RSA No. 3525 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3525 of 2008 Decided on :18-11-2008 Jagbir ....Appellant VERSUS Krishan ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. B.S.Saroha, Advocate for the appellant. MAHESH GROVER, J This Regular Second Appeal is directed against the order dated 30.8.2008 of the learned Additional District Judge whereby the appeal of the appellant against the judgment and decree dated 19.3.2008 of Additional Civil Judge (Sr. Divn.) was dismissed. A suit for specific performance was preferred by the respondent seeking to enforce the agreement dated 17.9.2004. It was pleaded by the respondent that agreement which had come into existence on 17th September, 2004 was for a total sale consideration of Rs. 2,20,000/- and pursuant to the agreement, appellant had received a sum of Rs. 1,35,000/- on 14th January, 2004 in the presence of the witnesses. Initially, a sum of Rs. 1,00,000/- was paid as earnest money and to that effect an entry was made at Sr. No.914 in the relevant register of Sh. Naresh Narwal, petition writer. On 24.12.2004 another sum of Rs. 35,000/- was paid and writing was also made at Sr. No. 1404 in the relevant register of Sh. RSA No. 3525 of 2008 2 G.C.Manchanda. The sale deed of the suit property was to be executed and registered on receipt of balance amount on or before 30.6.2005. It was pleaded that the respondent was always ready and willing to perform his part of the agreement and pursuant to which he had remained present in the office of the Sub Registrar, Gohana on 30th June, 2005 but the appellant did not appear. An affidavit was got prepared and duly attested by the Executive Magistrate to this effect. The presence of the respondent was also marked in the office of the Sub Registrar. The appellant who was the defendant contested the suit and resisted all the pleas by saying that the agreement was a result of fraud as the documents were got prepared when the appellant was under the influence of liquor. The receipt of the earnest money was also denied. The Trial Court decreed the suit of the plaintiff-respondent and held that the fraud as alleged by the appellant has not been proved and that the agreement to sell was duly registered and the consequent receipt of earnest money stood duly proved as also the presence of the respondent before the Sub Registrar. In appeal the findings of the learned Trial Court were affirmed. While assailing these findings of the Courts below, learned counsel for the appellant strenously contended that the agreement to sell was a result of fraud and that the appellant was addicted to alcohol and he had been treated forthe same in the de-addiction centre. That apart it was contended that there was variation in the statement of the witnesses regarding the payment of the amount and the places where amount is said to have been paid. On the strength of this, it was contended that there was complete mis-appreciation of the facts by the Courts below. I have heard learned counsel for the appellant. RSA No. 3525 of 2008 3 A perusal of the impugned judgment reveals that the agreement has not been denied by the appellant and only plea taken up is that it was a result of fraud. When a plea of fraud is set up, then the onus lies heavily on the person alleging the fraud to prove the execution of the document by exercise of such a fraud. The only ground that has been set up is that the appellant was under the influence of liquor which he has not been able to establish by way of any evidence on record. The signatures on the agreement to sell have not been denied. The receipts were duly entered in the records of PW 4 Naresh Narwal and PW 5 G.C. Manchanda, Advocate. Jagbir Singh P.W.6 who is the Nambardar has also testified regarding the execution of the agreement to sell. He has also testified to the agreement- cum-receipt dated 24th December, 2004 which is on record indicating payment of an amount of Rs. 35,000/-. This adequately establishes that the agreement to sell had been executed by the appellant. Ex. P.7 and P.8 are application and affidavit respectively whch were attested by the Executive Magistrate, Gohana indicating the presence of the respondent before the office of Sub Registrar on 30th June, 2005. Registered entries Ex. P.3 dated 2nd July, 2005 was also served upon the appellant vide postal receipt which is on record as Ex. P.2. In view of this overwhelming evidence the appellant's plea falls flat. That apart, concurrent findings of the facts have been recorded by the Courts below. No substantial question of law has been shown to have arisen in the present appeal which is completely devoid of any merit and the same is hereby dismissed. November 18 , 2008 (Mahesh Grover) rekha Judge