IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 296 of 2002 Date of Decision : December 14 , 2011 Dandoo Ram son of Ram Dayal Resident of Village Jukain, P.O. Nawahi, Illaqa Suranga, Tehsil Sarkaghat, District Mandi, H.P. Plaintiff-appellant Versus Roop Lal alias Narain Singh son of Ram Dayal, Resident of Village Jukain, P.O. Nawahi, Tehsil Sarkaghat, District Mandi, at present serving as Clerk in Treasury Office, Kullu, District Kullu, H.P. Defendant-Respondent Regular Second Appeal under Section 100 of the C.P.C. against the judgment and decree of learned District Judge, Kullu passed in Civil Appeal No. 15/02 decided on 1.5.2002 in case titled Dandoo Ram vs. Roop Lal alias Narain Singh whereby the learned Court affirmed the findings of learned Senior Sub Judge, Kullu in Civil Suit No. 116 of 94/156 of 2001; dated 19.12.2001 with the prayer that appeal be accepted and the suit be decreed as prayed for. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Sanjeev Kuthiala, Advocate. For the respondent : Mr. Ajay Kumar, Advocate. Whether reports of Local Papers may be allowed to see the judgment? 2 Justice Sanjay Karol, J. (Oral) All litigation must come to an end at some stage and more so of a person who has tried to use and misuse every provision of Code of Civil Procedure, to ensure that suit filed by him way back in the year 1994, is somehow protracted and the lis is kept pending inter se between the parties. 2. This is plaintiff’s regular second appeal filed under Section 100 of the Code of Civil Procedure. Concurrent findings of fact recorded by the Courts below have been assailed by the plaintiff in this appeal which stands admitted on the following substantial questions of law:- 1. Whether on the basis of pleadings and evidence on record, there was a foundation emanating regarding the readiness and willingness for performance of the contract and the construction emanating under Section 53 A of the Transfer of Property Act could be sustained and findings to the contrary are wrong? 2. Whether the learned Courts below have misread and misconstrued the oral and documentary evidence consisting of statements of PWs 1 to 3, DW-1, Ext. P1 Jamabandi, Ext. PW1/A notice, and Ext. PW2/A Agreement dated 6.6.1981? 3. Whether the relief of specific performance of the contract can be given where the vendee is ready and willing to perform his part of the contract, and the time is not the essence of the contract and the agreement has been partially performed and consideration passed? 3 3. Plaintiff filed a suit for specific performance of agreement to sell dated 6.8.1981. According to the plaintiff, defendant (respondent herein) agreed to sell the suit land for a sum of rupees forty thousand, against which he paid sale consideration of rupees thirty thousand, in cash, to the defendant. Since defendant was in litigation with the original owner namely Sh. Swaroo, it was agreed that sale deed would be executed either within a period of six months or after completion of litigation between the defendant and Sh. Swaroo when remaining sale consideration of rupees ten thousand would be paid. 4. Agreement (Ext. PW 2/A) is stated to have been scribed by Sh. Jagar Nath (PW-2). Transaction allegedly took place in the presence of Sh. Jindu Ram (PW-3). 5. The defendant resisted the suit inter alia denying execution of agreement between the parties. There is specific denial with regard to receipt of money from the plaintiff as any sale consideration. 6. On the basis of pleadings of parties, Trial Court framed the following issues:- 1. Whether the defendant has executed agreement dated 6.8.1981 to sell the suit land in favour of the plaintiff for a consideration of Rs. 40,000/- as alleged? OPP 2. Whether the plaintiff has paid Rs. 30,000/- as part payment of the contract? OPP 3. Whether the plaintiff is entitled to the specific performance of the contract as alleged? OPP 4 4. If issue No. 3 is not proved, whether the plaintiff is entitled for the recovery of Rs. 30,000/- with interest? If so, at what rate of interest? OPP 5. Whether the suit of the plaintiff is barred by limitation? OPD 6. Whether plaintiff has no cause of action? OPD 7. Relief. 7. The Trial Court decided all the issues in favour of defendant and dismissed the suit holding that plaintiff had failed to prove execution of any agreement dated 6.8.1981. Judgment and decree dated 19.12.2001, passed by Senior Sub Judge, Kullu, H.P. in Civil Suit No. 116 of 1994/156 of 2001, titled as Dandoo Ram versus Rup Lal alias Narain Singh was assailed by the plaintiff before the District Judge, Kullu and in terms of judgment and decree dated 1.5.2002, Civil Appeal No. 15 of 2002 stands dismissed. Findings of fact recorded by the Trial Court stand affirmed by the lower Appellate Court. 8. Having heard learned counsel for the parties, I am of the considered view that no question of law much less substantial question of law arises for consideration in the instant appeal. In fact questions No. 1 and 3 are not even based on pleadings of the parties. No point with regard thereto was ever raised by the parties either before the Trial Court or the lower Appellate Court. 9. No doubt there is self serving statement of the plaintiff on record but then the same needs corroboration as it is not inspiring confidence in any manner. Sh. Jagar Nath (PW-2) scribe of the 5 document dated 6.8.1981 (Ext. PW 2/A) does not state that agreement was scribed by him on the asking of the defendant or that the defendant signed the same in his presence. He also did not witness the parties signing the same. He also did not witness the plaintiff hand over a sum of rupees thirty thousand to the defendant. 10. Another witness Sh. Jindu Ram (PW-3) has simply deposed that he had seen the plaintiff hand over a sum of ` four/five thousand to the defendant. However, he clarifies that he is not aware about any sale transaction. Here it may be noticed that both plaintiff and defendant are real brothers. There is nothing unusual in monetary transaction between two brothers. However, this fact by itself would not even prima facie establish that money exchanged was towards part consideration. Significantly plaintiff has not examined the attesting witnesses of the agreement namely Sh. Mahant Jog Dass and Sh. Thakaur Singh. 11. In my considered view Courts below have rightly held that plaintiff has failed to prove valid execution of agreement (Ext. PW 2/A) or for that matter any agreement, oral or otherwise, entered into between the parties. Courts have also rightly come to the conclusion that no monetary transaction, in relation to the alleged agreement, took place between the parties. 12. Hence concurrent findings of facts recorded by the Courts below are not to be interfered with. Plaintiff has failed to even prima facie show that while arriving at findings of facts, Courts below have 6 either misread or misconstrued oral or documentary evidence. Judgments cannot be said to be perverse or erroneous. Questions of law are answered accordingly. 13. It would be worth noticing that the defendant had been in litigation with the original owner Sh. Swaroo. The same finally concluded with the passing of judgment by this Court and execution of sale deed in favour of the defendant. It is true that plaintiff was not a party in the said proceedings but however from the case built up by the plaintiff it is clear that he was fully aware of pendency of such proceedings. In fact before the Trial Court he took a somersault and sought to amend his pleadings by taking a totally contrary stand. He took a plea that in fact original transaction had taken place between him and Sh. Swaroo but by exercising fraud defendant got the sale agreement executed in his favour. Plaintiff allowed the defendant to continue with the proceedings since he was his real brother. Trial Court rightly did not accept this false plea. Plaintiff also filed an application seeking permission to place on record additional evidence to this effect. Same was also considered by the Trial Court while delivering the judgment. In this regard lower Appellate Court has also rightly come to the conclusion that application for leading additional evidence was in fact considered by the Trial Court before pronouncement of judgment and passing of decree. 14. Noticeably even before this Court plaintiff has filed applications being CMP No. 304 of 2003 and CMP No. 139 of 2011 7 under Order 41 Rule 27 C.P.C., seeking permission to place on record additional documents. Plaintiff intends to place on record alleged admissions made by the defendant with regard to execution of the agreement. Plaintiff wants this Court to compare the defendant’s signatures on the said alleged admissions. Now except for a bald assertion that the factum of such admission was not within his knowledge and despite exercise of due diligence it could not be proved before the Courts below, there is nothing on record to substantiate this plea. It is not that document now sought to be placed on record was not in existence. I see no reason to allow the present applications which have been filed at a highly belated stage. In my considered view same needs to be dismissed. Hence the present appeal devoid of any merit is dismissed. (Justice Sanjay Karol), Judge. December 14 , 2011 (PK)