IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2896 of 2004 Date of Decision: 16.2.2009 Charanjit Kaur and others. ....... Appellants through Shri Rakesh Chopra, Advocate. Versus Kaka Singh and another. .......Respondent no.1 through Shri R.S.Chauhan, Advocate. None for respondent no.2. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This appeal is directed against judgments and decrees dated 2.6.2003 and 2.3.2004 passed respectively by the Additional Civil Judge (Senior Division), Amloh (hereinafter described as `the trial Court') and the Additional District Judge, Fatehgarh Sahib (referred to hereinafter as `the First Appellate Court') whereby the suit of plaintiff-respondent no.1 was decreed and the appeal filed by the defendants-appellants was dismissed. Respondent no.1 filed a suit for specific performance alleging that an agreement to sell had been executed by Bachhiter Singh -defendant no.1 (respondent no.2 herein) in his favour on 6.5.1996 to sell 10 biswas of land for Rs.1,10,000/-. It was further alleged that the total sale consideration R.S.A.No.2896 of 2004 -2- .... was paid to respondent no.2 at the time of execution of the agreement and respondent no.1 had been put in possession of the suit property on the same day. Respondent no.1 had pleaded that the suit land was being used for parking the tractor and storing agricultural implements and fodder etc. However, when the sale deed was not executed and the appellants and respondent no.2 started threatening to dispossess him from the suit land, respondent no.1 filed the suit for specific performance with a consequential prayer for grant of permanent injunction. It was also prayed that in case, the Court comes to the conclusion that respondent no.1 was not entitled to the relief of specific performance, in that eventuality, he be held entitled to refund of Rs.1,10,000/- along with Rs.10,000/- as damages from respondent no.2. Upon notice, respondent no.2 and the appellants appeared and filed their separate written statements. In his written statement, respondent no.2 controverted the averments made in the plaint. He denied the execution of agreement to sell dated 6.5.1996 and receipt of the sale consideration as alleged by respondent no.1. It was pleaded that respondent no.1 along with the appellants and the witnesses of the alleged agreement came to him on 4.5.1996 in connection with a pronote to be executed in favour of respondent no.1, who had taken a loan of Rs.50,000/- from him and this pronote had been abused to create an agreement to sell. It was also pleaded by respondent no.2 that the suit land was in possession of appellant nos. 1 and 2 in whose favour a decree for specific performance had already been R.S.A.No.2896 of 2004 -3- .... granted by the Court on 26.11.1996 in Civil Suit No.487 of 12.9.1996, titled as “Charanjit Kaur Versus Bachhittar Singh and, therefore, there was no question of executing any agreement to sell the same suit land in favour of respondent no.1. The appellants, in their separate written statement, denied the execution of the agreement to sell in favour of respondent no.1 and pleaded that there was an agreement to sell in their favour which was prior in time, i.e., executed on 14.2.1996 and pursuant thereto, a collusive decree was suffered by respondent no.2 and further that the agreement to sell dated 6.5.1996 was the result of fraud. Both the parties went to trial on the following issues:- 1. Whether defendant no.1 entered into agreement to sell the suit property with plaintiff on 6.5.96 for a sum of Rs.1,10,000/- receiving the entire consideration amount and delivering possession of the property to plaintiff?OPP 2. Whether the plaintiff has been ready and willing to perform his part of the agreement?OPP 3. Whether the plaintiff is entitled to specific performance of agreement to sell dt. 6.5.96, if issue nos. 1 and 2 are proved?OPP 4. Whether the plaintiff is entitled to decree for permanent injunction prayed for?OPP 5. Whether the suit is not maintainable in the present form?OPD R.S.A.No.2896 of 2004 -4- .... 6. whether the agreement to sell dt. 6.5.96 is result of fraud and misrepresentation, as alleged in the written statement?OPD 7. What is the effect of decree passed in civil suit no.487 dt. 12.9.96 titled as “Charanajit Kaur Versus Bachhittar Singh?OPD 8. Relief. On the basis of the evidence before it, the trial Court decreed the suit and directed the specific performance of agreement dated 6.5.1996 so as to execute a valid sale deed regarding the suit land. In appeal, the findings of the trial Court were affirmed and while doing so, the First Appellate Court also observed that while disposing of the application under Order 39 Rules 1 and 2 of the C.P.C., it was found that the agreement dated 14.2.1996 was ante dated and was created to forfeit the rights of respondent no.1 and those observations were upheld up to this Court. Feeling aggrieved, the appellants have filed this appeal. Learned counsel for the appellants contended that the findings of both the Courts below are perverse. He submitted with reference to the findings recorded by the First Appellate Court that the same are based on the observations which were made while deciding application under Order 39 Rules 1 and 2 of the C.P.C., which could not have been done, as in the suit the findings are to be recorded independently on the basis of the evidence and since it has not been done so, a great prejudice has been R.S.A.No.2896 of 2004 -5- .... caused to the appellants. To support the submission that the observations made by the Court while answering application under Order 39 Rules 1 and 2 of the C.P.C. cannot be considered as conclusive finding on the facts and circumstances, he placed reliance on Balbir Singh Versus Satbir Singh, 1999(2) Civil Court Cases 412 (P&H). It was next contended that there was prior agreement to sell in favour of the appellant nos. 1 and 2 which was dated 14.2.1996 and it is for this reason that a decree was suffered by respondent no.2 in their favour and, therefore, the plea of respondent no.1 was totally misplaced. On the other hand, learned counsel for respondent no.1 contended that the Courts below have not based their findings solely on the observations made in the orders passed in application under Order 39 Rules 1 & 2 of the C.P.C., but have also considered other factors. It was submitted that although it was pleaded by the appellants that there was an agreement to sell in favour of appellant nos.1 & 2 which was executed on 14.2.1996, but neither any issue was struck nor any evidence was led and,therefore, the plea as set up by them could not be considered at all. It was further submitted that both the Courts have held that the agreement to sell in favour of respondent no.1 was valid and that he was put in possession of the suit land and also that respondent no.2 had failed to execute the sale deed despite the fact that respondent no.1 was ready and willing to perform his part of agreement. I have thoughtfully considered the respective arguments and have perused the record. R.S.A.No.2896 of 2004 -6- .... Concededly, there was an agreement to sell in favour of respondent no.1 which was executed on 6.5.1996. That agreement was duly proved by respondent no.1, who examined both the marginal and attesting witnesses coupled with his own statement. Even if the observations of the First Appellate Court regarding the orders passed in application under Order 39 Rules 1 and 2 of the C.P.C. are ignored, then also, respondent no.1 had proved the execution of the agreement to sell. There is no quarrel with the proposition as propounded by the learned counsel for the appellants that the observations of the Court made while determining an application under Order 39 Rules 1 and 2 of the C.P.C. cannot be made basis for conclusive findings, but, at the same time, if there is independent and cogent evidence and a fact is proved on the basis of it, then no grievance can be made of it. In the instant case, even if the observations pursuant to the provisions of Order 39 Rules 1 and 2 of the C.P.C. cannot be considered for determining the validity of the agreement to sell, yet, the same would be certainly taken into consideration for determining the question of possession of respondent no.1 had been protected. Respondent no.1 has also successfully proved that he was ready and willing to perform his part of agreement which, in any case, was reduced to a formality as the entire sale consideration had been paid and he had been put in possession. Surprisingly, respondent no.2, the vendor, did not step into the R.S.A.No.2896 of 2004 -7- .... witness box and understandably so because he had apparently suffered a collusive decree in favour of appellant nos. 1 and 2 in order to wriggle out of his commitment regarding the sale of the suit land pursuant to agreement dated 6.5.1996. Appellant nos. 1 and 2 set up an agreement to sell in their favour, but the same remained merely an averment as neither any issue was struck on this aspect nor was any evidence led to substantiate this plea. The plea of fraud was set up by respondent no.2, as also by the appellants, but they have failed to establish the same. As observed earlier, respondent no.2 did not testify before the Court. Appellant nos. 1 and 2 also did not appear,but their absence was sought to be justified by saying that appellant no.3-Harjinder Singh, had appeared as their attorney. The plea of fraud as raised by the appellants and respondent no.2 ought to have been established by way of cogent evidence which was not done. The onus to prove the fraud rests heavily on the person, who alleges the same. That having not been done by the appellants and respondent no.2 in the present case, no fault can be found with the findings recorded by the Courts below. No substantial question of law arises for determination in this appeal, which is held to be devoid of any merit and is dismissed. February 16,2009 ( Mahesh Grover ) “SCM” Judge