-1- Regular Second Appeal No. 1044 of 2011 (O&M). IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 09, 2011. Regular Second Appeal No. 1044 of 2011 (O&M). Joginder Singh ... Appellant VERSUS Maninder Kaur and another ...Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.D.K. Bhatti, Advocate, for the appellant. -.- MOHINDER PAL, J. Defendant-appellant Joginder Singh is in second appeal aggrieved against the judgments and decrees passed by both the Courts below, whereby the suit filed by plaintiff- respondent Maninder Kaur against the defendant-appellant and defendant-respondent No.2 for specific performance of -2- Regular Second Appeal No. 1044 of 2011 (O&M). agreement dated 26.6.2004 in respect of the property in dispute was decreed and the plaintiff-respondent No.1 was directed to deposit the balance sale consideration within one month of passing of the decree by the trial Court and thereafter the defendant-appellant was directed to execute the sale deed within one month. In case of failure of the defendant-appellant to do so, the plaintiff was held entitled to get the sale deed executed through Court. The defendant-appellant was also restrained from interfering into the possession of the plaintiff over the first floor of the property in dispute and further from alienating the suit property to anybody else except the plaintiff. Both the Courts below, after appreciating the evidence led by both the parties, have came to the conclusion that the plaintiff-respondent No.1 has been successful in proving that on 26.6.2004, the defendant-appellant, being the owner of House No.25/1 measuring 8-1/2 Marlas, had agreed to sell the same in favour of the plaintiff-respondent No.1 for a consideration of Rs.16,00,000/-. The defendant-appellant, out of the total sale consideration, had received Rs.6,75,000/- from the plaintiff- respondent No.1 at the time of execution of the agreement and had agreed to execute the sale deed in favour of the plaintiff- respondent No.1 on or before 2.8.2004 on payment of the balance sale consideration. Later on, the defendant-appellant had received another sum of Rs.25,000/- through his (defendant-appellant's) attorney Smt.Surjit Kaur. At the time of execution of the -3- Regular Second Appeal No. 1044 of 2011 (O&M). agreement and after receiving the advance money of Rs.6,75,000/-, the defendant-appellant had delivered possession of the entire first floor of the property in dispute to the plaintiff- respondent No.1 and he (defendant-appellant) had agreed to deliver possession of the ground floor of the property in dispute to the plaintiff-respondent at the time of the execution of the sale deed. Since the date of the agreement i.e 26.6.2004, the plaintiff- respondent has been in possession of the first floor of the property in dispute. It was also agreed by the defendant-appellant in the agreement that before the last date for the execution of the sale deed, he (defendant-appellant) would get vacated the two shops at the ground floor of the property in dispute, which were under the possession of the tenants of the defendant-appellant. Instead of executing the sale deed in favour of the plaintiff-respondent, the defendant-appellant came up with the plea that the suit property was not free from all encumbrances as there was a dispute with regard thereto (suit property) with defendant-respondent No.2, who had sold the property in dispute to the defendant-appellant through his attorney Smt.Surjit Kaur. However, the defendant-appellant could not substantiate his this plea before the Courts below. Inderjit Bhagat (defendant-respondent No.2), had appeared in the witness box in this case as D.W.1. In his cross- examination, he (defendant-respondent No.2) admitted that the sale deed dated 20.1.1988 in respect of the suit property was -4- Regular Second Appeal No. 1044 of 2011 (O&M). executed by Smt.Surjit Kaur in favour of defendant-appellant Joginder Singh, on the basis of power of attorney given to her by defendant-respondent No.2. Defendant-respondent No.2 Inderjit Bhagat (D.W.1) also stated that he had filed a suit against his attorney Smt.Surjit Kaur and Joginder Singh (defendant-appellant) for cancellation of sale deed dated 20.1.1988 executed by Smt.Surjit Kaur in favour of the defendant-appellant in the year 1997. The said suit was dismissed by the trial Court and the appeal preferred by defendant-respondent No.2 against the judgment and decree passed by the trial Court was also dismissed by the lower appellate Court. Inderjit Bhagat (D.W.1) also admitted that the Civil Court, while dismissing his suit, had held the sale deed dated 20.1.1988 was a legal and valid document. It, thus, stands proved on the record that there was a genuine sale deed in respect of the property in dispute i.e measuring 8-1/2 Marlas in favour of the defendant-appellant by Smt.Surjit Kaur, power of attorney holder of defendant-respondent No.2 Inderjit Bhagat. The sale deed dated 20.1.1988 is on record as Exhibit P.7 and the power of attorney executed by defendant-respondent No.2 in favour of Smt.Surjit Kaur is Exhibit P.8. The plaintiff-respondent sought specific performance of the agreement to sell dated 26.6.2004 executed by the defendant- appellant in his (plaintiff-respondent's) favour in respect of the house in dispute measuring 8-1/2 Marlas, which was purchased by the defendant-appellant vide sale deed Exhibit P.7 from -5- Regular Second Appeal No. 1044 of 2011 (O&M). defendant-respondent No.2 through his (defendant-respondent No.2's) attorney Smt.Surjit Kaur. The evidence produced by the plaintiff-respondent, including the site plan Exhibit P.1 in respect of the property in dispute, reveals that the property, which had been purchased by defendant-appellant from defendant-respondent No.2 through his (defendant-respondent No.2's) attorney Smt. Surjit Kaur had been sold by him (defendant-appellant) to the plaintiff-respondent vide agreement to sell dated 26.6.2004, the specific performance of which had been sought by the plaintiff-respondent. Accordingly, the plaintiff was held entitled to specific performance of the agreement to sell dated 26.6.2004 by both the Courts below. The defendant-appellant could not produce any evidence on record to show that the said agreement to sell was forged or a fabricated document or it was the result of fraud or misrepresentation. In fact, the defendant-appellant, during the proceedings in the instant suit and after he had filed the written statement, chose not to attend the proceedings. Ultimately, on 7.5.2008, he was proceeded against ex parte by the trial Court. After the trial Court had passed the judgment and decree in favour of the plaintiff-respondent No.1, as mentioned above, the defendant- appellant went in appeal before the lower appellate Court, which was dismissed. The plaintiff-respondent proved on record that she had always been ready and willing to perform her part of the agreement. In fact, filing of the suit by the plaintiff-respondent -6- Regular Second Appeal No. 1044 of 2011 (O&M). itself showed that she was ready and willing to perform her part of the agreement. The findings recorded by both the Courts below are the findings of fact. It could not be pointed out by the learned counsel for the defendant-appellant that such findings are based on misreading of evidence or that material evidence has not been taken into consideration. Under the circumstances, I do not find any patent illegality or irregularity in the findings recorded by the Courts below, which may give rise to any substantial question of law in the present appeal. Resultantly, this appeal is hereby dismissed being without any merit. ( MOHINDER PAL ) March 09, 2011. JUDGE ak