RSA No.2535 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2535 of 2010(O&M) Date of Decision: November 17, 2011 Siri Kishan .....Appellant v. Smt.Sushila Devi and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.M.K.Verma, Advocate for the appellant. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.7606-C of 2010 In view of the facts mentioned in the application, delay of 212 days in refiling the appeal is condoned. Application stands disposed of accordingly. C.M.No.7605-C of 2010 In view of the facts mentioned in the application, the same is allowed and appellant is allowed to make good the deficiency in Court fee. However, it has been stated by learned counsel for the appellant that deficiency in Court fee has already been made good. In view of this fact, the present application stands disposed of accordingly. RSA No.2535 of 2010 The present regular second appeal has been filed against judgment and decree dated 26.3.2009 passed by learned Additional District Judge, Rewari, dismissing appeal filed by present appellant-plaintiff against RSA No.2535 of 2010(O&M) -2- judgment and decree dated 16.1.2007 passed by learned Civil Judge (Junior Division), Rewari, vide which suit filed by present appellant-plaintiff for a decree for possession by way of specific performance of contract was dismissed I have heard learned counsel for the appellant and have gone through the whole record carefully including both the judgments passed by learned Courts below. Briefly stated, appellant-plaintiff filed this suit for a decree for possession by way of specific performance of agreement to sell dated 1.7.1997, allegedly executed by respondent-defendant no.1 in his favour. It was contended that `5,000/- was received by her as earnest money and the balance amount of `23,000/- was to be paid before the Sub Registrar on 31.12.1997. Further plea has been taken that though appellant-plaintiff was always ready and still ready to perform his part of the contract and, however, respondent-defendant no.1 refused to get the sale deed executed in his favour as per terms and conditions mentioned in the agreement to sell. On notice being issued, respondents-defendants no.1 and 2 filed joint written statement denying the very execution of agreement to sell by respondent-defendant no.1 in favour of present appellant-plaintiff. The receipt of any earnest money was also denied. Rather the plea has been taken that the agreement in dispute is a result of fraud and forgery and that thumb impression of respondent-defendant no.1 were obtained on blank paper by the appellant-plaintiff on the plea that her name was to be entered in the revenue record and the same was later on converted into an agreement to sell. Plea has been taken that the market value of the property in dispute at the time of agreement was `180/- per sq.yards and hence there was no RSA No.2535 of 2010(O&M) -3- question for respondent-defendant no.1 agreeing to sell the land in dispute for a total sum of `28,000/- only. Respondents-defendants no.3 and 4 filed their separate written statement by taking the plea that they are bona fide purchasers for valuable consideration. On appreciation of evidence, learned trial Court did not believe the version of only witness of agreement, Ex.PW6/1 examined by appellant- plaintiff, namely, Ramesh Chand PW7 and hence, it was held that appellant-plaintiff has failed to prove execution of agreement by respondent no.1 and has failed to prove the payment of earnest money of `5,000/- to her and hence, suit filed by present appellant-plaintiff was dismissed. This finding of fact recorded by learned trial Court was affirmed by learned Additional District Judge, Rewari, and the appeal filed by appellant-plaintiff was dismissed. It has been contended by learned counsel for the appellant- plaintiff that when once thumb impression of respondent-defendant no.1 on agreement Ex.PW6/1 has been admitted, learned Courts below have committed illegality in not relying upon the deposition of PW7 Ramesh Chand and appellant-plaintiff and that rather appellant-plaintiff has proved due execution of agreement Ex.PW6/1 by respondent-defendant no.1 and payment of `5,000/- as earnest money. However, there is no force in this contention of learned counsel for the appellant-plaintiff. Both the courts below have given sufficient reasons for discarding deposition of only witness examined by appellant- plaintiff, namely, Ramesh Chand PW7 and self serving statement of present appellant-plaintiff. RSA No.2535 of 2010(O&M) -4- Law is well settled that appellant-plaintiff is to stand on its own legs. It was for him to prove due execution of agreement Ex.PW6/1 by respondent-defendant no.1 on receipt of `5,000/-, as earnest money. It has been admitted by appellant-plaintiff that respondent-defendant no.1 is an illiterate pardanashin lady. The agreement was allegedly thumb marked by her. Hence, heavy onus lay upon appellant-plaintiff to prove that she thumb marked the said document after duly understanding its contents and after receiving `5,000/- as eanrest money. The only witness Ramesh Chand PW7 had deposed that he did not know as to who typed the original agreement and who brought the stamp paper for executing the agreement. Rather in the cross-examination he deposed that agreement was got written by husband of respondent-defendant no.1 and that he had brought the same in a written condition. He deposed that the agreement was not typed in his presence. He also deposed that even stamp paper was brought by husband of respondent-defendant no.1, whereas there is endorsement on the back of the agreement that the stamp paper was purchased by respondent-defendant no.1. Hence stamp paper was neither purchased in the presence of this witness nor the agreement was typed in his presence. Hence, both the Courts have come to the conclusion that there are material contradiction in the statements of both these witnesses. For arriving at this finding of fact, both the Courts have given sufficient reasons. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned judgments and decrees. Finding recorded by learned courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is RSA No.2535 of 2010(O&M) -5- based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 17.11.2011 (Ram Chand Gupta) meenu Judge