Regular Second Appeal No.1635 of 2011 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No.1635 of 2011 Date of Decision: 12.7.2011 Sampuran Singh …Appellant Versus Ram Dhari …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. S.K. Jain, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) The present regular second appeal has been preferred by the defendant to the suit. The suit, preferred by the plaintiff/respondent, was decreed by the trial Court, vide its judgment and decree dated 14.5.2008. Feeling not satisfied with that outcome, the present appellant/defendant preferred an appeal, which was also dismissed by the Court of Additional District Judge, Kurukshetra, vide its judgment and decree dated 18.1.2011. Hence, the present regular second appeal. As per the averments made in the suit, an agreement to sell dated 3.7.2002 was executed by the defendant for sale of land measuring 8 kanals, details and description whereof are given in the headnote of the plaint. It was pleaded that as per the revenue record, the defendant was recorded as an owner of the suit land in the jamabandi for the year 1999-2000. It was stated in the agreement to sell Regular Second Appeal No.1635 of 2011 2 dated 3.7.2002 that the defendant had agreed to sell suit land along with the right of rasta, right in tube-well with electricity etc. to the plaintiff for a total sale consideration of ` 3,50,000 and he had received a sum of ` 1,10,000 as an earnest money. The said agreement to sell and the receipt were duly witnessed by the attesting witnesses, namely Balwant Singh and Baldev Singh. The agreement to sell was scribed by Singh Ram, Deed Writer, Ladwa. The factum of execution of agreement to sell was duly noticed in the register of the Deed Writer by making an entry to this effect. The defendant has also put his thumb impression on the agreement to sell. As per the terms & conditions of the agreement to sell, the sale deed was to be executed on or before 27.8.2002. It was also agreed in the agreement to sell that in case the defendant failed to perform his part of contract, the plaintiff would have an option to get the sale deed executed through the competent Court of law. In the alternative, he could also recover double the amount of earnest money. In case of failure on the part of the plaintiff, the defendant would be entitled to forfeit the amount of earnest money. It was specifically pleaded in the suit that on the date fixed i.e. 27.8.2002, the plaintiff remained present in the office of Sub Registrar, Ladwa, along with the sale consideration and the money required for purchase of stamp papers along with registration charges. The plaintiff had gone to the office of Sub Registrar, Ladwa, after informing the defendant and waited for him throughout the day but the defendant had not turned up to perform his part of contract. Therefore, after waiting sufficiently, the plaintiff got an affidavit attested from the Magistrate Ist Class, Ladwa, wherein readiness and willingness to perform his part of contract was Regular Second Appeal No.1635 of 2011 3 reflected. After 27.8.2002, the plaintiff went to the village of defendant, tendered the balance amount of sale consideration and requested him to execute the sale deed as per the terms of agreement to sell dated 3.7.2002. The defendant refused to admit the claim of plaintiff and threatened him to alienate the suit land. Therefore, the plaintiff served a legal notice dated 28.8.2002 through his counsel Mr.Labh Singh, Advocate, of Kurukshetra and called upon the defendant to execute the sale deed within a period of seven days of receipt of the notice. This attempt also failed. Then at last the plaintiff filed a suit for possession by way of specific performance of contract/agreement to sell dated 3.7.2002. Upon notice, the defendant caused appearance and filed his written statement, wherein preliminary objections have been raised regarding locus standi of the plaintiff to file the suit and subsistence of contract between the parties was denied. It was further averred that the plaintiff has no cause of action to file the present suit. It was stated that true facts have been suppressed from the Court. The pleadings made in the plaint, were controverted by stating that the defendant had borrowed a sum of ` 1,00,000 from the plaintiff at the rate of 2% per month interest on 3.7.2002. The plaintiff had obtained signatures and thumb impression of the defendant on blank stamp papers as security of the said amount of ` 1,00,000. However, the plaintiff himself had entered the amount of ` 1,10,000 in the said document and forged it as agreement to sell. A forgery has been committed by the plaintiff for which he is liable to be prosecuted under the provisions of Indian Penal Code. It was stated that the defendant is ready and willing to repay the amount of ` 1,00,000 along with interest as agreed between the parties. It was further stated Regular Second Appeal No.1635 of 2011 4 that the question of readiness and willingness on the part of the plaintiff never arose. The legal notice, issued by the plaintiff, was replied and rather the defendant had issued a prior notice to the plaintiff. The plaintiff has no cause of action to file the suit. After completion of the pleadings, the following issues were drawn by the trial Court:- “1. Whether the defendant entered into agreement to sell dated 3.7.2002 to sell the suit property to the plaintiff? OPP 2. Whether the plaintiff is always ready and willing to perform his part of agreement but the defendant failed to perform his part of agreement? OPP 3. if both the above issues proved in affirmative, whether the plaintiff is entitled to decree for possession by way of specific performance of agreement to sell dated 3.7.2002? OPP 4. Whether the present suit is not maintainable in its present form? OPD 5. Whether the suit of the plaintiff is time barred? OPD 6. Whether the plaintiff has concealed the true and material facts from the Court, if so, its effect? OPD 7. Whether the plaintiff is estopped by his own act and conduct from filing of the Regular Second Appeal No.1635 of 2011 5 present suit? OPD 8. Relief.” The parties to the suit led their evidence. The trial Court, vide its judgment dated 14.5.2008, decided issues No.1 to 3 in favour of the plaintiff/respondent and observed as under:- “12. After going through the evidence oral as well as documentary I am of the considered opinion that plaintiff has proved before the Court that defendant executed agreement to sell dated 03.07.2002 and at the same time received earnest money of ` 1,10,000. Agreement dated 03.07.2002 is Ex.P2 and in order to prove the same plaintiff himself appeared into witness box as PW.1 and tendered his affidavit Ex.PW.1/A, in which he has supported all the facts mentioned in the plaint. PW.3 Baldev Singh is attesting witness who has stated that agreement to sell dated 03.07.2002 was typed at the instance of Sampuran Singh and same was read over to defendant and after that defendant put his thumb impression on the same and also received ` 1,10,000. PW.2 Singh Ram has stated that he has typed the agreement to sell Ex.P2 at the instance of Sampuran Singh and Ram Dhari, same was read over to both parties who have put their thumb impression as well as their signature on the same. Ram Dhari has paid amount of ` 1,10,000 as Regular Second Appeal No.1635 of 2011 6 earnest money to defendant. He has entered the agreement to sell at his register at Sr. No. 162. PW.4 Ramesh Chand, Registry Clerk, has stated that on affidavit Ex.P3 Naib Tehsildar Rajbir Singh has signed as Executive Magistrate...” The trial Court further held that the appellant/defendant failed to adduce any cogent evidence by which he could rebut the evidence of the plaintiff. The trial Court held that the plaintiff has proved that he was always ready and willing to perform his part of contract but due to fault of the defendant, the sale deed could not be executed. Issues No.4 to 7 were also decided in favour of the plaintiff and against the defendant. While determining issue No.8 of relief, the trial Court decreed the suit with costs and directed the defendant to execute sale deed in favour of the plaintiff in consonance with the agreement to sell dated 3.7.2002 after receiving the remaining amount of sale consideration. On failure on the part of the defendant, the plaintiff was held entitled to get the sale deed executed through the Court. The plaintiff was also held entitled to possession. As stated earlier, the appeal filed by the appellant was dismissed. The lower Appellate Court held as under:- “10...Once the signature is accepted, the onus to prove that agreement to sell was got executed from him by deception or forgery shifts upon the defendant. Defendant himself appeared as DW.1 and he stated that he had taken loan from the plaintiff in the sum of ` 1,10,000 on interest at the Regular Second Appeal No.1635 of 2011 7 rate of 2% per month. During cross-examination, he stated that he and Ram Dhari were present at that time. Defendant also examined Naresh Kumar as DW.2 and he supported the stand of defendant in examination-in-chief, but during cross-examination, he stated that he, Ram Dhari and Sampuran Singh were present. Statements of DW.1 and DW.2 are contradictory. Sampuran Singh himself stated that he and Ram Dhari were present and no other person was present, while DW.2 stated that he, Sampuran Singh and Ram Dhari were present. Meaning thereby DW.2 was not present at the time of execution of agreement to sell and so the plea taken by him regarding taking loan by defendant from the plaintiff is not acceptable. Even otherwise, the oral evidence is generally fragile in nature as it can be easily maneuvered by the concerned parties. It can, therefore, be acted upon provided that it is unimpeachable on any reasonable ground. The evidence placed on file by defendant is not sufficient to prove the alleged forgery or fraud...” Mr. S.K. Jain, Advocate, appearing for the appellant/defendant, has referred to the cross-examination of the plaintiff, who appeared as PW.1 and laid much emphasis thereupon, wherein it is stated as under:- “...I had gone to the office of Sub Registrar on Regular Second Appeal No.1635 of 2011 8 27.8.2002. I was accompanied by Baldev Singh witness, Krishan Chand, Nambardar, and Sampuran Singh, defendant, was also with me...” Relying upon this part of the cross-examination of PW.1 Ram Dhari, plaintiff/respondent, learned counsel for the appellant submitted that this Court should infer that the appellant/defendant was ready and willing to perform his part of the agreement as he was present along with the plaintiff. Therefore, the affidavit and the pleading made that the defendant had not come present is of no significance, rather the plaintiff has not approached the Court with clean hands. Learned counsel for the appellant has further placed reliance upon N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Others 1996 (1) Civil Court Cases 27 (S.C.) to contend that the continuous readiness and willingness on the part of plaintiff is a condition precedent to grant relief of specific performance. This circumstance is material and relevant and is required to be considered by this Court while granting or refusing to grant the relief. Thus, learned counsel contends that in view of the admission in the cross-examination that Sampuran Singh, present appellant, was present in the office of the Sub Registrar on the day when the sale deed was to be executed, should be sufficient to infer readiness and willingness on his part. On facts, the above said judgment is not applicable, to dislodge the concurrent finding, recorded by both the Courts below, that the plaintiff/respondent was always ready and willing to perform his part. Rather the appellant/defendant, from the very beginning, has denied the execution of agreement to sell and taken a stand that since the agreement to sell Ex.P2 is a fraudulent document, Regular Second Appeal No.1635 of 2011 9 he was not bound to execute the sale deed. I have gone through a copy of the deposition of PW.1 Ram Dhari, plaintiff, produced by the learned counsel, wherein he clarified that when he got himself marked as present on 28.7.2002 and on that day Sampuran Singh, defendant, was not present. Therefore, the testimony of witness is to be taken in its entirety. A stray line in the cross-examination is not sufficient to dislodge the entire edifice of the case, especially when in the later part it has been specifically clarified by the plaintiff/respondent that Sampuran Singh, defendant, was not present in the office of Sub Registrar. Furthermore, this argument was nowhere raised by the plaintiff before both the Courts below. Rather the defendant took a plea that his signatures were obtained by way of fraud. He had borrowed a sum of ` 1,00,000 as a loan and he never executed an agreement to sell. The contention raised by learned counsel for the appellant that the plaintiff/respondent is not reliable and trustworthy witness, cannot be accepted as this Court will not tread on the path of re-appreciation and re-appraisal of the evidence. Both the Courts below have given a concurrent finding of fact and discarded the version propounded by the appellant/defendant that he had borrowed the amount and he had signed blank papers. No question of law, much less a substantial one has arisen for consideration of this Court. Hence, there is no merit in the present appeal and the same is hereby dismissed in limine. (Kanwaljit Singh Ahluwalia) Judge July 12, 2011 “DK”