IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 4945 of 2009 (O&M) Date of Decision: 6.1.2010 Smt. Parkasho. ....... Appellant. Versus Vikas Kumar and another. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri Naresh Kaushik, Advocate for Shri K.S.Dhanora, Advocate for the appellant. .... 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. C.M.No.14638-C of 2009 The application is accepted and the appellant is allowed to remove the deficiency of court-fee of Rs.12/-. C.M.No. 14639-C of 2009 The application is allowed as prayed for. C.M.No.14641-C of 2009 The application is allowed and delay of 42 days in re-filing of the appeal is condoned. R.S.A.No.4945 of 2009 (O&M) -2- .... C.M.Nos.14637-C and 14640-C of 2009 and R.S.A.No.4945 of 2009. This Regular Second Appeal has been preferred against the judgments and decrees dated 3.8.2006 and 10.2.2009 passed respectively by the Civil Judge (Junior Division), Phillaur (referred to hereinafter as `the trial Court') and the Additional District Judge, Jalandhar (described as `the first appellate Court'). Since it is barred by limitation, C.M.No.14640-C of 2009 has been moved for condonation of 23 days' delay, whereas C.M.No.14637-C of 2009 has been filed for staying the operation and execution of the impugned judgments and decrees. A suit for possession by way of specific performance of an agreement to sell dated 27.2.2001 was initiated by the plaintiffs-respondents in respect of the suit property which is a residential house situated on the land measuring five marlas fully detailed in the head note of the plaint. It was pleaded by the respondents that the agreement to sell had been executed by the defendant-appellant qua the suit property for a total consideration of Rs.1,40,000/- out of which Rs.1,20,000/- were paid as earnest money. It was to be translated into a sale deed by 26.6.2001, but the appellant failed to carry out her part of responsibility forcing them to file the suit. It was also pleaded that to show their readiness and willingness, the respondents had remained present in the office of Sub Registrar, Phillaur on the stipulated date, but the appellant did not turn up. The appellant contested the suit and set up a plea of fraud. She pleaded that it was inconceivable that on 27.2.2001, she had purchased the suit property from one Malkiat Singh and that she would agree to sell it by R.S.A.No.4945 of 2009 (O&M) -3- .... way of the agreement to sell in question on the same very day in favour of the respondents. It was further pleaded that the deed writer and other persons whose names find mention in the agreement to sell had defrauded her by obtaining her signatures on plain papers. She completely denied the execution of the agreement to sell in question and receipt of any earnest money. The parties went to trial on the following issues:- 1. Whether the defendant entered into an agreement to sell dated 27.2.2001 and received Rs.1,20,000/- as earnest money?OPP 2. Whether the plaintiff is entitled to possession by way of specific performance of agreement to sell dated 27.2.2001?OPP 3. Whether the plaintiff is ready and willing to perform his part of contract and still ready and willing to do the same?OPP 4. Whether plaintiff is entitled for injunction as prayed for?OPP 5. Whether in the alternative plaintiff is entitled for recovery of Rs.1,20,000/- along with interest at the rate of 18% per annum?OPP 6. Whether plaintiff has got no locus standi to file the present suit?OPD 7. Whether suit is not properly valued for the purpose of court fee and jurisdiction?OPD R.S.A.No.4945 of 2009 (O&M) -4- .... 8. Relief. The trial Court, as also the first appellate Court came to the conclusion that there was a valid agreement to sell for which earnest money of Rs.1,20,000/- was paid and the respondents were always ready and willing to perform their part of agreement, whereas the appellant had failed to do so and further that the respondents were present in the office of the Sub Registrar, Phillaur on the appointed date, but the appellant did not turn up and consequently, decreed the suit. Aggrieved by the findings recorded by the Courts below, the present appeal has been filed. It has been contended by the learned counsel for the appellant that it is not possible that a person, who acquires title by virtue of a registered sale deed on a particular day, would agree to alienate the same property on the same day in favour of some other person. He, thus, submitted that the alleged execution of the agreement to sell in question clearly shows that a fraud had been played with the appellant by the deed writer and other persons because the said document is a fabricated one. Learned counsel for the appellant contended that the Courts below have not appreciated this fact and, therefore, the findings recorded by them are perverse and deserves to be set aside. He further contended with reference to paragraph 14 of the grounds of appeal that the following questions of law arise for consideration of this Court:- 1. Whether the agreement to sell is forged and fabricated document prepared by the deed writer in connivance with the R.S.A.No.4945 of 2009 (O&M) -5- .... respondents/plaintiffs? 2. Whether the appellant entered into an agreement to sell dated 27.2.2001 especially when she has herself purchased the land in dispute on the same day and was registered at 4.50 P.M.? 3. Whether the plaintiffs/respondents are willing and ready to execute the agreement to sell and having sufficient funds to execute the sale deed? 4. Whether the courts below have recorded the perverse findings against the record available on the case file and evidence available on the record of the case? I have thoughtfully considered the contentions of the learned counsel for the appellant and have perused the impugned judgments. In a suit for specific performance, there are few essential ingredients which are to be pleaded and proved. One is the existence of a valid agreement to sell, the second is the passing of consideration in lieu thereof and the third is the readiness and willingness on the part of the person seeking to enforce the agreement to sell, to perform his part of agreement. If the aforesaid ingredients are to be tested on the basis of the evidence which has been adduced by the respondents in this case, it transpires that they have successfully established their case. The agreement to sell bore signatures of one Manoj Kumar, who was the marginal witness and that of the deed writer-Varinder Kumar. Both these persons have R.S.A.No.4945 of 2009 (O&M) -6- .... appeared in the witness box and have testified to the validity of the agreement to sell and also deposed that a sum of Rs.1,20,000/- was paid by the respondents to the appellant as earnest money. Besides, their testimony could not be shattered during the course of cross-examination. That apart, there is ample evidence on record to show that the respondents were present in the office of Sub Registrar, Phillaur on the appointed day along with a pay order of Rs.20,000/- as balance payment, which was sufficiently proved by way of application, Exhibit P5 which was moved by them for that purpose before the Sub Registrar. In contrast to it, the appellant, who had set up a plea of fraud, was required to prove the same as the onus to do so was on her. It has been contended before this Court that the signatures of the appellant had been obtained on plain papers. To support this plea, statements of DW2-Sibu Ram and DW3-Sant Ram has been referred, who had deposed that at the time of execution of sale deed by Malkiat Singh in favour of the appellant, they had accompanied her and at that time, deed writer-Varinder Kumar came and obtained her thumb impression on stamp paper as well as on register, but surprisingly the appellant herself did not state so when she appeared as DW1. This creates doubt about the plea of fraud which has been raised by her. It is a settled principle of law that a person, who pleads fraud, is required to prove the same by producing cogent material on record. No such material has been shown to this Court from where it can be inferred that the appellant was a victim of fraud. R.S.A.No.4945 of 2009 (O&M) -7- .... Much has been said about the fact that the agreement to sell in question was executed on 27.2.2001, that is the same day on which the appellant had herself acquired title to the suit property through sale deed executed by Malkiat Singh. There is evidence on record to show that the appellant had purchased this property for a consideration of Rs.91,500/-, but the facts reveal that the property was agreed to be sold for a sum of Rs.1,40,000/- to the respondents and, therefore, the motive of profiteering as an allurement to the appellant to execute agreement to sell cannot be discounted. Having regard to the aforesaid, it cannot be said that the agreement to sell was a forged and fabricated document so as to hold that the findings recorded by the Courts below are perverse and, therefore, the questions of law which have been entailed in paragraph 14 of the grounds of appeal against points 1, 2 and 4, do not arise for consideration of this Court. In so far as question of law at point no.3 is concerned, it has to be noticed that it is not always essential to show that the plaintiff was having sufficient funds to execute the sale deed and in any eventuality, the question does not arise in the instant case as the respondents had proved that they were ready with the amount of Rs.20,000/- on the appointed date for execution of the sale deed and were present before the Sub Registrar. That apart, the appeal has been filed after a delay of 23 days and there is no sufficient explanation to condone the same. R.S.A.No.4945 of 2009 (O&M) -8- .... Accordingly, the appeal is dismissed on merits, as also being barred by limitation. The other pending applications are also dismissed in view of the above. January 06,2010 ( Mahesh Grover ) “SCM” Judge