Regular Second Appeal No. 925 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 925 of 2010 Date of decision : April 28, 2011 Krishna Nand @ Ashwani Kumar ....Appellant versus Hardev Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. D. Khanna, Advocate, for the appellant Mr. HS Sullar, Advocate, for the respondent L.N. Mittal, J. (Oral) Defendant Krishana Nand alias Ashwani Kumar having lost in both the courts below has filed the instant second appeal. Respondent – plaintiff Hardev Singh filed suit against defendant – appellant for possession of 6 kanals 9 marlas suit land by specific performance of agreement to sell dated 25.3.1997 and also for recovery of Rs 1,92,000/-. The plaintiff alleged that the defendant agreed to sell 10 kanals 6 marlas land including the suit land to the plaintiff for Rs 20 lacs and received Rs 6 lacs as earnest money and executed impugned agreement dated 25.3.1997. Sale deeds of part of the said land have since been executed. The defendant received further amount of Rs 15,92,000/- Regular Second Appeal No. 925 of 2010 -2- while executing the sale deeds and some further agreements. Plaintiff always remained ready and willing to perform his part of the contract but the defendant committed breach thereof. Accordingly, the plaintiff sought possession of the remaining land agreed to be sold and also recovery of excess amount. Defendant put in appearance in the trial court, but failed to file written statement. So, his defence was struck off. Later on, none appeared for him and he was proceeded ex parte. Learned Additional Civil Judge (Senior Division), Panchkula vide judgment and decree dated 3.12.2008 decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Panchkula vide judgment and decree dated 8.10.2009. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. There are unrebutted pleadings and evidence of the plaintiff in support of his case. The same have not been controverted by the defendant in any manner. Agreement Ex. P1 has been proved by the plaintiff by appearing himself and also by examining Mohan Lal PW2 brother of Vishav Nath attesting witness of the agreement (since deceased) and Rajesh Aggarwal PW3 son of the scribe of the agreement (since deceased). The plaintiff also went to the office of Sub Registrar on relevant dates and got recorded his presence vide applications Ex. P2 and P3, but the defendant did not turn up. In view of plaintiff's unrebutted evidence, his suit has been rightly decreed. Regular Second Appeal No. 925 of 2010 -3- Learned counsel for the appellant vehemently contended that the plaintiff did not have money to get the sale deed executed in terms of the agreement. The contention cannot be accepted because there is neither any such pleading nor any evidence to substantiate this contention. On the contrary, there are unrebutted pleadings and evidence of the plaintiff that he always remained ready and willing to perform his part of the contract and he had also the requisite money. Learned counsel for the appellant contended that some agreements and sale deeds regarding part of the land agreed to be sold were executed by the defendant through the plaintiff. However, these facts stand admitted by plaintiff himself, but it does not affect the plaintiff's case in any manner. The defendant is bound to execute the sale deed of the remaining land agreed to be sold and also bound to return the excess amount. For the aforesaid reasons, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below in favour of the plaintiff-respondent is justified by unrebutted pleadings and evidence of the plaintiff and is not shown to be perverse or illegal. Consequently, the said finding does not call for interference in exercise of second appellate jurisdiction. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. ( L.N. Mittal ) April 28, 2011 Judge 'dalbir'