R.S.A. No.3255 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.3255 of 2009 Date of Decision:08.08.2011 Jaspal Singh ......Appellant Versus Mukand Singh .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.S.K.Chawla, Advocate, for the appellant. Mr.M.S.Bedi, Advocate, for the respondent. **** M EHINDER S INGH S ULLAR , J.(oral) The contour of the facts, which requires to be noticed for a limited purpose of deciding the core controversy, involved in the present appeal and emanating from the record is, that Jaspal Singh son of Mohinder Singh-appellant- plaintiff(hereinafter to be referred as “the plaintiff”) filed the suit against Mukand Singh son of Angrez Singh-respondent-defendant(for brevity “the defendant”) for a decree of joint possession as co-owner, on the ground that the defendant has entered into an agreement to sell dated 25.01.2003 in respect of the land in dispute, measuring 14 kanals, for a total consideration of Rs.2,62,500/-. The plaintiff paid earnest money of Rs.2,17,600/- to the defendant and the sale-deed was to be executed on or before 24.01.2004. But the defendant has failed to execute the sale-deed, as per agreement in question. According to the plaintiff that although, he remained ready and willing to perform his part of the contract, but the defendant faulted in this respect. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of joint possession against the defendant, in the manner depicted hereinabove. R.S.A. No.3255 of 2009 2 2. As the defendant did not appear in the Court, despite service, therefore, ex parte proceedings were ordered against him. 3. The trial Court, taking into consideration the ex parte evidence brought on record by the plaintiff, partly decreed his suit for recovery of Rs.2,17,600/- as earnest money along with interest @ 6% per annum, by way of impugned judgment and decree dated 28.04.2007. 4. Aggrieved by the impugned decision of the trial Court, the appellant- plaintiff filed the appeal, which was dismissed as well and his suit was dismissed in its entirety by the first Appellate Court, by virtue of impugned judgment and decree dated 11.05.2009. 5. The appellant-plaintiff did not feel satisfied with the impugned judgment and decree of the first Appellate Court and preferred the present regular second appeal. 6. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant appeal in this regard. 7. Ex facie, the argument of the learned counsel that since, the agreement to sell dated 25.01.2003 was duly proved, so, the first Appellate Court fell in grave error in dismissing his(plaintiff) suit, lacks merit. 8. As is evident from the record that, the plaintiff filed the suit for a decree of joint possession on the basis of alleged agreement to sell dated 25.01.2003. In that eventuality, a very very heavy burden of proof was upon the plaintiff, to prove the genuineness and validity of the agreement and passing of consideration, which he has utterly failed to do so. What to talk of proving the genuineness etc. of the agreement, even the original agreement or its copy has not seen the light of the day and door of the Court. The plaintiff in an unsuccessful attempt, tried to prove the agreement to sell by way of secondary evidence, by R.S.A. No.3255 of 2009 3 proving the entry(Ex.P1) of the register of Deed-Writer with regard to some other agreement of sale dated 29.01.2002. The agreement of sale in question was allegedly scribed on 25.01.2003. No other cogent evidence is forthcoming on record to prove the contents of the agreement and its terms & conditions. Who have attested the agreement in question executed by Mukand Singh-defendant in favour of the plaintiff, remains an unfolded mystery. There is no entry or reference of marginal witnesses of both the agreement to sell dated 29.01.2002 and 25.01.2003 vide entries(Exs.P1 and P2). The mere vague entries(Exs.P1 and P2) of the register of the Deed-Writer are not sufficient to prove the terms & conditions of the agreement in question and passing of amount of earnest money. 9. As is clear that the trial Court has decreed the suit of the plaintiff for recovery of earnest money on the speculative assumption that a sum of Rs1,60,000/-, was paid as earnest money to the defendant, at the time of execution of first agreement dated 29.01.2002. The plaintiff has miserably failed, to examine any marginal witnesses of the agreement to sell dated 25.01.2003, to establish the passing of consideration amount of earnest money. The story of the plaintiff that the defendant had taken away the original document, was disbelieved by the first Appellate Court. Moreover, in the application dated 23.01.2004(Ex.P6), it is mentioned by the plaintiff that the defendant had taken away the original documents on 03.01.2004 by deceiving him and the matter was reported to the police. As per report(Ex.P7) produced on record, the matter was reported to the police on 03.03.2004. Therefore, the plea of the plaintiff that he was ready to perform his part of the contract and he got his presence marked on 24.01.2004 before the Sub Registrar falls on its own legs. 10. Thus, to me, the trial Court appears to have illegally decreed the suit of the plaintiff for recovery of the amount. The grave error committed by the trial Court was rightly corrected by the first Appellate Court, by means of impugned judgment and decree dated 11.05.2009, the operative part of which is, as under:- R.S.A. No.3255 of 2009 4 “Keeping in view the ex parte evidence led by the appellant-plaintiff and from the documents proved on record, the execution of agreement of sale dated 25.1.2003 along with its terms and conditions and the earlier agreement of sale dated 29.01.2002 which was merged in the present agreement of sale are not proved on file. There is no evidence on record to prove the passing of earnest money by the plaintiff in favour of the defendant. Therefore, this Court has failed to appreciate how the trial court has passed the decree for recovery of Rs.2,17,600/- as recovery of earnest money along with interest in favour of the plaintiff and against the defendant. The plaintiff has miserably failed to prove the execution of agreement of sale dated 25.1.2003 as well as its terms and conditions. No witness was examined to establish the passing of earnest money. Keeping in view these facts, the plaintiff is neither entitled to the relief of joint possession of 14 kanals of land on the basis of agreement of sale dated 25.1.2003 nor he is entitled to get the alternate relief of recovery of earnest money along with interest as claimed by him. Keeping in view the provisions of Order 41 Rule 33 CPC, the suit filed by the plaintiff stands dismissed with costs and the appeal preferred by the appellant-plaintiff claiming the main relief for joint possession by way of specific performance of agreement of sale dated 25.1.2003 is also dismissed with costs.” 11. Learned counsel for the appellant did not point out any material, much less cogent, to contend that how and in what manner, any interference is warranted in the impugned judgment and decree of the first Appellate Court. 12. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff, to assail the findings of the first Appellate Court. All the remaining contentions, relatable to the appreciation of evidence, now sought to be urged on his behalf, have already been duly considered and dealt with by the first Appellate Court, in this relevant context. 13. Moreover, having scanned the admissible evidence in relation to the pleadings of the parties, the first Appellate Court has recorded the above indicated finding of facts. Such judgment, containing the valid reasons, cannot possibly be interfered with by this Court, while exercising the powers conferred under Section 100 CPC, unless and until, the same is illegal and perverse. No such R.S.A. No.3255 of 2009 5 patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well-articulated decision arrived at by the first Appellate Court, in this regard. 14. Neither any question of law, much less substantial, is involved in this regular second appeal, nor any other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 15. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. August 08, 2011 (MEHINDER SINGH SULLAR) seema JUDGE