 dated 24.12.2001. At the time of execution of agreement to sell ` 85,000/- were paid as earnest money whereas the remaining amount of ` 15,000/- was to be paid at the time of execution of the sale deed on or before 19.12.2002. The case of the plaintiff further was that on 19.12.2002 he remained present in the office of Sub- Registrar, Guruhar Sahai for the purpose of execution of the sale deed but the defendant had failed to appear. The case of the defendant, on the other hand, was that Subhash Chander, attesting witness to the agreement to sell, was running the business of a commission agent. Some dispute had arisen between Subhash Chander and the defendant. Plaintiff was the brother-in-law of Subhash Chander. Subhash Chander had obtained thumb impressions of the defendant on some blank non-judicial as well as on plain papers. Defendant had settled his accounts with Subhash Chander yet the suit had been falsely filed against the defendant. It was also denied that the defendant had received earnest money from the plaintiff. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the defendant entered into an agreement to sell dated 24.12.2001 with the plaintiff for land mentioned in the head note of the plaint ? OPP 2. Whether the plaintiff is entitled to seek specific performance of the agreement ? OPP 3. If issue No.2 is not proved, whether the plaintiff is R.S.A. No. 3383 of 2009 (O&M) 3 entitled to recover Rs. One lac (i.e. Rs.85,000/- as principal amount and Rs.15,000/- as earnest money) ? OPP 4. Whether the plaintiff is entitled to recover interest ? If so at what rate ? OPP 5. Whether the suit is not maintainable ? OPD 6. Whether the suit is time barred ? OPD 7. Relief. Learned counsel for the appellant has submitted that the appellant had not executed the agreement to sell in favour of the plaintiff. In fact, the plaintiff had obtained thumb impressions of the appellant on some plain papers and had later converted the same to the agreement to sell in question. There was no occasion for the appellant to sell the only land available with him. Learned counsel for the respondents, on the other hand, has submitted that the plaintiff had been successful in proving the due execution the agreement to sell in question and, hence, the courts below had rightly decreed the suit of the plaintiff. After hearing learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. The plaintiff in order to prove the due execution of the agreement to sell in question examined P.W.2 Ram Ditta, attesting witness of the agreement to sell in question, and himself appeared in the witness box as P.W.1. Both the courts below after appreciating the evidence led by the parties on record had given finding of fact that the plaintiff had been successful in proving the due execution of R.S.A. No. 3383 of 2009 (O&M) 4 the agreement to sell in question. Plaintiff had further proved on record Ex.P-2, his application to mark his presence in the office of Sub-Registrar, Guruhar Sahai on 19.12.2002. The said application was returned to the plaintiff after an endorsement was made by the Sub-Registrar, Guruhar Sahai in this regard. This fact establishes that the plaintiff was always ready and willing to perform his part of the contract. On the other hand, defendant had failed to establish that the agreement to sell did not bear his thumb impression. The learned trial Court in para 10 of the impugned judgment and decree has observed that the defendant had admitted his thumb impression on agreement Ex.P1 stating that he had dealings with the plaintiff who was doing the business of commission agent. In his cross- examination, defendant stated that he had not sold any crop at the commission agent shop of the plaintiff for the last 7-8 years. Defendant further stated in his cross-examination that the plaintiff had never obtained his thumb impressions on stamp papers. The agreement to sell in question was, admittedly, executed on a stamp paper. In these circumstances, the learned trial Court rightly concluded that the defendant had failed to establish that agreement Ex.P1 had not been executed by him. Defendant had not examined any expert to establish that the thumb impression on agreement to sell Ex.P1 were not his. The defendant had also failed to establish his plea that his thumb impressions had been obtained on blank papers by the plaintiff. Since the plaintiff had been successful in R.S.A. No. 3383 of 2009 (O&M) 5 establishing his case, the courts below had, thus, rightly decreed the suit of the plaintiff. The fact that the plaintiff by way of agreement to sell in question has sold the only land belonging to him cannot be taken in consideration at this stage. Apparently, for some legal necessity appellant must have agreed to sell his land to the plaintiff. No substantial question of law arises in this case which would warrant interference by this Court. Dismissed. (SABINA) JUDGE January 10, 2011 Anand