RSA No.4774 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4774 of 2010 Date of decision 27.9.2011. Bhushan Kumar ...... Appellant versus Som Pal ...... Respondent. CORAM :- HON'BLE MR. JUSTICE K.C.PURI. 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? Present : Mr. Durgesh Aggarwal, Advocate for the appellant. C.M.Nos. 11255-C of 2011 For the reasons mentioned in the application, affidavit of Bhushan Kumar is taken on record. C.M. stands disposed of accordingly. C.M.Nos.14154 -C of 2010 For the reasons mentioned in the application 334 days delay in RSA No.4774 of 2010 2 re-filing the appeal stands condoned. C.M. stands disposed of accordingly. MAIN APPEAL. K.C.PURI . J. The present regular second appeal has been directed by plaintiff/appellant against the judgment and decree dated 28.8.2009 passed by Shri R.C.Bansal, District Judge, Kurukshetra vide which the appeal filed by the plaintiff against the judgment and decree dated 15.1.2007 passed by Shri Narender Sharma, Civil Judge (Junior Division), Kurukshetra was dismissed. 2. The case of the plaintiff in brief is that defendant was the owner of the suit land measuring 17 marlas being 1/30th share of land measuring 25 kanals 15 marlas as detailed in para No.1 of the plaint. He agreed to sell the said land to the plaintiff vide written agreement 26.6.2001 for a total sale consideration of Rs.34,000/-. The plaintiff paid the entire sale consideration to the defendant on the date of agreement in the presence of witnesses. The defendant agreed to get the sale deed registered on or before 31.8.2001. It was envisaged in the document that in case the defendant failed to get the sale deed executed and registered in favour of the plaintiff by the scheduled date, then the plaintiff would be at liberty to get the sale deed executed and registered in his favour through competent court of law and he would also be at liberty to get double of the earnest money i.e. Rs.68,000/- from the defendant. The plaintiff requested the defendant to get the sale deed registered but of no use. Hence the suit. RSA No.4774 of 2010 3 3. The suit was contested by the defendant. In his written statement, he denied the execution of any agreement dated 26.6.2001 nor received any alleged earnest money. He also pleaded that the agreement was forged and fabricated document. The defendant was not in need of any amount on the alleged date nor he executed the agreement to sell. The defendant further pleaded that the real facts were that he had got financed his three wheeler from Bharat Pragati Financer, Kurukshetra Road, Pipli being run by the plaintiff Bhushan Kumar as its proprietor and for that purpose, the plaintiff had obtained his thumb impression on certain blank papers on the pretext that same were required for the loan purpose. Later on, the defendant repaid the entire amount to the plaintiff, who had also issued clearance receipt in this regard. The suit was also contested on the grounds of maintainability, estoppel, concealment of facts and the court fee. 4. Plaintiff filed replication to the written statement preferred by defendant, denying the contents of the written statement and reiterated the stand taken in the plaint. 5. From the pleadings of the parties the following issues were framed by the learned trial Court:- 1. Whether the plaintiff is entitled for the execution of the sale deed in respect of the property described in para no.1 of the plaint in view of the agreement to sell dated 26.6.2001 ?OPP 2. If issue no.1 is not proved in favour of the plaintiff, whether the plaintiff is entitled to recover an amount of Rs.68,000/- alongwith interest @ 18% per annum from the defendant ? OPD 3. Whether the present suit is not maintainable and the plaintiff has locus standi to file the same ?OPD 4. Whether the plaintiff is estopped by his own act and conduct from filing the present suit ?OPD RSA No.4774 of 2010 4 5. Whether the plaintiff has concealed true and material facts from Court ? OPD 6. Whether the present suit has not been filed as per provision of amended CPC ?OPD 7. Whether proper Court fee has not been affixed on the plaint ?OPD 8. Relief. 6. The parties have led their respective evidence on the aforesaid issues. Learned trial Court after appraisal of the evidence dismissed the suit of the plaintiff vide judgment and decree dated 15.1.2007. 7. Feeling dissatisfied with the aforesaid judgment and decree dated 15.1.2007, the plaintiff filed first appeal before the First Appellate Court. The First Appellate Court after hearing the learned counsel for the parties dismissed the appeal of the plaintiff vide judgment and decree dated 28.8.2009. 8. Still feeling dissatisfied with the judgment and decree dated 15.1.2007 passed by the trial Court and judgment and decree dated 28.8.2009 passed by the First Appellate Court, the plaintiff/appellant has preferred the present regular second appeal. 9. The appellant in paragraph No.14 of the grounds of appeal has mentioned that following substantial questions of law have arisen for decision in the present regular second appeal :- i. Whether the impugned judgment and decree dated 15.1.2007 passed by the Court of Civil Judge (Jr. Divn.) Kurukshetra and judgment and decree dated 28.8.2009 passed by the Ld. District Judge, Kurukshetra is illegal, void, without jurisdiction and therefore, liable to be set aside or not ? ii. Whether the findings of the Ld. Courts below are RSA No.4774 of 2010 5 suffering from any apparent perversity on the face of it being contrary to law and facts on record ? iii. Whether the burden of proof lies upon the defendant/ respondents to prove the fact that his signatures are obtained by playing fraud specifically in the case when defendant/respondent is admitting his signatures upon the agreement to sell ? iv) Whether the defendant can take a plea of forgery or fraud in the suit that too after a long span of time, when he was having ample opportunities and time to report it to the police and failed to do so ? v ) Whether the impugned judgments and decrees suffers an apparent illegality and perversity because of ignoring the material piece of evidence which have a direct impact on the decision of the case ? vi) Whether the impugned judgment-decree passed by the Ld. Courts below are beyond pleadings, evidence on record, perverse, illegal, without jurisdiction and is liable to be set aside in the facts and circumstances of the case ? Vii) Whether grave or manifest injustice is being caused to the plaintiff-appellant in the facts and circumstances of the case ? Learned counsel for the appellant has submitted that the judgments and decrees passed by both the Courts below are result of misreading and misinterpreting the pleadings and evidence on the file. The plaintiff/appellant has been non-suited on the ground that he has not proved the execution of the agreement dated 26.6.2001. It is submitted that in the written statement, the defendants have taken a stand that his signatures have been taken by misrepresenting the facts. So, in these circumstances, the execution of the agreement is impliedly admitted. The onus was upon the defendant to disprove the said agreement. The plea of the defendant that agreement is the result of forgery and fraud remain unproved on the file. So, the judgment and decrees of both the Courts below suffer from illegality RSA No.4774 of 2010 6 and perversity ignoring the material piece of evidence having the direct impact on the decision of the case. I have given my thoughtful consideration to the submissions made by the counsel for the appellant but do not find any force in those submissions. The sole controversy in the present lis is whether defendant executed agreement to sell dated 26.6.2001 in favour of the plaintiff to sell land measuring 17 marlas for a total consideration of Rs.34,000/-. Both the Courts below after appraisal of the evidence on the record came to the conclusion that plaintiff has not been able to prove the execution of the agreement and on passing the consideration. That being a finding of fact cannot be interferred in the regular second appeal. Both the Courts below have observed that plaintiff has not examined any marginal witness of the agreement. The defendant has the courage to examine the marginal witness, who has totally denied the execution of the agreement. The argument advanced by the learned counsel for the appellant to the effect that since the defendant has taken the stand of forgery and as such the execution of the agreement is admitted. The defendant has categorically stated that he never executed any agreement to sell in favour of the plaintiff nor received any earnest money. He has further taken a stand that defendant has raised a loan earlier and in that account he might have taken thumb impression on blank paper. So, it cannot be said that execution of the agreement has been admitted by the defendant. Besides, plaintiff no other witness has come to the witness box. The factum of earlier loan transaction has not been denied. It cannot be said that the judgment of both the Courts below is a result of RSA No.4774 of 2010 7 misreading the pleading or evidence of the parties and that the same are perverse. There is no other circumstance to interfere in the well reasoned finding of both the Courts below. 13. So, in view of the above discussion, I have no hesitation in holding that no question of law muchless the substantial question of law has arisen in the present case. The questions raised above by the learned counsel for the appellant do not exist at all. Consequently, the regular second appeal is without any merit and the same stands dismissed. 14. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 27, 2011 sv