RSA No.1702 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1702 of 2009 Date of Decision: 16.9.2009 Rakesh Kumar ......Appellant Versus Sullan Devi and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Arvind Bansal, Advocate, for the appellant. HEMANT GUPTA, J. (Oral). The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for specific performance of agreement to sell dated 5.6.1998 in respect of the land measuring 16 kanals comprised in rectangle No. 27, Killa Nos. 17 and 18 situated within the revenue estate of village Kharkan, was dismissed. One Sultan Ram (defendant), predecessor-in-interest of the respondents herein, was owner of land measuring 16 kanals. The plaintiff alleges that an agreement to sell dated 5.6.1998 was executed by the defendant Sultan Ram, for sale of the aforesaid land in a total sum of Rs.2,20,000/- on receipt of earnest money of Rs.70,000/-. The RSA No.1702 of 2009 [2] sale deed was agreed to be registered on or before 5.6.1999. The plaintiff relies upon an endorsement dated 4.6.1999 wherein defendant has extended the time for registration of the sale deed for one year i.e. upto 4.6.2000 on receipt of another sum of Rs.20,000/-. Later, the defendant again extended the period for execution of the sale deed vide endorsement dated 1.6.2000 and agreed to execute the sale deed on 5.6.2001. Since on the aforesaid date, the defendant did not execute the sale deed though the plaintiff was present before the Sub Registrar, Guhla, the present suit for specific performance was filed on 29.10.2002. The said suit had been dismissed by both the Courts below. Learned counsel for the appellant has vehemently argued that the defendant has denied the agreement and the subsequent endorsements but the agreement dated 5.6.1998 is proved to be executed. Once the agreement is proved to be executed, the subsequent endorsements, which were also denied by the defendant would be deemed to have been proved. The first Appellate Court has dismissed the suit on the ground of prolonged and unexplained delay. It was argued that the said finding recorded by the first Appellate Court is not based upon the pleadings raised by the defendant. It is further contended that in any case, he is entitled to recovery of amount paid to the defendant-Sultan Singh. I have heard learned counsel for the appellant at length, but I do not find any merit in the present appeal. RSA No.1702 of 2009 [3] It was the stand of the defendant that there was no agreement to sell the land but there was in fact a transaction of loan. In fact the execution of the sale deed in pursuance of the agreement dated 5.6.1998, Exhibit P.2, has been deferred for a period of three years i.e. upto 4.6.2001. The said stand of the plaintiff shows that the intention of the plaintiff was not to seek performance of the agreement. The plaintiff has allegedly paid a sum of Rs.70,000/- out of the total sale consideration of Rs.2,20,000/-. Deferment of execution of sale deed for a period of three years is a strong circumstance of such agreement being not an agreement of sale of land. The learned first Appellate Court found that the attending circumstances relating to extension of one year duration each, shows that the real intention was of the transaction of loan. The Court considered that why there was extension of one year for two times when almost 1/3rd of the total sale consideration was already parted with by the plaintiff. The Court also found that there is no deposition on oath when the plaintiff appeared as PW5 to the effect that he approached the defendant on 4.6.2001 at his house, which is one day prior to the target date of 5.6.2001 in the execution of the sale deed. The Court also took into consideration the fact that after the extension, the plaintiff allegedly served notice Exhibit P.9 dated 14.5.2002 i.e. after 11 months of the agreed date for the registration of the sale deed. Another notice Exhibit P.10 dated 25.9.2002 was served upon the defendant for the reason that there was mistake regarding rate of land RSA No.1702 of 2009 [4] having crept in the earlier notice. It was, thus, found that from the date of agreement dated 5.6.1998, 4-1/2 years have passed without any readiness and willingness having been proved either explicitly or impliedly by any act or conduct on behalf of the plaintiff. It was, thus, held that the transaction between the parties was the transaction of loan and since the plaintiff has filed suit after 4-1/2 years of the agreement, the suit was dismissed. Both the Courts have recorded concurrent finding of fact on the basis of appreciation of evidence. The inferences drawn by the Courts below are on the basis of oral and documentary evidence adduced by the parties. Such inferences drawn are possible inferences of law and facts. Therefore, in the second appeal, the plaintiff cannot be permitted to seek re-appreciation of evidence to draw any other inference. Finding of fact recorded are sought to be disputed by way of re-appreciation of evidence. It could not be pointed out that any evidence has been misread or not taken into consideration. Consequently, I do not find any patent illegality or irregularity in the finding recorded, which may give rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. [ HEMANT GUPTA ] JUDGE 16.9.2009 vj/ds