R.S.A.No. 2848 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2848 of 2009 Date of decision: 4.11.2009 Om Parkash and others ......Appellants Versus Sat Pal and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. G.S.Hooda, Advocate, for the appellants. **** SABINA, J. Plaintiffs-appellants filed a suit for declaration, which was dismissed by the Civil Judge (Sr.Divn.), Ambala vide judgment and decree dated 11.10.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, Ambala vide judgment and decree dated 15.12.2008. Hence, the present appeal. 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. As per plaintiffs, defendant, who is owner of the suit land (the detail of which are mentioned in para No.1 of the plaint), had agreed to sell the same to them at the rate of Rs.15,000/- per acre and in this regard, an agreement to sell dated 7.3.1994 was executed, on the R.S.A.No. 2848 of 2009 2 same day, earnest money of Rs.6,000/- was also paid by them (plaintiffs) to defendant. It was agreed between the parties that the sale deed would be executed on or before 15.9.1994 on payment of balance sale consideration. However, on the day fixed for execution and registration of the sale deed, for reasons best known, defendant did not turn up in the office of the Sub Registrar. Left with no alternative, plaintiffs moved an application for marking their presence, which was returned to them with an official endorsement. Specific contention of plaintiffs is that they were and are still ready and willing to perform their part of the contractual obligation, though they requested defendant on many occasions to get the sale deed executed and registered, but no need was paid to these requests, which necessitated the filing of present suit, by virtue of which, plaintiffs prayed for decree of possession by way of specific performance of agreement to sell dated 7.3.1994 of the suit land, in the alternative, it was prayed that any other relief, which the Court seems just and appropriate in the facts and circumstances of the case, be granted to them. 3. On notice, defendant Chhajju Ram appeared and filed a detailed written statement raising several R.S.A.No. 2848 of 2009 3 preliminary objections as regards maintainability, cause of action, locus standi and plaintiffs being guilty of suppressing true and material facts from the knowledge of the Court. On merits, however, defendant denied being owner of the suit land or executing any agreement to sell in favour of plaintiffs, who are his real nephews. According to him, in order to properly contest a partition suit pending between the parties, plaintiff Harish by taking undue advantage of his illiteracy and simplicity, made him put his signature on certain blank pieces of paper which were later misused and an agreement to sell was forged thereupon. He denied receiving any earnest money or agreeing to get the sale deed executed and registered on 15.9.1994. While denying the other averments made in the plaint, it was prayed in the end that the suit having been filed without merit, cause of action, deserves dismissal. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant agreed to sell the suit property to the plaintiff? OPP 2. Whether the defendant received earnest R.S.A.No. 2848 of 2009 4 money of Rs.6,000/- and executed an agreement in favour of the plaintiff? OPP 3. Whether the plaintiffs have been and are still ready and willing to perform their part of contract? OPP 4. Whether suit is not maintainable in the present form? OPD 5. Whether the suit is time barred? OPD 6. Relief. ” After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The parties to the suit are closely related to each other. Defendant Chhajju Ram was uncle of the plaintiffs. Defendant had agreed to sell 6 kanals 12 marlas of land to the plaintiffs vide agreement to sell dated 7.3.1994. Rs.6,000/- were paid by the plaintiffs as earnest money. However, the plaintiffs failed to establish the due execution of the agreement to sell. Plaintiff Harish Chander deposed that he had given the earnest money to the attesting witness Rajinder Kumar and had requested him to hand over the same to the defendant but thereafter, he deposed that he had given the earnest money to Chhajju Ram himself. Rajinder Kumar, attesting witness of the agreement to sell, while appearing in the witness box denied the fact that he had handed over any money to the defendant. In his cross-examination, he further deposed that R.S.A.No. 2848 of 2009 5 when he had reached the spot, agreement to sell had already been typed and the contents of the same were not read over to the parties. Harish Chander, in his cross-examination, admitted that he had not made any enquiry from the revenue record to ascertain as to whether Chhajju Ram was owner of 6 kanals 12 marlas of land. Rather as per the revenue record, it was found that defendant owned only 3 kanals 1 marla of land. Learned Additional District Judge in the impugned judgment has observed that a perusal of the agreement to sell showed that the last four lines of the said agreement to sell had very little space or almost no space in between them and the said fact had not been explained by the plaintiffs. In these circumstances, it was inferred that the agreement to sell was a fabricated document and had been scribed on a piece of paper which already had the signatures of defendant. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the plaintiffs had failed to establish the due execution of the agreement to sell in question. The said finding of fact arrived at by the Courts below cannot be interfered with in this appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 04, 2009 anita