R.S.A.No. 1715 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1715 of 2009 (O&M) Date of decision: 18.8. 2009 Mohinder Pal ......Appellant Versus Daya Pal .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Sanjeev Pandit, Advocate, for the appellant. **** SABINA, J. Plaintiff Daya Pal filed a suit for possession by way of specific performance of agreement to sell, which was partly decreed by the Additional Civil Judge (Sr.Divn.) Hoshiarpur vide judgment and decree dated 19.1.2005. Both the parties went in appeal and the same were dismissed by the Additional District Judge, Hoshiarpur vide judgment and decree dated 17.11.2008 and the findings of the trial Court were affirmed. Hence, the present appeal by the defendant. R.S.A.No. 1715 of 2009 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 3 and 4 of its judgment, are as under:- “3. In brief, the case of the plaintiff is that defendant No.1 made representation, having a valid title in the land in dispute, which he wanted to sell and the plaintiff acting upon the representation of the defendant No.1 agreed to purchase the suit land in good faith, for a sale consideration of Rs.6,87,500/-, which led to execution of agreement to sell dated 1.9.1998. Defendant No.1 received Rs.1,50,000/- as earnest money, agreeing to execute and get registered the sale deed on or before 31.7.1999. On enquiry made by plaintiff, he came to know that land belonging to Smt. Durga Devi, was inherited on her death, by her legal heirs namely Jagan Nath and Mehar Chand to the extent of ½ share each and Amar Nath to the extent of ½ share; that defendant No.1 had purchased the land in dispute from Mehar Chand, defendant No.2. In order to avoid any complication and for his satisfaction, plaintiff demanded copy of the sale deed from defendant No.1 and also desired to meet the vendor of the defendant No.1. Plaintiff also tried to locate the said vendor, but in vain as address mentioned in the sale deed was incomplete and it was not possible to locate him. Plaintiff, however, R.S.A.No. 1715 of 2009 (O&M) 3 always remained ready and willing to perform his part of the agreement and defendant No.1 was requested to come to the office of Sub Registrar on 2.8.1999 along with his vendor, as on 31.7.1999 and 1.8.1999, the office of Sub Registrar was closed being Saturday and Sunday. Plaintiff on 2.8.1999, remained present in office of Sub Registrar, with the balance amount of sale consideration and necessary expenses and waited till 5.00 p.m. and got his presence marked, but the defendant No.1 did not turn up. His absence showed that his title was defective. A notice dated 18.8.1999 was then got served upon defendant No.1 by the plaintiff through his counsel, vide which defendant No.1 was directed to give correct address of defendant No.2 and to arrange meeting with him within a month but defendant No.1 did not give correct and complete address of defendant No.2 and also failed to arrange meeting with him. However, defendant No.1 gave reply to the notice got issued by the plaintiff. It was further alleged that from the conduct of the defendant No.1, it was clear that his title was defective and in case the vendor of defendant No.1 was actual Mehar Chand was exclusive owner of the land in dispute, then plaintiff was ready and willing to perform his part of the contract, to purchase the land in dispute and for this purpose, R.S.A.No. 1715 of 2009 (O&M) 4 presence of defendant No.2 was necessary. It was also stated that otherwise, it was not in the interest of plaintiff to perform his part of the contract and he was entitled to get refund of the amount paid by him with interest at the rate of 12% per annum and Rs. 3 ½ lacs, as damages on account of false representation made by defendant No.1. 4. Upon notice, defendant No.1 appeared and filed written statement, taking preliminary objections that plaintiff has tampered with the agreement to sell and as such, is not entitled for specific performance or any other relief. The original date fixed for execution of sale deed was 31.1.1999, but with the tampering in the original agreement, plaintiff has changed it as 31.7.1999; plaintiff is estopped from claiming specific performance as vide notice dated 10.8.1999, he has given up his right to claim specific performance and to have sale deed executed in his favour. On merits, it is stated that it was purely a business deal and plaintiff after satisfying himself about the title of the answering defendant, had agreed to purchase the suit land and an agreement to sell was executed and an amount of Rs.1,50,000/- was received by defendant No.1 as earnest money. It was further stated that last date fixed for execution of sale deed was 31.1.1999 and not 31.7.1999. Plaintiff could not arrange R.S.A.No. 1715 of 2009 (O&M) 5 the balance sale consideration by 31.1.1999 and he showed his inability to pay the balance sale consideration and refused to get the sale deed executed and plaintiff after 31.1.1999, taking undue advantage of the fact that defendant No.1 was not in possession of copy of the agreement, made overwriting and interpolation in the original agreement and altered the date from 31.1.1999 to 31.7.1999. Plaintiff was not ready and willing to perform his part of the agreement. The answering defendant got his presence marked in the office of Sub Registrar. The answering defendant had purchased the suit property from defendant No.2, who was absolute owner of the property in dispute. Plaintiff never demanded any document from answering defendant nor asked for meeting with defendant No.2 and could inspect the revenue record. There was no occasion for defendant No.1 to come present on 1.8.1999 in the office of Sub Registrar.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant has executed agreement to sell dated 1.9.1998? OPP 2. Whether the plaintiff was ready and willing to perform his part of agreement? OPP R.S.A.No. 1715 of 2009 (O&M) 6 3. Whether the plaintiff is entitled to possession of the suit property? OPP 4. Whether plaintiff is entitled to recover an amount of Rs.3,50,000/- as an alternative relief? OPP 5. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 1 6. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit. The execution of the agreement to sell in question dated 1.9.1998 is not in dispute. The case of the appellant is that the date in the agreement to sell for execution of the sale deed had been changed from 31.1.1999 to 31.7.1999. The case of the appellant further is that he had remained present in the office of the Sub Registrar on 31.7.1999 but the plaintiff had failed to appear and perform his part of the contract. In order to establish that the date for execution of the sale deed was changed from 31.1.1999 to 31.7.1999, defendant examined DW-1 Arvind Sood, handwriting and finger print expert. The said witness gave his report Ex.DW 1/A to the effect that in the agreement to sell, the date had been changed from 31.1.1999 to 31.7.1999. However, the defendant was further required to establish that the date in question had been changed after the execution of the agreement to sell in question and without his consent but there is no other independent evidence in this R.S.A.No. 1715 of 2009 (O&M) 7 regard to establish this fact. The appellant could have examined the scribe of the agreement who could have established that in fact, he had scribed the date for execution of the sale deed as 31.7.1999 and thereafter it had been tampered with. Paramjit Singh, attesting witness to the agreement to sell was examined by the plaintiff as PW-2 and he has deposed to the effect that the date fixed for execution of the sale deed was 31.7.1999. In these circumstances, no ground for interference by this Court is made out. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 18, 2009 anita