R.S.A.No. 2334 of 1998 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2334 of 1998 Date of decision: 18.8.2009 Umrao Singh ......Appellant Versus Prabhu Singh and another .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Akshay Bhan, Advocate, for the appellant. Mr. S.C.Kapoor, Sr.Advocate with Mr. Mahipal Singh, Advocate, for respondents. **** SABINA, J. Plaintiffs Prabhu Singh and Virender Kumar filed a suit, which was dismissed by the Additional Civil Judge (Sr.Divn.) Rewari vide judgment and decree dated 15.1.1998. In appeal, the said judgment and decree were set aside by the Additional District Judge, Rewari vide judgment and decree dated 6.8.1998 and the suit of the plaintiffs was decreed with costs. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Briefly stated the facts of the case are that R.S.A.No. 2334 of 1998 2 defendant Umarao Singh, being owner in possession of the suit land, measuring 87 kanals 2 marlas, as fully detailed and described in para No.1 of the plaint, had entered into agreement to sell the aforesaid land to the plaintiffs for a total consideration of Rs.90,000/- on 2.8.1984 and that the plaintiffs had paid a sum of Rs.30,000/- as earnest money to the defendant, at the time of execution of the aforesaid agreement. It was further contended that the sale deed was to be executed by 31.7.1985 and the remaining sale consideration was to be paid at the time of execution and registration of the sale deed. It was next contended that the plaintiffs have always been ready and willing to perform their part of contract, but the defendant failed to execute the sale deed in respect of the above land, in terms of the agreement dated 2.8.1984, despite the fact that the defendant was also served with a notice in this respect. Hence, this suit. 3. The suit was contested by the defendant by means of written statement. He pleaded that he never executed any agreement for sale in respect of the suit land, as alleged by the plaintiffs nor he received any earnest money. It was next contended that in fact, he raised a loan of Rs.30,000/- from the plaintiffs and for this R.S.A.No. 2334 of 1998 3 purpose, he executed a memo in favour of the plaintiffs and now, he had returned the said amount along with interest to the plaintiffs. It was further averred by the defendant that he was a co-sharer in the suit land along with other co-sharers Ajad and Mukesh etc. It was further added by him that the alleged agreement for sale was not his mental and conscious act and therefore, he was not bound by the same. Besides this, the defendant also took other legal objections, which are reflected, in order to avoid repetition, in the array of the issues, framed by learned lower court. In the end, the defendant had prayed for the dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant executed an agreement to sell the land in suit in favour of the plaintiff on 2.8.1984 and received an amount of Rs.30,000/- as an earnest money if so to what effect? OPP 2. Whether the plaintiffs have been willing and ready to perform their part of contract as alleged? OPD 3. Whether the said agreement has been got executed by way of fraud or misrepresentation by the defendant ? OPD 4. Whether the property in dispute is R.S.A.No. 2334 of 1998 4 coparcenary, if so, to what effect? OPD 5. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiffs had filed a suit for specific performance of agreement to sell dated 2.8.1984. In order to establish their case, plaintiff No.1 appeared in the witness box as PW-3 and they also examined the scribe PW- 1 Chaturbhuj. The plaintiffs further examined PW-4 Som Nath Aggarwal, handwriting and finger print expert, who after examining the thumb impressions of the defendant on the agreement to sell and comparing them with the standard thumb impressions of the defendant gave a report that both the thumb impressions had been affixed by the same person. Since the agreement to sell is not required to be attested as per law, it was not compulsory for the plaintiffs to examine the attesting witness to the agreement to sell. Thus, the learned Additional District Judge, rightly held that the plaintiffs had been successful in proving due execution of the agreement to sell in question. As per the agreement to sell in question Ex. PW1/1, Rs. 30,000/- had been paid as earnest money by the plaintiffs to the defendant and the sale deed was to be executed up to 31.7.1985. The plaintiffs in order to further establish that they were ready and willing to perform their part of the contract have also proved on record their affidavits Ex.PW-3/3 and Ex.PW-3/4 to the effect that they were present in the office of Sub Registrar on R.S.A.No. 2334 of 1998 5 31.7.1985 along with balance sale consideration to perform their part of the contract. The defendant, on the other hand, has denied the execution of the agreement to sell and has taken the plea that in fact, he had only borrowed Rs.30,000/- from the plaintiffs vide document Ex.DW-4/1 and the said amount of loan had been repaid along with interest. In this regard, the appellant-defendant examined witnesses to support his plea. However, a perusal of Ex.DW-4/1 reveals that the same is not signed by the plaintiffs. Moreover, it has also not been executed as an acknowledgment of payment of loan amount. Rather the description of the property owned by the defendant is mentioned in the said document. It looks more like an agreement than an acknowledgment of receipt of loan. There was no occasion to prepare a similar document Ex.DW-4/1 on the same date on which the agreement to sell Ex.PW-1/1 was prepared. In these circumstances, learned Additional District Judge rightly held that the document Ex.DW-4/1 could not be taken in consideration. Learned Additional District Judge had thus rightly decreed the suit of the plaintiffs as they had been successful in proving their case. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 18, 2009 anita