RSA No.3913 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3913 of 2008 Date of Decision:04.03.2009 Vijay Kumar ....appellant Versus Nirdosh Kumar .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Vipin Mahajan,Advocate for the appellant **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for possession by way of specific performance of the agreement of sale dated 12.09.1997 with regard to the suit land, has been decreed. Briefly stated, the case of the plaintiff is that the defendant had purchased the suit land from one Sarabjit Singh, for consideration of Rs.20,000/-vide sale deed dated 15.02.1993. Thereafter, he had raised construction in the shape of four shops on the ground floor and two rooms on its first floor. He had also constructed a boundary wall around the vacant plot having a gate therein. It was further alleged that defendant agreed to sell the suit land vide agreement to sell dated 06.06.1997 in favour of the plaintiff for consideration of Rs.2,20,000/- and received an amount of Rs.1,20,000/- as earnest money at the time of execution of the agreement. The defendant handed over the original sale deed dated 15.02.1993 to the defendant at the time of execution of the sale deed dated 06.06.1997 and possession of the shop was also delivered to the plaintiff. RSA No.3913 of 2008 2 The plaintiff is in continuous possession of the property in dispute. The remaining amount of sale consideration was to be paid by the plaintiff to the defendant on 08.12.1997 before the Sub-Registrar at the time of registration of the sale deed. It was further pleaded that defendant executed another agreement of sale dated 12.09.1997 agreeing to sell the suit property in favour of the plaintiff for a consideration of Rs.2,20,000/- by adjusting the advance amount of Rs.1,20,000/-received by him vide agreement dated 06.06.1997 and also received further amount of Rs.60,000/- from the plaintiff out of the remaining sale consideration. Thus, the defendant had received a sum of Rs.1,80,000/- by way of advance and an amount of Rs.40,000/- remained to be paid by him. It was further pleaded that the plaintiff was ready and willing to perform his part of the agreement and he remained present in the Office of Sub-Registrar on the stipulated date i.e.08.12.1997 along with balance consideration of Rs.40,000/- but the defendant did not turn up. Hence this suit. Upon notice the defendant appeared and filed written statement raising various preliminary objections. On merits, the averments made in the suit were denied except that defendant was the owner of the property in dispute being vendee from Sarabjit Singh vide sale deed dated 15.02.1993. It was further stated that the plaintiff had taken the sale deed dated 15.02.1993 from the defendant on the pretext that he was to obtain certain amount of loan from the bank and he needed surety of the defendant being owner of the property in question and the plaintiff also obtained signatures of the defendant on some blank papers and later on converted these papers into agreement in question. It was specifically stated that in fact the defendant did not execute any agreement of sale of his property nor he received any amount from the plaintiff. It was pleaded that the said agreement was the result of fraud and misrepresentation on the part of the plaintiff. Dismissal of the suit was prayed for. RSA No.3913 of 2008 3 After hearing learned counsel for the parties and perusal of the record, the trial court decreed the suit of the plaintiff-respondent for possession by way of specific performance of the agreement of sale dated 12.09.1997. Against the aforesaid decision, the respondent-appellant went in appeal before the Lower Appellate Court which was dismissed. Feeling aggrieved therefrom, the defendant has filed the instant appeal. Learned counsel for the appellant has vehemently argued that decree for specific performance could have not been granted in favour of the respondent without framing the issue with regard to readiness and willingness on the part of the purchaser to perform his part of the contract and thus the judgment and decree of the courts below are liable to be set aside. I have heard learned counsel for the appellant and perused the record of the appeal. Both the courts below on appreciation of evidence have recorded a finding of fact that plaintiff-respondent has fully proved the execution of agreement of sale Ex.P-1 and Ex.P-2, by PW1, PW2 and PW3 who are the attesting witnesses of agreement of sale and the readiness and willingness to perform his part of the contract has also been proved by the plaintiff-respondent by proving the affidavit Ex.P-4 showing his presence before the Sub-Registrar for execution of the sale deed but the appellant had failed to turn up and execute the sale deed in favour of the respondent. The courts below also found that the plea of fraud and misrepresentation coined by the appellant is without any merit as the same was merely put forth in order to escape the liability of respecting the agreement to sell Ex.P-1 and Ex.P-2 and the appellant has failed to prove any fraud committed by the plaintiff-respondent for obtaining signatures of RSA No.3913 of 2008 4 the appellant on blank papers. Faced with this situation, learned counsel for the appellant has argued that when a person states that he put the signatures on blank paper that does not mean that he has admitted the execution of the document and the burden to prove execution of such document was on the plaintiff. The contention of the appellant is misconceived. The appellant had admitted his signatures on the disputed agreement to sell. However, he failed to explain the reasons for appending his signatures on the blank papers. In fact, it is the plea of the appellant that he handed over the registered sale deed of the property in dispute to the plaintiff and also signed the blank papers. Therefore, the onus was upon him to show that fraud and fabrication was played upon him in converting these blank papers into agreement to sell. There is not an iota of evidence to support the plea of the appellant. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 04.03.2009 neenu