Regular Second Appeal No. 377 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 377 of 2011(O&M) Date of decision : January 24, 2011 Madan Lal ....Appellant versus Om Parkash ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vinod S. Bhardwaj, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 1033.C of 2011 Allowed as prayed for. RSA No. 377 of 2011 Defendant Madan Lal has filed the instant second appeal. Respondent-plaintiff Om Parkash filed suit against defendant- appellant for specific performance of agreement to sell dated 10.7.2001 alleging that the defendant-appellant agreed to sell suit land measuring 25 kanals 10 marlas to the plaintiff at the rate of ` 1,90,000/- per acre and received ` 2 lacs as earnest money and executed the aforesaid agreement. Sale deed was agreed to be executed upto 5.7.2002. Accordingly, on 5.7.2002 plaintiff went to the office of Sub Registrar to get the sale deed executed and registered in terms of the agreement, but the defendant did not Regular Second Appeal No. 377 of 2011(O&M) -2- turn up and committed breach of the agreement. The plaintiff even served notice dated 2.2.2004 on the defendant for executing the sale deed, but the defendant refused to receive the said notice. The plaintiff has always been ready and willing to perform his part of the contract. Accordingly, the plaintiff sought specific performance of the impugned agreement to sell and in the alternative, decree for recovery of ` 4 lacs. The defendant broadly denied the plaint allegations. Defendant denied having agreed to sell the suit land to the plaintiff or having received any earnest money or having executed the impugned agreement. The defendant pleaded that he was selling his agricultural produce at the shop of M/s Zimindara Traders, Commission Agents. Partners of the said firm had obtained defendant's signatures on blank papers as security. The same were not returned to him. The impugned agreement is forged, fabricated and without consideration. The impugned agreement does not even bear signatures of the defendant. Witnesses of the agreement are near and dear ones of the plaintiff who is related to the aforesaid Commission Agents. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Abohar vide judgment and decree dated 8.1.2010 decreed the plaintiff's suit for recovery of ` 2 lacs along with interest thereon @ 9% per annum since the date of agreement till filing of suit and @ 6% per annum from the date of filing of suit till recovery. Both the parties preferred first appeals against judgment and decree of the trial court. Learned Additional District Judge, Ferozepur vide common judgment dated 31.8.2010 dismissed the appeal preferred by the defendant and allowed the appeal preferred by the plaintiff and thereby Regular Second Appeal No. 377 of 2011(O&M) -3- decreed the plaintiff's suit for specific performance of the impugned agreement. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Execution of the impugned agreement by the defendant has been found proved by both the courts below. The said finding is fully justified by the evidence on record and is supported by cogent reasons. The defendant in his written statement did not come with clean hands. The defendant took self contradictory stand. He pleaded that his signatures had been obtained on blank papers by the Commission Agent. This plea was taken to depict that impugned agreement has been forged on the said blank papers as is also the contention raised before me. However, at the same time, defendant in his written statement pleaded that the impugned agreement does not bear his signatures. This reflects completely dishonest and contradictory stand of the defendant. If the impugned agreement did not bear the signatures of the defendant as asserted by him in the written statement, it was completely irrelevant to plead that signatures of defendant had been obtained on blank papers by Commission Agent. The said plea could have no relevance if the impugned agreement did not bear signatures of the defendant. Be that as it may, the fact remains that execution of the impugned agreement has been held proved by both the courts below. In this context, in addition to the aforesaid dishonest and contradictory stand of the defendant in his written statement, it is also significant to notice that the defendant in the witness box admitted his signatures on the impugned Regular Second Appeal No. 377 of 2011(O&M) -4- agreement. This admission is contradictory to his assertion in the written statement, again depicting his dishonesty. The plaintiff himself appeared in the witness box and stated according to his version. Plaintiff has also examined Gopal Krishan PW2 who is one of the marginal witnesses of the impugned agreement. Lachhman Dass Kamboj, Deed Writer, PW4 who scribed the impugned agreement has also been examined. Both of them have stated according to the plaintiff's version. Lachhman Dass also stated that entry in his register relating to the agreement was also signed by the defendant. In the witness box, the defendant has admitted his signatures on the impugned agreement and also on the aforesaid entry in the register of the Deed Writer. These admissions of the defendant further corroborate the plaintiff's case. It is significant to notice that defendant in his written statement or evidence has not explained as to in what circumstances he affixed his signatures on entry in the register of the Deed Writer relating to the impugned agreement. It is not the case of the defendant that his signatures had been obtained in the register of the Deed Writer by the Commission Agent. The defendant's version is that his signatures were obtained on blank papers only by the Commission Agent. Consequently, the fact that the defendant's signatures appeared in the register of Deed Writer also relating to the impugned agreement further falsifies the defendant's case. There is only sole, bald and oral self serving statement of the defendant which is not sufficient to rebut the cogent evidence led by the plaintiff to prove execution of the impugned agreement. Evidence of the plaintiff far out weighs the self serving oral statement of the defendant. Regular Second Appeal No. 377 of 2011(O&M) -5- On the contrary, the defendant's own statement also corroborates plaintiff's version. The mere fact that Gopal Krishan PW2, one of the marginal witnesses of the impugned agreement, happens to be partner of M/s Zimindara Traders where the defendant had been selling his produce is not sufficient to non-suit the plaintiff, particularly in view of cogent evidence led by the plaintiff which has not been rebutted by the defendant. Learned counsel for the appellant contended that defendant's version is rendered probable because Gopal Krishan witness of the agreement is partner of M/s Zimindara Traders where the defendant used to sell his produce. The contention cannot be accepted. Defendant's version is not rendered probable by this circumstance only. It is also more so because the defendant took dishonest and contradictory stand in the written statement whereas in the witness box, he has admitted his signatures not only on the impugned agreement but also on the entry in the register of the Deed Writer. On preponderance of evidence, the balance tilts completely in favour of the plaintiff and the defendant's version is not even rendered probable on the basis of the material on record. Defendant's version is rather completely falsified and disproved. Even otherwise the defendant's version that his signatures had been obtained by the Commission Agent on blank papers as security cannot be accepted as reasonable one. The defendant has studied upto 8th standard and affixes his signatures in English. He would not have affixed his signatures on blank papers at the instance of Commission Agent, knowing fully well the implications of doing so. Concurrent finding recorded by both the courts below in favour Regular Second Appeal No. 377 of 2011(O&M) -6- of plaintiff regarding execution of the agreement is fully justified by the evidence on record and is supported by cogent reasons. Said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. No sufficient ground for declining relief of specific performance is made out. Trial court committed grave error in declining the said relief and in decreeing the suit for recovery of earnest money only. There is no infirmity in the judgment and decree of the lower appellate court in granting the relief of specific performance of the agreement to the plaintiff. The plaintiff has led sufficient evidence to prove that he has always been ready and willing to perform his part of the contract. No question of law much less substantial question of law arises for determination in the instant second appeal. For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed. ( L.N. Mittal ) January 24, 2011 Judge 'dalbir'