RSA No. 2648 of 2009 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2648 of 2009 Date of Decision: 3.8.2009 Mukhtiar Singh ......Appellant Versus Harbhinder Singh and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers 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? Present: Shri S.S. Bhinder, Advocate, for the appellant. HEMANT GUPTA, J. (Oral). Defendant No.1 is second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for specific performance of agreement to sell dated 1.6.2000 was decreed. Defendant No.1 (the present appellant) was alleged to be owner of the land measuring 12 bighas 15 biswas and 8 bighas and 15 biswas situated in village Banbhaura, Tehsil Malerkotla. The plaintiff agreed to purchase the same at the rate of Rs.45,000/- per bigha and received Rs.5 lacs from the plaintiff as advance money. The sale deed was to be executed RSA No. 2648 of 2009 (2) upto 15.11.2001. A registered notice was allegedly sent by the plaintiff, but the defendants refused to receive the same. The plaintiff also remained present in the office of Sub Registrar on 15.11.2001 along with the balance sale consideration and other expenses but defendant No.1 did not come present. With the said pleadings, the present suit for specific performance was filed on 2.2.2002. To prove the execution of the agreement to sell dated 1.6.2000, the plaintiff has examined one of the attesting witnesses Amar Singh, Nambardar as PW1, who has proved the agreement to sell. He has deposed that a sum of Rs.5 lacs was received by defendant No.1 from the plaintiff in his presence also in the presence of the other attesting witness-Sunder Singh. PW2 is the plaintiff himself, who has reiterated his version. He has also proved notice Exhibit PW2/B and acknowledgment receipt Exhibit PW2/C. Handwriting expert Dr. Atul Kumar has appeared as PW3 and proved his report Exhibit PW3/1. He deposed that the questioned thumb impressions have been affixed on the agreement by the same person, whose sample thumb impressions were taken. PW5 is Shiv Kumar, stamp vendor, who has made endorsement on the back of the agreement Exhibit PW1/A. He also deposed that the stamp of affidavit dated 15.11.2001 in respect of the presence of the plaintiff before the Sub Registrar, was also sold by him. The presence of the plaintiff in the office of Sub Registrar is proved by PW6- Mohd. Aslam, clerk Sub Tehsil Amargarh. To controvert such evidence, the defendant appeared as his own witness as DW1 and also produced receipts Exhibits D1 to D.3 to prove the fact that the defendant was selling the crop to the firm of the plaintiff. The plaintiff denied that such receipts are issued by the plaintiff, when such RSA No. 2648 of 2009 (3) receipts were put to him. Both the Courts have recorded a concurrent finding of fact that receipts Exhibits D.1 to D.3 are not proved to be executed, which can be considered in evidence and that the plaintiff is entitled to specific performance of the agreement dated 1.6.2000. Learned counsel for the appellant has vehemently argued that the learned first Appellate Court has not given any finding to the effect that the plaintiff was always ready and willing to perform his part of the contract. In the absence of any such finding, the suit could not have been decreed by the learned first Appellate Court. It is also argued that out of the total sale consideration of Rs.5,75,000/-, an amount of Rs.5 lacs is purportedly paid on 1.6.2000, therefore, there is no reason as to why the sale should be deferred for a period of 2-1/2 years for payment of a small amount of Rs.75,000/- as compared to the total sale consideration. It is contended that the agreement to sell was in fact fraudulently prepared by the plaintiff as the defendant was selling his crop to the plaintiff. It is also contended that the agreement to sell dated 1.6.2000 bears adhesive stamps of Rs.300/- and is not on a regular stamp paper and only stamps have been taken from the stamp vendor, which shows that the agreement to sell is not proved to be executed. Having heard learned counsel for the appellant at some length, I do not find any merit in the arguments raised by the learned counsel for the appellant. The learned trial Court has categorically held that the plaintiff was ready and willing to perform his part of the contract. Such finding has been given on the basis of notice served by the plaintiff calling upon the RSA No. 2648 of 2009 (4) defendant to execute the sale deed on 15.11.2001 and the presence of the plaintiff before the Sub Registrar on the aforesaid date. In fact, the plea of the defendant was that of a denial of the execution of the agreement and not that the plaintiff was not ready and willing to perform his part of the contract. No specific issue was claimed by the defendant in respect of the lack of ready and willingness of the plaintiff to execute the sale deed. No argument was raised before the learned first Appellate Court to the effect that the plaintiff was not ready and willing to perform his part of the contract. Therefore, the appellant cannot be permitted to raise such argument in the present second appeal for the first time. The argument that the plaintiff is a commission agent to whom the defendant used to sell his crop is again devoid of merit. Defendants produced the receipts Exhibit D.1 to D.3. Such receipts were put to the plaintiff, who denied the execution thereof. In such circumstances, it was for the defendant-appellant to lead other evidence to prove the execution of the said receipts. In the absence of any such evidence, it cannot be said that the defendant was selling his crop to the plaintiff and his signatures on the blank papers have been used by the plaintiff for preparation of the agreement to sell. The argument that stamps have been purchased from the stamp vendor, which have been used for the purpose of writing of agreement to sell, is again misconceived. The defendant has not asked any question from the stamp vendor as to whether or not the stamp papers of the denomination of Rs.300/- were available. In the absence of any evidence, mere fact that the adhesive stamps have been affixed on the agreement to sell, cannot be said to be a suspicious circumstance so as to return a finding that the RSA No. 2648 of 2009 (5) agreement to sell was not executed. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 03-08-2009 ds