IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.235 of 1997. Date of decision: 08.04.2009. Smt.Shakuntala Devi & Another …Appellants Versus Prem Chand and Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellants: Mr.K.D. Sood, Advocate. For the Respondents: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. Dev Darshan Sud,J. This is the defendants’ second appeal against the concurrent findings of the two Courts below in a suit for specific performance of sale, based on the agreement Ex.PA, of land comprised in Khasra No.2256/436/2, Khata Khatauni No.275 min/414 min, measuring 0-5-10 biswas to the extent of 0-4-0 biswas, Phati Dhalpur, Kothi Maharaja, Tehsil and District Kullu, H.P., instituted by the plaintiff-respondent. The suit was resisted by the defendants on a number of grounds and on the vital issues, as to:- “(i) whether the plaintiff was ready and willing to perform 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 his part of the contract and an amount of Rs.30,000/- was paid to the plaintiff”, the findings were in favour of the plaintiff and accordingly a decree for specific performance was passed. These findings have been affirmed by the appellate Court where an attempt has also been made to urge that the agreement Ex.PA has been manipulated/interpolated. This appeal has been admitted on the following substantial questions of law:- “1. Whether in the facts and circumstances of the case, the plaintiff had proved that he was ready and willing to perform his part of the contract and was entitled to a decree for specific performance? 2. Whether on the material on record, it was established that the document Ex.PA which is the basic document of title, had been tempered with in connivance with the scribe and marginal witnesses and the plaintiff being a party to the same was entitled to the discretionary relief as also equitable relief? 3. Whether the oral and documentary evidence has been misconstrued and the plaintiff was not entitled to specific performance but only damages under Section 14(A) of the Specific Relief Act? 3 4. Whether there was variation and novation of the contract and thus also the courts below have drawn wrong inferences from the facts proved on the record which has vitiated the findings? Questions No.1 and 2:- Taking up questions No.1 and 2 together, I do not find that there is any pleading in the written statement filed by the defendants that agreement Ex.PA has been interpolated. There is also no evidence on the record to establish this fact. This question is accordingly answered against the appellants. On the first question, the learned trial Court has discussed the evidence elaborately, namely, that on 15.12.1983, the plaintiff was present in the Court which fact is proved by his affidavit Ex.PF which was attested by the Executive Magistrate on 15.12.1983. Contents of this affidavit prove that the plaintiff was present in Court along with the consideration for the purpose of registration, but appellants-defendants did not present themselves. Certified copies of the telegrams Ex.PC and Ex.PL, were delivered to the defendants on 15.12.1983 and 16.12.1983, calling upon them to be present in Kullu for the purposes of having sale deed executed and registered, pursuant to the agreement to sell Ex.PA. Letter Ex.PD is to the same effect which has been proved on the record. Two other 4 letters Ex.PG and Ex.PH have also been proved reiterating the same facts. These findings of facts have been reaffirmed by the learned appellate Court. I cannot persuade myself to take another view of the matter by re-appreciating the evidence. Even otherwise, on a consideration of the entire evidence, I do not find that the Courts below have erred in arriving at these findings. There is, thus, no merit in the submissions made by the learned counsel for the appellants that both the Courts below have mis- appreciated/wrongly interpreted evidence on record. The questions are, therefore, answered against the appellants. Question No.3 and 4: On question No.4, I do not find any material to show that there has been novation of the contract. Having held questions No.1 and 2 against the plaintiff, question No.3 also deserves to be answered against the appellant. This appeal is accordingly dismissed. There shall be no order as to costs. April 8, 2009. (Dev Darshan Sud) (aks) Judge.