Regular Second Appeal No. 3791 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3791 of 2011 Date of Decision: 21.11.2011 *** Amarjit Kaur .. Appellant VS. Gurmeet Kaur & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. S.K. Arora, Advocate for the appellant. *** ARVIND KUMAR, J. The defendant has come up in this regular second appeal. It emerges out from the paper book that an agreement to sell dated 29.5.1999(Ex.P1) was executed between the predecessor-in-interests of plaintiffs and defendants in respect of some land and as per recital thereof Rs.3 lacs was given as earnest money by predecessor-in-interest of plaintiff namely Kulwant Singh to Bikkar Singh, the predecessor-in-interest of defendants. The due date of execution of the sale deed was 29.5.2000. It appears that the sale deed was not executed and Kulwant Singh died on 29.7.2000 while Bikkar Singh died somewhere in June 2001. Seeking specific performance of the aforesaid agreement plaintiffs Gurmeet Kaur etc., the successors of Kulwant Singh filed the civil suit, wherein the appellant and respondents No.6 to 8, the successors of Bikkar Singh appeared and denied the execution of any agreement to sell by Bikkar Singh. After the contest, the learned trial Court came to the conclusion that that there was no intention either to sell or purchase the suit land between Bikkar Singh and Kulwant Singh, however, an amount of Rs.2,99,346/- was due towards Bikkar Singh and the said agreement was a device to secure the aforesaid amount. Ultimately, the learned trial Court Regular Second Appeal No. 3791 of 2011 2 passed a decree for recovery of Rs.3 lacs along with interest @ 6% per annum from the date of filing of the suit till realization of the decreetal amount. An appeal was preferred by the appellant Amarjit Kaur, wherein the appellate Court held the due execution of agreement Ex.P1, which was for sale of land. Accordingly, the suit was decreed for the recovery of earnest money of Rs.3 lacs and consequently, the findings of the learned trial Court were corrected. Dis-satisfied with the same, defendant has preferred the instant regular second appeal. It is apparent from the records that the learned trial Court, only on the basis of admission made by the plaintiff regarding possession of the suit land still with the defendants, which is inconsistence with the recitals of agreement wherein the factum of delivery of possession to Kulwant Singh was mentioned, came to the conclusion that there was no intention of Bikkar Singh to sell the suit land and only to secure the outstanding amount, which was proved on record to be Rs. 2,99,346/-, Kulwant Singh got the said agreement Ex.P1 scribed. In this regard, it is apt to notice here what the learned appellate Court observed, which reads as under:- “19. There is no dispute about the fact that the agreement Ex.P1 contains recital that the possession has been delivered. The plaintiffs in the plaint have taken a specific plea that the possession of the land remained with deceased Bikker Singh. It is generally and invariably seen that in the agreements to sale, the factum of delivery of possession is mentioned therein when invariably the possession remains with the vendor till the registration of the sale deed. Therefore, merely because the agreement contains recital regarding delivery of possession which is not in consonance with the ground reality or the status of possession, the same is not sufficient to discard the document Ex.P1, as has been contended by the counsel for the appellant.” From the above findings, it is clear that only on the basis of this Regular Second Appeal No. 3791 of 2011 3 fact, the learned appellate Court believed the agreement Ex.P1, which otherwise was not relied upon in toto by the learned trial Court. Admittedly, the vendee and vendor died much prior to the filing of the suit. It emerges out that in order to prove the due execution of the aforesaid agreement, the plaintiffs got examined independent witness Zorawar Singh, the document writer as well as Lakhbir Singh, the attesting witness to the said agreement. The testimonies of both these witnesses remained unimpeachable and this rightly led the appellate Court below to held the due execution of the agreement and passing on of earnest money of Rs.3 lacs to Bikkar Singh by Kulwant Singh. Once the execution of agreement and receipt of earnest money was proved, the appellant and other legal heirs of Bikkar Singh were rightly directed to return the earnest amount with interest. There is no room to interfere with the aforesaid findings which are neither illegal nor perverse. No substantial question of law arises for consideration in this appeal, which is accordingly dismissed. (ARVIND KUMAR) JUDGE November 21,2011 Jiten