R.S.A.No.3009 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3009 of 2009 Date of Decision : 13.08.2009 Chander @ Chander Bhan ...Appellant Versus Randhir Singh and another ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Vishal Gupta, Advocate, for the appellant. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for specific performance of agreement to sell dated 20.1.1997, was decreed. As per the aforesaid agreement, the plaintiff alleges that defendant-appellant agreed to sell 32 kanals of land at the rate of Rs.1,50,000/- per acre. Earnest money of Rs.3,64,000/- was paid on 20.1.1997. The sale deed was to be executed on or before 15.12.1997. It is the case of the plaintiff that he was ready and willing to perform his part of contract and he appeared in the office of Tehsildar on 15.12.1997 with balance sale consideration and amount for purchasing stamp papers etc., but the defendant-appellant did not appear on the aforesaid date. Subsequently, vide notice dated 3.1.1998, the defendant-appellant was called upon to execute the sale deed. Still the defendant failed to execute the sale deed, which led to filing of the present suit on 12.2.1998. R.S.A.No.3009 of 2009 2 In reply, the stand of the defendant-appellant was that he has obtained a loan of Rs.2,00,000/- from the plaintiff and at that time his thumb impressions were obtained by the plaintiff on some blank papers in the village. The loan amount was repaid after about 6 months. The execution of the agreement to sell dated 20.1.1997 was specifically denied. It was averred that market price of the disputed land was about Rs.3,00,000/- per acre, therefore, it could not have been agreed to be sold at the rate of Rs.1,50,000/- per acre. As a matter of fact, the defendant has sold land vide registered sale deed to one Abhey singh on 16.12.1999 and by virtue of an application, the subsequent purchaser was impleaded as defendant No.2. To prove the execution of the agreement to sell dated 20.1.1997, the plaintiff has examined Mahavir Gupta, scribe as PW-1, Brij Bhushan, one of the attesting witness as PW-2, apart from examining himself as PW-5. The plaintiff has also examined Randhir Singh as PW- 4 and Data Ram Yadav, Tehsildar as PW-5, to prove his readiness and willingness for the execution of the sale deed on 15.12.1997. PW-7 Yashpal Chand Jain, Finger and Handwriting Expert, Jind, who has compared the thumb impressions on the agreement to sell Ex.PA dated 20.1.1997, with the admitted thumb impressions of the defendant- appellant. On the basis of such evidence, both the Courts have recorded a concurrent finding of fact that the agreement to sell dated 20.1.1997 stands executed by the defendant and that the plaintiff was ready and willing to perform his part of the contract. Learned counsel for the appellant has vehemently argued that R.S.A.No.3009 of 2009 3 in fact the transaction between the parties was transaction of loan and the blank papers obtained by the plaintiff to evidence transaction of loan has been converted in the transaction of agreement to sell. The said aspect has been considered by the Courts below. It has been found that PW-1 Mahavir Gupta has deposed that the defendant has signed the register of the scribe after he read over the contents of the agreement to the defendant. The statement of PW-2 Brij Bhushan is also to the effect that the contents of the agreement were read over to the defendant and he has thumb marked the same after admitting the same to be correct. The appellant has not led any evidence of any animosity of the said witnesses against the appellant. The statement of the aforesaid witnesses could not be shattered in cross-examination in any manner. Therefore, the findings recorded by the Courts below that the agreement to sell Ex.PA dated 20.1.1997 was executed for the sale of land cannot be said to be illegal or unwarranted. In fact the arguments raised by the learned counsel for the appellant are to seek reappreciation of evidence. Even after going through the evidence with the assistance of the learned counsel for the appellant, I do not find that the findings recorded by the Courts below are suffering from any patent illegality. It is then argued that the agreement is transaction of loan is evidenced from the transaction of loan proved between one Ram Karan and the defendant. The said fact is sought to be proved by moving an application for additional evidence before the first Appellate Court. Though the learned first Appellate Court has found that the defendant- R.S.A.No.3009 of 2009 4 appellant has admitted that in pursuance of the compromise with Ram Karan, he has executed sale deed in his favour, but the said finding is sought to be disputed by the learned counsel for the appellant. It is contended that in fact Ram Karan has withdrawn his suit for specific performance. Be as it may, the fact remains that Ram Karan has no relation with the plaintiff. A transaction of loan with one person does not necessarily mean that transaction with another person in the present suit was also a transaction of loan. It is further contended that the price of the land was Rs.3,00,000/- per acre in the year 1997, therefore, agreement to sell at the rate of Rs.1,50,000/- is not possible. The agreement to sell propounded by the defendant, which led to execution of the sale deed in favour of defendant No.2 is at the rate of Rs.1,40,000/- per acre. Such agreement is purported to be of the year 1996. Therefore, it is apparent that the sale consideration mentioned in the agreement to sell Ex.PA, is not less than the market value on the aforesaid date. In view of the above, I do not find that any substantial question of law arises for consideration by this Court in second appeal. Dismissed. 13.08.2009 (HEMANT GUPTA) Vimal JUDGE