RSA No.2930 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2930 of 2007 Date of Decision:17.02.2009 Munshi Ram ....appellant Versus Makhan Singh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Y.P.Singla,Advocate for the appellant None for the respondent **** RAKESH KUMAR GARG J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for specific performance of an agreement to sell dated 20.11.1998 with consequential relief of possession of suit property has been dismissed with costs. In his plaint, the appellant stated that defendant being exclusive owner of the property in dispute agreed to sell the same for a sum of Rs.60,000/- on 20.11.1998. The entire sale consideration was received by him in the presence of witnesses and then agreement to sell was executed. The possession was also delivered in his favour. The plaintiff approached the defendant several times to execute and register the sale deed as per agreement to sell but he refused to do so. Hence this suit. On notice, the defendant appeared and filed written statement raising the plea that no agreement to sell dated 20.11.1998 was alleged to have been executed by the defendant in favour of plaintiff. RSA No.2930 of 2007 2 There was a loan transaction between the parties. This agreement was executed only to secure the money. The price of one marla is Rs. One lac in their village. At present the market value of the plot is not less than Rs. Four lacs. The defendant had taken loan from the plaintiff from time to time. He had sold his buffalos to the plaintiff worth Rs. 12,000/- but the defendant was paid only a sum of Rs. 5000/-. He also worked for the plaintiff and the plaintiff did not pay any wages. The defendant denied to have delivered the possession of the property in question to the plaintiff. The possession of the property in dispute is with the defendant. There was no question of giving the possession of the property in dispute, when there exist no contract between the parties. Therefore, the suit deserves dismissal. After hearing the arguments advanced by the learned counsel for the parties, the trial Court dismissed the suit filed by the plaintiff vide judgment and decree dated 10.06.2005. While dismissing the suit, the trial Court observed as under: “ The onus is upon the plaintiff to prove the due execution of the agreement to sell dated 20.11.1998, vide which the defendant agreed to sell the property in dispute in favour of plaintiff by examining the Deed Writer as well as one of the attesting witness. The perusal of the file reveals that PW-3 Mohan Lal tendered his affidavit Ex.PW3/A. However, this witness was not produced to face cross-examination. As such a specific order was passed vide order dated 21.10.2004 that the affidavit of PW-3 was not to be read into evidence. It is further reflected in the order dated 21.10.2004 that the reason for non-examination of the second attesting witness, Hardev Singh as stated by counsel for the plaintiff is that he has left place of given RSA No.2930 of 2007 3 address. However, I observed that the plaintiff has not taken any pain to summon the other attesting witness Hardev Singh by getting him issued the summons through the process of the court. Therefore, this much statement of the counsel for the plaintiff is not sufficient to prop up the case of the plaintiff. Therefore, I am of the opinion that the plaintiff has not been able to prove the due execution of the agreement dated 20.11.1998.” Feeling aggrieved therefrom, the plaintiff filed an appeal before the Lower Appellate Court which was also dismissed by the Additional District Judge, Jalandhar, vide impugned judgment and decree dated 17.04.2007. While dismissing the aforesaid appeal, the Lower Appellate Court observed as under: “ I have gone through the file carefully. The plaintiff has filed this suit for specific performance of the agreement to sell dated 20.11.1998. In the alternative, he has also filed suit for recovery as well as for permanent injunction. In order to prove this agreement to sell the plaintiff himself stepped into the witness box as PW2 and secondly examined Mukesh Kumar Deed Writer as PW1. The agreement to sell is Ex.P-1. The plaintiff has also examined Mohan Lal PW3 one of the marginal witnesses of this agreement to sell but he never appeared in the court for cross-examination. The other marginal witness of the agreement is also not examined and statement was given in the Court that the other witness has left the village. Therefore, no marginal witness has come forward to prove the execution of the agreement to sell by the defendant in RSA No.2930 of 2007 4 favour of the plaintiff regarding sale of his plot measuring 3 ½ marlas consisting of a room and courtyard. As per plea taken by the plaintiff the possession was also delivered to him at the time of execution of the agreement to sell and he had paid the entire sale consideration. It is rightly pleaded by the defendant in the written statement that if the entire sale consideration was paid on 20.11.1998, they why the sale deed was not executed at that time. The defendant took the plea in the written statement that he is residing in this property along with his family. This fact finds corroboration from the cross-examination of the plaintiff himself. In his cross-examination he stated that the defendant had taken possession of the plot forcibly but no specific date has come on record when the defendant took forcible possession. Keeping in view the evidence on record, the plaintiff has miserably failed to prove the agreement to sell dated 20.11.1998 regarding sale of house of the defendant in 3½ marlas in his favour.” Still not satisfied, the plaintiff has filed this appeal challenging the judgment and decrees of the Courts below in this Court. Learned counsel for the appellant has vehemently argued that respondent has admitted that the agreement in question was executed by him and therefore as per the provisions of Section 58 of the Indian Evidence Act admitted facts need not be proved. Elaborating his argument further, learned counsel for the appellant has argued that under Section 68 of the Indian Evidence Act, it shall not be necessary to call an attesting witness in proof of execution of any document if the execution of any document is not specifically denied by the other party who purported to have executed it. In the present case, due to admission of execution and RSA No.2930 of 2007 5 thumb impression on the agreement Ex.P-1 by respondent, the agreement in question and as such findings of the Courts below are illegal and are liable to be set aside. On the basis of the aforesaid contention the learned counsel for the appellant has argued that the following substantial question of law arises in this appeal: 1. Whether any agreement to sell Ex.P-1 is deemed to have been duly proved as per provisions of Indian Evidence Act in view of specific admission by the respondent about its execution by him and its bearing his thumb impression? I have heard learned counsel for the appellant. The contention raised by the learned counsel for the appellant is misconceived. There is no dispute with the proposition of law that admitted facts need not be proved. However, in the present case, the defendant-respondent has not admitted the execution of the agreement in question. Rather, a specific stand was taken by him to the effect that no such agreement to sell dated 20.11.1998 was executed by the defendant-respondent in favour of the plaintiff-appellant and a specific issue was framed to the following effect: “ Whether the defendant executed an agreement to sell dated 20.11.1998 in favour of plaintiff?” Both the Courts below on appreciation of evidence have recorded a finding of fact that the plaintiff-appellant has failed to prove the execution of the agreement in question. From the perusal of the observations made by the Courts below as extracted above in the foregoing paragraphs of this judgment, it is clearly made out that Mohan Lal marginal witness of the agreement to sell in question, never appeared in the Court for cross-examination and therefore his testimony could not be taken into consideration for proving the agreement to sell in question. RSA No.2930 of 2007 6 Undisputedly, the other marginal witnesses of the agreement was also not examined. Thus, no marginal witness has come forward to prove the execution of the agreement to sell in question, therefore, no fault can be found in the aforesaid findings of the Courts below. Faced with this situation, the learned counsel for the appellant has further argued that in any case the respondent has admitted that he had taken loan from time to time and his thumb impressions on the agreement to sell were obtained as security for that loan amount and therefore the suit of the plaintiff/appellant was liable to be decreed for alternative relief of recovery of Rs.60,000/-. I am afraid even this contention of the appellant is without any merit. The aforesaid argument raised by the appellant is beyond pleadings. No such plea has been taken by the plaintiff-appellant in his suit. It has nowhere been stated that appellant gave any loan to the defendant. Nor specific amount has come on record which was given by the appellant to the respondent. The plaintiff-appellant has not taken any plea that the agreement to sell in question was executed by way of security. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 17.02.2009 neenu RSA No.2930 of 2007 7