R. S. A. No. 3104 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3104 of 2010 Date of Decision : August 11, 2010 Kartar .... Appellant Vs. Gordhan Dass and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. K. Garg Narwana, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : This is second appeal by defendant no.3 Kartar, who has been unsuccessful in both the courts below. Gordhan Dass – plaintiff-respondent no.1 filed suit against appellant and respondents no.2 and 3 (defendants no.1 and 2 in the trial court). The plaintiff alleged that Jai Singh – defendant no.1 agreed to sell the suit land measuring 31 kanals 11 marlas, being 1/8th share of 158 kanals 05 marlas land and 94 kanals 14 marlas land mentioned in the plaint, to the plaintiff vide agreement dated 11.02.2003 for Rs.4,30,000/- and received Rs.1,30,000/- as earnest money. Sale deed was to be executed on R. S. A. No. 3104 of 2010 2 11.04.2003 on payment of balance sale price. Some part of the suit land was mortgaged with defendant no.2 – bank. The said mortgage was to be got redeemed by defendant no.1 before execution of the sale deed. There being State holidays from 11.04.2003 to 15.04.2003, plaintiff went to the office of Sub Registrar on 16.04.2003 after prior information to defendant no.1 for getting the sale deed executed and registered in terms of agreement, but defendant no.1 did not come present and committed breach of the agreement. In spite of notice sent by the plaintiff to defendant no.1, the latter did not comply with the terms of the agreement. On the other hand, defendant no.1 executed gift deed dated 24.06.2004 in favour of defendant no.3 regarding the suit land. The said gift deed has also been challenged in the suit. The plaintiff sought specific performance of the agreement to sell. Defendant no.1, in his written statement, pleaded that he was residing in Rajasthan and he came to Village Balyali, where the suit land is situated, to lease out the suit land. The plaintiff expressed willingness to take the suit land on lease. The plaintiff, after serving liquor and food to defendant no.1, obtained his signatures on many papers and agreed to take the suit land on lease at Rs.13,000/- per annum rent. Plaintiff promised to pay the lease amount on 13.04.2003. The plaintiff, however, did not pay any amount to defendant no.1. Defendant no.1 denied having executed the impugned agreement to sell. Defendant no.1 admitted that he had gifted the suit land to his brother defendant no.3, who is now owner in possession of R. S. A. No. 3104 of 2010 3 the suit land. Defendant no.3 pleaded to be bona fide transferee of the suit land without notice of the impugned agreement. Learned Additional Civil Judge (Senior Division), Bhiwani, vide judgment and decree dated 31.10.2009, has decreed the suit of the plaintiff. First appeal preferred by defendant no.3 has been dismissed by learned Additional District Judge, Bhiwani, vide judgment and decree dated 06.05.2010. Feeling aggrieved, defendant no.3 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff has led sufficient evidence to prove the agreement. The plaintiff himself appeared in the witness-box and stated according to his version. Respondent-plaintiff has also examined Sanjay Kumar – Deed Writer (PW-1), who scribed the agreement and Mohan Lal Numberdar (PW- 2) – one of the attesting witnesses of the agreement. Both of them have stated about execution of the agreement by defendant no.1 in favour of the plaintiff and also payment of earnest money of Rs.1,30,000/- by plaintiff to defendant no.1 at the time of agreement. All this evidence led by the plaintiff stands unrebutted as defendant no.1 has not even stepped into the witness-box. The plaintiff's evidence is quite reliable. Moreover, adverse presumption has to be drawn against the defendants for non-appearance of defendant no.1 in the witness-box without any explanation whatsoever. R. S. A. No. 3104 of 2010 4 Plaintiff has also led sufficient evidence to prove that he has always remained ready and willing to perform his part of the contract. He went to the office of Sub Registrar on 16.04.2003 to get the sale deed executed in terms of the agreement, but defendant no.1 did not turn up. The plaintiff even served notice dated 09.12.2003 on defendant no.1 requiring him to execute the sale deed, but still defendant no.1 did not do the needful. The plaintiff ultimately filed suit on 27.04.2004 i.e. without delay. Concurrent finding recorded by both the courts below in favour of the plaintiff, therefore, does not suffer from any infirmity, much less illegality or perversity so as to warrant interference in second appeal. On the other hand, the said finding is fully justified and is supported by cogent reasons. In fact, no other finding could be arrived at on the basis of evidence on record. As regards gift deed dated 24.06.2004 executed by defendant no.1 in favour of defendant no.3, suffice to notice that the said gift deed was executed during pendency of the suit and is, therefore, hit by doctrine of lis pendens. Secondly, defendant no.3 cannot claim to be bona fide transferee as the transfer is gratuitous and without consideration. Thirdly, transfer was made by defendant no.1 in favour of his own brother defendant no.3. Fourthly, defendant no.3 was aware of the impugned agreement inasmuch as the gift deed was executed in his favour during the pendency of the suit, which had been instituted on the basis of agreement. Thus, the gift deed has R. S. A. No. 3104 of 2010 5 rightly been held to be null and void. Learned counsel for the appellant contended that gift deed pertains to some other land also in addition to the suit land. Obviously, judgments and decrees of the courts below shall have no bearing on the other land, if any included in the gift deed. The judgments and decrees of the courts below setting aside the gift deed pertain to suit land only and even the plaintiff has no concern with any other land except the suit land mentioned in the gift deed nor the plaintiff claimed relief regarding any other land. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. August 11, 2010 ( L. N. MITTAL ) monika JUDGE