R. S. A. No. 3603 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3603 of 2010 (O&M) Date of Decision : October 15, 2010 Mohinder .... Appellant Vs. Krishan Kumar .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Jagdish Manchanda, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 12074-C of 2010 : Application is allowed and annexed questions of law allegedly arising in the instant second appeal are taken on record, subject to all just exceptions. Main Appeal : Defendant Mohinder has filed the instant second appeal after having failed in both the courts below. Respondent-plaintiff Krishan Kumar filed suit against the defendant-appellant for possession of suit land by specific performance of the agreement to sell dated 23.05.2006 alleging that the defendant agreed to R. S. A. No. 3603 of 2010 (O&M) 2 sell the suit land 170 bighas 05 biswas to the plaintiff @ Rs.5,50,000/- per acre and received Rs.1,00,000/- as earnest money and executed agreement and receipt for the same. Date for execution of sale deed was stipulated as 16.08.2006, which being holiday, was later on changed to 17.08.2006. Accordingly, the plaintiff went to the office of Sub Registrar on 16.08.2006 as well as on 17.08.2006 to get the sale deed executed in terms of agreement, but the defendant did not turn up. Even notice dated 19.08.2006 served by the plaintiff on the defendant for execution of sale deed proved futile. The defendant thus committed breach of the agreement, whereas plaintiff has always been ready and willing to perform his part of the agreement. The defendant denied the plaint allegations. The defendant pleaded that no agreement was entered into between the parties. On the other hand, defendant had agreed to sell his land to one Satbir son of Ram Sarup and not to the plaintiff. The impugned agreement has been manipulated by the plaintiff and is based on fraud and misrepresentation. Last date for sale deed could not have been extended from 16.08.2006 to 17.08.2006, even if 16.08.2006 happened to be a holiday. The plaintiff could have approached the defendant on some day prior to 16.08.2006 if it was holiday on that day. The plaintiff was not ready and willing to perform his part of the agreement. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Meham, vide judgment and decree dated 04.09.2008, decreed the plaintiff's suit. R. S. A. No. 3603 of 2010 (O&M) 3 First appeal preferred by the defendant stands dismissed by learned Additional District Judge, Rohtak, vide judgment and decree dated 09.06.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that the defendant- appellant is ready to pay double of the earnest money along with interest, as prayed for by the plaintiff-respondent, by way of alternative relief. The contention cannot be accepted. Merely because the plaintiff made alternative prayer for recovery of money, the plaintiff is not disentitled to seek the relief of specific performance of the agreement. On the contrary, ordinarily, specific performance of the agreement has to be ordered. That is the rule. The defendant has failed to make out an exception for not granting the relief of specific performance of the agreement to sell to the plaintiff. The plaintiff has proved the execution of the agreement by leading cogent evidence. The plaintiff has examined Satbir son of Ram Sarup as PW-2. He is witness of the agreement. He has stated that defendant had agreed to sell the suit land to the plaintiff. Baljit PW-3 is the other attesting witness of the agreement. He has also supported the plaintiff's case. The plaintiff also stepped into witness-box. The plaintiff also examined stamp vendor, who has also supported the case of the plaintiff. On the other hand, there is sole self-serving oral statement of R. S. A. No. 3603 of 2010 (O&M) 4 defendant, which is not sufficient to rebut plaintiff's cogent evidence. The defendant has not pleaded particulars of the alleged fraud nor he has led any evidence to substantiate the same except his own self-serving testimony. On the contrary, the defendant admitted that the agreement has been signed not only by him but also by his wife. The execution of agreement has been fully proved. There is no reason for declining the relief of specific performance to the plaintiff. The plaintiff filed the suit promptly on 19.09.2006. Both the courts below, after appreciation of evidence, have come to concurrent finding against the defendant-appellant. The said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below. The said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. Alleged questions of law, placed on record by the appellant, do not arise for determination in the instant second appeal. In fact, these are not questions of law. Moreover, even the appellant has not pleaded that any `substantial' question of law arises for determination in the instant second appeal. In fact also, there is no substantial question of law arising for determination in this appeal. The appeal is completely bereft of any merit and is accordingly dismissed in limine. October 15, 2010 ( L. N. MITTAL ) monika JUDGE