IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.999 of 2009 Date of Decision: 4.3.2009 Mohan Lal. ....... Appellant through Shri S.S.Toor,Advocate. Versus Rattan Lal. ....... Respondent through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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. This Regular Second Appeal is directed against judgments and decrees dated 18.9.2008 and 7.1.2009 passed respectively by the Civil Judge (Senior Division), Panchkula (hereinafter described as `the trial Court') and the Additional District Judge (Ad hoc), Fast Track Court, Panchkula (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiff-respondent has been decreed and the appeal of the defendant-appellant has been dismissed. The respondent filed a suit for mandatory injunction seeking to direct the appellant to deliver vacant possession of the cattle tin-shed constructed on the brick walls over the land marked with letters ABCD in the site plan attached with the plaint and situated within the abadi deh of R.S.A.No.999 of 2009 -2- ... village Ramgarh, Tehsil & District Panchkula. A permanent injunction was also prayed for restraining the appellant from transferring or alienating the suit property to any body else and also from making any additions, alterations, construction or reconstruction thereon. It was pleaded by the respondent that the appellant had got prepared an agreement to sell with regard to the suit property by keeping him in dark without paying a sum of Rs.25,000/-, whereas payment thereof was incorporated therein. It was further pleaded that the appellant took forcible possession of the suit property and raised construction thereon and the matter was taken with the Gram Panchayat where it was resolved that possession of the suit property would be delivered to the respondent on payment of Rs.25000/- along with cost of construction made by the appellant. Pursuant to this agreement, a bank draft of Rs.31,725/-, which amount included Rs.25000/- and cost of construction, was sent to the appellant, but possession was not delivered to him and consequently, the suit was filed. The appellant, in his written statement, admitted the factum of compromise having been arrived at between him and the respondent, but categorically denied that the amount of Rs.31725/- was ever paid to him. It was pleaded that in view of non-payment of the agreed amount, the possession of the suit property was not delivered to the appellant. Both the parties went to trial on the following issues:- 1. Whether the possession of the defendant over the suit land is illegal and plaintiff is entitled for its possession?OPP R.S.A.No.999 of 2009 -3- ... 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD 3. Whether plaintiff is estopped from filing the suit by his own act and conduct?OPD 4. Whether the defendant is entitled for specific performance of agreement, if any, executed by the plaintiff in favour of the defendant?OPD 5. Relief. On the basis of the evidence before it, the trial Court concluded that the settlement before the Gram Panchayat stood admitted and the only dispute was regarding the payment which was to be made by the respondent to the appellant and consequent delivery of possession. It was further concluded that the payment of Rs.31725/- was established by the respondent and,therefore, the trial Court decreed his suit. In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal by the appellant. Learned counsel for the appellant contended that the findings recorded by the Courts below are perverse as there was no material before them to conclude that amount of Rs.31725/- was paid by the respondent to the appellant. He further contended that the only evidence which has been relied upon by the Courts below is the statement of PW8-Shri Manish Sharma, Advocate, who stated that the draft was sent by him to the appellant along with his letter Exhibit P7. It has further been contended that R.S.A.No.999 of 2009 -4- ... although PW8 had proved acknowledgment Exhibit P8 purported to have been given by the appellant in token of receipt of the letter and draft, but merely because this document exists on record, it would not imply that the amount had been received by him. I have thoughtfully considered the contentions of the learned counsel for the appellant and have perused the impugned judgments. Concededly, there is no denial by the appellant to the settlement made before the Gram Panchayat Therefore, the only question that had to be determined by the Courts below regarding the honouring of the said settlement by both the parties. It is the case of the respondent that he had paid the amount of Rs.31,725/- to the appellant. To substantiate this plea, he examined PW8-Manish Sharma, Advocate, who stated that he sent a draft in the aforesaid sum along with his letter Exhibit P7 and the acknowledgment given by the appellant was Exhibit P8. This witness categorically testified that he had dispatched the letter along with the bank draft to the appellant. Strangely enough, this witness was not even cross-examined by the counsel for the appellant before the trial Court. Thus, his testimony remained un- rebutted and un-shattered. No other evidence was produced by the appellant from which it could be inferred that the amount was not paid to him. In so far as the respondent is concerned, the testimony of PW8 coupled with the acknowledgment Exhibit P8, reveals that the amount had been paid to the appellant. In any eventuality, this is purely a question of fact which R.S.A.No.999 of 2009 -5- ... cannot be answered in the Regular Second Appeal unless the finding of the Courts below to this effect is shown to be perverse, which, in the given set of circumstances of the case, cannot be held to be so for the reason that no evidence to the contrary has been pointed out. Thus, no substantial question of law arises for determination in this appeal, which is held to be devoid of any merit and is dismissed. March 04,2009 ( Mahesh Grover ) “SCM” Judge