RSA No. 1038 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1038 of 2005 Date of Decision: 04.08.2009 Avtar Singh s/o Santokh Singh s/o Ishar Singh, r/o village Denowal Kalan, Tehsil Garhshankar, District Hoshiarpur. ... Appellant Versus Gurdial Singh s/o Nirmal Singh s/o Ishar Singh, r/o village Denowal Kalan, Tehsil Garhshankar, District Hoshiarpur, at present r/o village Birampur, Tehsil Garhshankar, District Hoshiarpur. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Shashi Ghuman, Advocate, for the appellant. Mr. Sandeep Arora, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 24.03.2004, rendered by the Court of Additional District Judge, Hoshiarpur, vide which, it accepted the appeal, against the judgement and decree dated 07.11.2001, rendered by the Court of Additional Civil Judge (Senior Division), Garhshankar, vide which, it decreed the suit of the plaintiff, for specific performance. 2. According to the plaintiff, the defendant/respondent agreed to sell the land, in dispute, in his favour, vide agreement to sell dated RSA No. 1038 of 2005 2 04.04.1996, and received the entire sale consideration of Rs. 80,000/- at that time. The defendant/respondent also agreed to execute the sale deed on or before 22.08.1997, and, in case of breach of the terms and conditions thereof, he was to return double the amount of earnest money towards damages. The plaintiff/appellant was also put in possession of the land, at the time of execution of the agreement to sell. The plaintiff/appellant, allegedly spent huge amount in making improvements of the land, in dispute. The plaintiff/appellant, had been asking the defendant/respondent, to execute the sale deed, but he had been putting him off, on one pretext or the other. The defendant/respondent, is, in fact, the real uncle of the plaintiff/appellant. The plaintiff remained ever ready and willing to perform his part of the contract, but the defendant breached the same. On the final refusal of the defendant to execute and get registered the sale deed, left with no alternative, a suit for specific performance, was filed. 3. The defendant/respondent, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was denied that he ever executed the agreement to sell, in respect of the land, in dispute, and had received any amount, in respect thereof. It was stated that the agreement was a forged and fabricated document. It was further stated that, in fact, the defendant was not in need of alienating his land. It was further stated that an ante-dated document, must have been prepared after the plaintiff, received summons, in Civil Suit, titled 'Nirmal Singh Vs. Santokh Singh', instituted by the defendant, on 14.06.1997. It was further stated that the name of the defendant is Gurdial Singh @ Nirmal Singh. It was further stated that the aforesaid suit was for partition of the land, in which, the plaintiff, was a party, and khasra No. 458, in question, was also the subject matter of the said suit. It was further stated that, in RSA No. 1038 of 2005 3 fact, the parties were not on speaking terms. It was further stated that the defendant, was attacked by the plaintiff, Darshan Singh, and Harvel Singh, on 20.01.1997, and remained admitted in Civil Hospital, Garhshankar. It was further stated that the defendant also filed a complaint before the Police authorities, in this regard. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the defendant entered into an agreement to sell the suit land to the plaintiff on 04.04.96 and received Rs. 80,000/- as earnest money? OPP (ii) Whether the plaintiff is ready and willing to perform his part of the contract? OPP (iii) Whether the plaintiff is entitled to the specific performance of the contract? OPP (iv) Whether the plaintiff is entitled to the recovery of Rs. 80,000/- in the alternative? OPP (v) Whether the agreement is inadmissible in evidence for want of registration? OPD (vi) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the defendant/respondent, which was accepted by the Court of Additional District Judge, Hoshiarpur, vide judgement and decree dated 24.03.2004. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. RSA No. 1038 of 2005 4 9. The Counsel for the plaintiff/appellant, submitted that the trial Court, was right, in decreeing the suit of the plaintiff/appellant, for specific performance, on the basis of the agreement to sell dated 04.04.1996, as the execution, legality, and validity, thereof, was duly proved. She further submitted that the Appellate Court, was wrong, in coming to the conclusion, that no agreement to sell, referred to above, was executed, by the defendant/respondent, in favour of the plaintiff/appellant. She further submitted that the judgement and decree of the Appellate Court, being illegal, were liable to be set aside. 10. On the other hand, the Counsel for the defendant/respondent, submitted that the Appellate Court, was right, in coming to the conclusion, that when the entire amount of sale consideration, had allegedly been paid, then what was the necessity of executing the agreement to sell, and, on the other hand, the plaintiff/appellant, could get the sale deed executed. He further submitted that the Appellate Court, was also right, in holding that, no legal and valid agreement to sell, was executed, and, as such, specific performance, thereof, could not be claimed. He further submitted that, even otherwise, it was improbable that the defendant/respondent, would execute the agreement to sell, in favour of the plaintiff/appellant, especially when, the parties were having strained relations. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. RSA No. 1038 of 2005 5 Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The findings of fact, recorded by the first Appellate Court, that since, as per the agreement to sell, the entire amount of sale consideration, was allegedly paid, then why the sale deed, on the same date, was not got executed; that there was a previous agreement, which was allegedly entered into, between the parties 10-12 days, before the present agreement to sell, in respect of the same land, for a sale consideration of Rs. 20,000/-, and then what was the necessity of executing another agreement dated 04.04.1996; that the agreement to sell, was not scribed by a regular Deed Writer, despite availability; that Darshan Singh, one of the attesting witnesses, to the agreement to sell, was accused, with the plaintiff/appellant, in a criminal case, for causing injuries, on the person of the defendant/respondent, as admitted by the plaintiff/appellant himself; that on account of this reason, there were strained relations, between the parties, and, as such, it was not at all probable for the defendant/respondent, to execute the agreement to sell, in favour of the plaintiff/appellant; and that, no legal and valid agreement to sell, was executed, by the defendant/respondent, in favour of the plaintiff/appellant, being based, on the correct appreciation of evidence, and law, on the point, do not suffer RSA No. 1038 of 2005 6 from any illegality or perversity, and warrant no interference, by this Court. The judgement and decree of the first Appellate Court, are, thus, liable to be upheld. The submission of the Counsel for the plaintiff/appellant, being without merit, must fail, and the same stands rejected. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 04.08.2009 (SHAM SUNDER) Amodh JUDGE